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405 U.S. 117
92 S.Ct. 798
31 L.Ed.2d 79
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.Robert SCRIVENER, dba AA Electric Company.
No. 70—267.
Argued Jan. 12, 1972.
Decided Feb. 23, 1972.
Syllabus
Employer's discharge of employees because they gave written sworn statements to a National Labor Relations Board field examiner investigating an unfair labor practice charge filed against the employer, but who had neither filed the charge nor testified at a formal hearing on the charge, constituted a violation of § 8(a)(4) of the National Labor Relations Act. Pp. 121—125.
435 F.2d 1296, reversed and remanded.
William Terry Bray, Austin, Tex., for petitioner.
Donald W. Jones, Springfield, Mo., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Section 8 of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. § 158, provides:
2
'Sec. 8. (a) It shall be an unfair labor practice for an employer—
3
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; '(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act.'
4
Section 7 of the Act, as amended, 61 Stat. 140, 29 U.S.C. § 157, provides:
5
'Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ..'
6
This case presents the issue whether an employer's retaliatory discharge of an employee who gave a written sworn statement to a National Labor Relations Board field examiner investigating an unfair labor practice charge filed against the employer, but who had not filed the charge or testified at a formal hearing on it, constitutes a violation of § 8(a)(1) or of § 8(a)(4) of the Act. The Board, with one member not participating, unanimously held that it was. 177 N.L.R.B. 504 (1969). The United States Court of Appeals for the Eighth Circuit, by a unanimous panel vote, held otherwise and denied enforcement. 435 F.2d 1296 (1971). The Court of Appeals did not reach other issues raised by the employer. We granted certiorari in order to review a decision that appeared to have an important impact upon the administration of the Act. 404 U.S. 821, 92 S.Ct. 75, 30 L.Ed.2d 49 (1971).
7
* There is testimony in the record, credited by the trial examiner and adoted by the Board, to the following effect:
8
The respondent Robert Scrivener is a small electrical contractor in Springfield, Missouri. He does business as an individual proprietor under the name of AA Electric Company. On March 18, 1968, five of Scrivener's six employees signed cards authorizing a union1 to represent them in collective bargaining. The next day business agent Moore advised Mr. Scrivener of the union's majority status and asked to negotiate a contract. Scrivener examined the cards, but refused the request.
9
Mr. Scrivener then visited his jobsites and complained to his employees about their action. On March 20 he dismissed card-signers Cockrum, Smith, and Wilson, and hired Hunt, a journeyman, and Statton, a helper. Hunt had worked for Scrivener on prior occasions.
10
On March 21 the union filed charges with the Board alleging that the company had violated §§ 8(a)(1), (3), and (5) of the Act. On March 26 the three dischargees returned to work. The next day, however, Cockrum and Smith again were released on the ground that there was a lack of work. The two new employees and Perryman, the sole nonsigner among the six original employees, were retained. Smith was again recalled on April 1 and, with the other card-signers, except Cockrum, continued to work until April 18.
11
On April 17 a field examiner from the Board's regional office met with Mr. Scrivener and discussed the charges that had been filed. That evening the examiner interviewed the five card-signers at the union hall. He took affidavits or sworn statements from all except Cockrum who was not then working for Scrivener. On April 18 Scrivener inquired of at least two of the men whether they had met and been interviewed by the examiner the evening before. At the end of the day Scrivener dismissed the four who had given the statements; he did so with the explanation that he had no work for them to do. Perryman, Hunt, and Statton continued to work on the three houses and the 11-unit apartment building the company had under construction at the time.
12
On May 13 the union filed an amended charge adding the allegation that the dismissal of the four men on April 18 was because they had given the statements to the examiner in connection with the earlier charge, and that this was a violation of § 8(a)(1) and § 8(a)(4). Three of the men returned to work in May or early June. The fourth was never recalled.
13
A complaint was issued on both the original charge and the added allegation.
II.
14
The Board, in agreement with the trial examiner, concluded that the April 18 dismissal of the four employees was 'in retaliation against them for having met with and given evidence to a Board field examiner investigating unfair labor practice charges which had been filed against' Scrivener; that '(t)he investigation of charges filed is an integral and essential stage of Board proceedings'; and that this conduct violated § 8(a)(1) and § 8(a)(4). 177 N.L.R.B., at 504. The customary order to cease and desist, to reinstate the four employees with back pay, and to post notices was issued. The Board concluded, however, in disagreement with the trial examiner and with one member dissenting, 'that it will not effectuate the policies of the Act for the Board to assert jurisdiction herein over the alleged independent and unrelated violations of Section 8(a)(1), (3), and (5) of the Act,' and dismissed those portions of the complaint. Id., at 504, 505.
15
The Court of Appeals, per curiam, relying on its earlier decision in NLRB v. Ritchie Mfg. Co., 354 F.2d 90 (CA8 1965), held that § 8(a)(4) does not 'encompass discharge of employees for giving written sworn statements to Board field examiners.' In Ritchie the court had stated, 'We are reluctant to hold that § 8(a)(4) can be extended to cover preliminary preparations for giving testimony.' 354 F.2d, at 101.2 In the present case, the court refused to uphold the Board's finding that the challenged discharges violated § 8(a)(1) as well as § 8(a)(4) since '(t)o do so would be to overrule Ritchie implicitly, and we are not prepared to take that action.' 435 F.2d, at 1297.
III
16
The view of the Court of Appeals is that § 8(a)(4) of the Act serves to protect an employee against an employer's reprisal only for filing an unfair labor practice charge or for giving testimony at a formal hearing, and that it affords him no protection for otherwise participating in the investigative stage or, in particular, for giving an affidavit or sworn statement to the investigating field examiner.
17
We disagree for several reasons.
18
1. Construing § 8(a)(4) to protect the employee during the investigative stage, as well as in connection with the filing of a formal charge or the giving of formal testimony, comports with the objective of that section. Mr. Justice Black, in no uncertain terms, spelled out the congressional purpose:
19
'Congress has made it clear that it wishes all persons with information about such practices to be completely free from coercion against reporting them to the Board. This is shown by its adoption of § 8(a)(4) which makes it an unfair labor practice for an employer to discrimiante against an employee because he has filed charges. And it has been held that it is unlawful for an employer to seek to restrain an employee in the exercise of his right to file charges' (citations omitted). Nash v. Florida Industrial Comm'n, 389 U.S. 235, 238, 88 S.Ct. 362, 365, 19 L.Ed.2d 438 (1967).
20
This complete freedom is necessary, it has been said, 'to prevent the Board's channels of information from being dried up by employer intimidation of prospective complainants and witnesses.' John Hancock Mut. Life Ins. Co. v. NLRB, 89 U.S.App.D.C. 261, 263, 191 F.2d 483, 485 (1951). It is also consistent with the fact that the Board does not initiate its own proceedings; implementation is dependent 'upon the initiative of individual persons.' Nash v. Florida Industrial Comm'n, supra, 389 U.S., at 238, 88 S.Ct., at 365; NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 424, 88 S.Ct. 1717, 1721, 20 L.Ed.2d 706 (1968).
21
2. The Act's reference in § 8(a)(4) to an employee who 'has filed charges or given testimony,' could be read strictly and confined in its reach to formal charges and formal testimony. It can also be read more broadly. On textual analysis alone, the presence of the preceding words 'to discharge or otherwise discriminate' reveals, we think, particularly by the word 'otherwise,' an intent on the part of Congress to afford broad rather than narrow protection to the employee. This would be consistent with § 8(a)(4)'s purpose and objective hereinabove described. A similar question with respect to the word 'evidence' in §§ 11(1) and (2) of the Act, 29 U.S.C. §§ 161(1) and (2), was considered in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 768—769, 89 S.Ct. 1426, 1430—1431, 22 L.Ed.2d 709 (1969), and was resolved by a broad and not a narrow construction.3 That precedent is pertinent here.
22
3. This broad interpretation of § 8(a)(4) accords with the Labor Board's view entertained for more than 35 years. Section 8(a)(4) had its origin in the National Industrial Recovery Act, 48 Stat. 195. Executive Order No. 6711, issued May 15, 1934, under that Act (10 NRA Codes of Fair Competition 949), provided, 'No employer . . . shall dismiss or demote any employee for making a complaint or giving evidence with respect to an alleged violation. . . .' The first Labor Board interpreted that phrase to protect the employee not only as to formal testimony, but also as to the giving of information relating to violations of the NIRA. New York Rapid Transit Corp., 1 N.L.R.B. Dec. 192 (1934) (affidavits); Ralph A. Freundlich, Inc., 2 N.L.R.B. Dec. 147, 148 (1935) (state court testimony). In § 8(a)(4) the word 'testimony,' rather than 'evidence,' appears. But the new language was described as 'merely a reiteration' of the Executive Order language and it was stated that the 'need for this provision is attested' by the above-cited Board decisions. Comparison of S. 2926 (73d Cong.) and S. 1958 (74th Cong.), Senate Committee Print 29, 1 Leg. Hist. of National Labor Relations Act 1319, 1355 (1949).4
23
4. This interpretation, in our view, also squares with the practicalities of appropriate agency action. An employee who participates in a Board investigation may not be called formally to testify or may be discharged before any hearing at which he could testify. His contribution might be merely cumulative or the case may be settled or dismissed before hearing. Which employees receive statutory protection should not turn on the vagaries of the selection process or on other events that have no relation to the need for protection. It would make less than complete sense to protect the employee because he participates in the formal inception of the process (by filing a charge) or in the final, formal presentation, but not to protect his participation in the important developmental stages that fall between these two points in time. This would be unequal and inconsistent protection and is not the protection needed to preserve the integrity of the Board process in its entirety.5
24
5. The Board's subpoena power also supports this interpretation. Section 11 of the Act, 29 U.S.C. § 161, gives the Board this power for 'the purpose of all hearings and investigations.' Once an employee has been subpoenaed he should be protected from retaliatory action regardless of whether he has filed a charge or has actually testified. Judge Lumbard pertinently described it:
25
'It is, we think, a permissible inference that Congress intended the protection to be as broad as the (subpoena) power.' Pedersen v. NLRB, 234 F.2d 417, 420 (CA2 1956).
26
Under this reasoning, if employees of Scrivener had been subpoenaed, they would have been protected. There is no basis for denying similar protection to the voluntary participant.
27
6. The approach to § 8(a)(4) generally has been a liberal one in order fully to effectuate the section's remedial purpose. In M & § Steel Co. v. NLRB, 353 F.2d 80 (CA5 1965), the court sustained the Board's finding, 148 N.L.R.B. 789, 792—795 (1964), that § 8(a)(4) was violated by the discharge of an employee, Williams, because he gave a statement to a field examiner. In NLRB v. Dal-Tex Optical Co., 310 F.2d 58, 60—61 (CA5 1962), the court sustained the Board, 131 N.L.R.B. 715, 721 (1961), in affording protection to an employee, Whitaker, who appeared but did not testify at a Board hearing. See John Hancock Mut. Life Ins. Co. v. NLRB, supra, and NLRB v. Syracuse Stamping Co., 208 F.2d 77, 79—80 (CA2 1953).6
28
We are aware of no substantial countervailing considerations. We therefore conclude that an employer's discharge of an employee because the employee gave a written sworn statement to a Board field examiner investigating an unfair labor practice charge filed against the employer constitutes a violation of § 8(a)(4) of the National Labor Relations Act.
29
Having reached this conclusion, it is unnecessary for us to determine whether the employer's action is also a violation of § 8(a)(1), and we expressly refrain from so doing.
IV
30
A final comment about the jurisdictional aspects of the case is perhaps in order. The Board found that Scrivener's operations were too small to satisfy the Board's self-imposed and published $50,000 outflow-inflow jurisdictional standard for non-retail enterprises. See Siemons Mailing Service, 122 N.L.R.B. 81, 85 (1958). It also found, however, that Scrivener's operations were sufficient to 'have an impact on and affect interstate commerce,' 177 N.L.R.B., at 504, and thus were within the Board's statutory jurisdiction, as defined by § 10(a) of the Act, 29 U.S.C. § 160(a).
31
This prompted the Board to assert jurisdiction over the §§ 8(a)(1) and (4) claim of retaliation, but to refuse to exercise jurisdiction over the original §§ 8(a)(1), (3), and (5) claims on the ground that the latter would have 'no immediate impact on the vindication of the right of an individual to resort to the Board's processes . . ..' 177 N.L.R.B., at 505. Scrivener, as a consequence, complains that relief for him against a claimed unfair labor practice on the part of the union is unavailable.
32
The employer's complaint of jurisdictional unfairness is understandable. See, however, Pedersen v. NLRB, supra, 234 F.2d 417. As we read the opinion of the Court of Appeals, this issue and that of the sufficiency of the evidence, and perhaps others, were nto reached when that court decided the § 8(a)(4) issue as it did. We note that that court described the Board's jurisdiction to act as 'marginal.' 435 F.2d, at 1296. In any event, this and any other issues may be canvassed on remand.
33
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings.
34
It is so ordered.
35
Reversed and remanded.
1
Local 453, International Brotherhood of Electrical Workers, AFL—CIO.
2
Apparently all the Ritchie employee did was 'to prepare to testify.' 354 F.2d, at 101.
3
The three Justices who concurred in the result joined Part III of the plurality opinion. 394 U.S., at 769, 89 S.Ct., at 1431.
4
We do not regard three Board cases, Albert J. Bartson, 23 N.L.R.B. 666, 673—674 (1940); F.W. Poe Mfg. Co., 27 N.L.R.B. 1257, 1270 (1940); and The Kramer Co., 29 N.L.R.B. 921, 935 (1941), cited by the amicus, as indicative of a contrary Board interpretation. In each of those cases the employee had filed a charge. The Board's reference, in each opinion, to that fact and its further reference, in the last two cases, to the 'express statutory protection afforded employees' by § 8(a)(4), are expected and natural references and do not, in our view, indicate a narrow approach to the statute.
5
We are not persuaded that the reach of § 8(a)(3), 29 U.S.C. § 158(a)(3), and the criminal penalty provided by § 12, 29 U.S.C. § 162, provide the required protection that justifies a narrow reading of § 8(a)(4).
6
But cf. Hoover Design Corp. v. NLRB, 402 F.2d 987 (CA6 1968) (employee who 'threatened to go to the Board' or file charges).
| 67
|
405 U.S. 34
92 S.Ct. 815
31 L.Ed.2d 17
Joseph PARISI, Petitioner,v.Philip B. DAVIDSON, etc., et al.
No. 70—91.
Argued Oct. 19, 20, 1971.
Decided Feb. 23, 1972.
Syllabus
Petitioner, a member of the armed forces, applied unsuccessfully for discharge as a conscientious objector. After he had exhausted all his administrative remedies, he filed a habeas corpus petition in Federal District Court, claiming that the Army's denial of his application was without basis in fact. Thereafter court-martial charges were brought against him, and the District Court ordered consideration of the petition deferred until final determination of the court-martial proceedings. The Court of Appeals affirmed. Held: The District Court should not have stayed its hand in this case. Pp. 37—45.
(a) All alterative administrative remedies have been exhausted by petitioner. Pp. 37—39.
(b) Since the military judicial system in its processing of the court-martial charge could not provide the discharge sought by petitioner with promptness and certainty, the District Court should proceed to determine the habeas corpus claim despite the pendency of the court-martial proceedings. Pp. 39—45.
435 F.2d 299, reversed.
Richard L. Goff, San Francisco, Cal., for petitioner.
William Terry Bray, Austin, Tex., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
When a member of the armed forces has applied for a discharge as a conscientious objector and has exhausted all avenues of administrative relief, it is now settled that he may seek habeas corpus relief in a federal district court on the ground that the denial of his application had no basis in fact. The question in this case is whether the district court must stay its hand when court-martial proceedings are pending against the serviceman.
2
The petitioner, Joseph Parisi, was inducted into the Army as a draftee in August 1968. Nine months later he applied for a discharge as a conscientious objector, claiming that earlier doubts about military service had crystallized into a firm conviction that any form of military activity conflicted irreconcilably with his religious beliefs. He was interviewed by the base chaplain, the base psychiatrist, and a special hearing officer. They all attested to the petitioner's sincerity and to the religious content of his professed beliefs. In addition, the commanding general of the petitioner's Army training center and the commander of the Army hospital recommended that the petitioner be discharged as a conscientious objector. His immediate commanding officer, an Army captain, disagreed, recommending disapproval of the application on the ground that the petitioner's beliefs were based on essentially political, sociological, or philosophical views, or on a merely personal moral code.
3
In November 1969, the Department of the Army denied the petitioner conscientious objector status, on the grounds that his professed beliefs had become fixed prior to entering the service and that his opposition to war was not truly based upon his religious beliefs. On November 24, 1969, the petitioner applied to the Army Board for Correction of Military Records (hereafter sometimes ABCMR) for administrative review of that determination.
4
Four days later the petitioner commenced the present habeas corpus proceeding in the United States District Court for the Northern District of California, claiming that the Army's denial of his conscientious objector application was without basis in fact. He sought discharge from the Army and requested a preliminary injunction to prevent his transfer out of the jurisdiction of the District Court and to prohibit further training preparatory to being transferred to Vietnam. The District Court declined at that time to consider the merits of the habeas corpus petition, but it retained jurisdiction pending a decision by the ABCMR, and in the meantime enjoined Army authorities from requiring the petitioner to participate in activity or training beyond his current noncombatant duties.
5
Shortly thereafter the petitioner received orders to report to Fort Lewis, Washington, for deployment to Vietnam, where he was to perform noncombatant duties similar to those that had been assigned to him in this country. He sought a stay of this redeployment order pending appeal of the denial of habeas corpus, but his application was denied by the Court of Appeals, on the condition that the Army would produce him if the appeal should result in his favor. A similar stay application was subsequently denied by Mr. Justice Douglas as Ninth Circuit Justice, Parisi v. Davidson, 396 U.S. 1233, 90 S.Ct. 497, 24 L.Ed.2d 482. The petitioner then reported to Fort Lewis. He refused, however, to obey a military order to board a plane for Vietnam. As a result, he was charged with violating Art. 90 of the Uniform Code of Military Justice, 10 U.S.C. § 890, and, on April 8, 1970, a court-martial convicted him of that military offense.1
6
While the court-martial charges were pending, the Army Board for Correction of Military Records notified the petitioner that it had rejected his application for relief from the Army's denial of his conscientious objector application. The District Court then ordered the Army to show cause why the pending writ of habeas corpus should not issue. On the Government's motion, the District Court, on March 31, 1970, entered an order deferring consideration of the habeas corpus petition until final determination of the criminal charge then pending in the military court system. The Court of Appeals for the Ninth Circuit affirmed this order, concluding that 'habeas proceedings were properly stayed pending the final conclusion of Parisi's military trial and his appeals therefrom,' 435 F.2d 299, 302. We granted certiorari, 402 U.S. 942, 91 S.Ct. 1619, 29 L.Ed.2d 110.
7
In affirming the stay of the petitioner's federal habeas corpus proceeding until completion of the military courts' action, the Court of Appeals relied on the related doctrines of exhaustion of alternative remedies and comity between the federal civilian courts and the military system of justice. We hold today that neither of these doctrines required a stay of the habeas corpus proceedings in this case.
8
With respect to available administrative remedies, there can be no doubt that the petitioner has fully met the demands of the doctrine of exhaustion—a doctrine that must be applied in each case with an 'understanding of its purposes and of the particular administrative scheme involved.' McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194. The basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence—to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies. Id., at 194—195, 89 S.Ct. 1657, 1662—1663, 23 L.Ed.2d 194; McGee v. United States, 402 U.S. 479, 485, 91 S.Ct. 1565, 1569, 29 L.Ed.2d 47; K. Davis, Administrative Law Treatise § 20.01 et seq. (Supp.1970).
9
In this case the petitioner fully complied with Army Regulation 635—20, which dictates the procedures to be followed by a serviceman seeking classification as a conscientious objector on the basis of beliefs that develop after induction.2 Moreover, following a rule of the Ninth Circuit then in effect,3 he went further and appealed to the Army Board for Correction of Military Records.4 The procedures and corrective opportunities of the military administrative apparatus had thus been wholly utilized at the time the District Court entered its order deferring consideration of the petitioner's habeas corpus application.
10
It is clear, therefore, that, if the court-martial charge had not intervened, the District Court would have been wrong in not proceeding to an expeditious consideration of the merits of the petitioner's claim. For the writ of habeas corpus has long been recognized as the appropriate remedy for servicemen who claim to be unlawfully retained in the armed forces. See, e.g., Eagles v. United States ex rel. Samuels, 329 U.S. 304, 312, 67 S.Ct. 313, 317, 91 L.Ed. 308; Oestereich v. Selective Service System Local Board, 393 U.S. 233, 235, 89 S.Ct. 414, 415, 21 L.Ed.2d 402; Schlanger v. Seamans, 401 U.S. 487, 489, 91 S.Ct. 995, 997, 28 L.Ed.2d 251. And, as stated at the outset, that writ is available to consider the plea of an in-service applicant for discharge as a conscientious objector who claims that exhaustion of military administrative procedures has led only to a factually baseless denial of his application. In re Kelly, 401 F.2d 211 (CA5); Hammond v. Lenfest, 398 F.2d 705 (CA2).5
11
But since a court-martial charge was pending against the petitioner when he sought habeas corpus in March 1970, the respondents submit that the Court of Appeals was correct in holding that the District Court must await the final outcome of those charges in the military judicial system before it may consider the merits of the petitioner's habeas corpus claim. Although this argument, too, is framed in terms of 'exhaustion,' it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems.6 Requiring the District Court to defer to the military courts in these circumstances serves the interests of comity, the respondents argue, by aiding the military judiciary in its task of maintaining order and discipline in the armed services and by eliminating 'needless friction' between the federal civilian and military judicial systems. The respondents note that the military constitutes a 'specialized community governed by a separate discipline from that of the civilian,' Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146, and that in recognition of the special nature of the military community, Congress has created an autonomous military judicial system, pursuant to Art. I, s 8, of the Constitution.7 They further point out that civilian courts, out of respect for the separation-of-powers doctrine and for the needs of the military, have rightly been reluctant to interfere with military judicial proceedings.8
12
But the issue in this case does not concern a federal district court's direct intervention in a case arising in the military court system. Cf. Gusik v. Schilder, supra; Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631. The petitioner's application for an administrative discharge—upon which the habeas corpus petition was based—antedated and was independent of the military criminal proceedings
13
The question here, therefore, is whether a federal court should postpone adjudication of an independent civil lawsuit clearly within its original jurisdiction. Under accepted principles of comity, the court should stay its hand only if the relief the petitioner seeks—discharge as a conscientious objector would also be available to him with reasonable promptness and certainty through the machinery of the military judicial system in its processing of the court-martial charge. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 229, 84 S.Ct. 1226, 1232, 12 L.Ed.2d 256; Davis v. Mann, 377 U.S. 678, 690—691, 84 S.Ct. 1441, 1447—1448, 12 L.Ed.2d 609; Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 716—717, 84 S.Ct. 1459, 1463—1464, 12 L.Ed.2d 632. For the reasons that follow, we are not persuaded that such relief would be even potentially available, much less that it would be either prompt or certain.
14
Courts-martial are not convened to review and rectify administrative denials of conscientious objector claims or to release conscientious objectors from military service. They are convened to adjudicate charges of criminal violations of military law. It is true that the Court of Military Appeals has held that a soldier charged in a court-martial with refusal to obey a lawful order may, in certain limited circumstances, defend upon the ground that the order was not lawful because he had wrongfully been denied an administrative discharge as a conscientious objector. United States v. Noyd, 18 U.S.C.M.A. 483, 40 C.M.R. 195.9 The scope of the Noyd doctrine is narrow, United States v. Wilson, 19 U.S.C.M.A. 100, 41 C.M.R. 100, and its present vitality not wholly clear, United States v. Stewart, 20 U.S.C.M.A. 272, 43 C.M.R. 112. A Noyd defense, therefore, would be available, even arguably, only in an extremely limited category of court-martial proceedings. But even though we proceed on the assumption that Noyd offered this petitioner a potential affirmative defense to the court-martial charge brought against him,10 the fact remains that the Noyd doctrine offers, at best, no more than a defense to a criminal charge. Like any other legal or factual defense, it would, if successfully asserted at trial or on appeal, entitle the defendant to only an acquittal11—not to the discharge from military service that he seeks in the habeas corpus proceeding.
15
The respondents acknowledge, as they must, the limited function of a Noyd defense in the trial and appeal of the court-martial proceeding itself. But they suggest that, if the military courts should eventually acquit the petitioner on the ground of his Noyd defense, then the petitioner may have 'an available remedy by way of habeas corpus in the Court of Military Appeals.'12 In support of this suggestion, the respondents point to the All Writs Act, 28 U.S.C. § 1651(a), and to cases in which the Court of Military Appeals has exercised power under that Act to order servicemen released from military imprisonment pending appeals of their court-martial convictions. See Noyd v. Bond, 395 U.S., at 695, 89 S.Ct., at 1883, 23 L.Ed.2d 631; Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399; United States v. Jennings, 19 U.S.C.M.A. 88, 41 C.M.R. 88; Johnson v. United States, 19 U.S.C.M.A. 407, 42 C.M.R. 9.
16
But the All Writs Act only empowers courts to 'issue all writs necessary or appropriate in aid of their respective jurisdictions . . .,' and the jurisdiction of the Court of Military Appeals is limited by the Uniform Code of Military Justice to considering appeals from court-martial convictions. 10 U.S.C. § 867; United States v. Snyder, 18 U.S.C.M.A. 480, 40 C.M.R. 192. That court has been given no 'jurisdiction' to consider a serviceman's claim for discharge from the military as a conscientious objector.
17
Whether this conceptual difficulty might somehow be surmounted is a question for the Court of Military Appeals itself ultimately to decide. See United States v. Bevilacqua, 18 U.S.C.M.A. 10, 12, 39 C.M.R. 10, 12. But the short answer to the respondents' suggestion in this case is the respondents' own concession that that court has, to date, never so much as intimated that it has power to issue a writ of habeas corpus granting separation from military service to a conscientious objector. We conclude here, therefore, as in Noyd v. Bond, supra, 395 U.S., at 698, n. 11, 89 S.Ct., at 1885, that the petitioner cannot 'properly be required to exhaust a remedy which may not exist.'13 Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the District Court with directions to give expeditious consideration to the merits of the petitioner's habeas corpus application.
18
In holding as we do today that the pendency of court-martial proceedings must not delay a federal district court's prompt determination of the conscientious objector claim of a serviceman who has exhausted all administrative remedies, we no more than recognize the historic respect in this Nation for valid conscientious objection to military service. See 50 U.S.C.App. § 456(j); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733.14 As the Defense Department itself has recognized, 'the Congress . . . has deemed it more essential to respect a man's religious beliefs than to force him to serve in the armed forces.' Department of Defense Directive No. 1300.6 (May 10, 1968).
19
But our decision today should not be understood as impinging upon the basic principles of comity that must prevail between civilian courts and the military judicial system. See, e.g., Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631; Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508; Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed.2d 146. Accordingly, a federal district court, even though upholding the merits of the conscientious objector claim of a serviceman against whom court-martial charges are pending, should give careful consideration to the appropriate demands of comity in effectuating its habeas corpus decree.15
20
The judgment is reversed.
21
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
22
Mr. Justice DOUGLAS, concurring in the result.
23
I agree with the Court's view that habeas corpus is an overriding remedy to test the jurisdiction of the military to try or to detain a person. The classic case is Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281, where habeas corpus was issued on behalf of a civilian tried and convicted in Indiana by a military tribunal. During the Civil War all civil courts in that State were open and federal authority had always been unopposed. While the President and the Congress had 'suspended' the writ, id., at 115, the suspension, said the Court, went no further than to relieve the military from producing in the habeas corpus court the person held or detained. 'The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it.' Id., at 126.
24
Mr. Chief Justice Taney in Ex parte Merryman, 17 F.Cas. p. 144 (No. 9,487) (CC Md. 1861), held that the President alone had no authority to suspend the writ, a position that Lincoln did not honor. To date, the question has never been resolved, and its decision is not relevant to the present case. I mention the matter because of the constitutional underpinning of the writ of habeas corpus. Article I of the Constitution, in describing the powers of the legislative branch, states in § 9 that: 'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.'
25
The Court has consistently reaffirmed the preferred place of the Great Writ in our constitutional system. Fay v. Noia, 372 U.S. 391, 400, 83 S.Ct. 822, 828, 9 L.Ed.2d 837; Smith v. Bennett, 365 U.S. 708, 713, 81 S.Ct. 895, 898, 6 L.Ed.2d 39.
26
Article III, § 1, gives Congress the power, to 'ordain and establish' inferior federal courts; and § 2 subjects the 'appellate Jurisdiction' of this Court to 'such Exceptions, and . . . such Regulations as the Congress shall make.' Once Congress withdrew from this Court its appellate jurisdiction in habeas corpus cases. See Ex parte McCardle, 6 Wall. 318, 18 L.Ed. 816; 7 Wall. 506, 19 L.Ed. 264. An Act of Congress passed by the very first Congress provided for the issuance of the writ. But as Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 95, 2 L.Ed. 554, 'for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.' It is also true that 'the meaning of the term habeas corpus' is ascertained by resort 'to the common law;' yet 'the power to award the writ by any of the courts of the United States, must be given by written law.' Id., at 93—94.
27
What courts may do is dependent on statutes,1 save as their jurisdiction is defined by the Constitution. What federal judges may do, however, is a distinct question. Authority to protect constitutional rights of individuals is inherent in the authority of a federal judge, conformably with Acts of Congress. The mandate in Art. I, § 9, that 'The Privilege of the Writ . . . of habeas corpus shall not be suspended' must mean that its issuance, in a proper case or controversy, is an implied power of any federal judge.
28
We have ruled that even without congressional statutes enforcing constitutional rights, the federal judges have authority to enforce the federal guarantee. Fay v. New York, 332 U.S. 261, 283—284, 285, 293, 67 S.Ct. 1613, 1625—1626, 1630, 91 L.Ed. 2043; Katzenbach v. Morgan, 384 U.S. 641, 647, 86 S.Ct. 1717, 1721, 16 L.Ed.2d 828. Those cases involved protests by individuals against state action. Certainly the military does not stand in a preferred position.
29
The matter is germane to the present problem. For here the military is charged with exceeding its proper bounds in seeking to punish a person for claiming his statutory and constitutional exemption from military service. The conflict between military prerogatives and civilian judicial authority is as apparent in this case as it was in Ex parte Milligan. A person who appropriately shows that he is exempt from military duty may not be punished for failure to submit. The question is not one of comity between military and civilian tribunals. One overriding function of habeas corpus is to enable the civilian authority to keep the military within bounds. The Court properly does just that in the opinion announced today.
30
While the Court of Military Appeals has the authority to issue the writ of habeas corpus, Noyd v. Bond, 395 U.S. 683, 695 n. 7, 89 S.Ct. 1876, 1883, 23 L.Ed.2d 631; Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399, we have never held that a challenge to the military's jurisdiction to try a person must first be sought there rather than in a federal district court.2 Of course, where comity prevails, as it does between state and federal courts, federal habeas corpus will be denied where state habeas corpus or a like remedy is available but has not been utilized. Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. A petitioner must, indeed, pursue his alleged state remedies until it is shown that they do not exist or have been futilely invoked.
31
The principle of comity was invoked by Congress when it wrote in 28 U.S.C. § 2254 that federal habeas corpus shall not be granted a person in state custody 'unless it appears that the applicant has exhausted the remedies available in the courts of the State.' That principle of comity is important in the operation of our federal system, for both the States and the Federal Government are administering programs relating to criminal justice.3 See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. But 'the principles of federalism which enlighten the law of federal habeas corpus for state prisoners are not relevant,' Noyd v. Bond, 395 U.S., at 694, 89 S.Ct., at 1883, to analogous questions involving military prisoners. Military proceedings are different. As we said in O'Callahan v Parker, 395 U.S. 258, 265, 89 S.Ct. 1683, 1686, 23 L.Ed.2d 291, 'A court-martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved.'
32
Comity is 'a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.' Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761. But the Pentagon is not yet sovereign. The military is simply another administrative agency, insofar as judicial review is concerned. Cf. Comment, 43 S.Cal.L.Rev. 356, 377—378. While we have stated in the past that special deference is due the military decisionmaking process, Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146, this is so neither because of 'comity,' nor the sanctity of the Executive Branch, but because of a concern for the effect of judicial intervention on morale and military discipline, and because of the civilian judiciary's general unfamiliarity with 'extremely technical provisions of the Uniform Code (of Military Justice) which have no analogs in civilian jurisprudence,' Noyd v. Bond, supra, 395 U.S., at 696, 89 S.Ct., at 1884.
33
The 'special expertise' argument is often employed by the defenders of the military court system. Thus, the argument was advanced—and rejected—that the civilian judges who were to staff the Court of Military Appeals could not do service, absent military experience, to the complicated, technical niceties of military law.4 See, e.g., 96 Cong.Rec. 1305—1306. But civilian courts must deal with equally arcane matters in such areas as patent, admiralty, tax, antitrust, and bankruptcy law, on a daily basis.
34
Our system of specialized military courts, though 'necessary to an effective national defense establishment,' O'Callahan v. Parker, 395 U.S., at 265, 89 S.Ct., at 1687, has roots in a system almost alien to the system of justice provided by the Bill of Rights, by Art. III, and by the special provision for habeas corpus contained in Art. I, § 9. Military law is primarily an instrument of discipline and a 'military trial is marked by the age-old manifest destiny of retributive justice.' Id., at 266, 89 S.Ct., at 1687.5 For the sake of discipline and orderliness a person in the military service must normally follow the military administrative procedure and exhaust its requirements. Gusick v. Schilder, supra. But once those administrative remedies are exhausted, he must then be permitted to resort to civilian courts6 to make sure that the military regime acts within the scope of statutes governing the problem and any constitutional requirements. To repeat, both statutes7 and the Constitution8 are implicated in the claims of conscientious objectors.
35
Petitioner claims to be a conscientious objector and therefore not subject to military orders. He was charged with refusing to obey a military order sending him to Vietnam and has been convicted of that offense. While the court-martial charges against him were pending, he exhausted all administrative remedies for relief from the Army's denial of his conscientious objector application. In theory he could pursue his remedies within the military system by appealing the conviction or seeking habeas corpus in the Court of Military Appeals. But he need go no further than to exhaust his administrative remedies for overruling the decision that he was not a conscientious objector. If there is a statutory or constitutional reason why he should not obey the order of the Army, that agency is overreaching when it punishes him for his refusal.
36
The Army has a separate discipline of its own and obviously it fills a special need. But matters of the mind and spirit, rooted in the First Amendment, are not in the keeping of the military. Civil liberty and the military regime have an 'antagonism' that is 'irreconcilable.' Ex parte Milligan, 4 Wall., at 124, 125. When the military steps over those bounds, it leaves the area of its expertise and forsakes its domain.9 The matter then becomes one for civilian courts to resolve, consistent with the statutes and with the Constitution.
1
At the time of oral argument of the present case, an appeal from this conviction was pending in a court of military review.
2
The right of a person in the armed forces to be classified as a conscientious objector after induction is bottomed on Department of Defense Directive No. 1300.6 (May 10, 1968), issued by the Secretary of Defense pursuant to his authority under 10 U.S.C. § 133. The purpose of the directive is to provide 'uniform procedures for the utilization of conscientious objectors in the Armed Forces and consideration of requests for discharge on the grounds of conscientious objection.' Army Regulation 635—20 was issued to effectuate the broader policies announced in DOD Directive No. 1300.6.
3
Under the rule of Craycroft v. Ferrall, 408 F.2d 587 (CA9 1969), the petitioner was required to appeal the Department of the Army's decision to the civilian Army Board for Correction of Military Records in order to exhaust military administrative remedies and have access to federal court. Current governmental policy rejects Craycroft. Compliance with Army Regulation 635—20, not perfection of an ABCMR appeal, marks the point when military administrative procedures have been exhausted. Department of Justice Memo. No. 652 (Oct. 23, 1969). In Craycroft v. Ferrall, 397 U.S. 335, 90 S.Ct. 1152, 25 L.Ed.2d 351, this Court vacated the judgment of the Ninth Circuit that the petitioner there had to appeal to the Board for the Correction of Naval Records before proceeding in federal court. But our decision was announced on March 30, 1970, more than four months after the present petitioner had appealed to the ABCMR.
4
In 1946, Congress enacted legislation empowering the service secretaries, acting through boards of civilian officers of their respective departments, to alter military records when necessary to prevent injustice. Legislative Reorganization Act of 1946, § 207, 60 Stat. 837, as amended by 70A Stat. 116, 10 U.S.C. § 1552 (1952
ed., Supp. IV). Pursuant to this legislation, each service established a board for the correction of military records whose function is, on application by a serviceman, to review the military record and intervene where necessary to correct error or remove injustice. 10 U.S.C. § 1552(a).
5
The Department of Justice, in consultation with the Department of Defense, has accepted the holdings of the Kelly and Hammond cases. Department of Justice Memo. No. 652 (Oct. 23, 1969). See United States ex rel. Brooks v. Clifford, 409 F.2d 700, 701 (CA4). Compare Noyd v. McNamara, 378 F.2d 538 (CA10), with Polsky v. Wetherill, 403 U.S. 916, 91 S.Ct. 2232, 29 L.Ed.2d 693, vacating judgment in 438 F.2d 132 (CA10).
6
The respondents do not contend that the military courts have a special competence in determining if a conscientious objector application has been denied without basis in fact. As they acknowledge in their brief:
'Plainly, judicial review of the factual basis for the Army's denial of petitioner's conscientious objector claim does not require an interpretation of 'extremely technical provisions of the Uniform Code (of Military Justice) which have no analogs in civilian jurisprudence," quoting Noyd v. Bond, 395 U.S. 683, 696, 89 S.Ct. 1876, 23 L.Ed.2d 631.
Thus, it is not contended that exhaustion of military court remedies—like exhaustion of military administrative remedies—is required by the principles announced in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194, and McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47.
The concept of 'exhaustion' in the context of the demands of comity between different judicial systems is closely analogous to the doctrine of abstention. For a discussion of the exhaustion and abstention doctrines in the federal-state context, see generally C. Wright, Handbook of the Law of Federal Courts 186—188, 196—208 (2d ed. 1970).
7
Barker Military Law—A Separate System of Jurisprudence, 36 U.Cin.L.Rev. 223 (1967); Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181 (1962). Military courts are legislative courts; their jurisdiction is independent of Art. III judicial power. Following World War II, Congress, in an attempt to reform and modernize the system of military law, created the Uniform Code of Military Justice, Act of May 5, 1950, c. 169, 64 Stat. 107. In 1968, the Code was amended by the Military Justice Act, 10 U.S.C. § 819, to improve court-martial and review procedures.
8
See Hammond v. Lenfest, 398 F.2d 705, 710 (CA2 1968):
'Judicial hesitancy when faced with matters touching on military affairs is hardly surprising in view of the doctrine of separation of powers and the responsibility for national defense which the Constitution . . . places upon the Congress and the President. Moreover, the ever-present and urgent need for discipline in the armed services would alone explain the relative freedom of the military from judicial supervision.'
9
Army Regulation 635—20 provides that 'individuals who have submitted formal applications (for conscientious objector status) . . . will be retained in their units and assigned duties providing the minimum practicable conflict with their asserted beliefs pending a final decision on their applications.'
Noyd involved an Air Force officer who, after being denied conscientious objector status, refusal to obey an order to instruct student pilots to fly a fighter plane used in Vietnam. Noyd's commanding officer had refrained from ordering the accused to give such instruction until the application had been processed and denied. As the Court of Military Appeals said:
'The validity of the order (to instruct students), therefore, depended upon the validity of the Secretary's decision (rejecting the conscientious objector application) . . . If the Secretary's decision was illegal, the order it generated was also illegal.' United States v. Noyd, 18 U.S.C.M.A. 483, 492, 40 C.M.R. 195, 204.
10
The petitioner did, in fact, interpose a Noyd defense at his court-martial trial, and it was rejected upon the military judge's finding that 'the ruling of the Secretary of the Army was not arbitrary, capricious, unreasonable, or an abusive (sic) discretion.'
11
We have been referred to no reported military court decision (including Noyd itself) that has yet acquitted a defendant upon the basis of a Noyd defense.
12
If the military courts should ultimately acquit the petitioner on grounds other than wrongful denial of his conscientious objector application, the respondents acknowledge that he could not seek habeas corpus in the military judicial system. In this event, therefore, the petitioner could clearly not obtain the relief that he seeks in the military court system.
13
This result is not inconsistent with the need to maintain order and discipline in the military and to avoid needless friction between the federal civilian and military judicial systems. If the Noyd defense is available and if the order that the petitioner disobeyed was unlawful, if his conscientious objector claim is valid, then allowing him to proceed in federal district court as soon as military
administrative remedies have been exhausted does not affect military discipline. For if the conscientious objector claim is valid, the Army can have no interest in punishing him for disobedience of an unlawful order. If the conscientious objector claim is invalid, then the Army can, of course, prosecute the petitioner for his alleged disobedience of a lawful order.
Correlatively, if the charges in military court would be unaffected by the validity of the conscientious objector claim, both the petitioner's habeas corpus action and the criminal trial in military court could proceed concurrently. See n. 15, infra. Needless to say, the question whether wrongful denial of conscientious objector status may be raised as a defense against various types of military charges must remain with the military courts, as they exercise their special function of administering military law.
14
See generally Report of the National Advisory Commission on Selective Service, In Pursuit of Equity: Who Serves When Not All Serve? 48—51 (1967); Selective Service System Monograph No. 11, Conscientious Objection (1950); Russell, Development of Conscientious Objector Recognition in the United States, 20 Geo.Wash.L.Rev. 409 (1952); Comment, God, the Army, and Judicial Review: The In-Service Conscientious Objector, 56 Calif.L.Rev. 379 (1968).
15
In the present case the respondents acknowledge that if the administrative denial of the petitioner's conscientious objector claim had no basis in fact, then the court-martial charge against him is invalid. It follows that, if he should prevail in the habeas corpus proceeding, he is entitled to his immediate release from the military. At the other end of the spectrum is the hypothetical case of a court-martial charge that has no real connection with the conscientious objector claim—e.g., a charge of stealing a fellow soldier's watch. In such a case, a district court, even though upholding the serviceman's conscientious objector claim, might condition its order of discharge upon the completion of the court-martial proceedings and service of any lawful sentence imposed.
1
It has been assumed that this Court has no jurisdiction to issue an original writ of habeas corpus except when issuance of the writ has been first denied by a lower court. R. Stern & E. Gressman, Supreme Court Practice 419—420 (4th ed. 1969). But the Court has not settled the question. See Hirota v. MacArthur, 335 U.S. 876, 69 S.Ct. 157, 93 L.Ed. 418; 338 U.S. 197, 69 S.Ct. 197, 93 L.Ed. 1902.
Some members of the Court have felt that, absent statutory authorization, the Court may not even transfer a petition for an original writ of habeas corpus to a lower court. But that view has not prevailed. See Chaapel v. Cochran, 369 U.S. 869, 82 S.Ct. 1143, 8 L.Ed.2d 284.
2
See Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917. This case involved a Selective Service registrant whose conscientious objector claim was rejected by the service. Billings subsequently reported as ordered for induction, but refused to take the required oath. The oath was then read to him, and he was told that his refusal to take it made no difference; he was 'in the army now.' Id., at 545, 64 S.Ct., at 740. When Billings refused an order to submit to fingerprinting, military charges were brought against him.
While the charges were pending, Billings sought federal habeas corpus relief, challenging the military's jurisdiction to try him, on the theory that he had not been lawfully inducted. The District Court discharged the writ, and the Court of Appeals affirmed, but this Court held that Billings' induction had indeed violated existing statutory law, and ordered that the writ issue. Implicit in this holding is an affirmation of the proposition that exhaustion of military remedies, including pending court-martial, is not required of one challenging the military's jurisdiction to try him in the first instance.
While Billings was decided before the enactment of the Uniform Code of Military Justice, cases decided under the Code have reached similar results. See, e.g., McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148; Toth v. United States ex rel. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8.
Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631, is not to the contrary. There, the Court was faced with a serviceman who had refused to obey an order
because of his asserted conscientious scruples against the war in Vietnam. His court-martial conviction was pending in the Court of Military Appeals. The issue decided against him on his federal habeas application, however, was not the jurisdiction of the military to try him in the first instance, but merely his entitlement to bail pending disposition of his military appeals. The Court held that his bail motion should first be presented to the Court of Military Appeals; but we were explicit in distinguishing Guagliardo, Covert, and Toth:
'The cited cases held that the Constitution barred the assertion of court-martial jurisdiction over various classes of civilians connected with the military, and it is true that this Court there vindicated complainants' claims without requiring exhaustion of military remedies. We did so, however, because we did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented. Moreover, it appeared especially unfair to require exhaustion of military remedies when the complainants raised substantial arguments denying the right of the military to try them at all. Neither of these factors is present in the case before us.' 395 U.S., at 696 n. 8, 89 S.Ct., at 1884.
Thus, Noyd supports the proposition that 'exhaustion is not required when a prisoner challenges the personal jurisdiction of the military.' Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1233 n. 169. And Parisi's challenge is precisely of that nature.
3
As Irving Brant says in the Bill of Rights 483 (1965), 'the essential differences between state and federal criminal law, though immense in subject matter, have little bearing on 'fundamental fairness' or 'basic liberties.' These are involved when overlapping jurisdictions produce double jeopardy, but the fundamentals of fairness are not different in state and federal courts.'
4
Many of today's critics of the Court of Military Appeals feel that an insensitivity to military needs is the least of the court's problems. Recent attacks have rested on the premise that, in fact, the court has become too closely identified with the viewpoint of the military establishment it is supposed to oversee. See, e.g., R. Sherrill, Military Justice Is to Justice as Military Music Is to Music 214—215 (1970). Critics must concede, however, that the court has at least been partially successful in infusing civilian notions of due process into the military justice system. See, e.g., E. Sherman, Justice in the Military, in Conscience and Command 21, 28 (J. Finn ed. 1971). Thus, the court has extended to servicemen the right to a speedy trial, United States v. Schalck, 14 U.S.C.M.A. 371, 34 C.M.R. 151; the right to confront witnesses, United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244; the right to protection against unreasonable searches and seizures, United States v. Vierra, 14 U.S.C.M.A. 48, 33 C.M.R. 260; the privilege against self-incrimination, United States v. Kemp, 13 U.S.C.M.A. 89, 32 C.M.R. 89; the right to a public trial, United States v. Brown, 7 U.S.C.M.A. 251, 22 C.M.R. 41; the right to compulsory service of process, United States v. Sweeney, 14 U.S.C.M.A. 599, 34 C.M.R. 379; and the right to Miranda-type warnings, United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249.
Despite these advances, however, the military justice system's disregard of the constitutional rights of servicemen is pervasive. See Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional rights of the Senate Committee on the Judiciary, pursuant to S.Res. No. 260, 87th Cong., 2d Sess.; Joint Hearings on S. 745 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Armed Services Committee, 89th Cong., 2d Sess., pts. 1 and 2. See also Summary-Report of Hearings on Constitutional Rights of Military Personnel, by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S.Res. No. 58, 88th Cong., 1st Sess. (Comm.Print 1963).
5
At the hearings on the proposed Uniform Code of Military Justice, one witness analogized the military court-martial panel to a jury appointed by the sheriff's office. Hearings on the Uniform Code of Military Justice before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., 630 (1949). Rep. Sutton of Tennessee, himself a much-decorated veteran, summarized his views on the state of military justice during World War II by his statement, during the floor debates on the proposed Code, that '(h)ad they used the Pentagon Building for what it was designed, a veteran's hospital, America would have been lots better off today.' 95 Cong.Rec. 5727.
6
The Federal Rules of Civil Procedure govern habeas corpus (Rule 81(a)(2)), that remedy being civil in nature; and those Rules are comprehensive, including depositions and discovery. Rules 26—37.
The Rules of Practice and Procedure of the Court of Military Appeals (see the Rules ff. 10 U.S.C.A. § 867, Supp.1972) contain no provisions respecting habeas corpus.
While collateral remedies have been recognized by the Court of Military Appeals since 1966, United States v. Frischholz, 16 U.S.C.M.A. 150, 36 C.M.R. 306, and the express power to grant habeas
corpus relief was asserted in 1967, Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399, the military prisoner is at a substantial disadvantage compared to his civilian counterpart. See Uniform Code of Military Justice, Arts. 32, 36, 46, and 49, 10 U.S.C. §§ 832, 836, 846, and 849. See Melnick, The Defendant's Right to Obtain Evidence: An Examination of the Military Viewpoint, 29 Mil.L.Rev. 1 (1965). See generally M. Comisky & L. Apothaker, Criminal Procedure in the United States District and Military Courts (1963). And see Manual for Courts-Martial, 30f, 34, 115, 117, and 145a (1968).
7
50 U.S.C. App. § 456(j). See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733.
8
See Gillette v. United States, 401 U.S. 437, 463, 91 S.Ct. 828, 843, 28 L.Ed.2d 168 (Douglas, J., dissenting).
9
Another factor militating against the Court's reliance on 'comity' in analyzing the insulation of the military justice system from civilian review is the enormous power of the military in modern American life.
'From an initial authorized strength of well under one thousand, our army alone has grown into a behemoth numbering well over a million men even in time of nominal peace. No longer does the military lie dormant and unnoticed for years on end, coming to the attention of the typical citizen only in time of war. Today every male resident is a potential soldier, sailor, or airman; and it has been estimated that even in time of peace such service occupies at least four percent of the adult life of the average American reaching draft age. As Mr. Chief Justice Warren recently observed: "When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts almost inevitably is drawn into question.' (Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 188.)'
Comment, God, the Army, and Judicial Review: The In-Service Conscientious Objector, 56 Calif.L.Rev. 379, 446—447.
| 23
|
405 U.S. 15
92 S.Ct. 804
31 L.Ed.2d 1
Richard L. ROUDEBUSH, Appellant,v.R. Vance HARTKE et al. Theodore L. SENDAK, Attorney General of Indiana, Apellant, v. R. Vance HARTKE et al.
Nos. 70—66, 70—67.
Argued Dec. 13, 1971.
Decided Feb. 23, 1972.
Syllabus
Incumbent Senator Hartke was certified by the Indiana Secretary of State to the Governor as the winner of the close 1970 Indiana senatorial election. Candidate Roudebush filed a timely recount petition in state court. The state court denied Hartke's motion to dismiss on the grounds of conflict with the Indiana and Federal Constitutions, and granted the petition for a recount. Hartke sought an injunction against the recount in United States District Court, invoking jurisdiction under 28 U.S.C. § 1343(3) and claiming that the recount was barred by Art. I, § 5, of the Federal Constitution, delegating to the Senate the power to judge the elections, returns, and qualifications of its members. The three-judge District Court issued the requested injunction. After appeals were filed here, the Senate seated Hartke 'without prejudice to the outcome of an appeal pending in the Supreme Court . . . and without prejudice to the outcome of any recount that the Supreme Court might order.' Hartke then moved to dismiss the appeals as moot. Held:
1. The issue here, whether a recount is a valid exercise of the State's power to prescribe the times, places, and manner of holding elections, pursuant to Art. I, § 4, of the Constitution, or is a forbidden infringement on the Senate's power under Art. I, § 5, is not moot, as the Senate has postponed making a final determination of who is entitled to the office of Senator pending the outcome of this action. Pp. 18—19.
2. The District Court was not barred from issuing an injunction by 28 U.S.C. § 2283, which generally prohibits a federal court from enjoining state court proceedings. Pp. 20—23.
(a) That section does not restrict a federal court from enjoining a state court acting in a nonjudicial capacity. P. 21.
(b) The state court's recount functions are nonjudicial, as they consist merely of determining that the recount petition is correct as to form and appointing recount commissioners. Pp. 21 22.
(c) The complaint did not seek to enjoin the action of the state court but rather to enjoin the recount commission from proceeding after the court had appointed members of the commission. P. 22.
3. Article I, § 5, does not prohibit a recount of the ballots by Indiana, as the recount will not prevent an independent Senate evaluation of the election any more than the original count did, and it would be mere speculation to assume that Indiana's procedure would impair the Senate's ability to make an independent final judgment. Pp. 23—26.
321 F.Supp. 1370, reversed.
Donald A. Schabel, Indianapolis, Ind., for appellant Richard L. Roudebush.
Richard C. Johnson, Indianapolis, Inc., for appellant Theodore L. Sendak.
John J. Dillon, Indianapolis, Inc., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
The 1970 election for the office of United States Senator was the closest in Indiana history. The incumbent, Senator R. Vance Hartke (Hartke), was declared the winner by a plurality of 4,383 votes—a margin of approximately one vote per state precinct. On November 16, 1970, 13 days after the election, the Indiana Secretary of State certified to the Governor that Hartke had been re-elected. On the following day, candidate Richard L. Roudebush (Roudebush) filed in the Superior Court of Marion County a timely petition for a recount.1 Hartke moved in that court to dismiss the petition, arguing that the state recount procedure conflicted with the Indiana and Federal Constitutions. On December 1, the state court denied the motion to dismiss and granted the petition for a recount. It appointed a three-man recount commission and directed it to begin its task on December 8.
2
Hartke then filed a complaint in the United States District Court for the Southern District of Indiana asking for an injunction against the recount. He invoked federal jurisdiction under 28 U.S.C. § 1343(3)2 and claimed that the recount was prohibited by Art. I, § 5, of the Constitution of the United States, which delegates to the Senate the power to judge the elections, returns, and qualifications of its members.3 A single district judge issued an order temporarily restraining the recount pending decision by a three-judge district court. The Attorney General of Indiana then moved successfully to intervene as a defendant, and a three-judge court was convened pursuant to 28 U.S.C. § 2284. After taking testimony and hearing argument, the court ruled in Hartke's favor and issued an interlocutory injunction, 321 F.Supp. 1370, one judge dissenting. Roudebush and the Attorney General both brought direct appeals to this Court.4
3
On January 21, 1971, shortly after the jurisdictional statements were filed, the Senate administered the oath of office to Hartke, who had been issued a certificate of election by the Governor Hartke was seated, however, 'without prejudice to the outcome of an appeal pending in the Supreme Court of the United States, and without prejudice to the outcome of any recount that the Supreme Court might order . . ..'5 Following the Senate's decision to seat him, Hartke moved to dismiss the appeals as moot. We consolidated both appeals and postponed further consideration of questions of jurisdiction to the hearing of the cause on the merits. 401 U.S. 972, 91 S.Ct. 1201, 28 L.Ed.2d 321.
4
* We consider first the claim that these appeals are moot. This claim is based upon the proposition, as stated in the appellee Hartke's brief, that the 'basic issue' before the Court is 'whether appellee Hartke or appellant Roudebush is entitled to the office of United States Senator from Indiana.' Since the Senate has now seated Hartke, and since this Court is without power to alter the Senate's judgment,6 it follows, the argument goes, that the case is moot.
5
The difficulty with this argument is that it is based on an erroneous statement of the 'basic issue.' Which candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question—a question that would not have been the business of this Court even before the Senate acted.7 The actual question before us, however, is a different one. It is whether an Indiana recount of the votes in the 1970 election is a valid exercise of the State's power, under Art. I, § 4, to prescribe the times, places, and manner of holding elections,8 or is a forbidden infringement upon the Senate's power under Art. I, § 5.
6
That question is not moot, because the Senate has postponed making a final determination of who is entitled to the office of Senator, pending the outcome of this lawsuit. Once this case is resolved and the Senate is assured that it has received the final Indiana tally, the Senate will be free to make an unconditional and final judgment under Art. I, § 5. Until that judgment is made, this controversy remains alive, and we are obliged to consider it.9
II
7
It is the position of the appellants that, quite apart from the merits of the controversy, the three-judge District Court was barred from issuing an injunction by reason of 28 U.S.C. § 2283, which prohibits a federal court from enjoining state court proceedings except in a few specific instances.10 This argument has weight, of course, only if the Indiana statutory recount procedure is a 'proceeding in a State court' within the meaning of § 2283. This Court has said of a predecessor to § 2283,11 'The provision expresses on its face the duty of 'hands off' by the federal courts in the use of the injunction to stay litigation in a state court.'12 More recently, we characterized the statute as designed to assure 'the maintenance of state judicial systems for the decision of legal controversives.'13
8
We have in the past recognized that not every state court function involves 'litigation' or 'legal controversies.' In the case of Prentis v. Atlantic Coast Line R. Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150, the Court reviewed a federal injunction preventing a state commission from fixing passenger rail rates. The Court assumed that the commission had the powers of a state court and that the predecessor of § 2283 governed any attempt by a federal court to enjoin the exercise of the commission's judicial powers. Nevertheless, the Court concluded that rate-making could be enjoined because it was legislative in nature. Hence, the Court held that § 2283 does not restrict a federal court from enjoining a state court when it is involved in a nonjudicial function.
9
To determine whether an Indiana court engages in a judicial function in connection with an election recount, we turn to the law of that State.14 In Indiana every candidate has a right to a recount and can obtain one by merely filing a timely petition in the circuit or superior court of the appropriate county. If the petition is correct as to form, the state court 'shall . . . grant such petition . . . and order the recount . . .' When it grants a petition, the court is required to appoint three commissioners to carry out the recount. Once these appointments are made, the Indiana court has no other responsibilities or powers.15
10
The exercise of these limited responsibilities does not constitute a court proceeding under § 2283 within the test of Prentis: 'A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end.' 211 U.S., at 226, 29 S.Ct., at 69. The state courts' duties in connection with a recount may be characterized as ministerial, or perhaps administrative, but they clearly do not fall within this definition of a 'judicial inquiry.' The process of determining that the recount petition is correct as to form—that it contains the proper information, such as the names and addresses of all candidates, and is timely filed—is clearly not a judicial proceeding. Nonjudicial functionaries continually make similar determinations in the processing of all kinds of applications.16
11
And finally, Hartke's complaint in this cause did not ask the three-judge federal court to restrain the action of the Indiana court as such. It did not seek to enjoin the state court from ruling on the formal correctness of the petition; it did not even seek to enjoin the state court's appointive function. It sought, rather, to enjoin the recount commission from proceeding after the court had appointed the members of the commission.17
12
We conclude that the three-judge District Court was not prohibited by § 2283 from issuing and had power under 28 U.S.C. § 2281 to issue, an injunction in this cause.
III
13
We turn, therefore, to the merits of the District Court's decision. The Indiana Election Code calls for the vote to be initially counted, in each precinct, by an election board. After recording the voting machine totals, the board seals the machines. Paper ballots, including absentee ballots, are then counted and tallied. Counted ballots are placed in a bag and sealed. Ballots that bear distinguishing marks or are mutilated or do not clearly reveal the voter's choice are not counted. These rejected ballots are sealed in a separate bag. Both bags are preserved for six months and may not be opened except in the case of a recount.18
14
If a recount is conducted in any county, the voting machine tallies are checked and the sealed bags containing the paper ballots are opened. The recount commission may make new and independent determinations as to which ballots shall be counted. In other words, it may reject ballots initially counted and count ballots initially rejected. Disputes within the commission are settled by a majority vote. When the commission finishes its task it seals the ballots it counted in one bag, and the ballots it rejected in another. Once the recount is completed, all previous returns are superseded.19
15
The District Court held these procedures to be contrary to the Constitution in two ways. First, the court found that in making judgments as to which ballots to count, the recount commission would be judging the qualifications of a member of the Senate. In held this would be a usurpation of a power that only the Senate could exercise. Second, it found that the Indiana ballots and other election paraphernalia would be essential evidence that the Senate might need to consider in judging Hartke's qualifications. The court feared that the recount might endanger the integrity of those materials and increase the hazard of their accidental destruction. Thus, the court held that, even if the commission would not be usurping the Senate's exclusive power, it would be hindering the Senate's exercise of that power.
16
We cannot agree with the District Court on either ground.20 Unless Congress acts, Art. I, § 4, empowers the States to regulate the conduct of senatorial elections.21 This Court has recognized the bredth of those powers: 'It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.' Smiley v. Holm, 285 U.S. 355, 366, 52 S.Ct. 397, 399, 76 L.Ed. 795.
17
Indiana has found, along with many other States, that one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount. Despite the fact that a certificate of election may be issued to the leading candidate within 30 days after the election, the results are not final if a candidate's option to compel a recount is exercised.22 A recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by Art. I, § 4.
18
It is true that a State's verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate's power to judge elections and returns. But a recount can be said to 'usurp' the Senate's function only if it frustrates the Senate's ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count,23 and, if it chooses, to conduct its own recount.24
19
It would be no more than speculation to assume that the Indiana recount procedure would impair such an independent evaluation by the Senate. The District Court's holding was based on a finding that a recount would increase the probability of election fraud and accidental destruction of ballots. But there is no reason to suppose that a court-appointed recount commission would be less honest or conscientious in the performance of its duties than the precinct election boards that initially counted the ballots.
20
For the reasons expressed, we conclude that Art. I, § 5, of the Constitution, does not prohibit Indiana from conducting a recount of the 1970 election ballots for United States Senator. Accordingly, the judgment of the District Court is reversed.
21
It is so ordered.
22
Judgment reversed.
23
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of these cases.
24
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting in part.
25
While I agree with the Court that the cases are not moot and that the three-judge court was not barred by 28 U.S.C. § 2283 from issuing an injunction, I disagree on the merits.
26
By virtue of Art. I, § 5, Senate custom, and this Court's prior holdings, the Senate has exclusive authority to settle a recount contest once the contestee has been certified and seated, albeit conditionally.
27
Article I, § 5, provides: 'Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.' To implement this authority, the Senate has established a custom of resolving disagreements over which of two or more candidates in a senatorial race attracted more ballots. The apparent loser may initiate the process by filing with the Senate a petition stating (a) what voting irregularities he suspects, and (b) how many votes were affected. Upon receipt of such a petition, a special committee may be authorized to investigate the charges alleged. If the allegations are not frivolous and would be sufficient, if true, to alter the apparent outcome of the election, actual ballots may be and have been subpoenaed to Washington for recounting by the committee. Also, witnesses may be required to testify. The committee performs the function of deciding both the factual issues and what allegations would be sufficient to warrant favorable action on a petition.
28
Thus, in the Iowa senatorial campaign of 1924, Smith Brookhart was the apparent winner over Daniel Steck, who filed with the Senate the complaint that illegal votes had been cast for his opponent. The petition was referred to the Subcommittee on Privileges and Elections which was authorized to make a full investigation. It heard testimony and recounted the ballots in Washington. The committee and eventually the Senate agreed that, contrary to earlier assumptions, Steck had won. Accordingly, Brookhart was replaced by Steck as a Senator from Iowa. See Steck v. Brookhart, Senate Election, Expulsion and Censure Cases from 1789 to 1960, S.Doc. No. 71, 87th Cong., 2d Sess., 116—117 (1962). See also Hurley v. Chavez, id., at 151 (upon recounting, the subcommittee and the Senate found that neither candidate had won and the seat was declared vacant); Sweeney v. Kilgore, id., at 145 (adjustments for fraudulent campaign tactics were insufficient to reverse official outcome); O'Conor v. Markey, id., at 144 (recount of all votes cast in 1946 Maryland race revealed too few mistakes to cause reversal in outcome); Willis v. Van Nuys, id., at 138—139 (petition rejected as insufficient grounds for recount); Bursum v. Bratton, id., at 114 (recount will not be conducted absent a showing of grounds to doubt the accuracy of official count).
The Senate's procedure is flexible:
29
'The Senate has never perfected specific rules for challenging the right of a claimant to serve, inasmuch as each case presents different facts. The practice has been to consider and act upon each case on its own merits, although some general principles have been evolved from the precedents established.
30
'This practice of viewing each case affecting claims to membership on its affecting claims to membership on its individual merits has resulted in a variety of means by which the cases are originated. The Senator-elect to a seat in the Senate generally appears with his credentials. On some occasions, when these credentials are presented, some Senators will submit a motion that the credentials be referred to the Committee on Rules and Administration, and that, pending report, he be denied the privilege of taking the oath of office. Upon adoption of such a motion, the Senator-elect steps aside and the Senate seat is vacant for the time being. Any question or motion arising or made upon the presentation of such credentials is privileged and would be governed by a majority vote.
31
'On other occasions, the Senatorelect is permitted to take the oath of office, and this is now regarded and followed as the proper procedure, but thereafter inquiry as to his election is undertaken by the Senate. Resolutions calling for such investigations may be offered by any Senator. In an instance where a newspaper charged a Senator had obtained his office by illegal means, the Senator himself offered a resolution calling for an investigation of the charges.
32
'The usual origin of such cases, however, is by petition. The contestant may file such a petition, protesting the seating of the contestee, and asserting his own right to the seat in question. It is not required to be filed prior to the swearing-in of the contestee, and no rights are lost if filed afterwards. In some cases, petitions have been signed and filed by others than the contestant, simply protesting against the seating of the contestee, without asserting any claim in behalf of the defeated candidate. Any number of citizens may submit such a petition; and it might make charges of illegal practices in the election, or of the improper use of money, or even of the unfitness of the claimant to serve in the United States Senate.
33
'A petition of contest is addressed to the U.S. Senate, and may be laid before the Senate by the presiding officer or formally presented by some Senator. There is no prescribed form for such a petition. It is somewhat analogous to a complaint filed in a lawsuit. It customarily sets forth the grounds or charges upon which the contest is based, and in support of which proof is expected to be adduced. The petition is usually referred to the Committee on Rules and Administration, which has jurisdiction over '. . . matters relating to the election of the President, Vice President, or Members of Congress; corrupt practices; contested elections; credentials and qualifications; (and) Federal elections generally . . ..' 'The Legislative Reorganization Act of 1946 empowers each standing committee of the Senate including any subcommittee of any such committee, to hold such hearings, to sit and act at such times and places during the sessions, recesses, and adjourned periods of the Senate, to require by subpena or otherwise the attendance of such witnesses and the production of such correspondence, books, papers, and documents, to take such testimony and to make such expenditures (not in excess of $10,000 for each committee during any Congress) as it deems advisable. Each such committee may make investigations into any matter within its jurisdiction and may report such hearings as may be had by it.' S.Doc.No. 71, 87th Cong., 2d Sess., vii—viii (1962).
34
The parties before the Court are apparently in agreement that, as is true of several other arenas of public decision-making, there has been a 'textually demonstrable constitutional commitment' (Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663; Powell v. McCormack, 395 U.S. 486, 518—549, 89 S.Ct. 1944, 1962—1978, 23 L.Ed.2d 491) to the Senate of the decision whether Hartke or Roudebush received more lawful votes. Our case law agrees. Both Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867, and Reed v. County Comm'rs, 277 U.S. 376, 48 S.Ct. 531, 72 L.Ed. 924, were generated during the disputed 1926 senatorial election in Pennsylvania in which William Vare appeared to have defeated William Wilson. In 1926 a Senate committee was authorized to inquire into the means used to influence the nomination of candidates in that election. The committee asked some local county commissioners to produce certain ballots but were refused, whereupon members of the committee sought a federal court order compelling the ballots' production. On appeal, this Court held that because the Senate had been fully competent to use its own subpoena power to secure the ballots, the District Court had lacked jurisdiction to act only at the behest of the committee. In the course of discussing the committee's scope of authority the Court said:
35
'The resolutions are to be construed having regard to the power possessed and customarily exerted by the Senate. It is the judge of the elections, returns, and qualifications of its members. Article I, § 5. It is fully empowered, and may determine such matters without the aid of the House of Representatives or the executive or judicial department. That power carries with it authority to take such steps as may be appropriate and necessary to secure information upon which to decide concerning elections.' 277 U.S., at 388, 48 S.Ct., at 532.
36
In Barry v. United States ex rel. Cunningham, supra, the Court upheld the Senate's power under Art. I, § 5, to call witnesses before it in order to determine the factual history of the same controverted 1926 election involved in Reed. In answer to the argument that Vare had not been a member of the Senate inasmuch as he was unseated (and therefore the witness was relieved of the duty to answer inquiries) the Court held:
37
'It is enough to say . . . that upon the face of the returns (Vare) had been elected, and had received a certificate from the Governor of the state to that effect. Upon these returns and with this certificate, he presented himself to the Senate, claiming all the rights of membership. Thereby, the jurisdiction of the Senate to determine the rightfulness of the claim was invoked and its power to adjudicate such right immediately attached by virtue of section 5 of article 1 of the Constitution.' Barry v. United States ex rel. Cunningham, supra, 279 U.S., at 614, 49 S.Ct., at 455.
38
And Cunningham holds that, 'The Senate, having sole authority under the Constitution to judge of the elections, returns and qualifications of its members, may exercise in its own right the incidental power of compelling the attendance of witnesses without the aid of a statute.' Id., at 619, 49 S.Ct., at 457 (emphasis added). Judicial interference with this 'indubitable power' was said to be possible only upon a clear showing of 'such arbitrary and improvident use of the power as will constitute a denial of due process of law.' Id., at 620, 49 S.Ct., at 457.
39
Once certification by the Governor has been presented to the Senate, a State may not by conducting a recount alter the outcome of the election—a principle that has been widely recognized by state courts. See Laxalt v. Cannon, 80 Nev. 588, 397 P.2d 466, and cases cited therein.
40
Thus, although the Houses of Congress may not engraft qualifications for membership beyond those already contained in Art. I, Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491, where all that is at stake is a determination of which candidates attracted the greater number of lawful ballots, each has supreme authority to resolve such controversies.1
41
Although all agree that in the end the Senate will be the final judge of this seating contest, the nub of the instant case comes down to opposing positions on how important it may be to preserve for the Senate the opportunity to ground its choice in unimpeachable evidence. It is with regard to this phase of the cases that I disagree with the majority.
42
The Senate may conclude that only a recomputation supervised by it under laboratory conditions could serve as an acceptable guide for decision. Such a recomputation, however, will not be possible once local investigators have exposed these presently sealed ballots to human judgment.
43
Obviously, state officials might desire to preview these presently sealed ballots in order to influence the Senate's deliberations.
44
Charges or suspicions of inadvertent or intentional alteration, however baseless, will infect the case. No longer will the constitutionally designated tribunal be able to bottom its result on unassailed evidence. Since even a slight adjustment in the tally could dramatically reverse the outcome, the federal interest in preserving the integrity of the evidence is manifest.
45
What the Senate should do in the merits is not a justiciable controversy. The role of the courts is to protect the Senate's exclusive jurisdiction over the subject matter, as did this Court in Barry v. United States ex rel. Cunningham, supra. The Senate's Subcommittee on Privileges and Elections, for example, might subpoena these ballots, thereby precluding, as a practical matter, any local recount. Or the Senate might ask for a local recount. Either course is within the control and discretion of the Senate and is unreviewable by the courts. The District Court had jurisdiction only to protect the Senate's choice,2 not to make the choice for or on behalf of the Senate.
46
I would affirm the judgment of the District Court.
1
Roudebush filed similar petitions in 10 other counties. Recounts in all 11 counties have been postponed, pending the outcome of this cause.
2
Title 28 U.S.C. § 1343 provides:
'The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.'
The District Court apparently viewed the suit as substantively based upon 42 U.S.C. § 1983, which authorizes a civil action on the part of a person deprived, under color of state law, 'of any rights, privileges, or immunities secured by the Constitution . . ..'
3
U.S.Const., Art. I, § 5, provides in pertinent part:
'Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . ..'
4
Direct appeals from such interlocutory orders are authorized by 28 U.S.C. § 1253.
5
117 Cong.Rec. 6.
6
See Reed v. County Comm'rs, 277 U.S. 376, 388, 48 S.Ct. 531, 532, 72 L.Ed. 924; '(The Senate) is the judge of the elections, returns, and qualifications of its members. Article I, § 5. It is fully empowered, and may determine such matters without the aid of the House of Representatives or the executive or judicial department.'
7
Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491.
8
U.S.Const., Art. I, § 4, provides in pertinent part:
'The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.'
9
See Powell v. McCormack, supra, 395 U.S., at 496, 89 S.Ct., at 1950.
10
Title 28 U.S.C. § 2283 provides:
'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.'
11
The statute dates from 1793. Act of Mar. 2, 1793, § 5; 1 Stat. 334.
12
Toucey v. New York Life Ins. Co., 314 U.S. 118, 132, 62 S.Ct. 139, 143, 86 L.Ed. 100. (Emphasis supplied.)
13
Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 285, 90 S.Ct. 1739, 1742, 26 L.Ed.2d 234. (Emphasis supplied.)
14
See Hill v. Martin, 296 U.S. 393, 398, 56 S.Ct. 278, 280, 80 L.Ed. 293.
15
Ind.Ann.Stat., §§ 29—5401 through 29—5417, IC 1971, 3—1 27—1 to 3—1—27—17. The election recount provisions of some other States appear to give the state courts a broader function. See, e.g., Conn.Gen.Stat.Rev. § 9—323; Va.Code Ann. § 24—277.1 (1969).
16
The role of the Indiana courts in this connection is not unlike that of the state court in the case of Public Service Co. of Northern Illinois v. Corboy, 250 U.S. 153, 39 S.Ct. 440, 63 L.Ed. 905. A state statute there authorized property owners to petition a state court to establish a drainage district and to construct a drainage ditch. To assist in the planning of a ditch, the state court was empowered to appoint a drainage commissioner. The commissioner served on a commission that submitted plans for construction. The state court could either accept or reject these submissions. If it approved plans, the court allocated funds and supervised construction. Applying Prentis, this Court held that these activities were not judicial, and that enjoining the construction of a drainage ditch was not enjoining a state court 'proceeding.' See also Central Electric & Gas Co. v. City of Stromsburg, D.C., 192 F.Supp. 280, aff'd, 8 Cir., 289 F.2d 217 (federal court could enjoin a state court's appointment of an appraiser pursuant to a state statute); Central R. Co. of New Jersey v. Martin, D.C., 19 F.Supp. 82, aff'd sub nom. Lehigh Valley R. Co. of New Jersey v. Martin, 3 Cir., 100 F.2d 139 (federal court could enjoin ministerial act of state judge, pursuant to state statute, converting a state tax into a lien against the taxpayer); Weil v. Calhoun, 25 F. 865 (federal court could enjoin a state ordinary, having the powers of a probate judge, from declaring the results of a county election).
17
The only injunctive relief sought in Hartke's amended complaint was 'that the court permanently restrain and enjoin the defendants and restraining and enjoining the defendants Samuel Walker, John R. Hammond and Duge Butler (the recount commissioners) from convening and commencing a recount, and the defendant Richard L. Roudebush and all persons acting in his behalf or in concert with him (from) taking any further action to use said machinery and procedures to carry forward a recount of the vote for the office of United States Senator in the general election of November 3, 1970.' An interlocutory injunction against the same defendants was also sought.
18
Ind.Ann.Stat. §§ 29—5201 through 29—5220, IC 1971, 3—1—25 1 to 3—1—25—20.
19
Ind.Ann.Stat. §§ 29—5401 through 29—5417.
20
The District Court cited three cases decided by the Indiana Supreme Court as authority for its rulings. State ex rel. Batchelet v. Dekalb Circuit Court, 248 Ind. 481, 229 N.E.2d 798; State ex rel. Beaman v. Circuit Court of Pike County, 229 Ind. 190, 96 N.E.2d 671; State ex rel. Acker v. Reeves, 229 Ind. 126, 95 N.E.2d 838. These cases held that the Indiana Constitution prohibited recounts in certain state elections. They do not address the federal constitutional question at issue in this cause.
21
See n. 8, supra.
22
The Secretary of State is required by statute to certify to the Governor the leading candidate as duly elected 'as soon as he shall receive' certified statements from the counties. The statutory period for receiving those statements is 26 days. The Governor is required to give a certificate of election to each certified candidate. Ind.Ann.Stat. §§ 29—5306 through 29—5309, IC 1971, 3—1—26—6 to 3—1—26—9.
A petition for a recount may be filed 15 days after the election is held. § 29—5403 IC 1971, 3—1—27—3. The petition cannot be granted nor the recount commission appointed by the court for another 25 days. § 29—5409 IC 1971, 3—1—27—9. The recount may not commence until at least five days after the commission is appointed. § 29—5411 IC 1971, 3—1—27—11. Additional time elapses before the results are made final and the appropriate persons are notified. Thus, the recount is unlikely to be completed before the Governor becomes obligated by statute to issue a certificate of election based on the initial count. Nevertheless, the recount supersedes the initial count even though a certificate of election may have been issued. § 29—5415 IC 1971, 3—1—27—15.
23
The Senate's power to judge the qualifications of its members is limited to the qualifications expressly set forth in the Constitution. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491. One of those qualifications is that a Senator be elected by the people of his State. U.S.Const., Amend. XVII.
24
The Senate itself has recounted the votes in close elections in States where there was no recount procedure. E.g., O'Conor v. Markey, Senate Election, Expulsion and Censure Cases from 1789 to 1960, S.Doc.No. 71, 87th Cong., 2d Sess., 144 (1962).
1
Several areas of decisionmaking are immune from judicial review by federal courts. The cases are reviewed in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663.
2
Cf. Ex parte Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014.
| 12
|
405 U.S. 127
92 S.Ct. 785
31 L.Ed.2d 86
Dennis Stephen DUNCAN, Petitioner,v.State of TENNESSEE.
No. 70—5122.
Argued Jan. 13, 1972.
Decided Feb. 23, 1972.
Rodger N. Bowman, Clarksville, Tenn., for petitioner.
Everett H. Falk, Nashville, Tenn., for respondent.
PER CURIAM.
1
We granted certiorari in this case, 404 U.S. 821, 92 S.Ct. 121, 30 L.Ed.2d 49, to consider questions seemingly presented under the constitutional guarantee against double jeopardy. After briefing and oral argument, it now appears that those questions are so interrelated with rules of criminal pleading peculiar to the State of Tennessee, the constitutionality of which is not at issue, as not to warrant the exercise of the certiorari jurisdiction of this Court. See, e.g., Wilson v. State, 200 Tenn. 309, 292 S.W.2d 188 (1956); Young v. State, 185 Tenn. 596, 206 S.W.2d 805 (1947). See U.S.Sup.Ct. Rule 19(1)(a). The writ is, therefore, dismissed as having been improvidently granted.
2
Writ dismissed.
3
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
4
In dismissing the writ of certiorari in this case, the Court lets stand a conviction secured in violation of petitioner's right under the Fifth and Fourteenth Amendments, not to be placed in jeopardy twice for a single criminal offense. The infringement of this fundamental right is so plain on the record before us that I am compelled to dissent.
5
Petitioner and a codefendant, Brooks, were brought to trial in the Criminal Court of Montgomery County, Tennessee, on an indictment charging armed robbery 'by the use of a deadly weapon, to-wit: A Gun to-wit: a pistol . . .'1 The jury was selected and sworn, the indictment read, and a plea of not guilty entered on the defendants' behalf. The State's first witness, the officer investigating the robbery, testified that he had been looking for a '22 rifle' used in the commission of the crime. Defense counsel immediately objected to this evidence as immaterial to a charge of armed robbery with a pistol, and after some discussion out of the jury's presence, his objection was sustained. The prosecutor then informed the court that he had used the word 'pistol' in the indictment by mistake and that in view of the court's refusal to admit evidence of the rifle, the State could proceed no further with its case and would move for a directed verdict of acquittal on the ground of erroneous indictment. The trial court granted this motion over defendants' objection and instructed the jury 'to find, or to acquit the Defendants of the charge in view of that error in the indictment.'
6
About eight months later, in March 1969, the defendants were again brought to trial for the same armed robbery. The new indictment was identical to the old as to date, victim, and amount of money stolen and differed only in its description of the weapon as a '22 caliber rifle.' Nevertheless, defendants' plea of double jeopardy was overruled by the court, and they were convicted and sentenced to 10 years' imprisonment. The State Court of Criminal Appeals sustained defendants' double jeopardy claim on appeal, but the Supreme Court of Tennessee reversed. State v. Brooks, 224 Tenn. 712, 462, S.W.2d 491 (1970). It agreed that evidence of the rifle was properly excluded at the first trial, since under Tennessee's 'strict' variance rule "an allegation in an indictment which is not impertinent or foreign to the cause (such as specifying the weapon as a pistol) must be proved, though a prosecution for the same offense might be supported without such allegation' . . ..' 224 Tenn., at 717, 462 S.W.2d, at 494 (italics omitted), quoting Hite v. State, 17 Tenn. 357, 377 (1836) (theft of note payable at Mechanics' and Traders' Bank inadmissible on indictment specifying note payable at Merchants' and Traders' Bank). See also Wilson v. State, 200 Tenn. 309, 292 S.W.2d 188 (1956) (proof of theft of bronze rollers material variance from indictment charging theft of brass rollers). The court went on to hold, however, that since the variance between 'pistol' and 'rifle' was sufficient to render the initial indictment defective, it was likewise sufficient to distinguish the second indictment from the first for double jeopardy purposes. "To entitle a prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crimes charged in the last bill of indictment be precisely the same with that charged in the first, and that the first bill of indictment is good in point of law. The true test by which the question whether such a plea is a sufficient bar may be tried is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first." 224 Tenn., at 715, 462 S.W.2d, at 493, quoting Hite v. State, supra, 17 Tenn., at 375—376. Though recognizing the application of the Double Jeopardy Clause to the States, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the court concluded that the strict variance rule 'when consistently applied as a test for both variance and double jeopardy, will affect equally both the state and the defendant, and in our opinion not offend the Fourteenth Amendment.' 224 Tenn., at 719, 462 S.W.2d at 494. A petition for rehearing based on this Court's decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), was denied on the ground that Ashe 'has no application to the question whether there has been double jeopardy where the first indictment is void for variance.' 224 Tenn., at 720, 462 S.W.2d, at 495.
7
The guarantee against double jeopardy is "fundamental to the American scheme of justice," Benton v. Maryland, supra, 395 U.S., at 796, 89 S.Ct., at 2063. designed to ensure that 'the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' Green v. United States, 355 U.S. 184, 187—188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Thus, we must view with a cautious eye any suggestion, as in the denial of rehearing below, that a particular trial, once commenced, might not result in the attachment of jeopardy under the Constitution. As the State conceded at oral argument, that suggestion is not sustainable here. Had petitioner's first trial gone no further than the impaneling of a jury, this in itself would have served to invoke the constitutional guarantee, for it is now settled that 'a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again.' Id., at 188, 78 S.Ct., at 224. There are exceptions to this rule, of course, as in the case of a hung jury, United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), or military emergency requiring withdrawal of charges, Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), but they do not apply here.
8
In any event, we need not rely on the calling of a jury to find an attachment of jeopardy, for it is clear that petitioner was not only tried for robbery in the initial proceeding, but was in fact acquitted at the direction of the court. His acquittal, being the final verdict in a court of competent jurisdiction, automatically precluded the State from retrying him for the same offense, even though, as the court below pointed out, the direction to acquit arose from a defect in the indictment. It has long been the rule of this Court that 'former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not . . . against the peril of second punishment, but against being again tried for the same offense.' Kepner v. United States, 195 U.S. 100, 130, 24 S.Ct. 797, 805, 49 L.Ed. 114 (1904) (emphasis added). See also United States v. Ball, 163 U.S. 662, 669—670, 16 S.Ct. 1192, 1194 1195, 41 L.Ed. 300 (1896); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (directed verdict of acquittal, though 'egregiously erroneous,' bars retrial on the same charge); Benton v. Maryland, supra, 395 U.S., at 796—797, 89 S.Ct., at 2063—2064. Nor is this rule a mere nicety of abstract constitutional theory. The prosecution might have any number of reasons for wanting to halt a trial at midpoint and begin anew, and the indictment offers a fertile source for the discovery of error. To permit the State to obtain a final verdict by asserting its own mistake in the indictment and then to retry the defendant on the theory that jeopardy had not attached is to subject him to the very dangers that the Double Jeopardy Clause was designed to avoid. The State very properly conceded at oral argument that petitioner 'was placed in jeopardy in the first trial.' Tr. of Oral Arg. 23.
9
The only question, then, is whether the petitioner was tried twice for the same offense. Tennessee argues that under its strict-variance rule the specification of 'pistol' in the first indictment charged an entirely different offense from the armed robbery with a 'rifle' alleged in the second, since the 'same evidence' could not be used to prove both charges. Whatever relevance this doctrine may have in determining a variance between indictment and proof within a single trial, it certainly does not comport with the double jeopardy standards of the Fifth and Fourteenth Amendments. In my view, 'the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.' Ashe v. Swenson, supra, 397 U.S., at 453—454, 90 S.Ct., at 1199 (concurring opinion). This the State has clearly failed to do. At petitioner's first trial the State was prepared to proceed on evidence that a rifle had been used in the robbery. The first witness testified as to a rifle, and the rifle itself was apparently in the courtroom in full view of the jury. Following petitioner's acquittal, the State again tried him for armed robbery with a rifle. The same witness was called to testify about the rifle as in the first trial, and the same rifle was present in the courtroom. In short, though the first indictment charged petitioner with using a 'pistol,' the State could also have charged him with use of a rifle, based on the very same evidence, both physical and testimonial, on which he was eventually convicted at the second trial. Having failed to do so and having obtained a final verdict at the first trial the State was barred, in my opinion, from bringing a second prosecution based on this 'single criminal act.'2
10
The majority's refusal to address these issues is inexplicable. It may be that the prosecution in this case did not have available to it a ready means, under state law, of amending the first indictment and thus had no choice but to end the trial and begin again. If so, its remedy lies in changing Tennessee's criminal procedure, not in denying petitioner the constitutional protection to which he is entitled. Petitioner was tried twice for the same offense, and his conviction should be reversed. United States v. Jorn, 400 U.S. 470, 488, 91 S.Ct. 547, 558, 27 L.Ed.2d 543 (1971) (Black and Brennan, JJ., concurring). I would grant him that relief.
1
Tenn.Code Ann. § 39—3901 (Supp.1970) provides:
'Robbery is the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear. Every person convicted of the crime of robbery shall be imprisoned in the penitentiary not less than five (5) nor more than fifteen (15) years; provided, that if the robbery be accomplished by the use of a deadly weapon the punishment shall be death by electrocution, or the jury may commute the punishment to imprisonment for life or for any period of time not less than ten (10) years.'
2
It is not entirely clear that the two indictments charged different offenses even under state law. In State ex rel. Anderson v. Winsett, 217 Tenn. 564, 399 S.W.2d 741 (1965), the Tennessee Supreme Court stated the following with regard to the state robbery statute, supra, n. 1: 'When the Legislature determined in 1955 to amend the penalty statute for the crime of robbery, it was obvious that robbery by the use of a deadly weapon was dangerous to life for many reasons, and thus it was that the act was amended to make the penalty for the crime of robbery with a deadly weapon as stated above, to try to prevent the use of a deadly weapon in the perpetration of a robbery. (But) so adding this increased punishment for the increased gravity of the crime does not create a separate or distinct offense, but merely provides for increased punishment of such offender because of the presence of aggravating circumstances.' Id., at 567—568, 399 S.W.2d, at 743.
Relying on Winsett and the robbery statute itself, petitioner contends, with some force in my view, that the only crime charged in either prosecution was 'robbery,' with the use of the weapon and its specification in the indictment adding only to the punishment that might be imposed.
| 01
|
31 L.Ed.2d 62
92 S.Ct. 827
405 U.S. 93
UNITED STATES, Petitioner,v.Edna GENERES, Wife of, and Allen H. Generes.
No. 70—28.
Argued Nov. 8, 1971.
Decided Feb. 23, 1972.
Rehearing Denied March 27, 1972.
See 405 U.S. 1033, 92 S.Ct. 1274.
Syllabus
Respondent taxpayer owned 44% of the stock of a closely held construction corporation, with an original investment of $38,900, and received an annual salary of $12,000 for serving as president on a part-time basis. His total income was about $40,000 a year. He advanced money to the corporation and signed an indemnity agreement with a bonding company, which furnished bid and performance bonds for the construction contracts. The corporation defaulted on contracts in 1962 and the taxpayer advanced over $158,000 to the corporation and indemnified the bonding company to the extent of more than $162,000. The corporation went into receivership and he obtained no reimbursement for these sums. On his 1962 income tax return the taxpayer took his loss on direct loans to the corporation as a nonbusiness bad debt, but he claimed the indemnification loss as a business debt and deducted it against ordinary income and asserted net loss carrybacks for the portion unused in 1962, pursuant to 26 U.S.C. § 172. Treasury Regulations provide that if, at the time of worthlessness, the debt has a 'proximate' relationship to the taxpayer's business, the debt qualifies as a business bad debt. In his suit for a tax refund the taxpayer testified that his sole motive for signing the indemnification agreement was to protect his $12,000-a-year employment with the corporation. The jury was asked to determine whether signing the agreement 'was proximately related to his trade or business of being an employee' of the corporation. The court refused the Government's request for an instruction that the applicable standard was that of dominant motivation and charged the jury that significant motivation satisfies the Regulations' requirement of proximate relationship. The jury's verdict was for the taxpayer and the Court of Appeals affirmed, approving the significant-motivation standard. Held:
1. In determining whether a bad debt has a 'proximate' relation to the taxpayer's trade or business and thus qualifies as a business bad debt, the proper standard is that of dominant motivation rather than significant motivation. Pp. 103-105.
2. There is nothing in the record that would support a jury verdict in the taxpayer's favor had the dominant-motivation standard been embodied in the instructions. P. 106—107.
427 F.2d 279, reversed and remanded.
Matthew J. Zinn, Washington, D.C., for petitioner.
Max Nathan, Jr., New Orleans, La., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
A debt a closely held corporation owed to an indemnifying shareholder-employee became worthless in 1962. The issue in this federal income tax refund suit is whether, for the shareholder-employee, that worthless obligation was a business or a nonbusiness bad debt within the meaning and reach of §§ 166(a) and (d) of the Internal Revenue Code of 1954, as amended, 26 U.S.C. §§ 166(a) and (d),1 and of the implementing Regulations § 1.166—5.2
2
The issue's resolution is important for the taxpayer. If the obligation was a business debt, he may use it to offset ordinary income and for carryback purposes under § 172 of the Code, 26 U.S.C. § 172. On the other hand, if the obligation is a nonbusiness debt, it is to be treated as a short-term capital loss subject to the restrictions imposed on such losses by § 166(d)(1)(B) and §§ 1211 and 1212, and its use for carryback purposes is restricted by § 172(d) (4). The debt is one or the other in its entirety, for the Code does not provide for its allocation in part to business and in part to nonbusiness.
3
In determining whether a bad debt is a business or a nonbusiness obligation, the Regulations focus on the relation the loss bears to the taxpayer's business. If, at the time of worthlessness, that relation is a 'proximate' one, the debt qualifies as a business bad debt and the aforementioned desirable tax consequences then ensue.
4
The present case turns on the proper measure of the required proximate relation. Does this necessitate a 'dominant' business motivation on the part of the taxpayer or is a 'significant' motivation sufficient?
5
Tax in an amount somewhat in excess of $40,000 is involved. The taxpayer, Allen H. Generes,3 prevailed in a jury trial in the District Court. See 67—2 U.S.T.C. 9754 (ED La.). On the Government's appeal , the Fifth Circuit affirmed by a divided vote. 427 F.2d 279 (CA5 1970). Certiorari was granted, 401 U.S. 972, 91 S.Ct. 1189, 28 L.Ed. 321 (1971), to resolve a conflict among the circuits.4
6
* The taxpayer as a young man in 1909 began work in the construction business. His son-in-law, William F. Kelly, later engaged independently in similar work. During World War II the two men formed a partnership in which their participation was equal. The enterprise proved successful. In 1954 Kelly- Generes Construction Co., Inc., was organized as the corporate successor to the partnership. It engaged in the heavy-construction business, primarily on public works projects.
7
The taxpayer and Kelly each owned 44% of the corporation's outstanding capital stock. The taxpayer's original investment in his shares was $38,900. The remaining 12% of the stock was owned by a son of the taxpayer and by another son-in-law. Mr. Generes was president of the corporation and received from it an annual salary of $12,000. Mr. Kelly was executive vice-president and received an annual salary of $15,000.
8
The taxpayer and Mr. Kelly performed different services for the corporation. Kelly worked full time in the field and was in charge of the day-to-day construction operations. Generes, on the other hand, devoted no more than six to eight hours a week to the enterprise. He reviewed bids and jobs, made cost estimates, sought and obtained bank financing, and assisted in securing the bid and performance bonds that are an essential part of the public-project construction business. Mr. Generes, in addition to being president of the corporation, held a full-time position as president of a savings and loan association he had founded in 1937. He received from the association an annual salary of.$19,000. The taxpayer also had other sources of income. His gross income averaged about $40,000 a year during 1959—1962.
9
Taxpayer Generes from time to time advanced personal funds to the corporation to enable it to complete construction jobs. He also guaranteed loans made to the corporation by banks for the purchase of construction machinery and other equipment. In addition, his presence with respect to the bid and performance bonds is of particular significance. Most of these were obtained from Maryland Casualty Co. That underwriter required the taxpayer and Kelly to sign an indemnity agreement for each bond it issued for the corporation. In 1958, however, in order to eliminate the need for individual indemnity contracts, taxpayer and Kelly signed a blanket agreement with Maryland whereby they agreed to indemnify it, up to a designated amount, for any loss it suffered as surety for the corporation. Maryland then increased its line of surety credit to $2,000,000. The corporation had over $14,000,000 gross business for the period 1954 through 1962.
10
In 1962 the corporation seriously underbid two projects and defaulted in its performance of the project contracts. It proved necessary for Maryland to complete the work. Maryland then sought indemnity from Generes and Kelly. The taxpayer indemnified Maryland to the extent of $162,104.57. In the same year he also loaned $158,814.49 to the corporation to assist it in its financial difficulties. The corporation subsequently went into receivership and the taxpayer was unable to obtain reimbursement from it.
11
In his federal income tax return for 1962 the taxpayer took his loss on his direct loans to the corporation as a non-business bad debt. He claimed the indemnification loss as a business bad debt and deducted it against ordinary income.5 Later he filed claims for refund for 1959—1961, asserting net operating loss carrybacks under § 172 to those years for the portion, unused in 1962, of the claimed business bad debt deduction.
12
In due course the claims were made the subject of the jury trial refund suit in the United States District Court for the Eastern District of Louisiana. At the trial Mr. Generes testified that his sole motive in signing the indemnity agreement was to protect his $12,000-a-year employment with the corporation. The jury, by special interrogatory, was asked to determine whether taxpayer's signing of the indemnity agreement with Maryland 'was proximately related to his trade or business of being an employee' of the corporation. The District Court charged the jury, over the Government's objection, that significant motivation satisfies the Regulations' requirement of proximate relationship.6 The court refused the Government's request for an instruction that the applicable standard was that of dominant rather than significant motivation.7
13
After twice returning to the court for clarification of the instruction given, the jury found that the taxpayer's signing of the indemnity agreement was proximately related to his trade or business of being an employee of the corporation. Judgment on this verdict was then entered for the taxpayer.
14
The Fifth Circuit majority approved the significant-motivation standard so specified and agreed with a Second Circuit majority in Weddle v. Commissioner of Internal Revenue, 325 F.2d 849, 851 (1963), in finding comfort for so doing in the tort law's concept of proximate cause. Judge Simpson dissented. 427 F.2d, at 284. He agreed with the holding of the Seventh Circuit in Niblock v. Commissioner of Internal Revenue, 417 F.2d 1185 (1969), and with Chief Judge Lumbard, separately concurring in Weddle, 325 F.2d, at 852, that dominant and primary motivation is the standard to be applied.
II
15
A. The fact responsible for the litigation is the taxpayer's dual status relative to the corporation. Generes was both a shareholder and an employee. These interests are not the same, and their differences occasion different tax consequences. In tax jargon, Generes' status as a shareholder was a nonbusiness interest. It was capital in nature and it was composed initially of tax-paid dollars. Its rewards were expectative and would flow, not from personal effort, but from investment earnings and appreciation. On the other hand, Generes' status as an employee was a business interest. Its nature centered in personal effort and labor, and salary for that endeavor would be received. The salary would consist of pre-tax dollars.
16
Thus, for tax purposes it becomes important and, indeed, necessary to determine the character of the debt that went bad and became uncollectible. Did the debt center on the taxpayer's business interest in the corporation or on his nonbusiness interest? If it was the former, the taxpayer deserves to prevail here. Trent v. Commissioner of Internal Revenue, 291 F.2d 669 (CA2 1961); Jaffe v. Commissioner, T. C. Memo 67,215; Estate of Saperstein v. Commissioner, T.C. Memo 70,209; Faucher v. Commissioner, T. C. Memo 70,21 7; Rosati v. Commissioner, T.C. Memo 70,343; Rev.Rul. 71—561, 1971—50 Int.Rev.Bull. 13.
17
B. Although arising in somewhat different contexts, two tax cases decided by the Court in recent years merit initial mention. In each of these cases a major shareholder paid out money to or on behalf of his corporation and then was unable to obtain reimbursement from it. In each he claimed a deduction assertable against ordinary income. In each he was unsuccessful in this quest:
18
1. In Putnam v. Commissioner of Internal Revenue, 352 U.S. 82, 77 S.Ct. 175, 1 L.Ed.2d 144 (1956), the taxpayer was a practicing lawyer who had guaranteed obligations of a labor newspaper corporation in which he owned stock. He claimed his loss as fully deductible in 1948 under § 23(e)(2) of the 1939 Code. The standard prescribed by that statute was incurrence of the loss 'in any transaction entered into for profit, though not connected with the trade or business.' The Court rejected this approach and held that the loss was a nonbusiness bad debt subject to short-term capital loss treatment under § 23(k) (4). The loss was deductible as a bad debt or not at all. See Rev.Rul. 60—48, 1960—1 Cum.Bull. 112.
19
2. In Whipple v. Commissioner of Internal Revenue, 373 U.S. 193, 83 S.Ct. 1168, 10 L.Ed.2d 288 (1963), the taxpayer had provided organizational, promotional, and managerial services to a corporation in which he owned approximately an 80% stock interest. He claimed that this constituted a trade or business and, hence, that debts owing him by the corporation were business bad debts when they became worthless in 1953. The Court also rejected that contention and held that Whipple's investing was not a trade or business, that is, that '(d)evoting one's time and energies to the affairs of a corporation is not of itself, and without more, a trade or business of the person so engaged.' 373 U.S., at 202, 83 S.Ct., at 1174. The rationale was that a contrary conclusion would be inconsistent with the principle that a corporation has a personality separate from its shareholders and that its business is not necessarily their business. The Court indicated its approval of the Regulations' proximate-relation test:
20
'Moreover, there is no proof (which might be difficult to furnish where the taxpayer is the sole or dominant stockholder) that the loan was necessary to keep his job or was otherwise proximately related to maintaining his trade or business as an employee. Compare Trent v. Commissioner of Internal Revenue (291 F.2d 669 (CA2 1961().' 373 U.S., at 204, 83 S.Ct., at 1175.
21
The Court also carefully noted the distinction between the business and the nonbusiness bad debt for one who is both an employee and a shareholders.8
22
These two cases approach, but do not govern, the present one. They indicate, however, a cautious and not a free-wheeling approach to the business bad debt. Obviously, taxpayer Generes endeavored to frame his case to bring it within the area indicated in the above quotation from Whipple v. Commissioner of Internal Revenue.
III
23
We conclude that in determining whether a bad debt has a 'proximate' relation to the taxpayer's trade or business, as the Regulations specify, and thus qualifies as a business bad debt, the proper measure is that of dominant motivation, and that only significant motivation is not sufficient. We reach this conclusion for a number of reasons:
24
A. The Code itself carefully distinguishes between business and non-business items. It does so, for example, in § 165 with respect to losses, in § 166 with respect to bad debts, and in § 162 with respect to expenses. It gives particular tax benefits to business losses, business bad debts, and business expenses, and gives lesser benefits, or none at all, to nonbusiness losses, non-business bad debts, and nonbusiness expenses. It does this despite the fact that the latter are just as adverse in financial consequence to the taxpayer as are the former. But this distinction has been a policy of the income tax structure ever since the Revenue Act of 1916, § 5(a), 39 Stat. 759, provided differently for trade or business losses than it did for losses sustained in another transaction entered into for profit. And it has been the specific policy with respect to bad debts since the Revenue Act of 1942 incorporated into § 23(k) of the 1939 Code the distinction between business and non-business bad debts. 56 Stat. 820.
25
The point, however, is that the tax statutes have made the distinction, that the Congress therefore intended it to be a meaningful one, and that the distinction is not to be obliterated or blunted by an interpretation that tends to equate the business bad debt with the nonbusiness bad debt. We think that emphasis upon the significant rather than upon the dominant would have a tendency to do just that.
26
B. Application of the significant-motivation standard would also tend to undermine and circumscribe the Court's holding in Whipple and the emphasis there that a shareholder's mere activity in a corporation's affairs is not a trade or business. As Chief Judge Lumbard pointed out in his separate and disagreeing concurrence in Weddle, supra, 325 F.2d, at 852—853, both motives that of protecting the investment and that of protecting the salary—-are inevitably involved, and an inquiry whther employee status provides a significant motivation will always produce an affirmative answer and result in a judgment for the taxpayer.
27
C. The dominant-motivation standard has the attribute of workability. It provides a guideline of certainty for the trier of fact. The trier then may compare the risk against the potential reward and give proper emphasis to the objective rather than to the subjective. As has just been noted, an employee-shareholder, in making or guaranteeing a loan to his corporation, usually acts with two motivations, the one to protect his investment and the other to protect his employment. By making the dominant motivation the measure, the logical tax consequence ensues and prevents the mere presence of a business motive, however small and however insignificant, from controlling the tax result at the taxpayer's convenience. This is of particular importance in a tax system that is so largely dependent on voluntary compliance.
28
D. The dominant-motivation test strengthens and is consistent with the mandate of § 262 of the Code, 26 U.S.C. § 262, that 'no deduction shall be allowed for personal, living, or family expenses' except as otherwise provided. It prevents personal considerations from circumventing this provision.
29
E. The dominant-motivation approach to § 166(d) is consistent with that given the loss provisions in § 165(c)(1), see, for example, Imbesi v. Commissioner of Internal Revenue, 361 F.2d 640, 644 (CA3 1966), and in § 165(c)(2), see Austin v. Commissioner of Internal Revenue, 298 F.2d 583, 584 (CA2 1962). In these related areas, consistency is desirable. See also, Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 286, 80 S.Ct. 1190, 1197, 4 L.Ed.2d 1218 (1960).
30
F. We see no inconsistency, such as the taxpayer suggests, between the Government's urging dominant motivation here and its having urged only significant motivation as the appropriate standard for the incurrence of liability for the accumulated-earnings tax under § 531 of the 1954 Code, 26 U.S.C. § 531, and for includability in the gross estate, for federal estate tax purposes, of a transfer made in contemplation of death under § 2035, 26 U.S.C. § 2035. Sections 531 and 2035 are Congress' answer to tax avoidance activity. United States v. Donruss Co., 393 U.S. 297, 303, 89 S.Ct. 501, 504, 21 L.Ed.2d 495 (1969), and Farmers' Loan & Trust Co. v. Bowers, 98 F.2d 794 (CA2 1938), cert. denied, 396 U.S. 648, 59 S.Ct. 589, 83 L.Ed. 1074 (1939).
31
G. The Regulations' use of the word 'proximate' perhaps is not the most fortunate, for it naturally tempts one to think in tort terms. The temptation, however, is best rejected, and we reject it here. In tort law factors of duty, of foreseeability, of secondary cause, and of plural liability are under consideration, and the concept of proximate cause has been developed as an appropriate application and measure of these factors. It has little place in tax law where plural aspects are not usual, where an item either is or is not a deduction, or either is or is not a business bad debt, and where certainty is desirable.
IV
32
The conclusion we have reached means that the District Court's instructions, based on a standard of significant rather than dominant motivation, are erroneous and that, at least, a new trial is required. We have examined the record, however, and find nothing that would support a jury verdict in this taxpayer's favor had the dominant-motivation standard been embodied in the instructions. Judgment n.o.v. for the United States, therefore, must be ordered. See Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967).
33
As Judge Simpson pointed out in his dissent, 427 F.2d, at 284 285, the only real evidence offered by the taxpayer bearing upon motivation was his own testimony that he signed the indemnity agreement 'to protect my job,' that 'I figured in three years' time I would get my money out,' and that 'I never once gave it (his investment in the corporation) a thought.'9
34
The statements obviously are self-serving. In addition, standing alone, they do not bear the light of analysis. What the taxpayer was purporting to say was that his $12,000 annual salary was his sole motivation, and that his $38,900 original investment, the actual value of which prior to the misfortunes of 1962 we do not know, plus his loans to the corporation, plus his personal interest in the integrity of the corporation as a source of living for his son-in-law and as an investment for his son and his other son-in-law, were of no consequence whatever in his thinking. The comparison is strained all the more by the fact that the salary is pre-tax and the investment is taxpaid. With his total annual income about $40,000, Mr. Generes may well have reached a federal income tax bracket of 40% or more for a joint return in 1958—1962. ss 1 and 2 of the 1954 Code 68A Stat. 5 and 8. The $12,000 salary thus would produce for him only about $7,000 net after federal tax and before any state income tax. This is the figure, and not $12,000, that has any possible significance for motivation purposes, and it is less than 1/5 of the original stock investment.10
35
We conclude on these facts that the taxpayer's explanation falls of its own weight, and that reasonable minds could not ascribe, on this record, a dominant motivation directed to the preservation of the taxpayer's salary as president of Kelly-Generes Construction Co. Inc.
36
The judgment is reversed and the case is remanded with direction that judgment be entered for the United States.
37
It is so ordered.
38
Mr. Jujstice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
39
Mr. Justice MARSHALL, concurring.
40
I agree with and join the opinion of the Court. In doing so I add a few additional words of legislative history in support of the wording of the Internal Revenue Code itself.
41
It is now well-established law that a corporate employee is entitled to deduct as a business bad debt a bad debt incurred because of his employee status—e.g., a loan made to protect his job which becomes unrecoverable. See, e.g., Trent v. Commissioner of Internal Revenue, 291 F.2d 669 (CA2 1961); Lundgren v. Commissioner of Internal Revenue, 376 F.2d 623 (CA9 1967); Smith v. Commissioner of Internal Revenue, 55 T.C. 260 (1970). See also Whipple v. Commissioner of Internal Revenue, 373 U.S. 193, 201, 83 S.Ct. 1168, 1173, 10 L.Ed.2d 288 (1963). The law is equally well established, however, that a shareholder is not entitled to a business bad-debt deduction when a loan which he has made to enhance his stock interest in a corporation goes bad.
42
The taxpayer in this case is both an employee and a shareholder of a single corporation, and the question thus presented is how to determine the proper tax treatment of loans made by him to the corporation that became uncollectible.
43
The Internal Revenue Code itself does not offer any test for determining when a bad debt is a business bad debt, but § 1.166 5(b) of the Treasury Regulations, on Income Tax provides that a loss from a worthless debt is deductible as a business bad debt only if the relation between the loss and taxpayer's trade or business is a proximate one. The Commissioner contends that the taxpayer must demonstrate that the 'primary and dominant' motivation for the undertaking that gave rise to the bad debt was attributable to his status as an employee, and not as a shareholder, in order to comply with the regulation. It is the taxpayer's position that the proximate relationship is sufficiently demonstrated if the undertaking giving rise to the bad debt was 'significantly' motivated by his employee status. The District Court and Court of Appeals agreed with the taxpayer.
44
The opinion of the Court properly concludes that acceptance of the test advocated by the taxpayer would blunt somewhat the distinction between business and nonbusiness expenses, and that the Commissioner's test is slightly more consistent with the thrust of various sections of the Internal Revenue Code. Were this all we had to work with, however, I would be as torn between the two tests as the lower courts have been. Compare Weddle v. Commissioner of Internal Revenue, 325 F.2d 849 (CA2 1963), with Niblock v. Commissioner of Internal Revenue, 417 F.2d 1185 (CA7 1969), and Smith v. Commissioner of Internal Revenue, 55 T.C. 260 (1970). As the Court's opinion points out, Congress did not choose to apportion the tax treatment of bad debts according to the strength of the various interests of the taxpayer that gave rise to them. Left with an all-or-nothing approach and no legislative history, one might well conclude that Congress did intend to blunt the distinction between business and nonbusiness bad debts, especially since neither the language of the Code nor the regulations explicitly require one test or the other, and since the burden on the taxpayer of both types of losses is identical. Fortunately, there is a clear and compelling legislative history that obviates any need for speculation as to Congress' intent in enacting § 166 of the Code, 26 U.S.C. § 166. And, only the Commissioner's test is consistent with that intent.
45
Prior to 1942 the Internal Revenue Code treated business and nonbusiness bad debts identically. But, in that year, Congress amended § 23(k) of the 1939 Code in order to distinguish between the two. A nonbusiness bad debt was defined as one 'other than a debt the loss from the worthlessness of which is incurred in the taxpayer's trade or business,' and business bad debts presumably encompassed all others. The demarcation remains essentially the same under § 166 of the 1954 Code except that the definition of business bad debts is expanded for the limited purpose of including within it 'a debt created or acquired . . . in connection with a trade or business of the taxpayer' but not 'incurred in' the business—e.g., a debt growing out of a trade or business that becomes worthless under circumstances removed from the trade or business. See H.R.Rep.No. 1337, 83d Cong., 2d Sess., 21—22; S.Rep.No.1622, 83d Cong., 2d Sess., 24; Whipple v. Commissioner of Internal Revenue, supra, 373 U.S., at 194 n. 1, 83 S.Ct., at 1170; Trent v. Commissioner of Internal Revenue, supra, 291 F.2d, at 674.
46
The major congressional purpose in distinguishing between business and nonbusiness bad debts was to prevent taxpayers from lending money to friends or relatives who they knew would not repay it and then deducting against ordinary income a loss in the amount of the loan. Prior to the 1942 amendment of the Code, it was apparent that taxpayers could go a long way toward escaping the Code's monetary limit on dependency deductions and its prohibition against deductions for personal expenses by casting support payments, gifts, and other expenditures in the form of loans destined to become bad debts. H.R.Rep.No.2333, 77th Cong., 2d Sess., 45, 76—77; S.Rep.No.1631, 77th Cong., 2d Sess., 90.
47
A related congressional purpose in enacting the predecessor to § 166 was 'to put nonbusiness investments in the form of loans on a footing with other nonbusiness investments.' Putnam v. Commissioner of Internal Revenue, 352 U.S. 82, 92, 77 S.Ct. 175, 179, 180, 1 L.Ed.2d 144 (1956). Congress recognized that there often is only a minor difference, if any, between an investment in the form of a stock purchase and one in the form of a loan to a corporation. See, e.g., John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278 (1946); Bowersock Mills & Power Co. v. Commissioner of Internal Revenue, 172 F.2d 904 (CA10 1949).
48
It is apparent that Congress was especially concerned about the possibility that closely held family businesses might exploit the technical differences among the forms in which investments can be cast in order to gain unwarranted deductions against ordinary income.
49
This case is a perfect example of how the 'significant' motivation test undercuts the intended effect of the statute. The taxpayer was drawing an annual salary of $12,000 from a family corporation in which he had invested almost $200,000. As the guarantor of the corporation's performance and payment construction bonds, the taxpayer risked a potential liability of $2,000,000 and ultimately incurred an actual liability of $162,000, which is the amount that he sought to deduct as a business bad debt. The jury found that the risk was incurred because the taxpayer was 'significantly' motivated by his interests as a corporate employee and by his $12,000 salary. In view of all the facts set forth in the opinion of the Court, especially the fact that the taxpayer had a gross income of approximately $40,000, I have no doubt whatever that the same jury would have found that the taxpayer's 'primary and dominant' motivation was to protect his investment, not his salary.
50
If this taxpayer had simply lent his son-in-law $162,000 and then sought to deduct that amount as a business bad debt when the latter's business collapsed, he plainly could not have prevailed. This was just the sort of intra-family loan that Congress intended to bar from treatment as a business bad debt. The fact that a corporation served as a conduit for the loan should make no difference. If the taxpayer had received only interest on the loan rather than a salary, he could claim no business bad-debt deduction. The fact that he took a nominal salary for nominal services does not, in my opinion, require a different result. Moreover, if instead of guaranteeing the construction bonds, the taxpayer had invested $162,000 in the corporation to strengthen its economic position, that investment would receive the same treatment as the prior investment of $200,000 and any loss would not be deductible against ordinary income. The fact that the intra-family contribution was made in the form of a guarantee should be irrelevant for income tax purposes.
51
In sum, I find that the 'significant' motivation test produces results that are totally at odds with the goals of the statute. The conclusion that I draw from the legislative history is that Congress wanted to permit deductions against ordinary income for bad-debt losses only when the losses bore the same relation to the taxpayer's trade or business as did other losses that the Code permits to be deducted against ordinary income. Under § 165(c)(1) of the Code, 26 U.S.C. § 165(c)(1), the primary-motivation test has always been used to determine whether these other losses are incurred in a trade or business or in some other capacity, see, e.g., Imbesi v. Commissioner of Internal Revenue, 361 F.2d 640 (CA3 1966), United States v. Gilmore, 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570 (1963). The same test should also be utilized with respect to bad debts if Congress' will is to be done.
52
Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins.
53
While I join Parts I, II, and III of the Court's opinion and its judgment of reversal, I would remand the case to the District Court with directions to hold a hearing on the issue of whether a jury question still exists as to whether taxpayer's motivation was 'dominantly' a business one in the relevant transactions under 26 U.S.C. §§ 166(a) and (d). Federal Rule of Civil Procedure 50(d) provides that when an appellate court considers a motion for judgment n.o.v., it may 'determin(e) that the appellee is entitled to a new trial, or . . . (direct) the trial court to determine whether a new trial shall be granted.' Because of the drastic nature of a judgment n.o.v., this Court has emphasized that such motions should be granted only when the procedural prerequisites of the Federal Rules have been strictly complied with. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 215—217, 67 S.Ct. 752, 754—756, 91 L.Ed. 849 (1947). In the present case, this Court has the power to reverse the judgment without the grant of a new trial since the Government properly moved for a judgment n.o.v. (or, in the alternative, for a new trial) in the District Court. Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967). The circumstances here are inappropriate for such a decision, however, since taxpayer has never had an opportunity to be heard, after it is determined that his verdict cannot stand, as to whether factual issues remain on which he is entitled to a new trial. A decision that a verdict must be overturned because the trial judge applied an erroneous evidentiary standard is unlike certain other appellate rulings that an error of law was made because it inevitably presents an accompanying factual question: is there enough evidence to present a jury question under the proper evidentiary standard? Neely v. Martin K. Eby Construction Co., supra, at 327, 87 S.Ct., at 1079. This Court has often repeated that a trial court is the most appropriate tribunal to determine such factual questions, Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481—482, 53 S.Ct. 252, 254—255, 77 L.Ed. 439 (1933); Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253, 61 S.Ct. 189, 195, 85 L.Ed. 147 (1940), since appellate courts are awkwardly equipped to resolve such issues, particularly in the absence of adversary argument, and since the trial judge has an extensive and intimate knowledge of the evidence and issues 'in a perspective peculiarly available to him alone.' Cone v. West Virginia Pulp & Paper Co., supra, 330 U.S., at 216, 67 S.Ct., at 755. I would therefore allow the trial court to decide whether a new trial is merited in this case.
54
Mr. Justice DOUGLAS, dissenting.
55
The Treasury Regulations § 1.166—5(b)(2), which govern this case, provide that 'the character of the debt is to be determined by the relation which the loss resulting from the debt's becoming worthless bears to the trade or business of the taxpayer.' The Regulations do not use the words 'primary and dominant.' They state: 'If that relation is a proximate one in the conduct of the trade or business in which the taxpayer is engaged at the time the debt becomes worthless,' the debt is deductible. Ibid.
56
The jury was instructed in the words of the Regulations: 'Do you find from a preponderance of the evidence that the signing of the blanket indemnity agreement by Mr. Generes was proximately related to his trade or business of being an employee of the Kelly-Generes Construction Company?' The jury unanimously answered 'Yes.'
57
There was evidence to support the finding. Generes was an officer of the company and received a salary of $12,000 a year. His job as officer was to obtain the bonding credit needed by the company to perform the jobs on which it bid. To get the bond Generes, the president, and Kelly, the vice-president, were required to sign personally an indemnity agreement.
58
The bond was essential if the company was to operate. Without the bond the company could not obtain business and, if that happened, he as an officer would lose his job. It therefore seems to me that signing the bond had a 'proximate' relation to his business as a salaried officer in the sense that it was directly related to the hoped-for success of that business.
59
Whether it was a prudent act is not our concern. Nor is it our concern whether with the benefit of hindsight we can now say that signing the bond entailed risks wholly disproportionate to the stake Generes had in maintaining a job with a $12,000-a-year salary.
60
Obtaining a bond was essential to the corporation; and it was only by keeping the business going that the salaried position of Generes could be made secure. If the Regulations do not meet the desires of the Treasury Department they can be rewritten. See Helvering v. Wilshire Oil Co., 308 U.S. 90, 100—102, 60 S.Ct. 18, 24—25, 84 L.Ed. 101.
61
I protest now what I have repeatedly protested, and that is the use of this Court to iron out ambiguties in the Regulations or in the Act, when the responsible remedy is either a recasting of the Regulations by Treasury or presentation of the problem to the Joint Committee on Internal Revenue Taxation which is a standing committee of the Congress1 that regularly rewrites the Act and is much abler than are we to forecast revenue needs and spot loopholes where abuses thrive.
62
As I said in Commissioner of Internal Revenue v. Lester, 366 U.S. 299, 307, 81 S.Ct. 1343, 1348, 6 L.Ed.2d 306, 'Resort to litigation, rather than to Congress, for a change in the law is too often the temptation of government which has a longer purse and more endurance than any taxpayer.' (Concurring opinion.) And see Knetsch v. United States, 364 U.S. 361, 371, 81 S.Ct. 132, 137, 5 L.Ed.2d 128 (dissenting opinion).
63
Had I voted to grant this petition I would be in a position to vote to dismiss it as improvidently granted. But to give integrity to the 'rule of four' by which certiorari is granted2 the objectors must participate in a decision, as stated at length by the late Mr. Justice Harlan in Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 559—562, 77 S.Ct. 459, 478—480, 1 L.Ed.2d 515.
64
In that view I cannot say that on the facts of this case the loss did not have a 'proximate' relation to this corporate officer's business of keeping the enterprise afloat. I would affirm the Court of Appeals, 427 F.2d 279.
1
'§ 166. Bad debts.
'(a) General rule.—
'(1) Wholly worthless debts.—There shall be allowed as a deduction any debt which becomes worthless within the taxable year.
'(d) Nonbusiness debts.—
'(1) General rule.—In the case of a taxpayer other than a corporation—
'(A) subsections (a) and (c) shall not apply to any nonbusiness debt; and
'(B) where any nonbusiness debt becomes worthless within the taxable year, the loss resulting therefrom shall be considered a loss from the sale or exchange, during the taxable year, of a capital asset held for not more than 6 months.
'(2) Nonbusiness debt defined.—For purposes of paragraph (1), the term 'nonbusiness debt' means a debt other than—
'(A) a debt created or acquired (as the case may be) in connection with a trade or business of the taxpayer; or
'(B) a debt the loss from the worthlessness of which is incurred in the taxpayer's trade or business.'
2
Treas.Reg. on Income Tax:
'26 CFR § 1.166—5 Nonbusiness debts.
'(b) Nonbusiness debt defined. For purposes of section 166 and this section, a nonbusiness debt is any debt other than—
'(2) A debt the loss from the worthlessness of which is incurred in the taxpayer's trade or business. The question whether a debt is a nonbusiness debt is a question of fact in each particular case. .. . For purposes of subparagraph (2) of this paragraph, the character of the debt is to be determined by the relation which the loss resulting from the debt's becoming worthless bears to the trade or business of the taxpayer. If that relation is a proximate one in the conduct of the trade or business in which the taxpayer is engaged at the time the debt becomes worthless, the debt comes within the exception provided by that subparagraph. . . .'
3
Edna Generes, wife of Allen H. Generes, is a named party because joint income tax returns were filed by Mr. and Mrs. Generes for some of the tax years in question.
4
Compare the decision below and Weddle v. Commissioner of Internal Revenue, 325 F.2d 849 (CA2 1963), with Niblock v. Commissioner of Internal Revenue, 417 F.2d 1185 (CA7 1969). In Smith v. Commissioner, 55 T.C. 260, 268—271 (1970), reviewed without dissent, the Tax Court felt constrained, under the policy expressed in Golsen v. Commissioner, 54 T.C. 742 (1970), aff'd, 445 F.2d 985 (CA10 1971), to apply the Fifth Circuit test but stated that it agreed with the Seventh Circuit. Cases where the resolution of the issue was avoided include Stratmore v. United States, 420 F.2d 461 (CA3 1970), cert. denied, 398 U.S. 951, 90 S.Ct. 1870, 26 L.Ed.2d 291; Kelly v. Patterson, 331 F.2d 753, 757 (CA5 1964); and Gillespie v. Commissioner, 54 T.C. 1025, 1032 (1970). See, also, Millsap v. Commissioner of Internal Revenue, 387 F.2d 420 (CA8 1968). For commentary on the present case, see 3 Sw.U.L.Rev. 135 (1971); 2 Tex.Tech.L.Rev. 318 (1971); and 28 Wash. & Lee L.Rev. 161 (1971).
5
This difference in treatment between the loss on the direct loan and that on the indemnity is not explained. See, however, Whipple v. Commissioner of Internal Revenue, 373 U.S. 193, 83 S.Ct. 1168, 10 L.Ed.2d 288 (1963).
6
'A debt is proximately related to the taxpayer's trade or business when its creation was significantly motivated by the taxpayer's trade or business, and it is not rendered a non-business debt merely because there was a non-qualifying motivation as well, even though the non-qualifying motivation was the primary one.'
7
'You must, in short, determine whether Mr. Generes' dominant motivation in signing the indemnity agreement was to protect his salary and status as an employee or was to protect his investment in the Kelly-Generes Construction Co.
'Mr. Generes is entitled to prevail in this case only if he convinces you that the dominant motivating factor for his signing the indemnity agreement was to insure the receiving of his salary from the company. It is insufficient if the protection or insurance of his salary was only a significant secondary motivation for his signing the indemnity agreement. It must have been his dominant or most important reason for signing the indemnity agreement.'
8
'Even if the taxpayer demonstrates an independent trade or business of his own, care must be taken to distinguish bad debt losses arising from his own business and those actually arising from activities peculiar to an investor concerned with, and participating in, the conduct of the corporate business.' 373 U.S., at 202, 83 S.Ct., at 1174.
9
App. 67 and 59.
10
Rather than 1/3, as the taxpayer in his testimony suggested, App. 59, overlooking the pretax character of his salaried earnings.
1
See United States v. Skelly Oil Co., 394 U.S. 678, 690 691, 89 S.Ct. 1379, 1386—1387, 22 L.Ed.2d 642 (dissenting opinion).
2
The 'rule of four' is not in the statute. But in the hearings on the bill that became the 1925 Act, Mr. Justice Van Devanter, who headed the committee of the Court sponsoring the Act before the Congress, said:
'For instance, if there were five votes against granting the petition and four in favor of granting it, it would be granted, because we proceed upon the theory that when as many as four members of the court, and even three in some instances, are impressed with the propriety of our taking the case the petition should be granted. This is the uniform way in which petitions for writs of certiorari are considered.' Hearing on S. 2060 and S. 2061 before a Subcommittee of the Senate Committee on the Judiciary, 68th Cong., 1st Sess., 29 (1924).
And the Congress acted in reliance on that representation. See H.R.Rep.No.1075, 68th Cong., 2d Sess., 3.
The bill was originally drafted in 1922 by Chief Justice Taft with the assistance of Mr. Justice Day, Mr. Justice Van Devanter, and Mr. Justice McReynolds. Hearings on Jurisdiction of Circuit Courts of Appeals and United States Supreme Court befoe the House Commttee on the Judiciary, 67th Cong., 2d Sess. (1922). The Committee representing the Court in the 1924 Hearings were Mr. Justice Van Devanter, Mr. Justice McReynolds, and Mr. Justice Sutherland. Hearing on S. 2060 and S. 2061, supra, at 1.
| 1112
|
405 U.S. 156
92 S.Ct. 839
31 L.Ed.2d 110
Margaret PAPACHRISTOU et al., Petitioners,v.CITY OF JACKSONVILLE.
No. 70—5030.
Argued Dec. 8, 1971.
Decided Feb. 24, 1972.
Syllabus
The Jacksonville vagrancy ordinance, under which petitioners were convicted, is void for vagueness, in that it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' it encourages arbitrary and erratic arrests and convictions, it makes criminal activities that by modern standards are normally innocent, and it places almost unfettered discretion in the hands of the police. Pp. 161—171.
236 So.2d 141, reversed.
Samuel S. Jacobson, Jacksonville, Fla., for petitioners.
T. Edward Austin, Jr., Jacksonville, Fla., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case involves eight defendants who were convicted in a Florida municipal court of violating a Jacksonville, Florida, vagrancy ordinance.1 Their convictions, entailing fines and jail sentences (some of which were suspended), were affirmed by the Florida Circuit Court in a consolidated appeal, and their petition for certiorari was denied by the District Court of Appeal, 236 So.2d 141, on the authority of Johnson v. State, Fla., 202 So.2d 852.2 The case is here on a petition for certiorari, which we granted. 403 U.S. 917, 91 S.Ct. 2233, 29 L.Ed. 694. For reasons which will appear, we reverse.
2
At issue are five consolidated cases. Margaret Papachristou, Betty Calloway, Eugene Eddie Melton, and Leonard Johnson were all arrested early on a Sunday morning, and charged with vagrancy 'prowling by auto.'
3
Jimmy Lee Smith and Milton Henry were charged with vagrancy 'vagabonds.'
4
Henry Edward Heath and a codefendant were arrested for vagrancy—'loitering' and 'common thief.'
5
Thomas Owen Campbell was charged with vagrancy—'common thief.'
6
Hugh Brown was charged with vagrancy—'disorderly loitering on street' and 'disorderly conduct—resisting arrest with violence.'
7
The facts are stipulated. Papachristou and Calloway are white females. Melton and Johnson are black males. Papachristou was enrolled in a job-training program sponsored by the State Employment Service at Florida Junior College in Jacksonville. Calloway was a typing and shorthand teacher at a state mental institution located near Jacksonville. She was the owner of the automobile in which the four defendants were arrested. Melton was a Vietnam war veteran who had been released from the Navy after nine months in a veterans' hospital. On the date of his arrest he was a part-time computer helper while attending college as a full-time student in Jacksonville. Johnson was a tow-motor operator in a grocery chain warehouse and was a lifelong resident of Jacksonville.
8
At the time of their arrest the four of them were riding in Calloway's car on the main thoroughfare in Jacksonville. They had left a restaurant owned by Johnson's uncle where they had eaten and were on their way to a nightclub. The arresting officers denied that the racial mixture in the car played any part in the decision to make the arrest. The arrest, they said, was made because the defendants had stopped near a used-car lot which had been broken into several times. There was, however, no evidence of any breaking and entering on the night in question.
9
Of these four charged with 'prowling by auto' none had been previously arrested except Papachristou who had once been convicted of a municipal offense.
10
Jimmy Lee Smith and Milton Henry (who is not a petitioner) were arrested between 9 and 10 a.m. on a weekday in downtown Jacksonville, while waiting for a friend who was to lend them a car so they could apply for a job at a produce company. Smith was a part-time produce worker and part-time organizer for a Negro political group. He had a common-law wife and three children supported by him and his wife. He had been arrested several times but convicted only once. Smith's companion, Henry, was an 18-year-old high school student with no previous record of arrest.
11
This morning it was cold, and Smith had no jacket, so they went briefly into a dry cleaning shop to wait, but left when requested to do so. They thereafter walked back and forth two or three times over a two-block stretch looking for their friend. The store owners, who apparently were wary of Smith and his companion, summoned two police officers who searched the men and found neither had a weapon. But they were arrested because the officers said they had no identification and because the officers did not believe their story.
12
Heath and a codefendant were arrested for 'loitering' and for 'common thief.' Both were residents of Jacksonville, Heath having lived there all his life and being employed at an automobile body shop. Heath had previously been arrested but his codefendant had no arrest record. Heath and his companion were arrested when they drove up to a residence shared by Heath's girl friend and some other girls. Some police officers were already there in the process of arresting another man. When Heath and his companion started backing out of the driveway, the officers signaled to them to stop and asked them to get out of the car, which they did. Thereupon they and the automobile were searched. Although no contraband or incriminating evidence was found, they were both arrested, Heath being charged with being a 'common thief' because he was reputed to be a thief. The codefendant was charged with 'loitering' because he was standing in the driveway, an act which the officers admitted was done only at their command.
13
Campbell was arrested as he reached his home very early one morning and was charged with 'common thief.' He was stopped by officers because he was traveling at a high rate of speed, yet no speeding charge was placed against him.
14
Brown was arrested when he was observed leaving a downtown Jacksonville hotel by a police officer seated in a cruiser. The police testified he was reputed to be a thief, narcotics pusher, and generally opprobrious character. The officer called Brown over to the car, intending at that time to arrest him unless he had a good explanation for being on the street. Brown walked over to the police cruiser, as commanded, and the officer began to search him, apparently preparatory to placing him in the car. In the process of the search he came on two small packets which were later found to contain heroin. When the officer touched the pocket where the packets were, Brown began to resist. He was charged with 'disorderly loitering on street' and 'disorderly conduct—resisting arrest with violence.' While he was also charged with a narcotics violation, that charge was nolled.
15
Jacksonville's ordinance and Florida's statute were 'derived from early English law,' Johnson v. State, 202 So.2d, at 854, and employ 'archaic language' in their definitions of vagrants. Id., at 855. The history is an often-told tale. The break-up of feudal estates in England led to labor shortages which in turn resulted in the Statutes of Laborers,3 designed to stabilize the labor force by prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions. Later vagrancy laws became criminal aspects of the poor laws. The series of laws passed in England on the subject became increasingly severe.4 But 'the theory of the Elizabethan poor laws no longer fits the facts,' Edwards v. California, 314 U.S. 160, 174, 62 S.Ct. 164, 167, 86 L.Ed. 119. The conditions which spawned these laws may be gone, but the archaic classifications remain.
16
This ordinance is void for vagueness, both in the sense that it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.
17
Living under a rule of law entails various suppositions, one of which is that '(all persons) are entitled to be informed as to what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.
18
Lanzetta is one of a well-recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146; United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516. In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367; United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877.
19
The poor among us, the minorities, the average householder are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; Boyce Motor Lines, Inc. v. United States, supra.
20
The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent. 'Nightwalking' is one. Florida construes the ordinance not to make criminal one night's wandering, Johnson v. State, 202 So.2d, at 855, only the 'habitual' wanderer or, as the ordinance describes it, 'common night walkers.' We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result.
21
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that 'loafing' was a national virtue in his Commonwealth and that it should be encouraged. It is, however, a crime in Jacksonville.
22
'(P)ersons able to work but habitually living upon the earnings of their wives or minor children'—like habitually living 'without visible means of support'—might implicate unemployed pillars of the community who have married rich wives.
23
'(P)ersons able to work but habitually living upon the earnings of their wives or minor children' may also embrace unemployed people out of the labor market, by reason of a recession5 or disemployed by reason of technological or so-called structural displacements.
24
Persons 'wandering or strolling' from place to place have been extolled by Walt Whitman and Vachel Lindsay.6 The qualification 'without any lawful purpose or object' may be a trap for innocent acts. Persons 'neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served' would literally embrace many members of golf clubs and city clubs.
25
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be 'casing' a place for a holdup. Letting one's wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.
26
The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.
27
They are embedded in Walt Whitman's writings, especially in his 'Song of the Open Road.' They are reflected too, in the spirit of Vachel Lindsay's 'I Want to Go Wandering,' and by Henry D. Thoreau.7
28
This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress: 'It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.' United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563.
29
While that was a federal case, the due process implications are equally applicable to the States and to this vagrancy ordinance. Here the net cast is large, not to give the courts the power to pick and choose but to increase the arsenal of the police. In Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, the Court struck down a New York statute that made criminal the distribution of a magazine made up principally of items of criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and depraved crimes against the person. The infirmity the Court found was vagueness—the absence of 'ascertainable standards of guilt' (id., at 515, 68 S.Ct., at 670) in the sensitive First Amendment area.8 Mr. Justice Frankfurter dissented. But concerned as he, and many others,9 had been over the vagrancy laws, he added:
30
'Only a word needs to be said regarding Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. The case involved a New Jersey statute of the type that seek to control 'vagrancy.' These statutes are in a class by themselves, in view of the familiar abuses to which they are put. . . . Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense. In short, these 'vagrancy statutes' and laws against 'gangs' are not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided.' Id., at 540, 68 S.Ct., at 682.
31
Where the list of crimes is so all-in-clusive and generalized10 as the one in this ordinance, those convicted may be punished for no more than vindicating affronts to police authority:
32
'The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancy-type proceedings is the procedural laxity which permits 'conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution.' Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 631.11
33
Another aspect of the ordinance's vagueness appears when we focus, not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law as offering 'punishment by analogy.' Id., at 609. Such crimes, though long common in Russia,12 are not compatible with our constitutional system. We allow our police to make arrests only on 'probable cause,'13 a Fourth and Fourteenth Amendment standard applicable to the States14 as well as to the Federal Government. Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system, even when the arrest is for past criminality. Future criminality, however, is the common justification for the presence of vagrancy statutes. See Foote, supra, at 625. Florida has, indeed, construed her vagrancy statute 'as necessary regulations,' inter alia, 'to deter vagabondage and prevent crimes.' Johnson v. State, Fla., 202 So.2d 852; Smith v. State, Fla., 239 So.2d 250, 251.
34
A direction by a legislature to the police to arrest all 'suspicious' persons15 would not pass constitutional muster. A vagrancy prosecution may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest. People v. Moss, 309 N.Y. 429, 131 N.E.2d 717. But as Chief Justice Hewart said in Frederick Dean, 18 Crim.App. 133, 134 (1924):
35
'It would be in the highest degree unfortunate if in any part of the country those who are responsible for setting in motion the criminal law should entertain, connive at or coquette with the idea that in a case where there is not enough evidence to charge the prisoner with an attempt to commit a crime, the prosecution may, nevertheless, on such insufficient evidence, succeed in obtaining and upholding a conviction under the Vagrancy Act, 1824.'
36
Those generally implicated by the imprecise terms of the ordinance—poor people, nonconformists, dissenters, idlers—may be required to comport themselves according to the life style deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.' Thornhill v. Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 742, 84 L.Ed. 1093. It results in a regime in which the poor and the unpopular are permitted to 'stand on a public sidewalk . . . only at the whim of any police officer.' Shuttlesworth v. Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 213, 15 L.Ed.2d 176. Under this ordinance,
37
'(I)f some carefree type of fellow is satisfied to work just so much, and no more, as will pay for one square meal, some wine, and a flophouse daily, but a court thinks this kind of living subhuman, the fellow can be forced to raise his sights or go to jail as a vagrant.' Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 226 (1967).
38
A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards that crime is being nipped in the bud—is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together.
39
The Jacksonville ordinance cannot be squared with our constitutional standards and is plainly unconstitutional.
40
Reversed.
41
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
Jacksonville Ordinance Code § 26—57 provided at the time of these arrests and convictions as follows:
'Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be
2
Florida also has a vagrancy statute, Fla.Stat. § 856.02 (1965), F.S.A. which reads quite closely on the Jacksonville ordinance. Jacksonville Ordinance Code § 27—43 makes the commission of any Florida misdemeanor a Class D offense against the City of Jacksonville. In 1971 Florida made minor amendments to its statute. See Laws 1971, c. 71—132.
Section 856.02 was declared unconstitutionally overbroad in Lazarus v. Faircloth, D.C., 301 F.Supp. 266. The court said: 'All loitering, loafing, or idling on the streets and highways of a city, even though habitual, is not necessarily detrimental to the public welfare nor is it under all circumstances an interference with travel upon them. It may be and often is entirely innocuous. The statute draws no distinction between conduct that is calculated to harm and that which is essentially innocent.' Id., at 272, quoting Hawaii v. Anduha, 48 F.2d 171, 172. See also Smith v. Florida, 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 122.
The Florida disorderly conduct ordinance, covering 'loitering about any hotel, block, barroom, dramshop, gambling house or disorderly house, or wandering about the streets either by night or by day without any known lawful means of support, or without being able to give a satisfactory account of themselves' has also been held void for 'excessive broadness and vagueness' by the Florida Supreme Court, Headley v. Selkowitz. 171 So.2d 368, 370.
deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.'
Class D offenses at the time of these arrests and convictions were punishable by 90 days' imprisonment, $500 fine, or both. Jacksonville Ordinance Code § 1—8 (1965). The maximum punishment has since been reduced to 75 days or $450. § 304.101 (1971). We are advised that that downward revision was made to avoid federal righrt-to-counsel decisions. The Fifth Circuit case extending right to counsel in misdemeanors where a fine of $500 or 90 days' imprisonment could be imposed is Harvey v. Mississippi, 340 F.2d 263 (1965).
We are advised that at present the Jacksonville vagrancy ordinance is § 330.107 and identical with the earlier one except that 'juggling' has been eliminated.
3
23 Edw. 3, c. 1 (1349); 25 Edw. 3, c. 1 (1350).
4
See 3 J. Stephen, History of the Criminal Law of England 203—206, 266—275; 4 W. Blackstone, Commentaries*169.
Ledwith v. Roberts, (1937) 1 K.B. 232, 271, gives the following summary:
'The early Vagrancy Acts came into being under peculiar conditions utterly different to those of the present time. From the time of the Black Death in the middle of the 14th century till the middle of the 17th century, and indeed, although in diminishing degree, right down to the reform of the Poor Law in the first half of the 19th century, the roads of England were crowded with masterless men and their families, who had lost their former employment through a variety of causes, had no means of livelihood and had taken to a vagrant life. The main causes were the gradual decay of the feudal system under which the labouring classes had been anchored to the soil, the economic slackening of the legal compulsion to work for fixed wages, the break up of the monasteries in the reign of Henry VIII, and the consequent disappearance of the religious orders which had previously administered a kind of 'public assistance' in the form of lodging, food and alms; and, lastly, the economic changes brought about by the Enclosure Acts. Some of these people were honest labourers who had fallen upon evil days, others were the 'wild rogues,' so common in Elizabethan times and literature, who had been born to a life of idleness and had no intention of following any other. It was they and their confederates who formed themselves into the notorious 'brotherhood of beggars' which flourished in the 16th and 17th centuries. They were a definite and serious menace to the community and it was chiefly against them and their kind that the harsher provisions of the vagrancy laws of the period were directed.'
And see Sherry, Vagrants, Rogues and Vagabonds—Old Concepts in Need of Revision, 48 Calif.L.Rev. 557, 560—561 (1960); Note, The Vagrancy Concept Reconsidered: Problems and Abuses of Status Criminality, 37 N.Y.U.L.Rev. 102 (1962).
5
In Edwards v. California, 314 U.S. 160, 177, 62 S.Ct. 164, 168, 86 L.Ed. 119, in referring to City of New York v. Miln, 11 Pet. 102, 142, 9 L.Ed. 648, decided in 1837, we said: 'Whatever may have been the notion then prevailing, we do not think that it will now be seriously contended that because a person is without employment and without funds he constitutes a 'moral pestilence.' Poverty and immorality are not synonymous.'
6
And see Reich, Police Questioning of Law Abiding Citizens, 75 Yale L.J. 1161, 1172 (1966): 'If I choose to take an evening walk to see if Andromeda has come up on schedule, I think I am entitled to look for the distant light of Almach and Mirach without finding myself staring into the blinding beam of a police flashlight.'
7
'I have met with but one or two persons in the course of my life who understood the art of Walking, that is, of taking walks,—who had a genius, so to speak, for sauntering: which word is beautifully derived 'from idle people who roved about the country, in the Middle Ages, and asked charity, under pretence of going a la Sainte Terre,' to the Holy Land, till the children exclaimed, 'There goes a Sainte Terrer,' a Saunterer, a Holy-Lander. They who never go to the Holy Land in their walks, as they pretend, are indeed mere idlers and vagabonds; but they who do go there are saunterers in the good sense, such as I mean. Some, however, would derive the word from sans terre, without land or a home, which, therefore, in the good sense, will mean, having no particular home, but equally at home everywhere. For this is the secret of successful sauntering. He who sits still in a house all the time may be the greatest vagrant of all; but the saunterer, in the good sense, is no more vagrant than the meandering river, which is all the while sedulously seeking the shortest course to the sea. But I prefer the first, which, indeed, is the most probable derivation. For every walk is a sort of crusade, preached by some Peter the Hermit in us, to go forth and reconquer this Holy Land from the hands of the Infidels.' Excursions 251—252 (1893).
8
For a discussion of the void-for-vagueness doctrine in the area of fundamental rights see Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 104 et seq.; Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 224 et seq. (1967).
9
See Edelman v. California, 344 U.S. 357, 362, 73 S.Ct. 293, 296, 97 L.Ed. 387 (Black, J., dissenting); Hicks v. District of Columbia, 383 U.S. 252, 254, 86 S.Ct. 798, 799, 15 L.Ed.2d 744 (Douglas, J., dissenting); District of Columbia v. Hunt, 82 U.S.App.D.C. 159, 163 F.2d 833 (Judge Stephens writing for a majority of the Court of Appeals); Judge Rudkin for the court in Hawaii v. Anduha, 48 F.2d 171.
The opposing views are numerous: Ex parte Branch, 234 Mo. 466, 137 S.W. 886; H.R.Rep. No. 1248, 77th Cong., 1st Sess., 2; Perkins, The Vagrancy Concept, 9 Hastings, L.J. 237 (1958); People v. Craig, 152 Cal. 42, 91 P. 997.
10
President Roosevelt, in vetoing a vagrancy law for the District of Columbia, said:
'The bill contains many provisions that constitute an improvement
over existing law. Unfortunately, however, there are two provisions in the bill that appear objectionable.
'Section 1 of the bill contains a number of clauses defining a 'vagrant.' Clause 6 of this section would include within that category 'any able-bodied person who lives in idleness upon the wages, earnings, or property of any person having no legal obligation to support him.' This definition is so broadly and loosely drawn that in many cases it would make a vagrant of an adult daughter or son of a well-to-do family who, though amply provided for and not guilty of any improper or unlawful conduct, has no occupation and is dependent upon parental support.
'Under clause 9 of said section 'any person leading an idle life . . . and not giving a good account of himself' would incur guilt and liability to punishment unless he could prove, as required by section 2, that he has lawful means of support realized from a lawful occupation or source. What constitutes 'leading an idle life' and 'not giving a good account of oneself' is not indicated by the statute but is left to the determination in the first place of a police officer and eventually of a judge of the police court, subject to further review in proper cases. While this phraseology may be suitable for general purposes as a definition of a vagrant, it does not conform with accepted standards of legislative practice as a definition of a criminal offense. I am not willing to agree that a person without lawful means of support, temporarily or otherwise, should be subject to the risk of arrest and punishment under provisions as indefinite and uncertain in their meaning and application as those employed in this clause.
'It would hardly be a satisfactory answer to say that the sound judgment and decisions of the police and prosecuting officers must be trusted to invoke the law only in proper cases. The law itself should be so drawn as not to make it applicable to cases which obviously should not be comprised within its terms.' H.R.Doc. No. 392, 77th Cong., 1st Sess.
11
Thus, 'prowling by auto,' which formed the basis for the vagrancy arrests and convictions of four of the petitioners herein, is not even listed in the ordinance as a crime. But see Hanks v. State, 195 So.2d 49, 51, in which the Florida District Court of Appeal construed 'wandering or strolling from place to place' as including travel by automobile.
12
J. Hazard, The Soviet Legal System 133 (1962):
'The 1922 code was a step in the direction of precision in definition of crime, but it was not a complete departure from the concept of punishment in accordance with the dictates of the social consciousness of the judge. Laying hold of an old tsarist code provision that had been in effect from 1864 to 1903 known by the term 'analogy,' the Soviet draftsmen inserted an article permitting a judge to consider the social danger of an individual even when he had committed no act defined as a crime in the specialized part of the code. He was to be guided by analogizing the dangerous act to some act defined as crime, but at the outset the analogies were not always apparent, as when a husband was executed for the sadistic murder of a wife, followed by dissection of her torso and shipment in a trunk to a remote railway station, the court arguing that the crime was analogous to banditry. At the time of this decision the code permitted the death penalty for banditry but not for murder without political motives or very serious social consequences.'
'On the traditionally important subject of criminal law, Algeria is rejecting the flexibility introduced in the Soviet criminal code by the 'analogy' principle, as have the East-Central European and black African states.' Hazard, The Residue of Marxist Influence in Algeria, 9 Colum.J. of Transnat'l L. 194, 224 (1970).
13
Johnson v. United States, 333 U.S. 10, 15—17, 68 S.Ct. 367, 369—371, 92 L.Ed. 436.
14
Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306.
15
On arrests for investigation, see Secret Detention by the Chicago Police, A Report by the American Civil Liberties Union (1959). The table below contains nationwide data on arrests for 'vagrancy' and for 'suspicion' in the three-year period 1968—1970.
Combined
Vagrancy Suspicion Offenses
.........Total Rate Total Rate Total Rate
.........rptd. per rptd. per rptd. per
........arrests 100,000 arrests 100,000 arrests 100,000
Year*
1968...........99,147 68.2 89,986 61.9 189,133 130.1
1969..........106,269 73.9 88,265 61.4 194,534 135.3
1970..........101,093 66.7 70,173 46.3 171,266 113.0
3-year
averages..102,170 69.6 82,808 56.5 184,978
126.1* Reporting agencies represent population of: 1968
145,306,000; 1969—143,815,000; 1970—151,604,000.
Source: FBI Uniform Crime Reports, 1968—1970.
| 34
|
405 U.S. 150
92 S.Ct. 763
31 L.Ed.2d 104
John GIGLIO, Petitioner,v.UNITED STATES.
No. 70—29.
Argued Oct. 12, 1971.
Decided Feb. 24, 1972.
Syllabus
Petitioner filed a motion for a new trial on the basis of newly discovered evidence contending that the Government failed to disclose an alleged promise of leniency made to its key witness in return for his testimony. At a hearing on this motion, the Assistant United States Attorney who presented the case to the grand jury admitted that he promised the witness that he would not be prosecuted if he testified before the grand jury and at trial. The Assistant who tried the case was unaware of the promise. Held: Neither the Assistant's lack of authority nor his failure to inform his superiors and associates is controlling, and the prosecution's duty to present all material evidence to the jury was not fulfilled and constitutes a violation of due process requiring a new trial. Pp. 153—155.
Reversed and remanded.
James M. LaRossa, New York City, for petitioner.
Harry R. Sachse, New Orleans, La., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Petitioner was convicted of passing forged money orders and sentenced to five years' imprisonment. While appeal was pending in the Court of Appeals, defense counsel discovered new evidence indicating that the Government had failed to disclose an alleged promise made to its key witness that he would not be prosecuted if he testified for the Government. We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
2
The controversy in this case centers around the testimony of Robert Taliento, petitioner's alleged coconspirator in the offense and the only witness linking petitioner with the crime. The Government's evidence at trial showed that in June 1966 officials at the Manufacturers Hanover Trust Co. discovered that Taliento, as teller at the bank, had cashed several forged money orders. Upon questioning by FBI agents, he confessed supplying petitioner with one of the bank's customer signature cards used by Giglio to forge $2,300 in money orders; Taliento then processed these money orders through the regular channels of the bank. Taliento related this story to the grand jury and petitioner was indicted; thereafter, he was named as a coconspirator with petitioner but was not indicted.
3
Trial commenced two years after indictment. Taliento testified, identifying petitioner as the instigator of the scheme. Defense counsel vigorously cross-examined, seeking to discredit his testimony by revealing possible agreements or arrangements for prosecutorial leniency:
4
'(Counsel.) Did anybody tell you at any time that if you implicated somebody else in this case that you yourself would not be prosecuted?
5
'(Taliento.) Nobody told me I wouldn't be prosecuted.
6
'Q. They told you you might not be prosecuted?
7
'A. I believe I still could be prosecuted.
8
. . . . . .
9
'Q. Were you ever arrested in this case or charged with anything in connection with these money orders that you testified to?
10
'A. Not at that particular time.
11
'Q. To this date, have you been charged with any crime?
12
'A. Not that I know of, unless they are still going to prosecute.'
13
In summation, the Government attorney stated, '(Taliento) received no promises that he would not be indicted.'
14
The issue now before the Court arose on petitioner's motion for new trial based on newly discovered evidence. An affidavit filed by the Government as part of its opposition to a new trial confirms petitioner's claim that a promise was made to Taliento by one assistant, DiPaola,1 that if he testified before the grand jury and at trial he would not be prosecuted.2 DiPaola presented the Government's case to the grand jury but did not try the case in the District Court, and Golden, the assistant who took over the case for trial, filed an affidavit stating that DiPaola assured him before the trial that no promises of immunity had been made to Taliento.3 The United States Attorney, Hoey, filed an affidavit stating that he had personally consulted with Taliento and his attorney shortly before trial to emphasize that Taliento would definitely be prosecuted if he did not testify and that if he did testify he would be obliged to rely on the 'good judgment and conscience of the Government' as to whether he would be prosecuted.4
15
The District Court did not undertake to resolve the apparent conflict between the two Assistant United States Attorneys, DiPaola and Golden, but proceeded on the theory that even if a promise had been made by DiPaola it was not authorized and its disclosure to the jury would not have affected its verdict. We need not concern ourselves with the differing versions of the events as described by the two assistants in their affidavits. The heart of the matter is that one Assistant United States Attorney the first one who dealt with Taliento—now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government.
16
As long ago as Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary demands of justice.' This was reaffirmed in Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942). In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), we said, '(t)he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.' Id., at 269, 79 S.Ct., at 1177. Thereafter Brady v. Maryland, 373 U.S., at 87, 83 S.Ct., at 1197, held that suppression of material evidence justifies a new trial 'irrespective of the good faith or bad faith of the prosecution.' See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and the Defense Function § 3.11(a). When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule. Napue, supra, at 269, 79 S.Ct., at 1177. We do not, however, automatically require a new trial whenever 'a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . ..' United States v. Keogh, 391 F.2d 138, 148 (CA2 1968). A finding of materiality of the evidence is required under Brady, supra, at 87, 83 S.Ct., at 1196, 10 L.Ed.2d 215. A new trial is required if 'the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury . . .' Napue, supra, at 271, 79 S.Ct., at 1178.
17
In the circumstances shown by this record, neither DiPaola's authority nor his failure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. See Restatement (Second) of Agency § 272. See also American Bar Association, Project on Standards for Criminal Justice, Discovery and Procedure Before Trial § 2.1(d). To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.
18
Here the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.
19
For these reasons, the due process requirements enunciated in Napue and the other cases cited earlier require a new trial, and the judgment of conviction is therefore reversed and the case is remanded for further proceedings consistent with this opinion.
20
Reversed and remanded.
21
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
During oral argument in this Court it was stated that DiPaola was on the staff of the United States Attorney when he made the affidavit in 1969 and remained on that staff until recently.
2
DiPaola's affidavit reads, in part, as follows:
'It was agreed that if ROBERT EDWARD TALIENTO would testify before the Grand Jury as a witness for the Government, . . . he would not be . . . indicted. . . . It was further agreed and understood that he, ROBERT EDWARD TALIENTO, would sign a Waiver of Immunity from prosecution before the Grand Jury, and that if he eventually testified as a witness for the Government at the trial of the defendant, JOHN GIGLIO, he would not be prosecuted.'
3
Golden's affidavit reads, in part, as follows:
'Mr. DiPaola . . . advised that Mr. Taliento had not been granted immunity but that he had not indicted him because Robert Taliento was very young at the time of the alleged occurrence and obviously had been overreached by the defendant Giglio.'
4
The Hoey affidavit, standing alone, contains at least an implication that the Government would reward the cooperation of the witness, and hence tends to confirm rather than refute the existence of some understanding for leniency.
| 34
|
405 U.S. 208
92 S.Ct. 788
31 L.Ed.2d 151
Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Appellant,v.Radie WRIGHT et al. Radie WRIGHT et al., Appellants, v. Elliot L. RICHARDSON et al.
Nos. 70—161, 70—5211.
Argued Jan. 13, 1972.
Decided Feb. 24, 1972.
Rehearings Denied March 27, 1972.
See 405 U.S. 1033, 92 S.Ct. 1274, 1296.
L. Patrick Gray, III, Washington, D.C., for Elliot L. Richardson.
Robert N. Sayler, Washington, D.C., for Radie Wright and others.
PER CURIAM.
1
We noted probable jurisdiction of these appeals, 404 U.S. 819, 92 S.Ct. 51, 30 L.Ed.2d 47 (1971), to consider the applicability of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), to the suspension and termination of disability benefit payments pursuant to § 225 of the Social Security Act, 70 Stat. 817, 42 U.S.C. § 425, and implementing regulations of the Department of Health, Education, and Welfare. Shortly before oral argument, we were advised that the Secretary had adopted new regulations, effective December 27, 1971, governing the procedures to be followed by the Social Security Administration in determing whether to suspend or terminate disability benefits. These procedures include the requirement that a recipient of benefits be given notice of a proposed suspension and the reasons therefor, plus an opportunity to submit rebuttal evidence. In light of that development, we believe that the appropriate course is to withhold judicial action pending reprocessing, under the new regulations, of the determinations here in dispute. If that process results in a determination of entitlements to disability benefits, there will be no need to consider the constitutional claim that claimants are entitled to an opportunity to make an oral presentation. In the context of a comprehensive complex administrative program, the administrative process must have a reasonable opportunity to evolve procedures to meet needs as they arise. Accordingly, we vacate the judgment of the District Court for the District of Columbia, Wright v. Finch, 321 F.Supp. 383 (1971), with direction to that court to remand the cause to the Secretary and to retain jurisdiction for such further proceedings, if any, as may be necessary upon completion of the administrative procedure.
2
Vacated and remanded.
3
Mr. Justice DOUGLAS, dissenting.
4
While I join Mr. Justice BRENNAN who reaches the merits, I add a word about the unwisdom of the policy pursued by the Court.
5
A three-judge district court held § 225 of the Social Security Act, 42 U.S.C. § 425, unconstitutional, insofar as it purported to authorize the Secretary of Health, Education, and Welfare to suspend the payment of social security disability benefits without giving prior notice and 'an opportunity to participate' to the disability beneficiary. 321 F.Supp. 383, 386. The court remanded the cause to the Secretary for the formulation of new procedures consistent with its opinion. Judge Matthews, troubled by an implication in the majority's opinion that participation merely by way of written submissions might satisfy the majority's notions of due process, dissented 'from so much of the opinion as seems to suggest that the procedural requirements of due process may be satisfied with something less than the 'opportunity' (to participate) specified in (Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287).' Id., at 388. We noted probable jurisdiction in these cross-appeals to evaluate the opinion below in light of Goldberg. 404 U.S. 819, 92 S.Ct. 51, 30 L.Ed.2d 47.
6
Now, however, it is suggested that the Secretary has so far complied with the instructions of the District Court to formulate new procedures that we should remand the cases to the District Court for further proceedings in light of these new requirements. Such a course, I submit, would be a perversion of the philosophy of due process that we expressed in Goldberg.
7
Judge Matthews, below, captured the essence of Goldberg in her brief partial dissent:
8
'In Goldberg the Supreme Court held that a welfare recipient, in addition to timely and adequate notice detailing the reasons for a proposed termination of benefits, must have 'an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally." 321 F.Supp., at 387—388.
9
It cannot seriously be argued that the Secretary's 'new rules' comport with Goldberg. They may cure the notice defect, but they make no provision whatsoever for the presentation of oral testimony or the confrontation of witnesses.1 We noted probable jurisdiction, I thought, to determine if the difference between 'welfare' payments and 'disability' payments is sufficient to say that one's Fifth Amendment right to be heard may be satisfied by an opportunity to make written submissions in the latter case, although not in the former.2 We heard oral argument on this basis. Because of the inadequacy of the new rules, in light of Goldberg, the question will remain regardless of the outcome of a remand.
10
I think it unseemly, needlessly to shuttle any litigant, especially an indigent, back and forth from court to court, hoping that his exhaustion of newly created remedies will somehow or other make his problem disappear and relieve us of an obligation. No concession promising justice to the claimants has been made. The issue of due process was properly raised and is here for decision; and all the requirements of case or controversy within the meaning of Art. III of the Constitution have been satisfied.
11
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
12
I respectfully dissent. The Court justifies today's sua sponte action on the ground that if reprocessing under the Secretary's new regulations 'results in a determination of entitlement to disability benefits, there will be no need to consider the constitutional claim that claimants are entitled to an opportunity to make an oral presentation.' (Emphasis by the Court.) Avoidance of unnecessary constitutional decisions is certainly a preferred practice when appropriate. But that course is inappropriate, indeed irresponsible, in this instance. We will not avoid the necessity of deciding the important constitutional question presented by claimants even should they prevail upon the Secretary's reconsideration. The question is being pressed all over the country. The Secretary's brief lists no less than seven cases presenting it with respect to disability benefits and 10 cases presenting it with respect to nondisability benefits.1
13
The Secretary's new regulations permit discontinuance of disability benefits without affording beneficiaries procedural due process either in the form mandated by Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.id 287 (1970), or in the form mandated by the District Court, 321 F.Supp. 383 (DC 1971). The regulations require only that the beneficiary be informed of the proposed suspension or termination and the information upon which it is based and be given an opportunity to submit a written response before benefits are cut off.2 This procedure does not afford the beneficiary, as Goldberg requires for welfare and old-age recipients, an evidentiary hearing at which he may personally appear to offer oral evidence and confront and cross-examine adverse witnesses. Nor does the procedure satisfy the requirements of due process as determined by the District Court. That court held that the beneficiary must be given not only notice but also, before he responds, a 'reasonable opportunity to examine the documentary evidence' upon which the Secretary relies and, in case of conflict in the evidence, a decision by an impartial decision-maker. The court said, however, that an evidentiary hearing and opportunity to confront adverse witnesses were not necessary, although 'a hearing could be held' if the beneficiary 'submitted some evidence that contradicts that possessed by the Administration.' 321 F.Supp., at 387. Thus, under both Goldberg and the District Court's decision, the omissions in the Secretary's new regulations are fatal to the constitutional adequacy of the procedures. Because we may imminently be confronted with another case presenting the question, and because its resolution is vitally essential to the administration of an important Government program, today's action in avoiding decision of the constitutional question is not a responsible exercise of that practice. We gain a brief respite for ourselves while the Secretary, state agencies, and beneficiaries continue confused and uncertain. Moreover, the question has been thoroughly and ably argued and briefed on both sides, and we have the benefit of thoughtful and well-considered majority and dissenting opinions in the District Court. Today's disposition results in an unjustified waste, not only of our own all too sparse time and energies, but also of the time and energies of the three judges of the District Court who must again suspend their own heavy calendars to assemble for what can only be an empty exercise. I cannot join in the Court's abdication of our responsibility to decide this case.
14
Both the beneficiaries and the Secretary appeal from the District Court's judgment. The beneficiaries contend that the District Court erred in not holding that the procedure must afford an evidentiary hearing as in Goldberg. The Secretary contends that procedural due process requirements are satisfied by the 'paper' hearing afforded by his new regulations. I agree with the beneficiaries and would therefore vacate the judgment of the District Court and remand with direction to enter a new judgment requiring the procedures held in Goldberg to be requisite with respect to discontinuance of welfare and old-age benefits. See Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307 (1970).
15
Section 225 of the Social Security Act, 42 U.S.C. § 425, provides that '(i)f the Secretary, on the basis of information obtained by or submitted to him, believes that an individual entitled to benefits . . . may have ceased to be under a disability, the Secretary may suspend the payment of benefits . . . until it is determined . . . whether or not such individual's disability has ceased or until the Secretary believes that such disability has not ceased.' The District Court held the statute unconstitutional on the ground that '(t)he exparte suspension power granted to the Secretary by section 225 is summary adjudication that is inconsistent with the requirements of due process.' 321 F.Supp., at 386.
16
The Secretary does not challenge that holding in this Court as applied to his now-discarded procedures. Rather, the Secretary insists that the 'hearing on paper' afforded to disability beneficiaries by his new regulations is constitutionally sufficient. The Secretary does not contend that disability beneficiaries differ from welfare and old-age recipients with respect to their entitlement to benefits or the drastic consequences that may befall them if their benefits are erroneously discontinued. The only distinctions urged are that the evidence ordinarily adduced to support suspension and termination of disability benefits differs markedly from that relied upon to cut off welfare benefits and that an undue monetary and administrative burden would result if prior hearings were required. Neither distinction withstands analysis.
17
First. The Secretary points out that the decision to discontinue disability benefits is generally made upon the basis of wage reports from employers and reports of medical examinations. This evidence, in the Secretary's view, 'is highly reliable and not of a type that draws into issue veracity or credibility.' Brief 10. 'The basis upon which disability benefits are suspended or terminated thus differs significantly from that upon which the terminations of welfare benefits involved in (Goldberg) rested.' Id., at 25. Hence, the Secretary concludes, while procedural due process requires a pre-termination evidentiary hearing for welfare and old-age recipients, for disability beneficiaries a written presentation will suffice.
18
The Secretary seriously misconstrues the holding in Goldberg. The Court there said that 'the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits.' 397 U.S., at 267, 90 S.Ct., at 1020. The Secretary does not deny that due process safeguards fulfill the same function in disability cases. In Goldberg, the Court held that welfare recipients were entitled to hearings because decisions to discontinue benefits were challenged 'as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.' Id., at 268, 90 S.Ct., at 1020. The Court expressly put aside consideration of situations 'where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues.' Id., at 268 n. 15, 90 S.Ct., at 1020. However reliable the evidence upon which a disability determination is normally based, and however rarely it involves questions of credibility and veracity, it is plain that, as with welfare and old-age determinations, the determination that an individual is or is not 'disabled' will frequently depend upon the resolution of factual issues and the application of legal rules to the facts found. It is precisely for that reason that a hearing must be held.
19
The Secretary, of course, recognizes that disability determinations often involve factual disputes. His new procedures, as well as the post-termination procedures already available, presumably derive from that premise. The beneficiary may file a written response presenting rebuttal evidence before his benefits are suspended or terminated; after termination, he is entitled to reconsideration, based upon written submissions, and then a de novo evidentiary hearing, administrative appellate review of the hearing examiner's decision, and, finally, judicial review. Nevertheless, the Secretary insists that the decision to discontinue disability benefits differs from the decision to discontinue welfare benefits because the latter 'may' be based upon 'personal and social situations brought to the attention of the authorities by tips, rumor or gossip.' Brief 25. Yet it is irrelevant how the matter is 'brought to the attention of the authorities,' whether 'by tips, rumor or gossip' or otherwise. The question in a welfare determination, as in a disability determination, is simply whether the recipient continues to be eligible for benefits. Nor does the Secretary make clear the relevance of 'personal and social situations.' The Secretary does say that '(O)ne of the recipients in (Goldberg), for example, had been cut off because of her alleged failure to cooperate with welfare authorities in suing her estranged husband; payments to another were terminated because of alleged drug addiction.' Ibid. The second recipient, however, was cut off because 'he refused to accept counseling and rehabilitation.' 397 U.S., at 256 n. 2, 90 S.Ct., at 1014. Consequently, both recipients lost their benefits for refusing to cooperate with the authorities. That, however, is no distinction from disability cases, for disability benefits will also be discontinued if the beneficiary refuses to cooperate.
20
To support the assertion that pretermination hearings are required in welfare cases because 'credibility and veracity' are in issue, the Secretary focuses upon certain language in Goldberg. He first quotes the statement that '(p) articularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision.' Id., at 269, 90 S.Ct., at 1021. Apart from the obvious fact that that was not an absolute statement intended to limit hearings solely to those instances, it was but one of three reasons given to demonstrate that written submissions are insufficient. The Court also said that written submissions 'are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance' and that they 'do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important.' Ibid. Significantly, the Secretary does not deny that those reasons are as fully applicable to disability beneficiaries as to welfare recipients.
21
The Secretary also relies upon the statement, quoted in Goldberg from Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959), that:
22
'(W)here governmental action seriously injuries an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers of persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination.' 397 U.S., at 270, 90 S.Ct., at 1021 (emphasis added).
23
Again, however, the statement hardly indicates that confrontation and cross-examination are available to welfare recipients only because 'credibility and veracity' are in issue. An individual has those rights because facts are in issue, as the statement makes clear. Moreover, the Court introduced its quotation of that statement in Goldberg by pointing out that '(i)n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.' Id., at 269, 90 S.Ct., at 1021 (emphasis added). And, even assuming the validity of the novel doctrine that confrontation and cross-examination are available solely for the purpose of testing 'credibility and veracity,' that would not justify depriving the disability beneficiary of 'an effective opportunity to defend . . . by presenting his own arguments and evidence orally.' Id., at 268, 90 S.Ct., at 1020. Finally, I see no reason to suppose, nor does the Secretary suggest any, that the 'credibility and veracity' of doctors and employers can never be in issue in a disability case. Indeed, the Secretary's new regulations indicate that they may. See Disability Ins. State Manual § 353.
24
The premise of the Secretary's entire argument is that disability benefits are discontinued 'only on the basis of an objective consideration—that the previous disability has ceased and that conclusion rests on reliable information.' Brief 26. Whether or not the information is reliable, the premise is questionable. The Secretary himself emphasizes that disability determinations require 'specialized medical and vocational evaluations' and not simply the acquisition of 'medical and other relevant data.' Id., at 28. In any event, there are three grounds, pertinent here, upon which disability can be found to have ceased. None can fairly be characterized by the term 'objective.' First, cessation of disability may be found if the beneficiary refuses to cooperate with the social security authorities. 20 CFR § 404.1539(c); see Claims Manual § 6706(e). That judgment, of course, could be wholly subjective, as the Secretary points out with reference to welfare cases.
25
Second, cessation may be found if the beneficiary 'has regained his ability to engage in substantial gainful activity . . . as demonstrated by work activity.' 20 CFR § 404.1539(a)(2); see Claims Manual § 6706(a). That decision does not, as the Secretary appears to assert, rest solely 'upon regular reports made by (the beneficiary's) employers to the government.' Brief 25. Rather, 'the work performed' by the beneficiary 'may demonstrate' that he is no longer disabled, but only if it 'is both substantial and gainful.' 'Substantial work activity involves the performance of significant physical or mental duties, or a combination of both, productive in nature.' A finding of 'substantial gainful activity' depends upon the nature of the work performed, the adequacy of the performance, and th special conditions, if any, of the employment, as well as an evaluation of the time spent and the amount of money earned by the beneficiary. 20 CFR §§ 404.1532—404.1534.
26
Third, cessation of disability may be found if the evidence establishes medical recovery. 20 CFR § 404.1539(a)(1); see Claims Manual § 6706(c). That decision, of course, will be based upon medical examinations, but it does not follow that it is necessarily 'objective.' 'The function of deciding whether or not an individual is under a disability is the responsibility of the Secretary,' and a medical conclusion that the beneficiary is or is not disabled 'shall not be determinative of the question.' 20 CFR § 404.1526. The Secretary's decision that a beneficiary's impairment 'is no longer of such severity as to prevent him from engaging in any substantial gainful activity,' 20 CFR § 404.1539(a)(1), obviously depends upon more than an 'objective' medical report, for the application of the legal standard necessarily requires the exercise of judgment. And, of course, multiple conflicting medical reports are 'not uncommon.' Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420, 1426, 28 L.Ed.2d 842 (1971).
27
The Secretary's claim for 'objectivity' is even less persuasive in the situation where a beneficiary's benefits are suspended. 'Benefits are suspended whn information is received which indicates that the individual may no longer be under a disability.' Claims Manual § 6708. Here, by definition, there has been no determination that disability has ceased.
28
Finally, the post-termination reversal rate for disability determinations makes the asserted 'objectivity' even more doubtful. According to the Secretary's figures for 1971, 37% of the requests for reconsideration resulted in reversal of the determination that disability had ceased. Moreover, 55% of the beneficiaries who exercised their right to a hearing won reversal. While, as the Secretary says, these figures may attest to the fairness of the system, Richardson v. Perales, supra, at 410, 91 S.Ct., at 1432, they also appear to confirm that the Court's reference in Goldberg to 'the welfare bureaucracy's difficulties in reaching correct decisions on eligibility,' 397 U.S., at 264 n. 12, 90 S.Ct., at 1019, is fully applicable to the administration of the disability program.
29
Second. The Secretary also contends that affording disability beneficiaries the opportunity to participate in evidentiary hearings before discontinuance of their benefits will result in great expense and a vast disruption of the administrative system. This justification for denial of pre-termination hearings was, of course, specifically rejected in Goldberg, 397 U.S., at 265—266, 90 S.Ct., at 1019—1020, and the Secretary offers no new considerations to support its acceptance here.
30
In Goldberg, the Court pointed out 'that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.' 397 U.S., at 264, 90 S.Ct., at 1018 (emphasis in original). That statement applies equally to eligible disability beneficiaries, for, as the District Court noted and the Secretary does not deny, 'a disability beneficiary is by definition unable to engage in substantial gainful activity and he would, therefore, be liable to sustain grievous loss while awaiting the resolution of his claim.' 321 F.Supp., at 386. In view of that result, the District Court concluded that the 'fiscal and administrative expenses to the government, whatever their magnitude, are insufficient justification considering the crippling blow that could be dealt to an individual in these circumstances.' Ibid. The Secretary's response is simply to stress the magnitude of the burden.
31
Here, as in Goldberg, '(t)he requirement of a prior hearing doubtless involves some greater expense.' 397 U.S., at 266, 90 S.Ct., at 1019. The Secretary points out that current procedures include a two-step determination of disability: first by the state agency, after a district office of the Social Security Administration has conducted a disability investigation, and then, on review of the state agency's determination, by the Administration's Bureau of Disability Insurance, which is located in Baltimore, Maryland.3 Thus, the Secretary says, a prior hearing 'either would require the beneficiary to travel great distances or would necessitate that State or federal officials travel to the area in which the beneficiary resides, neither of which is practical.' Brief 28—29. 'Nor could the decisionmaking function be turned over to the Administration's district offices, which are located conveniently to the beneficiaries, without staffing them with individuals qualified to make the necessary medical and vocational judgment.' Id., at 29. Hence, the Secretary concludes, prior hearings 'would require massive restructuring of the existing administrative adjudicative process.' Id., at 27.
32
Except for bald assertion, the Secretary offers nothing to indicate that any great burden upon the system would result if the state agencies conducted the hearings. Moreover, the Secretary omits even to mention the existence of the current post-termination hearing procedures. See 20 CFR §§ 404.917 404.941. It is reasonable to assume that the only 'restructuring' necessary would be a change in the timing of the hearings. That was apparently the method by which the Secretary required the States to comply with Goldberg in the administration of various other social security programs, see 45 CFR § 205.10, 36 Fed.Reg. 3034—3035, and it would seem to be an equally available response here. While the administration of the disability program to provide prior hearings may involve 'some greater expense,' as the Court noted in Goldberg, 397 U.S., at 266, 90 S.Ct., at 1019, that expense should not be exaggerated in order to deprive disability beneficiaries of their right to 'rudimentary due process,' id., at 267, 90 S.Ct., at 1020.
33
The Secretary also claims that the requirement of prior hearings 'would result in losses to the Social Security Trust Fund of nearly $16 million per year for disability cases and still greater sums when all Title II programs are considered.' Brief 10. This conclusion does not follow from the facts the Secretary presents.
34
As to the disability program, the Secretary says that in 1971 there were 38,000 determinations that disability had ceased and that the average monthly benefit in those cases was $207. If, to provide prior hearings, terminations were delayed for two months, the Secretary says, the cost in benefits paid pending the hearings would approach $16 million. It is immediately apparent that this figure is grossly inflated.
35
First, this figure depends upon the unwarranted assumption that all beneficiaries will demand a prior hearing. The Secretary suggests no reason to suppose that would happen. In fact, while there were 38,000 disability cessations in 1971, there were only 10,941 requests for reconsideration, and although 6,885 cessations were affirmed on reconsideration, there were only 2,330 requests for hearings. These post-termination procedures, of course, were utilized by beneficiaries who could not present their views before termination. Under the new regulations, affording notice and the opportunity to respond in writing before termination, it may well be that even fewer beneficiaries will demand hearings. In any event, experience in the welfare area has not demonstrated that recipients abuse their right to pretermination hearings, and the Secretary does not claim that disability beneficiaries will do so.
36
Second, the $16 million figure requires not only that all 38,000 beneficiaries request prior hearings, but also that they all lose. Yet, as noted above, 37% of the reconsiderations on written submissions and 55% of the post-termination hearings in 1971 resulted in reversal. The Secretary does not claim, nor is it conceivable, that in every case a prior hearing would uphold the initial determination that disability had ceased.
37
Third, not only must every beneficiary request a prior hearing and every hearing affirm cessation of disability, it must also be true, to reach the $16 million figure, that the Secretary will be unable to recover any of the benefits paid to beneficiaries pending the hearings. That result is unlikely. Section 204(a)(1) of the Act, 42 U.S.C. § 404(a)(1); see 20 CFR §§ 404.501—404.502, directs the Secretary, if he finds that there has been an overpayment, to require a refund from the beneficiary or to decrease any future benefits to which he may be entitled. Thus, if the beneficiary is not 'disabled,' he presumably can engage in 'substantial gainful activity,' and the Secretary may well secure a refund. If, on the other hand, the case is a close one and the beneficiary is later found to be 'disabled' again, the Secretary may reduce his benefits. Furthermore, § 204(b), 42 U.S.C. § 404(b); see 20 CFR §§ 404.506 404.509, directs the Secretary not to require a refund or decrease benefits if the beneficiary 'is without fault' and a refund or decrease 'would defeat the purpose of' the Act or 'would be against equity and good conscience.' The Secretary's duty to waive claims for excess payments may well apply in many termination cases, particularly where the beneficiary is judgment proof. See 20 CFR § 404.508. Obviously, there is no loss to the social security fund if benefits paid to an ineligible beneficiary pending a hearing are subject to statutory waiver.
38
Fourth, the $16 million figure depends upon the stated premise that the requirement of a hearing would cause a two-month delay in the termination of benefits. The Secretary does not explain why he chose that time period. Under the new regulations, a beneficiary receives notice of the proposed discontinuance, is informed of the information upon which it is based, and is given the opportunity to submit a written response presenting rebuttal evidence. Only then is the disability determination made. It is difficult to believe that it would require another two months just to provide a hearing.
39
Finally, under § 223(a)(1) of the Act, 42 U.S.C. § 423(a)(1); see Claims Manual § 6707, benefits must be paid for two months after the month in which disability ceases. The $16 million figure depends upon the unwarranted assumption that all terminations occur at least two months after disability is found to have ceased. In this case, for example, the state agency determined that plaintiff Atkins' disability ceased in January. The Bureau of Disability Insurance approved that determination and on February 3 informed Atkins that his benefits would be terminated at the end of March. Thus, even assuming a two-month delay for a hearing, there would be no cost whatever to the trust fund.
40
Viewing Title II programs as a whole, the Secretary points out that there were nearly three million terminations of benefits in 1969. The vast majority of these terminations were for death, attainment of a certain age, and so forth, but the Secretary asserts that apart from those cases there were 515,189 terminations that would have been affected by the requirement of a prior hearing. That number, however, includes terminations based upon a student's leaving school, a change in a beneficiary's marital status, and the death or adoption of a child. Without those cases, the number drops to 186,035. Moreover, even this number includes disability terminations and the terminations of dependents based thereon. Putting aside those cases, the total appears to be somewhat closer to 100,000. While that is a substantial number of terminations, the Secretary does not indicate what issues are involved in making the decisions. As noted above, prior evidentiary hearings are necessary in disability cases because factual disputes exist. They may exist to a far lesser extent in other programs. Moreover, to whatever extent they do exist, the objections to the Secretary's inflated cost figure for disability terminations would seem to apply equally to nondisability terminations. In any event, the Secretary has simply provided the bare number of terminations, with no further information, and it is inappropriate, if not impossible, to decide what effect requiring prior hearings in disability cases will have on nondisability cases.
41
I do not deny that prior hearings will entail some additional administrative burdens and expense. Administrative fairness usually does. But the Secretary 'is not without weapons to minimize these increased costs.' Goldberg v. Kelly, 397 U.S., at 266, 90 S.Ct., at 1019. Despite the Secretary's protestations to the contrary, I believe that in the disability, as in the welfare, area '(m)uch of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pretermination hearings and by skillful use of personnel and facilities.' Ibid. The Court's conclusion on this point in Goldberg is fully applicable here:
42
'Indeed, the very provision for a post-termination evidentiary hearing . . . is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens.' Ibid.
43
My answers to the Secretary's contentions are also the reasons I disagree with the majority of the District Court and agree with the dissenting judge. I would therefore vacate the judgment of the District Court and remand with direction to enter a new judgment requiring that disability benefits not be discontinued until the beneficiary has been afforded procedural due process in the form mandated by Goldberg with respect to discontinuance of welfare and old-age benefits.
1
The new provisions were issued as amendments to the Disability Insurance State Manual (DISM). DISM § 265.1D now requires state agencies to inform a beneficiary of a proposed suspension of benefits, and the reasons therefor, before it formally requests the Bureau of Disability Insurance to authorize the suspension. The beneficiary must also be given an opportunity to submit rebuttal evidence. Ibid. But the 'opportunity' contemplated by this section, and the similar provisions respecting cessation of benefits (DISM § 353.6A), encompass only written submissions.
2
This cause, however, like Goldberg, 'presents no question requiring our determination whether due process requires only an opportunity for written submission, or an opportunity both for written submission and oral argument, where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues.' 397 U.S., at 268 n. 15, 90 S.Ct., at 1020. Disability cases, like welfare cases, invariably turn on difficult and complex resolutions of hotly disputed factual questions. See, e.g., Underwood v. Ribicoff, 298 F.2d 850, 851 (CA4 1962).
1
'The issue regarding a right to a hearing prior to suspension or termination of disability benefits is presented in a number of other cases: Doyle v. Richardson (C.A.5, No. 31,104); Moore v. Richardson (N.D.Calif., Civ. No. C—70—2573); Eldridge v. Richardson (W.D.Va., Civ. No. 70—C—52—A) (dismissed May 6, 1971); Dye v. Richardson (W.D.Pa., Civ. No. 70—1384) (dismissed March 8, 1971); Harvey v. Richardson (W.D.Pa., Civ. No. 70—1460); Rodriquez v. Finch (D.Colo., Civ. No. C—2294) (dismissed July 1, 1971); Olivas v. Secretary of HEW (D.Colo., Civ. No. C—3262). The issue is also presented in several nondisability cases: Anderson v. Finch (N.D.Ohio, 322 F.Supp. 195, decided January 15, 1971, and pending before C.A. 6, No. 71—1317); Garofalo v. Richardson (S.D.N.Y., Civ. No. 70—5133) (remanded July 16, 1971); Lindsay v. Richardson (W.D.N.C., Civ. No. 2794); Van Guilder v. Richardson (D.Minn., Civ. No. 4—70—386); Hopkins v. Richardson (E.D.Pa., Civ. No. 71—37); Shisslak v. H.E.W. (D.Ariz., Civ. No. 71—35 TUC, decided April 9, 1971 and pending before C.A.9, No. 71—2060); Baker v. Finch (N.D.Ga., Civ. No. 13786, decided September 13, 1971); Corona v. Richardson (N.D.Calif., Civ. No. 70—2662); Recide v. Richardson (D.Hawaii, Civ. No. 70—3426); Mills v. Richardson (N.D.N.Y., Civ. No. 71—CV—208, decided October 15, 1971).' Brief for the Secretary 8—9, n. 9.
2
Apparently the new procedures apply only to cases involving issues of medical recovery. We are advised, however, that '(t)he Secretary is presently developing a similar termination procedure to cover terminations in cases involving a return to work but no issue of medical recovery.' Supplemental Brief for the Secretary 3.
3
The Bureau cannot reverse a state agency's finding that disability has ceased, although it can require reconsideration by the agency. 42 U.S.C. § 421(c); 20 CFR § 404.1520(c); Claims Manual § 6701(c); see Brief for the Secretary 11—12, 17.
| 12
|
405 U.S. 191
92 S.Ct. 767
31 L.Ed.2d 138
Nellie SWARB et al., Appellants,v.William M. LENNOX et al.
No. 70—6.
Argued Nov. 9, 1971.
Decided Feb. 24, 1972.
Syllabus
Appellants (hereafter plaintiffs), purporting to act on behalf of a class consisting of all Pennsylvania residents who signed documents containing cognovit provisions leading, or that could lead, to confessed judgments in Philadelphia, brought this action challenging the Pennsylvania system as unconstitutional on its face as violative of due process. The three-judge District Court held that: the Pennsylvania system leading to confessed judgments and execution complies with due process only if 'there has been an understanding and voluntary consent of the debtor in signing the document'; plaintiffs did not sustain their burden of proof with respect to lack of valid consent in the execution of bonds and warrants of attorney accompanying mortgages; the record did not establish that the action could be maintained on behalf of natural persons with incomes over $10,000, but an action could be maintained for those who earn less than $10,000 and who signed consumer financing or lease contracts containing cognovit provisions; there was no intentional waiver of known rights by members of that class in executing confession of judgment clauses; and no judgment by confession might be entered after November 1, 1970, as to a member of the recognized class unless it is shown that the debtor 'intentionally, understandingly, and voluntarily waived' his rights; and the court declared the Pennsylvania practice of confessing judgments to be unconstitutional, prospectively effective as noted, as applied to the designated class, and enjoined entry of any confessed judgment against a member of the class absent a showing of the required waiver. The plaintiffs appealed, claiming that the entire Pennsylvania scheme is unconstitutional on its face. Held:
1. The Pennsylvania rules and statutes relating to cognovit provisions are not unconstitutional on their face, as under appropriate circumstances, a cognovit debtor may be held effectively and legally to have waived the rights he would possess if the document he signed had contained no cognovit provision. D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124. P. 200.
2. In light of the fact that the named defendants and the intervenors have taken no cross appeal, the affirmance of the judgment below does not mean that the District Court's opinion and judgment are approved as to other aspects and details that were not before this Court. P. 201.
314 F.Supp. 1091, affirmed.
David A. Scholl, Philadelphia, Pa., for appellants, pro hac vice, by special leave of Court.
Philip C. Patterson, Philadelphia, Pa., for appellees.
William L. Matz, Philadelphia, Pa., for Pennsylvania Savings and Loan League, as amicus curiae.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This appeal, heard as a companion to D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124, decided today, also purports to raise for the Court the issue of the due process validity of cognovit provisions. The system under challenge in this case is that of Pennsylvania.1 The three-judge District Court, with one judge dissenting in part because, in his view, the court did not go far enough, refrained from declaring the Commonwealth's rules and statutes unconstitutional on their face and granted declaratory and injunctive relief only for a limited class of cognovit signers. 314 F.Supp. 1091 (ED Pa. 1970). The plaintiffs, but not the defendants, appealed. We noted probable jurisdiction the same day certiorari was granted in Overmyer. 401 U.S. 991, 91 S.Ct. 1220. 28 L.Ed.2d 529.
2
* The cognovit system is firmly entrenched in Pennsylvania and has long been in effect there.
3
A confession of judgment for money 'may be entered by the prothonotary . . . without the agency of an attorney and without the filing of a complaint, declaration or confession, for the amount which may appear to be due from the face of the instrument,' Pa.Rule Civ.Proc. 2951(a), except that the action must be instituted by a complaint if the instrument is more than 10 years old or cannot be produced for filing, 'or if it requires the occurrence of a default or condition precedent before judgment may be entered.' Rules 2951(c) and (d). In an action instituted by a complaint, the plaintiff shall file a confession of judgment substantially in a prescribed form, and the attorney for the plaintiff 'may sign the confession as attorney for the defendant' unless a statute or the instrument provides otherwise. Rule 2955. The prothonotary enters judgment 'in conformity with the confession.' Rule 2956.2 The amount due, interest, attorneys' fees, and costs may be included by the plaintiff in the praecipe for a writ of execution. Rule 2957.
4
Within 20 days after the entry of judgment the plaintiff shall mail the defendant written notice. Failure to do this, however, does not affect the judgment lien. Rule 2958(a). Within the same 20 days the plaintiff may issue a writ of execution and may do so even if the notice is not yet mailed. Rule 2958(b). If an affidavit of mailing is not filed within the 20-day period, the writ of execution may not issue until 20 days after the affidavit of mailing has been filed. Rule 2958(c).
5
Relief from a judgment by confession may be sought by a petition asserting '(a)ll grounds for relief whether to strike off the judgment or to open it . . .. Rule 2959(a). If the petition states prima facie grounds for relief, the court issues a rule to show cause and may grant a stay. A defendant 'waives all defenses and objections' not included in the petition. The court 'shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence.' Rules 2959 (b), (c), and (e). If the judgment is opened in whole or in part, the issues are then tried. Rule 2960.
6
The procedure for confession of judgment for possession of real property is essentially the same except that the action shall be commenced by filing a complaint. Rules 2970—2973.
7
The prothonotary specifically is given power to 'enter judgments at the instance of plaintiffs, upon the confessions of defendants.' Pa.Stat.Ann., Tit. 17, § 1482. The prothonotary is the clerk of the court of common pleas. He has no judicial function. It has been said that his power is derived from the instrument under which he acts and not from his office, Smith v. Safeguard Mut. Ins. Co., 212 Pa.Super. 83, 87, 239 A.2d 824, 826 (1968), and that his entry of judgment is a ministerial act, Lenson v. Sandler, 430 Pa. 193, 197, 241 A.2d 66, 68 (1968).
8
It has also been said that the confession of judgment procedure in Pennsylvania exists 'independent of statute.' Equipment Corp. of America v. Primos Vanadium Co., 285 Pa. 432, 437, 132 A. 360, 362 (1926); Cook v. Gilbert, 8 Serg. & R. 567, 568 (1822); Hatch v. Stitt, 66 Pa. 264 (1870).
9
It is apparent, therefore, that in Pennsylvania confession-of-judgment provisions are given full procedural effect; that the plaintiff's attorney himself may effectuate the entire procedure; that the prothonotary, a nonjudicial officer, is the official utilized; that notice issues after the judgment is entered; and that execution upon the confessed judgment may be taken forthwith. The defendant may seek relief by way of a petition to strike the judgment or to open it, but he must assert prima facie grounds for this relief, and he achieves a trial only if he persuades the court to open. Meanwhile, the judgment and its lien remain.
10
The pervasive and drastic character of the Pennsylvania system has been noted. Cutler Corp. v. Latshaw, 374 Pa. 1, 4—5, 97 A.2d 234, 236 (1953). See Kine v. Forman, 404 Pa. 301, 172 A.2d 164 (1961), and Atlas Credit Corp. v. Ezrine, 25 N.Y.2d 219, 303 N.Y.S.2d 382, 250 N.E.2d 474 (1969).
II
11
Seven individuals are the named plaintiffs in the original complaint filed in December 1969. Jurisdiction is based on the civil rights statutes, 28 U.S.C. § 1343 and 42 U.S.C. § 1983. The plaintiffs purport to act on behalf of a class consisting of all Pennsylvania residents who have signed documents containing cognovit provisions leading, or that could lead, to a confessed judgment in Philadelphia County. The defendants are the county's prothonotary and sheriff, the officials responsible, respectively, for the recording of confessed judgments and for executing upon them. The complaint alleges that each plaintiff has signed one or another type of consumer financing agreement pursuant to which his creditor has entered judgment; that each faces immediate judicial sale of his home or personal belongings; that the Pennsylvania rules and statutes are unconstitutional on their face because they deprive members of the class of procedural due process in the denial of notice and hearing before judgment; that the signing of the cognovit contract was not an intelligent and voluntary waiver of the right to notice and hearing; that the only recourse against the recorded judgment is an action to strike or reopen; and that such recourse is costly and burdensome to low income consumers, and denies them equal protection. The relief sought is a declaration that the Pennsylvania rules and statutes are unconstitutional, and an injunction against the defendants' 'operating under the above acts and rules.' A three-judge court was requested.
12
The single District Judge entered a temporary restraining order staying execution of judgments against the seven plaintiffs. He also provided a procedure for adding additional plaintiffs. The three-judge court continued and expanded the restraining order to stay all executions upon confessed judgments in the Commonwealth. A number of additional plaintiffs were added, and one original plaintiff was dismissed from the case. A group of finance companies was permitted to intervene.
13
Stipulations were made. One was between counsel for the plaintiffs and the city solicitor; another was between counsel for the plaintiffs and for the intervenor finance companies. These stipulations are not identical but they do overlap. They established the following:
14
1. Judgments by confession against the various plaintiffs had been entered ranging in amounts from $249.23 to $25,800.
15
2. If called as witnesses, the original plaintiffs would testify to the facts alleged in the complaint. Each would also testify as to his unawareness of the cognovit clause, his lack of understanding of its significance if he had read it, and his inability to bargain about it anyway.
16
3. If called, some of the plaintiffs would testify that they were encouraged not to read their contracts; that the judgments exceeded the debts because of the addition of penalties, costs, and fees; that they could not afford proceedings to strike or reopen; and that they believed they had meritorious defenses.
17
4. The imposition and amount of sheriff's costs, bar association fee schedules, and necessary deposition and transcript costs in the cognovit procedure were acknowledged.
18
The three-judge court held a hearing. In addition to the appearance of counsel for the plaintiffs and for the intervenors, an assistant city solicitor of Philadelphia appeared for the named defendants, and a Deputy Attorney General appeared for the Commonwealth. The only plaintiff to testify was one of those added after the complaint had been filed. She was a postal clerk who earned $6,100 annually and who had agreed with a door-to-door salesman to buy a carpet for $1,300. Her contract contained a cognovit clause pursuant to which a finance company had obtained a confessed judgment. A detective and a finance company officer were presented by the plaintiffs. They testified to the pervasiveness of cognovit clauses and the 'disbelief and shock' of those who had signed them.
19
The plaintiffs also introduced in evidence by stipulation a published report by David Caplovitz, Ph. D., Consumers in Trouble. This was a 1968 study of confessed-judgment debtors in four major Pennsylvania cities. It included 245 Philadelphia debtors. The study purported to show that 96% had annual incomes of less than $10,000, and 56% less than $6,000; that only 30% had graduated from high school; and that only 14% knew the contracts they signed contained cognovit clauses.
20
The only other witness at the hearing was one called by the intervenors. He was a finance company officer and testified as to the usual practice of making loans.
The three-judge District Court held:
21
1. The Pennsylvania system leading to confessed judgment and execution does comply with due process standards provided 'there has been an understanding and voluntary consent of the debtor in signing the document.' 314 F.Supp., at 1095.
22
2. If, however, there is no such understanding consent, the procedure violates due process requirements of notice and an opportunity to be heard. Ibid.
23
3. The plaintiffs did not sustain their burden of proof with respect to the lack of valid consent in the execution of bonds and warrants of attorney accompanying mortgages. Id., at 1098.
24
4. The record did not establish that the action could be maintained as a class action on behalf of individual natural persons with annual incomes of more than $10,000. Id., at 1098—1099.
25
5. It could be maintained, however, as a class action on behalf of natural persons residing in Pennsylvania who earn less than $10,000 annually and who signed consumer financing or lease contracts containing cognovit provisions. Id., at 1099.
26
6. There was no intentional waiver of known rights by members of that class in executing confession-of-judgment clauses. These were the right to have prejudgment notice and hearing, the right to have the burden of proof on the creditor, and the right to avoid the expenses attendant upon opening or striking a confessed judgment. Since the Pennsylvania procedure with respect to the designated class was based upon a waiver concept without adequate understanding, it was violative of due process. Id., at 1100.
27
7. It was not the federal court's function to dictate to Pennsylvania 'exactly what constitutes understanding waiver.' Ibid. Where the debtor is an attorney, an affidavit to that effect may be all that is necessary to prove understanding, but where the debtor is not a high school graduate more proof 'may be required.' Id., at 1101. A 'statewide rule or legislation providing for the filing of proof of intentional, understanding and voluntary consent,' in order to comply with the court's opinion, was among the methods available to the State to permit continued use of the confession-of-judgment clause. Id., at 1100—1101, n. 24.
28
8. No judgment by confession may be entered as to a member of the recognized class after November 1, 1970, unless it is shown that at the time of executing the document the debtor 'intentionally, understandingly, and voluntarily waived' his rights lost under the Pennsylvania law. Id., at 1102—1103.
29
9. Liens of judgments recorded prior to June 1, 1970 (the date of the filing of the court's opinion), were preserved. A confessed judgment on a contract signed before June 1 could be entered between that date and November 1, but could not be executed upon without a prior hearing to determine the validity of the waiver.
30
The court then declared the Pennsylvania practice of confessing judgments to be unconstitutional, prospectively effective as of the dates stated, as applied to the class designated, and enjoined the entry of any confessed judgment against a member of the class in the absence of a showing of the required waiver.3 Id., at 1103. The judge dissenting did so as to the limitation of relief to those earning less than $10,000 annually. Id., at 1102.
III
31
From this judgment only the plaintiffs appeal. Their claim is that the District Court erred in confining the relief it granted to certain members of the appellants' proffered class and that the court should have declared the Pennsylvania rules and statutes unconstitutional on their face. A holding of facial unconstitutionality, of course, wholly apart from any class consideration, would afford relief to every Pennsylvania cognovit obligor. Today's decision in Overmyer, although it concerns a corporate and not an individual debtor, is adverse to this contention of the plaintiff-appellants. In Overmyer it is recognized, as the District Court in this case recognized, that, under appropriate circumstances, a cognovit debtor may be held effectively and legally to have waived those rights he would possess if the document he signed had contained no cognovit provision.
32
On the plaintiff-appellants' appeal therefore, the judgment of the District Court must be affirmed.
33
This affirmance, however, does not mean that the District Court's opinion and judgment are approved as to their other aspects and details that are not before us. As has been noted, the named defendants and the intervenors have taken no cross appeal. Furthermore, the Pennsylvania Attorney General's office, apparently due to an interim personnel change, no longer supports the position taken at the trial by the city solicitor and the deputy attorney general and, not choosing to pursue its customarily assumed duty to defend the Commonwealth's legislation, now joins the appellants in urging here that the rules and statutes are facially invalid. With the Attorney General taking this position, argument on the side of the defendant-appellees has been presented to us only by the intervenor finance companies and by amici. The permissible reach of this opposition, however, coincides with and goes no further than the extent of the appellants' appeal. In the absence of a cross appeal, the opposition is in no position to attack those portions of the District Court's judgment that are favorable to the plaintiff-appellants.
IV
34
The decision in Overmyer and the disposition of the present appeal prompt the following observations:
35
1. In our second concluding comment in Overmyer, supra, 405 U.S., at 188, 92 S.Ct., at 783, we state that the decision is 'not controlling precedent for other facts of other cases,' and we refer to contracts of adhesion, to bargaining power disparity, and to the absence of anything received in return for a cognovit provision. When factors of this kind are present, we indicate, 'other legal consequences may ensue.' That caveat has possible pertinency for participants in the Pennsylvania system.
36
2. Overmyer necessarily reveals some discomfiture on our part with respect to the present case. However that may be, the impact and effect of Overmyer upon the Pennsylvania system are not to be delineated in the one-sided appeal in this case and we make no attempt to do so.
37
3. Problems of this kind are peculiarly appropriate grist for the legislative mill.
38
On the appellants' appeal, the judgment of the District Court is affirmed. The stay heretofore granted by the Circuit Justice is dissolved.
39
It is so ordered.
40
Affirmed.
41
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
42
Mr. Justice WHITE, concurring.
43
I join in the opinion of the Court and add these comments about a narrow aspect of the case.
44
It is true that this Court has no jurisdiction of that portion of the District Court's judgment from which no appeal or cross-appeal was taken. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191—192, 57 S.Ct. 325, 327—328, 81 L.Ed. 593 (1937); cf. United States v. Raines, 362 U.S. 17, 27 n. 7, 80 S.Ct. 519, 526, 4 L.Ed.2d 524 (1960). But it is also well established that the prevailing party below need not cross-appeal to entitle him to support the judgment in his favor on grounds expressly rejected by the court below. Walling v. General Industries Co., 330 U.S. 545, 67 S.Ct. 883, 91 L.Ed. 1088 (1947); Langnes v. Green, 282 U.S. 531, 534—539, 51 S.Ct. 243, 244—246, 75 L.Ed. 520 (1931); United States v. American Railway Express Co., 265 U.S. 425, 435—436, 44 S.Ct. 560, 563—564, 68 L.Ed. 1087 (1924); and the Court may notice a plain error in the record that disposes of a judgment before it. Reynolds v. United States, 98 U.S. 145, addendum n. to op., pp. 168—169, 25 L.Ed. 244 (1879). Thus, despite the fact that appellee-intervenors did not cross-appeal, they were free to support that part of the judgment in their favor on grounds that were presented and rejected by the District Court in arriving at an adverse judgment on other aspects of the case. Those grounds, if sustained, would not affect the finality of the unappealed judgment, but they would, if sufficient, be available to support the judgment of the District Court insofar as it is challenged here. Nothing to the contrary is to be inferred from our affirmance of that judgment on other grounds. At least that is my understanding of the Court's opinion, which I join.
45
Mr. Justice DOUGLAS, dissenting in part.
46
Pennsylvania permits creditors to extract from debtors their consent to a confession-of-judgment procedure which, while not rendering debtors completely defenseless, deprives them of many of the safeguards of ordinary civil procedure. A group of low-income plaintiffs asked the three-judge court below to enjoin the further operation of this scheme on the ground that debtors who consented to this abbreviated form of justice did so unwittingly or did so out of compulsion supplied by the standard form of adhesion contracts. The District Court granted limited relief, holding that the scheme worked a denial of procedural due process only when applied to individual debtors who earned less than $10,000 annually and who entered into nonmortgage credit transactions, except where it is shown prior to judgment that their waivers had been knowing and voluntary. The plaintiffs have appealed, arguing that the lower court should have invalidated the regime on its face and that, in any event, class relief was wrongly denied both to persons earning more than $10,000 yearly and to home mortgagors.
47
The Commonwealth did not cross-appeal but instead now confesses that the scheme is unconstitutional and agrees substantially with the appellants. Various lending institutions intervened below but have not taken cross-appeals.1 When the appeal was filed in this Court, they did, however, file a motion to dismiss that contained an argument on the law governing the main facets of the case. Moreover, at the request of this Court they filed a brief, maintaining that the District Court correctly excluded mortgage borrowers and consumer borrowers with incomes in excess of $10,000 from the class benefitied by the decree and that it incorrectly found that the Pennsylvania cognovit procedure was unconstitutional unless the debtor knowingly and understandingly consented to the authorization to confess judgment.
48
The appellees are the county's prothonotary and sheriff and they are represented here by the Attorney General of Pennsylvania who concedes before us that the State's statutes in question are unconstitutional. No one suggests, however, that there is lacking a case or controversy. Appellants say the District Court did not go far enough. Whether we affirm, modify, or reverse, the decree of the District Court has an ongoing life. It has not become moot. Large interests ride on the outcome of this important litigation.
49
It is said, however, that the case is not appropriate for review. We refuse to let confessions of error conclusively govern the disposition of cases, acting only after our examination of the record.2 We have remanded for reconsideration in light of a confession of error. In Young v. United States, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832 (1942), however, we declined to remand but instead incorporated into our holding the theory advanced by the Solicitor General in support of the petitioner. Obviously a remand does not bind the courts to the parties' view as to what the law is.
50
'The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.' Id., at 258—259, 62 S.Ct., at 511.
51
As we stated in Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917:
52
'It is the uniform practice of this Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained.' That is the practice in civil cases also. Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609.
53
Moreover, once a case is properly here, our disposition does not necessarily follow the recommendations or concessions of the parties. Utah Public Service Comm'n v. El Paso Natural Gas Co., 395 U.S. 464, 468—469, 89 S.Ct. 1860, 1862, 23 L.Ed.2d 474. In that case, the appellant changed its view of the merits after the case reached us and, like the appellee, thought the appeal should be dismissed. An amicus, however, presented contrary views. We concluded that the decree of the District Court, after our prior remand, did not comply with our order. Consensus of the parties does not, in other words, control our decisionmaking process.3
54
The Court, to be sure, approves that part of the District Court's opinion which holds that the Pennsylvania confession-of-judgment scheme cannot constitutionally be applied to the class of Pennsylvania residents who earn less than $10,000 annually and who enter into nonmortgage credit transactions, unless prior to judgment it is shown that they voluntarily and knowingly executed such instruments purporting to waive trial and appeal. On the other hand, the Court now affirms without discussion the refusals of the District Court (1) to extend similar class relief to confessed debtors who either enter into mortgage transactions or who earn more than $10,000 yearly, and (2) to declare the statutes facially unconstitutional. 314 F.Supp. 1091, 1102—1103, 1112 (1970).
55
It is anomalous that an appellee by confessing error can defeat an appeal. In the instant case we have not been handicapped by the appellees' refusal to oppose the judgment below. Finance companies intervened in the District Court. We have been fully informed by them and by amici of the many facets of this controversy. We should therefore discuss the merits and reach all issues tendered.
1
Pa.Rules Civ.Proc. 2950—2976, effective Jan. 1, 1970, 12 P.S. Appendix (which, by the Act of June 21, 1937, Pa.Laws 1982, have the effect of state statutes); Act of Apr. 14, 1834, Pa.Stat.Ann., Tit. 17 § 1482, subd. III; Act of Feb. 24, 1806, Pa.Stat.Ann., Tit. 12, § 739; Act of Mar. 21, 1806, Pa.Stat.Ann., Tit. 12, § 738. By Rule 2976, Pa.Stat.Ann., Tit. 12, § 739 is suspended 'only insofar as it may be inconsistent with these rules,' and Pa.Stat.Ann., Tit. 12, § 738 is suspended in its application to actions to confess judgment for money or for possession of real property.
2
Prior to the effective date of Rules 2950—2976, Pa.Stat.Ann., Tit. 12, § 738 provided that it 'shall be the duty' of the prothonotary to enter an application and 'on confession in writing . . . he shall enter judgment . . ..'
3
Compare the result reached with respect to the Delaware system in Osmond v. Spence, 327 F.Supp. 1949 (Del.1971).
1
The absence of a cross-appeal means only that the appellate court will not upset any portion of the lower court's judgment not challenged by the appeal. As stated by Mr. Justice Cardozo in Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191—192, 57 S.Ct. 325, 327, 81 L.Ed. 593:
'Without a cross-appeal, an appellee may 'urge in support of a decree any matter appearing in the record although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.' United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087. What he may not do in the absence of a cross-appeal is to 'attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.' Ibid. The rule is inveterate and certain. . . . Findings may be revised at the instance of an appellant, if they are against the weight of evidence, where the case is one in equity. This does not mean that they are subject to like revision in behalf of appellees, at all events in circumstances where a revision of the findings carries with it as an incident a revision of the judgment. There is no need at this time to fix the limits of the rule more sharply. 'Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken."
2
Mayberry v. Pennsylvania, 382 U.S. 286, 86 S.Ct. 438, 15 L.Ed.2d 336 (1965); Nicholson v. Boles, 375 U.S. 25, 84 S.Ct. 89, 11 L.Ed.2d 43 (1963). See R. Stern & E. Gressman, Supreme Court Practice 224—225 (4th ed. 1969).
3
Cf. County of Alameda v. Carleson (California Welfare Rights Organization v. Superior Court of Alameda County), 5 Cal.3d 730, 97 Cal.Rptr. 385, 488 P.2d 953 (1971), where a state official against whom an adverse judgment had been obtained took no appeal; but the judgment was challenged in California by an 'aggrieved' organization which had been denied intervention in the lower court and which appealed both from the denial of intervention and from the judgment on the merits. The California Supreme Court reversed on the merits.
| 12
|
405 U.S. 134
92 S.Ct. 849
31 L.Ed.2d 92
Bob BULLOCK et al., Appellants,v.Van Phillip CARTER et al.
No. 70—128.
Argued Nov. 17, 1971.
Decided Feb. 24, 1972.
Syllabus
Appellees who sought to become candidates for local office in the Texas Democratic primary election challenged in the District Court the validity of the Texas statutory scheme which, without write-in or other alternative provisions, requires payment of fees ranging as high as $8,900. Appellees claimed that they were unable to pay the required fees and were therefore barred from running. Under the Texas statute, the party committee estimates the total cost of the primary and apportions it among candidates according to its judgment of what is 'just and equitable,' in light of 'the importance, emolument, and term of office.' The fees for local candidates tend appreciably to exceed those for statewide candidates. Following a hearing, the District Court declared the fee system invalid and enjoined its enforcement. Appellants contend that the filing fees are necessary both to regulate the primary ballot and to finance elections. Held: The Texas primary election filing-fee system contravenes the Equal Protection Clause of the Fourteenth Amendment. Pp. 140—149.
(a) Since the Texas statute imposes filing fees of such magnitude that numerous qualified candidates are precluded from filing, it therefore falls with unequal weight on candidates and voters according to their ability to pay the fees, it must be 'closely scrutinized' and can be sustained only if it is reasonably necessary to accomplish a legitimate state objective and not merely because it has some rational basis. Pp. 140—144.
(b) Although a State has an interest in regulating the number of candidates on the ballot and eliminating those who are spurious, it cannot attain these objectives by arbitrary means such as those called for by the Texas statute, which eliminates legitimate potential candidates, like those involved here, who cannot afford the filing fees. Pp. 144—147.
(c) The apportionment of costs among candidates is not the only means available to finance primary elections, and the State can identify certain bodies as political parties entitled to sponsorship if the State itself finances the primaries, as it does general elections, both of which are important parts of the democratic process. Pp. 147—149.
Carter v. Dies, D.C., 321 F.Supp. 1358, affirmed.
John F. Morehead, Plainview, Tex., and Pat Bailey, Austin, Tex., for appellants.
A. L. Crouch, Fort Worth, Tex., and Joseph A. Calamia, El Paso, Tex., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Under Texas law, a candidate must pay a filing fee as a condition to having his name placed on the ballot in a primary election.1 The constitutionality of the Texas filing-fee system is the subject of this appeal from the judgment of a three-judge District Court.
2
Appellee Pate met all qualifications to be a candidate in the May 2, 1970, Democratic primary for the office of County Commissioner of Precinct Four for El Paso County, except that he was unable to pay the $1,424.60 assessment required of candidates in that primary. Appellee Wischkaemper sought to be placed on the Democratic primary ballot as a candidate for County Judge in Tarrant County, but he was unable to pay the $6,300 assessment for candidacy for that office. Appellee Carter wished to be a Democratic candidate for Commissioner of the General Land Office; his application was not accompanied by the required $1,000 filing fee.2
3
After being denied places on the Democratic primary ballots in their respective counties, these appellees instituted separate actions in the District Court challenging the validity of the Texas filing-fee system. Their actions were consolidated, and a three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284. Appellee Jenkins was permitted to intervene as a voter on his claimed desire to vote for Wischkaemper, and appellee Guzman and others were permitted to intervene as voters desiring to cast their ballots for Pate. On April 3, 1970, the District Court ordered that Wischkaemper and Pate be permitted to participate in the primary conducted on May 2, 1970, without prepayment of filing fees.3 Following a hearing on the merits, the three-judge court declared the Texas filing-fee scheme unconstitutional and enjoined its enforcement.4 321 F.Supp. 1358 (N.D.Tex.1970). A direct appeal was taken under 28 U.S.C. § 1253, and we noted probable jurisdiction. Dies v. Carter, 403 U.S. 904, 91 S.Ct. 2208, 29 L.Ed.2d 679.
4
Under the Texas statute, payment of the filing fee is an absolute prerequisite to a candidate's participation in a primary election. There is no alternative procedure by which a potential candidate who is unable to pay the fee can get on the primary ballot by way of petitioning voters,5 and write-in votes are not permitted in primary elections for public office.6 Any person who is willing and able to pay the filing fee and who meets the basic eligibility requirements for holding the office sought can run in a primary.
5
Candidates for most district, county, and precinct offices must pay their filing fee to the county executive committee of the political party conducting the primary; the committee also determines the amount of the fee. The party committee must make an estimate of the total cost of the primary and apportion it among the various candidates 'as in their judgment is just and equitable.'7 The committee's judgment is to be guided by 'the importance, emolument, and term of office for which the nomination is to be made.'8 In counties with populations of one million or more, candidates for offices of two-year terms can be assessed up to 10% of their aggregate annual salary, and candidates for offices of four-year terms can be assessed up to 15% of their aggregate annual salary.9 In smaller counties there are no such percentage limitations.10
6
The record shows that the fees required of the candidates in this case are far from exceptional in their magnitude.11 The size of the filing fees is plainly a natural consequence of a statutory system that places the burden of financing primary elections on candidates rather than on the governmental unit, and that imposes a particularly heavy burden on candidates for local office. The filing fees required of candidates seeking nomination for state offices and offices involving statewide primaries are more closely regulated by statute and tend to be appreciably smaller. The filing fees for candidates for State Representative range from $150 to $600, depending on the population of the county from which nomination is sought.12 Candidates for State Senator are subject to a maximum assessment of $1,000.13 Candidates for nominations requiring statewide primaries, including candidates for Governor and United States Senator, must pay a filing fee of $1,000 to the chairman of the state executive committee of the party conducting the primary.14 Candidates for the State Board of Education have a fixed filing fee of $50.15
7
(1)
8
The filing-fee requirement is limited to party primary elections, but the mechanism of such elections is the creature of state legislative choice and hence is 'state action' within the meaning of the Fourteenth Amendment. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927).16 Although we have emphasized on numerous occasions the breadth of power enjoyed by the States in determining voter qualifications and the manner of elections, this power must be exercised in a manner consistent with the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). The question presented in this case is whether a state law that prevents potential candidates for public office from seeking the nomination of their party due to their inability to pay a portion of the cost of conducting the primary election is state action that unlawfully discriminates against the candidates so excluded or the voters who wish to support them.17
9
The threshold question to be resolved is whether the filing-fee system should be sustained if it can be shown to have some rational basis,18 or whether it must withstand a more rigid stancard of review.
10
In Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Court held that Virginia's imposition of an annual poll tax not exceeding $1.50 on residents over the age of 21 was a denial of equal protection. Subjecting the Virginia poll tax to close scrutiny, the Court concluded that the placing of even a minimal price on the exercise of the right to vote constituted an invidious discrimination. The problem presented by candidate filing fees is not the same, of course, and we must determine whether the strict standard of review of the Harper case should be applied.
11
The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review.19 However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). Texas does not place a condition on the exercise of the right to vote,20 nor does it quantitatively dilute votes that have been cast.21 Rather, the Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny. Compare Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971)With Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.
12
Unlike a filing-fee requirement that most candidates could be expected to fulfill from their own resources or at least through modest contributions, the very size of the fees imposed under the Texas system gives it a patently exclusionary character. Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support. The effect of this exclusionary mechanism on voters is neither incidental nor remote. Not only are voters substantially limited in their choice of candidates, but also there is the obvious likelihood that this limitation would fall more heavily on the less affluent segment of the community, whose favorites may be unable to pay the large costs required by the Texas system. To the extent that the system requires candidates to rely on contributions from voters in order to pay the assessments, a phenomenon that can hardly be rate in light of the size of the fees, it tends to deny some voters the opportunity to vote for a candidate of their choosing; at the some time it gives the affluent the power to place on the ballot their own names or the names of persons they favor. Appellants do not dispute that this is endemic to the system. This disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause, and there are doubtless some instances of candidates representing the views of voters of modest means who are able to pay the required fee. But we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.
13
Because the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper, that the laws must be 'closely scrutinized' and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.
14
(2)
15
Appellants contend that the filing fees required by the challenged statutes are necessary both to regulate the ballot in primary elections and to provide a means for financing such elections.
16
The Court has recognized that a State has a legitimate interest in regulating the number of candidates on the ballot. Jenness v. Fortson, 403 U.S., at 442, 91 S.Ct., at 1976; Williams v. Rhodes, 393 U.S., at 32, 89 S.Ct. 5, 21 L.Ed.2d 24. In so doing, the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections.22 Although we have no way of gauging the number of candidates who might enter primaries in Texas if access to the ballot were unimpeded by the large filing fees in question here, we are bound to respect the legitimate objectives of the State in avoiding overcrowded ballots. Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies. Jenness v. Fortson, 403 U.S., at 442, 91 S.Ct., at 1976.
17
There is no escape from the conclusion that the imposition of filing fees ranging as high as $8,900 tends to limit the number of candidates entering the primaries. However, even under conventional standards of review, a State cannot achieve its objectives by totally arbitrary means; the criterion for differing treatment must bear some relevance to the object of the legislation. Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485 (1957); Smith v. Cahoon, 283 U.S. 553, 567, 51 S.Ct. 582, 587, 75 L.Ed. 1264 (1931). To say that the filing-fee requirement tends to limit the ballot to the more serious candidates is not enough. There may well be some rational relationship between a candidate's willingness to pay a filing fee and the seriousness with which he takes his candidacy,23 but the candidates in this case affirmatively alleged that they were unable, not simply unwilling, to pay the assessed fees, and there was no contrary evidence. It is uncontested that the filing fees exclude legitimate as well as frivolous candidates. And even assuming that every person paying the large fees required by Texas law takes his own candidacy seriously, that does not make him a 'serious candidate' in the popular sense. If the Texas fee requirement is intended to regulate the ballot by weeding out spurious candidates, it is extraordinarily ill-fitted to that goal;24 other means to protect those valid interests are available.
18
Instead of arguing for the reasonableness of the exclusion of some candidates, appellants rely on the fact that the filing-fee requirement is applicable only to party primaries, and point out that a candidate can gain a place on the ballot in the general election without payment of fees by submitting a proper application accompanied by a voter petition.25 Apart from the fact that the primary election may be more crucial than the general election in certain parts of Texas,26 we can hardly accept as reasonable an alternative that requires candidates and voters to abandon their party affiliations in order to avoid the burdens of the filing fees imposed by state law. Appellants have not demonstrated that their present filing-fee scheme is a necessary or reasonable tool for regulating the ballot.
19
In addition to the State's purported interest in regulating the ballot, the filing fees serve to relieve the State treasury of the cost of conducting the primary elections, and this is a legitimate state objective; in this limited sense it cannot be said that the fee system lacks a rational basis.27 But under the standard of review we consider applicable to this case, there must be a showing of necessity. Appellants strenuously urge that apportioning the cost among the candidates is the only feasible means for financing the primaries. They argue that if the State must finance the primaries, it will have to determine which political bodies are 'parties' so as to be entitled to state sponsorship for their nominating process, and that this will result in new claims of discrimination. Appellants seem to overlook the fact that a similar distinction is presently embodied in Texas law since only those political parties whose gubernatorial candidate received 200,000 or more votes in the last preceding general election are required to conduct primary elections.28 Moreover, the Court has recently upheld the validity of a state law distinguishing between political parties on the basis of success in prior election. Jenness v. Fortson, supra. We are not persuaded that Texas would be faced with an impossible task in distinguishing between political parties for the purpose of financing primaries.
20
We also reject the theory that since the candidates are availing themselves of the primary machinery, it is appropriate that they pay that share of the cost that they have occasioned. The force of this argument is diluted by the fact that candidates for offices requiring statewide primaries are generally assessed at a lower rate than candidates for local office, although the statewide primaries undoubtedly involve a greater expense.29 More importantly, the costs do not arise because candidates decide to enter a primary or because the parties decide to conduct one, but because the State has, as a matter of legislative choice, directed that party primaries be held. The Stae has presumably chosen this course more to benefit the voters than the candidates.
21
Appellants seem to place reliance on the self-evident fact that if the State must assume the cost, the voters, as taxpayers, will ultimately be burdened with the expense of the primaries. But it it far too late to make out a case that the party primary is such a lesser part of the democratic process that its cost must be shifted away from the taxpayers generally. The financial burden for general elections is carried by all taxpayers and appellants have not demonstrated a valid basis for distinguishing between these two legitimate costs of the democratic process. It seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the cost among all of the voters in an attempt to distribute the influence without regard to wealth. Viewing the myriad governmental functions supported from general revenues, it is difficult to single out any of a higher order than the conduct of elections at all levels to bring forth those persons desired by their fellow citizens to govern. Without making light of the State's interest in husbanding its revenues, we fail to see such an element of necessity in the State's present means of financing primaries as to justify the resulting incursion on the prerogatives of voters.
22
(3)
23
Since the State has failed to establish the requisite justification for this filing-fee system, we hold that it results in a denial of equal protection of the laws. It must be emphasized that nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees or licensing fees in other contexts. By requiring candidates to shoulder the costs of conducting primary elections through filing fees and by providing no reasonable alternative means of access to the ballot, the State of Texas has erected a system that utilizes the criterion of ability to pay as a condition to being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote for candidates of their choice. These salient features of the Texas system are critical to our determination of constitutional invalidity.
24
Affirmed.
25
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
See Arts. 13.07a, 13.08, 13.08a, 13.15, and 13.16 of the Texas Election Code Ann., V.A.T.S. (Supp.1970—1971)
2
Carter also failed to have his application notarized and to have it accompanied by a statutory loyalty affidavit. Since appellees Pate and Wischkaemper were in all respects eligible to be candidates in the primary except for their failure to pay the filing fees, Carter's participation in this appeal is superfluous and we need not decide whether the additional defects in his application deprive him of standing to attack the constitutionality of the filing-fee system.
3
The order provided that their ultimate liability for the fees would depend on the outcome of this action. Preliminary relief was not granted to Carter because of his noncompliance with requisites for candidacy unrelated to the challenged filing fees. See n. 2, supra.
4
The specific provisions held unconstitutional are those listed in n. 1, supra.
5
Texas law does permit the names of independent candidates to appear on the official ballot in the general election if a proper application containing a voter petition is submitted. The number of eigible voters required to sign the petition varies from 1% to 5% depending on the office sought. For district, county, and precinct offices, candidates must obtain the signatures of 5% of the eligible voters with a ceiling of 500 signatures. No person may sign the application of more than one person for the same office, and no person who has voted in a primary may sign the application of a candidate for an office for which a nomination was made at such primary. Art. 13.50, Tex.Election Code Ann. (1967).
No fees are assessed against candidates in general elections.
6
Art. 13.09(b), Tex.Election Code Ann. (Supp.1970—1971). Write-in votes are permitted for the party offices of county chairman and precinct chairman in the general primary but not in the run-off primary. Ibid.
Former Art. 13.08c (repealed, Acts 1967, 60th Leg., p. 1932, c. 723, § 77) permitted write-in votes in primary elections and provided that if a write-in candidate in the first primary either received a majority of the votes or was one of the two highest vote getters in a race in which no candidate received a majority of the votes, he could not be the party's nominee in the general election or participate in the run-off primary, unless and until he paid the filing fee he would have been assessed had he originally sought a place on the primary ballot.
7
Art. 13.08, Tex.Election Code Ann. (Supp.1970—1971).
8
Ibid.
9
Art. 13.08a, Tex.Election Code Ann. (Supp.1970—1971). This provision is applicable to Members of Congress.
10
The $6,300 fee required of appellee Wischkaemper, for example, amounts to 32% of the $19,700 annual salary for County Judge in Tarrant County. Similarly, in the May 2, 1970, Democratic primary, candidates for five county offices in Ward County were assessed $6,250 for a filing fee; this fee represented 76.6% of the $8,160 annual salary for four of these offices; for the fifth office, that of County Commissioner, it represented 99.7% of the annual salary of $6,270.
11
Assessments in excess of $1,000 appear to be common in many Texas counties, and assessments exceeding $5,000 are typical for certain offices in several counties. Filing fees for judgeships seem to run particularly high. Persons seeking to run in the May 2, 1970, Democratic primary for the office of District Judge in Tarrant County were required to pay $8,900 in order to have their names appear on the ballot.
It should be noted, however, that amounts not needed to finance the primary are refunded to the candidates, and that in some counties refunds tend to run as high as 50% or more of the assessed filing fee.
12
Art. 13,08a, 13.16 subd. 2, Tex.Election Code Ann. (Supp.1970—1971):
Population of County Filing Fee
less than 650,000.......... $150
650,000 to 900,000......... $600
900,000 to 1,000,000....... $300
1,000,000 or more.......... $500
It is not clear from the face of the statute why candidates from counties having populations between 650,000 and 900,000 must pay more than candidates from counties of larger sizes.
An additional provision requires that candidates for State Representative from districts encompassing either eight or nine counties must pay $25 per county as a filing fee. Art. 13.08a, Tex.Election Code Ann. (Supp.1970—1971).
13
Art. 13.08a, Tex.Election Code Ann. (Supp.1970—1971). There is a fixed-fee schedule if nomination is sought from a county with a population of 650,000 or more:
Population of County Filing Fee
650,000 to 900,000 *..... $1,000
900,000 to 1,000,000 .... $ 300
1,000,000 or more ....... $1,000
* If part of such county is joined to two or more counties to
constitute a senatorial district, the filing fee is fixed at $250.
There is a ceiling on the filing fee if nomination is sought in a senatorial district encompassing counties with less than 650,000 in population. Art. 13.16 subd. 1, Tex.Election Code Ann. (Supp.1970—1971):
Population of County Filing Fee
per County
Less than 5,000.......... $ 1
5,000 to 10,000.......... $ 5
10,000 to 40,000.......... $ 10
40,000 to 125,000......... $ 50
125,000 to 200,000........ $ 75
200,000 to 650,000........ $100
Persons seeking nomination in a senatorial district constituting exactly two counties must pay a filing fee of $200.
14
Art. 13.15, Tex.Election Code Ann. (Supp.1970—1971). Candidates for Justice of the Court of Civil Appeals are also required to pay their filing fees to the chairman of the state committee, at the rate of 5% of one year's salary. Ibid.
15
Art. 13.08(4), Tex.Election Code Ann. (Supp.1970—1971).
16
Appellants ask the Court to reconsider the scope of Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed 987 (1944), in which the Court held that the action of the Democratic Party of Texas in excluding Negroes from participation in party primaries constituted 'state action.' See also Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); cf. Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932). Appellants contend that not every aspect of a party primary election must be considered 'state action' cognizable under the Fourteenth Amendment. But we are here concerned with the constitutionality of a state law rather than action by a political party and thus have no occasion to consider the scope of the holding in Smith v. Allwright, supra.
17
The Texas Legislature has enacted a 'contingent, temporary law' modifying the filing-fee requirement involved in this case. C. 11, H.B. 5, 62d Leg., 1st Called Sess. (1971). The new provisions allow persons unable to pay the filing fees to have their names placed on the ballot in primary elections if they submit a petition
'signed by qualified voters eligible to vote for the office for which the candidate is running, equal in number to at least 10 percent of the entire vote cast for that party's candidate for governor in the last preceding general election in the territory . . . in which the candidate is running.' (Art. 13.08c(b).)
The Act provides that it is to go into effect only if '(1) the Supreme Court of the United States does not dispose of the appeal (in this case) . . . before January 1, 1972; or (2) the Supreme Court of the United States affirms or refuses to review the judgment of the district court in the aforesaid case . . .' (§ 7(b)). The Act expires of its own force on December 31, 1972, at which time the prior law goes back into effect.
Although the Act has gone into effect due to the absence of decision by the Court on this appeal before January 1, 1972, the change in the law does not render this case moot. The effect of the 'contingent, temporary law' enacted by the Texas Legislature is to suspend enforcement of the strict filing-fee requirement during calendar year 1972. Since enforcement of the filing-fee requirement under the prior law was permanently enjoined by the court below, that injunction would continue to have force and effect after December 31, 1972. Furthermore, there is a continuing controversy with respect to appellees' obligation to pay the filing fees for participation in the Democratic primary held on May 2, 1970. The order of the District Court allowing appellees Pate and Wischkaemper to run in the primary without payment of fees stated that they would be liable for the fees if they did not ultimately prevail in this action. See n. 3, supra.
We take note of the fact that in Johnston v. Luna, 338 F.Supp. 355 (ND Tex.1972), the same three-judge court that issued the injunction appealed from in this case declared the new law unconstitutional and enjoined its enforcement. Our attention is confined to the case before us, and we intimate no view on the merits of that controversy.
18
See Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 425—426, 81 S.Ct. 1101, 1104—1105, 6 L.Ed.2d 393 (1961).
19
Cf. Turner v. Fouche, 396 U.S. 346. 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970); Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed 497 (1944).
20
See Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).
21
See Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
22
The Texas Election Code provides that no person shall be nominated at a primary election for any office unless he receives a majority of the votes cast. In the event that no candidate receives a majority, a runoff election is held between the two candidates receiving the highest number of votes. Arts. 13.03, 13.07, Tex.Election Code Ann. (1967).
23
Cf. Harper v. Virginia Board of Elections, 383 U.S., at 684—685, 86 S.Ct., at 1091, (Harlan, J., dissenting).
24
Cf. Turner v. Fouche, 396 U.S., at 364, 90 S.Ct., at 542.
25
Appellants stae that Texas requires only the signatures of 1% of the eligible voters. Although this is true for offices voted for statewide, the candidates for local offices in this case would have had to obtain the signatures of 5% of the eligible voters up to a maximum of 500 signatures. Moreover, only those persons not voting in the primary would have been eligible to sign a nominating petition. See n. 5, supra.
26
See Carter v. Dies, 321 F.Supp. 1358, 1363 (N.D.Tex.1970) (Thornberry, J., concurring).
27
Cf. Harper v. Virginia Board of Elections, 383 U.S., at 674, 86 S.Ct., at 1085 (Black, J., dissenting).
28
Art. 13.02, Tex.Election Code Ann. (1967).
29
This would be a different case if the fees approximated the cost of processing a candidate's application for a place on the ballot, a cost resulting from the candidate's decision to enter a primary. The term filing fee has long been thought to cover the cost of filing, that is, the cost of placing a particular document on the public record.
| 12
|
405 U.S. 172
92 S.Ct. 848
31 L.Ed.2d 122
Raymond SMITH and Melvin McClaim, Petitioners,v.State of FLORIDA.
No. 70-5055.
Supreme Court of the United States
Argued Dec. 8, 1971.
February 24, 1972
Phillip A. Hubbart, Miami, Fla., for petitioners.
Nelson E. Bailey, Tallahassee, Fla., for respondent, pro hac vice, by special leave of Court.
Syllabus
Petitioners' convictions for violation of the Florida vagrancy statute for 'wandering or strolling around from place to place without any lawful purpose or object' are vacated and the case is remanded for reconsideration in light of Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. Pp. 172-173.
239 So.2d 250, vacated and remanded.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Florida's vagrancy statute1 includes in the term 'vagrants,' who can be criminally charged and convicted, 'persons wandering or strolling around from place to place without any lawful purpose or object.'2 The defendants were so charged and pleaded not guilty, waived trial by jury, and were tried by a judge, who denied a motion to dismiss. The Florida Supreme Court affirmed, two judges dissenting. 239 So.2d 250. The case is here on a petition for a writ of certiorari which we granted. 403 U.S. 917, 91 S.Ct. 2234, 29 L.Ed.2d 694.
2
We have this day decided Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. We therefore vacate and remand the judgment in the instant case for reconsideration in light of Papachristou.
3
So ordered.
4
Judgment vacated and case remanded.
5
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
Fla.Stat. § 856.02 (1965), F.S.A. See Papachristou v. City of Jacksonville, decided this day, 405 U.S., at 157, 92 S.Ct., at 841 n. 2.
2
§ 856.02.
| 34
|
405 U.S. 174
92 S.Ct. 775.
31 L.Ed.2d 124
D. H. OVERMYER CO., INC., OF OHIO, et al., Petitioners,v.FRICK COMPANY.
No. 69—5.
Argued Nov. 9, 1971.
Decided Feb. 24, 1972.
Syllabus
After a corporation (Overmyer) had defaulted in its payments for equipment manufactured and being installed by respondent company (Frick), and Overmyer under a post-contract arrangement had made a partial cash payment and issued an installment note for the balance, Frick completed the work, which Overmyer accepted as satisfactory. Thereafter Overmyer again asked for relief and, with counsel for both corporations participating in the negotiations, the first note was replaced with a second, which contained a 'cognovit' provision in conformity with Ohio law at that time whereby Overmyer consented in advance, should it default in interest or principal payments, to Frick's obtaining a judgment without notice or hearing, and issued certain second mortgages in Frick's favor, Frick agreeing to release three mechanic's liens, to reduce the monthly payment amounts and interest rate, and to extend the time for final payment. When Overmyer, claiming a contract breach, stopped making payments on the new note, Frick, under the cognovit provision, through an attorney unknown to but on behalf of Overmyer, and without personal service on or prior notice to Overmyer, caused judgment to be entered on the note. Overmyer's motion to vacate the judgment was overruled after a post-judgment hearing, and the judgment court's decision was affirmed on appeal against Overmyer's contention that the cognovit procedure violated due process requirements. Held: Overmyer, for consideration and with full awareness of the legal consequences, waived its rights to prejudgment notice and hearing, and on the facts of this case, which involved contractual arrangements between two corporations acting with advice of counsel, the procedure under the cognovit clause (which is not unconstitutional per se) did not violate Overmyer's Fourteenth Amendment rights. Pp. 182—188.
Affirmed.
Russell Morton Brown, Washington, D.C., for petitioners.
Gregory M. Harvey, Philadelphia, Pa., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the issue of the constitutionality, under the Due Process Clause of the Fourteenth Amendment, of the cognovit note authorized by Ohio Rev.Code § 2323.13.1
2
The cognovit is the ancient legal device by which the debtor consents in advance to the holder's obtaining a judgment without notice or hearing, and possibly even with the appearance, on the debtor's behalf, of an attorney designated by the holder.2 It was known at least as far back as Blackstone's time. 3 W. Blackstone, Commentaries *397.3 In a case applying Ohio law, it was said that the purpose of the cognovit is 'to permit the note holder to obtain judgment without a trial of possible defenses which the signers of the notes might assert.' Hadden v. Rumsey Products, Inc., 196 F.2d 92, 96 (CA2 1952). And long ago the cognovit method was described by the Chief Justice of New Jersey as 'the loosest way of binding a man's property that ever was devised in any civilized country.' Alderman v. Diament, 7 N.J.L. 197, 198 (1824). Mr. Dickens noted it with obvious disfavor. Pickwick Papers, c. 47. The cognovit has been the subject of comment, much of it critical.4
3
Statutory treatment varies widely. Some States specifically authorize the cognovit.5 Others disallow it.6 Some go so far as to make its employment a misdemeanor.7 The majority, however, regulate its use and many prohibit the device in small loans and consumer sales.8
4
In Ohio the cognovit has long been recognized by both statute and court decision. 1 Chase's Statutes, c. 243, § 34 (1810); Osborn v. Hawley, 19 Ohio 130 (1850); Marsden v. Soper, 11 Ohio St. 503 (1860); Watson v. Paine, 25 Ohio St. 340 (1874); Clements v. Hull, 35 Ohio St. 141 (1878). The State's courts, however, give the instrument a strict and limited construction. See Peoples Banking Co. v. Brumfield Hay & Grain Co., 172 Ohio St. 545, 548, 179 N.E.2d 53, 55 (1961).
5
This Court apparently has decided only two cases concerning cognovit notes, and both have come here in a full faith and credit context. National Exchange Bank v. Wiley, 195 U.S. 257, 25 S.Ct. 70, 49 L.Ed. 184 (1904); Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U.S. 287, 11 S.Ct. 92, 34 L.Ed. 670 (1890). See American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231 (1932).
6
* The argument that a provision of this kind is offensive to current notions of Fourteenth Amendment due process is, at first glance, an appealing one. However, here, as in nearly every case, facts are important. We state them chronologically:
7
1. Petitioners D. H. Overmyer Co., Inc., of Ohio, and D. H. Overmyer Co., Inc., of Kentucky, are segments of a warehousing enterprise that counsel at one point in the litigation described as having built 'in three years . . . 180 warehouses in thirty states.' The corporate structure is complex. Because the identity and individuality of the respective corporate entities are not relevant here, we refer to the enterprise in the aggregate as 'Overmyer.'
8
2. In 1966 a corporation, which then was or at a later date became an Overmyer affiliate, executed a contract with the respondent Frick Co. for the manufacture and installation by Frick, at a cost of $223,000, of an automatic refrigeration system in a warehouse under construction in Toledo, Ohio.
9
3. Overmyer fell behind in the progress payments due from it under the contract. By the end of September 1966 approximately $120,000 was overdue. Because of this delinquency, Frick stopped its work on October 10. Frick indicated to Overmyer, however, by letter on that date, its willingness to accept an offer from Overmyer to pay $35,000 in cash 'provided the balance can be evidenced by interest-bearing judgment notes.'
10
4. On November 3 Frick filed three mechanic's leins against the Toledo property for a total of $194,031, the amount of the contract price allegedly unpaid at that time.
11
5. The parties continued to negotiate. In January 1967 Frick, in accommodation, agreed to complete the work upon an immediate cash payment of 10% ($19,403.10) and payment of the balance of $174,627.90 in 12 equal monthly installments with 6 1/2% interest per annum. On February 17 Overmyer made the 10% payment and executed an installment note calling for 12 monthly payments of $15,498.23 each beginning March 1, 1967. This note contained no confession-of-judgment provision. It recited that it did not operate as a waiver of the mechanic's liens, but it also stated that Frick would forgo enforcement of those lien rights so long as there was no default under the note.
12
6. Frick resumed its work, completed it, and sent Overmyer a notice of completion. On March 17 Overmyer's vice president acknowledged in writing that the system had been 'completed in a satisfactory manner' and that it was 'accepted as per the contract conditions.'
13
7. Subsequently, Overmyer requested additional time to make the installment payments. It also asked that Frick release the mechanic's liens against the Toledo property. Negotiations between the parties at that time finally resulted in an agreement in June 1967 that (a) Overmyer would execute a new note for the then-outstanding balance of $130,997 and calling for payment of that amount in 21 equal monthly installments of $6,891.85 each, beginning June 1, 1967, and ending in February 1969, two years after Frick's completion of the work (as contrasted with the $15,498.23 monthly installments ending February 1968 specified by the first note); (b) the interest rate would be 6% rather than 6 1/2%; (c) Frick would release the three mechanic's liens; (d) Overmyer would execute second mortgages, with Frick as mortgagee, on property in Tampa and Louisville; and (e) Overmyer's new note would contain a confession-of-judgment clause. The new note, signed in Ohio by the two petitioners here, was delivered to Frick some months later by letter dated October 2, 1967, accompanied by five checks for the June through October payments. This letter was from Overmyer's general counsel to Frick's counsel. The second mortgages were executed and recorded, and the mechanic's liens were released. The note contained the following judgment clause:
14
'The undersigned hereby authorize any attorney designated by the Holder hereof to appear in any court of record in the State of Ohio, and waive this issuance and service of process, and confess a judgment against the undersigned in favor of the Holder of this Note, for the principal of this Note plus interest if the undersigned defaults in any payment of principal and interest and if said default shall continue for the period of fifteen (15) days.'
15
8. On June 1, 1968, Overmyer ceased making the monthly payments under the new note and, asserting a breach by Frick of the original contract, proceeded to institute a diversity action against Frick in the United States District Court for the Southern District of New York. Overmyer sought damages in excess of $170,000 and a stay of all proceedings by Frick under the note. On July 5 Judge Frankel vacated an ex parte stay he had theretofore granted. On August 7 Judge Mansfield denied Overmyer's motion for reinstatement of the stay. He concluded, 'Plaintiff has failed to show any likelihood that it will prevail upon the merits. On the contrary, extensive documentary evidence furnished by defendant indicates that the plaintiff's action lacks merit.'
16
9. On July 12, without prior notice to Overmyer, Frick caused judgment to be entered against Overmyer (specifically against the two petitioners here) in the Common Pleas Court of Lucas County, Ohio. The judgment amount was the balance then remaining on the note, namely, $62,370, plus interest from May 1, 1968, and costs. This judgment was effected through the appearance of an Ohio attorney on behalf of the defendants (petitioners here) in that Ohio action. His appearance was 'by virtue of the warrant of attorney' in the second note. The lawyer waived the issuance and service of process and confessed the judgment. This attorney was not known to Overmyer, had not been retained by Overmyer, and had not communicated with the petitioners prior to the entry of the judgment.
17
10. As required by Ohio Rev.Code § 2323.13(C), the clerk of the state court, on July 16, mailed notices of the entry of the judgment on the cognovit note to Overmyer at addresses in New York, Ohio, and Kentucky.
18
11. On July 22 Overmyer, by counsel, filed in the Ohio court motions to stay execution and for a new trial. The latter motion referred to '(i)rregularity in the proceedings of the rpevailing party and of the court . . .' On August 6, Overmyer filed a motion to vacate judgment and tendered an answer and counterclaim alleging breach of contract by Frick, and damages. A hearing was held. Both sides submitted affidavits. Those submitted by Overmyer asserted lack of notice before judgment and alleged a breach of contract by Frick. A copy of Judge Mansfield's findings, conclusions, and opinion was placed in the record. On November 16 the court overruled each motion.
19
12. Overmyer appealed to the Court of Appeals for Lucas County, Ohio, specifically asserting deprivation of due process violative of the Ohio and Federal Constitutions. That court affirmed with a brief journal entry.
20
13. The Supreme Court of Ohio, 'sua sponte dismisse(d) the appeal for the reason that no substantial constitutional question exists herein.'
21
We granted certiorari. 401 U.S. 992, 91 S.Ct. 1220, 28 L.Ed.2d 530 (1971).
II
22
This chronology clearly reveals that Overmyer's situation, of which it now complains, is one brought about largely by its own misfortune and failure or inability to pay. The initial agreement between Overmyer and Frick was a routine construction subcontract. Frick agreed to do the work and Overmyer agreed to pay a designated amount for that work by progress payments at specified times. This contract was not accompanied by any promissory note.
23
Overmyer then became delinquent in its payments. Frick naturally refrained from further work. This impasse was resolved by the February 1967 post-contract arrangement, pursuant to which Overmyer made an immediate partial payment in cash and issued its installment note for the balance. Although Frick had suggested a confession-of-judgment clause, the note as executed and delivered contained no provision of that kind.
24
Frick completed its work and Overmyer accepted the work as satisfactory. Thereafter Overmyer again asked for relief. At this time counsel for each side participated in the negotiations. The first note was replaced by the second. The latter contained the confession-of-judgment provision Overmyer now finds so offensive. However, in exchange for that provision and for its execution of the second mortgages, Overmyer received benefit and consideration in the form of (a) Frick's release of the three mechanic's liens, (b) reduction in the amount of the monthly payment, (c) further time in which the total amount was to be paid, and (d) reduction of a half point in the interest rate.
25
Were we concerned here only with the validity of the June 1967 agreement under principles of contract law, that issue would be readily resolved. Obviously and undeniably, Overmyer's execution and delivery of the second note were for an adequate consideration and were the product of negotiations carried on by corporate parties with the advice of competent counsel.
26
More than mere contract law, however, is involved here.
III
27
Petitioner Overmyer first asserts that the Ohio judgment is invalid because there was no personal service upon it, no voluntary appearance by it in Ohio, and no genuine appearance by an attorney on its behalf. Thus, it is said, there was no personal jurisdiction over Overmyer in the Ohio proceeding. The petitioner invokes Pennoyer v. Neff, 95 U.S. 714, 732, 24 L.Ed. 565 (1878), and other cases decided here and by the Ohio courts enunciating accepted and long-established principles for in personam jurisdiction. McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608 (1917); Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, 1 L.Ed.2d 1456 (1957); Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944); Railroad Co. v. Goodman, 57 Ohio St. 641, 50 N.E. 1132 (1897); Cleveland Leader Printing Co. v. Green, 52 Ohio St. 487, 491, 40 N.E. 201, 203 (1895).
28
It is further said that whether a defendant's appearance is voluntary is to be determined at the time of the court proceeding, not at a much earlier date when an agreement was signed; that an unauthorized appearance by an attorney on a defendant's behalf cannot confer jurisdiction; and that the lawyer who appeared in Ohio was not Overmyer's attorney in any sense of the word, but was only an agent of Frick.
29
The argument then proceeds to constitutional grounds. It is said that due process requires reasonable notice and an opportunity to be heard, citing Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). It is acknowledged, however, that the question here is in a context of 'contract waiver, before suit has been filed, before any dispute has arisen' and 'whereby a party gives up in advance his constitutional right to defend any suit by the other, to notice and an opportunity to be heard, no matter what defenses he may have, and to be represented by counsel of his own choice.'9 In other words, Overmyer's position here specifically is that it is 'unconstitutional to waive in advance the right to present a defense in an action on the note.'10 It is conceded that in Ohio a court has the power to open the judgment upon a proper showing. Bellows v. Bowlus, 83 Ohio App. 90, 93, 82 N.E.2d 429, 432 (1948). But it is claimed that such a move is discretionary and ordinarily will not be disturbed on appeal, and that it may not prevent execution before the debtor has notice. Griffin v. Griffin, 327 U.S. 220, 231—232, 66 S.Ct. 556, 561—562, 90 L.Ed. 635 (1946). Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), are cited.
30
The due process rights to notice and hearing prior to a civil judgment are subject to waiver. In National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), the Court observed:
31
'(I)t is settled . . . that parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether.' Id., at 315—316, 84 S.Ct., at 414.
32
And in Boddie v. Connecticut, supra, the Court acknowledged that 'the hearing required by due process is subject to waiver.' 401 U.S., at 378—379, 91 S.Ct., at 786.
33
This, of course, parallels the recognition of waiver in the criminal context where personal liberty, rather than a property right, is involved. Illinois v. Allen, 397 U.S. 337, 342—343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970) (right to be present at trial); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) (rights to counsel and against compulsory self-incrimination); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963) (habeas corpus); Rogers v. United States, 340 U.S. 367, 371, 71 S.Ct. 438, 440, 95 L.Ed. 344 (1951) (right against compulsory self-incrimination).
34
Even if, for present purposes, we assume that the standard for waiver in a corporate-property-right case of this kind is the same standard applicable to waiver in a criminal proceeding, that is, that it be voluntary, knowing, and intelligently made, Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970); Miranda v. Arizona, 384 U.S., at 444, 86 S.Ct., at 1612, or 'an intentional relinquishment or abandonment of a known right or privilege,' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct., 1019, 1023, 82 L.Ed. 1461 (1938); Fay v. Noia, 372 U.S., at 439, 83 S.Ct., at 849, and even if, as the Court has said in the civil area, '(w)e do not presume acquiescence in the loss of fundamental rights,' Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937), that standard was fully satisfied here.
35
Overmyer is a corporation. Its corporate structure is complicated. Its activities are widespread. As its counsel in the Ohio post-judgment proceeding stated, it has built many warehouses in many States and has been party to 'tens of thousands of contracts with many contractors.' This is not a case of unequal bargaining power or overreaching. The Overmyer-Frick agreement, from the start, was not a contract of adhesion. There was no refusal on Frick's part to deal with Overmyer unless Overmyer agreed to a cognovit. The initial contract between the two corporations contained no confession-of-judgment clause. When, later, the first installment note from Overmyer came into being, it, too, contained no provision of that kind. It was only after Frick's work was completed and accepted by Overmyer, and when Overmyer again became delinquent in its payments on the matured claim and asked for further relief, that the second note containing the clause was executed.
36
Overmyer does not contend here that it or its counsel was not aware of the significance of the note and of the cognovit provision. Indeed, it could not do so in the light of the facts. Frick had suggested the provision in October 1966, but the first note, readjusting the progress payments, was executed without it. It appeared in the second note delivered by Overmyer's own counsel in return for substantial benefits and consideration to Overmyer. Particularly important, it would seem, was the release of Frick's mechanic's liens, but there were, in addition, the monetary relief as to amount, time and interest rate.
37
Overmyer may not have been able to predict with accuracy just how or when Frick would proceed under the confession clause if further default by Overmyer occurred, as it did, but this inability does not in itself militate against effective waiver. See Brady v. United States, 397 U.S., at 757, 90 S.Ct., at 1473; McMann v. Richardson, 397 U.S. 759, 772—773, 90 S.Ct. 1441, 1449 1450, 25 L.Ed.2d 763 (1970).
38
We therefore hold that Overmyer, in its execution and delivery to Frick of the second installment note containing the cognovit provision, voluntarily, intelligently, and knowingly waived the rights it otherwise possessed to prejudgment notice and hearing, and that it did so with full awareness of the legal consequences.
39
Insurance Co. v. Morse, 20 Wall. 445, 22 L.Ed. 365 (1874), affords no comfort to the petitioners. That case concerned the constitutional validity of a state statute that required a foreign insurance company, desiring to qualify in the State, to agree not to remove any suit against it to a federal court. The Court quite naturally struck down the statute, for it thwarted the authority vested by Congress in the federal courts and violated the Privileges and Immunities Clause.
40
Myers v. Jenkins, 63 Ohio St. 101, 120, 57 N.E. 1089, 1093 (1900), involving an insurance contract that called for adjustment of claims through the company alone and without resort to the courts, is similarly unhelpful.
IV
Some concluding comments are in order:
41
1. Our holding necessarily means that a cognovit clause is not, per se, violative of Fourteenth Amendment due process. Overmyer could prevail here only if the clause were constitutionally invalid. The facts of this case, as we observed above, are important, and those facts amply demonstrate that a cognovit provision may well serve a proper and useful purpose in the commercial world and at the same time not be vulnerable to constitutional attack.
42
2. Our holding, of course, is not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision, other legal consequences may ensue.
43
3. Overmyer, merely because of its execution of the cognovit note, is not rendered defenseless. It concedes that in Ohio the judgment court may vacate its judgment upon a showing of a valid defense and, indeed, Overmyer had a post-judgment hearing in the Ohio court. If there were defenses such as prior payment or mistaken identity, those defenses could be asserted. And there is nothing we see that prevented Overmyer from pursuing its breach-of-contract claim against Frick in a proper forum. Here, again, that is precisely what Overmyer has attempted to do, thus far unsuccessfully, in the Southern District of New York.
44
The judgment is affirmed.
45
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
46
Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, concurring.
47
I agree that the heavy burden against the waiver of constitutional rights, which applies even in civil matters, Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937); Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937), has been effectively rebutted by the evidence presented in this record. Whatever procedural hardship the Ohio confession-of-judgment scheme worked upon the petitioners was voluntarily and understandingly self-inflicted through the arm's-length bargaining of these corporate parties.
48
I add a word concerning the contention that opening of confessed judgments in Ohio is merely discretionary and requires a higher burden of persuasion than is ordinarily imposed upon defendants. As I read the Ohio law of cognovit notes, trial judges have traditionally enjoyed wide discretion in vacating confessed judgments. 32 Ohio Jur.2d, Judgments § 558 (1958). In Livingstone v. Rebman, 169 Ohio St. 109, 158 N.E.2d 366 (1959), however, the Ohio Supreme Court imposed certain safeguards on the exercise of a judge's discretion in opening confessed judgments. That case also involved a petition to open a confessed judgment where, as here, the debtor alleged the affirmative defense of failure of consideration. Using the preponderance-of-the-evidence test, the trial court had found insufficient support for the debtor's claim and had dismissed the motion to open. On appeal, however, the Ohio Supreme Court reversed on the degree of proof needed to vacate a confessed judgment. Said the court:
49
'(I)f there is credible evidence supporting the defense . . . from which reasonable minds may reach different conclusions, it is then the duty of the court to suspend the judgment and permit the issue raised by the pleadings to be tried by a jury, or, if a jury is waived, by the court.' Id., at 121 122, 158 N.E.2d, at 375. (Emphasis supplied.)
50
Thus it would appear that the Ohio confessed judgment may be opened if the debtor poses a jury question, that is, if his evidence would have been sufficient to prevent a directed verdict against him. That standard is a minimal obstacle.*
51
The fact that a trial judge is duty-bound to vacate judgments obtained through cognovit clauses where debtors present jury questions is a complete answer to the contention that unbridled discretion governs the disposition of petitions to vacate. See also Goodyear v. Stone, 169 Ohio St. 124, 158 N.E.2d 376 (1959); McMillen v. Willard Garage Inc., 14 Ohio App.2d 112, 115, 237 N.E.2d 155, 158 (1968); Central National Bank of Cleveland v. Standard Loan & Finance, 5 Ohio App.2d 101, 104, 195 N.E.2d 597, 600 (1964).
52
The record shows that the petitioners were given every opportunity after judgment to explain their affirmative defense to the state courts and that the defense was rejected solely because the evidence adduced in support thereof was too thin to warrant further presentation to a jury.
1
When the judgment challenged here was entered in 1968 the statute read:
'Sec. 2323.13. (A) An attorney who confesses judgment in a case, at the time of making such confession, must produce the warrant of attorney for making it to the court before which he makes the confession, which shall be in the county where the maker or any one of several makers resides or in the county where the maker or any one of several makers signed the warrant of attorney authorizing confession of judgment, any agreement to the contrary notwithstanding; and the original or a copy of the warrant shall be filed with the clerk.
'(B) The attorney who represents the judgment creditor shall include in the petition a statement setting forth to the best of his knowledge the last known address of the defendant.
'(C) Immediately upon entering any such judgment the court shall notify the defendant of the entry of the judgment by personal service or by registered or certified mail mailed to him at the address set forth in the petition.'
Senate Bill No. 85, 133 Ohio Laws 196—198 (1969—1970), effective Sept. 16, 1970, amended paragraphs (A) and (C), in ways not pertinent here, and added paragraph (D):
'(D) A warrant of attorney to confess judgment contained in any promissory note, bond, security agreement, lease, contract, or other evidence of indebtedness executed on or after January 1, 1971, is invalid and the courts are without authority to render a judgment based upon such a warrant unless there appears on the instrument evidencing the indebtedness, directly above or below the signature of each maker, or other person authorizing the confession, in such type size or distinctive marking that it appears more clearly and conspicuously than anything else on the document:
"Warning—By signing this paper you give up your right to notice and court trial. If you do not pay on time a court judgment may be taken against you without your prior knowledge and the powers of a court can be used to collect from you or your employer regardless of any claims you may have against the creditor whether for returned goods, faulty goods, failure on his part to comply with the agreement, or any other cause."
2
The Iowa Supreme Court succinctly has defined a cognovit as 'the written authority of the debtor and his direction . . . to enter judgment against him as stated therein.' Blott v. Blott, 227 Iowa 1108, 1111—1112, 290 N.W. 74, 76 (1940).
In Jones v. John Hancock Mutual Life Insurance Co., 289 F.Supp. 930, 935 (WD Mich.1968), aff'd, 416 F.2d 829 (CA6 1969), Judge Fox, in applying Ohio law, pertinently observed:
'A cognovit note is not an ordinary note. It is indeed an extraordinary note which authorizes an attorney to confess judgment against the person or persons signing it. It is written authority of a debtor and a direction by him for the entry of a judgment against him if the obligation set forth in the note is not paid when due. Such a judgment may be taken by any person or any company holding the note, and it cuts off every defense which the maker of the note may otherwise have. It likewise cuts off all rights of appeal from any judgment taken on it.'
3
Historical references appear in General Contract Purchase Corp. v. Max Keil Real Estate Co., 35 Del. 531, 532—533, 170 A. 797, 798 (1933), and First Nat. Bk. v. White, 220 Mo. 717, 728 732, 120 S.W. 36, 39—40 (1909).
4
Recent Cases, Confession of Judgments—Refusal of New York State to Enforce Pennsylvania Cognovit Judgments, 74 Dick.L.Rev. 750 (1970); Note, Enforcement of Sister State's Cognovit Judgments, 16 Wayne L.Rev. 1181 (1970); H. Goodrich, Conflict of Laws § 73, p. 122 (4th ed. 1964); Hopson, Cognovit Judgments: An Ignored Problem of Due Process and Full Faith and Credit, 29 U.Chi.L.Rev. 111 (1961); Hunter, The Warrant of Attorney to Confess Judgment, 8 Ohio St.L.J. 1 (1941); Note, A Clash in Ohio?: Cognovit Notes and the Business Ethic of the UCC, 35 U.Cin.L.Rev. 470 (1966); Comment, The Effect of Full Faith and Credit on Cognovit Judgments, 42 U.Colo.L.Rev. 173 (1970); Comment, Confessions of Judgment: The Due Process Defects, 43 Temp.L.Q. 279 (1970); Comment, Cognovit Judgments and the Full Faith and Credit Clause, 50 B.U.L.Rev. 330 (1970); Comment, Cognovit Judgments: Some Constitutional Considerations, 70 Col.L.Rev. 1118 (1970); Note, Confessions of Judgment, 102 U.Pa.L.Rev. 524 (1954); Note, Foreign Courts May Deny Full Faith and Credit to Cognovit Judgments and Must Do So When Entered Pursuant to an Unlimited Warrant of Attorney, 56 Va.L.Rev. 554 (1970); Note, Should a Cognovit Judgment Validly Entered in One State be Recognized by a Sister State?, 30 Md.L.Rev. 350 (1970).
5
Ill.Rev.Stat., c. 110, § 50; Mo.Rev.Stat. § 511.100; Ohio Rev.Code § 2323.13; Pa.Stat.Ann., Tit. 12, §§ 738 and 739 and Pa. Rules of Civil Procedure 2950—2976, 12 P.S. Appendix; S.D.Comp.Laws § 21—26—1.
6
See, for example, Ala.Code, Tit. 20, § 16, and Tit. 62, § 248; Ariz.Rev.Stat.Ann. §§ 6—629 and 44—143; Mass.Gen.Laws Ann., c. 231, § 13A.
7
Ind.Ann.Stat. §§ 2—2904 and 2—2906, IC 1971, 34—2—25—1, 34 2—26—1; N.M.Stat.Ann. §§ 21—9—16 and 21—9—18; R.I.Gen.Laws Ann. §§ 19—25—24 and 19—25—36.
8
See, for example, Conn.Gen.Stat.Rev. §§ 42—88 and 36—236; Mich.Comp.Laws §§ 600.2906 and 493.12, Mich.Stat.Ann. §§ 27A.2906 and 23.667(12); Minn.Stat. §§ 548.22, 168.71, and 56.12; N.J.Stat.Ann. § 2A:16—9.
9
Brief for Petitioners 16.
10
Trans. of Oral Arg. 17.
*
Thus the Ohio system places no undue burden of proof upon the debtor desiring to open a confessed judgment, in marked contrast to the Pennsylvania procedure involved in Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138. In Pennsylvania, in order to vacate such a judgment, a borrower must prove his defense by the preponderance of the evidence rather than by merely mustering enough evidence to present a jury question. Once the judgment is vacated, moreover, he must again prevail by that standard at a subsequent trial. In effect, the Pennsylvania confessed debtor is required to win two consecutive trials, not simply one. Given the proclivities of reasonable men to differ over the probative value of jury questions, the Pennsylvania requirement of twice sustaining the preponderance of the evidence imposes a stiffer burden of persuasion.
| 12
|
405 U.S. 228
92 S.Ct. 859
31 L.Ed.2d 165
IOWA BEEF PACKERS, INC., Petitioner,v.Edward D. THOMPSON et al.
No. 70—286.
Feb. 29, 1972.
Argued Jan. 12, 1972.
Decided Feb. 29, 1972.
Louis S. Goldberg, Sioux City, Iowa, for petitioner.
A. Raymond Randolph, Jr., Washington, D.C., for the United States as amicus curiae, pro hac vice, by special leave of Court.
Raymond Edward Franck, Denison, Iowa, for respondents.
PER CURIAM.
1
Respondents brought this suit in an Iowa District Court under § 16(b) of the Fair Labor Standards Act, 52 Stat. 1069, as amended, 29 U.S.C. § 216(b), to recover overtime compensation allegedly not paid by their petitioner employer in violation of the overtime provisions of the Act, 29 U.S.C. § 207(a)(1). The District Court denied petitioner's motion to dismiss the action for failure of respondents to exhaust the grievance arbitration procedures provided in a collective-bargaining agreement between petitioner and respondents' union and awarded respondents the overtime claimed plus costs and attorneys' fees. The Supreme Court of Iowa affirmed, 185 N.W.2d 738 (1971). We granted certiorari, 404 U.S. 820, 92 S.Ct. 70, 30 L.Ed.2d 48 (1971).
2
The collective-bargaining agreement required petitioner to provide a lunch period for each employee no later than five hours from the start of an employee's shift. Petitioner provided the lunch period but required the employees to remain on call during the period. Respondents did not choose, as perhaps under the contract was open to them, to make the requirement the basis of a grievance for alleged violation either of the lunch-period provision or of the hours-of-work provision, Art. VII, requiring time and one-half for hours worked over eight in any day or 40 in any week. They claimed instead that, because of the requirement, the Fair Labor Standards Act, as a matter of law, rendered the lunch period 'work' time, whether or not actually worked, for the purpose of determining whether petitioner violated its statutory obligation to pay overtime rates for work hours over 40 in any work week. See Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944). The grievance thus pertained not to an alleged violation of the agreement but to an alleged violation of the Fair Labor Standards Act.
3
In U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971), the Court held that a seaman could sue in federal court for wages under 46 U.S.C. § 596 without invoking grievance and arbitration procedures under a collective-bargaining agreement that provided for resolution of all disputes and grievances, not merely those based on alleged violations of the contract. We granted certiorari in this case to decide whether, similarly, employees may sue in court to recover overtime allegedly withheld in violation of the Fair Labor Standards Act, if their complaint of alleged statutory violation is also subject to resolution under grievance and arbitration provisions of a collective-bargaining agreement. It developed at oral argument, however, that the grievance and arbitration provisions, Art. XX of the collective-bargaining agreement involved in this case, do not have the broad scope of the procedures in Arguelles, but apply only to grievances 'pertaining to a violation of the Agreement.' Moreover, the issues as presented by petitioner provide no occasion to address, and we intimate no view upon, the question whether, although the statutory claim is not subject to contract arbitration, pursuit of the statutory remedy is nevertheless barred because respondents might have made the requirement to be on call the basis of a grievance for alleged violation of the lunch period or overtime provision of the collective-bargaining agreement. In these circumstances, which were not fully apprehended at the time certiorari was granted, the writ of certiorari will be dismissed as improvidently granted. The Monrosa v. Carbon Black, Inc., 359 U.S. 180, 183, 79 S.Ct. 710, 712, 3 L.Ed.2d 723 (1959).
4
It is so ordered.
5
Writ dismissed.
6
Mr. Justice DOUGLAS, dissenting.
7
The arbitration clause in this collective agreement reaches 'a grievance pertaining to a violation of the Agreement.' The agreement covered both the lunch period1 and overtime.2
8
The Iowa Supreme Court held that '(t)he present controversy is undoubtedly arbitrable' under the collective agreement. Given the presumption favoring liberal construction of arbitration clauses, United Steelworkers of America v. Warrior & Gulf Co., 363 U.S. 574, 582—583, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409, we should defer to that ruling. Even under that construction, it seems that a suit for overtime allegedly withheld in violation of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1) is maintainable. That would mean affirming the Iowa Supreme Court. U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456, which kept the courthouse door open, would seem to control this case.3
9
An affirmance would follow, a fortiori, if this collective agreement be construed as not requiring arbitration of this FLSA claim. For then it would seem that the worker would have a choice to sue under the statute or to proceed to arbitration on his contractual claim arising out of the same dispute.
10
The petition, however, is not dismissed for those reasons but for a wholly different one. It is said that there was a requirement to be 'on call' and that that duty conflicted with the lunch or overtime provisions of the agreement. The difficulty is twofold: there was no 'on call' grievance ever tendered so far as the record shows; moreover, the agreement concededly does not cover any 'on call' requirement or duty. So there is no conflict between statutory remedy and remedy by arbitration and the difficulty posed is imaginary.
11
We should 'dismiss as improvidently granted' only in exceptional situations and where all nine members of the Court agree. In all other cases the merits of the controversy should be decided. The present case on its facts is simple and uncomplicated; and a decision on the merits is apparently important to unions and employer alike.
1
Article XIV, § 1, states:
'A lunch period shall be provided no later than five (5) hours from the start of an employee's shift, except when the shift does not exceed five and one-half (5 1/2) hours.'
2
Article VII, § 3, states:
'Time and one-half (1 1/2) will be paid for hours worked in excess of eight (8) in any day. Time and one-half (1 1/2) will be paid for all hours worked in excess of forty (40) in any one week.'
3
The Iowa Supreme Court properly stated:
'We doubt that the general Congressional intent favoring arbitration can stand against the specific Congressional intent which is manifest in the Fair Labor Standards Act provisions giving employees strong and detailed rights in court. We think Congress intended that workmen should have free access to the courts in FLSA cases. We are the more persuaded of that view by the broad Congressional policy expressed in § 2 of FLSA, 29 U.S.C.A. § 202. There the objectives of the act are set forth, and those objectives encompass more than simply wage relief for employees; they include broad economic considerations—improvement in commerce among the states. The remedies provided by the act are part of the Congressional scheme to obtain employer compliance with the act and hence achievement of those broader objectives. We believe that if Congressional intent to allow a seaman to arbitrate or sue at his option is manifest in the seaman's act involved in Arguelles, as the Court held there, then an intent to give workmen such an option is also manifest in the Fair Labor Standards Act.' 185 N.W.2d 738, 742.
| 89
|
31 L.Ed.2d 170
92 S.Ct. 898
405 U.S. 233
FEDERAL TRADE COMMISSION, Petitioner,v.The SPERRY AND HUTCHINSON COMPANY.
No. 70—70.
Argued Nov. 15, 1971.
Decided March 1, 1972.
Syllabus
The Federal Trade Commission (FTC) entered a cease-and-desist order against Sperry & Hutchinson Co. (S&H), the largest and oldest trading stamp company, on the ground that it unfairly attempted to suppress the operation of trading stamp exchanges and other 'free and open' redemption of stamps. S&H argued in the Court of Appeals that its conduct was beyond the reach of § 5 of the Federal Trade Commission Act, which it claimed permitted the FTC to restrain only such practices as are either in violation of the antitrust laws, deceptive, or repugnant to public morals. The Court of Appeals reversed the FTC, holding that the FTC had not demonstrated that S&H's conduct violated § 5 because it had not shown that the conduct contravened either the letter or the spirit of the antitrust laws. Held:
1. The Court of Appeals erred in its construction of § 5. Congress, as previously recognized by this Court, see FTC v. R. F. Keppel & Bros., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 defines the powers of the FTC to protect consumers as well as competitors and authorizes it to determine whether challenged practices, though posing no threat to competition within the letter or spirit of the antitrust laws, are nevertheless either unfair methods of competition, or unfair or deceptive acts or practices. The Wheeler-Lea Act of 1938 reaffirms this broad congressional mandate. Pp. 239—244.
2. Nonetheless the FTC's order cannot be sustained. The FTC does not challenge the Court of Appeals' holding that S&H's conduct violates neither the letter nor the spirit of the antitrust laws and its opinion is barren of any attempt to rest its order on the unfairness of particular competitive practices or on considerations of consumer interests. Nor did the FTC articulate any standards by which such alternative assessments might be made. Pp. 245—249.
3. The judgment of the Court of Appeals setting aside the FTC's order is affirmed, but because that court erred in its construction of § 5, its judgment is modified to the extent that the case is remanded with instructions to return it to the FTC for further proceedings not inconsistent with this opinion. Pp. 249 250.
432 F.2d 146, modified and remanded.
Richard W. McLaren, Washington, D.C., for petitioner.
Harold L. Russell, Atlanta, Ga., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
In June 1968 the Federal Trade Commission held that the largest and oldest company in the trading stamp industry,1 Sperry & Hutchinson (S&H), was violating § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45(a)(1), in three respects. The Commission found that S&H improperly regulated the maximum rate at which trading stamps were dispensed by its retail licensees; that it combined with others to regulate the rate of stamp dispensation throughout the industry; and that it attempted (almost invariably successfully) to suppress the operation of trading stamp exchanges and other 'free and open' redemption of stamps. The Commission entered cease-and-desist orders accordingly.
2
S&H appealed only the third of these orders. Before the Court of Appeals for the Fifth Circuit it conceded that it acted as the Commission found, but argued that its conduct is beyond the reach of § 5 of the Act. That section provides, in pertinent part, that:
3
'The commission is empowered and directed to prevent persons, partnerships, or corporations . . . from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.' 15 U.S.C. § 45(a)(6).
4
As S&H sees it § 5 empowers the Commission to restrain only such practices as are either in violation of the antitrust laws, deceptive, or repugnant to public morals. In S&H's view, its practice of successfully prosecuting stamp exchanges in state and federal courts cannot be restrained under any of these theories.
5
The Court of Appeals for the Fifth Circuit agreed and reversed the Commission, Judge Wisdom dissenting. 432 F.2d 146 (1970). In the lower court's view:
6
'To be the type of practice that the Commission has the power to declare 'unfair' the act complained of must fall within one of the following types of violations: (1) a per se violation of anti-trust policy; (2) a violation of the letter of either the Sherman, Clayton, or Robinson-Patman Acts; or (3) a violation of the spirit of these Acts as recognized by the Supreme Court of the United States.' Id., at 150 (footnote omitted).
7
Holding that the FTC had not demonstrated that S&H's conduct violated either the letter or the spirit of the antitrust laws, the Court of Appeals vacated the Commission's order.
8
The FTC petitioned for review in this Court. We granted certiorari to determine the questions presented in the petition. 401 U.S. 992, 91 S.Ct. 1234, 28 L.Ed.2d 530 (1971).
9
* The Challenged Conduct
10
S&H has been issuing trading stamps—small pieces of gummed paper about the size of postage stamps—since 1896. In 1964, the year from which data in this litigation are derived, the company had about 40% of the business in an industry that annually issued 400 billion stamps to more than 200,000 retail establishments for distribution in connection with retail sales of some 40 billion dollars. In 1964, more than 60% of all American consumers saved S&H Green Stamps.
11
In the normal course, the trading stamp business operates as follows. S&H sells its stamps to retailers, primarily to supermarkets and gas stations, at a cost of about $2.65 per 1200 stamps; retailers give the stamps to consumers (typically at a rate of one for each 10¢ worth of purchases) as a bonus for their patronage; consumers paste the stamps in books of 1,200 and exchange the books for 'gifts' at any of 850 S&H Redemption Centers maintained around the country. Each book typically buys between $2.86 and $3.31 worth of merchandise depending on the location of the redemption center and type of goods purchased. Since its development of this cycle 75 years ago, S&H has sold over one trillion stamps and redeemed approximately 86% of them.
12
A cluster of factors relevant to this litigation tends to disrupt this cycle and, in S&H's view, to threaten its business. An incomplete book has no redemption value. Even a complete book is of limited value because most 'gifts' may be obtained only on submission of more than one book. For these reasons a collector of another type of stamps who has acquired a small number of green stamps may benefit by exchanging with a green stamp collector who has opposite holdings and preferences. Similarly, because of the seasonal usefulness or immediate utility2 of an object sought, a collector may want to buy stamps outright and thus put himself in a position to secure redemption merchandise immediately though it is 'priced' beyond his current stamp holdings. Or a collector may seek to sell his stamps in order to use the resulting cash to make more basic purchases (food, shoes, etc.) than redemption centers normally provide.
13
Periodically over the past 70 years professional exchanges have arisen to service this demand. Motivated by the prospect of profit realizable as a result of serving as middlemen in swaps, the exchanges will sell books of S&H stamps previously acquired from consumers, or, for a fee, will give a consumer another company's stamps for S&H's or vice versa. Further, some regular merchants have offered discounts on their own goods in return for S&H stamps. Retailers do this as a means of competing with merchants in the area who issue stamps. By offering a price break in return for stamps, the redeeming merchant replaces the incentive to return to the issuing merchant (to secure more stamps so as to be able to obtain a gift at a redemption center) with the attraction of securing immediate benefit from the stamps by exchanging them for a discount at his store.3
14
S&H fears these activities because they are believed to reduce consumer proclivity to return to green-stamp-issuing stores and thus lower a store's incentive to buy and distribute stamps. The company attempts to pre-empt 'trafficking' in its stamps by contractual provisions reflected in a notice on the inside cover of every S&H stamp book. The notice reads:
15
'Neither the stamps nor the books are sold to merchants, collectors or any other persons, at all times the title thereto being expressly reserved in the Company . . . The stamps are issued to you as evidence of cash payment to the merchants issuing the same. The only right which you acquire in said stamps is to paste them in books like this and present them to us for redemption. You must not dispose of them or make any further use of them without our consent in writing. We will in every case where application is made to us give you permission to turn over your stamps to any other bona-fide collector of S&H Green . . . Stamps; but if the stamps or the books are transferred without our consent, we reserve the right to restrain their use by, or take them from other parties. It is to your interest that you fill the book, and personally derive the benefits and advantages of redeeming it.' (Reproduced at 2 App. 230.)
16
S&H makes no effort to enforce this condition when consumers casually exchange stamps with each other, though reportedly some 20% of all the company's stamps change hands in this manner. But S&H vigorously moves against unauthorized commercial exchanges and redeemers. Between 1957 and 1965, by its own account the company filed for 43 injunctions against merchants who redeemed or exchanged its stamps without authorization, and it sent letters threatening legal action to 140 stamp exchanges and 175 businesses that redeemed S&H stamps. In almost all instances the threat or the reality of suit forced the businessmen to abandon their unauthorized practices.
II
The Reach of Section 5
17
The Commission presented two questions in its petition for certiorari, the first being '(w)hether Section 5 of the Federal Trade Commission Act, which directs the Commission to prevent 'unfair methods of competition . . . and unfair or deceptive acts or practices,' is limited to conduct which violates the letter or spirit of the antitrust laws.' The other issue relates to the significance of state court holdings that the practices challenged here are lawful.4 Neither question requests review of the Court of Appeals' decision that the business conduct proscribed by the Commission violates neither the letter nor spirit of the antitrust laws. Accordingly, we intimate no opinion on that issue and turn to the question of the reach of § 5.
18
In reality, the question is a double one: First, does § 5 empower the Commission to define and proscribe an unfair competitive practice, even though the practice does not infringe either the letter or the spirit of the antitrust laws? Second, does § 5 empower the Commission to proscribe practices as unfair or deceptive in their effect upon consumers regardless of their nature or quality as competitive practices or their effect on competition? We think the statute, its legislative history, and prior cases compel an affirmative answer to both questions.
19
When Congress created the Federal Trade Commission in 1914 and charted its power and responsibility under § 5, it explicitly considered, and rejected, the notion that it reduce the ambiguity of the phrase 'unfair methods of competition' by tying the concept of unfairness to a common-law or statutory standard or by enumerating the particular practices to which it was intended to apply. Senate Report No. 597, 63d Cong., 2d Sess., 13 (1914), presents the reasoning that led the Senate Committee to avoid the temptations of precision when framing the Trade Commission Act:
20
'The committee gave careful consideration to the question as to whether it would attempt to define the many and variable unfair practices which prevail in commerce and to forbid their continuance or whether it would, by a general declaration condemning unfair practices, leave it to the commission to determine what practices were unfair. It concluded that the latter course would be the better, for the reason, as stated by one of the representatives of the Illinois Manufacturers' Association, that there were too many unfair practices to define, and after writing 20 of them into the law it would be quite possible to invent others.'
21
The House Conference Report was no less explicit. 'It is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field. Even if all known unfair practices were specifically defined and prohibited, it would be at once necessary to begin over again. If Congress were to adopt the method of definition, it would undertake an endless task.' H.R.Conf.Rep.No.1142, 63d Cong., 2d Sess., 19 (1914). See also Rublee, The Original Plan and Early History of the Federal Trade Commission, 11 Acad.Pol.Sci.Proc. 666, 667 (1926); Baker & Baum, Section 5 of the Federal Trade Commission Act: A Continuing Process of Redefinition, 7 Vil.L.Rev. 517 (1962).
22
Since the sweep and flexibility of this approach were thus made crystal clear, there have twice been judicial attempts to fence in the grounds upon which the FTC might rest a finding of unfairness. In FTC v. Gratz, 253 U.S. 421, 40 S.Ct. 572, 64 L.Ed. 993 (1920), the Court over the strong dissent of Mr. Justice Brandeis (who had been involved in drafting the Trade Commission Act), wrote that while the 'exact meaning' of the phrase "unfair method of competition' . . . is in dispute,' the only practices that were subject to this characterization were those that were 'heretofore regarded as opposed to good morals because charterized by deception, bad faith, fraud or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.' Id., at 427, 40 S.Ct., at 575. This view was reiterated in other opinions over the next decade. See, e.g., FTC v. Curtis Publishing Co., 260 U.S. 568, 43 S.Ct. 210, 67 L.Ed. 408 (1923), and FTC v. Sinclair Refining Co., 261 U.S. 463, 475—476, 43 S.Ct. 450, 453—454, 67 L.Ed. 746 (1923). The opinion of the Court of Appeals' majority, citing Sinclair in support of its narrow view of the FTC's leeway, is in the tradition of these authorities.
23
In FTC v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324 (1931), a unanimous Court held that: 'The paramount aim of the act is the protection of the public from the evils likely to result from the destruction of competition or the restriction of it in a substantial degree . . .. Unfair trade methods are not per se unfair methods of competition.' (Italics in original.) 'It is obvious,' the Court continued,
24
'that the word 'competition' imports the existence of present or potential competitors, and the unfair methods must be such as injuriously affect or tend thus to affect the business of these competitors—that is to say, the trader whose methods are assailed as unfair must have present or potential rivals in trade whose business will be, or is likely to be, lessened or otherwise injured. It is that condition of affairs which the Commission is given power to correct, and it is against that condition of affairs, and not some other, that the Commission is authorized to protect the public. . . . If broader powers be desirable they must be conferred by Congress.' Id., at 647—649, 51 S.Ct., at 590.
25
Neither of these limiting interpretations survives to buttress the Court of Appeals' view of the instant case. Even if the first line of cases, Gratz and its progeny, stood unimpaired, their deference to action taken to constrain 'deception, bad faith, fraud or oppression' would grant the FTC greater power to set right what it perceives as wrong than the panel of the Court of Appeals acknowledges. But frequent opportunity for reconsideration has consistently and emphatically led this Court to the view that the perspective of Gratz is too confined. As we recently unanimously observed: 'Later cases of this Court . . . have rejected the Gratz view and it is now recognized in line with the dissent of Mr. Justice Brandeis in Gratz that the Commission has broad powers to declare trade practices unfair.' FTC v. Brown Shoe Co., 384 U.S. 316, 320—321, 86 S.Ct. 1501, 1504, 16 L.Ed.2d 587 (1966).
26
The leading case that recognized a role for the FTC beyond that mapped out in Gratz, FTC v. R. F. Keppel & Bro., Inc., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 (1934), also brought Raladam into question; on both counts it sets the standard by which the range of FTC jurisdiction is to be measured today. Keppel & Brothers sold penny candies in 'break and take' packs, a form of merchandising that induced children to buy lesser amounts of concededly inferior candy in the hope of by luck hitting on bonus packs containing extra candy and prizes. The FTC issued a cease-and-desist order under § 5 on the theory that the popular marketing scheme contravened public policy insofar as it tempted children to gamble and compelled those who would successfully compete with Keppel to abandon their scruples by similarly tempting children.
27
The Court had no difficulty in sustaining the FTC's conclusion that the practice was 'unfair,' though any competitor could maintain his position simply by adopting the challenged practice. '(H)ere,' the Court said, 'the competitive method is shown to exploit consumers, children, who are unable to protect themselves . . .. (I)t is clear that the practice is of the sort which the common law and criminal statutes have long deemed contrary to public policy.' Id., at 313, 54 S.Ct., at 426.
28
En route to this result the Court met Keppel's arguments that, absent an antitrust violation or at least incipient injury to competitors, Gratz and Raladam so straitjacketed the FTC that the Commission could not issue a cease-and-desist order proscribing even an immoral practice. It held:
29
'Neither the language nor the history of the Act suggests that Congress intended to confine the forbidden methods to fixed and unyielding categories. The common law afforded a definition of unfair competition and, before the enactment of the Federal Trade Commission Act, the Sherman Act had laid its inhibition upon combinations to restrain or monopolize interstate commerce which the courts had construed to include restraints upon competition in interstate commerce. It would not have been a difficult feat of draftsmanship to have restricted the operation of the Trade Commission Act to those methods of competition in interstate commerce which are forbidden at common law or which are likely to grow into violations of the Sherman Act, if that had been the purpose of the legislation.' Id., at 310, 54 S.Ct., at 425.
30
Thenceforth, unfair competitive practices were not limited to those likely to have anticompetitive consequences after the manner of the antitrust laws; nor were unfair practices in commerce confined to purely competitive behavior.
31
The perspective of Keppel, displacing that of Raladam, was legislatively confirmed when Congress adopted the 1938 Wheeler-Lea amendment, 52 Stat. 111, to § 5. The amendment added the phrase 'unfair or deceptive acts or practices' to the section's original ban on 'unfair methods of competition' and thus made it clear that Congress, through § 5, charged the FTC with protecting consumers as well as competitors. The House Report on the amendment summarized congressional thinking: '(T)his amendment makes the consumer, who may be injured by an unfair trade practice, of equal concern, before the law, with the merchant or manufacturer injured by the unfair methods of a dishonest competitor.' H.R.Rep.No.1613, 75th Cong., 1st Sess., 3 (1937). See also S.Rep.No.1705, 74th Cong., 2d Sess., 2—3 (1936).
32
Thus, legislative and judicial authorities alike convince us that the Federal Trade Commission does not arrogate excessive power to itself if, in measuring a practice against the elusive, but congressionally mandated standard of fairness, it, like a court of equity, considers public values beyond simply those enshrined in the letter or encompassed in the spirit of the antitrust laws.5
III
33
The general conclusion just enunciated requires us to hold that the Court of Appeals erred in its construction of § 5 of the Federal Trade Commission Act. Ordinarily we would simply reverse the judgment of the Court of Appeals insofar as it limited the unfair practices proscribed by § 5 to those contrary to the letter and spirit of the antitrust laws and we would remand the case for consideration of whether the challenged practices, though posing no threat to competition within the precepts of the antitrust laws, are nevertheless either (1) unfair methods of competition or (2) unfair or deceptive acts or practices.
34
What we deem to be proper concerns about the interaction of administrative agencies and the courts, however, counsels another course in this case. In this Court the Commission argues that, however correct the Court of Appeals may be in holding the challenged S&H practices beyond the reach of the letter or spirit of the antitrust laws, the Court of Appeals nevertheless erred in asserting that the FTC could measure and ban conduct only according to such narrow criteria. Proceeding from this premise, with which we agree, the Commission's major submission is that its order is sustainable as a proper exercise of its power to proscribe practices unfair to consumers. Its minor position is that it also properly found S&H's practices to be unfair competitive methods apart from their propriety under the antitrust laws.
35
The difficulty with the Commission's position is that we must look to its opinion, not to the arguments of its counsel, for the underpinnings of its order. 'Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.' Investment Co. Institute v. Camp, 401 U.S. 617, 628, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971). We cannot read the FTC opinion on which the challenged order rests as premised on anything other than the classic antitrust rationale of restraint of trade and injury to competition.
36
The Commission urges reversal of the Court of Appeals and approval of its own order because, in its words, '(t)he Act gives the Commission comprehensive power to prevent trade practices which are deceptive or unfair to consumers, regardless of whether they also are anticompetitive.' Brief for the FTC, 15. It says the Court of Appeals was 'wrong in two ways: you can have an anticompetitive impact that is not a violation of the antitrust laws and violate Section 5. You can also have an impact upon consumers without regard to competition and you cna uphold a Section 5 violation on that ground.' Tr. of Oral Arg. 18. Though completely accurate, these statements cannot be squared with the Commission's holding that '(i)t is essential in this matter, we believe, and as we have heretofore indicated, to determine whether or not there has been or may be an impairment of competition,' Opinion of Commission, 1 App. 175; its conclusion that '(r)espondent . . . prevents . . . competitive reaction(s) and thereby it has restrained trade. We believe this is an unfair method of competition and an unfair act and practice in violation of Section 5 of the Federal Trade Commission Act and so hold,' 1 App. 178; its observation that:
37
'Respondent's individual acts and its acts with others taken to suppress trading stamp exchanges and other stamp redemption activity are all part of a clearly defined restrictive policy pursued by the respondent. In the circumstances surrounding this particular practice it is difficult to wholly separate the individual acts from the collective acts for the purpose of making an analysis of the consequences under the antitrust laws.' 1 App. 179,
38
and like statements throughout the opinion, see, e.g., 1 App. 176—178, passim.
39
There is no indication in the Commission's opinion that it found S&H's conduct to be unfair in its effect on competitors because of considerations other than those at the root of the antitrust laws.6 For its part, the theory that the FTC's decision is derived from its concern for consumers finds support in only one line of the Commission's opinion. The Commission's observation that S&H's conduct limited 'stamp collecting consumers' . . . freedom of choice in the disposition of trading stamps,' 1 App. 176, will not alone support a conclusion that the FTC has found S&H guilty of unfair practices because of damage to consumers.
40
Arguably, the Commission's findings, in contrast to its opinion, go beyond concern with competition and address themselves to noncompetitive and consumer injury as well. It may also be that such findings would have evidentiary support in the record. But even if the findings were considered to be adequate foundation for an opinion and order resting on unfair consequences to consumer interests, they still fail to sustain the Commission action; for the Commission has not rendered an opinion which, by the route suggested, links its findings and its conclusions. The opinion is barren of any attempt to rest the order on its assessment of particular competitive practices or considerations of consumer interests independent of possible or actual effects on competition. Nor were any standards for doing so referred to or developed.
41
Our view is that 'the considerations urged here in support of the Commission's order were not those upon which its action was based.' SEC v. Chenery Corp., 318 U.S. 80, 92, 63 S.Ct. 454, 461, 87 L.Ed. 626 (1943). At the least the Commission has failed to 'articulate any rational connection between the facts found and the choice made.' Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962).
42
The Commission's action being flawed in this respect, we cannot sustain its order. '(T)he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.' Chenery, supra, 318 U.S., at 94, 63 S.Ct., at 462; Burlington Truck Lines, supra, 371 U.S., at 169, 83 S.Ct., at 246. A court cannot label a practice 'unfair' under 15 U.S.C. § 45(a)(1). It can only affirm or vacate an agency's judgment to that effect. 'If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.' Chenery, supra, 318 U.S., at 88, 63 S.Ct., at 459. And as was repeated on other occasions:
43
'For the courts to substitute their or counsel's discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 197, 61 S.Ct. 845, 853, 854, 85 L.Ed. 1271), the administrative process, for the purpose of the rule is to avoid 'propel(ling) the court into the domain which Congress has set aside exclusively for the administrative agency.' (Securities & Exchange Comm. v. Chenery Corp.) 332 U.S. (194), at 196, 67 S.Ct. (1575), at 1577, 91 L.Ed. 1995.' Burlington Truck Lines, supra, 371 U.S., at 169, 83 S.Ct., at 246.
44
In these circumstances, because the Court of Appeals' judgment that S&H's practices did not violate either the letter or the spirit of the antitrust laws was not attacked and remains undisturbed here, and because the Commission's order could not properly be sustained on other grounds, the judgment of the Court of Appeals setting aside the Commission's order is affirmed. The Court of Appeals erred, however, in its construction of § 5; had it entertained the proper view of the reach of the section, the preferable course would have been to remand the case to the Commission for further proceedings. Chenery, supra, 318 U.S., at 95, 63 S.Ct., at 462; Burlington, supra, 371 U.S., at 174, 83 S.Ct., at 248; FPC v. United Gas Pipe Line Co., 393 U.S. 71, 89 S.Ct. 55, 21 L.Ed.2d 55 (1968). Accordingly, the judgment of the Court of Appeals is modified to this extent and the case is remanded to the Court of Appeals with instructions to remand it to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate.
45
Modified and remanded.
46
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
On the nature of the industry, see generally Comment, Trading Stamps, 37 N.Y.U.L.Rev. 1090 (1962). The Commission proceedings in the instant case are discussed in Comment, The Attack on Trading Stamps—An Expanded Use of Section 5 of the Federal Trade Commission Act, 57 Geo.L.J. 1082 (1969).
2
Often merchandise obtained by redemption is used as a gift.
3
The efforts of some retailers to reissue § & H stamps are not involved in this case. The FTC explicitly left § & H free to seek injunctions against reissuance. 1 App. 169.
4
Though the Court of Appeals referred to state and federal court decisions that approved § & H's practice, our reading of its opinion leaves no doubt that it did not reverse the FTC order on the erroneous theory that such determinations might foreclose a contrary FTC § 5 decision. We therefore put aside the Government's second question as irrelevant and focus on its first contention.
5
The Commission has described the factors it considers in determining whether a practice that is neither in violation of the antitrust laws nor deceptive is nonetheless unfair:
'(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).' Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed.Reg. 8355 (1964).
§ & H argues that a later portion of this statement commits the FTC to the view that misconduct in respect of the third of these criteria is not subject to constraint as 'unfair' absent a concomitant showing of misconduct according to the first or second of these criteria. But all the FTC said in the statement referred to was that '(t)he wide variety of decisions interpreting the elusive concept of unfairness at least makes clear that a method of selling violates Section 5 if it is exploitive or inequitable and if, in addition to being morally objectionable, it is seriously detrimental to consumers or others.' Ibid. (emphasis added).
6
The Commission did explicitly decline to assess S&H's conduct in light of one leading antitrust case. In United States v. Arnold, Schwinn & Co., 388 U.S. 365, 379, 87 S.Ct. 1856, 1865, 18 L.Ed.2d 1249 (1967), this Court held that: 'Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas or persons with whom an article may be traded after the manufacturer has parted with dominion over it. White Motor (White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963)); Dr. Miles (Dr. Miles Medical Co. v. U. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911)). Such restraints are so obviously destructive of competition that their mere existence is enough. If the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale.'
Arguably, § & H's practice is proscribed by this doctrine. When the FTC declined to rely on this precedent, however, it did so not to turn to considerations other than those embedded in the antitrust laws, but instead to look for considerations less 'technical' and more deeply rooted in antitrust policy:
'(W)e do not believe it appropriate to decide the broad competitive questions presented in this record on the narrow and technical basis of a restraint on alienation. The circumstances here are much different from that where products are transferred to a dealer for resale. They are complicated by the nature of the trading stamp scheme. It is essential in this matter, we believe, and as we have heretofore indicated, to determine whether or not there has been or may be an impairment of competition. Thus, we intend to look at the substance of the allegedly illegal practice rather than to decide the case by application of a technical formula.' 1 App. 175—176.
| 78
|
405 U.S. 251
92 S.Ct. 885
31 L.Ed.2d 184
State of HAWAII, Petitioner,v.STANDARD OIL COMPANY OF CALIFORNIA et al.
No. 70—49.
Argued Oct. 21, 1971.
Decided March 1, 1972.
Syllabus
Section 4 of the Clayton Act does not authorize a State to sue for damages for an injury to its general economy allegedly attributable to a violation of the antitrust laws. Pp. 257—266.
431 F.2d 1282, affirmed.
Maxwell M. Blecher, San Francisco, Cal., for petitioner.
Francis R. Kirkham, San Francisco, Cal., for respondents.
[amici curiae information on Pages 251-252 intentionally omitted]
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The issue presented by this case is whether § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, authorizes a State to sue for damages for an injury to its economy allegedly attributable to a violation of the antitrust laws of the United States. We hold that it does not.
I. PROCEDURAL HISTORY
2
Hawaii filed its initial complaint on April 1, 1968, against three of the four respondents.1 On May 24, 1968, and again on August 19, 1968, hawaii filed amended complaints. The third amended complaint, filed on September 6, 1968, raised for the first time the issue presented herein. The complaint named all four respondents as defendants and charged them with violating the Sherman Act, 26 Stat. 209, 15 U.S.C. § 1, in the following ways: by entering into unlawful contracts; by conspiring and combining to restrain trade and commerce in the sale, marketing, and distribution of refined petroleum products; and by attempting to monopolize and actually monopolizing said trade and commerce.2 The State sought to recover damages in three distinct capacities: in its proprietary capacity for overcharges for petroleum products sold to the State itself (first count); as parens patriae for similar overcharges paid by the citizens of the State (second count); and as the representative of the class of all purchasers in Hawaii for identical overcharges (third count).
The second count read, in relevant part:
3
'18. The above-named plaintiff (Hawaii), (acts) in its capacity as parens patriae, and/or as trustee for the use of its citizens who purchased refined petroleum products, from any defendant or co-conspirator herein . . ..
4
'19. The unlawful contracts, combination, conspiracy in restraint of trade, unlawful combination and conspiracy to monopolize, and monopolization have resulted in the plaintiff, . . . and in its citizens, paying more for refined petroleum products than would have been paid in a freely operating competitive market. Plaintiff has not yet ascertained the precise extent of said damage to itself and its citizens, however, when said amount has been ascertained, plaintiff will ask leave of Court to insert said sum herein.'
5
Very similar language appeared in the class-action count. In all three counts, the State sought both injunctive and monetary relief.
6
After each of the respondents moved to dismiss the second and third counts of the complaint, the District Court held a hearing to determine the propriety of the State's suing on behalf of its citizens. With respect to count two, the court held that Hawaii 'has not even alleged an interest in its citizens' claims, much less interest of its own aside from the State's proprietary rights,' and granted the motions to dismiss.3 Viewing the class action as being 'overlapping, parallel and/or alternative to' the parens patriae claim, the court dismissed the third count as well.4
7
Hawaii filed its fourth amended complaint on February 27, 1969. This is the complaint with which we are concerned. Count one contains a reiteration of Hawaii's claim that in its proprietary capacity the State paid an excessive price for the petroleum products that it purchased from respondents. Count two states a new parens patriae claim, and count three is drawn as a class action.
8
The parens patriae claim is stated in the following manner:
9
'19. The State of Hawaii, acting through its Attorney General, brings this action by virtue of its duty to protect the general welfare of the State and its citizens, acting herein as parens patriae, trustee, guardian and representative of its citizens, to recover damages for, and secure injunctive relief against, the violations of the antitrust laws hereinbefore alleged.
10
'20. The unlawful contracts, combination and conspiracy in restraint of trade, unlawful combination and conspiracy to monopolize and monopolization, hereinbefore alleged, have injured and adversely affected the economy and prosperity of the State of Hawaii in, among others, the following ways:
11
'(a) revenues of its citizens have been wrongfully extracted from the State of Hawaii;
12
'(b) taxes affecting the citizens and commercial entities have been increased to affect such losses of revenues and income;
13
'(c) opportunity in manufacturing, shipping and commerce have (sic) been restricted and curtailed;
14
'(d) the full and complete utilization of the natural wealth of the State has been prevented;
15
'(e) the high cost of manufacture in Hawaii has precluded goods made there from equal competitive access with those of other States to the national market;
16
'(f) measures taken by the State to promote the general progress and welfare of its people have been frustrated; '(g) the Hawaii economy has been held in a state of arrested development.
17
'21. Plaintiff has not yet ascertained the precise extent of said damage to itself and its citizens; however, when said amount has been ascertained, plaintiff will ask leave of Court to insert said sum herein.'
18
The class-action count is similar to that in the third amended complaint. As in the previous complaint, Hawaii seeks both injunctive and monetary relief in each count.
19
Respondents moved to dismiss the second and third counts, and hearing was again had in the District Court. The class action was dismissed by the court on the ground that 'under the circumstances . . ., the class action based upon the injury to every individual purchaser of gasoline in the State, . . . in the context of the pleadings, would be unmanageable.'5 In a rather extensive opinion, the court examined the law that has developed concerning suits by a State as parens patriae and denied the motions to dismiss the second count. 301 F.Supp. 982 (1969). Recognizing that the state of the law was unclear, the District Court certified its decision denying the motions to dismiss for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).6 On appeal, the United States Court of Appeals for the Ninth Circuit reversed the decision of the District Court and directed that the second count of the complaint be dismissed.7 431 F.2d 1282 (1970). Certiorari was granted so that we might review this decision. 401 U.S. 936, 91 S.Ct. 931, 28 L.Ed.2d 215 (1971).
II. THE STATE AS PARENS PATRIAE
20
The concept of parens patriae is derived from the English constitutional system. As the system developed from its feudal beginnings, the King retained certain duties and powers, which were referred to as the 'royal prerogative.' Malina & Blechman, Parens Patriae Suits for Treble Damages Under the Antitrust Laws, 65 Nw.U.L.Rev. 193, 197 (1970) (hereinafter Malina & Blechman); State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 Col.J.L. & Soc.Prob. 411, 412 (1970) (hereinafter State Protection). These powers and duties were said to be exercised by the King in his capacity as 'father of the country.'8 Traditionally, the term was used to refer to the King's power as guardian of persons under legal disabilities to act for themselves.9 For example, Blackstone refers to the sovereign or his representative as 'the general guardian of all infants, idiots, and lunatics,'10 and as the superintendent of 'all charitable uses in the kingdom.'11 In the United States, the 'royal prerogative' and the 'parens patriae' function of the King passed to the States.
21
The nature of the parens patriae suit has been greatly expanded in the United States beyond that which existed in England. This expansion was first evidenced in Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900), a case in which the State of Louisiana brought suit to enjoin officials of the State of Texas from so administering the Texas quarantine regulations as to prevent Louisiana merchants from sending goods into Texas. This Court recognized that Louisiana was attempting to sue, not because of any particular injury to a business of the State, but as parens patriae for all her citizens. 176 U.S., at 19, 20 S.Ct., at 257. While the Court found that parens patriae could not properly be invoked in that case, the propriety and utility of parens patriae suits were clearly recognized.
22
This Court's acceptance of the notion of parens patriae suits in Louisiana v. Texas was followed in a series of cases: Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901) (holding that Missouri was permitted to sue Illinois and a Chicago sanitation district on behalf of Missouri citizens to enjoin the discharge of sewage into the Mississippi River); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907) (holding that Kansas was permitted to sue as parens patriae to enjoin the diversion of water from an interstate stream); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties); People of State of New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct 658, 67 L.Ed. 1117 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas); and North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream).
23
These cases establish the right of a State to sue as parens patriae to prevent or repair harm to its 'quasisovereign' interests.12 They deal primarily with original suits brought directly in this Court pursuant to Art. III, § 2, of the Constitution under common-law rights of action. The question in this case is not whether Hawaii may maintain its lawsuit on behalf of its citizens, but rather whether the injury for which it seeks to recover is compensable under § 4 of the Clayton Act. Hence, Hawaii's claim cannot be resolved simply by reference to any general principles governing parens patriae actions.
24
The only time this Court has ever faced the question of what relief, if any, the antitrust laws offer a State suing as parens patriae was in Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), the case relied on most heavily by the parties herein. In that case, Georgia sought to invoke the original jurisdiction of this Court by filing an amended bill of complaint against 20 railroads, alleging, in essence, that the railroads had conspired to restrain trade and to fix prices in a manner that would favor shippers in other States (particularly Northern States) to the detriment of Georgia shippers.
25
Like this suit, Georgia arose under the federal antitrust laws. It is plain from the face of the complaint that '(t)he prayer (was) for damages and for injunctive relief.' 324 U.S., at 445, 65 S.Ct., at 720. See id., at 446—447, 450—451, 65 S.Ct., at 720—721, 722—723.13 Georgia claimed that the conspiracy had severely damaged its economy and sought to recover damages on behalf of its citizens.
26
The Court upheld Georgia's claim as parens patriae with respect to injunctive relief, but had no occasion to consider whether the antitrust laws also authorized damages for an injury to the State's economy, since approval of the challenged rates by the Interstate Commerce Commission barred a damage recovery on the ground that such a remedy would have given Georgia shippers an unfair advantage over shippers from other States. See Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922). Nowhere in Georgia did the Court address itself to the question whether § 4 of the Clayton Act authorizes damages for an injury to the general economy of a State. Thus, the question presented here is open.
III. HAWAII AND THE ANTITRUST LAWS
27
Hawaii grounds its claim for treble damages in § 4 of the Clayton Act, 15 U.S.C. § 15, which reads:
28
'Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.'
29
This section is notably different from § 16 of the Clayton Act, 15 U.S.C. § 26, which provides for injunctive relief:
30
'Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings . . ..'
31
Hawaii plainly qualifies as a person under both sections of the statute, whether it sues in its proprietary capacity or as parens patriae. Georgia v. Pennsylvania R. Co., 324 U.S., at 447, 65 S.Ct., at 721. But the critical question is whether the injury asserted by Hawaii in its parens patriae count is an injury to its 'business or property.'
32
The legislative history of the Sherman and Clayton Acts is not very instructive as to why Congress included the 'business or property' requirement in § 4, but not in § 16. The most likely explanation lies in the essential differences between the two remedies.
33
While the United States Government, the governments of each State, and any individual threatened with injury by an antitrust violation may all sue for injunctive relief against violations of the antitrust laws, and while they may theoretically do so simultaneously against the same persons for the same violations, the fact is that one injunction is as effective as 100, and, concomitantly, that 100 injunctions are no more effective than one. This case illustrates the point well. The parties are in virtual agreement that whether or not Hawaii can sue for injunctive relief as parens patriae is of little consequence so long as it can seek the same relief in its proprietary capacity. While some theoretical differences may exist with respect to the parties capable of enforcing a parens patriae injunction as opposed to one secured by a State in its proprietary capacity, these differences are not crucial to the defendant in an antitrust case.
34
The position of a defendant faced with numerous claims for damages is much different. If the defendant is sued by 100 different persons or by one person with 100 separate but cumulative claims, and each claim is for damages, the potential liability is obviously far greater than if only one of those persons sued on only one claim. Thus, there is a striking contrast between the potential impact of suits for injunctive relief and suits for damages.
35
Every violation of the antitrust laws is a blow to the free-enterprise system envisaged by Congress. See Northern Pacific R. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958). This system depends on strong competition for its health and vigor, and strong competition depends, in turn, on compliance with antitrust legislation. In enacting these laws, Congress had many means at its disposal to penalize violators. It could have, for example, required violators to compensate federal, state, and local governments for the estimated damage to their respective economies caused by the violations. But, this remedy was not selected. Instead, Congress chose to permit all persons to sue to recover three times their actual damages every time they were injured in their business or property by an antitrust violation. By offering potential litigants the prospect of a recovery in three times the amount of their damages, Congress encouraged these persons to serve as 'private attorneys general.' See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130—131, 89 S.Ct. 1562, 1580—1581, 23 L.Ed.2d 129 (1969); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 147, 88 S.Ct. 1981, 1988—1989, 20 L.Ed. 982 (1968) (Fortas, J., concurring in result).
36
Thus, § 4 permits Hawaii to sue in its proprietary capacity for three times the damages it has suffered from respondents' alleged antitrust violations.14 The section gives the same right to every citizen of Hawaii with respect to any damage to business or property. Were we, in addition, to hold that Congress authorized the State to recover damages for injury to its general economy, we would open the door to duplicative recoveries.
37
A large and ultimately indeterminable part of the injury to the 'general economy,' as it is measured by economists, is no more than a reflection of injuries to the 'business or property' of consumers, for which they may recover themselves under § 4. Even the most lengthy and expensive trial could not in the final analysis, cope with the problems of double recovery inherent in allowing damages for harm both to the economic interests of individuals and for the quasi-sovereign interests of the State. At the very least, if the latter type of injury is to be compensable under the antitrust laws, we should insist upon a clear expression of a congressional purpose to make it so, and no such expression is to be found in § 4 of the Clayton Act.
38
Like the lower courts that have considered the meaning of the words 'business or property,' we conclude that they refer to commercial interests or enterprises. See, e.g., Roseland v. Phister Mfg. Co., 125 F.2d 417 (CA7 1942); Hamman v. United States, 267 F.Supp. 420 (Mont. 1967), appeal dismissed, 399 F.2d 673 (CA9 1968); Broadcasters, Inc. v. Morristown Broadcasting Corp., 185 F.Supp. 641 (NJ 1960). When the State seeks damages for injuries to its commercial interests, it may sue under § 4. But where, as here, the State seeks damages for other injuries, it is not properly within the Clayton Act.
39
Support for this reading of § 4 is found in the legislative history of 15 U.S.C. § 15a,15 which is the only provision authorizing recovery in damages by the United States, and which limits that recovery to damages to 'business or property.' The legislative history of that provision makes it quite plain that the United States was authorized to recover, not for general injury to the national economy or to the Government's ability to carry out its functions, but only for those injuries suffered in its capacity as a consumer of goods and services.
40
'The United States is, of course, amply equipped with the criminal and civil process with which to enforce the antitrust laws. The proposed legislation, quite properly, treats the United States solely as a buyer of goods and permits the recovery of the actual damages suffered.' S.Rep.No.619, 84th Cong., 1st Sess., 3 (1955).
41
See also H.R.Rep.No.422, 84th Cong., 1st Sess., 2—5 (1955); U.S.Code Cong. & Admin.News, p. 2330. In light of the language used as well as the legislative history of 15 U.S.C. § 15a, it is manifest that the United States cannot recover for economic injuries to its sovereign interests, as opposed to its proprietary functions. And the conclusion is nearly inescapable that § 4, which uses identical language, does not authorize recovery for economic injuries to the sovereign interests of a State.
42
We note in passing the State's claim that the costs and other burdens of protracted litigation render private citizens impotent to bring treble-damage actions, and thus that denying Hawaii the right to sue for injury to her quasi-sovereign interests will allow antitrust violations to go virtually unremedied. Private citizens are not as powerless, however, as the State suggests.
43
Congress has given private citizens rights of action for injunctive relief and damages for antitrust violations without regard to the amount in controversy. 28 U.S.C. § 1337; 15 U.S.C. § 15. Rule 23 of the Federal Rules of Civil Procedure provides for class actions that may enhance the efficacy of private actions by permitting citizens to combine their limited resources to achieve a more powerful litigation posture. The District Court dismissed Hawaii's class action only because it was unwieldy; it did not hold that a State could never bring a class action on behalf of some or all of its consumer citizens. Respondents, in moving to dismiss count three of the fourth amended complaint, in which the State sought to bring such an action, virtually conceded that class actions might be appropriate under certain circumstances. The fact that a successful antitrust suit for damages recovers not only the costs of the litigation, but also attorney's fees, should provide no scarity of members of the Bar to aid prospective plaintiffs in bringing these suits.
44
Parens patriae actions may, in theory, be related to class actions, but the latter are definitely preferable in the antitrust area. Rule 23 provides specific rules for delineating the appropriate plaintiff-class, establishes who is bound by the action, and effectively prevents duplicative recoveries.
45
The judgment of the Court of Appeals is affirmed for the reasons stated above.
46
So ordered.
47
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
48
Mr. Justice DOUGLAS, dissenting.
49
Today's decision reflects a miserly approach to the fashioning of federal remedies rectifying injuries to the collective interests of the citizens of a State through action by the State itself. It is reminiscent of the illstarred decision in Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256.1
50
Hawaii, in her fourth amended complaint, sues for damages and injunctive relief as parens patriae by virtue of her 'duty to protect the general welfare of the State and its citizens.' She alleges that the alleged conspiracy among the respondent oil companies has 'injured and adversely affected the economy and prosperity' of Hawaii as follows:
51
'(a) revenues of its citizens have been wrongfully extracted from the State of Hawaii;
52
'(b) taxes affecting the citizens and commercial entities have been increased to affect such losses of revenues and income;
53
'(c) opportunity in manufacturing, shipping and commerce have been restricted and curtailed;
54
'(d) the full and complete utilization of the natural wealth of the State has been prevented;
55
'(e) the high cost of manufacture in Hawaii has precluded goods made there from equal competitive access with those of other States to the national market;
56
'(f) measures taken by the State to promote the general progress and welfare of its people have been frustrated; '(g) the Hawaii economy has been held in a state of arrested development.'
57
I see no way of distinguishing the instant case from Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051. The Georgia case held that a State may sue as parens patriae under the antitrust laws for injury to the economy of the State resulting from a conspiracy to restrain trade and commerce through the fixing of railroad rates. Id., at 446, 65 S.Ct., at 721. As we said:
58
'Georgia as a representative of the public is complaining of a wrong, which if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected.' Id., at 451, 65 S.Ct., at 723.
59
So-called 'growth,' 'progress,' and 'development' are more than symbols of power in modern society; they represent the goal which planners—private and public alike—establish and seek to attain. And the State plays an important, at times crucial, role in achieving that goal.2 If Hawaii can sustain her allegations by proof, she establishes injury both as respects her tourism and her industry, her 'growth' and her 'development.'
60
The Court of Appeals was 'skeptical of the existence of an independent harm to the general economy.' 431 F.2d 1282, 1285. But as Alabama states in her brief amicus:
61
'Economists have developed models for measuring the effects upon local economies from infusions or extractions of given sums of money from those economies. In short, a state's economy is susceptible of articulation and measurement.'
62
Hawaii is the magnet of tourism and of industry as well. She measures the health of her economy by her economic growth. No one citizen can stand in her shoes in those respects, for she represents the collective. Those interests should be held to be the State's 'business or property' interests, within the meaning of the Clayton Act, and not merely the plants, factories, or hotels which she may own as a proprietor. We held as much in the Georgia case. It is indisputable that if Hawaii does prove damages, Georgia authorizes recovery. For as Mr. Justice BRENNAN points out, Georgia was denied damages only because of a technicality irrelevant to the present case.
63
Injury to the collective will commonly include injury to members of the collective. In that event damages recovered by Hawaii could not later be recovered by individual entrepreneurs. It might, of course, be shown that the individual's loss for the period in question was distinct from any impact on the collective. Thus, if Hawaii failed to prove that the alleged conspiracy damaged her economy, a single entrepreneur might still be able to prove that it drove him to the wall. The difficulties advanced in this regard are more imaginery than real. They are doubtless rationales that express a prejudice against liberal construction of the antitrust laws. Since a collective damage is alleged, I would allow the case to go to trial, saving to Congress the question whether § 4 of the Clayton Act should be restricted to a State's proprietary interests.
64
I would adhere to the Georgia case and allow Hawaii a chance to prove her charges and to establish the actuality of damages or the need for equitable relief.3
65
I would reverse the judgment and remand the case for trial.4
66
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.
67
The State of Hawaii seeks treble damages and injunctive relief for an alleged conspiracy among respondents to monopolize and fix prices on the sale of petroleum products in the State. Court one of Hawaii's complaint alleges an economic injury to the State in its proprietary capacity as purchaser of those products. Count two states a claim by the State, as parens patriae, for injury to its 'economy and prosperity,' including the withdrawal of its citizens' revenues, increased taxes to offset such losses, curtailment of manufacturing, shipping, and commerce, and injury to the competitive position of Hawaiian goods in the national market. Count three alleges a class action on behalf of all purchasers in the State of respondents' petroleum products. The District Court dismissed count three as unmanageable, but denied respondents' motion to dismiss count two, the parens patriae claim. An interlocutory appeal was taken by respondents under 28 U.S.C. § 1292(b), and the Court of Appeals for the Ninth Circuit reversed and ordered dismissal of count two. The Court of Appeals held that even if the State's economy might suffer injury from antitrust violations independent of the injury suffered by private persons, that injury would not be to the State's 'business or property' within the meaning of § 4 of the Clayton Act, and in any event would be too remote from respondents' alleged violations to permit the State to recover as parens patriae.
68
Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), in my view, requires reversal. In that case the State of Georgia sought to invoke the original jurisdiction of this Court to remedy a conspiracy by several railroads to fix rates on the transportation of goods to and from the State. as noted by the Court, ante, at 259 n. 13, Georgia sought damages in each of the four counts of its complaint—in its sovereign capacity, as a quasi-sovereign, in its proprietary capacity, and as representative of its citizens. Treating the complaint as a prayer 'for damages and for injunctive relief,' 324 U.S., at 445, 65 S.Ct., at 720, the Court held that Georgia, both as parens patriae and proprietor, was an appropriate party to bring these claims:
69
'The enforcement of the criminal sanctions of (the antitrust) acts has been entrusted exclusively to the federal government. See State of Georgia v. Evans (316 U.S. 159, 162, 62 S.Ct. 972, 974, 86 L.Ed. 1346). But when it came to other sanctions Congress followed a different course and authorized civil suits not only by the United States but by other persons as well. And we find no indication that, when Congress fashioned those civil remedies, it restricted the States to suits to protect their proprietary interests. Suits by State, parens patriae, have long been recognized. There is no apparent reason why those suits should be excluded from the purview of the anti-trust acts.' Id., at 447, 65 S.Ct., at 721.
70
Georgia was in fact denied damages, but only because such recovery might operate as an illegal rebate on rates already approved by the Interstate Commerce Commission. See Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922). Implicit in the decision, however, was the holding that Georgia, as parens patriae, could have recovered damages under the antitrust laws for a conspiracy involving other than agency-approved transportation charges. That holding applies with equal force here. Hawaii is complaining, not of an affront to its abstract sovereignty, but of the economic loss occasioned by respondents' conspiracy. As in Georgia, this can only be characterized as a wrong to the State 'which if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States.' 324 U.S., at 451, 65 S.Ct., at 723. If that injury would have been a sufficient basis for a damage claim by Georgia, as we held in that case, then it supports an identical action by Hawaii here.
71
Even if Georgia were not dispositive, I would still find in Hawaii's parens patriae count a claim of injury to its 'business or property' sufficient to state a claim under § 4. There runs through the Court's opinion an assumption that Hawaii's proprietary claims, though concededly sufficient to state a cause of action, are wholly distinct in concept from those raised by the State as parens patriae. While I agree that the two counts represent injuries to the State in separate capacities, the injuries themselves are not so unrelated as to justify a different treatment under the Clayton Act. In Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906), the city brought a treble-damages action against two pipe companies whose trust and combination had been invalidated in Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). Claiming injury "in its business or property," 203 U.S., at 395, 27 S.Ct., at 65, the city sought damages in its capacity as a purchaser of water pipes for the municipal water system. In upholding the right of the city to bring that action, the Court stated:
72
'It was injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of money wrongfully induced is injured in his property.' Id., at 396, 27 S.Ct., at 66.
73
See also Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346 (1942).
74
The determinant, then, is whether 'property is diminished by a payment of money wrongfully induced.' But what was the nature of the injury to property for which recovery was permitted in Chattanooga? Clearly it was nothing more than the added expense incurred by the city's treasury as the result of the antitrust violation. While it was incurred in the course of a business transaction, the harm was to the economic wealth of the city's population as a whole, for any savings in public expenditures that ultimately accrued were for their benefit.
75
This is the same sort of interest sought to be protected here. Hawaii's economy, to which tourism and the tourist trade are important, would be particularly vulnerable to injury from a price conspiracy involving petroleum products. In seeking to preserve the economic opportunities of its people, and the tax revenues generated thereby, Hawaii is asserting an interest not significantly different in concept from that involved in Chattanooga. Whether the injury sought to be remedied consists of additional payments from the public purse, as in that case, or the failure to generate additional wealth, as here, the result in either instance is the same—the government and its population, as entities, have suffered harm to their economic well-being. If that harm is characterized 'business or property' in one case, then we stretch no traditional property concepts in applying the same label in the other.*
76
This conclusion is not undercut by 15 U.S.C. § 15a, which limits recovery by the United States for injury to its 'business or property' caused by a violation of the antitrust laws to 'actual damages suffered' 'solely as a buyer of goods.' S.Rep.No.619, 84th Cong., 1st Sess., 3 (1955). Nothing in the Act similarly restricts a State, suing as parens patriae. As the legislative history of § 15a shows, the major emphasis during passage of the Sherman Act was on the methods of its enforcement. '(I)t was believed that the most effective method, in addition to the imposition of penalties by the United States, was to provide for private treble-damage suits. It was originally hoped that this would encourage private litigants to bear a considerable amount of the burden and expense of enforcement and thus save the Government time and money.' Id., at 2; U.S.Code Cong. & Admin.News, p. 2329. Thus private litigants, encouraged by the hope of triple recovery, were seen as a major instrument of antitrust enforcement, supplemented by criminal prosecutions and civil forfeiture actions brought by the Federal Government. These remedies did not, however, adequately protect the Government as the volume of its procurement grew and collusion among its suppliers became increasingly evident. This was the mischief Congress enacted § 15a to curb:
77
'The American taxpayer is entitled to full value for his tax dollar. He should be protected against its going into the pockets of wrongdoers in the form of excessive prices and profits gained through violation of the antitrust laws. If he were spending the money himself, he could sue for triple damages. Surely, he is entitled to protection from actual loss where the Government spends it for him. By permitting the United States Government to recover the provable damages resulting from unlawful practices engaged in by those with whom it does business, (§ 15a) would afford those safeguards necessary to the Public Treasury and at the same time severely deter those who would conspire in their dealings with Federal departments.' H.R.Rep.No.422, 84th Cong., 1st Sess., 4—5 (1955).
78
At the same time, however, Congress felt that 'unlike the situation with respect to private persons, there is no need to furnish the Government any special incentive to enforce the antitrust laws, a heavy responsibility with which it is already charged,' and therefore Congress granted 'to the Government the right to recover only actual, as distinguished from treble, damages.' Id., at 4. In addition, Congress felt that the United States was 'amply equipped with the criminal and civil process with which to enforce the antitrust laws. The proposed legislation, quite properly, treats the United States solely as a buyer of goods and permits the recovery of the actual damages suffered.' S.Rep.No.619, supra, at 3; U.S.Code Cong. & Admin.News, p. 2330.
79
Thus § 15a served a narrower purpose than the treble-damages provisions of the Sherman and Clayton Acts. The United States was 'amply equipped' with 'criminal and civil process' for general enforcement, and needed a damage remedy solely to protect itself 'as a buyer of goods.' On the other hand private litigants, including the States, lacked the Government's 'criminal and civil process.' Yet they were viewed as primary enforcers of antitrust policy and were armed with the weapon of triple recovery as a means of stimulating their efforts. It is plain from the history of § 15a that Congress did not intend the States to be denied the treble-damages remedy Hawaii pursues here.
80
Finally, this result does not necessarily lead to double recovery. Since Hawaii is by definition asserting claims 'independent of and behind the titles of its citizens,' Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038 (1907), there may be excluded from its recovery any monetary damages that might be claimed by its citizens individually or as part of a properly constituted class. That problem, like uncertainty of damages, is better answered after trial than on the pleadings.
81
In sum, I think that since no one questions that Hawaii can maintain a treble-damages action in its proprietary capacity, for analogous reasons, Hawaii may also maintain the action pleaded in count two as parens patriae.
1
Chevron Asphalt Co. was not named as a defendant in the initial complaint. As pointed out in the text, infra, the company was named as a defendant in the third and fourth amended complaints which raise the question presented to the Court.
2
In the third amended complaint, the State abandoned a claim made in the initial complaint that the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(a), had been violated. This claim has not been resurrected in any of the later stages of the proceedings.
3
The opinion of the court is unreported, but is contained in App. 51—58.
4
Id., at 58.
5
Reporter's Tr. 154 (May 29, 1969).
6
The District Court offered to certify its dismissal of Hawaii's class-action count, but Hawaii indicated its intention not to appeal the ruling. Since the ruling was not appealed it is not before the Court for review.
7
Although the Court of Appeals directed that the count be dismissed in its entirety, the parties have not suggested that its decision foreclosed any relief the State might obtain by way of injunction.
8
Malina & Blechman, at 197; State Protection, at 412.
9
State Protection, at 412.
10
3 W. Blackstone, Commentaries *47.
11
Ibid.
12
Article III, § 2, of the Constitution confers original jurisdiction upon this Court over suits between States or by one State against a citizen of another State. In order to properly invoke this jurisdiction, the State must bring an action on its own behalf and not on behalf of particular citizens. See, e.g., Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900); New Hampshire v. Louisiana, 108 U.S. 76. 2 S.Ct. 176. 27 L.Ed. 656 (1883); Oklahoma v. Atchison, T. & S.F.R. Co., 220 U.S. 277, 31 S.Ct. 434, 55 L.Ed. 465 (1911). An action brought by one State against another violates the Eleventh Amendment if the plaintiff State is actually suing to recover for injuries to designated individuals. See, e.g., New Hampshire v. Louisiana, supra; North Dakota v. Minnesota, 263 U.S. 365, 376, 44 S.Ct. 138, 140, 68 L.Ed. 342 (1923).
13
It is evident from the bill of complaint that Georgia sought to sue in four slightly different capacities: its sovereign capacity (first count); as a quasi-sovereign (second count); its proprietary capacity (third count); and as protector of a general class of its citizens (fourth count). Damages were sought in each count, although treble damages were sought only on the last count.
14
It is true, as Mr. Justice BRENNAN suggests, that an injury to the State in its proprietary capacity, as alleged in count one of the complaint, affects the citizens in much the same way as an injury of the sort claimed by Hawaii here. Each has the effect of
increasing taxes, or reducing government services, or both. But this does not mean that the two kinds of injuries are identical in nature. Where the injury to the State occurs in its capacity as a consumer in the marketplace, through a 'payment of money wrongfully induced,' Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 396, 27 S.Ct. 65, 66, 51 L.Ed. 241 (1906), damages are established by the amount of the overcharge. Under § 4, courts will not go beyond the fact of this injury to determine whether the victim of the overcharge has partially recouped its loss in some other way, even though a State, for example, may ultimately recoup some part of the overcharge through increased taxes paid by the seller. See Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 489, 88 S.Ct. 2224, 2229, 20 L.Ed.2d 1231 (1968). Measurement of an injury to the general economy, on the other hand, necessarily involves an examination of the impact of a restraint of trade upon every variable that affects the State's economic health—a task extremely difficult, 'in the real economic world rather than an economist's hypothetical model.' Id., at 493, 88 S.Ct., at 2231.
The lower courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation. See, e.g., Miley v. John Hancock Mutual Life Insurance Co., 148 F.Supp. 299, 303 (Mass.), aff'd, 242 F.2d 758 (CA1), cert. denied, 355 U.S. 828, 78 S.Ct. 38, 2 L.Ed.2d 41 (1957); Billy Baxter, Inc. v. Coca-Cola Co., 431 F.2d 183 (CA2 1970), cert. denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826 (1971); Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 732—734 (CA3 1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1190, 28 L.Ed.2d 323 (1971); South Carolina Council v. Newton, 360 F.2d 414, 419 (CA4), cert. denied, 385 U.S. 934, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966); Dailey v. Quality School Plan, Inc., 380 F.2d 484 (CA5 1967); Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383, 395 (CA6 1962), cert. denied, 372 U.S. 907, 83 S.Ct. 721, 9 L.Ed.2d 717 (1963); Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F.2d 564, 566—567 (CA7), cert. denied sub nom. Illinois v. Commonwealth Edison Co., 375 U.S. 834, 84 S.Ct. 64, 11 L.Ed.2d 64 (1963); Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679, 688—689 (CA8 1966); Hoopes v. Union Oil Co., 374 F.2d 480, 485 (CA9 1967); Nationwide Auto Appraiser Serv. v. Association of Cas. & Sur. Co., 382 F.2d 925, 928—929 (CA10 1967).
15
'Whenever the United States is hereafter injured in its business or property by reason of anything forbidden in the antitrust laws it may sue therefor . . ., and shall recover actual damages by it sustained and the cost of suit.' 69 Stat. 282, 15 U.S.C § 15a.
This section was enacted in 1955 following the decision in United States v. Cooper Corp., 312 U.S. 600, 61 S.Ct. 742, 85 L.Ed. 1071 (1941), which held that the United States was not a 'person' within the meaning of § 7 of the Sherman Act (the predecessor of § 4 of the Clayton Act). Recovery is limited to actual rather than treble damages because Congress reasoned that the United States, unlike a private party, needed no extraordinary incentive to bring antitrust suits. H.R.Rep.No.422, 84th Cong., 1st Sess., 3 (1955).
1
In Wyandotte, the Court refused to exercise its conceded original jurisdiction over an original complaint filed by the State of Ohio to enjoin alleged pollution of Lake Erie by manufacturing plants in Michigan and Ontario, Canada, because 'as a practical matter, it would be inappropriate for this Court to attempt to adjudicate the issues . . ..' 401 U.S., at 501, 91 S.Ct., at 1011. In the light of our rules permitting the appointment of special masters, however, this rationale is questionable at best. Id., at 510—512, 91 S.Ct., at 1015—1016 (Douglas, J., dissenting). See generally Woods & Reed, The Supreme Court and Interstate Environmental Quality: Some Notes on the Wyandotte Case, 12 Ariz.L.Rev. 691 (1970).
2
'In these three respects—as a clearing house for necessary institutional innovations; as an agency for resolution of conflicts among group interests; and as a major entrepreneur for the socially required infrastructure—the sovereign state assumes key importance in channeling the explosive impacts of continuous structural changes, in providing a proper framework in which these structural changes, proceeding at revolutionary speed, are contained and prevented from exploding into a civil war (as they sometimes may, and have). Thus, the high rate of change in economic structure is linked to the importance of the sovereign state as an organizing unit. It is not accidental that, in measuring and analyzing economic growth, we talk of the economic growth of nations and use national economic accounts. In doing so, we imply that the sovereign state is an important factor in modern economic growth; that, given the transnational, worldwide character of the supply of useful knowledge and science, the major permissive factor of modern economic growth, the state unit, in adjusting economic and social institutions to facilitate and maximise application, plays a crucial supplementary role.' S. Kuznets, Economic Growth of Nations 346—347 (1971).
3
The question of injunctive relief concerns the meaning of § 16 of the Clayton Act which grants relief to any 'person' against loss or damage by a violation of 'the antitrust' laws. It is settled that a State is a 'person' within the meaning of § 16. Georgia v. Pennsylvania R. Co., 324 U.S. 439, 452, 65 S.Ct. 716, 723, 89 L.Ed. 1051. Hence, it is clear that even if Hawaii does not prove damages, equitable relief is available as it was in the Georgia case.
4
My quarrel with the Court does not extend to its approving reference to the possibility that Hawaii may yet be able to maintain a class action on behalf of her consumers, ante, at 266. Cf. Comment, Wrongs Without Remedy: The Concept of Parens Patriae Suits for Treble Damages Under the Antitrust Laws, 43 S.Cal.L.Rev. 570, 580—583 (1970). The District Court's dismissal of Hawaii's class action count as 'unmanageable' was not certified for interlocutory appeal, and Hawaii's rights under Fed.Rule Civ.Proc. 23 are not before us for review.
*
The Court seems to concede as much in saying that an 'injury to the State in its proprietary capacity . . . affects the citizens in much the same way as an injury of the sort claimed by Hawaii here.' Ante, at 262 n. 14. Yet because the assessment of damages might prove more difficult in a parens patriae than a proprietary action, the Court concludes that 'the two kinds of injuries are (not) identical in nature.' Id., at 263 n. 14. The Court plainly confuses two separate issues. The injury to Hawaii's general economy may present problems of proof not raised in its proprietary action, but a mere difficulty in the assessment of damages cannot change the nature of the damage claimed. In short, I think that Hawaii has alleged an injury to its 'business or property,' and, on the entirely separate question of proving damages, agree with my Brother DOUGLAS that the injury can be quantified, or at least approximated.
| 78
|
405 U.S. 278
92 S.Ct. 916
31 L.Ed.2d 202
John ADAMS, Petitioner,v.State of ILLINOIS.
No. 70—5038.
Argued Dec. 7, 1971.
Decided March 6, 1972.
Syllabus
Petitioner's pretrial motion to dismiss the indictment against him because of the court's failure to appoint counsel to represent him at the preliminary hearing in 1967 was denied, and petitioner was tried and convicted. The Illinois Supreme Court affirmed on the ground that Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, in which this Court held that a preliminary hearing is a critical stage of the criminal process at which the accused is constitutionally entitled to assistance of counsel, did not have retroactive application. Held: The judgment is affirmed. Pp. 280—286.
46 Ill.2d 200, 263 N.E.2d 490, affirmed.
Mr. Justice BRENNAN, joined by Mr. Justice STEWART and Mr. Justice WHITE, concluded that Coleman v. Alabama, supra does not apply retroactively to preliminary hearings conducted before June 22, 1970 when Coleman was decided. Pp. 280—285.
Mr. Chief Justice BURGER concurred in the result, concluding, as set forth in his dissent in Coleman, that there is no constitutional requirement that counsel should be provided at preliminary hearings. Pp. 285—286.
Mr. Justice BLACKMUN concurred in the result, concluding that Coleman was wrongly decided. P. 286.
Edward M. Genson, Chicago, Ill., for petitioner.
E. James Gildea, Chicago, Ill., for respondent.
Mr. Justice BRENNAN announced the judgment of the Court and an opinion, in which Mr. Justice STEWART and Mr. Justice WHITE join.
1
In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, decided June 22, 1970, we held that a preliminary hearing is a critical stage of the criminal process at which the accused is constitutionally entitled to the assistance of counsel. This case presents the question whether that constitutional doctrine applies retroactively to preliminary hearings conducted prior to June 22, 1970.
2
The Circuit Court of Cook County, Illinois, conducted a preliminary hearing on February 10, 1967, on a charge against petitioner of selling heroin. Petitioner was not represented by counsel at the hearing. He was bound over to the grand jury, which indicted him. By pretrial motion he sought dismissal of the indictment on the ground that it was invalid because of the failure of the court to appoint counsel to represent him at the preliminary hearing. The motion was denied on May 3, 1967, on the authority of People v. Morris, 30 Ill.2d 406, 197 N.E.2d 433 (1964). In Morris the Illinois Supreme Court held that the Illinois preliminary hearing was not a critical stage at which the accused had a constitutional right to the assistance of counsel. Petitioner's conviction was affirmed by the Illinois Supreme Court, which rejected petitioner's argument that the later Coleman decision required reversal. The court acknowledged that its Morris decision was superseded by Coleman,1 but held that Coleman applied only to preliminary hearings conducted after June 22, 1970, the date Coleman was decided. 46 Ill.2d 200, 263 N.E.2d 490 (1970). We granted certiorari limited to the question of the retroactivity of Coleman. 401 U.S. 953, 91 S.Ct. 981, 28 L.Ed.2d 236 (1971). We affirm.
3
The criteria guiding resolution of the question of the retroactivity of new constitutional rules of criminal procedure 'implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.' Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967). We have given complete retroactive effect to the new rule, regardless of good-faith reliance by law enforcement authorities or the degree of impact on the administration of justice, where the 'major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials . . ..' Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971). Examples are the right to counsel at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); on appeal, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); or at some forms of arraignment, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). See generally Stovall v. Denno, supra, 388 U.S., at 297—298, 87 S.Ct., at 1970—1971; Williams v. United States, supra, 401 U.S., at 653 n. 6, 91 S.Ct., at 1152.
4
However, 'the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree,' Johnson v. New Jersey, 384 U.S. 719, 728—729, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966); it is a 'question of probabilities.' Id., at 729, 86 S.Ct., at 1778. Thus, although the rule requiring the assistance of counsel at a lineup, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), is 'aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification evidence,' we held that the probabilities of infecting the integrity of the truth-determining process by denial of counsel at the lineup were sufficiently less than the omission of counsel at the trial itself or on appeal that those probabilities 'must in turn be weighed against the prior justified reliance upon the old standards and the impact of retroactivity upon the administration of justice.' Stovall v. Denno, supra, 388 U.S., at 298, 87 S.Ct., at 1970.
5
We hold that similarly the role of counsel at the preliminary hearing differs sufficiently from the role of counsel at trial in its impact upon the integrity of the factfinding process as to require the weighing of the probabilities of such infection against the elements of prior justified reliance and the impact of retroactivity upon the administration of criminal justice. We may lay aside the functions of counsel at the preliminary hearing that do not bear on the factfinding process at trial—counsel's help in persuading the court not to hold the accused for the grand jury or meanwhile to admit the accused to bail. Coleman, 399 U.S., at 9, 90 S.Ct., at 2003. Of counsel's other functions—to 'fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial,' to 'discover the case the State has against his client,' 'making effective arguments for the accused on such matters as the necessity for an early psychiatric examination . . .,' ibid.—impeachment and discovery may make particularly significant contribution to the enhancement of the factfinding process, since they materially affect an accused's ability to present an effective defense at trial. But because of limitations upon the use of the preliminary hearing for discovery and impeachment purposes, counsel cannot be as effectual as at trial or on appeal. The authority of the court to terminate the preliminary hearing once probable cause is established, see People v. Bonner, 37 Ill.2d 553, 560, 229 N.E.2d 527, 531 (1967), means that the degree of discovery obtained will vary depending on how much evidence the presiding judge receives. Too, the preliminary hearing is held at an early stage of the prosecution when the evidence ultimately gathered by the prosecution may not be complete. Cf. S.Rep.No. 371 90th Cong., 1st Sess., 33, on amending 18 U.S.C. § 3060. Counsel must also avail himself of alternative procedures, always a significant factor to be weighed in the scales. Johnson v. New Jersey, 384 U.S., at 730, 86 S.Ct., at 1779. Illinois provides, for example, bills of particulars and discovery of the names of prosecution witnesses. Ill.Rev.Stat., c. 38, §§ 114—2, 114—9, 114—10 (1971). Pretrial statements of prosecution witnesses may also be obtained for use for impeachment purposes. See, e.g., People v. Johnson, 31 Ill.2d 602, 206 N.E.
6
We accordingly agree with the conclusion of the Illinois Supreme Court, 'On this scale of probabilities, we judge that the lack of counsel at a preliminary hearing involves less danger to 'the integrity of the truth-determining process at trial' than the omission of counsel at the trial itself or on appeal. Such danger is not ordinarily greater, we consider, at a preliminary hearing at which the accused is unrepresented than at a pretrial line-up or at an interrogation conducted without presence of an attorney.' 46 Ill.2d, at 207, 263 N.E.2d, at 494.2
7
We turn then to weighing the probabilities that the denial of counsel at the preliminary hearing will infect the integrity of the factfinding process at trial against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice. We do not think that law enforcement authorities are to be faulted for not anticipating Coleman. There was no clear foreshadowing of that rule. A contrary inference was not unreasonable in light of our decisions in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). Hamilton denominated the arraignment stage in Alabama critical because defenses not asserted at that stage might be forever lost. White held that an uncounseled plea of guilty at a Maryland preliminary hearing could not be introduced by the State at trial. Many state courts not unreasonably regarded Hamilton and White as fashioning limited constitutional rules governing preliminary hearings. See, e.g., the decision of the Illinois Supreme Court in People v. Morris, 30 Ill.2d 406, 197 N.E.2d 433. Moreover, a number of courts, including all of the federal courts of appeals had concluded that the preliminary hearing was not a critical stage entitling an accused to the assistance of counsel.3 It is thus clear there has been understandable and widespread reliance upon this view by law enforcement officials and the courts.
8
It follows that retroactive application of Coleman 'would seriously disrupt the administration of our criminal laws.' Johnson v. New Jersey, 384 U.S., at 731, 86 S.Ct., at 1780. At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine whether the denial of counsel at the preliminary hearing constituted harmless error. Cf. Stovall v. Denno, 388 U.S., at 300, 87 S.Ct., at 1971. The task of conducting such hearings would be immeasurably complicated by the need to construct a record of what occurred. In Illinois, for example, no court reporter was present at pre-Coleman preliminary hearings and the proceedings are therefore not recorded. See People v. Givans,83 Ill.App.2d 423, 228 N.E.2d 123 (1967). In addition, relief from this constitutional error would require not merely a new trial but also, at least in Illinois, a new preliminary hearing and a new indictment. The impact upon the administration of the criminal law of that requirement needs no elaboration. Therefore, here also, '(t)he unusual force of the countervailing considerations strengthens our conclusion in favor of prospective application.' Stovall v. Denno, supra, 388 U.S., at 299, 87 S.Ct., at 1971.
9
We do not regard petitioner's case as calling for a contrary conclusion merely because he made a pretrial motion to dismiss the indictment, or because his conviction is before us on direct review. '(T)he factors of reliance and burden on the administration of justice (are) entitled to such overriding significance as to make (those) distinction(s) unsupportable.' Stovall v. Denno, supra, at 300—301, 87 S.Ct., at 1972. Petitioner makes no claim of actual prejudice constituting a denial of due process. Such a claim would entitle him to a hearing without regard to today's holding that Coleman is not to be retroactively applied. See People v. Bernatowicz, 35 Ill.2d 192, 198, 220 N.E.2d 745, 748 (1966); People v. Bonner, 37 Ill.2d 553, 561, 229 N.E.2d 527, 532 (1967).
10
Affirmed.
11
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
12
Mr. Chief Justice BURGER, concurring in the result.
13
I concur in the result but maintain the view expressed in my dissent in Coleman v. Alabama, 399 U.S. 1, 21, 90 S.Ct. 1999, 2010, 26 L.Ed.2d 387 (1970), that while counsel should be provided at preliminary hearings as a matter of sound judicial administration, there is no constitutional requirement that it be done. As I noted in Coleman, the constitutional command applies to 'criminal prosecutions,' not to the shifting notion of 'critical stages.' Nor can I join the view that it is a function of constitutional adjudication to assure that defense counsel can 'fashion a vital impeachment tool for the use in cross-examination of the State's witnesses at the trial' or 'discover the case the State has against his client.' 399 U.S., at 9, 90 S.Ct., at 2003. Nothing could better illustrate the extra-constitutional scope of Coleman than the interpretation of it now to explain why we do not make it 'retroactive.'
14
Mr. Justice BLACKMUN, concurring in the result.
15
Inasmuch as I feel that Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), was wrongly decided, I concur in the result.
16
Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, dissenting.
17
Until Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court traditionally applied new constitutional criminal procedure standards to cases finalized and police practices operative before the promulgation of the new rules.1 Linkletter, however, was the cradle of a new doctrine of nonretroactivity which exempts from relief the earlier victims of unconstitutional police practices. I have disagreed on numerous occasions with applications of various brands of this doctrine and I continue my dissent in this case.2 My own view is that even-handed justice requires either prospectivity only3 or complete retroactivity. To me there is something inherently invidious as Mr. Justice Harlan phrased it, in '(s)imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule . . .' Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 1173, 28 L.Ed.2d 404 (1971) (separate opinion). I agree with his critique, id., at 695, 91 S.Ct., at 1181, that the purported distinction between those rules that are designed to improve the fact-finding process and those designed to further other values was 'inherently intractable' and to illustrate his point he adverted to the Court's difficulty in reconciling with its rule such nonretroactivity cases as Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), all of which held nonretroactive decisions designed, in part, to enhance the integrity of the factfinding process. He also questioned the workability of any rule which requires a guess as to 'whether a particular decision has really announced a 'new' rule at all or whether it has simply applied a well-established constitutional principle.' Mackey v. United States, supra, 401 U.S., at 695, 91 S.Ct., at 1181; Desist v. United States, 394 U.S. 244, 263, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969). For example, as I suggest infra, at 293—295, a serious question arises in this case whether Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), should have been fully anticipated by state judicial authorities.4
18
Additionally, it is curious that the plurality rule is sensitive to 'reasonable reliance' on prior standards by law enforcement agencies but is unconcerned about the unfairness of arbitrarily granting relief to Coleman but denying it to Adams.
19
Given my disagreement with the plurality's rule, I am reluctant even to attempt to apply it, but even by its own terms, the balancing approach would appear to require that we hold Coleman retroactive. This conclusion reinforces my fear that the process is too imprecise as a neutral guide for either this Court or the lower courts and will invariably permit retroactivity decisions to turn on predilections, not principles.
20
* In applying the rule, I am first troubled by the plurality's adoption of the finding of the court below that: 'On (the) scale of probabilities, we judge that the lack of counsel at a preliminary hearing involves less danger to 'the integrity of the truth-determining process at trial' than the omission of counsel at the trial itself or on appeal.' Ante, at 282—283. The same might have been said of the right to counsel at sentencing, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), at certain arraignments, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), or at preliminary hearings where guilty pleas were taken, White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), all of which have been held retroactive.5
21
Rather than reaching for these analogies, however the plurality suggests that the danger to the integrity of the truth-determining process is no greater here than at a pretrial lineup or at an interrogation conducted without counsel. In relying on these analogies, the plurality gives short shrift to the argument that 'in practice (the preliminary) hearing may provide the defense with the most valuable discovery technique available to him,' U.S. ex rel. Wheeler v. Flood, 269 F.Supp. 194, 198 (EDNY 1967), an objective which is not so readily achievable at lineups and interrogations at which counsel serves only a protective function. The State's access to superior investigative resources and its ability to keep its case secret until trial normally puts the defendant at a clear disadvantage.6 In light of this disparity, one important service the preliminary hearing performs is to permit counsel to penetrate the evidence offered by the prosecution at the hearing, to test its strengths and weaknesses (without the presence of a jury), to learn the names and addresses of witnesses, to focus upon the key factual issues in the upcoming trial, and to preserve testimony for impeachment purposes. The alternative discovery techniques suggested now by the plurality are puny in comparison. A bill of particulars can usually reach only prosecution witnesses' names, and it may be cold comfort to defense counsel to learn that he can obtain pretrial statements of prosecution witnesses inasmuch as such statements are often prepared from the State's viewpoint and have not been subjected to cross-examination. And in many States such statements are not discoverable.
22
Finally, when read in light of Coleman's exaltation of the virtues of counseled preliminary hearings, the present language of the plurality may lend itself to a 'credibility gap' between it and those involved in the administration of the criminal process. 'Plainly,' said the Coleman Court, 'the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution,' Coleman v. Alabama, supra, 399 U.S., at 9, 90 S.Ct., at 2003, and: 'The inability of the indigent accused on his own to realize these advantages of a lawyer's assistance compels the conclusion that the Alabama preliminary hearing is a 'critical stage' of the State's criminal process at which the accused is 'as much entitled to such aid (of counsel) . . . as at the trial itself." Id., at 9 10, 90 S.Ct., at 2003. It will now appear somewhat anomalous that the right to counsel at a preliminary hearing is fundamental enough to be incorporated into the Fourteenth Amendment but not fundamental enough to warrant application to the victims of previous unconstitutional conduct.7
II
23
I also believe that the plurality's case for establishing good-faith reliance on 'the old standards' by state judicial systems ignores important developments in the right-to-counsel cases prior to Coleman. First of all, no decision of this Court had held that counsel need not be afforded at the preliminary hearing stage. Therefore, to build a case for good-faith reliance the State must wring from our decision the negative implication that uncounseled probable-cause hearings were permissible. Such negative implications are found, says the plurality, in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), cases reversing convictions obtained through the use at trial of uncounseled guilty pleas entered at preliminary hearings. Neither of those decisions, however, faced the question of whether reversal was required on the facts of the instant case. And, though I have studied these two short opinions, I am unable, as is the plurality, to divine any hidden message to law enforcement agencies that we would permit the denial of counsel at preliminary hearings where guilty pleas were not taken. Rather, these cases reinforce, in my mind, the importance of counsel at every stage in the criminal process. In any event, by the time Coleman came down, it was clear, as Mr. Justice Harlan opined, albeit with some regret, that our holding was an inevitable consequence of prior case law:
24
'If I felt free to consider this case upon a clean slate I would have voted to affirm these convictions. But—in light of the lengths to which the right to appointed counsel has been carried in recent decisions of this Court see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); and Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) I consider that course is not open to me with due regard for the way in which the adjudicatory process of this Court, as I conceive it, should work. . . .
25
It would indeed be strange were this Court, having held a suspect or an accused entitled to counsel at such pre-trial stages as 'in-custody' police investigation, whether at the station house (Miranda) or even in the home (Orozco), now to hold that he is left to fend for himself at the first formal confrontation in the courtroom.' Coleman v. Alabama, supra, 399 U.S., at 19—20, 90 S.Ct., at 2008 (separate opinion).8
26
Thus, in the instant case, at the times relevant, the State should have foreseen that the right to counsel attached to the probable-cause hearing.
III
27
I also disagree that '(t)he impact upon the administration of the criminal law of (Coleman retroactivity) needs no elaboration.' Ante, at 284. In the 19 months since Coleman was decided all new prosecutions have presumably followed it and we therefore need only be concerned for impact purposes, with those state proceedings in which a preliminary hearing was held prior to June 1970. Inasmuch as the median state sentence served by felons when they are first released is about 20.9 months,9 most pre-Coleman sentences would now be served and as a practical matter these former prisoners would not seek judicial review. Moreover, we may exclude from our consideration those 16 or more States that prior to Coleman routinely appointed counsel at or prior to preliminary hearings. See American Bar Association, Project on Standards for Criminal Justice, Providing Defense Services § 5.1 (Approved Draft 1968). Additionally, we may exclude from consideration the possibility of collateral challenges by federal prisoners inasmuch as counsel have routinely been present at preliminary hearings before federal commissioners.10 See Fed.Rule Crim.Proc. 5(b).
28
While there are some current prisoners who might challenge their confinements if Coleman were held retrospective, many of these attacks would probably fail under the harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The plurality opinion suggests that conducting such harmless-error proceedings would be onerous. One reason given is that in Illinois, for example, preliminary hearings were not recorded before Coleman. That assertion may not be entirely accurate in light of the fact that this very record contains a transcript of Adams' preliminary hearing. Perhaps, as the respondent seems to concede,11 transcripts were made available in other Illinois cases. That is the more reasonable assumption in light of our holding in Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), that the State must provide a preliminary hearing transcript to an indigent in every circumstances in which the more affluent accused could obtain one.
29
Even where a transcript was not available, however, a prisoner might be able to show at an evidentiary hearing that he was prejudiced by a particular need for discovery, by the inability to preserve the testimony of either an adverse or favorable witness, or by the inability to secure his release on bail in order to assist in the preparation of his defense.12 Courts are accustomed, of course, to assessing claims of prejudice without the aid of transcripts of previous proceedings, such as is required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), or Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 70 (1963). Indeed, in Coleman we remanded for a determination of whether the failure to appoint counsel had been harmless error, 399 U.S., at 11, 90 S.Ct., at 2004. Not every Coleman claim would warrant an evidentiary hearing. Many attacks might be disposed of summarily, such as a challenge to a conviction resulting from a counseled guilty plea entered before any prejudice had materialized from an uncounseled preliminary hearing. See Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).
30
Even Stovall v. Denno, 388 U.S., at 299, 87 S.Ct., at 1971, the analogy frequently invoked by the plurality, held out the possibility of collateral relief in cases where prisoners could show that their lineups had imposed 'such unfairness that (they) infringed (their) right to due process of law.' Conducting Coleman harmless-error hearings would not appear to be any more burdensome on the administration of criminal justice than have Stovall 'fundamental fairness' post-conviction proceedings.
31
In any event, whatever litigation might follow a holding of Coleman retrospectivity must be considered part of the price we pay for former failures to provide fair procedures.
1
The Illinois Supreme Court stated, 46 Ill.2d, at 205—206, 263 N.E.2d, at 493,
'A preliminary hearing in Alabama, as in Illinois, has the purpose of determining whether there is probable cause to believe an offense has been committed by the defendant . . .. In both States the hearing is not a required step in the process of prosecution, as the prosecutor may seek an indictment directly from the grand jury, thereby eliminating the proceeding. . . . In neither State is a defendant required to offer defenses at the hearing at the risk of being precluded from raising them at the trial itself. . . . We conclude that the preliminary hearing procedures of Alabama and Illinois are substantially alike and we must consider because of Coleman v. Alabama . . . that a preliminary hearing conducted pursuant to section 109—3 of the Criminal Code (Ill.Rev.Stat. 1969, ch. 38, par. 109—3) is a 'critical stage' in this State's criminal process so as to entitle the accused to the assistance of counsel.'
A right to a preliminary hearing has been constitutionally established, effective July 1, 1971. Illinois Constitution of 1970, Art. I, § 7, S.H.A.
2
Accord: Phillips v. North Carolina, 433 F.2d 659, 662 (1970), where the Court of Appeals for the Fourth Circuit observed:
'To be sure, if a preliminary hearing is held, the accused gains important rights and advantages that can be effectively exercised only through his attorney. Counsel's function, however, differs from his function at trial. Broadly speaking, his role at the preliminary hearing is to advise, observe, discover the facts, and probe the state's case. In this respect he serves in somewhat the same capacity as counsel at lineups and interrogations, which are both pretrial stages of criminal proceedings where the right to counsel has not been held retroactive.'
3
Pagan Cancel v. Delgado, 408 F.2d 1018 (CA1 1969); United States ex rel. Cooper v. Reincke, 333 F.2d 608 (CA2 1964); United States ex rel. Budd v. Maroney, 398 F.2d 806 (CA3 1968); DeToro v. Pepersack, 332 F.2d 341 (CA4 1964); Walker v. Wainwright, 409 F.2d 1311 (CA5 1969); Waddy v. Heer, 383 F.2d 789 (CA6 1967); Butler v. Burke, 360 F.2d 118 (CA7 1966); Pope v. Swenson, 395 F.2d 321 (CA8 1968); Wilson v. Harris, 351 F.2d 840 (CA9 1965); Latham v. Crouse, 320 F.2d 120 (CA10 1963); Headen v. United States, 115 U.S.App.D.C. 81, 317 F.2d 145 (1963).
1
E.g., Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), (see also Desist v. United States, 394 U.S. 244, 250 n. 15, 89 S.Ct. 1030, 1034, 22 L.Ed.2d 248 (1969)); Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961).
2
Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965); Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 419, 86 S.Ct. 459, 467, 15 L.Ed.2d 453 (1966); Johnson v. New Jersey, 384 U.S. 719, 736, 86 S.Ct. 1772, 1782, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); DeStefano v. Woods, 392 U.S. 631, 635, 88 S.Ct. 2093, 2096, 20 L.Ed.2d 1308 (1968); Desist v. United States, 394 U.S. 244, 255, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969); Halliday v. United States, 394 U.S. 831, 835, 89 S.Ct. 1498, 1500, 23 L.Ed.2d 16 (1969); Mackey v. United States, 401 U.S. 667, 713, 91 S.Ct. 1160, 1170, 28 L.Ed.2d 404 (1971).
3
It was suggested in Stovall v. Denno, supra, 388 U.S., at 301, 87 S.Ct., at 1972, 18 L.Ed.2d 1199, that a prospective-only holding would violate the Art. III requirement of case or controversy. But see England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 422, 84 S.Ct. 461, 468, 11 L.Ed.2d 440 (1964) where the Court exempted the petitioner from its holding. See also Johnson v. New Jersey, supra, 384 U.S., at 733, 86 S.Ct., at 1780, 16 L.Ed.2d 882.
4
While I subscribe to many of the reservations expressed by Mr. Justice Harlan, I nonetheless find his alternative rule of retrospectivity unsatisfactory. In Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1171, 28 L.Ed.2d 404 (1971) (separate opinion), he suggested that constitutional decisions be retroactive as to all nonfinal convictions pending at the time of the particular holdings, but that prisoners seeking habeas relief should generally be treated according to the law prevailing at the time of their convictions. It is on this latter score that I am troubled. Surely it would be no more facile a task to unearth the
state of law of years past than it is to assign, under the plurality's test, a degree of reasonableness to reliance on older standards by law enforcement agencies. Where the question has arisen in this Court, we have treated habeas petitioners by the modern law, not by older rules. See Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961) (habeas permitted on basis of current law to release prisoner convicted in 1936). See also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), announcing new rules in habeas cases. Moreover, as has been concluded by Professor Schwartz, the drawing of a bright line between federal review through habeas and certiorari would be unjustified:
'Where federal review of the constitutionality of state criminal proceedings is concerned, the making of so sharp a distinction between review on certiorari and habeas corpus is unwarranted. There is often no significant difference with respect to age and potential staleness between the two types of cases. Rather than coming years after the conviction is final, habeas corpus is often but a routine step in the criminal defense process the normal step taken after certiorari has been denied. Sometimes, it actually replaces certiorari, for in Fay v. Noia (372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)) the Supreme Court advised criminal defendants to skip certiorari and to petition directly to the federal district court for habeas corpus. Even in situations in which a defendant goes through all the direct review steps, it is often nothing more than fortuitous circumstance which determines whether his case is still on direct review or is on collateral attack when the new decision comes down.
'The difference between review on certiorari and habeas corpus seems even less significant when we look to function and actual operation. Although it is sometimes considered the 'normal' method for obtaining federal review of state convictions, certiorari does not provide, as the Court remarked in Fay v. Noia, 'a normal appellate channel in any sense comparable to the writ of error,' for the Court must limit its jurisdiction to questions that have significance beyond the immediate case. Habeas corpus, on the other hand, facilitates the Court's task in those cases it does take by providing a record focused exclusively on the federal constitutional question. Habeas corpus has thus become the primary vehicle for immediate federal
review of state convictions. Further, this development has resulted in a gradual shrinking of what were once significant operational differences between review on certiorari and habeas corpus, such as the relationship to the state proceeding, the degree of independent fact-finding authority, and the significance of the defendant's violation of state procedural rules. From both the functional and the operational standpoints, then, it is justifiable to conclude that 'the distinctions between habeas corpus proceedings and direct review are largely illusory.'
'In addition, drawing a line between review (on) certiorari and habeas corpus undercuts the Supreme Court's bypass suggestion in Fay v. Noia. If a defendant has doubts about the retroactivity of any claim which might both affect him and be subject to Court review in the foreseeable future, he will be well advised always to ignore the Court's suggestion and to apply for certiorari. Many months may pass before his petition for certiorari is rejected, and so long as it is pending, he will be entitled to receive the benefits of any intervening decisions. As soon as he files his petition for habeas corpus, however, even if he does so only a day after the last state court order is entered, he will have forfeited his right to such benefits. He will thus be put to an election between delayed relief and no relief at all.
'The inequity of drawing a sharp distinction between direct review and habeas corpus is, however, only one aspect of a broader inequity: treating two prisoners deprived of the same fundamental constitutional right differently merely because the Supreme Court did not get around to enunciating a particular right until after the conviction of one of them had become final. Professor Mishkin argues that worry about this point ignores 'the reasons for barring current convictions and . . . the fact that the new rule in no way undermines the earlier determinations of factual guilt.' To him, it is as if a guilty person were to complain of his lot because others equally guilty were not prosecuted. And though he recognizes that such claims are sometimes sustained. he concludes that 'there are certainly rational bases for drawing a line between current convictions and
those previously final,' citing excerpts from Professors Bator and Amsterdam on finality. Professor Mishkin's sharp distinction between collateral attack and direct review thus rests ultimately on finality considerations.
'Finality considerations seem especially weak where two cases differ only in the fact that one is still on 'direct' review whereas the other is not. Where the two cases are far apart in age, finality considerations are admittedly more persuasive. But even there, the mere timing of the Court's decision to grant federal protection to a fundamental right hardly seems to be a sufficient basis for unequal treatment; after all, in most instances it was not the older prisoner's fault that the Court did not render its decision earlier. To some extent, of course, the question comes down to a choice between the competing values of equality and repose, and choices of this sort are notoriously immune to reasoned resolution. It will be suggested below, however, that the threat to finality considerations from complete retroactivity appears to have been greatly exaggerated, and if this suggestion is well taken, Professor Mishkin's rejection of equality is especially untenable.' Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U.Chi.L.Rev. 719, 731—734 (1966).
5
See McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) (Mempa retroactive); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5, (1968) (White and Hamilton retroactive).
6
The investigative advantage enjoyed by the State extends beyond the prohibition of the common law against criminal discovery. It also results from the fact that the police are usually first at the scene of the crime, have access to witnesses with fresher recollections, are authorized to confiscate removable evidence, are positioned to conduct laboratory tests on physical evidence, enjoy a communication channel with a complete undercover world of secret informers, have an air of legitimacy which is conducive to cooperation by witnesses, and have numerous ways to compel testimony even before trial. See generally Norton, Discovery in the Criminal Process, 61 J.Crim.L., C. & P.S. 11, 13 14 (1970); Comment Criminal Law: Pre-Trial Discovery—The Right of an Indigent's Counsel to Inspect Police Reports, 14 St. Louis U.L.J. 310 (1969); Moore, Criminal Discovery, 19 Hastings L.J. 865 (1968); A State Statute to Liberalize Criminal Discovery, 4 Harv.J.Legis. 105 (1967); Comment, Disclosure and Discovery in Criminal Cases: Where Are We
Headed?, 6 Duquesne U.L.Rev. 41 (1967); Bibliography: Criminal Discovery, 5 Tulsa L.J. 207 (1968); Symposium: Discovery in Federal Criminal Cases, 33 F.R.D. 53 (1963); Brennan, Criminal Prosecution: Sporting Event or Quest For Truth?, 1963 Wash.U.L.Q. 279.
7
I am aware that the retroactivity theory presently commanding a Court permits a distinction between rules designed to fortify the reliability of verdicts and rules designed to protect other values. But here, as the plurality suggests, three of the four functions counsel might serve at preliminary hearings would appear to enhance the factfinding process: discovery of the State's case, preserving of testimony of both hostile and favorable witnesses, and obtaining release on bail. Although the plurality appears to discount the investigative advantage of being free on bail, I believe that this 'traditional right to freedom before conviction permits the unhampered preparation of a defense.' Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951). See also Kinney v. Lenon, 425 F.2d 209, 210 (CA9 1970), where the Court of Appeals found that 'the appellant is the only person who can effectively prepare his own defense,' because the incarcerated accused was the only person who could recognize witnesses by sight who might have seen a scuffle.
8
To this list might have been added Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), holding that the State must provide an indigent with a preliminary hearing transcript in every circumstance in which the more affluent accused could obtain one.
9
Federal Bureau of Prisons, National Prisoner Statistics Characteristics of State Prisoners, 1960, pp. 26—27 (1965).
10
In this respect the instant case further differs from Stovall v. Denno, 388 U.S., at 299, 87 S.Ct., at 1971, where it was found that: 'The law enforcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification.'
11
Brief for Respondent 33.
12
See n. 7, supra.
| 01
|
31 L.Ed.2d 217
92 S.Ct. 908
405 U.S. 298
UNITED STATES, Petitioner,v.MISSISSIPPI CHEMICAL CORPORATION et al.
No. 70—52.
Argued Jan. 10, 1972.
Decided March 6, 1972.
Syllabus
Respondent taxpayers are cooperative associations within the meaning of the Agricultural Marketing Act, and thus qualify for membership in one of the Banks for Cooperatives established by the Farm Credit Act of 1933, which provides that members may borrow money from their Banks. Respondents secured membership in the New Orleans Bank and elected to borrow. They were required by the Farm Credit Act of 1955 to make quarterly purchases of $100 par value Class C stock of the Bank equal to not less than 10% nor more than 25% of the amount of the quarterly interest paid to the Bank on their loans. During the relevant period the rate set by the Bank was 15%. Respondents claimed a.$99 interest expense deduction on their tax returns for each $100 stock purchase required by the statute. The deductions were disallowed and respondents filed this suit for refunds. The Government contended that the stock is a capital asset as defined by 26 U.S.C. § 1221, and is nondeductible, while respondents asserted that the purchase price is part of 'the amount (they) contracted to pay for the use of the borrowed money,' and is deductible as interest. The District Court found for the respondents and the Court of Appeals affirmed. Held: It is clear from the legislative scheme that the Class C stock is a capital asset having a long-term value. Its cost is, therefore, not deductible as an interest expense. Pp. 302—312.
5th Cir., 431 F.2d 1320, reversed and remanded.
Matthew J. Zinn, Washington, D.C., for petitioner.
John C. Satterfield, Jackson, Miss., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Mississippi Chemical Corp. and Coastal Chemical Corp. (hereinafter taxpayers) instituted this action for a tax refund in the United States District Court for the Southern District of Mississippi. Both taxpayers are 'cooperative associations' within the meaning of § 15 of the Agricultural Marketing Act, 46 Stat. 18, as amended, 12 U.S.C. § 1141j, and thus qualify for membership in one of the 12 'Banks for Cooperatives' (hereinafter Bank(s)) established by the Farm Credit Act of 1933, 48 Stat. 257, as amended, 12 U.S.C. § 1134 et seq. Since their principal places of business are located in Mississippi, their regional Bank is the one located in New Orleans.
2
The Farm Credit Act of 1933 provides that members may borrow money from their Banks and, soon after securing membership in the New Orleans Bank, the taxpayers elected to borrow.1 Thereafter, they were required by the Farm Credit Act of 1955, 69 Stat. 656, 12 U.S.C. § 1134d(a)(3), which partially amended the 1933 Act, to make quarterly purchases of $100 par value Class C stock of the Bank equal to not less than 10% nor more than 25% of the amount of the quarterly interest that they paid to the Bank on their loans. During the period relevant to this lawsuit, the rate set by the Bank was 15%.2
3
On their tax returns for the years in question, the taxpayers claimed a.$99 interest expense deduction for every $100 stock purchase required by the statute.3 The Commissioner of Internal Revenue disallowed the deductions, the taxpayers paid the assessed deficiencies, and this action arose.
4
The United States has consistently contended that the stock that the taxpayers were required to purchase under the 1955 Act is a capital asset as defined by § 1221 of the Internal Revenue Code, 26 U.S.C. § 1221, and that its cost is nondeductible. See 26 U.S.C. § 263. The taxpayers have persistently urged that the money expended for this stock is part of 'the amount (they) . . . contracted to pay for the use of borrowed money,' Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560, 52 S.Ct. 211, 214, 76 L.Ed. 484 (1932), and is deductible as interest. 26 U.S.C. § 163(a).
5
The District Court found for the taxpayers4 and the United States Court of Appeals for the Fifth Circuit affirmed over the dissent of Judge Godbold. 5th Cir., 431 F.2d 1320 (1970). We granted certiorari on February 22, 1971, to review the decision of the Court of Appeals. 401 U.S. 908, 91 S.Ct. 884, 27 L.Ed.2d 805. We reverse for the reasons stated below.
6
* Early in this century, Congress recognized that farmers had a tremendous need for long-term capital at low interest rates. This led to the enactment of the Federal Farm Loan Act of 1916, 39 Stat. 360, as amended, 12 U.S.C. § 641 et seq. The immediate purpose of the bill was 'to afford those who (were) engaged in farming or who desire(d) to engage in that occupation a vastly greater volume of land credit on more favorable terms and at materially lower and more nearly uniform interest rates than (were) present(ly) available.' H.R.Rep.No.630, 64th Cong., 1st Sess., 2. The long-range purpose was to stimulate and foster a cooperative spirit among farmers who, it was hoped, would work together to seek agricultural improvements which they would finance themselves. Id., at 2—3; S.Rep.No.144, 64th Cong. 1st Sess., 5.
7
The 1916 Act divided the United States into 12 regional districts under the general supervision of a Federal Farm Loan Board. Each district contained a federal land bank designed to loan money to farmers at low interest rates. Persons desiring to borrow were required to organize into groups of 10 or more which were called 'national farm loan associations.' Sec. 7, 39 Stat. 365.
8
In order to borrow from the district bank, an association had to establish that each of its members was an owner or a prospective owner of a farm, that the loan desired by each member was not less than $100 nor more than $10,000, and that the aggregate of the loans was not less than $20,000. Each association also had to subscribe for capital stock of the bank in the amount of 5% of the total loan sought by its members. The association, in turn, was required to compel each of its members to purchase stock in the association equal to 5% of the amount of the loan sought by that member. Hence, there were two separate levels of cooperative association.5
9
The legislative history and the language of the Act itself indicate that Congress faced somewhat of a dilemma in structing the land bank system. On the one hand, there was a strong congressional desire to stimulate a privately controlled, privately owned, and privately financed program based upon the cooperative efforts of dedicated farmers. This desire was effectuated in large measure in the stock-purchase requirements discussed above. On the other hand, Congress realized that without federal help, the existing plight of the farmers would probably render them unable to support the system themselves, and it would thus be doomed to failure:
10
'The greatest difficulty in the establishment of a rural-credit system, based upon the cooperative principle, is met in connection with the inauguration of the system. Ample capital is absolutely necessary at the start and whatever sums the first borrowers might be able to contribute would in no wise suffice to get the system into successful operation. The system must be endowed, temporarily at least, with capital from sources other than the subscriptions to capital stock among the borrowers.' H.R.Rep.No. 630, 64th Cong., 1st Sess., 9.
11
Accord, S.Rep.No.144, 64th Cong., 1st Sess., 4.
12
To resolve the dilemma, Congress provided for temporary public financing without charge to supplement the stock-purchase requirements of the statute. Congress also provided that each land bank must periodically increase its capital shares in order to achieve the goal of private ownership of the system, and to repay the temporary federal financing.
13
The land bank system remained virtually untouched6 until the economic depression of the 1930's when Congress determined that more action was needed to aid farmers in establishing privately owned institutions designed to provide ready sources of long-term credit. The Farm Credit Act of 1933 was passed to supplement the 1916 legislation. It established, inter alia, regional Banks for Cooperatives in each of the 12 land bank districts and a Central Bank for Cooperatives in Washington, D.C.7
14
These Banks were authorized to make loans to 'cooperate associations,' defined as 'association(s) in which farmers act together in processing, preparing for market, handling, and/or marketing the farm products of persons so engaged, and also . . . association(s) in which farmers act together in purchasing, testing, grading, processing, distributing, and/or furnishing farm supplies and/or farm business services.' Agricultural Marketing Act, § 15, 46 Stat. 18, as amended, 12 U.S.C. § 1141j.
15
The new Banks paralleled in many ways those already established under the 1916 legislation. The same regional districts were used, many of the same persons were eligible for loans from both institutions, and borrowers from both banks were required to be stockholders. The 1933 Act required cooperative associations to own, at the time a loan was made, an amount of stock in the Bank for Cooperatives equal in fair book value (not to exceed par value) to $100 per $2,000 of the amount of the loan, or 5%, the same amount of stock required of borrowers from land banks under the 1916 Act.
16
One notable difference between the 1916 and the 1933 Acts was that the latter did not regulate the membership of the cooperative association to any great degree. For example, members of cooperative associations did not have to own stock in the associations, only in the Banks; they did not have to borrow a minimum amount; and they did not have to be farm owners or prospective farm owners, but could be processors, handlers, testers, or marketers. This is in sharp contrast to the stringent requirements of the 1916 legislation. Another notable difference is that Congress invested substantially more money in the 1933 program ($110,000,000) than it had invested in the land banks ($9,000,000). See S.Rep.No.1201, 84th Cong., 1st Sess., 5, 7, U.S.Code Cong. & Admin.News, p. 2947 (1955).
17
As time passed, Congress watched the land bank system develop as planned. The temporary Government capitalization that had solidified the program in its inception was gradually replaced by private capital, and by the end of 1947, the Government's capital had been completely returned. S.Doc.No.7, 84th Cong., 1st Sess., 4; S.Rep.No.1201, 84th Cong., 1st Sess., 7. The land banks became totally private concerns—owned, operated, and financed by farmers without Government assistance.
18
Congress also watched the development of the Banks for Cooperatives and became concerned about their lack of success in attracting and keeping private investment. By the 1950's, the Government still retained over 88% of the stock in the Banks. In § 2 of the Farm Credit Act of 1953, 67 Stat. 390, 12 U.S.C. § 636a, Congress stated that '(i)t is declared to be the policy of the Congress to encourage and facilitate increased borrower participation in the management, control, and ultimate ownership of the permanent system of agricultural credit made available through institutions operating under the supervision of the Farm Credit Administration . . ..' A Federal Farm Credit Board was created for the purpose, inter alia, of making recommendations concerning the best way to convert the Banks for Cooperatives from predominantly Government-owned to predominantly privately owned institutions.
19
The result of the Board's report and recommendations was the Farm Credit Act of 1955, 69 Stat. 655. It sought to effectuate Congress' policy by providing for the orderly withdrawal of Government capital from the Banks and the continual influx and retention of substitute private financing. See S.Doc.No. 7, 84th Cong., 1st Sess., 6; S.Rep.No. 1201, 84th Cong., 1st Sess., 1; Hearings on Farm Credit Act of 1955 before the House Committee on Agriculture, 84th Cong., 1st Sess., 30—31.
II
20
Under the Farm Credit Act of 1933, there was only one class of capital stock in the Banks for Cooperatives. The Farm Credit Act of 1955 provided for three distinct classes of stock—A, B, and C.
21
Class A stock may only be held by the Governor of the Farm Credit Association on behalf of the United States. Whatever stock the Government held in the Banks prior to the 1955 Act was converted to Class A stock. This stock is nonvoting and receives no dividends. Class A stock must be retired each year in an amount equal to the amount of Class C stock issued during the year. 12 U.S.C. § 1134d(a)(1). Once the United States' stock is completely redeemed, the Government will invest no more in the Banks, except that it may purchase additional shares of the Class A stock if an emergency makes it necessary in order for the bank to meet the credit needs of eligible borrowers.8 See 12 U.S.C. §§ 1134d(a)(1), 1134b, 1135i.
22
Class B stock represents a new approach to capitalizing the Banks. It is an investment stock available to the public. It pays noncumulative dividends upon certain conditions. Class B stock may be retired only after all Class A stock. 12 U.S.C. § 1134d(a)(2).9
23
Class C stock may be issued only to farmers' cooperative associations, except that each regional bank is required to purchase such shares from the Central Bank. This stock may be obtained under four circumstances. One share is required to initially qualify any association as a borrower of a regional Bank. Each borrower must then make the quarterly stock purchases which gave rise to this lawsuit. In addition, 12 U.S.C. § 1134l(b) provides that after certain expenditures are made each year, patronage refunds may be allocated to borrowers in the form of Class C stock. 'All patronage refunds shall be paid in the proportion that the amount of interest earned on the loans of each borrower bears to the total interest earned on the loans of all borrowers during the fiscal year.' Ibid.10 Borrowers also receive at the end of each fiscal year an 'allocated surplus' credit which is payable out of the Bank's net savings. Like patronage refunds, allocated surplus is credited to each member in accordance with the proportion that the interest on its loans bears to the interest on all loans. When the surplus account reaches 25% of the total outstanding capital stock of the Bank, the excess may be distributed to members in the form of Class C stock.
24
Only the tax treatment of the quarterly purchases is disputed here.11 The taxpayers correctly note that the Class C stock has attributes which would make a normal commercial stock undesirable. For example, the C stock pays no dividends;12 it is transferable only between cooperatives and only under rare circumstances; additional shares do not provide additional voting power;13 and the stock cannot be redeemed until all A, all B issued earlier or in the same year, and all earlier issued C shares have been called for redemption. These characteristics render the market for C shares virtually nonexistent.
25
It must be remembered, however, that the stock was intentionally given these characteristics by a Congress with definite goals in mind.14 The legislative history of the Farm Credit Act of 1955 indicates that Congress placed much of the blame for the Bank's inability to repay the capital extended by the Government and to retain private capital to the provision on the 1933 legislation which permitted borrowers to redeem their stock for cash upon paying off their loans. The restrictions on redemption and transferability and the dividend prohibition were designed to obviate this difficulty and to provide both a stable membership and permanent capital, two necessities for the success of any cooperative venture.
III
26
The taxpayers do not seek to deduct the cost of their initial shares in the Bank as interest. They accept the fact that these shares represent one cost of membership and that this cost is a capital expense because membership is a valuable asset in more than one taxable year. But, they argue that once they purchased their initial shares, they obtained full membership rights, and, a fortiori, that Congress must have intended the quarterly expenditures for stock to be a charge for borrowing money since the stock has no value. The fact is, however, that the stock purchased quarterly is indeed valuable. The amounts paid for C shares become part of the permanent capital structure of the Bank, thereby increasing the stability of the Bank and insuring its continued ability to extend credit. Each share also provides an opportunity for more patronage and surplus dividends, an ultimate right of redemption, and an asset they may be used as a setoff in case of a default on the loan. In sum, every share of stock purchased quarterly by the taxpayers is nearly as valuable as the shares purchased initially. It is therefore difficult to understand why these different purchases should receive radically different tax treatment. If Congress had required 1,000 or 100,000 shares of Class C stock to be purchased before an association could borrow from the banks, under the taxpayers' theory of the case the cost of those shares would be a nondeductible capital expense. Simply because Congress eased the burden on farmers by spreading the requirement of capital investment over a period of time rather than requiring it as a prerequisite to borrowing, the taxpayers are entitled to no more favorable tax treatment.
27
It is important not to lose sight of the congressional purposes in enacting the farm credit legislation. The immediate goal was to provide loans to farmers at low interest rates. It would, therefore, be odd for Congress to provide a 'hidden' interest charge in the legislation. The long-range goal was to make the Banks 'fully cooperative and to place full ownership and responsibility for their operations and success in the hands of those eligible to borrow from them.' Hearings on Farm Credit Act of 1955 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 84th Cong., 1st Sess., 60. Congress felt, in light of its experience under the Farm Credit Act of 1933, that the long-range goal could only be achieved if Bank members made long-term investments in the Banks. Hence, Congress created Class C stock, a security with a special value in cooperative ventures. While this security is sui generis, the congressional scheme makes it clear that it has value over the long run.
28
Since the security is of value in more than one taxable year, it is a capital asset within the meaning of § 1221 of the Internal Revenue Code, and its cost is nondeductible. Cf. Commissioner v. Lincoln Savings & Loan Assn., 403 U.S. 345, 91 S.Ct. 1893, 29 L.Ed.2d 519 (1971); Old Colony R. Co. v. United States, 284 U.S. 552, 52 S.Ct. 211, 76 L.Ed. 484 (1932); 26 CFR § 1.461—1.
29
We reject the contention that while the Class C stock may be a capital asset, it is worth only $1,15 and that the additional.$99 paid for each share must represent interest. Were we dealing with the traditional corporate structure in this case, the taxpayers' argument would have strength. But, as we have pointed out previously, the essential nature of cooperatives and corporations differs. The value of the Class C stock derives primarily from attributes other than marketability. The stock has value because it is the foundation of the cooperative scheme; it insures stability and continuity. The stock also has value because it enables the farmers to work together toward common goals. It enables them to share in a venture of common concerns and to reap the rewards of knowing that they can finance themselves without the assistance of the Federal Government. It is perhaps debatable whether these attributes should properly be valued at $100 per share, but we are not called upon merely to resolve a question of valuation. Rather, we must decide whether it is artificial to characterize these unique expenditures as payments for a capital asset. We find that it is not.
30
The taxpayers and the Government each allege that the other is looking at form rather than substance. At some point, however, the form in which a transaction is cast must have considerable impact. Guterman, Substance v. Form in the Taxation of Personal and Business Transactions, N.Y.U. 20th Inst. on Fed.Tax. 951 (1962). Congress chose to make the taxpayers buy stock; Congress determined that the stock was worth $100 a share; and this stock was endowed with a long-term value. While Congress might have been able to achieve the same ends through additional interest payments, it chose the form of stock purchases. This form assures long-term commitment and has bearing on the tax consequences of the purchases.
31
Accordingly, the decision of the Court of Appeals is reversed and the case is remanded with direction that judgment be entered for the United States.
32
It is so ordered.
33
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Mississippi Chemical Corp. acquired the share of stock qualifying it as a borrower in 1956; Coastal Chemical Corp. acquired its qualifying share in 1957.
2
Mississippi Chemical Corp. challenges the Government's tax treatment of.$55,113.19 spent from 1961 to 1963; Coastal Chemical Corp. challenges the treatment of $211,799.68 expended from 1958 to 1963.
3
One dollar was treated as the cost of acquiring a capital asset.
4
This decision is unreported but is found in the App. 342 346. Other lower courts have split on the issue presented. Compare, e.g., M.F.A. Central Cooperative v. Bookwalter, 427 F.2d 1341 (CA8 1970), rev'g 286 F.Supp. 956 (ED Mo.1968), pet. for cert. pending (No. 70—22), with Penn Yan Agway Cooperative, Inc. v. United States, 417 F.2d 1372, 189 Ct.Cl. 434 (1969).
5
The statute also provided that 'joint stock land banks' could be formed. These were corporations, composed of 10 or more persons, who desired to form banks to loan money to farmers without the aid of congressional financing. They were subject to the same restrictions and conditions imposed on the district land banks.
6
While Congress did not disturb the land bank system, it added to it at various times. For example, Title II of the Agricultural Credits Act of 1923, 42 Stat. 1461, 12 U.S.C. § 1151 et seq. (1958 ed.), was designed to aid farmers in obtaining short-term credit.
7
The Act also established a production credit system to improve short-term financing for farmers. That system has no bearing on this case.
8
There is evidence in the record that the Government capital is being revolved out of the Banks just as Congress anticipated. See Farm Credit Administration, Banks for Cooperatives—A Quarter of a Century of Progress, excerpted in App. 157, 175. See also 5th Cir., 431 F.2d 1320, 1332, and n. 17 (Godbold, J., dissenting); Brief for the United States 7.
9
The Class B shares are of only nominal importance. In 1963, they amounted to only some 5% of the total outstanding stock of the New Orleans Bank.
10
The patronage refunds and the allocated surplus, discussed infra, are not a return on the amount of capital that the borrower contributes to the Bank; they are distributions of earnings, not presently convertible to cash, but are eventually convertible just as the quarterly Class C purchases may eventually be redeemed.
11
The Government contended in the District Court that the taxpayers should have reported the patronage dividends as income. The District Court disagreed and the Government did not appeal this point. It is not, therefore, reviewable here, and the Government does not urge that we consider it.
12
While no formal dividends are paid on the C stock, it is apparent that the patronage dividend is in many ways equivalent to the traditional corporate dividend. As noted above, the patronage dividend is not immediately convertible to cash, but it is far from worthless. Like the usual corporate dividends, the patronage dividends are paid in proportion to stock ownership. Stock ownership is apportioned according to the amount a Bank member borrows. Thus, those who borrow the most own the most stock and receive the most patronage dividends (and surplus as well). As the Class A stock and the earlier issued Class B and Class C stock are redeemed, the C stock issued as dividends will become convertible to cash and its value will be realized at that time.
In the event of a default by a borrower, the Class C stock is set off against the amount of the loan. Hence, the more patronage dividends the member receives, the more security he has in case of default.
13
Cooperative associations are entitled to vote in polls designating nominees for appointment to the Federal Farm Credit Board, established by the Farm Credit Act of 1953, 67 Stat. 390, as amended, 12 U.S.C. § 636c, to help effectuate congressional policy; to vote in the nomination polls and elections of members of district farm credit boards established by the Farm Credit Act of 1937, 50 Stat. 703, 12 U.S.C. § 640a; and to vote in the nomination and elections of directors of the Central Bank for Cooperatives. It is normal for every member of a cooperative to have only one vote irrespective of a disparity between the shares held. See Frost v. Corporation Comm'n, 278 U.S. 515, 536—537, 49 S.Ct. 235, 243, 73 L.Ed. 483 (1929) (Brandeis, J., dissenting); I. Packel, The Law of Cooperatives §§ 23—24(a), pp. 136—140 (3d ed. 1956). It is interesting that the Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. §§ 291, 292, permits a cooperative marketing association immunity from the Sherman Act under some circumstances, but only if no member is entitled to more than one vote.
14
Cooperatives and corporations operate on different principles. Whereas the corporate structure separates control and management, the essence of a cooperative requires that these functions be integrated. And, whereas the value of corporate stock depends on ease of transferability (or marketability), the value of cooperative stock lies in the durable, long-term nature of the investment. See Nieman, Revolvinvg Capital in Stock Cooperative Corporations, 13 Law & Contemp.Prob. 393 (1948).
15
It is by no means clear that the Class C stock is worth only $1 even under a traditional market value analysis. The lower courts failed to include the value of the patronage and surplus dividends in computing the value of the quarterly purchases. The Class C stock may, therefore, be worth considerably more than $1, although the Government concedes that it is not worth $100. Because of the result we reach in this case, we have no occasion to make a final determination as to what value the stock would have under a market-value analysis.
| 1112
|
405 U.S. 319
92 S.Ct. 1079
31 L.Ed.2d 263
Fred A. CRUZv.George J. BETO, Director, Texas Department of Corrections.
No. 71—5552.
March 20, 1972.
PER CURIAM.
1
The complaint, alleging a cause of action under 42 U.S.C. § 1983, states that Cruz is a Buddhist, who is in a Texas prison. While prisoners who are members of other religious sects are allowed to use the prison chapel, Cruz is not. He shared his Buddhist religious material with other prisoners and, according to the allegations, in retaliation was placed in solitary confinement on a diet of bread and water for two weeks, without access to newspapers, magazines, or other sources of news. He also alleged that he was prohibited from corresponding with his religious advisor in the Buddhist sect. Those in the isolation unit spend 22 hours a day in total idleness.
2
Again, according to the allegations, Texas encourages inmates to participate in other religious programs; providing at state expense chaplains of the Catholic, Jewish, and Protestant faiths, providing also at state expense copies of the Jewish and Christian Bibles, conducting weekly Sunday school classes and religious services. According to the allegations, points of good merit are given prisoners as a reward for attending orthodox religious services, those points enhancing a prisoner's eligibility for desirable job assignments and early parole consideration.1 Respondent answered, denying the allegations and moving to dismiss.
3
The Federal District Court, 329 F.Supp. 443, denied relief without a hearing or any findings, saying the complaint was in an area that should be left 'to the sound discretion of prison administrators.' It went on to say, 'Valid disciplinary and security reasons not known to this court may prevent the 'equality' of exercise of religious practices in prison.' The Court of Appeals affirmed. 445 F.2d 801.
4
Federal courts sit not to supervise prisons but to enforce the constitutional rights of all 'persons,' including prisoners. We are not unmindful that prison officialsmust be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes 'access of prisoners to the courts for the purpose of presenting their complaints.' Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 749, 21 L.Ed.2d 718; Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034. See also Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142, aff'g Gilmore v. Lynch, 319 F.Supp. 105 (ND Cal.). Moreover, racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for 'the necessities of prison security and discipline.' Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212. Even more closely in point is Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030, where we reversed a dismissal of a complaint brought under 42 U.S.C. § 1983. We said: 'Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action.' Ibid. The allegation made by that petitioner was that solely because of his religious religious beliefs he was denied permission to purchase certain religious publications and denied other privileges enjoyed by other prisoners.
5
We said in Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'
6
If Cruz was a Buddhist and if he was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the State against the Buddhist religion, established 600 B.C., long before the Christian era.2 The First Amendment, applicable to the States by reason of the Fourteenth Amendment, Torcaso v. Watkins, 367 U.S. 488, 492—493, 81 S.Ct. 1680, 1682, 6 L.Ed.2d 982, prohibits government from making a law 'prohibiting the free exercise (of religion).' If the allegations of this complaint are assumed to be true, as they must be on the motion to dismiss, Texas has violated the First and Fourteenth Amendments.
7
The motion for leave to proceed in forma pauperis is granted. The petition for certiorari is granted, the judgment is vacated, and the cause remanded for a hearing and appropriate findings.
8
Vacated and remanded.
9
Mr. Justice BLACKMUN concurs in the result.
10
Mr. Chief Justice BURGER, concurring in the result.
11
I concur in the result reached even though the allegations of the complaint are on the borderline necessary to compel an evidentiary hearing. Some of the claims alleged are frivolous; others do not present justiciable issues. There cannot possibly be any constitutional or legal requirement that the government provide materials for every religion and sect practiced in this diverse country. At most, Buddhist materials cannot be denied to prisoners if someone offers to supply them.
12
Mr. Justice REHNQUIST, dissenting.
13
Unlike the Court, I am not persuaded that petitioner's complaint states a claim under the First Amendment, or that if the opinion of the Court of Appeals is vacated the trial court must necessarily conduct a trial upon the complaint.1
14
Under the First Amendment, of course, Texas may neither 'establish a religion' nor may it 'impair the free exercise' thereof. Petitioner alleges that voluntary services are made available at prison facilities so that Protestants, Catholics, and Jews may attend church services of their choice. None of our prior holdings indicates that such a program on the part of prison officials amounts to the establishment of a religion.
15
Petitioner is a prisoner serving 15 years for robbery in a Texas penitentiary. He is understandably not as free to practice his religion as if he were outside the prison walls. But there is no intimation in his pleadings that he is being punished for his religious views, as was the case in Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), where a prisoner was denied the receipt of mail about his religion. Cooper presented no question of interference with prison administration of the type that would be involved here in retaining chaplains, scheduling the use of prison facilities, and timing the activities of various prisoners.
16
None of our holdings under the First Amendment requires that, in addition to being allowed freedom of religious belief, prisoners be allowed freely to evangelize their views among other prisoners. There is no indication in petitioner's complaint that the prison officials have dealt more strictly with his efforts to convert other convicts to Buddhism than with efforts of communicants of other faiths to make similar conversions.
17
By reason of his status, petitioner is obviously limited in the extent to which he may practice his religion. He is assuredly not free to attend the church of his choice outside the prison walls. But the fact that the Texas prison system offers no Buddhist services at this particular prison does not, under the circumstances pleaded in his complaint, demonstrate that his religious freedom is being impaired. Presumably prison officials are not obligated to provide facilities for any particular denominational services within a prison, although once they undertake to provide them for some they must make only such reasonable distinctions as may survive analysis under the Equal Protection Clause.
18
What petitioner's basic claim amounts to is that because prison facilities are provided for denominational services for religions with more numerous followers, the failure to provide prison facilities for Buddhist services amounts to a denial of the equal protection of the laws. There is no indication from petitioner's complaint how many practicing Buddhists there are in the particular prison facility in which he is incarcerated, nor is there any indication of the demand upon available facilities for other prisoner activities. Neither the decisions of this Court after full argument, nor those summarily reversing the dismissal of a prisoner's civil rights complaint2 have ever given full consideration to the proper balance to be struck between prisoners' rights and the extensive administrative discretion that must rest with correction officials. I would apply the rule of deference to administrative discretion that has been overwhelmingly accepted in the courts of appeals.3 Failing that, I would at least hear argument as to what rule should govern.
19
A long line of decisions by this Court has recognized that the 'equal protection of the laws' guaranteed by the Fourteenth Amendment is not to be applied in a precisely equivalent way in the multitudinous fact situations that may confront the courts.4 On the one hand, we have held that racial classifications are 'invidious' and 'suspect.'5 I think it quite consistent with the intent of the framers of the Fourteenth Amendment, many of whom would doubtless be surprised to know that convicts came within its ambit, to treat prisoner claims at the other end of the spectrum from claims of racial discrimination. Absent a complaint alleging facts showing that the difference in treatment between petitioner and his fellow Buddhists and practitioners of denominations with more numerous adherents could not reasonably be justified under any rational hypothesis, I would leave the matter in the hands of the prison officials.6
20
It has been assumed that the dismissal by the trial court must be treated as proper only if the standard of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), would permit the grant of a motion under Fed.Rule Civ.Proc. 12(b)(6). I would not require the district court to inflexibly apply this general principle to the complaint of every inmate, who is in many respects in a different litigating posture than persons who are unconfined. The inmate stands to gain something and lose nothing from a complaint stating facts that he is ultimately unable to prove.7 Though he may be denied legal relief, he will nonetheless have obtained a short sabbatical in the nearest federal courthouse.8 To expand the availability of such courtroom appearances by requiring the district court to construe every inmate's complaint under the liberal rule of Conley v. Gibson deprives those courts of the latitude necessary to process this ever-increasing species of complaint.9
21
Finally, a factual hearing should not be imperative on remand if dismissal is appropriate on grounds other than failure to state a claim for relief. It is evident from the record before us that the in forma pauperis complaint might well have been dismissed as 'frivolous or malicious,' under the discretion vested in the trial court in 28 U.S.C. § 1915(d).10 This power is not limited or impaired by the strictures of Rule 12(b). Fletcher v. Young, 222 F.2d 222 (CA4 1955). Although the trial court based its dismissal on 12(b)(6) grounds, this record would support a dismissal as frivolous.
22
The State's answer to the complaint showed that the identical issues of religious freedoms were litigated by another prisoner from the same institution, claiming the same impairment of the practice of the Buddhist religion, which was brought by the attorney employed at the prison to provide legal services for the inmates. It is not clear whether petitioner here was a party to that suit, as he was to many suits filed by his fellow prisoners. If he was, the instant claim may be barred under the doctrine of res judicata. In any event, a prior adjudication of the same claim by another prisoner under identical circumstances would be a substantial factor in a decision to dismiss this claim as frivolous.
23
In addition, the trial court had before it the dismissal of another of petitioner's cases filed shortly before the instant action, where the trial judge had been exposed to myriad previous actions, and found them to be 'voluminous, repetitious, duplicitous and in many instances deceitful.'11 Whether petitioner might have raised his claim in these or several other actions in which he joined other prisoner plaintiffs is also proper foundation for a finding that this complaint is 'frivolous or malicious.' Whatever might be the posture of this constitutional claim if petitioner had never flooded the courts with repetitive and duplicitous claims, and if it had not recently been adjudicated in an identical proceeding, I believe it could be dismissed as frivolous in the case before us.
1
The amended complaint alleges, inter alia:
'Plaintiff is an inmate of the Texas Department of Corrections and is a member of the Buddhist Churches of America. At the time of filing of this suit, he was incarcerated at the Eastham Unit and has since been transferred to the Ellis Unit. There is a substantial number of prisoners in the Texas Department of Corrections who either are adherents of the Buddhist Faith or who wish to explore the gospel of Buddhism; however, the Defendants have refused in the past, and continue to refuse, Buddhists the right to hold religious services or to disseminate the teachings of Buddha. The Plaintiff has been prevented by the Defendants from borrowing or lending Buddhist religious books and materials and has been punished by said Defendants by being placed in solitary confinement on a diet of bread and water for two weeks for sharing his Buddhist religious material with other prisoners.
'Despite repeated requests to Defendants for the use of prison chapel facilities for the purpose of holding Buddhist religious services and the denials thereof the Defendants have promulgated customs and regulations which maintain a religious program within the penal system under which:
'A. Consecrated chaplains of the Protestant, Jewish and Roman Catholic religions at state expense are assigned to various units.
'B. Copies of the Holy Bible (Jewish and Christian) are distributed at state expense free to all prisoners.
'C. Religious services and religious classes for Protestant, Jewish and Roman Catholic adherents are held regularly in chapel facilities erected at state expense for 'non-denominational' purposes.
'D. Records are maintained by Defendants of religious participation by inmates.
'E. Religious participation is encouraged on inmates by the Defendants as necessary steps toward true rehabilitation.
'F. Points of good merit are given to inmates by the Defendants as a reward for religious participation in Protestant, Jewish and Roman Catholic faiths which enhance on inmates eligibility for promotions in class, job assignment and parole.
'Because inmates of the Buddhist faith are being denied the right to participate in the religious program made available for Protestant, Jewish and Roman Catholic faiths by the Defendants, Plaintiff and the members of the class he represents are being subjected to an arbitrary and unreasonable exclusion without any lawful justification which invidiously discriminates against them in violation of their constitutional right of religious freedom and denies them equal protection of the laws.'
2
We do not suggest, of course, that every religious sect or group within a prison—however few in number—must have identical facilities or personnel. A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regard to the extent of the demand. But reasonable oportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendment without fear of penalty.
1
The Court 'remand(s) for a hearing and appropriate findings,' ante, this page. But, of course, the only procedural vehicle for making such findings in this civil litigation would be the trial to which any civil litigant is entitled, inasmuch as this Court has never dealt with the special procedural problems presented by prisoners' civil suits. See Fed.Rules Civ.Proc.
2
Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).
3
Douglas v. Sigler, 386 F.2d 684, 688 (CA8 1967); Carey v. Settle, 351 F.2d 483 (CA8 1965); Carswell v. Wainwright, 413 F.2d 1044 (CA5 1969); Walker v. Pate, 356 F.2d 502 (CA7 1966) I do not read Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), which was concerned with the prisoners' traditional remedy of habeas corpus, to reach the issue of a statutory civil cause of action such as 42 U.S.C. § 1983.
4
See generally McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), as examples of the spectrum of Fourteenth Amendment review standards.
5
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).
6
Petitioner (represented by a lawyer who drafted the complaint) alleged that he was excluded from participation in religious programs and that the exclusion was 'arbitrary and unreasonable . . . without any lawful justification.' Holding counsel to standards of pleading applied to other prisoners' claims for relief, conclusions of arbitrariness are insufficient, e.g., Williams v. Dunbar, 377 F.2d 505 (CA9 1967); United States ex rel. Hoge v. Bolsinger, 311 F.2d 215 (CA3 1962).
7
'The last type of writ-writer to be discussed writes writs for economic gain. This group is comprised of a few unscrupulous manipulators who are interested only in acquiring from other prisoners money, cigarettes, or merchandise purchased in the inmate canteen. Once they have a 'client's' interest aroused and determine his ability to pay, they must keep him on the 'hook.' This is commonly done by deliberately misstating the facts of his case so that it appears, at least on the surface, that the inmate is entitled to relief. The documents drafted for the client case the writ-writer in the role of a sympathetic protagonist. After reading them, the inmate is elated that he has found someone able to present his case favorably. He is willing to pay to maintain the lie that has been created for him.' Larsen, A Prisoner Looks at Writ-Writing, 56 Calif.L.Rev. 343, 348—349 (1968).
'When decisions do not help a writ-writer, he may employ a handful of tricks which damage his image in the state courts. Some of the not too subtle subterfuges used by a small minority of writ-writers would tax the credulity of any lawyer. One writ-writer simply made up his own legal citations when he ran short of actual ones. In one action against the California Adult Authority involving the application of administrative law, one writ-writer used the following citations: Aesop v. Fables, First Baptist Church v. Sally Stanford, Doda v. One Forty-four Inch Chest, and Dogood v. The Planet Earth. The references to the volumes and page numbers of the nonexistent publications were equally fantastic, such as 901 Penal Review, page 17,240. To accompany each case, he composed an eloquent decision which, if good law, would make selected acts of the Adult Authority unconstitutional. In time the 'decisions' freely circulated among other writ-writers, and several gullible ones began citing them also.' Id., at 355.
8
'(T)emporary relief from prison confinement is always an alluring prospect, and to the hardened criminal the possibility of escape lurks in every excursion beyond prison walls.' Price v. Johnston, 159 F.2d 234, 237 (CA9 1947).
9
Cf. Price v. Johnston, 334 U.S. 266, 284—285, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356 (1948), giving to the courts of appeals the necessary discretion to determine when prisoners should be allowed to argue their habeas corpus appeals in person:
'If it is apparent that the request of the prisoner to argue personally reflects something more than a mere desire to be freed temporarily from the confines of the prison, that he is capable of conducting an intelligent and responsible argument, and that his presence in the courtroom may be secured without undue inconvenience or danger, the court would be justified in issuing the writ.'
Here, the question is whether prisoners can in every case be permitted to file a complaint, conduct the full range of pretrial discovery, and commence a trial (including presumably trial by jury) at which he and other prisoners will appear as witnesses. The summary reversal effected here encourages such a result without permitting the district courts to exercise the type of discretion permitted in Price and without providing any guidance for their accommodation of the special problems of prisoner litigation with a fair determination of such complaints under 42 U.S.C. § 1983 as are rightfully filed.
10
Reece v. Washington, 310 F.2d 139 (CA9 1962); Conway v. Oliver, 429 F.2d 1307 (CA9 1970).
11
R. 30.
| 23
|
405 U.S. 313
92 S.Ct. 993
31 L.Ed.2d 258
William RABE, Petitioner,v.State of WASHINGTON.
No. 71—247.
Argued Feb. 29, 1972.
Decided March 20, 1972.
Rehearing Denied April 24, 1972.
See 406 U.S. 911, 92 S.Ct. 1604.
William L. Dwyer, Seattle, Wash., for petitioner.
Curtis Ludwig, Kennewick, Wash., for respondent.
PER CURIAM.
1
Petitioner was the manager of the Park Y Drive-In Theatre in Richland, Washington, where the motion picture Carmen Baby was shown. The motion picture is a loose adaptation of Bizet's opera Carmen, containing sexually frank scenes but no instances of sexual consummation are explicitly portrayed. After reviewing the film from outside the theater fence on two successive evenings, a police officer obtained a warrant and arrested petitioner for violating Washington's obscenity statute. Wash.Rev.Code § 9.68.010. Petitioner was later convicted and, on appeal, the Supreme Court of Washington affirmed, 79 Wash.2d 254, 484 P.2d 917 (1971). We granted certiorari. 404 U.S. 909, 92 S.Ct. 228, 30 L.Ed.2d 181. We reverse petitioner's conviction.
2
The statute under which petitioner was convicted, Wash.Rev.Code § 9.68.010, made criminal the knowing display of 'obscene' motion pictures:
3
'Every person who—
4
'(1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or
5
'(2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene;
6
'Shall be guilty of a gross misdemeanor.'
7
In affirming petitioner's conviction, however, the Supreme Court of Washington did not hold that Carmen Baby was obscene under the test laid down by this Court's prior decisions. E.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. Uncertain 'whether the movie was offensive to the standards relating to sexual matters in that area and whether the movie advocated ideas or was of artistic or literary value,' the court concluded that if it 'were to apply the strict rules of Roth, the film 'Carmen Baby' probably would pass the definitional obscenity test if the viewing audience consisted only of consenting adults.' 79 Wash.2d, at 263, 484 P.2d, at 922. Respondent read the opinion of the Supreme Court of Washington more narrowly, but nonetheless implied that because the film had 'redeeming social value' it was not, by itself, 'obscene' under the Roth standard. The Supreme Court of Washington nonetheless upheld the conviction, reasoning that in 'the context of its exhibition,' Carmen Baby was obscene. Ibid.
8
To avoid the constitutional vice of vagueness, it is necessary, at a minimum, that a statute give fair notice that certain conduct is proscribed. The statute under which petitioner was prosecuted, however, made no mention that the 'context' or location of the exhibition was an element of the offense somehow modifying the word 'obscene.' Petitioner's conviction was thus affirmed under a statute with a meaning quite different from the one he was charged with violating.
9
'It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.' Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. Petitioner's conviction cannot, therefore, be allowed to stand. Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134; Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207; Cole v. Arkansas, supra.
10
Under the interpretation given § 9.68.010 by the Supreme Court of Washington, petitioner is criminally punished for showing Carmen Baby in a drive-in but he may exhibit it to adults in an indoor theater with impunity. The statute, so construed, is impermissibly vague as applied to petitioner because of its failure to give him fair notice that criminal liability is dependent upon the place where the film is shown.
11
What we said last Term in Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284, answers respondent's contention that the peculiar interest in prohibiting outdoor displays of sexually frank motion pictures justifies the application of this statute to petitioner:
12
'Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless under California law, not be tolerated in certain places. . . . No fair reading of the phrase 'offensive conduct' can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.'
13
We need not decide the broad constitutional questions tendered to us by the parties. We hold simply that a State may not criminally punish the exhibition at a drive-in theater of a motion picture where the statute, used to support the conviction, has not given fair notice that the location of the exhibition was a vital element of the offense.
14
The judgment of the Supreme Court of Washington is reversed.
15
Reversed.
16
Mr. Chief Justice BURGER, with whom Mr. Justice REHNQUIST joins, concurring.
17
I concur solely on the ground that petitioner's conviction under Washington's general obscenity statute cannot, under the circumstances of this case, be sustained consistent with the fundamental notice requirements of the Due Process Clause. The evidence in this case, however, revealed that the screen of petitioner's theater was clearly visible to motorists passing on a nearby public highway and to 12 to 15 nearby family residences. In addition, young teenage children were observed viewing the film from outside the chain link fence enclosing the theater grounds. I, for one, would be unwilling to hold that the First Amendment prevents a State from prohibiting such a public display of scenes depicting explicit sexual activities if the State undertook to do so under a statute narrowly drawn to protect the public from potential exposure to such offensive materials. See Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967).1
18
Public displays of explicit materials such as are described in this record are not significantly different from any noxious public nuisance traditionally within the power of the States to regulate and prohibit, and, in my view, involve no significant countervailing First Amendment considerations.2 That this record shows an offensive nuisance that could properly be prohibited, I have no doubt, but the state statute and charge did not give the notice constitutionally required
1
For examples of recent statutes regulating public displays, see Ariz.Rev.Stat.Ann. § 13—537 (Supp.1971—1972); N.Y. Penal Law McKinney's Consol.Laws, c. 40, §§ 245.10—245.11 (Supp.1971—1972).
2
Under such circumstances, where the very method of display may thrust isolated scenes on the public, the Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957), requirement that the materials be 'taken as a whole' has little relevance. For me, the First Amendment must be treated in this context as it would in a libel action: if there is some libel in a book, article, or speech we do not average the tone and tenor of the whole; the libelous part is not protected.
| 23
|
405 U.S. 318
92 S.Ct. 1257
31 L.Ed.2d 273
Lorenzo WILLIS, etc., petitioner,v.PRUDENTIAL INSURANCE COMPANY OF AMERICA.
No. 70-5344.
Supreme Court of the United States
March 20, 1972
E. Freeman Leverett, Elkerton, Ga., for petitioner.
A. Felton Jenkins, Jr., Atlanta, Ga., for respondent.
On writ of certiorari to the Supreme Court of Georgia.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice POWELL took no part in the consideration or decision of this case.
| 12
|
405 U.S. 394
92 S.Ct. 1085.
31 L.Ed.2d 318
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.FIRST SECURITY BANK OF UTAH, N.A., et al.
No. 70—305.
Argued Jan. 10, 1072.
Decided March 21, 1972.
Syllabus
Respondent banks were subsidiaries of a holding company that also controlled a management company, an insurance agency, and, from 1954, an insurance company (Security Life). In 1948 the banks began to offer to arrange credit life insurance for their borrowers, placing the insurance with an independent insurance carrier. National banking laws were deemed to prohibit the banks from receiving sales commissions, which were paid by the carrier to the insurance agency subsidiary. The commissions were reported as taxable income for the 1948—1954 period by the management company. After 1954, when Security Life was organized, the credit life insurance on the banks' customers was placed with an independent carrier, which reinsured the risks with Security Life, the latter retaining 85% of the premiums. No sales commissions were paid. Security Life reported all the reinsurance premiums on its income tax returns for the period 1955 to 1959, at the preferential tax rate for insurance companies. Petitioner, pursuant to 26 U.S.C. § 482, granting him power to allocate gross income among controlled corporations in order to reflect the actual incomes of the corporations, determined that 40% of Security Life's premium income was allocable to the banks as commission income earned for originating and processing the credit life insurance. The Tax Court affirmed petitioner's action, but the Court of Appeals reversed. Held: Since the banks did not receive and were prohibited by law from receiving sales commissions, no part of the reinsurance premium income could be attributed to them, and petitioner's exercise of the § 482 authority was not warranted. Pp. 403—407.
436 F.2d 1192, affirmed.
Ernest J. Brown, Cambridge, Mass., for petitioner.
Stephen H. Anderson, Washington, D.C., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents for review a determination by the Commissioner of Internal Revenue (Commissioner), pursuant to § 482 of the Internal Revenue Act,1 that the income of taxpayers within a controlled group should be reallocated to reflect the true taxable income of each. Deficiencies were assessed against respondents. The Tax Court affirmed the Commissioner's action, and respondents appealed to the Court of Appeals for the Tenth Circuit. That court reversed the decision of the Tax Court, 436 F.2d 1192 (1971), and we granted the Commissioner's petition for certiorari to resolve a conflict between the decision below and that in Local Finance Corp. v. Commissioner of Internal Revenue, 407 F.2d 629 (CA7), cert. denied, Commissioner of Internal Revenue v. Guardian Agency, Inc., 396 U.S. 956, 90 S.Ct. 424, 24 L.Ed.2d 420 (1969). We now affirm the decision of the Court of Appeals.
2
Respondents, First Security Bank of Utah, N.A., and First Security Bank of Idaho, N.A. (the Banks), are national banks that, during the tax years, were wholly owned subsidiaries of First Security Corp. (Holding Company). Other, non-bank, subsidiaries of the Holding Company, relevant to this case, were First Security Co. (Management Company), Ed. D. Smith & Sons, an insurance agency (Smith), and—from June 1954—First Security Life Insurance Company of Texas (Security Life). Beginning in 1948, the Banks offered to arrange for borrowers credit life, health, and accident insurance (credit life insurance). The Tax Court found that they did this 'for several reasons,' including (1) offering a service increasingly supplied by competing financial institutions, (2) obtaining the benefit of the additional collateral that credit insurance provides by repaying loans upon the death, injury, or illness of the borrower, and (3) providing an 'additional source of income—part of the premiums from the insurance—to Holding Company or its subsidiaries.'
3
Until 1954, any borrower who elected to purchase this insurance was referred by the Banks to two independent insurance companies. The premium rate charged was $1 per $100 of coverage per year, the rate commonly charged in the industry. The Insurance Commissioners of the States involved—Utah, Idaho, and Texas accepted this rate. The Banks followed a routine procedure in making this insurance available to customers. The lending officer would explain the function and availability of credit insurance. If the customer desired the coverage, the necessary form was completed, a certificate of insurance was delivered, and the premium was collected or added to the customer's loan. The Banks then forwarded the completed forms and premiums to Management Company, which maintained records of the insurance purchased and forwarded the premiums to the insurance carrier. Management Company also processed claims filed under the policies. The cost to each of the Banks for the actual time devoted to explaining and processing the insurance was less than $2,000 per year, characterized by the courts below as 'negligible.' The cost to Management Company of the services rendered by it was also negligible, slightly in excess of $2,000 per year.
4
It was the custom in the insurance business (although not nvariably followed), regardless of the cost of incidental paperwork, to pay a 'sales commission'—ranging from 40% to 55% of net premiums collected—to a party who originated or generated the business. But the Banks had been advised by counsel that they could not lawfully conduct the business of an insurance agency or receive income resulting from their customers' purchase of credit life insurance. Neither the Banks nor any of their officers were licensed to sell insurance, and there is no question here of unlawfully acting as unlicensed agents. The Banks received no commissions or other income on or with respect to the credit insurance generated by them. During the period from 1948 to 1954 commissions were paid by the independent companies writing the insurance directly, to Smith, one of the wholly owned subsidiaries of Holding Company. These commissions were reported as taxable income, not by Smith, but by Management Company which had rendered the services above described. During this period (1948—1954), the Commissioner did not attempt to allocate the commissions to the Banks.2
5
In 1954, Holding Company organized Security Life, a new wholly owned subsidiary licensed to engage in the insurance business. A new procedure was then adopted with respect to placing credit life insurance. It was referred by the Banks to, and written by an independent company, American National Insurance Company of Galveston, Texas (American National), at the same rate to the customer. American National then reinsured the policies with Security Life pursuant to a 'treaty of reinsurance.' For assuming the risk under the policies sold to the Banks' customers, Security Life retained 85% of the premiums. American National, which furnished actuarial and accounting services, received the remaining 15%. No sales commissions were paid. Under this new plan,3 the Banks continued to offer credit life insurance to their borrowers in the same manner as before.4
6
Security Life was not a paper corporation. It commenced business in 1954 with an initial capital of $25,000, which was increased in 1956 to $100,000. Although it did not become a full-line insurance company (contemplated as a possibility when organized), its reinsurance business was substantial. The risks assumed by it had grown to $41,350,000 by the end of 1959, and it had paid substantial claims.5
7
Security Life reported the entire amount of reinsurance premiums, 85% of the premiums charged, in its income for the years 1955—1959. Because the income of life insurance companies then was subject to a lower effective tax rate than that of ordinary corporations, the total tax liability for Holding Company and its subsidiaries was less than it would have been had Security Life paid a part of the premium to the Banks or Management Company as sales commissions.6 Pursuant to his § 482 power to allocate gross income among controlled corporations in order to reflect the actual incomes of the corporations, the Commissioner determined that 40% of Security Life's premium income was allocable to the Banks as compensation for originating and processing the credit life insurance.7 It is the Commissioner's view that the 40% of the premium income so allocated is the equivalent of commissions that the Banks earned and must be included in their 'true taxable income.'8
8
The parties agree that § 482 is designed to prevent 'artificial shifting, milking, or distorting of the true net incomes of commonly controlled enterprises.'9 Treasury Regulations provide:
9
'The purpose of section 482 is to place a controlled taxpayer on a tax parity with an uncontrolled taxpayer, by determining according to the standard of an uncontrolled taxpayer, the true taxable income from the property and business of a controlled taxpayer. . . . The standard to be applied in every case is that of an uncontrolled taxpayer dealing at arm's length with another uncontrolled taxpayer.'10
10
The question we must answer is whether there was a shifting or distorting of the Banks' true net income resulting from the receipt and retention by Security Life of the premiums above described.11
11
We note at the outset that the Banks could never have received a share of these premiums. National banks are authorized to act as insurance agents when located in places having a population not exceeding 5,000 inhabitants, 12 U.S.C.A. § 92.12 Although § 92 does not explicitly prohibit banks in places with a population of over 5,000 from acting as insurance agents, courts have held that it does so by implication.13 The Comptroller of the Currency has acquiesced in this holding,14 and the Court of Appeals for the Tenth Circuit expressed its agreement in the opinion below.
12
The penalties for violation of the banking laws include possible forfeiture of a bank's franchise and personal liability of directors. The Tax Court found that the Banks, upon advice of counsel, 'held the belief that it would be contrary to Federal banking law . . . to receive income resulting from their customers' purchase of credit insurance' and, pursuant to this belief, 'the two Banks have never received or attempted to receive commissions or reinsurance premiums resulting from their customers' purchase of credit insurance.'15
13
Petitioner does not contest this finding by the Tax Court or the holding in this respect of the Court of Appeals below. Accordingly, we assume for purposes of this decision that the Banks were prohibited from receiving insurance-related income, although this prohibition did not apply to non-bank subsidiaries of Holding Company.16
14
We know of no decision of this Court wherein a person has been found to have taxable income that he did not receive and that he was prohibited from receiving. In cases dealing with the concept of income, it has been assumed that the person to whom the income was attributed could have received it. The underlying assumption always has been that in order to be taxed for income, a taxpayer must have complete dominion over it. 'The income that is subject to a man's unfettered command and that he is free to enjoy at his own option may be taxed to him as his income, whether he sees fit to enjoy it or not.' Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 337, 74 L.Ed. 916 (1930).
15
It is, of course, well established that income assigned before it is received is nonetheless taxable to the assignor. But the assignment-of-income doctrine assumes that the income would have been received by the taxpayer had he not arranged for it to be paid to another. In Harrison v. Schaffner, 312 U.S. 579, 582, 61 S.Ct. 759, 761, 85 L.Ed. 1055 (1941), we said:
16
'(O)ne vested with the right to receive income (does) not escape the tax by any kind of anticipatory arrangement, however skillfully devised by which he procures payment of it to another, since, by the exercise of his power to command the income, he enjoys the benefit of the income on which the tax is laid.'17
17
One of the Commissioner's regulations for the implementation of § 482 expressly recognizes the concept that income implies dominion or control of the taxpayer. It provides as follows:
18
'The interests controlling a group of controlled taxpayers are assumed to have complete power to cause each controlled taxpayer so to conduct its affairs that its transactions and accounting records truly reflect the taxable income from the property and business of each of the controlled taxpayers.'18
19
This regulation is consistent with the control concept heretofore approved by this Court, although in a different context. The regulation, as applied to the facts in this case, contemplates that Holding Company—the controlling interest—must have 'complete power' to shift income among its subsidiaries. It is only where this power exists, and has been exercised in such a way that the 'true taxable income' of a subsidiary has been understated, that the Commissioner is authorized to reallocate under § 482. But Holding Company had no such power unless it acted in violation of federal banking laws. The 'complete power' referred to in the regulations hardly includes the power to force a subsidiary to violate the law.
20
Apart from the inequity of attributing to the Banks taxable income that they have not received and may not lawfully receive, neither the statute nor our prior decisions require such a result. We are not faced with a situation such as existed in those cases, urged by the Commissioner, in which we held the proceeds of criminal activities to be taxable.19 Those cases concerned situations in which the taxpayer had actually received funds. Moreover, the illegality involved was the act that gave rise to the income. Here the originating and referring of the insurance, a practice widely followed, is acknowledged to be legal. Only the receipt of insurance commissions or premiums thereon by national banks is not. Had the Banks ignored the banking laws, thereby risking the loss of their charters and subjecting their officers to personal liability,20 the illegal-income cases would be relevant. But the Banks from the inception of their use of credit life insurance in 1948 were careful never to place themselves in that position. We think that fairness requires the tax to fall on the party that actually receives the premiums rather than on the party that cannot.21
21
In L. E. Shunk Latex Products, Inc. v. Commissioner, 18 T.C. 940 (1952), the Tax Court considered a closely analogous situation. The same interest controlled a manufacturer and a distributor of rubber prophylactics. The OPA Price Regulations of World War II became effective on December 1, 1941. Prior thereto the distributor had raised its prices to retailers, but the manufacturer had not increased the prices charged to its affiliated distributor. The Commissioner, acting under § 482, attempted to allocate some of the distributor's income to the manufacturer on the ground that a portion of the distributor's profits was in fact earned by the manufacturer, even though the manufacturer was prohibited by the OPA regulations from increasing its prices. In holding that the Commissioner had acted improperly, the Tax Court said that he had 'no authority to attribute to petitioners income which they could not have received.' 18 T.C., at 961.22
22
It is argued, finally, that the 'services' rendered by the Banks in making credit insurance available to customers 'would have been compensated had the corporations been dealing with each other at arm's length.'23 The short answer is that the proscription against acting as insurance agent and receiving compensation therefor applies to all national banks located in places with population in excess of 5,000 inhabitants. It applies equally to such banks whether or not they are controlled by a holding company. If these Banks had been independent of any such control—as most banks are—no commissions or premiums could have been received lawfully and there would have been no taxable income.24 As stated in the Treasury Regulations, the 'purpose of section 482 is to place a controlled taxpayer on a tax parity with an uncontrolled taxpayer . . ..'25 We think our holding comports with such parity treatment.
23
We conclude that the premium income received by Security Life could not be attributable to the Banks. Holding Company did not utilize its control over the Banks and Security Life to distort their true net incomes. The Commissioner's exercise of his § 482 authority was therefore unwarranted in this case. The judgment below is affirmed.
24
Affirmed.
25
Mr. Justice MARSHALL, dissenting.
26
The facts of this case illustrate the natural affinity that lending institutions and insurance companies have for each other. Congress depends on the ability of the Commissioner of Internal Revenue the utilize § 482 of the Internal revenue Code, 26 U.S.C. § 482, to insure Revenue Code, 26 U.S.C. § 482, to insure for tax avoidance. H.R.Rep.No.1098, 84th Cong., 1st Sess., 7; S.Rep.No.1571, 84th Cong., 2d Sess., 8. In my opinion, today's decision renders § 482 a less efficacious weapon against tax avoidance schemes than Congress intended and provides the respondents with an unwarranted tax advantage. I dissent.
Section 482 provides:
27
'In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Secretary or his delegate may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.'
28
First enacted as § 45 of the Revenue Act of 1928, 45 Stat. 806, the statute was intended to prevent the avoidance of tax liability through fictions and 'to deny the power to shift income . . . arbitrarily among controlled corporations, and to place such corporations rather on a parity with uncontrolled concerns.' Central Cuba Sugar Co. v. Commissioner of Internal Revenue, 198 F.2d 214, 216 (CA2 1952). See H.R.Rep.No.2, 70th Cong., 1st Sess., 16—17; S.Rep.No.960, 70th Cong., 1st Sess., 24—25. It is intended to serve the same purpose in the present Code.
29
It is well-established law that in analyzing a transaction under § 482, the test is whether the arrangement as structured for income tax purposes by interlocking corporate interests would have been similarly structured by taxpayers dealing at arm's length. See, e.g., Borge v. Commissioner of Internal Revenue, 405 F.2d 673 (CA2 1968), cert. denied sub nom. Danica Enterprises v. Commissioner of Internal Revenue, 395 U.S. 933, 89 S.Ct. 1994, 23 L.Ed.2d 448 (1969); Eli Lilly & Co. v. United States, 372 F.2d 990, 178 Ct.Cl. 666 (1967).
30
Applying that test to this case, the following facts are relevant. Before 1954, an independent insurance company paid respondents commissions ranging from 40% to 45% for their services in offering insurance to borrowers designed to discharge their debts in the event that they died or became disabled during the term of their loans. After 1954, respondents offered borrowers policies issued by a different insurance company. At this time the holding company that controlled respondents created a new subsidiary to reinsure the borrowers who purchased policies. By paying off the independent insurance company with 15% of the proceeds of the policies, the subsidiary assumed the insurance risks and garnered the remaining 85% of the proceeds. No commission was paid to respondents by either the independent company or the insurance subsidiary.
31
The tax advantage of the post-1954 structure derived from the fact that the Life Insurance Company Tax Act for 1955, 70 Stat. 36, as amended by the Life Insurance Company Income Tax Act of 1959, 73 Stat. 112, as amended, 26 U.S.C. § 801 et seq., gives preferential tax treatment to life insurance companies. By funneling all proceeds from the sales of the insurance policies to a subsidiary that qualified for tax treatment as a life insurance company, the holding company avoided theheavier tax that would have been imposed on respondents had they bee paid commissions.
32
The Commissioner's analysis of this case is not overly complex: He saw that respondents performed essentially the same services and generated the same income after 1954 that they did before, and he concluded that § 482 required that they should be taxed on the premiums that they were actually earning.
33
Based on respondents' earlier experience dealing at arm's length with an independent insurance company and on the well-known fact that insurers pay solicitors a portion of the premium as a commission for generating income, see Local Finance Corp. v. Commissioner, 48 T.C. 773, 786 (1967), aff'd, 407 F.2d 629, 631 632 (CA7 1969), the Commissioner determined that 40% of the premium income was properly allocated to respondents.
34
The respondents make, in essence, two arguments in their attempt to rebut the Commissioner's position. First, they urge that they never received any funds as a result of offering the policies to borrowers, and that it is therefore unfair to tax them on any portion of said proceeds. If § 482 is to have any meaning, that argument must be rejected. It makes absolutely no sense to examine this case with a technical eye as to whether respondents actually received or had a 'right' to receive any commissions. This is not a case involving independent companies or private individuals where we must scrupulously avoid taxing someone on money he will never receive regardless of his will in the matter. See, e.g., Blair v. Commissioner of Interal Revenue, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 665 (1937); cf. Teschner v. Commissioner, 38 T.C. 1003 (1962). This is a case involving related corporations, and § 482 recognizes that such corporations may be treated differently from natural persons or unrelated corporations for certain tax purposes.
35
We need not look far to find that this entire complicated economic structure—established, designed, administered, and amendable by the holding company—had the right to the proceeds. Pursuant to § 482, the Commissioner properly attempted to insure that the proceeds would be equitably allocated.
36
The Court apparently concedes that if respondents' only argument against taxation were that they have received no money, that argument would fail. This concession is, in fact, mandated by various decisions of this Court, including Harrison v. Schaffner, 312 U.S. 579, 61 S.Ct. 759, 85 L.Ed. 1055 (1941); Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940), and Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930).
37
Having implicitly rejected the argument that mere nonreceipt of money is sufficient to avoid taxation, the Court proceeds to accept respondents' second argument that in this case the taxpayer is legally barred from ever receiving money, and in this circumstance he cannot be taxed on it. Respondents find a legal bar to receipt of the proceeds at issue herein 12 U.S.C.A. § 92, which provides:
38
'In addition to the powers now vested by law in national banking associations organized under the laws of the United States any such association located and doing business in any place the population of which does not exceed five thousand inhabitants, as shown by the last preceding decennial census, may, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company authorized by the authorities of the State in which such bank is located to do business in said State, by soliciting and selling insurance and collecting premiums on policies issued by such company; and may receive for services so rendered such fees or commissions as may be agreed upon between the said association and the insurance company for which it may act as agent; and may also act as the broker or agent for others in making or procuring loans on real estate located within one hundred miles of the place in which said bank may be located, receiving for such services a reasonable fee or commission: Provided, however, That no such bank shall in any case guarantee either the principal or interest of any such loans or assume or guarantee the payment of any premium on insurance policies issued through its agency by its pricipal: And provided further, That the bank shall not guarantee the truth of any statement made by an assured in filing his application for insurance.'
39
This statute by inference and the regulations of the Comptroller of the Currency, 12 CFR §§ 2.1—2.5, by explicit language bar national banks in communities with more than 5,000 inhabitants from selling, soliciting, or receiving the proceeds from selling insurance. Respondents are within the legal prohibition and the penalties provided for a violation are indeed severe. Assuming that the respondents will not attempt to violate the law and not wishing to appear to encourage a violation, the Court concludes that respondents will receive none of the proceeds and that they cannot be taxed on money they will never receive.
40
But the crucial fact in this case is that under their own theory respondents have already violated the federal statute and regulations by soliciting insurance premiums. Title 12 U.S.C.A. § 92 as added to the federal banking laws in 1916 at the suggestion of John Skelton Williams, who was then Comptroller of the Currency. He wrote to Congress to recommend that national banks in small communities be permitted to associate with insurance companies, but that banks in larger communities be prohibited from doing the same:
41
'It seems desirable from the standpoint of public policy and banking efficiency that this authority should be limited to banks in small communities. This additional income will strengthen them and increase their ability to make a fair return to their shareholders, while the new business is not likelyto assume such proportions as to distract the officers of the bank from the principal business of banking. Furthermore i many small places the amount of insurance policies written . . . is not sufficient to take up the entire time of an insurance broker, and the bank is not therefore likely to trespass upon outside business naturally belonging to others.
42
'I think it would be unwise and therefore undesirable to confer this privilege generally upon banks in large cities where the legitimate business of banking affords ample scope for the energies of trained and expert bankers. I think it would be unfortunate if any movement should be made in the direction of placing the banks of the country in the category of department stores. . . .' Letter of June 8, 1916, to Senate, 53 Cong.Rec. 11001.
43
There is nothing in the history of the provision to indicate that Congress was more concerned with banks' actually receiving money than with their performing the activities that generated the money. In fact, the history that is available indicates that it is the activities themselves that Congress wished to stop. Banks in large communities were simply not permitted to do anything that insurance agents might do, i.e., they were not permitted to solicit insurance.
44
Under respondents' theory of the case, the legal violation is thus a fait accompli and the respondents are taxable as if there had been no illegality.1 See, e.g., United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927); Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833 (1952); James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). See also Tank Truck Rentals, Inc. v. Commissioner of Internal Revenue, 356 U.S. 30, 78 S.Ct. 507, 2 L.Ed.2d 562 (198).
45
The Court seeks, however, to distinguish all of the prior cases holding that a taxpayer may be taxed on income illegally earned on the ground that the issue was neve raised as to whether the taxpayers in those cases had actually received the income. The distinction is valid but it does not warrant a different result in this case.
46
The reasoning of the majority runs along these lines: if A violates the law—by attempted embezzlement or by illegally soliciting insurance sales, for example—but he receives no money and has no 'legal right' to receive any money, then he cannot be taxed as if the money had been received; but, if A actually embezzles money or receives insurance premiums in violation of the law, A can be taxed even though he may have transferred the money without any personal gain to a third party from whom he has no right of recovery.
47
I would agree with this analysis in most cases. Where I differ from the Court is in which category to place this transaction. To pretend that respondents have not received any money and have no right to any money is to ignore the thrust of § 482. That section requires that we treat this case as if the commissions had been paid to respondents and had been transferred to the insurance subsidiary by them. Of course, that did not occur. But, we know that the whole notion of the section is to look behind the form in which a transaction is structured to its substance. The substance is either that the respondents violated federal law, earned illegal income, attempted to avoid taxation on the income by channeling it elsewhere, and were caught by the Commissioner; or, that they did not violate federal law by soliciting sales of insurance and that there is no legal bar to their receiving the proceeds from their sales. In either case, the result is the same, and respondents cannot prevail.
48
If respondents had actually received the proceeds and transferred them to the insurance subsidiary, they would still be free to make essentially the same argument that they make in this case, i.e., they could argue that federal law prohibited them from receiving the money; that they violated federal law, but had no right to keep the money; and that they should not be taxed on receipt of funds which they could not legally keep.
49
To be consistent with the assignment-of-income cases, Helvering v. Horst, supra, and Lucas v. Earl, supra, and the line of cases that includes Rutkin v. United States, supra, and James v. United States, supra, the Court would have to reject this argument. Yet, I maintain that this is just what the taxpayer is arguing here. The Commissioner has determined that in reality the respondents have earned income, and he has taxed it under § 482. To reject his position is to give undue weight to the absence of technical temporary possession of money and some abstract concept of a 'right' to receive it. I had thought that this kind of technical reasoning was rejected in James v. United States, supra, when the Court overruled Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946).
50
Finally, even if there is some mysterious reason why the banking laws should be read in the manner suggested by respondents, there is still another reason why they should not prevail. The fact would remain that they consciously chose to perform services in order that their parent holding company would reap financial rewards.2 Certainly, there is nothing in the federal banking laws that required the performance of these services. In the context of a complex corporate structure ministered by one large holding company, the purposes of § 482 are best served by permitting the Commissioner to allocate income to the company that earns it, rather than to the company that receives it. Again, we must remember that this is not a case of unrelated private individuals or independent corporations where there might be some danger that in allocating income to the person who generated but did not receive it, the Commissioner would render that person financially unable to pay his taxes. This case involves one large interrelated system. It would be total fiction to assume that the holding company would leave its subsidiaries in a financial bind. Hence, there is no good reason the bar the Commissioner from taxing respondents on the money that they earn.3
51
In my view, the Commissioner has done exactly what § 482 requires him to do in this case. Accordingly, I would reverse the decision of the Court of Appeals and would remand the case with a direction that judgment be entered for the petitioner.
52
Mr. Justice BLACKMUN, with whom Mr. Justice WHITE joins, dissenting.
53
As I read the Court's opinion, I gain the impression that it chooses to link legality with taxability or, to put it better oppositely, that it ties illegality to receive with inability to tax. I find in the Internal Revenue Code no authority for the concoction of a restrictive connection of that kind. Because I think that the Commissioner's allocation of income here, under the auspices of § 482 of the 1954 Code, and in the light of the established facts, was proper, I dissent.
54
1. Section 4821 surely contemplates taxation of income without formal receipt of that income. That, indeed, is the scope and purport of the statute. It is directed at income distortion by a controlling interest among two or more of the controlled entities. I, therefore, am not convinced that the fact the income in question here did not flow through the Banks at any time because it was deemed proscribed by the 1916 Act (if the pertinent portion thereof, 39 Stat. 753, is still in effect, a proposition which may not be free from doubt),2 and because the controlling interest routed it elsewhere—serves, in and of itself, to deny the efficacy of the statute.
55
2. Section 482 has a double purpose and a double target. It authorizes the Secretary or his delegate, that is, the Commissioner, to allocate whenever he determines it necessary so to do in order (a) 'to prevent evasion of taxes' or (b) 'clearly to reflect the income of any' of the controlled entities. The use of the statute, therefore, is not restricted to the intentional tax evasion. No evasion of tax, in the criminal sense, by these Banks is specifically suggested or at issue here. And I do not subscribe to my Brother MARSHALL's intimation that what the Banks were doing was otherwise illegal. The second alternative of the statute, however, is directed t something other than tax evasion or illegality. It is concerned with the proper reflection of income (or deductions, credits, or allowances) so as to place the controlled taxpayer on a tax parity with the uncontrolled taxpayer. It is designed to produce for tax purposes, and to recognize, economic realities and to have the tax consequences follow those realities and not some structured nonreality. This is the aspect of the statute with which the Commissioner and these respondents are here concerned. Thus, legality and illegality seem to me to be beside the point.
56
3. From this it follows that the Court's repetitive emphasis on the missing § 92 and the inability of these Banks legally to receive the insurance commissions give undue emphasis to the first alternative of § 482, and seem almost wholly to ignore the second.
57
4. The purose of the controlling interest in structuring the several entities it controls is apparent and cannot be concealed. The Banks were wholly owned subsidiaries of Holding Company. The Tax Court found—and the respondents concede3 that one of the purposes of the Banks' arranging for borrowers' credit life insurance4 was 'to provide an additional source of income—part of the premiums from the insurance—to Holding Company or its subsidiaries.' T.C. Memo 1967—256, p. 67—1453. For me, that means to provide an additional source of income for the group irrespective of the particular pocket into which that income might initially be routed.
58
5. What, then, happened? The chronology is revealing:
59
(a) Initially, that is, until 1954, the Banks solicited the insurance, charged the premium, and forwarded it to Management Company. The latter in turn sent it on to the then-favored independent insurance carrier. That carrier paid the recognized sales commission to Smith, Management Company's wholly owned insurance agency.5
60
(b) In 1954 the American National-Security Life arrangement appeared on the scene. This was prompted by the blossoming of the credit insurance business as a profitable undertaking. Obviously, it was a matter of concern to established and independent insurance companies when they came to realize that lending institutions were in a position to form their own insurance affiliates to tap and drain away profits that the independents theretofore had received without hindrance. Security Life was just such an emerging insurance affiliate of Holding Company and of Management Company. But American National, by its proposal to Management Company, as well as to other financial institutions, salvaged 15% of the premium dollar in return for actuarial and accounting services. Security Life never did develop into a full-line insurance company; it remained essentially a re-insurer and yet it accomplished the purpose for which it was given life. Now no sales commissions needed to be paid. In fact, none were paid; they just disappeared, and that erstwhile cost remained as profit in Security Life. But the Banks, as before, solicited their borrowing customers to purchase credit life insurance.
61
(c) The Life Insurance Company Tax Act for 1955 was enacted, 70 Stat. 36, followed by the Life Insurance Company Income Tax Act of 1959, 73 Stat. 112. These statutes served to accord preferential tax treatment—as compared to ordinary corporations—to life insurance companies. See United States v. Atlas Life Ins. Co., 381 U.S. 233, 85 S.Ct. 1379, 14 L.Ed.2d 358 (1965). This happily coincided, of course, with Security Life's development.
62
6. Only the Banks were the responsible force behind the premium income. No one else was. Certainly American National was not. Certainly Security Life was not. Smith was out of the picture. And if it can be said that Management Company or Holding Company contributed a part, they did so only secondarily. It was the participating bank that explained to the borrower the function and availability of the insurance; that gave the customer the application form; that examined the application; that prepared the certificate of insurance; that collected the premium or added it to the loan; and that sent the form and the premium to Management Company. It was the participating bank that thus offered and sold on behalf of a life insurance company under common control with the bank. It was the participating bank, in short, that did what was necessary, and allthat was necessary, to sell the insurance. Clearly, services were rendered by that bank on behalf of its commonly controlled affiliate. Just as clearly, those services would have been compensated had the corporations been dealing with each other at arm's length.
63
7. It is no answer to say that generation of income does not necessarily lead to taxation of the generator; here the earnings themselves stayed within the corporate structure dominated by Holding Company, and did not pass elsewhere with consequent tax impact elsewhere. I do not so easily differentiate, as does the Court, ante, at 401 n. 11, between referral outside the affiliated structure and referral conveniently within that structure to a re-insurance company that could be taxed on the premium income (unreduced by commissions) at advantageous tax rates.
64
8. That the selling effort of the Banks seems comparatively minimal and that the processing cost seems comparatively negligible are, I believe, beside the point and quite irrelevant. No one else devoted effort or incurred cost of any significance whatsoever. Taxability has never depended on approximating expenses to receipts; in fact, the less the cost, the greater the net income and the greater the tax burden.
65
9. Neither is it an answer to say that before the organization of Security Life the Banks did not receive income from credit insurance premiums and that, therefore, the emergence of Security Life did not change the situation so far as the Banks were concerned. For me, it very much changed the situation, for the controlled structure took over the insurance business and the premiums thenceforth were nestled within that structure.
66
10. Taxability, despite nonreceipt, is common in our tax law. It is present in a variety of contexts. For example, one has been held taxable, under the applicable statute's general definition of gross income, for income or earnings assigned to another and never received;6 for the income from bond coupons, maturing in the future, assigned to another and never received;7 for dividends paid to the shareholders of a transferor corporation pursuant to a lease with no defeasance clause;8 for another's income from a short-term trust9 (until § 673, with its 10-year measure, came into the tax structure with the 1954 Code); for the employer's payment of income taxes on his employees' compensation;10 and for an irrevocable trust's income used to pay insurance premiums on the settlor's life,11 or, in the absence of particular state law provisions, distributed to a divorced wife in lieu of alimony12 (until § 215 came into the Code with the Revenue Act of 1942, 56 Stat. 817).
67
11. In the area of federal estate taxation an obvious parallel is found in the many instances of includability in the decedent's gross estate of property not owned or possessed by the decedent at his death. The Code itself provides for the inclusion of transfers theretofore effectively made, but in contemplation of death, 26 U.S.C. § 2035; of a variety of inter vivos irrevocable transfers in trust, 26 U.S.C. §§ 2036—2038; and of joint interests, 26 U.S.C. § 2040, in all of which situations the ownership interest at death was nonexistent or less than full.
68
12. This demonstrates for me that there have been and are many examples of taxation of income without that 'complete dominion' over it that the Court now finds so necessary. The quotation, cited by the Court, from Mr. Justice Holmes' opinion in Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 337, 74 L.Ed. 916 (1930), consists of language used to support the taxation of income; it is not language, as the Court would make it out to be, that supported the nontaxation of income. The Justice's posture and the Court's—in that case surely looks as much, and perhaps more, to includability here than it does to excludability.13
69
13. The Court shrinks from extending the possibility of taxation-without-receipt to the situation where the taxpayer is 'prohibited from receiving' the income by another statute. It states that no decision of the Court has as yet gone that far. It is equally true that no decision of the Court has refrained from going that far.
70
The Seventh Circuit has not been concerned with the existence of a prohibitory regulating statute, Local Finance Corp. v. Commissioner of Internal Revenue, 407 F.2d 629 (1969), cert. denied, Commissioner of Internal Revenue v. Guardian Agency, Inc., 396 U.S. 956, 90 S.Ct. 424, 24 L.Ed.2d 420, and this Court should not be. The Congress, in enacting the Life Insurance Company Tax Act for 1955, was of the opinion that § 482 was available to the Commissioner with respect to insurance companies that are captives of 'finance companies.' H.R.Rep.No.1098, 84th Cong., 1st Sess., 7; S.Rep.No.1571, 84th Cong., 2d Sess., 8.14
71
14. The Court's reluctance is reminiscent of the 'claim of right' doctrine, which found expression in the unfortunate and short-lived (15 years) decision in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946), to the effect that embezzled income was not taxable to the embezzler. Wilcox, of course, stood in sharp contrast to Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833 (1952), where money obtained by extortion was held to be taxable income to the extortioner; it was overruled, at last, in James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). In Wilcox, as here, the Court wrestled with the concept and imaginary barrier of illegality, was impressed by it, and, as in this case, concluded that illegality and taxability did not mix and could not be linked. That doctrine encountered resistance in Rutkin and in James and was rightly rendered an aberration by those later decisions.
72
15. I doubt if there is much comfort for the Court in L. E. Shunk Latex Products, Inc., 18 T.C. 940 (1952), for there the significant fact was that the taxpayer could not have raised its price even to a noncontrolled distributor.
73
In conclusion, I note that the Court of Appeals remanded Management Company's case to the Tax Court for consideration of the § 482 allocation, alternatively proposed, to that corporation. With this I must be content. At least Management Company is not a national bank, and the barrier that the Court has found in the missing § 92 supposedly does not provide a protective coating for Management Company or, for that matter, for Holding Company.
74
And so it is. The result of today's decision may not be too important, for it affects only a few taxpayers. It seems to me, however, that it effectively dulls one edge of what has been a sharp two-edged tool fashioned and bestowed by the Congress upon the Internal Revenue Service for the effective enforcement of our federal tax laws.
1
Title 26 U.S.C. § 482 provides:
'In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Secretary or his delegate may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.'
2
The corporate income tax imposes the same rate of taxation on taxable income up to $25,000 and the same rate for income greater than $25,000. 26 U.S.C. § 11. Therefore, if, excluding the sales commissions in question, we assume, as seems likely, that before 1954 the income of both respondents and of Management Company exceeded $25,000, then the total taxes paid by the Holding Company subsidiaries would not be affected if the commissions were allocated wholly to respondents, or to Management Company, or partially to all three.
3
This plan was proposed to Holding Company by American National, which was making similar recommendations to other financial institutions. The Tax Court found that insurance companies anticipated that lending institutions would soon begin to form their own affiliated life insurance companies to write the credit insurance, which was proving to be a profitable business. Such a move by lending institutions would deprive the independent insurance companies of substantial credit insurance business. The type of plan recommended by American National was intended to salvage a portion of such business by charging a fee for the actuarial, accounting, and other services made available to Security Life, which reinsured the entire risk. T.C. Memo 1967 256.
4
Taxpayers are, of course, generally free to structure their business affairs as they consider to be in their best interests, including lawful structuring (which may include holding companies) to minimize taxes. Perhaps the classic statement of this principle is Judge Learned Hand's comment in his dissenting opinion in Commissioner of Internal Revenue v. Newman, 159 F.2d 848, 850—851 (CA2 1947):
'Over and over again courts have said that there is nothing sinister in so arranging one's affairs as to keep taxes as law as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.'
See Knetsch v. United States, 364 U.S. 361, 365, 81 S.Ct. 132, 134, 5 L.Ed.2d 128 (1960); Chirelstein, Learned Hand's Contribution to the Law of Tax Avoidance, 77 Yale L.J. 440 (1968).
5
The opinion of the Tax Court, supra, includes tables showing the profitability of Security Life. Its net worth (capital and surplus) increased from $161,370.52 at the end of 1955 to $1,050,220 at the end of 1959, despite the paying out of claims and claims expenses over the five-year period totaling $525,787.91. The Tax Court found that: 'Although Security Life's business proved to be successful, there was no way to judge at the outset whether it would succeed. In relation to its capital structure, Security Life reinsured a large amount of risk.'
6
Both the Life Insurance Company Tax Act for 1955, 70 Stat. 36, applicable to the years 1955—1957, and the Life Insurance Company Income Tax Act of 1959, 73 Stat. 112, applicable to later years, accorded preferential tax treatment to life insurance companies.
7
The Commissioner made an alternative allocation to Management Company. Because it upheld his allocation to the Banks, the Tax Court rejected this alternative. In reversing the allocation to the Banks, the Court of Appeals found the record insufficient to pass on the alternative allocation. It therefore ordered that the case be remanded to the Tax Court for further consideration. The alternative allocation is therefore not before us.
8
See 26 CFR § 1.482—1(a)(6) (1971).
9
B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders p. 15—21 (3d ed. 1971).
10
26 CFR § 1.482—1(b)(1) (1971). The first regulations interpreting this section of the statute were issued in 1934. They have remained virtually unchanged. Jenks, Treasury Regulations Under Section 482, 23 Tax Lawyer 279 (1970).
11
The court below held that the mere generation of business does not necessarily result in taxable income. As we decide this case on a different ground, we need not consider the circumstances in which the origination or referral of business may or may not result in taxable income to the originating party. We do agree that orgination of business does not necessarily result in such income. In this case if the Banks had been unaffiliated with any other entities (i.e., had been separate, independent banks, unaffiliated with any holding company group), they would nevertheless have performed the 'services' that the Commissioner asserts resulted in taxable income. These services—namely the negligible paperwork and the referring of the credit insurance to a company licensed to write it—were performed (as the Tax Court noted) for the convenience of bank customers and to assure additional collateral for loans. They also may have been necessary to meet competition. The fact of affiliation, enabling referral of the business to another subsidiary in the holding company group, does not alter the character of what was done. The act which is relevant, in terms of generating insurance premiums and commissions, is the referral of the business. Whether this referral is to an affiliated or an unaffiliated insurance company should make no difference as to whether the bank, which never receives the income, has earned it.
12
Section 92 of the National Bank Act was enacted in 1916. When the statutes were revised in 1918 and re-enacted, § 92 was omitted. The revisers of the United States Code have omitted it from recent editions of the Code. However, the Comptroller of the Currency considers § 92 to be effective and he still incorporates the provision in his Regulations, 12 CFR §§ 2.1—2.5 (1971).
13
Saxon v. Georgia Association of Independent Insurance Agents, Inc., 399 F.2d 1010 (CA5 1968). See Commissioner of Internal Revenue v. Morris Trust, 367 F.2d 794, 795 (CA4 1966).
14
12 CFR §§ 2.1—2.5 (1971).
15
Findings of fact and opinion in T.C. Memo 1967—256, p. 67 1456, filed Dec. 27, 1967, in this case.
16
Mr. Justice MARSHALL's dissenting opinion is based on the 'crucial fact . . . (that) respondents (the Banks) have already violated the federal statute and regulations by soliciting insurance premiums.' The statute, 12 U.S.C.A. § 92, prohibits a national bank from acting 'as the agent' of an insurance company 'by soliciting and selling insurance and collecting premiums on policies.' Mr. Justice MARSHALL concludes that the banks have violated this statute, and notes that 'the penalties . . . are indeed severe.'
This findind of illegality, with respect to conduct of the Banks extending back to 1948, is without support either in the record or in any authority cited. Indeed, the record is to the contrary. The Tax Court found as a fact that there was no 'agency agreement' between the Banks and the insurance companies; it further found that the Banks 'made available' the credit insurance to their customers. There is no finding, and nothing in the record to support a finding, that the Banks were agents of the insurance companies or that they engaged in 'selling insurance' within the meaning of the statute. The Banks no doubt 'solicited' in the sense that they encouraged their customers to take out the insurance. But in the absence of an agency relationship, and in view of the undisputed fact that the Banks received no commissions or premiums, it cannot be said that there was a violation of the statute. Moreover, the Banks were regularly examined by the federal banking authorities 'looking for violations in the national banking laws.' The making to credit insurance available to customers was and is a common practice in the banking business. There is no suggestion that the federal banking authorities considered this service to customers to be a violation of the law as long as the Banks received nocommissions or fees. This administrative interpretation as long as the Banks received no commissions great weight.
The dissenting opinion raises this serious issue for the first time. It was not raised at any stage in the proceedings below. Nor was it briefed or argued in this Court. The Commissioner, the Tax Court, the Court of Appeals, and the Solicitor, General all assumed that the Banks' conduct in this respect was perfectly lawful. But quite apart from the consistent administrative acceptance and from the assumptions by the Commissioner and the courts below, we think there is no basis for a finding of this serious statutory violation.
17
See Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940) (assignment of interest coupons attached to bonds owned by taxpayer); Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930) (taxpayer assigned to wife one-half interest in his earnings). See generally Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), and cases discussed therein at 604—610, 68 S.Ct., at 722—725.
18
26 CFR § 1.482—1(b)(1) (1971).
19
James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961); Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833 (1952).
20
12 U.S.C. § 93.
21
Thus, in Commissioner of Internal Revenue v. Lester, 366 U.S. 299, 81 S.Ct. 1343, 6 L.Ed.2d 306 (1961), in determining that a taxpayer should not be taxed on alimony payments to his divorced wife, the Court determined that it was more consistent with the basic precepts of income tax law that the wife, who received and had power to spend the payments, should be taxed rather than the husband who actually earned the money.
22
As noted at the outset of this opinion, certiorari was granted to resolve the conflict between the decision below and that in Local Finance Corp. v. Commissioner, 407 F.2d 629 (CA7 1969). The Tax Court in this case felt bound to follow Local Finance Corp., which was decided subsequently to L. E. Shunk Latex Products, Inc. v. Commissioner, 18 T.C. 940 (1952). For the reasons stated in the opinion above, we think Local Finance Corp. was erroneously decided and that the earlier views of the Tax Court were correct.
See Teschner v.Commissioner, 38 T.C. 1003, 1009 (1962):
"In the case before us, the taxpayer, while he had no power to dispose of income, had a power to appoint or designate its recipient. Does the existence or exercise of such a power alone give rise to taxable income in his hands? We think clearly not. In Nicholas A. Stavroudis, 27 T.C. 583, 590 (1956), we found it to be settled doctrine that a power to direct the distribution of trust income to others is not alone sufficient to justify the taxation of that income to the possessor of such power."
23
See dissenting opinion of Mr. Justice BLACKMUN, post, at 422.
24
If an unaffiliated bank were able to provide the insurance at a cheaper rate because no commissions were paid, this would benefit the customers but would result in no taxable income.
25
26 CFR § 1.482—1(b)(1) (1971).
1
Neither the statute nor the regulations use the words 'originating and referring' insurance. These are the words chosen by the Court to describe the respondents' activities, ante, at 405. The statute and regulations speak of 'soliciting and selling.' Because the respondents themselves argue that they would violate § 92 and the regulations were they to receive the income generated by their activities. I assume that they, in effect, are admitting that these activities amounted to 'soliciting and selling' insurance. Thus, the Commissioner could properly determine that the statute was violated by the acts of solicitation, and, as the Court recognizes, since 'the illegality involved was the act which gave rise to the income,' this Court's prior decisions permit the Commissioner to tax the income of the lawbreakers.
If, however, the Court is attempting to distinguish sub silentio between 'originating and referring' and 'soliciting' and is concluding that only the latter is illegal, then there is nothing in the statute or regulations that would make illegal the receipt of income generated by the former. Hence, the Commissioner could reject the respondents' second argument that it would violate federal banking laws to include the proceeds in their income.
Whichever approach the Court selects, the statute requires consistency—i.e., the statute requires that the activities that produce income be illegal before the receipt of the income is deemd to violate the law.
I agree with the Court that deference must be paid to the expertise of the Comptroller, but in proposing that § 92 be added to the already existing banking laws, Comptroller Williams himself noted that '(i)t is certainly clear that the Comptroller of the Currency has no right to authorize or permit a national bank to exercise powers not conferred upon it by law.' Letter of June 8, 1916, supra.
Senator Owen, who shepherded the 1916 legislation through the Senate, noted at one point that § 92 is not a very important part of the statute. 53 Cong.Rec. 11001. Perhaps, it is therefore unimportant whether or not the respondents have technically violated it. Whether or not the Comptroller has properly permitted such activities to take place may also be of no geat momen. also be of no great moment. of this case, in my view, is that if respondents' activities are not illegal, there is no reason that receipt ofthe income generated from them should be illegal. It should be pointed out that the theory that receipt of said income would be illegal was first proffered by respondents' counsel. This theory is certainly selfserving in the sense that it provides what the Court regards as the dispositive factor in this case without hindering the activities of the holding company in any way.
The Court suggests that the Commissioner has never relied on the theory of the case expressed in this opinion. On the contrary, the Commissioner argued in his brief (p. 13) as follows:
'The Commissioner's allocation does not force respondents to violate the federal banking law. It was they, not the Commissioner, who chose to solicit and sell credit life insurance at a rate set at a sufficiently high level to permit the payment of commissions. If their activities did not violate the banking law, the Commissioner's allocation will not, of itself, constitute a violation on their part. And, surely, the payment of taxes would not be an illegal act.'
Both sides dealt with this point in oral argument. Tr. of Oral Arg. 14—18, 30, 40.
This is the nub of the case. What is there in the legislative history or the purpose of § 92 that requires that we treat the activities as legal, but the receipt of the income they generate as illegal?
2
While the premiums from the insurance policies were not paid directly to the parent, policies were not paid directly to the parent, there can be no doubt that the parent benefited from the financial success of its subsidiaries.
3
We know that nontax statutes do not normally determine the tax consequences of a particular transaction. There is no inherent inconsistency in reading the banking legislation as making the receipt of insurance premiums illegal, and, at the same time, reading the Internal Revenue Code as allowing the Commissioner to allocate the income from the sale of insurance policies to the party actually earning it, so long as the income is received by the corporation controlling that party.
1
Section 482 is not new. It appeared as § 45 of the Revenue Act of 1928, 45 Stat. 806, and has predecessors in § 240(f) of the Revenue Act of 1926, 44 Stat. 46, and in § 240(d) of the Revenue Act of 1924, 43 Stat. 288.
2
The revisers of the United States Code in 1952 omitted the section because of the possibility of its having been repealed by its omission from the amendment and re-enactment in 1918 of § 5202 of the Revised Statutes by § 20 of the War Finance Corporation Act, 40 Stat. 512. Compare administrative ruling No. 7110 of the Comptroller of the Currency with the Comptroller's current regulations, 12 CFR §§ 2.1—2.5. See Saxon v. Georgia Association of Independent Insurance Agents, Inc., 399 F.2d 1010 (CA5 1968); Commissioner of Internal Revenue v. Morris Trust, 367 F.2d 794, 795 (CA4 1966); Hackley, Our Baffling Banking System, pt. 2, 52 Va.L.Rev. 771, 777—779 (1966). United States Code Annotated carries the provision as § 92 of its Title 12.
3
Brief for Respondents 2.
4
I use this and other terms as they have been defined in the Court's opinion.
5
Despite this payment to Smith, it was not Smith, but Management Company, that reported the commissions as taxable income. This reveals the fluidity of control of the structure. Of course, the fact that the Commissioner did not allocate the premiums to the Banks during this period is of small, if any, significance, for, as the Court points out, ante, at 397—398 n. 2, the then tax rate for each of the corporate entities was likely the same. The Government thus would lose nothing by not allocating.
6
Harrison v. Schaffner, 312 U.S. 579, 61 S.Ct. 759, 85 L.Ed. 1055 (1941); Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81 (1940); Burnet v. Leininger, 285 U.S. 136, 52 S.Ct. 345, 76 L.Ed. 665 (1932); Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930). Cf. Hoeper v. Tax Comm'n, 284 U.S. 206, 52 S.Ct. 120, 76 L.Ed. 248 (1931); Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465 (1937). See Commissioner v. Sunnen, 333 U.S. 591, 604—610, 68 S.Ct. 715, 722—725, 92 L.Ed. 898 (1948); United States v. Mitchell, 403 U.S. 190, 91 S.Ct. 1763, 29 L.Ed.2d 406 (1971).
7
Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940).
8
United States v. Joliet & Chicago R. Co., 315 U.S. 44, 62 S.Ct. 442, 86 L.Ed. 658 (1942).
9
Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 (1940).
10
Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918 (1929).
11
Burnet v. Wells, 289 U.S. 670, 53 S.Ct. 761, 77 L.Ed. 1439 (1933).
12
Douglas v. Willcuts, 296 U.S. 1, 56 S.Ct. 59, 80 L.Ed. 3 (1935); Helvering v. Fitch, 309 U.S. 149, 60 S.Ct. 427, 84 L.Ed. 665 (1940); see Commissioner of Internal Revenue v. Lester, 366 U.S. 299, 81 S.Ct. 1343, 6 L.Ed.2d 306 (1961).
13
'. . . But the net income for 1924 was paid over to the petitioner's wife and the petitioner's argument is that however it might have been in different circumstances the income never was his and he cannot be taxed for it. The legal estate was in the trustee and the equitable interest in the wife.
'But taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed—the actual benefit for which the tax is paid. . . .' 281 U.S., at 377 378, 50 S.Ct., at 336.
In another case Mr. Justice Holmes said:
'There is no doubt that the statute could tax salaries to those who earned them and provide that the tax could not be escaped by anticipatory arrangements and contracts however skilfully devised to prevent the salary when paid from vesting even for a second in the man who earned it. . . .' Lucas v. Earl, 281 U.S. 111, 114—115, 50 S.Ct. 241, 74 L.Ed. 731 (1930).
14
'There is a potential abuse situation in the case of the so-called captive insurance companies. It may be possible for a finance company, for example, to establish a subsidiary life insurance company that will issue life insurance policies in connection with the business of the parent. If the subsidiary charges excessive premium on this business, a portion of the income of the parent company can be diverted to the lief insurance company. It is believed that section 482 of the Internal Revenue Code of 1954 (relating to allocation of income and deductions among related taxpayers) provides the Secretary of the Treasury ample regulative authority to deal with this problem.' U.S.Code Cong. & Admin.News 1956, pp. 2253, 2260.
| 1112
|
405 U.S. 330
92 S.Ct. 995
31 L.Ed.2d 274
Winfield DUNN, Governor of the State of Tennessee, et al., Appellants,v.James F. BLUMSTEIN.
No. 70—13.
Argued Nov. 16, 1971.
Decided March 21, 1972.
Syllabus
Tennessee closes its registration books 30 days before an election, but requires residence in the State for one year and in the county for three months as prerequisites for registration to vote. Appellee challenged the constitutionality of the durational residence requirements, and a three-judge District Court held them unconstitutional on the grounds that they impermissibly interfered with the right to vote and created a 'suspect' classification penalizing some Tennessee residents because of recent interstate movement. Tennessee asserts that the requirements are needed to insure the purity of the ballot box and to have knowledgeable voters. Held: The durational residence requirements are violative of the Equal Protection Clause of the Fourteenth Amendment, as they are not necessary to further a compelling state interest. Pp. 335—336.
(a) Since the requirements deny some citizens the right to vote, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.' Kramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (emphasis added). Pp. 336—337.
(b) Absent a compelling state interest, Tennessee may not burden the right to travel by penalizing those bona fide residents who have recently traveled from one jurisdiction to another. Pp. 338—342.
(c) A period of 30 days appears to be ample to complete whatever administrative tasks are needed to prevent fraud and insure the purity of the ballot box. Pp. 345—349.
(d) Since there are adequate means of ascertaining bona fide residence on an individualized basis, the State may not conclusively presume nonresidence from failure to satisfy the waiting-period requirements of durational residence laws. Pp. 349 354.
(e) Tennessee has not established a sufficient relationship between its interest in an informed electorate and the fixed durational residence requirements. Pp. 354—360.
Affirmed.
Robert H. Roberts, Nashville, Tenn., for appellants.
James F. Blumstein, pro se.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Various Tennessee public officials (hereinafter Tennessee) appeal from a decision by a three-judge federal court holding that Tennessee's durational residence requirements for voting violate the Equal Protection Clause of the United States Constitution. The issue arises in a class action for declaratory and injunctive relief brought by appellee James Blumstein. Blumstein moved to Tennessee on June 12, 1970, to begin employment as an assistant professor of law at Vanderbilt University in Nashville. With an eye toward voting in the upcoming August and November elections, he attempted to register to vote on July 1, 1970. The county registrar refused to register him, on the ground that Tennessee law authorizes the registration of only those persons who, at the time of the next election, will have been residents of the State for a year and residents of the county for three months.
2
After exhausting state administrative remedies, Blumstein brought this action challenging these residence requirements on federal constitutional grounds.1 A three-judge court, convened pursuant to 28 U.S.C. §§ 2281, 2284, concluded that Tennessee's durational residence requirements were unconstitutional (1) because they impermissibly interfered with the right to vote and (2) because they created a 'suspect' classification penalizing some Tennessee residents because of recent interstate movement.2 Blumstein v. Ellington, 337 F.Supp. 323 (MD Tenn.1970). We noted probable jurisdiction, 401 U.S. 934, 91 S.Ct. 920, 28 L.Ed.2d 213 (1971). For the reasons that follow, we affirm the decision below.3
3
* The subject of this lawsuit is the durational residence requirement. Appellee does not challenge Tennessee's power to restrict the vote to bona fide Tennessee residents. Nor has Tennessee ever disputed that appellee was a bona fide resident of the State and county when he attempted to register.4 But Tennessee insists that, in addition to being a resident, a would-be voter must have been a resident for a year in the State and three months in the county. It is this additional durational residence requirement that appellee challenges.
4
Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter to the extent of totally denying them the opportunity to vote.5 the constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens.
5
To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. Cf. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). In considering laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved.6 First, then, we must determine what standard of review is appropriate. In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.
6
* Durational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of "a fundamental political right, . . . preservative of all rights." Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed. 506 (1964). There is no need to repeat now the labors undertaken in earlier cases to analyze this right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e.g., Evans v. Cornman, 398 U.S. 419, 421—422, 426, 90 S.Ct. 1752, 1754—1755, 1756, 26 L.Ed.2d 370 (1970); Kramer v. Union Free School District No. 15, 395 U.S. 621, 626—628, 89 S.Ct. 1886, 1889—1890, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 93—94, 85 S.Ct. 775, 778, 779, 13 L.Ed.2d 675 (1965); Reynolds v. Sims, supra. This 'equal right to vote,' Evans v. Cornman, supra, 398 U.S., at 426, 90 S.Ct., at 1756 is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. See, e.g., Carrington v. Rash, supra, 380 U.S., at 91, 85 S.Ct., at 777, Oregon v. Mitchell, 400 U.S. 112, 144, 91 S.Ct. 260, 274, 27 L.Ed.2d 272 (opinion of Douglas, J.), 241, 91 S.Ct. 323 (separate opinion of Brennan, White, and Marshall, JJ.), 294, 91 S.Ct. 349 (opinion of Stewart, J., concurring and dissenting, with whom Burger, C.J., and Blackmun, J., joined). But, as a general matter, 'before that right (to vote) can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.' Evans v. Cornman, supra, 398 U.S., at 422, 90 S.Ct., at 1755; see Bullock v. Carter, 405 U.S. 134, at 143, 92 S.Ct. 849, at 855—856, 31 L.Ed.2d 92.
7
Tennessee urges that this case is controlled by Drueding v. Devlin, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792 (1965). Drueding was a decision upholding Maryland's durational residence requirements. The District Court tested those requirements by the equal protection standard applied to ordinary state regulations: whether the exclusions are reasonably related to a permissible state interest. 234 F.Supp. 721, 724—725 (Md.1964). We summarily affirmed per curiam without the benefit of argument. But if it was not clear then, it is certainly clear now that a more exacting test is required for any statute that 'place(s) a condition on the exercise of the right to vote.' Bullock v. Carter, supra, 405 U.S., at 143, 92 S.Ct., at 856. This development in the law culminated in Kramer v. Union Free School District No. 15. supra. There we canvassed in detail the reasons for strict review of statutes distributing the franchise, 395 U.S., at 626—630, 89 S.Ct., at 1889—1891, noting inter alia that such statutes 'constitute the foundation of our representative society.' We concluded that if a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.' Id., at 627, 89 S.Ct., at 1890 (emphasis added); Cipriano v. City of Houma, supra, 395 U.S., at 704, 89 S.Ct., at 1899; City of Phoenix v. Kolodziejski, 399 U.S. 204, 205, 209, 90 S.Ct. 1990, 1992, 1994, 26 L.Ed.2d 523 (1970). Cf. Harper v. Virginia State Board of Elections, supra, 383 U.S., at 670, 86 S.Ct., at 1083. This is the test we apply here.7
B
8
This exacting test is appropriate for another reason, never considered in Drueding: Tennessee's durational residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period. Thus, the durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.
9
'(F)reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.' United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966). See Passenger Cases (Smith v. Turner), 7 How. 283, 492, 12 L.Ed. 702 (1849) (Taney, C.J.); Crandall v. Nevada, 6 Wall. 35, 43—44, 18 L.Ed. 744 (1868); Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1869); Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941); Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958); Shapiro v. Thompson, 394 U.S. 618, 629—631, 634, 89 S.Ct. 1322, 1328—1330, 1331, 22 L.Ed.2d 600 (1969); Oregon v. Mitchell, 400 U.S., at 237, 91 S.Ct., at 321 (separate opinion of Brennan, White, and Marshall, JJ.), 285—286, 91 S.Ct. 345 (Stewart, J., concurring and dissenting, with whom Burger, C.J., and Blackmun, J., joined). And it is clear that the freedom to travel includes the 'freedom to enter and abide in any State in the Union,' id., at 285, 91 S.Ct., at 345. Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly. We considered such a durational residence requirement in Shapiro v. Thompson, supra, where the pertinent statutes imposed a one-year waiting period for interstate migrants as a condition to receiving welfare benefits. Although in Shapiro we specifically did not decide whether durational residence requirements could be used to determine voting eligibility, id., 394 U.S., at 638 n. 21, 89 S.Ct., at 1333, we concluded that since the right to travel was a constitutionally protected right, 'any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.' Id., at 634, 89 S.Ct., at 1331. This compelling-state-interest test was also adopted in the separate concurrence of Mr. Justice Stewart. Preceded by a long line of cases recognizing the constitutional right to travel, and repeatedly reaffirmed in the face of attempts to disregard it, see Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1970), and Wyman v. Lopez, 404 U.S. 1055, 92 S.Ct. 736, 30 L.Ed.2d 743 (1972), Shapiro and the compelling-state-interest test it articulates control this case.
10
Tennessee attempts to distinguish Shapiro by urging that 'the vice of the welfare statute in Shapiro . . . was its objective to deter interstate travel.' Brief for Appellants 13. In Tennessee's view, the compelling-state-interest test is appropriate only where there is 'some evidence to indicate a deterrence of or infringement on the right to travel . . ..' Ibid. Thus, Tennessee seeks to avoid the clear command of Shapiro by arguing that durational residence requirements for voting neither seek to nor actually do deter such travel. In essence, Tennessee argues that the right to travel is not abridged here in any constitutionally relevant sense.
11
This view represents a fundamental misunderstanding of the law.8 It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other 'right to travel' cases in this Court always relied on the presence of actual deterrence.9 In Shapiro we explicitly stated that the compelling state interest test would be triggered by 'any classification which serves to penalize the exercise of that right (to travel) . . ..' Id., at 634, 89 S.Ct., at 1331 (emphasis added); see id., at 638 n. 21, 89 S.Ct., at 1333.10 While noting the frank legislative purpose to deter migration by the poor, and speculating that '(a)n indigent who desires to migrate . . . will doubtless hesitate if he knows that he must risk' the loss of benefits, id., at 629, 89 S.Ct., at 1328, the majority found no need to dispute the 'evidence that few welfare recipients have in fact been deterred (from moving) by residence requirements.' Id., at 650, 89 S.Ct., at 1340 (Warren, C.J., dissenting); see also id., at 671—672, 89 S.Ct., at 1351 (Harlan, J., dissenting). Indeed, none of the litigants had themselves been deterred. Only last Term, it was specifically noted that because a durational residence requirement for voting 'operates to penalize those persons, and only those persons, who have exercised their constitutional right of interstate migration . . ., (it) may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest.' Oregon v. Mitchell, 400 U.S., at 238, 91 S.Ct., at 321, 27 L.Ed.2d 272 (separate opinion of Brennan, White, and Marshall, JJ.) (emphasis added).
12
Of course, it is true that the two individual interests affected by Tennessee's durational residence requirements are affected in different ways. Travel is permitted, but only at a price; voting is prohibited. The right to travel is merely penalized, while the right to vote is absolutely denied. But these differencess are irrelevant for present purposes. Shapiro implicitly realized what this Court has made explicit elsewhere:
13
'It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. . . . 'Constitutional rights would be of little value if they could be . . . indirectly denied,' . . ..' Harman v. Forssenius, 380 U.S. 528, 540, 85 S.Ct. 1177, 1185, 14 L.Ed.2d 50 (1965).11
14
See also Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and cases cited therein; Spevack v. Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967). The right to travel is an 'unconditional personal right,' a right whose exercise may not be conditioned. Shapiro v. Thompson, 394 U.S., at 643, 89 S.Ct., at 1331 (Stewart, J., concurring) (emphasis added); Oregon v. Mitchell, supra, 400 U.S., at 292, 91 S.Ct., at 348 (Stewart, J., concurring and dissenting, Burger, C.J., and Blackmun, J., joined). Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right.12 In the present case, such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote. Cf. United States v. Jackson, 390 U.S. 570, 582—583, 88 S.Ct. 1209, 1216 1217, 20 L.Ed.2d 138 (1968). Absent a compelling state interest, a State may not burden the right to travel in this way.13
C
15
In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are 'necessary to promote a compelling governmental interest.' Shapiro v. Thompson, 394 U.S., at 634, 89 S.Ct., at 1331 (first emphasis added); Kramer v. Union Free School District No. 15, 395 U.S., at 627, 89 S.Ct., at 1889. Thus phrased, the constitutional question may sound like a mathematical formula. But legal 'tests' do not have the precision of mathematical formulas. The key words emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes.
16
It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with 'precision,' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); United States v. Robel, 389 U.S. 258, 265, 88 S.Ct. 419, 424, 19 L.Ed.2d 508 (1967), and must be 'tailored' to serve their legitimate objectives. Shapiro v. Thompson, supra, 394 U.S., at 631, 89 S.Ct., at 1329. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose 'less drastic means.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).
II
17
We turn, then, to the question of whether the State has shown that durational residence requirements are needed to further a sufficiently substantial state interest. We emphasize again the difference between bona fide residence requirements and durational residence requirements. We have in the past noted approvingly that the States have the power to require that voters be bona fide residents of the relevant political subdivision. E.g., Evans v. Cornman, 398 U.S., at 422, 90 S.Ct., at 1754; Kramer v. Union Free School District No. 15, supra, 395 U.S., at 625, 89 S.Ct., at 1888; Carrington v. Rash, 380 U.S., at 91, 85 S.Ct., at 777; Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904).14 An appropriately defined and uniformly applied requirement of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny.15 But Durational residence requirements, representing a separate voting qualification imposed on bona fide residents, must be separately tested by the stringent standard. Cf. Shapiro v. Thompson, supra, 394 U.S., at 636, 89 S.Ct., at 1332.
18
It is worth noting at the outset that Congress has, in a somewhat different context, addressed the question whether durational residence laws further compelling state interests. In § 202 of the Voting Rights Act of 1965, added by the Voting Rights Act Amendments of 1970, Congress outlawed state durational residence requirements for presidential and vice-presidential elections, and prohibited the States from closing registration more than 30 days before such elections. 42 U.S.C. § 1973aa—1. In doing so, it made a specific finding that durational residence requirements and more restrictive registration practices do 'not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections.' 42 U.S.C. § 1973aa 1(a)(6). We upheld this portion of the Voting Rights Act in Oregon v. Mitchell, supra. In our present case, of course, we deal with congressional, state, and local elections, in which the State's interests are arguably somewhat different; and, in addition, our function is not merely to determine whether there was a reasonable basis for Congress' findings. However, the congressional finding which forms the basis for the Federal Act is a useful background for the discussion that follows.
19
Tennessee tenders 'two basic purposes' served by its durational residence requirements:
20
'(1) INSURE PURITY OF BALLOT BOX—Protection against fraud through colonization and inability to identify persons offering to vote, and
21
'(2) KNOWLEDGEABLE VOTER—Afford some surety that the voter has, in fact, become a member of the community and that as such, he has a common interest in all matters pertaining to its government and is, therefore, more likely to exercise his right more intelligently.' Brief for Appellants 15, citing 18 Am.Jur., Elections, § 56, p. 217.
22
We consider each in turn.
A.
23
Preservation of the 'purity of the ballot box' is a formidable-sounding state interest. The impurities feared, variously called 'dual voting' and 'colonization,' all involve voting by nonresidents, either singly or in groups. The main concern is that nonresidents will temporarily invade the State or county, falsely swear that they are residents to become eligible to vote, and, by voting, allow a candidate to win by fraud. Surely the prevention of such fraud is a legitimate and compelling government goal. But it is impossible to view durational residence requirements as necessary to achieve that state interest.
24
Preventing fraud, the asserted evil that justifies state lawmaking, means keeping nonresidents from voting. But, by definition, a durational residence law bars newly arrived residents from the franchise along with nonresidents. The State argues that such sweeping laws are necessary to prevent fraud because they are needed to identify bona fide residents. This contention is particularly unconvincing in light of Tennessee's total statutory scheme for regulating the franchise.
25
Durational residence laws may once have been necessary to prevent a fraudulent evasion of state voter standards, but today in Tennessee, as in most other States,16 this purpose is served by a system of voter registration. Tenn. Code Ann. § 2—301 et seq. (1955 and Supp. 1970); see State v. Weaver, 122 Tenn. 198, 122 S.W. 465 (1909). Given this system, the record is totally devoid of any evidence that durational residence requirements are in fact necessary to identify bona fide residents. The qualifications of the would-be voter in Tennessee are determined when he registers to vote, which he may do until 30 days before the election. Tenn. Code Ann. § 2—304. His qualifications—including bona fide residence—are established then by oath. Tenn. Code Ann. § 2—309. There is no indication in the record that Tennessee routinely goes behind the would-be voter's oath to determine his qualifications. Since false swearing is no obstacle to one intent on fraud, the existence of burdensome voting qualifications like durational residence requirements cannot prevent corrupt nonresidents from fraudulently registering and voting. As long as the State relies on the oath-swearing system to establish qualifications, a durational residence requirement adds nothing to a simple residence requirement in the effort to stop fraud. The nonresident intent on committing election fraud will as quickly and effectively swear that he has been a resident for the requisite period of time as he would swear that he was simply a resident. Indeed, the durational residence requirement becomes an effective voting obstacle only to residents who tell the truth and have no fraudulent purposes.
26
Moreover, to the extent that the State makes an enforcement effort after the oath is sworn, it is not clear what role the durational residence requirement could play in protecting against fraud. The State closes the registration books 30 days before an election to give officials an opportunity to prepare for the election. before the books close, anyone may register who claims that he will meet the durational residence requirement at the time of the next election. Although Tennessee argues that this 30-day period between registration and election does not give the State enough time to verify this claim of bona fide residence, we do not see the relevance of that position to this case. As long as the State permits registration up to 30 days before an election, a lengthy durational residence requirement does not increase the amount of time the State has in which to carry out an investigation into the sworn claim by the would-be voter that he is in fact a resident.
27
Even if durational residence requirements imposed, in practice, a preelection waiting period that gave voting officials three months or a year in which to confirm the bona fides of residence, Tennessee would not have demonstrated that these waiting periods were necessary. At the outset, the State is faced with the fact that it must defend two separate waiting periods of different lengths. It is impossible to see how both could be 'necessary' to fulfill the pertinent state objective. If the State itself has determined that a three-month period is enough time in which to confirm bona fide residence in the State and county, obviously a one-year period cannot also be justified as 'necessary' to achieve the same purpose.17 Beyond that, the job of detecting nonresidents from among persons who have registered is a relatively simple one. It hardly justifies prohibiting all newcomers from voting for even three months. To prevent dual voting, state voting officials simply have to cross-check lists of new registrants with their former jurisdictions. See Comment, Residence Requirements for Voting in Presidential Elections, 37 U.Chi.L.Rev. 359, 364 and n. 34, 374 (1970); cf. Shapiro v. Thompson, 394 U.S., at 637, 89 S.Ct., at 1333. Objective information tendered as relevant to the question of bona fide residence under Tennessee law—places of dwelling, occupation, car registration, driver's license, property owned, etc.18—is easy to doublecheck, especially in light of modern communications. Tennessee itself concedes that '(i)t might well be that these purpose can be achieved under requirements of shorter duration than that imposed by the State of Tennessee . . ..' Brief for Appellants 10. Fixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud—and a year, or three months, too much. This was the judgment of Congress in the context of presidential elections.19 And, on the basis of the statutory scheme before us, it is almost surely the judgment of the Tennessee lawmakers as well. As the court below concluded, the cutoff point for registration 30 days before an election.
28
'reflects the judgment of the Tennessee Legislature that thirty days is an adequate period in which Tennessee's election officials can effect whatever measures may be necessary, in each particular case confronting them, to insure purity of the ballot and prevent dual registration and dual voting.' 337 F.Supp., at 330.
29
It has been argued that durational residence requirements are permissible because a person who has satisfied the waiting-period requirements is conclusively presumed to be a bona fide resident. In other words, durational residence requirements are justified because they create an administratively useful conclusive presumption that recent arrivals are not residents and are therefore properly barred from the franchise.20 This presumption, so the argument runs, also prevents fraud, for few candidates will be able to induce migration for the purpose of voting if fraudulent voters are required to remain in the false locale for three months or a year in order to vote on election day.21
30
In Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, this Court considered and rejected a similar kind of argument in support of a similar kind of conclusive presumption. There, the State argued that it was difficult to tell whether persons moving to Texas while in the military service were in fact bona fide residents. Thus, the State said, the administrative convenience of avoiding difficult factual determinations justified a blanket exclusion of all servicemen stationed in Texas. The presumption created there was conclusive—"incapable of being overcome by proof of the most positive character." Id., at 96, 85 S.Ct., at 780, citing Heiner v. Donnan, 285 U.S. 312, 324, 52 S.Ct. 358, 360, 76 L.Ed. 772 (1932). The Court rejected this 'conclusive presumption' approach as violative of the Equal Protection Clause. While many servicemen in Texas were not bona fide residents, and therefore properly ineligible to vote, many servicemen clearly were bona fide residents. Since 'more precise tests' were available 'to winnow successfully from the ranks . . . those whose residence in the State is bona fide,' conclusive presumptions were impermissible in light of the individual interests affected. id., 380 U.S., at 95, 85 S.Ct., at 780. 'States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State.' Id., at 96, 85 S.Ct., at 780.
31
Carrington sufficiently disposes of this defense of durational residence requirements. The State's legitimate purpose is to determine whether certain persons in the community are bona fide residents. A durational residence requirement creates a classification that may, in a crude way, exclude nonresidents from that group. But it also excludes many residents. Given the State's legitimate purpose and the individual interests that are affected, the classification is all too imprecise. See supra, at 343. In general, it is not very difficult for Tennessee to determine on an individualized basis whether one recently arrived in the community is in fact a resident, although of course there will always be difficult cases. Tennessee has defined a test for bona fide residence, and appears prepared to apply it on an individualized basis in various legal contexts.22 That test could easily be applied to new arrivals. Furthermore, if it is unlikely that would-be fraudulent voters would remain in a false locale for the lengthy period imposed by durational residence requirements, it is just as unlikely that they would collect such objective indicia of bona fide residence as a dwelling, car registration, or driver's license. In spite of these things, the question of bona fide residence is settled for new arrivals by conclusive presumption, not by individualized inquiry. Cf. Carrington v. Rash, supra, 380 U.S., at 95—96, 85 S.Ct., at 779 780. Thus, it has always been undisputed that appellee Blumstein is himself a bona fide resident of Tennessee within the ordinary state definition of residence. But since Tennessee's presumption from failure to meet the durational residence requirements is conclusive, a showing of actual bona fide residence is irrelevant, even though such a showing would fully serve the State's purposes embodied in the presumption and would achieve those purposes with far less drastic impact on constitutionally protected interests.23 The Equal Protection Clause places a limit on government by classification, and that limit has been exceeded here. Cf. Shapiro v. Thompson, 394 U.S., at 636, 89 S.Ct., at 1332; Harman v. Forssenius, 380 U.S., at 542—543, 85 S.Ct., at 1186—1187; Carrington v. Rash, supra, 380 U.S., at 95—96, 85 S.Ct., at 779 780; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).
32
Our conclusion that the waiting period is not the least restrictive means necessary for preventing fraud is bolstered by the recognition that Tennessee has at its disposal a variety of criminal laws that are more than adequate to detect and deter whatever fraud may be feared.24 At least six separate sections of the Tennessee Code define offenses to deal with voter fraud. For example, Tenn. Code Ann. § 2—324 makes it a crime 'for any person to register or to have his name registered as a qualified voter . . . when he is not entitled to be so registered . . . or to procure or induce any other person to register or be registered . . . when such person is not legally qualified to be registered as such . . .'25 In addition to the various criminal penalties, Tennessee permits the bona fides of a voter to be challenged on election day. Tenn. Code Ann. § 2—1309 et seq. (1955 and Supp.1970). Where a State has available such remedial action to supplement its voter registration system, it can hardly argue that broadly imposed political disabilities such as durational residence requirements are needed to deal with the evils of fraud. Now that the Federal Voting Rights Act abolishes those residence requirements as a precondition for voting in presidential and vice-presidential elections, 42 U.S.C. § 1973aa—1, it is clear that the States will have to resort to other devices available to prevent nonresidents from voting. Especially since every State must live with this new federal statute, it is impossible to believe that durational residence requirements are necessary to meet the State's goal of stopping fraud.26
B
33
The argument that durational residence requirements further the goal of having 'knowledgeable voters' appears to involve three separate claims. The first is that such requirements 'afford some surety that the voter has, in fact, become a member of the community.' But here the State appears to confuse a bona fide residence requirement with a durational residence requirement. As already noted, a State does have an interest in limiting the franchise to bona fide members of the community. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residence is questioned, but because they are recent rather than longtime residents.
34
The second branch of the 'knowledgeable voters' justification is that durational residence requirements assure that the voter 'has a common interest in all matters pertaining to (the community's) government . . ..' By this, presumably, the State means that it may require a period of residence sufficiently lengthy to impress upon its voters the local viewpoint. This is precisely the sort of argument this Court has repeatedly rejected. In Carrington v. Rash, for example, the State argued that military men newly moved into Texas might not have local interests sufficiently in mind, and therefore could be excluded from voting in state elections. This Court replied:
35
'But if they are in fact residents, . . . they, as all other qualified residents, have a right to an equal opportunity for political representation. . . . 'Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.' 380 U.S., at 94, 85 S.Ct., at 779.
36
See 42 U.S.C. § 1973aa—1(a)(4).
37
Similarly here, Tennessee's hopes for voters with a 'common interest in all matters pertaining to (the community's) government' is impermissible.27 To paraphrase what we said elsewhere, 'All too often, lack of a ('common interest') might mean no more than a different interest.' Evans v. Cornman, 398 U.S., at 423, 90 S.Ct., at 1755. '(D)ifferences of opinion' may not be the basis for excluding any group or person from the franchise. Cipriano v. City of Houma, 395 U.S., at 705—706, 89 S.Ct., at 1900—1901. '(t)he fact that newly arrived (Tennesseeans) may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral vote of their new home State.' Hall v. Beals, 396 U.S. 45, 53—54, 90 S.Ct. 200, 204, 24 L.Ed. 24 (1969) (dissenting opinion).28
38
Finally, the State urges that a longtime resident is 'more likely to exercise his right (to vote) more intelligently.' To the extent that this is different from the previous argument, the State is apparently asserting an interest in limiting the franchise to voters who are knowledgeable about the issues. In this case, Tennessee argues that people who have been in the State less than a year and the county less than three months are likely to be unaware of the issues involved in the congressional, state, and local elections, and therefore can be barred from the franchise. We note that the criterion of 'intelligent' voting is an elusive one, and susceptible of abuse. But without deciding as a general matter the extent to which a State can bar less knowledgeable or intelligent citizens from the franchise, cf. Evans v. Cornman, 398 U.S., at 422, 90 S.Ct., at 1754; Kramer v. Union Free School District No. 15, 395 U.S., at 632, 89 S.Ct., at 1892; Cipriano v. City of Houma, 395 U.S., at 705, 89 S.Ct., at 1900,29 we conclude that durational residence requirements cannot be justified on this basis.
39
In Kramer v. Union Free School District No. 15, supra, we held that the Equal Protection Clause prohibited New York State from limiting the vote in school-district elections to parents of school children and to property owners. The State claimed that since nonparents would be 'less informed' about school affairs than parents, id., at 631, 89 S.Ct., at 1891, the State could properly exclude the class of nonparents in order to limit the franchise to the more 'interested' group of residents. We rejected that position, concluding that a 'close scrutiny of (the classification) demonstrates that (it does) not accomplish this purpose with sufficient precision . . ..' Id., at 632, 89 S.Ct., at 1892. That scrutiny revealed that the classification excluding nonparents from the franchise kept many persons from voting who were as substantially interested as those allowed to vote; given this, the classification was insufficiently 'tailored' to achieve the articulated state goal. Ibid. See also Cipriano v. City of Houma, supra, 395 U.S., at 706, 89 S.Ct., at 1900.
40
Similarly, the durational residence requirements in this case founder because of their crudeness as a device for achieving the articulated state goal of assuring the knowledgeable exercise of the franchise. The classifications created by durational residence requirments obviously permit any longtime resident to vote regardless of his knowledge of the issues—and obviously many longtime residents do not have any. On the other hand, the classifications bar from the franchise many other, admittedly new, residents who have become at least minimally, and often fully, informed about the issues. Indeed, recent migrants who take the time to register and vote shortly after moving are likely to be those citizens, such as appellee, who make it a point to be informed and knowledgeable about the issues. Given modern communications, and given the clear indication that compaign spending and voter education occur largely during the month before an election,30 the State cannot seriously maintain that it is 'necessary' to reside for a year in the State and three months in the county in order to be knowledgeable about congressional, state, or even purely local elections. There is simply nothing in the record to support the conclusive presumption that residents who have lived in the State for less than a year and their county for less than three months are uninformed about elections. Cf. Shapiro v. Thompson, 394 U.S., at 631, 89 S.Ct., at 1329. These durational residence requirements crudely exclude large numbers of fully qualified people. Especially since Tennessee creates a waiting period by closing registration books 30 days before an election, there can be no basis for arguing that any durational residence requirement is also needed to assure knowledgeability.
41
It is pertinent to note that Tennessee has never made an attempt to further its alleged interest in an informed electorate in a universally applicable way. Knowledge or competence has never been a criterion for participation in Tennessee's electoral process for longtime residents. Indeed, the State specifically provides for voting by various type of absentee persons.31 These provisions permit many longtime residents who leave the county or State to participate in a constituency in which they have only the slighest political interest, and from whose political debates they are likely to be cut off. That the State specifically permits such voting is not consistent with its claimed compelling interest in intelligent, informed use of the ballot. If the State seeks to assure intelligent use of the ballot, it may not try to serve this interest only with respect to new arrivals. Cf. Shapiro v. Thompson, supra, at 637—638, 89 S.Ct., at 1333.
42
It may well be true that new residents as a group know less about state and local issues than older residents; and it is surely true that durational residence requirements will exclude some people from voting who are totally uninformed about election matters. But as devices to limit the franchise to knowledgeable residents, the conclusive presumptions of durational residence requirements are much too crude. They exclude too many people who should not, and need not, be excluded. They represent a requirement of knowledge unfairly imposed on only some citizens. We are aware that classifications are always imprecise. By requiring classifications to be tailored to their purpose, we do not secretaly require the impossible. Here, there is simply too attenuated a relationship between the state interest in an informed electorate and the fixed requirement that voters must have been residents in the State for a year and the county for three months. Given the exacting standard of precision we require of statutes affecting constitutional rights, we cannot say that durational residence requirements are necessary to further a compelling state interest.
III
43
Concluding that Tennessee has not offered an adequate justification for its durational residence laws, we affirm the judgment of the court below.
44
Affirmed.
45
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
46
Mr. Justice BLACKMUN, concurring in the result.
47
Professor Blumstein obviously could hardly wait to register to vote in his new home State of Tennessee. He arrived in Nashville on June 12, 1970. He moved into his apartment on June 19. He presented himself to the registrar on July 1. He instituted his lawsuit on July 17. Thus, his litigation was begun 35 days after his arrival on Tennessee soil, and less than 30 days after he moved into his apartment. But a primary was coming up on August 6. Usually, such zeal to exercise the franchise is commendable. The professor, however, encountered and, I assume, knowingly so—the barrier of the Tennessee durational residence requirement and, because he did, he instituted his test suit.
48
I have little quarrel with much of the content of the Court's long opinion. I concur in the result, with these few added comments, because I do not wish to be described on a later day as having taken a position broader than I think necessary for the disposition of this case.
49
1. In Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904), Mr. Justice Peckham, in speaking for a unanimous Court that included the first Mr. Justice Harlan and Mr. Justice Holmes, said:
50
'The simple matter to be herein determined is whether, with reference to the exercise of the privilege of voting in Maryland, the legislature of that state had the legal right to provide that a person coming into the state to reside should make the declaration of intent a year before he should have the right to be registered as a voter of the state.
51
'. . . The right of a state to legislate upon the subject of the elective franchise as to it may seem good, subject to the conditions already stated, being, as we believe, unassailable, we think it plain that the statute in question violates no right protected by the Federal Constitution.
52
'The reasons which may have impelled the state legislature to enact the statute in question were matters entirely for its consideration, and this court has no concern with them.' 193 U.S., at 632, 633—634, 24 S.Ct., at 575.
53
I cannot so blithely explain Pope v. Williams away, as does the Court, ante, at 1000, n. 7, by asserting that if that opinion is '(c)arefully read,' one sees that the case was concerned simply with a requirement that the new arrival declare his intention. The requirement was that he make the declaration a year before he registered to vote; time as well as intent was involved. For me, therefore, the Court today really overrules the holding in Pope v. Williams and does not restrict itself, as footnote 7 says, to rejecting what it says are mere dicta.
54
2. The compelling-state-interest test, as applied to a State's denial of the vote, seems to have come into full flower with Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969). The only supporting authority cited is in the 'See' context to Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965). But as I read Carrington, the standard there employed was that the voting requirements be reasonable. Indeed, in that opinion Mr. Justice Stewart observed, at 91, 85 S.Ct., at 777, that the State has 'unquestioned power to impose reasonable residence restrictions on the availability of the ballot.' A like approach was taken in McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969), where the Court referred to the necessity of 'some rational relationship to a legitimate state end' and to a statute's being set aside 'only if based on reasons totally unrelated to the pursuit of that goal.' I mention this only to emphasize that Kramer appears to have elevated the standard. And this was only three years ago. Whether Carrington and McDonald are now frowned upon, at least in part, the Court does not say. Cf. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92.
55
3. Clearly, for me, the State does have a profound interest in the purity of the ballot box and in an informed electorate and is entitled to take appropriate steps to assure those ends. Except where federal intervention properly prescribes otherwise, see Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), I see no constitutional imperative that voting requirements be the same in each State, or even that a State's time requirement relate to the 30-day measure imposed by Congress by 42 U.S.C. § 1973aa—1(d) for presidential elections. I assume that the Court by its decision today does not depart from either of these propositions. I cannot be sure of this, however, for much of the opinion seems to be couched in absolute terms.
56
4. The Tennessee plan, based both in statute and in the State's constitution, is not ideal. I am content that the one-year and three-month requirements be struck down for want of something more closely related to the State's interest. It is, of course, a matter of line drawing, as the Court concedes, ante, at 348. But if 30 days pass constitutional muster, what of 35 or 45 or 75? The resolution of these longer measures, less than those today struck down, the Court leaves, I suspect, to the future.
57
Mr. Chief Justice BURGER, dissenting.
58
The holding of the Court in Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904), is as valid today as it was at the turn of the century. It is no more a denial of equal protection for a State to require newcomers to be exposed to state and local problems for a reasonable period such as one year before voting, than it is to require children to wait 18 years before voting. Cf. Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). In both cases some informed and responsible persons are denied the vote, while others less informed and less responsible are permitted to vote. Some lines must be drawn. To challenge such lines by the 'compelling state interest' standard is to condemn them all. So far as I am aware, no state law has ever satisfied this seemingly insurmountable standard, and I doubt one ever will, for it demands nothing less than perfection.
59
The existence of a constitutional 'right to travel' does not persuade me to the contrary. If the imposition of a durational residency requirement for voting abridges the right to travel, surely the imposition of an age qualification penalizes the young for being young, a status I assume the Constitution also protects.
1
Involved here are provisions of the Tennessee Constitution, as well as portions of the Tennessee Code. Article IV, § 1, of the Tennessee Constitution, provides in pertinent part:
'Right to vote—Election precincts . . .—Every person of the age of twenty-one years, being a citizen of the United States, and a resident of this State for twelve months, and of the county wherein such person may offer to vote for three months, next preceding the day of election, shall be entitled to vote for electors for President and Vice-President of the United States, members of the General Assembly and other civil officers for the county or district in which such person resides; and there shall be no other qualification attached to the right of suffrage.
'The General Assembly shall have power to enact laws requiring voters to vote in the election precincts in which they may reside, and laws to secure the freedom of elections and the purity of the ballot box.'
Section 2—201. Tenn.Code Ann. (Supp.1970) provides:
'Qualifications of voters.—Every person of the age of twenty-one (21) years, being a citizen of the United States and a resident of this state for twelve (12) months, and of the county wherein he may offer his vote for three (3) months next preceding the day of election, shall be entitled to vote for members of the general assembly and other civil officers for the county or district in which he may reside.'
Section 2—304, Tenn.Code Ann. (Supp.1970) provides:
'Persons entitled to permanently register—Required time for registration to be in effect prior to election.—All persons qualified to vote under existing laws at the date of application for registration, including those who will arrive at the legal voting age by the date of the next succeeding primary or general election established by statute following the date of their application to register (those who become of legal voting age before the date of a general election shall be entitled to register, and vote in a legal primary election selecting nominees for such general electio(), who will have lived in the state for twelve (12) months and in the county for which they applied for registration for three (3) months by the date of the next succeeding election shall be entitled to permanently register as voters under the provisions of this chapter provided, however, that registration or re-registration shall not be permitted within thirty (30) days of any primary or general election provided for by statute. If a registered voter in any county shall have changed his residence to another county, or to another ward, precinct, or district within the same county, or changed his same by marriage or otherwise, within ninety (90) days prior to the date of an election, he shall be entitled to vote in his former ward, precinct or district of registration.'
2
On July 30, the District Court refused to grant a preliminary injunction permitting Blumstein and members of the class he represented to vote in the August 6 election; the court noted that to do so would be 'so obviously disruptive as to constitute an example of judicial improvidence.' The District Court also denied a motion that Blumstein be allowed to cast a sealed provisional ballot for the election.
At the time the opinion below was filed, the next election was to be held in November 1970, at which time Blumstein would have met the three-month part of Tennessee's durational residency requirements. The District Court properly rejected the State's position that the alleged invalidity of the three-month requirement had been rendered moot, and the State does not pursue any mootness argument here. Although appellee now can vote, the problem to voters posed by the Tennessee residence requirements is "capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). In this case, unlike Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969), the laws in question remain on the books, and Blumstein has standing to challenge them as a member of the class of people affected by the presently written statute.
3
The important question in this case has divided the lower courts. Durational residence requirements ranging from three months to one year have been struck down in Burg v. Canniffe, 315 F.Supp. 380 (Mass.1970); Affeldt v. Whitcomb, 319 F.Supp. 69 (ND Ind.1970); Lester v. Board of Elections for District of Columbia, 319 F.Supp. 505 (DC 1970); Bufford v. Holton, 319 F.Supp. 843 (ED Va.1970); Hadnott v. Amos, 320 F.Supp. 107 (MD Ala.1970); Kohn v. Davis, 320 F.Supp. 246 (Vt.1970); Keppel v. Donovan, 326 F.Supp. 15 (Minn.1970); Andrews v. Cody, 327 F.Supp. 793 (MDNC 1971), as well as this case. Other district courts have upheld durational residence requirements of a similar variety. Howe v. Brown, 319 F.Supp. 862 (ND Ohio 1970); Ferguson v. Williams, 330 F.Supp. 1012 (ND Miss.1971); Cocanower v. Marston, 318 F.Supp. 402 (Ariz.1970); Fitzpatrick v. Board of Election Commissioners (ND Ill.1970); Piliavin v. Hoel, 320 F.Supp. 66 (WD Wis.1970); Epps v. Logan (No. 9137, WD Wash.1970); Fontham v. McKeithen, 336 F.Supp. 153 (ED La.1971). In Sirak v. Brown (Civ. 70—164, SD Ohio 1970), the District Judge refused to convene a three-judge court and summarily dismissed the complaint.
4
Noting the lack of dispute on this point, the court below specifically found that Blumstein had no intention of leaving Nashville and was a bona fide resident of Tennessee. 337 F.Supp. 323, 324.
5
While it would be difficult to determine precisely how many would-be voters throughout the country cannot vote because of durational residence requirements, but see Cocanower & Rich, Residency Requirements for Voting, 12 Ariz.L.Rev. 477, 478 and n. 8 (1970), it is worth noting that during the period 1947—1970 an average of approximately 3.3% of the total national population moved interstate each year. (An additional 3.2% of the population moved from one county to another intrastate each year.) U.S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Population Characteristics Series P—20, No. 210, Jan. 15, 1971, Table 1, pp. 7—8.
6
Compare Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), with Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); compare McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), and Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), with Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957), and Allied Stores of Ohio v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959).
7
Appellants also rely on Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). Carefully read, that case simply holds that federal constitutional rights are not violated by a state provision requiring a person who enters the State to make a 'declaration of his intention to become a citizen before he can have the right to be registered as a voter and to vote in the state.' Id., at 634, 24 S.Ct., at 576. In other words, the case simply stands for the proposition that a State may require voters to be bona fide residents. See, infra, at 343—344. To the extent that dicta in that opinion are inconsistent with the test we apply or the result we reach today, those dicta are rejected.
8
We note that in the Voting Rights Act of 1965, as amended, Congress specifically found that a durational residence requirement 'denies or abridges the inherent constitutional right of citizens to enjoy their free movement across State lines . . ..' 84 Stat. 316, 42 U.S.C. § 1073aa—1(a)(2).
9
For example, in Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868), the tax imposed on persons leaving the State by commercial carrier was only $1, certainly a minimal deterrent to travel. But in declaring the tax unconstitutional, the Court reasoned that 'if the State can tax a railroad passenger one dollar, it can tax him one thousand dollars,' id., at 46. In Ward v. Maryland, 12 Wall. 418, 20 L.Ed. 449 (1871), the tax on nonresident traders was more substantial, but the Court focused on its discriminatory aspects, without anywhere considering the law's effect, if any, on trade or tradesmen's choice of residence. Cf. Chalker v. Birmingham & N.W.R. Co., 249 U.S. 522, 527, 39 S.Ct. 366, 367, 63 L.Ed. 748 (1919); but see Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900). In Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 79—80, 40 S.Ct. 228, 231—232, 64 L.Ed.2d 460 (1920), the Court held that New York could not deny nonresidents certain small personal exemptions from the state income tax allowed residents. The amounts were certainly insufficient to influence any employee's choice of residence. Compare Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), with Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (1952).
10
Separately concurring, Mr. Justice Stewart concluded that quite apart from any purpose to deter, 'a law that so clearly impinges upon the constitutional right of interstate travel must be shown to reflect a compelling governmental interest.' Id., 394 U.S., at 643—644, 89 S.Ct., at 1336 (first emphasis added). See also Graham v. Richardson, 403 U.S., at 375, 91 S.Ct., at 1854.
11
In Harman, the Court held that a Virginia law which allowed federal voters to qualify either by paying a poll tax or by filing a certificate of residence six months before the election 'handicap(ped) exercise' of the right to participate in federal elections free of poll taxes, guaranteed by the Twenty-fourth Amendment. Id., 380 U.S., at 541, 85 S.Ct., at 1185.
12
Where, for example, an interstate migrant loses his driver's license because the new State has a higher age requirement, a different constitutional question is presented. For in such a case, the new State's age requirement is not a penalty imposed solely because the newcomer is a new resident; instead, all residents, old and new, must be of a prescribed age to drive. See Shapiro v. Thompson, 394 U.S. 618, 638 n. 21, 89 S.Ct. 1322, 1333, 22 L.Ed. 600 (1969).
13
As note infra, at 343—344, States may show an overriding interest in imposing an appropriate bona fide residence requirement on would-be voters. One who travels out of a State may no longer be a bona fide resident, and may not be allowed to vote in the old State. Similarly, one who travels to a new State may, in some cases, not establish bona fide residence and may be ineligible to vote in the new State. Nothing said today is meant to cast doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements.
14
See n. 7, supra.
15
See Fontham v. McKeithen, 336 F.Supp., at 167—168 (Wisdom, J., dissenting); Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904); and n. 7, supra.
16
See, e.g., Cocanower & Rich, 12 Ariz.L.Rev., at 499; MacLeod & Wilberding, State Voting Residency Requirements and Civil Rights, 38 Geo.Wash.L.Rev. 93, 113 (1969).
17
Obviously, it could not be argued that the three-month waiting period is necessary to confirm residence in the county, and the one-year period necessary to confirm residence in the State. Quite apart from the total implausibility of any suggestion that one task should take four times as long as the other, it is sufficient to note that if a person is found to be a bona fide resident of a county within the State, he is by definition a bona fide resident of the State as well.
18
See, e.g., Brown v. Hows, 163 Tenn. 178, 42 S.W.2d 210 (1930); Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173 (1905). See generally Tennessee Law Revision Commission, Title 2—Election Laws, Tentative Draft of October 1971, § 222 and Comment. See n. 22, infra.
19
In the Voting Rights Act Amendments of 1970, Congress abolished durational residence requirements as a precondition to voting in presidential and vice-presidential elections, and prohibited the States from cutting off registration more than 30 days prior to those elections. These limits on the waiting period a State may impose prior to an election were made 'with full cognizance of the possibility of fraud and administrative difficulty.' Oregon v. Mitchell, 400 U.S. 112, 238, 91 S.Ct. 260, 322, 27 L.Ed.2d 272 (separate opinion of Brennan, White, and Marshall, JJ.). With that awareness, Congress concluded that a waiting-period requirement beyond 30 days 'does not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections.' 42 U.S.C. § 1973aa—1(a)(6). And in sustaining § 202 of the Voting Rights Act of 1965, we found 'no explanation why the 30-day period between the closing of new registrations and the date of election would not provide, in light of modern communications, adequate time to insure against . . . frauds.' Oregon v. Mitchell, supra, at 239, 91 S.Ct., at 322 (separate opinion of Brennan, White, and Marshall, JJ.). There is no reason to think that what Congress thought was unnecessary to prevent fraud in presidential elections shoud not also be unnecessary in the context of other elections. See, infra, at 354.
20
As a technical matter, it makes no sense to say that one who has been a resident for a fixed duration is presumed to be a resident. In order to meet the durational residence requirement, one must, by definition, first establish that he is a resident. A durational residence requirement is not simply a waiting period after arrival in the State; it is a waiting period after residence is established. Thus it is conceptually impossible to say that a durational residence requirement is an administratively useful device to determine residence. The State's argument must be that residence would be presumed from simple presence in the State or county for the fixed waiting period.
21
It should be clear that this argument assumes that the State will reliably determine whether the sworn claims of duration in the jurisdiction are themselves accurate. We have already noted that this is unlikely. See supra, at 346. Another recurrent problem for the State's position is the existence of differential durational residence requirements. If the State presumes residence in the county after three months in the county, there is no rational explanation for requiring a full 12 months' presence in the State to presume residence in the State.
22
Tennessee's basic test for bona fide residence is (1) an intention to stay indefinitely in a place (in other words, 'without a present intention of removing therefrom,' Brown v. Hows, 163 Tenn., at 182, 42 S.W.2d at 211), joined with (2) some objective indication consistent with that intent, see n. 18, supra. This basic test has been applied in divorce cases, see, e.g., Sturdavant v. Sturdavant, 28 Tenn.App. 273, 189 S.W.2d 410 (1944); Brown v. Brown, 150 Tenn. 89, 261 S.W. 959 (1924); Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173 (1905); in tax cases, see, e.g., Denny v. Sumner County, 134 Tenn. 468, 184 S.W. 14 (1916); in estate cases, see, e.g., Caldwell v. Shelton, 32 Tenn.App. 45, 221 S.W.2d 815 (1948); Hascall v. Hafford, 107 Tenn. 355, 65 S.W. 423 (1901); and in voting cases, see, e.g., Brown v. Hows, supra; Tennessee Law Revision Commission, Title 2—Election Laws, supra, n. 18.
23
Indeed, in Blumstein's case, the County Election Commission explicitly rejected his offer to treat the waiting-period requirement as 'a waivable guide to commission action, but rebuttable upon a proper showing of competence to vote intelligently in the primary and general election.' Complaint at App. 8. Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S., at 544—545, 62 S.Ct., at 1114—1115 (Stone, C.J., concurring).
24
See Harman v. Forssenius, 380 U.S., at 543, 85 S.Ct., at 1186 (filing of residence certificate six months before election in lieu of poll tax unnecessary to insure that the election is limited to bona fide residents in light of 'numerous devices to enforce valid residence requirements'); cf. Schneider v. State of New Jersey, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155 (1939) (fear of fraudulent solicitations cannot justify permit requests since '(f)rauds may be denounced as offenses and punished by law').
25
Tenn.Code Ann. § 2—1614 (Supp.1970) makes it a felony for any person who 'is not legally entitled to vote at the time and place where he votes or attempts to vote . . ., to vote or offer to do so,' or to aid and abet such illegality. Tenn.Code Ann. § 2 2207 (1955) makes it a misdemeanor 'for any person knowingly to vote in any political convention or any election held under the Constitution or laws of this state, not being legally qualified to vote . . .,' and Tenn.Code Ann. § 2—2208 (1955) makes it a misdemeanor to aid in such an offense. Tenn.Code Ann. § 2—202 (Supp.1970) makes it an offense to vote outside the ward or precinct where one resides and is registered. Finally, Tenn.Code Ann. § 2—2209 (1965) makes it unlawful to 'bring or aid in bringing any fraudulent voters into this state for the purpose of practising a fraud upon or in any primary or final election . . .' See, e.g., State v. Weaver, 122 Tenn. 198, 122 S.W. 465 (1909).
26
We note that in the period since the decision below, several elections have been held in Tennessee. We have been presented with no specific evidence of increased colonization or other fraud.
27
It has been noted elsewhere, and with specific reference to Tennessee law, that '(t)he historical purpose of (durational) residency requirements seems to have been to deny the vote to undesirables, immigrants and outsiders with different ideas.' Cocanower & Rich, 12 Ariz.L.Rev., at 484 and nn. 44, 45, and 46. We do not rely on this alleged original purpose of durational residence requirements in striking them down today.
28
Tennessee may be revealing this impermissible purpose when it observes:
'The fact that the voting privilege has been extended to 18 year old persons . . . increases, rather than diminishes, the need for durational residency requirements. . . . It is so generally known, as to be judicially accepted, that there are many political subdivisions in this state, and other states, wherein there are colleges, universities and military installations with sufficient student body or military personnel over eighteen years of age, as would completely dominate elections in the district, county or municipality so located. This would offer the maximum of opportunity for fraud through colonization, and permit domination by those not knowledgeable or having a common interest in matters of government, as opposed to the interest and the knowledge of permanent members of the community. Upon completion of their schooling, or service tour, they move on, leaving the community bound to a course of political expediency not of its choice and, in fact, one over which its more permanent citizens, who will continue to be affected, had no control.' Brief for Appellants 15 16.
29
In the 1970 Voting Rights Act, which added § 201, 42 U.S.C. § 1973aa, Congress provided that 'no citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election . . ..' The term 'test or device' was defined to include, in part, 'any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject . . ..' By prohibiting various 'test(s)' and 'device(s)' that would clearly assure knowledgeability on the part of voters in local elections, Congress declared federal policy that people should be allowed to vote even if they were not well informed about the issues. We upheld § 201 in Oregon v. Mitchell, supra.
30
H. Alexander, Financing the 1968 Election 106—113 (1971); Affeldt v. Whitcomb, 319 F.Supp, at 77; Cocanower & Rich, 12 Ariz.L.Rev., at 498.
31
The general provisions for absentee voting apply in part to '(a)ny registered voter otherwise qualified to vote in any election to be held in this state or any county, municipality, or other political subdivision thereof, who by reason of business, occupation, health, education, or travel, is required to be absent from the county of his fixed residence on the day of the election . . ..' Tenn. Code Ann. § 2—1602 (Supp.1970). See generally Teen.Code Ann. § 2—1601 et seq. (Supp.1970). An alternative method of absentee voting for armed forces members and federal personnel is detailed in Tenn. Code Ann. § 2—1701 et seq. (Supp.1970). Both those provisions allow persons who are still technically 'residents' of the State or county to vote even though they are not physically present, and even though they are likely to be uninformed about the issues. In addition, Tennessee has an unusual provision that permits persons to vote in their prior residence for a period after residence has been changed. This section provides, in pertinent part: 'If a registered voter in any county shall have changed his residence to another county . . . within ninety (90) days prior to the date of an election, he shall be entitled to vote in his former ward, precinct or district of registration.' Tenn.Code Ann. § 2—304 (Supp.1970). See also Tenn.Code Ann. § 2—204 (1955).
| 12
|
405 U.S. 427
92 S.Ct. 1056
31 L.Ed.2d 340
Donald Felix SCHNEBLE, Petitioner,v.State of FLORIDA.
No. 68—5009.
Argued Jan. 17 and 18, 1972.
Decided March 21, 1972.
Syllabus
Petitioner was found guilty of murder following a jury trial in which police officers testified as to the detailed confession that he had given to them and in which one officer related a statement made to him by petitioner's codefendant, who did not testify, which tended to undermine petitioner's initial (but later abandoned) version and to corroborate certain details of petitioner's confession. The Supreme Court of Florida affirmed. Petitioner claims that the admission into evidence of his codefendant's statement deprived him of his right to confrontation in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Held: Any violation of Bruton that might have occurred was harmless beyond a reasonable doubt in view of the overwhelming evidence of petitioner's guilt as manifested by his confession, which completely comported with the objective evidence, and the comparatively insignificant effect of the codefendant's admission. Pp. 429—432.
215 So.2d 611, affirmed.
Clyde B. Wells, DeFuniak Springs, Fla., for petitioner.
George R. Georgieff, Washington, D.C., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner Schneble and his codefendant Snell were tried jointly in a Florida state court for murder. At the trial neither defendant took the stand, but police witnesses testified to certain admissions made by each defendant implicating both of them in the murder. Both defendants were convicted, and the Florida Supreme Court affirmed. This Court vacated and remanded the case for further consideration in the light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Schneble v. Florida, 392 U.S. 298, 88 S.Ct. 2067, 20 L.Ed.2d 1116 (1968). Upon remand, the Supreme Court of Florida reversed Snell's conviction, finding that it had been obtained in violation of Bruton, but affirmed petitioner's conviction. We again granted certiorari, limited* to the question of whether petitioner's conviction had been obtained in violation of the Bruton rule. In the circumstances of this case, we find that any violation of Bruton that may have occurred at petitioner's trial was harmless beyond a reasonable doubt. We therefore affirm.
2
The State's case showed that a threesome consisting of petitioner, Snell, and the victim, Mrs. Maxine Collier, left New Orleans in a borrowed automobile en route to Florida. While they were traveling across the Florida Panhandle, Mrs. Collier was murdered, and her body placed in the trunk of the automobile. The body was then transported in the car to the environs of Tampa, where it was left behind some bushes in a trash dump. Petitioner and Snell then continued their odyssey southward to the Florida Keys, and thence north along the east coast of Florida. They were apprehended for unrelated offenses in West Palm Beach, but upon discovering blood in the trunk of the car police officers there commenced the investigation that ultimately led to the charging of petitioner and Snell with the murder of Mrs. Collier.
3
The investigating officers testified at the trial that petitioner initially, while admitting knowledge of the murder, claimed that Snell had shot Mrs. Collier while petitioner was away from the car taking a walk. Petitioner later conceded, however, that his earlier story was false. He admitted to the police that it was he who had strangled Mrs. Collier, and that Snell had finally shot her in the head as she lay dying. The state court held these admissions of petitioner to be voluntary and admissible. Since our grant of certiorari here was limited to the Bruton issue, our treatment of that question assumes that these admissions were properly before the trial court.
4
One of the investigating officers also related at trial a statement made to him by Snell. Petitioner challenges this testimony as violative of Burton, since Snell did not take the stand and thus was not available for cross-examination. According to the testimony of this officer, Snell said petitioner had occupied the rear seat of the car and had never left Snell alone in the car with Mrs. Collier during the trip. While Snell's statement fell far short of the type of comprehensive and detailed confession made by petitioner, it did tend to undermine petitioner's initial (but later abandoned) claim that he had left Snell alone during the time at which the murder occurred. Snell's statement also placed petitioner in the position in the car from which the victim could more easily have been strangled. Thus petitioner claims, the introduction of Snell's out-of-court statement, not subject to effective cross-examination, deprived petitioner of his right of confrontation in violation of Bruton.
5
The Court held in Burton that the admission of a confession of a codefendant who did not take the stand deprived the defendant of his rights under the Sixth Amendment Confrontation Clause, when that confession implicated the defendant. Even when the jury is instructed to consider the confession only against the declarant, the Court in Bruton determined that the danger of misuse of the confession by the jury was too great to be constitutionally permissible. Bruton was held to be retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), and thus applies to the instant case even though it was tried more than two years prior to Bruton.
6
The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.
7
In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the defendant was tried for murder jointly with three others. As in the instant case, he admitted being at the scene of the crime, but denied complicity. One of his codefendants, who confessed and implicated him, took the stand and was subject to cross-examination. The other two codefendants, whose statements corroborated defendant's presence at the scene of the crime, did not take the stand. Noting the overwhelming evidence of Harrington's guilt, and the relatively in prejudicial impact of these codefendants' statements, the Court held that any violation of Bruton that had occurred was harmless error.
8
In the instant case, petitioner's confession was minutely detailed and completely consistent with the objective evidence. He informed police of the precise location at which they ultimately located the body, and guided them to this out-of-the-way spot. Although petitioner initially tried to put the sole blame on Snell, this version of the facts did not satisfactorily explain certain deep rope burns on petitioner's hands. When confronted with the fact of the rope burns, petitioner admitted that he and Snell had plotted to kill Mrs. Collier in order to steal her money and the automobile.
9
Petitioner confessed that he had strangled Mrs. Collier with a plastic cord, and recounted the commission of the crime in minute and grisly detail culminating in Snell's shooting the victim in the head because she still showed signs of life after the strangulation. These details of petitioner's later account of the offense were internally consistent, were corroborated by other objective evidence, and were not contradicted by any other evidence in the case. They were consistently reiterated by petitioner on several occasions after his first exposition of them.
10
Not only is the independent evidence of guilt here overwhelming, as in Harrington, but the allegedly inadmissible statements of Snell at most tended to corroborate certain details of petitioner's comprehensive confession. True, under the judge's charge, the jury might have found the confession involuntary and therefore inadmissible. But this argument proves too much; without Schneble's confession and the resulting discovery of the body, the State's case against Schneble was virtually non-existent. The remaining evidence in the case—the disappearance of Mrs. Collier sometime during the trip, and Snell's statement that Schneble sat in the back seat of the car during the trip and never left Snell alone with Mrs. Collier—could not by itself convict Schneble of this or any other crime. Charged as they were by the judge that they must be 'satisfied beyond a reasonable doubt' and 'to a moral certainty' of Schneble's guilt before they could convict him, the jurors could on no rational hypothesis have found Schneble guilty without reliance on his confession. Judicious application of the harmless-error rule does not require that we indulge assumptions of irrational jury behavior when a perfectly rational explanation for the jury's verdict, completely consistent with the judge's instructions, stares us in the face. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 504—505, 77 S.Ct. 443, 447, 1 L.Ed.2d 493 (1957).
11
Having concluded that petitioner's confession was considered by the jury, we must determine on the basis of 'our own reading of the record and on what seems to us to have been the probable impact . . . on the minds of an average jury,' Harrington v. California, supra, 395 U.S., at 254, 89 S.Ct., at 1728, whether Snell's admissions were sufficiently prejudicial to petitioner as to require reversal. In Bruton, the Court pointed out that '(a) defendant is entitled to a fair trial but not a perfect one.' 391 U.S., at 135, 88 S.Ct., at 1627, quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In this case, we conclude that the 'minds of an average jury" would not have found the State's case significantly less persuasive had the testimony as to Snell's admission been excluded. The admission into evidence of these statements, therefore, was at most harmless error.
12
Affirmed.
13
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
14
This is a capital case in which the petitioner was convicted of murder. When the case was last before us, we vacated the conviction and remanded for further consideration in light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See Schneble v. Florida, 392 U.S. 298, 88 S.Ct. 2067, 20 L.Ed.2d 1116 (1968). On remand, the Supreme Court of Florida reaffirmed the conviction, holding that it was not 'inconsistent with Bruton.' While Bruton itself received an extensive factual analysis by the State Supreme Court, little attention was paid to the facts of the instant case and no reasons were proffered in support of the holding that Bruton was not violated. In today's opinion the Court rejects the Florida Supreme Court's conclusion that this case can be squared with Bruton and concludes that Bruton was violated when the statement of a nontestifying codefendant implicating petitioner in the crime charged was introduced at trial. Yet, the conviction is permitted to stand because the Bruton violation is viewed as 'harmless error' within the meaning of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). I dissent.
15
Determining whether or not a constitutional infirmity at trial is harmless error is ordinarily a difficult task. This case is easier than most, because it is impossible to read the record and to conclude that the evidence so 'overwhelmingly' establishes petitioner's guilt that the admission of the codefendant's statement made no difference to the outcome.
16
The Court relies on Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), to support its conclusion, but that case is inapposite. In Harrington, the Court found harmless error where statements of two nontestifying codefendants were introduced at trial to demonstrate Harrington's presence at the scene of the crime. That decision was limited to a factual setting in which the defendant admits being at the scene, and the improperly admitted statements of the codefendants are merely cumulative evidence. I most urgently protest the extension of that case to these facts.
17
It is true that prior to trial petitioner confessed to murdering the victim. But, it is also true that when he was first arrested, petitioner denied his guilt and placed the full blame on his codefendant. He also denied being present when the murder was committed. Only after he was subjected to a series of bizarre acts by the police designed to frighten him into making incriminating statements did petitioner 'confess.' The full spectrum of events leading up to the confession is set out in detail in the first opinion of the Supreme Court of Florida, 201 So.2d 881, 884—885 (1967).
18
Petitioner moved to suppress the statements that he made to the police on the ground that they were the direct result of police coercion. Recognizing that the police acted improperly in attempting to obtain a statement from Schneble, the Florida Supreme Court upheld the trial court's finding that the incriminating statements were made in circumstances sufficiently attenuated from the coercive activities as to remove the taint. Our limited grant of certiorari does not permit review of this ruling. But, the limited nature of the grant does not bar us from looking at the entire record in the case in order to dispose of the one issue presented.
19
Before the trial judge permitted the jury to hear testimony regarding petitioner's incriminating statements, he made the initial determination that those statements were voluntary as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). He subsequently instructed the jury in the following manner:
20
'Should you find from the evidence that any alleged statement or confession as to any defendant was not freely and voluntarily made, or if you have a reasonable doubt in this regard, then you must disregard the same, as well as any other item of evidence that may have been discovered by the State by reason of such alleged statement of (sic) confession.' (Tr. 561.)
21
We have no way of knowing what judgment the jury made with respect to the voluntariness of petitioner's statements. In my opinion, there is clearly enough evidence to support either a finding of voluntariness or one of coercion. Since an error cannot be harmless if there is a reasonable possibility that it contributed to a finding of guilt, all reasonable inferences that might be drawn from the evidence must be drawn in favor of the defendant, since the jury may very well have made just these inferences. Thus, we can assume that the jury found petitioner's incriminating statements to be involuntary.
22
We must also assume that the jury followed the instructions of the court and disregarded not only the statements themselves, but all the evidence 'that may have been discovered by the State by reason of such . . . statement(s). . . .' It is possible that the jury may have found the statements to be involuntary and still relied on them. See Jackson v. Denno, supra. But, it is by no means certain that the jury did not meticulously follow the instructions of the trial judge. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). Since either assumption may be made, we must again choose the assumption favorable to the defendant in order to insure that any error was harmless.
23
Assuming, then, that the jury completely disregarded petitioner's incriminating statements and all evidence derived therefrom, little evidence remains to support the verdict. Only the statement of the codefendant places petitioner at the scene of the crime at the relevant time. Without this statement, it is difficult to believe that anyone could be convinced of petitioner's guilt beyond a reasonable doubt.
24
The Court asserts, however, that 'we must determine on the basis of 'our own reading of the record and on what seems to us to have been the probable impact . . . on the minds of an average jury,' . . . whether Snell's (the codefendant's) admissions were sufficiently prejudicial to petitioner as to require reversal.' The Court concludes that 'the 'minds of an average jury' would not have found the State's case significantly less persuasive had the testimony as to Snell's admissions been excluded.'
25
The mistake the Court makes is in assuming that the jury accepted as true all of the other evidence. The case turns on this assumption, and as demonstrated above, it is clearly erroneous. The jury was given the duty of making an independent determination of the admissibility of petitioner's incriminating statements and their fruits. In light of the evidence with respect to coercive police activities, we cannot say with even a minimal degree of certainty that the jury did not find the statements involuntary and that it did not choose to disregard them and almost all of the other evidence in the case which was derived from those statements. We also cannot be certain that the jury did not base its verdict primarily on the statement of the codefendant. See Malinski v. New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029 (1945); cf. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (Frankfurter, J.).
26
The Court would assume that the jury must have found petitioner's statements to be voluntary and therefore admissible along with their fruits, because the other evidence was insufficient to support a conviction. This assumption is erroneous for several reasons. First, the jury may have found that some of petitioner's statements were involuntary and some were voluntary. The 'voluntary' statements may have been connected with the codefendant's statement to support the conviction, while standing alone they may have been insufficient to support a guilty verdict. Second, the jury may have found that the statements were all involuntary but that some evidence remained free from any taint. Whereas the Court indicates that if the statements were involuntary, then all the other evidence in the case except the codefendant's statement must be suppressed as a matter of law, the jury was given only a general instruction on suppression and may, incorrectly and unwittingly, have more narrowly circumscribed the taint. The codefendant's statement bolstered any other evidence considered by the jury. Third, the jury may have found the statements to be involuntary and ignored all the evidence that the Court says should have been ignored. The jury may then have convicted on insufficient circumstantial evidence, including the codefendant's statement. We need ascribe no malevolence here; we need only recognize that humans err. Indeed, the very notion of 'harmless error' should constantly remind us of that.* Any one of these things is a reasonable possibility, and despite the apparent certainty with which the Court affirms the decision below, there remains a deep and haunting doubt as to whether a constitutional violation contributed to the conviction.
27
In light of these uncertainties I find it impossible to perceive how the Court can conclude that the violation of Bruton was harmless error. It is significant that the Florida Supreme Court did not find harmless error in this case. Unless the Court intends to emasculate Bruton, supra, or to overrule Chapman v. Californai, supra, sub silentio, then I submit that its decision is clearly wrong.
*
The question of whether Schneble's sentence of death in this case violates the Eighth and Fourteenth Amendment proscription of 'cruel and unusual punishment' is therefore not at issue here. That question is currently under consideration in Aikens v. California, No. 68—5027, and companion cases. All executions in Florida have been stayed by the Governor's executive order until July 1, 1973. See Fla.Exec.Order No. 72—8 (Feb. 21, 1972).
*
Rogers v. Missouri Pacific R. Co., 352 U.S 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), cited by the Court to support the proposition that we do not lightly infer irrational jury behavior had nothing whatever to do with a criminal case generally or with 'harmless error' in particular. That case dealt with the proper function of judge and jury in Federal Employers' Liability Act cases. It never considered whether reversal was required when evidence was admitted in violation of the Constitution. Rogers was, in short, a case involving the sufficiency of the evidence. In such cases we draw precisely the opposite inferences as drawn in 'harmless error' cases.
| 01
|
405 U.S. 365
92 S.Ct. 1062
31 L.Ed.2d 298
Oliver T. FEIN, Petitioner,v.SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 7, YONKERS, N.Y., et al.
No. 70—58.
Argued Oct. 12, 1971.
Decided March 21, 1972.
Syllabus
Following petitioner's classification as a conscientious objector by his local Selective Service Board, the State Director requested an appeal. Petitioner was notified but was not furnished with the basis for the appeal or given an opportunity to reply. The appeal board unanimously classified petitioner I—A and rejected his conscientious objector claim, without stating any reasons therefor. Petitioner was not entitled under the regulations to appeal to the national board, but the National Director, on petitioner's request, did note an appeal. The national board unanimously classified petitioner I—A, with no reasons given. There is no outstanding induction order for petitioner, who brought this pre-induction suit challenging, on due process grounds, the constitutionality of his Selective Service appeal procedures. The District Court dismissed the complaint, finding the suit barred by § 10(b)(3) of the Military Selective Service Act of 1967, and the Court of Appeals affirmed. That section provides that a classification decision of the local board 'shall be final, except where an appeal is authorized,' and that the classification decision on appeal also 'shall be final.' It further provides that '(n)o judicial review shall be made of the classification or processing of any registrant . . . except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction,' and then the review 'shall go to the question of the jurisdiction . . . only when there is no basis in fact for the classification.' By statute enacted in September 1971, after petitioner's trial, a registrant is entitled to a personal appearance before a local or appeal board, and, on request, to a statement of reasons for any adverse decision. Ensuing changes in regulations, effective December 1971 and March 1972, provide the procedural features that petitioner complained were lacking. Held:
1. Section 10(b)(3) forecloses preinduction judicial review where the board has used its discretion and judgment in determining facts and arriving at a classification for the registrant. Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, followed; Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, distinguished. In such case the registrant's judicial review is confined to situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. Pp. 372—377.
2. Petitioner's immediate induction is not assured, however, in light of the intervening statutory change, the new regulations thereunder, and a change in the Government's position, albeit in a post-induction case, to concede that some statement of reasons is necessary for 'meaningful' review of the administrative decision when the registrant's claim has met the statutory criteria or has placed him prima facie within the statutory exemption. Pp. 377 381.
430 F.2d 376, affirmed.
Michael B. Standard, New York City, for petitioner.
Sol. Gen. Erwin N. Griswold for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Petitioner Oliver T. Fein is a doctor of medicine. In February 1969, he filed this pre-induction suit in the United States District Court for the Southern District of New York. Jurisdiction was asserted under the federal-question statute, 28 U.S.C. § 1331, under the civil rights statute, 28 U.S.C. § 1343, and under the federal-officer statute, 28 U.S.C. § 1361. Fein challenged on due process grounds, the constitutionality of his Selective Service appeal procedures and sought declaratory and injunctive relief that would prevent his induction into military service. The defendants are Fein's local board at Yonkers, New York, the Appeal Board for the Southern District, the State Selective Service Director, and the National Appeal Board.
2
In an unreported memorandum decision, the District Court dismissed the complaint for want of jurisdiction. A divided panel of the Second Circuit affirmed. 430 F.2d 376 (1970). Certiorari was granted, 401 U.S. 953, 91 S.Ct. 975, 28 L.Ed.2d 236 (1971), so that this Court might consider the important question whether § 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3),1 permits this preinduction challenge to Selective Service appeal procedures.
3
* Fein, born May 5, 1940, registered with his Yonkers local board at age 18. He was assigned a II—S student deferment during his undergraduate years at Swarthmore College and, subsequently, during the period of his attendance at Case-Western Reserve University School of Medicine. Upon graduation from medical school, Fein was assigned a II—A occupational deferment because of his internship at Cleveland Metropolitan General Hospital.
4
In September 1967, while still an intern, Fein wrote his local board 'to declare myself a conscientious objector to war and the institution which propagates war, the military.' He requested and received SSS Form 150 for conscientious objectors. He promptly completed and returned the form to the local board.
5
In the form Fein stated: He believes in a Supreme Being. The beliefs from which his conscientious objection springs include the concepts that 'human beings are primarily 'good," that this goodness 'can only be realized, if human beings are allowed to fulfill their potential,' and that 'all human beings are fundamentally equal, in terms of their value as human beings.' War violates 'this essential being in all men . . .' It 'fosters irresponsibility for inhuman and cruel acts.' It 'demands a style of life, which is violent and hierarchical. It curbs and extinguishes rather than expands man's potential.' The 'substance of my beliefs stems from this common foundation of all religions. Thus my beliefs are not merely a personal moral code, but are ideals which emanate from centuries of religious tradition.' He attributes the shaping of his beliefs to four principal sources: his parents, the church he formerly belonged to (a Lutheran body), the civil rights movement, and medicine. He believes 'in the power and values of moral and ethical force,' but rejects 'violent force' except perhaps in defense of self or of a loved one. His ideals were not articulated by age 18, but he began to formulate them at Swarthmore. Then followed a trip to the South; his break with his church; a summer in Germany where he learned of 'biased American journalism about Cuba'; his helping organize a trip by students to Cuba; his interest in SNCC; his work in the slums of San Francisco; his settling in Cleveland's 'Negro ghetto' during his first year at medical school; his then 'full commitment to non-violence'; his contact with Students for a Democratic Society, which provided 'a framework for working out my ideals about justice and equality'; and his 'commitment to cooperative living and the poor community (which) stands as a mature expression of my beliefs.'
6
Upon receiving Fein's Form 150 and letters supportive of his claim, the local board invited him to appear personally before it. He did so on November 15, 1967. After the interview the board denied him a I—O classification 'at this time.' Inasmuch as Fein then held his II—A classification, this action by the board was consistent with Selective Service Regulation 32 CFR § 1623.2 providing that a registrant be placed in the lowest class for which he is eligible.
7
In February 1968, however, Fein was reclassified I—A. He immediately asked for another personal appearance before the board. The request was granted and he appeared on May 27. The board then classified him as I—O and thus gave him his desired conscientious objector classification.
8
On June 4 the State Director, pursuant to 32 CFR § 1626.1, wrote the appeal board requesting an appeal and stating, 'It is our opinion that the registrant would not qualify for a I—O classification as a conscientious objector.' Notice of this was given Dr. Fein by mail. Fein then wrote seeking 'a statement indicating the basis for the State Director's appeal' and an opportunity to reply. No explanation was forthcoming.
9
The local board forwarded the file to the appeal board. Accompanying the file was a so-called 'brief.' This, as petitioner has conceded,2 was merely a summary of the file prepared by a lay employee of the board. The appeal board, by a unanimous 4—0 vote on June 20, classified Dr. Fein I—A and thus rejected his claim to conscientious objector status. The board stated no reasons for its decision. Fein was notified of his reclassification.
10
Under 32 CFR § 1627.33 a registrant was not entitled to take an appeal to the presidential, or national, appeal board from an adverse classification by the state appeal board made by a unanimous vote. Fein was in this position. Accordingly, he wrote the National Director of Selective Service in July and asked that the Director appeal on his behalf under 32 CFR § 1627.1(a). Fein's letter to the Director was detailed. It emphasized his above-stated beliefs and the way of life to which those beliefs had guided him. 'It should be clear, that I am willing to serve my country, but only in ativities consistent with my conscience.' Fein outlined the administrative proceedings and listed five claimed inequities: (1) the appeal board's rejection, upon the appeal by the State Director, of the local board's classification; (2) the failure of the Director to state the basis for his challenge; (3) the absence of an opportunity to submit supplemental information before the file was forwarded; (4) the absence of an opportunity to rebut the State Director's decision to take an appeal; and (5) the absence of an opportunity for a personal appearance before the appeal board.
11
On July 31 Fein was ordered to report for induction September 6.
12
The National Director, however, complied with Fein's request and noted an appeal. Fein's outstanding induction order was canceled. He again asked the State Director for a statement of reasons. He was now advised that in the State Director's opinion he did not qualify for a Class I—O deferment and that the decision to appeal 'was based upon the information contained in (his) selective service file.'
13
On November 26, 1968, the national board, by a vote of 3—0, classified Dr. Fein I—A. No reason for this action was stated.
14
No new order that Fein report for induction has been issued.
15
Fein then instituted this suit. The complaint alleged that the statute and regulations governing Fein's classification and appeal violated the Due Process Clause of the Fifth Amendment in that they did not provide for a statement of reasons to the registrant for the State Director's decision to appeal, or for the appeal board's subsequent decision denying Fein a I—O classification. It also alleged that the defendants acted unconstitutionally by failing to provide Fein with the statements of reasons, by failing to permit him to submit additional material for consideration by the appeal boards, and by refusing him an opportunity to rebut the State Director's decision to appeal.
16
The District Court did not reach the merits of the constitutional claims. While expressing concern about Fein's ability to establish jurisdiction, the court assumed arguendo, that he had done so, but then concluded that the suit was barred by § 10(b)(3).
17
The Second Circuit affirmed, 430 F.2d, at 377—380, relying, as did the District Court, upon Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968); and Boyd v. Clark, 287 F.Supp. 561 (SDNY 1968), aff'd, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969). One judge, in separate concurrence, 430 F.2d, at 380, also thought that Fein had failed to establish the jurisdictional amount required under 28 U.S.C. § 1331. The third judge, citing the same cases as did the majority, dissented on the statutory issue; on the merits he would have ruled in Fein's favor. 430 F.2d, at 380—388.
II
18
The case pivots, of course, upon the meaning and reach of § 10(b)(3), and this Court's decisions in Oestereich, Gabriel, and Boyd, all supra, and in Breen v. Selective Service Local Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970).
19
Section 10(b)(3) states flatly that a classification decision of the local board 'shall be final, except where an appeal is authorized . . .' and that the classification decision on appeal also 'shall be final. . . .' It further provides, 'No judicial review shall be made of the classification or processing of any registrant . . . except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction . . ..' Even then, the review 'shall go to the question of the jurisdiction . . . only when there is no basis in fact for the classification . . ..'
20
The finality language appeared in conscription statutes prior to the 1967 Act. See Selective Draft Act of May 18, 1917, § 4, 40 Stat. 80; Selective Training and Service Act of 1940, § 10(a)(2), 54 Stat. 893; and Selective Service Act of 1948, § 10(b)(3), 62 Stat. 619. The Court construed this finality language, however, as indicating a congressional intent to restrict only the scope of judicial review and not to deprive the registrant of all access to the courts. See, for example, Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). But judicial relief was confined to the 'no basis in fact' situation. Estep, supra, 327 U.S., at 122—123, 66 S.Ct., at 427; McKart, supra, 395 U.S., at 196, 89 S.Ct., at 1664.
21
The 'except' clause and the 'no basis in fact' language came into § 10(b)(3) with the 1967 statute by way of prompt congressional reaction provoked by the Second Circuit's decision in Wolff v. Selective Service Local Bd., 372 F.2d 817 (1967). See H.R.Rep.No.267, 90th Cong., 1st Sess., 30—31; 113 Cong.Rec. 15426.4
22
Section 10(b)(3), as so amended, was promptly challenged. In Oestereich, the Court refrained from striking down the statute on constitutional grounds. It held, however, that pre-injunction judicial review was available to that petitioner who, as a divinity student, claimed his local board had wrongfully denied him a statutory exemption from military service. To rule otherwise 'is to construe the Act with unnecessary harshness.' And, 'No one, we believe, suggests that § 10(b)(3) can sustain a literal reading.' This construction, it was said, leaves the section 'unimpaired in the normal operations of the Act.' 393 U.S., at 238, 89 S.Ct., at 417, 418. See Gutknecht v. United States, 396 U.S. 295, 303, 90 S.Ct. 506, 510, 24 L.Ed.2d 532 (1970), where reference was made to the 'unusual circumstances' of Oestereich.
23
In the companion Gabriel case, on the other hand, the registrant was asserting a conscientious objector claim. The Court said:
24
'Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the board's statutory authority to take action which appellee challenges, and that action inescapably involves determination of fact and an exercise of judgment. . . . To allow preinduction judicial review of such determinations would be to permit precisely the kind of 'litigious interruptions of procedures to provide necessary military manpower' (113 Cong.Rec. 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10(b)(3).' 393 U.S., at 258—259, 89 S.Ct., at 426.
25
The constitutionality of the statute again was upheld. Id., at 259, 89 S.Ct., at 426. Mr. Justice Douglas, separately concurring, noted hypothetical fact situations as to which he might take a different view and then observed:
26
'But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd. (393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402), to warrant pre-induction review of its actions.' 393 U.S., at 260, 89 S.Ct., at 427.
27
Oestereich was complemented by Breen a year later with respect to a registrant statutorily entitled to a deferment rather than to an exemption. See also Kolden v. Selective Service Local Board, 397 U.S. 47, 90 S.Ct. 811, 25 L.Ed.2d 33 (1970).
28
Finally, pre-induction review was denied under § 10(b)(3) in Boyd v. Clark, 287 F.Supp. 561 (SDNY 1968), a decision affirmed here, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969), with only a single reference to Gabriel, decided just four weeks before. In Boyd, four registrants, each classified I—A, challenged student deferment on the ground that it discriminated against those financially unable to attend college. They did not otherwise contest their own I—A classifications.
29
Thus Oestereich, Gabriel, Breen, and Boyd together establish the principles (a) that § 10(b)(3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10(b)(3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. In the latter case the registrant's judicial review is confined—and constitutionally so to the situations where he asserts his defense in a criminal proseuction or where, after induction, he seeks a writ of habeas corpus. By these cases the Court accommodated constitutional commands with the several provisions of the Military Selective Service Act and the expressed congressional intent to prevent litigious interruption of the Selective Service process.
III
30
These principles do not automatically decide Fein's case. The doctor, unlike Oestereich and unlike Breen, cannot and does not claim a statutory exemption or a statutory deferment on the basis of objectively established and conceded status. On the other hand, while Gabriel focuses on the administrative and discretionary process, it does not necessarily foreclose Fein's claim. This is so because Fein challenges the constitutionality of the very administrative procedures by which, he claims, the presentation of his case was adversely affected.
31
This was the aspect of the Oestereich and Breen decisions that concerned Mr. Justice Harlan. 393 U.S., at 239, 89 S.Ct., at 417; 396 U.S., at 468—469, 90 S.Ct., at 666—667, 24 L.Ed.2d 653. He would have allowed pre-induction judicial review of a procedural challenge on constitutional grounds if it presented no 'opportunity for protracted delay' in the system's operations and if the issue was beyond the competence of the board to hear and determine. This view, however, commanded the vote of no other member of the Court.
32
We again conclude that the line drawn by the Court between Oestereich and Breen, on the one hand, and Gabriel and, inferentially, Boyd, on the other, is the appropriate place at which in the face of the bar of § 10(b)(3), to distinguish between availability and unavailability of pre-induction review. We therefore adhere to the principles established by those cases.
33
We further conclude that, as measured against the facts of Fein's case, it is Gabriel, and not Oestereich and Breen, that is controlling. Unlike the registrants in Oestereich and Breen, Fein's claimed status is not one that was factually conceded and thus was assured by the statute upon objective criteria. His administrative classification action was, in contrast, a product of the 'process' and the 'system of classification,' as the petitioner stressed at oral argument.5 It turned 'on the weight and credibility of the testimony,' as Mr. Justice Douglas noted in his concurrence in Gabriel, 393 U.S., at 259, 89 S.Ct., at 426, 21 L.Ed.2d 418. And it was 'dependent upon an act of judgment by the board.' Gabriel, 393 U.S., at 258, 89 S.Ct., at 426.
34
The case strikes us, as did Gabriel, as representative of a category that, if allowed pre-induction review, would tend to promote the 'litigious interruptions of procedures to provide necessary military manpower' that Congress intended to prevent. 113 Cong.Rec. 15426. The conscientious objector claim is one ideally fit for administrative determiantion.
35
We are not persuaded, as has been suggested,6 that the local board's grant of the I—O classification equates with the conceded exemption and deferment involved in Oestereich and Breen. Objective certainty of status is lacking; in addition, the respective rulings of the two appeal boards were themselves based on an evaluation of the same file and yet were opposite to that of the local board. It is true that in Oestereich and Breen a result favorable to the registrant was also reversed, but there the change came about only by the board's consideration of extraneous circumstances apart from the merits of the underlying claims.
36
Finally, we find no merit in the petitioner's argument, apparently asserted for the first time in this Court, that a local board's determination, on a conscientious objector claim, favorable to the registrant is not amenable to the appeal procedures prescribed by the Act. Section 10(b)(3), by its terms, makes a board's decision final subject to appeal and we see no confinement of that right of appeal to the registrant alone so as to nullify the regulations' express grant of appellate power to the State Director as well as to the registrant. The statute, furthermore, is specific as to the President's right to review.
37
The conclusion we have reached makes it unnecessary to consider in any detail the propositions, urged by the respondents, that the petitioner has not demonstrated the presence of the jurisdictional amount required under 28 U.S.C. § 1331, and that his arguments are premature because he is presently not the subject of an outstanding induction order.
IV
38
All this does not mean, however, that this decision assures Dr. Fein's immediate induction into military service. Events since the inception and trial of the case indicate otherwise:
39
A. The 1971 Statute. By Pub.L. 92—129, § 101(a)(36), 85 Stat. 353, approved September 28, 1971, the following new section, 50 U.S.C. App. § 471a (1970 ed. Supp. I), was added to the 1967 Act, now renamed the Military Selective Service Act.
40
'Procedural rights
41
'Sec. 22. (a) It is hereby declared to be the purpose of this section to guarantee to each registrant asserting a claim before a local or appeal board, a fair hearing consistent with the informal and expeditious processing which is required by selective service cases.
42
'(b) Pursuant to such rules and regulations as the President may prescribe—
43
'(1) Each registrant shall be afforded the opportunity to appear in person before the local or any appeal board of the Selective Service System to testify and present evidence regarding his status.
44
'(4) In the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.'
45
A registrant thus is now statutorily entitled to a personal appearance before a local or appeal board and, on request, to a statement of reasons for any decision of the board adverse to him. This 1971 addition to the statute does not, by its terms, purport to be retroactive.
46
B. The Emerging Regulations. In implementation of the new statute, the administrative regulations have been undergoing change. Some amendments were promulgated effective December 10, 1971. 36 Fed.Reg. 23374—23385. Others were promulgated effective March 11, 1972. 37 Fed.Reg. 5120—5127. From these it appears that all, or nearly all, the procedural features about which Dr. Fein complains in the present case have been changed administratively. Specifically: (1) When an appeal is taken by the State Director 'he shall place in the registrant's file a written statement of his reasons for taking such appeal.' The local board shall notify the registrant in writing of the action and the reasons therefor, and advise him that the registrant may request a personal appearance before the appeal board. §§ 1626.3(a) and (b). (2) At such personal appearance the registrant may present evidence, discuss his classification, point out the class or classes in which he thinks he should have been placed and may direct attention to any information in his file that he believes the local board has overlooked or to which it has given insufficient weight. He may present such further information as he believes will assist the board. The registrant, however, may not be represented before an appeal board by anyone acting as attorney and he shall not be entitled to present witnesses. §§ 1624.4(e) and (d). (3) If the appeal board classifies the registrant in a class other than the one he requested, it shall record its reasons therefor in his file. The local board shall inform the registrant of such reasons in writing at the time it mails his notice of classification. § 1626.4(i). (4) On the director's appeal to the national board the registrant may request an appearance. § 1627.3(d). At that appearance the registrant may present evidence, other than witnesses, bearing on his classification. There, too, he may discuss his classification, point out the class or classes in which he thinks he should have been placed, and direct attention to any information in his file that he believes the local board overlooked or to which it has given insufficient weight. He may also present such further information as he believes will assist the national board in determining his proper classification. § 1627.4(c) and (e). (5) If the national board classifies the registrant in a class other than the one he requested it shall record its reasons therefor in his file and on request by the registrant it shall furnish him a brief statement of the reasons for its decision. § 1627.4(h).
47
Thus, under present procedure effective in part since December 10, 1971, and in part since March 11, 1972, complaints about one's inability to appear before appeal boards, about not being given reasons for adverse classifications, and about inability to present additional material at the appellate stages are all alleviated and, indeed, eliminated.
48
C. The Change in the Government's Position. In their brief filed prior to the adoption of the 1971 Act, the respondents acknowledged the appearance of 'a relatively recent line of authority' exemplified by United States v. Haughton, 413 F.2d 736 (CA9 1969), to the effect that the failure of a local board to articulate in writing the reason for its denial of a conscientious objector classification is a fatal procedural flaw when the registrant has made a prima facie case for such status.7 Brief 52 53. The rationale is that some statement of reasons is necessary for 'meaningful' review8 of the administrative decision when the registrant's claim has met the statutory criteria or has placed him prima facie within the statutory exemption, and his veracity is the principal issue.
49
The respondents appropriately noted, however, that these decisions were all so-called post-induction cases in the sense that they were appeals from convictions under § 12(a), 50 U.S.C.App. § 462(a). The respondents accordingly took the position that this line of authority, however appropriate it might be for post-induction review, did not support or justify an exception to the bar of § 10(b)(3) against pre-induction review of the processing or classifying of registrants.
50
In a memorandum filed here since the 1971 Act in Joseph v. United States, cert. granted, 404 U.S. 820, 92 S.Ct. 65, 30 L.Ed.2d 48 (1971), the Government has now taken the position that '(a)lthough this judicial rule (of Haughton and its progeny) finds little support in early precedent . . . we do not think it appropriate to contend that it is erroneous.' The Government also notes that the requirement for an administrative statement of reasons 'seems fully consistent with the new statutory . . . and regulatory . . . provisions on this point.' Memo 13, 14.
51
While Joseph also is a conviction case and is not one on pre-induction review, its obvious significance for Fein is that if the doctor is ever again called for induction, the rule of Haughton will provide a defense for him unless and until the requirements of the new statute and regulations are fulfilled. Whether this necessitates a complete reprocessing of Fein's case is a matter we leave in the first instance to the administrative authroities.
52
The judgment of the Court of Appeals is therefore to be affirmed. We express no view upon the merits of Dr. Fein's conscientious objector claim other than to observe the obvious, namely, that his claim is not frivolous.
53
Affirmed.
54
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
55
Mr. Justice DOUGLAS, dissenting.
56
* Today the Court approves a construction of § 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C.App. § 460(b)(3),1 which raises serious questions of procedural due process. Doctor Fein was classified as a conscientious objector by his local board. The State Director appealed, but gave no reason for this extraordinary action.2 The appeal board then reclassified Dr. Fein I-A. It, too, gave no reasons.
57
We explained the anture of the 'hearing' required by the Due Process Clause of the Fifth Amendment in Morgan v. United States, 304 U.S. 1, 18—19, 58 S.Ct. 773, 776, 82 L.Ed. 1129:
58
'The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasijudicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command.'
59
See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865; Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404; Greene v. MeElroy, 360 U.S. 474, 493, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377; Baltimore & Ohio R. Co. v. United States, 298 U.S. 349, 368 369, 56 S.Ct. 797, 807—808, 80 L.Ed. 1209.
60
Morgan involved property rights—rates for stockyard services. But the Due Process Clause protects 'life' and 'liberty' as well as 'property.' See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 598, 73 S.Ct. 472, 477—478, 97 L.Ed. 576. If a man, contrary to his scruples, is forced to go overseas to battle, he is deprived of his 'liberty,' if not his 'life.'
61
When administrative orders deprive a person of property without a full and fair opportunity to object, this Court has been most reluctant to defer judicial review until after those orders have taken effect. See Opp Cotton Mills v. Administrator, 312 U.S. 126, 152—153, 61 S.Ct. 524, 535—536, 85 L.Ed. 624; United States v. Illinois Central R. Co., 291 U.S. 457, 463, 54 S.Ct. 471, 473, 78 L.Ed. 909; Londoner v. City & County of Denver, 210 U.S. 373, 385, 28 S.Ct. 708, 713, 52 L.Ed. 1103. Judicial scrutiny has been particularly close where, as here, review is conditioned upon submitting to the risk of substantial penalties should the order prove to have been validly made. See Oklahoma Operating Co. v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. Cf. Reisman v. Caplin, 375 U.S. 440, 446—450, 84 S.Ct. 508, 512—514, 11 L.Ed.2d 459. We should require no less when personal liberty is at stake.3
62
How can we possibly affirm the judgment below in light of the constitutional dimension of the problem? As respects his claim to 'liberty,' is Fein to be relegated to the procedures of a criminal prosecution when Congress was meticulous to provide for its resolution in the administrative process? No such downgrading of rights would be tolerated in a 'property' case; why are we less mindful of the requirements of due process when a man's 'liberty' is at stake?
II
63
Section 10(b)(3) puirports to defer judicial review of Selective Service System classification decisions to the defense of a criminal prosecution for failure to report for induction. It represents a congressional response to the concern that widespread pre-induction review of Selective Service classification decisions would seriously impede the ability of the System to process manpower for the Armed Forces. See remarks of Senator Russell, 113 Cong.Rec. 15426. We held in Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, however, that the statute cannot be read literally. 'For while it purports on its face to suspend the writ of habeas corpus as a vehicle for reviewing a criminal conviction under the Act, everyone agrees that such was not its intent.' Id., at 238, 89 S.Ct., at 417. We held that it must be interpreted to permit pre-induction review in that exceptional class of cases involving 'a clear departure by the Board from its statutory mandate.' 393 U.S., at 238, 89 S.Ct., at 416. Because Oestereich's local board had employed unauthorized and 'lawless' procedures to deprive him of an exemption to which he was entitled by statute, we further held that § 10(b)(3) was no bar to the suit. See also Breen v. Selective Service Local Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653.
64
The courts below, relying on Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, held that, unlike the ministerial exemption (IV-D) at issue in Oestereich and the student deferment (II-S) in Breen, the conscientious objector exemption (I-O) is committed to the discretion of the board, and contemplates the complex evidentiary and factual determinations which § 10(b) (3) primarily intended to insulate from pre-induction review. Were Fein complaining that his appeal board had no basis in fact to discontinue his conscientious objector exemption, this distinction would be significant.
65
The fact that Fein was classified I-O by his local board (rather than IV-D or II-S) before being stripped of his exemption does not, however, distinguish his case from Oestereich. Indeed, it is Clark v. Gabriel, supra, on which the majority and lower court placed such heavy reliance for the opposite proposition, that demonstrates the applicability of Oestereich to the present situation.
66
Gabriel's conscientious objector claim had been rejected by his local board, after 'evaluating evidence and . . . determining whether a claimed exemption is deserved.' Oestereich, supra, 393 U.S., at 238, 89 S.Ct., at 416. His basic argument was that there was no basis in fact to deny him his exemption. As the Court said, however, there was
67
'no doubt of the board's statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. By statute, classification as a conscientious objector is expressly conditioned on the registrant's claim being 'sustained by the local board." 393 U.S., at 258, 89 S.Ct., at 426 (emphasis supplied).
68
But Fein's claim, unlike that of Gabriel, has been 'sustained by the local board.' Thus, by statute, it is mandatory that the exemption be awarded him—subject, of course, to subsequent action in accordance with lawful, authorized procedures. But this is the situation which obtained in Oestereich. The exemption at issue in that case could also have been removed in accord with lawful procedures. The crucial similarity is that both Oestereich and Fein have met the preliminary hurdle of demonstrating to the local board their statutory fitness for a given exemption.
69
The nature of Dr. Fein's claim is that the Selective Service System has been 'blatantly lawless,' not in taking away his exemption per se, but in doing so in a manner which violates the mandate of § 1(c) of the Act, 50 U.S.C.App. § 451(c), that the system be administered in a way 'which is fair and just . . ..'
70
It should by now be undisputed that an essential of a 'fair and just' procedure is the registrant's right to be heard by the agency in the system that deprives him of his liberty.4 To be meaningful, that hearing must include the right to appear, and to be apprised of and given a chance to reply to adverse information contained in one's file. Dr. Fein was afforded none of these rights. The regulations did not permit a personal appearance before the appeal board. Dr. Fein was not informed of the reasons for the appeal. He had no right to submit a statement of his own, as the State Director, the person appealing, had not submitted a statement. 32 CFR § 1626.12. Dr. Fein never even received a statement of reasons for the appeal board's reclassification, a defalcation which the Solicitor General has conceded to be error in a similar context. Memorandum for the United States, Joseph v. United States, 404 U.S. 820, 92 S.Ct. 65, 30 L.Ed.2d 48. See also Memorandum for the United States, Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477.
71
Like Oestereich's, therefore, Fein's complaint is 'unrelated to the merits of granting or continuing that exemption,' 393 U.S., at 237, 89 S.Ct., at 416. It is instead a challenge to the basic fairness of the administrative process itself. And, while Fein himself characterizes his attack as a 'constitutional' one, the procedural guarantees which he says were denied him are implicit in the Act itself. It is as unlawful to employ the regulations governing the appeal procedure to deny fundamental procedural rights implicit in the statutory scheme as it was in Oestereich and Breen to use the regulations governing delinquency to work a similar deprivation.
72
The literalness with which the Court treats Dr. Fein's claim 'does violence to the clear mandate of' § 1(c) of the Act, and misconstrues the thrust of Oestereich, Gabriel, and Breen. Fein's claim presents a clear case for preinduction review. As in Oestereich, we have here a case where the Selective Service System is itself 'basically lawless.' On the admittedly extraordinary facts of this case, Fein has been effectively deprived of the entire panoply of appellate remedies guaranteed to him by the Act, and put in a position wherein meaningful judicial review of the underlying classification decision has become a virtual impossibility.
73
Mr. Justice MARSHALL, with whom Mr. Justice STEWART joins, dissenting.
74
I dissent. Today's holding reinterprets Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), to establish a principle that serves no sensible purpose. If Oestereich is to be preserved, it must be rooted in a principle that permits pre-induction review in this case as well.
75
As the majority correctly observes, our decision in Oestereich foreclosed any further argument that § 10(b)(3) constitutes an absolute bar to pre-induction judicial review. 'No one, we believe, suggests that § 10(b)(3) can sustain a literal reading.' Id., at 238, 89 S.Ct., at 417. Having thus adopted in Oestereich, and reaffirmed in Breen v. Selective Service Local Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), an interpretation of the Act that permits pre-induction review in some cases, we need decide today only whether Dr. Fein raises that sort of exceptional claim appropriate for pre-induction review.
76
The majority apparently holds that pre-induction review is available only where a registrant's 'claimed status is . . . factually conceded and thus (is) assured by the statute upon objective criteria.' Ante, at 376. I confess that I do not altogether understand these key words in the majority's test. But I fathom enough to conclude that the test makes little sense. Although petitioner challenges only the procedures used by the Selective Service System, and does not ask this Court to decide the merits of his conscientious objector (CO) claim, he loses his lawsuit because his entitlement to a CO classification is not 'factually conceded' or 'objectively certain.' But the merits of petitioner's CO claim are not at issue in this pre-induction litigation. I can think of no reasons for an approach that ignores the actual pre-induction claim, and that permits pre-induction claim, and where 'objective certainty of (the registrant's) status' exists. Obid. Oestereich should not be recast this narrowly.
77
The majority says that there can be pre-induction review only when the registrant's status is assured 'upon objective criteria.' This, by itself, might only mean that where status turns on unconceded factual claims—as opposed to more 'objectively' determined legal claims—pre-induction review is barred. But the heart of the majority's test is that pre-induction review is permitted only when there is 'objective certainty' of status. Obviously, this approach is not immediately suggested by the words of § 10(b)(3), which proscribes pre-induction review 'of the classification or processing of any registrant.' Nor does it avoid the 'unnecessary harshness' that the majority concedes Oestereich sought to prevent. Where the registrant's status is 'objectively certain,' or where the Government concedes that it will not prosecute the registrant if he refuses induction and will confess error if he submits to induction and brings a habeas corpus action, the registrant is 'least jeopardized by the procedural limitations of § 10(b)(3).' Oestereich v. Selective Service System Local Board, 393 U.S., at 251, 89 S.Ct., at 424 (Stewart, J., dissenting). Where there is no pre-induction review, the harsher burden falls on the registrant whose rights and ultimate status are not free from doubt or conceded. He is the one faced with the enormous uncertainties of a criminal prosecution for refusing induction; and should he submit to what he thinks is an illegal induction, anticipating relief through habeas corpus, his uncertain prospects make it unlikely that he could avoid the massive dislocations of induction itself (e.g., giving up a job, leaving school). In short, the majority's theory of pre-induction review helps the wrong people.1
78
A viable approach to the problem of pre-induction review is to be found by comparing Oestereich with the other § 10(b)(3) case decided on the same day, Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968). In Clark v. Gabriel, we interpreted § 10(b)(3) to bar pre-induction review where the challenged action 'inescapably involves a determination of fact and an exercise of judgment'; thus, we refused to allow pre-induction review where the registrant claimed, on the facts, that he was entitled to a Co classification. However, we permitted pre-induction review in Oestereich, supra, where the local board's action, taken pursuant to a purportedly valid disciplinary regulation, was in claimed conflict with rights to exemption assured by statute. Cf. Breen v. Selective Service Board, supra.2 For reasons that will become clearer below, the crucial difference for me between the cases is that in Oestereich (and Breen) the registrant challenged a purportedly valid Selective Service rule of general application, the validity of which the administrative process could not competently adjudicate before induction.
79
At issue in Dr. Fein's case are Selective Service appeal procedures, general rules that are said to be invalid under the Constitution. At stake is not a board determination 'processing or classifying' an individual registrant,3 but general procedures prescribing the way such determinations are made. The situation here is substantially similar to Oestereich, and altogether different from the one in Clark v. Gabriel. In Oestereich, as former Chief Judge Lumbard noted in dissent below,
80
'(T)he registrant challenge(d) a procedure unauthorized by statute, while claiming that the regulation deprive(d) him of a right based on higher authority. The difference, which I do not deem significant, is that in Oestereich the conflict posed was between a (Selective Service) regulation—the delinquency provision—and a statutory command, the ministerial exemption.' 430 F.2d 376, 382 (1970).
81
Here, Selective Service appellate procedures, implemented under Selective Service regulations 32 CFR § 1626 et seq., arguably conflict with the constitutional requirements of the Due Process Clause, 'surely an a fortiori case for preinduction review.' Ibid. In Oestereich, Breen, and this case, the Selective Service System relied on rules, purportedly valid, that are challenged as illegal in their general application.
82
In Clark v. Gabriel, the registrant challenged the factual and judgmental determination that he was not entitled to a conscientious objector classification. But Dr. Fein does not challenge that individualized judgment in his pre-induction suit. Here, the registrant's local board found him entitled to a CO classification, and then this presumptively correct classification was taken away pursuant to allegedly lawless and unconstitutional procedures.4 The facial validity of these procedures is the only issue here. In neither Oestereich, Breen, nor this case would pre-induction inquiry look to discretionary determinations of the System, or to factual judgments of the local or appeal board. (Nor is there any dispute in our case that the challenged procedures were actually followed here.)
83
In my view, pre-induction judicial review should be permitted where the registrant claims that generally applied rules administered by Selective Service are invalid, and where the administrative process is not competent to decide the registrant's claim. Unlike the approach of the majority, this approach would benefit an appropriate group of registrants, without doing violence to Congress' apparent purposes in passing § 10(b)(3). While the majority opinion in Oestereich was directed narrowly to the facts there presented, the decision may fairly be said to recognize that § 10(b)(3) was intended to be an integral part of the complex machinery designed by Congress to raise an army fairly and expeditiously. In my view, § 10(b)(3) reflected two related assumptions of Congress. First, Congress assumed procedural regularity in the administrative system. Where the general administrative procedures are valid—where procedural regularity is acknowledged—individual 'classification or processing' determinations may be presumed correct, and pre-induction review would be an unwarranted interference with an orderly induction system. More generally, as I view § 10(b)(3), Congress wanted to make clear that since it had provided an elaborate administrative procedure in which registrants have a full opportunity to raise their claims, they should not be allowed to have duplicative judicial review of the administrative determinations before induction. These premises justifying a ban on pre-induction review may be undercut in particular cases, and in such cases pre-induction review should be permitted. Where, as in Dr. Fein's case, the underlying procedures of the classification system are themselves challenged—where Congress' presumption of procedural regularity is called into question—pre-induction review should be permitted. And where, as here, a registrant makes a claim not suited for administrative determination even in the frist instance, pre-induction judicial review would not duplicate the administrative process and therefore should be permitted. Of course, where the correctness of a particular classification is at issue, the administrative process usually has an opportunity to decide whether the claimed error exists, and pre-induction review would be inappropriate. But a Selective Service Board of laymen does not have the competence to decide Dr. Fein's claim that generally applied Selective Service procedures are unconstitutional. Without pre-induction judicial review, Dr. Fein's liberty is taken without any competent body deciding the constitutional question he raises. Cf. Oestereich v. Selective Service System Local Board, supra, 393 U.S., at 243, 89 S.Ct., at 419. (Harlan, J., concurring in result). Section 10(b)(3) does not require such a harsh result, at odds with the spirit, if not the letter, of so many of our constitutional decisions.
84
I would permit pre-induction review in this case, and would remand for consideration of the merits of petitioner's claims.
1
'The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. . . . The decision of such appeal boards shall be final in cases before them on appeal unless modified or changed by the President. The President, upon appeal or upon his own motion, shall have power to determine all claims or questions with respect to inclusion for, or exemption or deferment from training and service under this title . . . and the determination of the President shall be final. No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. . . .' 50 U.S.C. App. § 460(b)(3).
Section 10(b)(3) of the 1967 Act was amended by Pub.L. 92 129, § 101(a)(26), 85 Stat. 351, approved Sept. 28, 1971. The amendment, however, did not change that portion of § 10(b)(3) quoted above.
2
Tr. of Oral.Arg. 22.
3
The provision is now 32 CFR § 1627.1(b).
4
S.Rep.No.209, 90th Cong., 1st Sess., 10; U.S.Code Cong. & Admin. News, p. 1308, contained the observation that a registrant may also challenge his classification by post-induction habeas corpus. See Witmer v. United States, 348 U.S. 375, 377, 75 S.Ct. 392, 393, 99 L.Ed. 428 (1955).
5
Tr. of Oral Arg. 13, 18.
6
Id., at 16—18.
7
See also United States v. Edwards, 450 F.2d 49 (CA1 1971); United States v. Lenhard, 437 F.2d 936 (CA2 1970); Scott v. Commanding Officer, 431 F.2d 1132 (CA3 1970); United States v. Broyles, 423 F.2d 1299 (CA4 1970); United States v. Stetter, 445 F.2d 472 (CA5 1971); United States v. Washington, 392 F.2d 37 (CA6 1968); United States v. Lemmens, 430 F.2d 619 (CA7 1970); United States v. Cummins, 425 F.2d 646 (CA8 1970); United States v. Pacheco, 433 F.2d 914 (CA10 1970).
8
See Gonzales v. United States, 348 U.S. 407, 415, 75 S.Ct. 409, 414, 99 L.Ed. 467 (1955).
1
Section 10(b)(3) reads in pertinent part as follows:
'No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.'
2
Except the somewhat cryptic statement that '(i)t is our opinion that the registrant would not qualify for a I—O classification as a conscientious objector.'
3
Some courts, however, have been more zealous in their exaltation of property rights than they have of constitutionally safeguarded individual liberties. See, e.g., Poole v. State, 244 Ark. 1222, 1225, 428 S.W.2d 628, 630:
'The right of an individual to acquire and possess and protect property is inherent and inalienable and declared higher than any constitutional sanction in Arkansas . . ..'
4
See, e.g., Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810; Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362; Gonzales v. United States, 348 U.S. 407, 417, 75 S.Ct. 409, 414, 99 L.Ed. 467; Simmons v. United States, 348 U.S. 397, 405, 75 S.Ct. 397, 401, 99 L.Ed. 453. See also Greene v. McElroy, 360 U.S. 474, 493, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377; Morgan v. United States, 304 U.S. 1, 18—19, 58 S.Ct. 773, 776, 82 L.Ed. 1129; Baltimore & Ohio R. Co. v. United States, 298 U.S. 349, 368—369, 56 S.Ct. 797, 807—808, 80 L.Ed. 1209; United States v. Thompson, 431 F.2d 1265, 1271 (CA3); United States v. Cabbage, 430 F.2d 1037, 1039—1041 (CA6); United States v. Cummins, 425 F.2d 646 (CA8); United States v. Owen, 415 F.2d 383, 388—389 (CA8); Wiener v. Local Bd. No. 4, 302 F.Supp. 266, 270 (D.Del.).
1
The cases in which the majority would permit pre-induction review are not those in which Selective Service manpower gathering processes are 'interrupted' to a distinctively minimal extent. 'Litigious interruption' comes from the ordinary processes of any litigation, the delays built in the Federal Rules. These interruptive time delays are not significantly shortened in lawsuits where the Government makes crucial concessions at the appeal stage (as in Oestereich), or where the pertinent determination is whether a registrant's status is 'objectively certain.' A day or two of court time may be saved, but, given the duration of the entire litigation, this is insignificant.
2
The majority relies on Boyd v. Clark, 287 F.Supp. 561 (SDNY 1968), which we summarily affirmed, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969), with a single citation of Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968). Although the District Court dismissed the lawsuit on two grounds that pre-induction review was improper and that the jurisdictional amount requirement had not been met—we affirmed on the single ground that pre-induction review was improper, as our simple reference to Clark v. Gabriel was designed to indicate. That reference should not be overburdened with significance. Since those registrants, who had never received an induction notice, had not reached a position of finality within the system, pre-induction review was inappropriate.
3
Section 10(b)(3) proscribes pre-induction review 'of the classification or processing of any registrant . . ..'
4
The majority notes:
'It is true that in Oestereich and Breen a result favorable to the registrant was also reversed, but there the change came about only by the board's consideration of extraneous circumstances apart from the merits of the underlying claims.' Ante, at 377.
This distinction is indeed ironic. One of Fein's basic claims in this lawsuit is that absent a statement of reasons by the Appeal Board that took away his CO classification, there is no way of knowing whether that action was based on extraneous circumstances or whether it was lawful.
| 23
|
405 U.S. 438
92 S.Ct. 1029
31 L.Ed.2d 349
Thomas S. EISENSTADT, Sheriff of Suffolk County, Massachusetts, Appellant,v.William R. BAIRD.
No. 70—17.
Argued Nov. 17 and 18, 1971.
Decided March 22, 1972.
Syllabus
Appellee attacks his conviction of violating Massachusetts law for giving a woman a contraceptive foam at the close of his lecture to students on contraception. That law makes it a felony for anyone to give away a drug, medicine, instrument, or article for the prevention of conception except in the case of (1) a registered physician administering or prescribing it for a married person or (2) an active registered pharmacist furnishing it to a married person presenting a registered physician's prescription. The District Court dismissed appellee's petition for a writ of habeas corpus. The Court of Appeals vacated the dismissal, holding that the statute is a prohibition on contraception per se and conflicts 'with fundamental human rights' under Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. Appellant, inter alia, argues that appellee lacks standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under the statute nor a single person unable to obtain contraceptives. Held:
1. If, as the Court of Appeals held, the statute under which appellee was convicted is not a health measure, appellee may not be prevented, because he was not an authorized distributor, from attacking the statute in its alleged discriminatory application to potential distributees. Appellee, furthermore, has standing to assert the rights of unmarried persons denied access to contraceptives because their ability to obtain them will be materially impaired by enforcement of the statute. Cf. Griswold, supra; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586. Pp. 443—446.
2. By providing dissimilar treatment for married and unmarried persons who are similarly situated, the statute violates the Equal Protection Clause or the Fourteenth Amendment. Pp. 446 455.
(a) The deterrence of fornication, a 90-day misdemeanor under Massachusetts law, cannot reasonably be regarded as the purpose of the statute, since the statute is riddled with exceptions making contraceptives freely available for use in premarital sexual relations and its scope and penalty structure are inconsistent with that purpose. Pp. 447—450.
(b) Similarly, the protection of public health through the regulation of the distribution of potentially harmful articles cannot reasonably be regarded as the of the law, since, if health were the rationale, the statute would be both discriminatory and overbroad, and federal and state laws already regulate the distribution of drugs unsafe for use except under the supervision of a licensed physician. Pp. 450—452.
(c) Nor can the statute be sustained simply as a prohibition on contraception per se, for whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. If under Griswold, supra, the distribution on contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible, since the constitutionally protected right of privacy inheres in the individual, not the marital couple. If, on the other hand, Griswold is no bar to a prohibition on the distribution of contraceptives, a prohibition limited to unmarried persons would be underinclusive and invidiously discriminatory. Pp. 452—455.
429 F.2d 1398, affirmed.
Joseph R. Nolan, Boston, Mass., for appellant.
Joseph D. Tydings, Baltimore, Md., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellee William Baird was convicted at a bench trial in the Massachusetts Superior Court under Massachusetts General Laws Ann., c. 272, § 21, first, for exhibiting contraceptive articles in the course of delivering a lecture on contraception to a group of students at Boston University and, second, for giving a young woman a package of Emko vaginal foam at the close of his address.1 The Massachusetts Supreme Judicial Court unanimously set aside the conviction for exhibiting contraceptives on the ground that it violated Baird's First Amendment rights, but by a four-to-three vote sustained the conviction for giving away the foam. Commonwealth v. Baird, 355 Mass. 746, 247 N.E.2d 574 (1969). Baird subsequently filed a petition for a federal writ of habeas corpus, which the District Court dismissed. 310 F.Supp. 951 (1970). On appeal, however, the Court of Appeals for the First Circuit vacated the dismissal and remanded the action with directions to grant the writ discharging Baird. 429 F.2d 1398 (1970). This appeal by the Sheriff of Suffolk County, Massachusetts, followed, and we noted probable jurisdiction. 401 U.S. 934, 91 S.Ct. 921, 28 L.Ed.2d 213 (1971). We affirm.
2
Massachusetts General Laws Ann., c. 272, § 21, under which Baird was convicted, provides a maximum five-year term of imprisonment for 'whoever . . . gives away . . . any drug, medicine, instrument or article whatever for the prevention of conception,' except as authorized in § 21A. Under § 21A, '(a) registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. (And a) registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician.'2 As interpreted by the State Supreme Judicial Court, these provisions make it a felony for anyone, other than a registered physician or pharmacist acting in accordance with the terms of § 21A, to dispense any article with the intention that it be used for the prevention of conception. The statutory scheme distinguishes among three distinct classes of distributees—first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent, not pregnancy, but the spread of disease. This construction of state law is, of course, binding on us. E.g., Groppi v. Wisconsin, 400 U.S. 505, 507, 91 S.Ct. 490, 491, 27 L.Ed.2d 571 (1971).
3
The legislative purposes that the statute is meant to serve are not altogether clear. In Commonwealth v. Baird, supra, the Supreme Judicial Court noted only the State's interest in protecting the health of its citizens: '(T)he prohibition in § 21,' the court declared, 'is directly related to' the State's goal of 'preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences,' 355 Mass., at 753, 247 N.E.2d, at 578. In a subsequent decision, Sturgis v. Attorney General, 358 Mass. 37, 260 N.E.2d 687, 690 (1970), the court, however, found 'a second and more compelling ground for upholding the statute'—namely, to protect morals through 'regulating the private sexual lives of single persons.'3 The Court of Appeals, for reasons that will appear, did not consider the promotion of health or the protection of morals through the deterrence of fornication to be the legislative aim. Instead, the court concluded that the statutory goal was to limit contraception in and of itself—a purpose that the court held conflicted 'with fundamental human rights' under Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), where this Court struck down Connecticut's prohibition against the use of contraceptives as an unconstitutional infringement of the right of marital privacy. 429 F.2d, at 1401 1402.
4
We agree that the goals of deterring premarital sex and regulating the distribution of potentially harmful articles cannot reasonably be regarded as legislative aims of §§ 21 and 21A. And we hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment.
5
* We address at the outset appellant's contention that Baird does not have standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under § 21A nor a single person unable to obtain contraceptives. There can be no question, of course, that Baird has sufficient interest in challenging the statute's validity to satisfy the 'case or controversy' requirement of Article III of the Constitution.4 Appellant's argument, however, is that this case is governed by the Court's self-imposed rules of restraint, first, that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional,' United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960), and, second, the 'closely related corollary that a litigant may only assert his own constitutional rights or immunities,' id., at 22, 80 S.Ct., at 523. Here, appellant contends that Baird's conviction rests on the restriction in 21A on permissible distributors and that that restriction serves a valid health interest independent of the limitation on authorized distributees. Appellant urges, therefore, that Baird's action in giving away the foam fell squarely within the conduct that the legislature meant and had power to prohibit and that Baird should not be allowed to attack the statute in its application to potential recipients. In any event, appellant concludes, since Baird was not himself a single person denied access to contraceptives, he should not be heard to assert their rights. We cannot agree.
6
The Court of Appeals held that the statute under which Baird was convicted is not a health measure. If that view is correct, we do not see how Baird may be prevented, because he was neither a doctor nor a druggist, from attacking the statute in its alleged discriminatory application to potential distributees. We think, too, that our selfimposed rule against the assertion of third-party rights must be relaxed in this case just as in Griswold v. Connecticut, supra. There the Executive Director of the Planned Parenthood League of Connecticut and a licensed physician who had prescribed contraceptives for married persons and been convicted as accessories to the crime of using contraceptives were held to have standing to raise the constitutional rights of the patients with whom they had a professional relationship. Appellant here argues that the absence of a professional or aiding-and-abetting relationship distinguishes this case from Griswold. Yet, as the Court's discussion of prior authority in Griswold, 381 U.S., at 481, 85 S.Ct., at 1679, 14 L.Ed.2d 510, indicates, the doctor-patient and accessory-principal relationships are not the only circumstances in which one person has been found to have standing to assert the rights of another. Indeed, in Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), a seller of land was entitled to defend against an action for damages for breach of a racially restrictive covenant on the ground that enforcement of the covenant violated the equal protection rights of prospective non-Caucasian purchasers. The relationship there between the defendant and those whose rights he sought to assert was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself. Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599, 631 (1962). And so here the relationship between Baird and those whose rights he seeks to assert is not simply that between a distributor and potential distributees, but that between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so. The very point of Baird's giving away the vaginal foam was to challenge the Massachusetts statute that limited access to contraceptives.
7
In any event, more important than the nature of the relationship between the litigant and those whose rights he seeks to assert is the impact of the litigation on the third-party interests.5 In Griswold, 381 U.S., at 481, 85 S.Ct., at 1680, 14 L.Ed.2d 510, the Court stated: 'The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.' A similar situation obtains here. Enforcement of the Massachusetts statute will materially impair the ability of single persons to obtain contraceptives. In fact, the case for according standing to assert third-party rights is stronger in this regard here than in Griswold because unmarried persons denied access to contraceptives in Massachusetts, unlike the users of contraceptives in Connecticut, are not themselves subject to prosecution and, to that extent, are denied a forum in which to assert their own rights. Cf. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Burrows v. Jackson, supra.6 The Massachusetts statute, unlike the Connecticut law considered in Griswold, prohibits, not use, but distribution.
8
For the foregoing reasons we hold that Baird, who is now in a position, and plainly has an adequate incentive, to assert the rights of unmarried persons denied access to contraceptives, has standing to do so. We turn to the merits.
II
9
The basic principles governing application of the Equal Protection Clause of the Fourteenth Amendment are familiar. As The Chief Justice only recently explained in Reed v. Reed, 404 U.S. 71, 75—76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971):
10
'In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to State 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 State 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, 64 L.Ed. 989 (1920).'
11
The question for our determination in this case is whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons under Massachusetts General Laws Ann., c. 272, §§ 21 and 21A.7 For the reasons that follow, we conclude that no such ground exists.
12
First. Section 21 stems from Mass. Stat.1879, c. 159, § 1, which prohibited without exception, distribution of articles intended to be used as contraceptives. In Commonwealth v. Allison, 227 Mass. 57, 62, 116 N.E. 265, 266 (1917), the Massachusetts Supreme Judicial Court explained that the law's 'plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint, to defend the sancity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women.' Although the State clearly abandoned that purpose with the enactment of § 21A, at least insofar as the illicit sexual activities of married persons are concerned, see n. 3, supra, the court reiterated in Sturgis v. Attorney General, supra, that the object of the legislation is to discourage premarital sexual intercourse. Conceding that the State could, consistently with the Equal Protection Clause, regard the problems of extramarital and premarital sexual relations as '(e)vils . . . of different dimensions and proportions, requiring different remedies,' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955), we cannot agree that the deterrence of premarital sex may reasonably be regarded as the purpose of the Massachusetts law.
13
It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication, which is a misdemeanor under Massachusetts General Laws Ann., c. 272, § 18. Aside from the scheme of values that assumption would attribute to the State, it is abundantly clear that the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective. What Mr. Justice Goldberg said in Griswold v. Connecticut, supra, 381 U.S., at 498, 85 S.Ct., at 1689, 14 L.Ed.2d 510 (concurring opinion), concerning the effect of Connecticut's prohibition on the use of contraceptives in discouraging extramarital sexual relations, is equally applicable here. 'The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception.' See also id., at 505—507, 85 S.Ct., at 1689 (White, J., concurring in judgment). Like Connecticut's laws, §§ 21 and 21A do not at all regulate the distribution of contraceptives when they are to be used to prevent, not pregnancy, but the spread of disease. Commonwealth v. Corbett, 307 Mass. 7, 29 N.E.2d 151 (1940), cited with approval in Commonwealth v. Baird, 355 Mass., at 754, 247 N.E.2d, at 579. Nor, in making contraceptives available to married persons without regard to their intended use, does Massachusetts attempt to deter married persons from engaging in illicit sexual relations with unmarried persons. Even on the assumption that the fear of pregnancy operates as a deterrent to fornication, the Massachusetts statute is thus so riddled with exceptions that deterrence of premarital sex cannot reasonably be regarded as its aim.
14
Moreover, §§ 21 and 21A on their face have a dubious relation to the State's criminal prohibition on fornication. As the Court of Appeals explained, 'Fornication is a misdemeanor (in Massachusetts), entailing a thirty dollar fine, or three months in jail. Massachusetts General Laws Ann. c. 272, § 18. Violation of the present statute is a felony, punishable by five years in prison. We find it hard to believe that the legislature adopted a statute carrying a five-year penalty for its possible, obviously by no means fully effective, deterrence of the commission of a ninety-day misdemeanor.' 429 F.2d, at 1401. Even conceding the legislature a full measure of discretion in fashioning means to prevent fornication, and recognizing that the State may seek to deter prohibited conduct by punishing more severely those who facilitate than those who actually engage in its commission, we, like the Court of Appeals, cannot believe that in this instance Massachusetts has chosen to expose the aider and abetter who simply gives away a contraceptive to 20 times the 90-day sentence of the offender himself. The very terms of the State's criminal statutes, coupled with the de minimis effect of §§ 21 and 21A in deterring fornication, thus compel the conclusion that such deterrence cannot reasonably be taken as the purpose of the ban on distribution of contraceptives to unmarried persons.
15
Second. Section 21A was added to the Massachusetts General Laws by Stat. 1966, c. 265, § 1. The Supreme Judicial Court in Commonwealth v. Baird, supra, held that the purpose of the amendment was to serve the health needs of the community by regulating the distribution of potentially harmful articles. It is plain that Massachusetts had no such purpose in mind before the enactment of § 21A. As the Court of Appeals remarked, 'Consistent with the fact that the statute was contained in a chapter dealing with 'Crimes Against Chastity, Morality, Decency and Good Order,' it was cast only in terms of morals. A physician was forbidden to prescribe contraceptives even when needed for the protection of health. Commonwealth v. Gardner, 1938, 300 Mass. 372, 15 N.E.2d 222.' 429 F.2d, at 1401. Nor did the Court of Appeals 'believe that the legislature (in enacting § 21A) suddenly reversed its field and developed an interest in health. Rather, it merely made what it thought to be the precise accommodation necessary to escape the Griswold ruling.' Ibid.
16
Again, we must agree with the Court of Appeals. If health were the rationale of § 21A, the statute would be both discriminatory and overbroad. Dissenting in Commonwealth v. Baird, 355 Mass., at 758, 247 N.E.2d, at 581, Justices Whittemore and Cutter stated that they saw 'in § 21 and § 21A, read together, no public health purpose. If there is need to have physician prescribe (and a pharmacist dispense) contraceptives, that need is as great for unmarried persons as for married persons.' The Court of Appeals added: 'If the prohibition (on distribution to unmarried persons) . . . is to be taken to mean that the same physician who can prescribe for married patients does not have sufficient skill to protect the health of patients who lack a marriage certificate, or who may be currently divorced, it is illogical to the point of irrationality.' 429 F.2d, at 1401.8 Furthermore, we must join the Court of Appeals in noting that not all contraceptives are potentially dangerous.9 As a result, if the Massachusetts statute were a health measure, it would not only invidiously discriminate against the unmarried, but also be overbroad with respect to the married, a fact that the Supreme Judicial Court itself seems to have conceded in Sturgis v. Attorney General. Mass., 260 N.E.2d at 690, where it noted that 'it may well be that certain contraceptive medication and devices constitute no hazard to health, in which event it could be argued that the statute swept too broadly in its prohibition.' 'In this posture,' as the Court of Appeals concluded, 'it is impossible to think of the statute as intended as a health measure for the unmarried, and it is almost as difficult to think of it as so intended even as to the married.' 429 F.2d, at 1401.
17
But if further proof that the Massachusetts statute is not a health measure is necessary, the argument of Justice Spiegel, who also dissented in Commonwealth v. Baird, 355 Mass., at 759, 247 N.E.2d, at 582, is conclusive: 'It is at best a strained conception to say that the Legislature intended to prevent the distribution of articles 'which may have undesirable, if not dangerous, physical consequences.' If that was the Legislature's goal, § 21 is not required' in view of the federal and state laws already regulating the distribution of harmful drugs. See Federal Food, Drug, and Cosmetic Act, § 503, 52 Stat. 1051, as amended, 21 U.S.C. § 353; Mass.Gen. Laws Ann., c. 94, § 187A, as amended. We conclude, accordingly, that, despite the statute's superficial earmarks as a health measure, health, on the face of the statute, may no more reasonably be regarded as its purpose than the deterrence of premarital sexual relations.
18
Third. If the Massachusetts statute cannot be upheld as a deterrent to fornication or as a health measure, may it, nevertheless, be sustained simply as a prohibition on contraception? The Court of Appeals analysis 'led inevitably to the conclusion that, so far as morals are concerned, it is contraceptives per se that are considered immoral—to the extent that Griswold will permit such a declaration.' 429 F.2d, at 1401 1402. The Court of Appeals went on to hold, id., at 1402:
19
'To say that contraceptives are immoral as such, and are to be forbidden to unmarried persons who will nevertheless persist in having intercourse, means that such persons must risk for themselves an unwanted pregnancy, for the child, illegitimacy, and for society, a possible obligation of support. Such a view of morality is not only the very mirror image of sensible legislation; we consider that it conflicts with fundamental human rights. In the absence of demonstrated harm, we hold it is beyond the competency of the state.'
20
We need not and do not, however, decide that important question in this case because, whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.
21
If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. See Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).10 See also Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643 (1905).
22
On the other hand, if Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons. In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious. Mr. Justice Jackson, concurring in Railway Express Agency v. New York, 336 U.S. 106, 112—113, 69 S.Ct. 463, 466, 93 L.Ed. 533 (1949), made the point:
23
'The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.'
24
Although Mr. Justice Jackson's comments had reference to administrative regulations, the principle he affirmed has equal application to the legislation here. We hold that by providing dissimilar treatment for married and unmarried persons who are similarly situated, Massachusetts General Laws Ann., c. 272, §§ 21 and 21A, violate the Equal Protection Clause. The judgment of the Court of Appeals is affirmed.
25
Affirmed.
26
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
27
Mr. Justice DOUGLAS, concurring.
28
While I join the opinion of the Court, there is for me a narrower ground for affirming the Court of Appeals. This to me is a simple First Amendment case, that amendment being applicable to the States by reason of the Fourteenth. Stromberg. v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117.
29
Under no stretch of the law as presently stated could Massachusetts require a license for those who desire to lecture on planned parenthood, contraceptives, the rights of women, birth control, or any allied subject, or place a tax on that privilege. As to license taxes on First Amendment rights we said in Murdock v. Pennsylvania, 319, U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292:
30
'A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in a preferred position.'
31
We held in Thomas v. Collins, 323 U.S. 516, 65 S.Ct., 315, 89 L.Ed. 430, that a person speaking at a labor union rally could not be required to register or obtain a license:
32
'As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly. Lawful public assemblies, involving no element of grave and immediate danger to an interest the State is entitled to protect, are not instruments of harm which require previous identification of the speakers. And the right either of workmen or of unions under these conditions to assemble and discuss their own affairs is as fully protected by the Constitution as the right of businessmen, farmers, educators, political party members or others to assemble and discuss their affairs and to enlist the support of others.
33
'. . . If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.' Id., at 539, 540, 65 S.Ct., at 327.
34
Baird addressed an audience of students and faculty at Boston University on the subject of birth control and overpopulation. His address was approximately one hour in length and consisted of a discussion of various contraceptive devices displayed by means of diagrams on two demonstration boards, as well as a display of contraceptive devices in their original packages. In addition, Baird spoke of the respective merits of various contraceptive devices; overpopulation in the world; crises throughout the world due to overpopulation; the large number of abortions performed on unwed mothers; and quack abortionists and the potential harm to women resulting from abortions performed by quack abortionists. Baird also urged members of the audience to petition the Massachusetts Legislature and to make known their feelings with regard to birth control laws in order to bring about a change in the laws. At the close of the address Baird invited members of the audience to come to the stage and help themselves to the contraceptive articles. We do not know how many accepted Baird's invitation. We only know that Baird personally handed one woman a package of Emko Vaginal Foam. He was then arrested and indicted (1) for exhibiting contraceptive devices and (2) for giving one such device away. The conviction for the first offense was reversed, the Supreme Judicial Court of Massachusetts holding that the display of the articles was essential to a graphic representation of the lecture. But the conviction for the giving away of one article was sustained. 355 Mass. 746, 247 N.E.2d 574. The case reaches us by federal habeas corpus.
35
Had Baird not 'given away' a sample of one of the devices whose use he advocated, there could be no question about the protection afforded him by the First Amendment. A State may not 'contract the spectrum of available knowledge.' Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510. See also Thomas v. Collins, supra; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. However noxious Baird's ideas might have been to the authorities, the freedom to learn about them, fully to comprehend their scope and portent, and to weigh them against the tenets of the 'conventional wisdom,' may not be abridged. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. Our system of government requires that we have faith in the ability of the individual to decide wisely, if only he is fully apprised of the merits of a controversy.
36
'Freedom of discussion, if it would fulfill it 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.
37
The teachings of Baird and those of Galileo might be of a different order; but the suppression of either is equally repugnant.
38
As Milton said in the Areopagitica, 'Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.'
39
It is said that only Baird's conduct is involved and United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, is cited. That case involved a registrant under the Selective Service Act burning his Selective Service draft card. When prosecuted for that act, he defended his conduct as 'symbolic speech.' The Court held it was not.
40
Whatever may be thought of that decision on the merits,1 O'Brien is not controlling here. The distinction between 'speech' and 'conduct' is a valid one, insofar as it helps to determine in a particular case whether the purpose of the activity was to aid in the communication of ideas, and whether the form of the communication so interferes with the rights of others that reasonable regulations may be imposed.2 See Public Utilities Comm'n v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (Douglas, J., dissenting). Thus, excessive noise might well be 'conduct'—a form of pollution which can be made subject to precise, narrowly drawn regulations. See Adderley v. Florida, 385 U.S. 39, 54, 87 S.Ct. 242, 250, 17 L.Ed.2d 149 (Douglas, J., dissenting). But 'this Court has repeatedly stated, (First Amendment) rights are not confined to verbal expression. They embrace appropriate types of action . . .' Brown v. Louisiana, 383 U.S. 131, 141—142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637.
41
Baird gave an hour's lecture on birth control and as an aid to understanding the ideas which he was propagating he handed out one sample of one of the devices whose use he was endorsing. A person giving a lecture on coyote-getters would certainly improve his teaching technique if he passed one out to the audience; and he would be protected in doing so unless of course the device was loaded and ready to explode, killing or injuring people. The same holds true in my mind for mouse-traps, spray guns, or any other article not dangerous per se on which speakers give educational lectures.
42
It is irrelevant to the application of these principles that Baird went beyond the giving of information about birth control and advocated the use of contraceptive articles. The First Amendment protects the opportunity to persuade to action whether that action be unwise or immoral, or whether the speech incites to action. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Terminiello v. Chicago, supra.
43
In this case there was not even incitement to action.3 There is no evidence or finding that Baird intended that the young lady take the foam home with her when he handed it to her or that she would not have examined the article and then returned it to Baird, had he not been placed under arrest immediately upon handing the article over.4
44
First Amendment rights are not limited to verbal expression.5 The right to petition often involves the right to walk. The right of assembly may mean pushing or jostling. Picketing involves physical activity as well as a display of a sign. A sit-in can be a quiet, dignified protest that has First Amendment protection even though no speech is involved, as we held in Brown v. Louisiana, supra. Putting contraceptives on display is certainly an aid to speech and discussion. Handing an article under discussion to a member of the audience is a technique known to all teachers and is commonly used. A handout may be on such a scale as to smack of a vendor's marketing scheme. But passing one article to an audience is merely a projection of the visual aid and should be a permissible adjunct of free speech. Baird was not making a prescription nor purporting to give medical advice. Handing out the article was not even a suggesion that the lady use it. At most it suggested that she become familiar with the product line.
45
I do not see how we can have a Society of the Dialogue, which the First Amendment envisages, if time-honored teaching techniques are barred to those who give educational lectures.
46
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN joins, concurring in the result.
47
In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), we reversed criminal convictions for advising married persons with respect to the use of contraceptives. As there applied, the Connecticut law, which forbade using contraceptives or giving advice on the subject, unduly invaded a zone of marital privacy protected by the Bill of Rights. The Connecticut law did not regulate the manufacture or sale of such products and we expressly left open any question concerning the permissible scope of such legislation. 381 U.S., at 485, 85 S.Ct., at 1682.
48
Chapter 272, § 21, of the Massachusetts General Laws makes it a criminal offense to distribute, sell, or give away any drug, medicine, or article for the prevention of conception. Section 21A excepts from this prohibition registered physicians who prescribe for and administer such articles to married persons and registered pharmacists who dispense on medical prescription.1
49
Appellee Baird was indicted for giving away Emko Vaginal Foam, a 'medicine and article for the prevention of conception . . ..'2 The State did not purport to charge or convict Baird for distributing to an unmarried person. No proof was offered as to the marital status of the recipient. The gravamen of the offense charged was that Baird had no license and therefore no authority to distribute to anyone. As the Supreme Judicial Court of Massachusetts noted, the constitutional validity of Baird's conviction rested upon his lack of status as a 'distributor and not . . . the marital status of the recipient.' Commonwealth v. Baird, 355 Mass. 746, 753, 247 N.E.2d 574, 578 (1969). The Federal District Court was of the same view.3
50
I assume that a State's interest in the health of its citizens empowers it to restrict to medical channels the distribution of products whose use should be accompanied by medical advice. I also do not doubt that various contraceptive medicines and article are properly available only on prescription, and I therefore have no difficulty with the Massachusetts court's characterization of the statute at issue here as expressing 'a legitimate interest in preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences.' Id., at 753, 247 N.E.2d, at 578. Had Baird distributed a supply of the so-called 'pill,' I would sustain his conviction under this statute.4 Requiring a prescription to obtain potentially dangerous contraceptive material may place a substantial burden upon the right recognized in Griswold, but that burden is justified by a strong state interest and does not, as did the statute at issue in Griswold, sweep unnecessarily broadly or seek 'to achieve its goals by means having a maximum destructive impact upon' a protected relationship. Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682.
51
Baird, however, was found guilty of giving away vaginal foam. Inquiry into the validity of this conviction does not come to an end merely because some contraceptives are harmful and their distribution may be restricted. Our general reluctance to question a State's judgment on matters of public health must give way where, as here, the restriction at issue burdens the constitutional rights of married persons to use contraceptives. In these circumstances we may not accept on faith the State's classification of a particular contraceptive as dangerous to health. Due regard for protecting constitutional rights requires that the record contain evidence that a restriction on distribution of vaginal foam is essential to achieve the statutory purpose, or the relevant facts concerning the product must be such as to fall within the range of judicial notice.
52
Neither requirement is met here. Nothing in the record even suggests that the distribution of vaginal foam should be accompanied by medical advice in order to protect the user's health. Nor does the opinion of the Massachusetts court or the State's brief filed here marshal facts demonstrating that the hazards of using vaginal foam are common knowledge or so incontrovertible that they may be noticed judicially. On the contrary, the State acknowledges that Emko is a product widely available without prescription. Given Griswold v. Connecticut, supra, and absent proof of the probable hazards of using vaginal foam, we could not sustain appellee's conviction had it been for selling or giving away foam to a married person. Just as in Griswold, where the right of married persons to use contraceptives was 'diluted or adversely affected' by permitting a conviction for giving advice as to its exercise, id., at 481, 85 S.Ct., at 1679, so here, to sanction a medical restriction upon distribution of a contraceptive not proved hazardous to health would impair the exercise of the constitutional right.
53
That Baird could not be convicted for distributing Emko to a married person disposes of this case. Assuming, arguendo, that the result would be otherwise had the recipient been unmarried, nothing has been placed in the record to indicate her marital status. The State has maintained that marital status is irrelevant because an unlicensed person cannot legally dispense vaginal foam either to married or unmarried persons. This approach is plainly erroneous and requires the reversal of Baird's conviction; for on the facts of this case, it deprives us of knowing whether Baird was in fact convicted for making a constitutionally protected distribution of Emko to a married person.
54
The principle established in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and consistently adhered to is that a conviction cannot stand where the 'record fail(s) to prove that the conviction was not founded upon a theory which could not constitutionally support a verdict.' Street v. New York, 394 U.S. 576, 586, 89 S.Ct. 1354, 1362, 22 L.Ed.2d 572 (1969). To uphold a conviction even 'though we cannot know that it did not rest on the invalid constitutional ground . . . would be to countenance a procedure which would cause a serious impairment of constitutional rights.' Williams v. North Carolina, 317 U.S. 287, 292, 63 S.Ct. 207, 210, 87 L.Ed. 279 (1942).
55
Because this case can be disposed of on the basis of settled constitutional doctrine, I perceive no reason for reaching the novel constitutional question whether a State may restrict or forbid the distribution of contraceptives to the unmarried. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
56
Mr. Chief Justice BURGER, dissenting.
57
The judgment of the Supreme Judicial Court of Massachusetts in sustaining appellee's conviction for dispensing medicinal material without a license seems eminently correct to me and I would not disturb it. It is undisputed that appellee is not a physician or pharmacist and was prohibited under Massachusetts law from dispensing contraceptives to anyone, regardless of marital status. To my mind the validity of this restriction on dispensing medicinal substances is the only issue before the Court, and appellee has no standing to challenge that part of the statute restricting the persons to whom contraceptives are available. There is no need to labor this point, however, for everyone seems to agree that if Massachusetts has validly required, as a health measure, that all contraceptives be dispensed by a physician or pursuant to a physician's prescription, then the statutory distinction based on marital status has no bearing on this case. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960).
58
The opinion of the Court today brushes aside appellee's status as an unlicensed layman by concluding that the Massachusetts Legislature was not really concerned with the protection of health when it passed this statute. Mr. Justice WHITE acknowledges the statutory concern with the protection of health, but finds the restriction on distributors overly broad because the State has failed to adduce facts showing the health hazards of the particular substance dispensed by appellee as distinguished from other contraceptives. Mr. Justice DOUGLAS' concurring opinion does not directly challenge the power of Massachusetts to prohibit laymen from dispensing contraceptives, but considers that appellee rather than dispensing the substance was resorting to a 'time-honored teaching technique' by utilizing a 'visual aid' as an adjunct to his protected speech. I am puzzled by this third characterization of the case. If the suggestion is that appellee was merely displaying the contraceptive material without relinquishing his ownership of it, then the argument must be that the prosecution failed to prove that appellee had 'given away' the contraceptive material. But appellee does not challenge the sufficiency of the evidence, and himself summarizes the record as showing that 'at the close of his lecture he invited members of the audience . . . to come and help themselves.' On the other hand, if the concurring opinion means that the First Amendment protects the distribution of all articles 'not dangerous per se' when the distribution is coupled with some form of speech, then I must confess that I have misread certain cases in the area. See e.g., United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); 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).
59
My disagreement with the opinion of the Court and that of Mr. Justice WHITE goes far beyond mere puzzlement, however, for these opinions seriously invade the constitutional prerogatives of the States and regrettably hark back to the heyday of substantive due process.
60
In affirming appellee's conviction, the highest tribunal in Massachusetts held that the statutory requirement that contraceptives be dispensed only through medical channels served the legitimate interest of the State in protecting the health of its citizens. The Court today blithely hurdles this authoritative state pronouncement and concludes that the statute has no such purpose. Three basic arguments are advanced: First, since the distribution of contraceptives was prohibited as a moral matter in Massachusetts prior to 1966, it is impossible to believe that the legislature was concerned with health when it lifted the complete ban but insisted on medical supervision. I fail to see why the historical predominance of an unacceptable legislative purpose makes incredible the emergence of a new and valid one.1 See McGowan v. Maryland, 366 U.S. 420, 445—449, 81 S.Ct. 1101, 1115—1117, 6 L.Ed.2d 393 (1961). The second argument, finding its origin in a dissenting opinion in the Supreme Judicial Court of Massachusetts, rejects a health purpose because, '(i)f there is need to have a physician prescribe . . . contraceptives, that need is as great for unmarried persons as for married persons.' 355 Mass. 746, 758, 247 N.E.2d 574, 581. This argument confuses the validity of the restriction on distributors with the validity of the further restriction on distributees, a part of the statute not properly before the Court. Assuming the legislature too broadly restricted the class of persons who could obtain contraceptives, it hardly follows that it saw no need to protect the health of all persons to whom they are made available. Third, the Court sees no health purpose underlying the restriction on distributors because other state and federal laws regulate the distribution of harmful drugs. I know of no rule that all enactments relating to a particular purpose must be neatly consolidated in one package in the statute books for, if so, the United States Code will not pass muster. I am unable to draw any inference as to legislative purpose from the fact that the restriction on dispensing contraceptives was not codified with other statutory provisions regulating the distribution of medicinal substances. And the existence of nonconflicting, nonpre-emptive federal laws is simply without significance in judging the validity or purpose of a state law on the same subject matter.
61
It is possible, of course, that some members of the Massachusetts Legislature desired contraceptives to be dispensed only through medical channels in order to minimize their use, rather than to protect the health of their users, but I do not think it is the proper function of this Court to dismiss as dubious a state court's explication of a state statute absent overwhelming and irrefutable reasons for doing so.
62
Mr. Justice WHITE, while acknowledging a valid legislative purpose of protecting health, concludes that the State lacks power to regulate the distribution of the contraceptive involved in this case as a means of protecting health.2 The opinion grants that appellee's conviction would be valid if he had given away a potentially harmful substance, but rejects the State's placing this particular contraceptive in that category. So far as I am aware, this Court has never before challenged the police power of a State to protect the public from the risks of possibly spurious and deleterious substances sold within its borders. Moreover, a statutory classification is not invalid.
63
'simply because some innocent articles or transactions may be found within the proscribed class. The inquiry must be whether, considerating the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.' Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 204, 33 S.Ct. 44, 47, 57 L.Ed. 184 (1912).
64
But since the Massachusetts statute seeks to protect health by regulating contraceptives, the opinion invokes Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and puts the statutory classification to an unprecedented test: either the record must contain evidence supporting the classification or the health hazards of the particular contraceptive must be judicially noticeable. This is indeed a novel constitutional doctrine and not surprisingly no authority is cited for it.
65
Since the potential harmfulness of this particular medicinal substance has never been placed in issue in the state or federal courts, the State can hardly be faulted for its failure to build a record on this point. And it totally mystifies me why, in the absence of some evidence in the record, the factual underpinnings of the statutory classification must be 'incontrovertible' or a matter of 'common knowledge.'
66
The actual hazards of introducing a particular foreign substance into the human body are frequently controverted, and I cannot believe that unanimity of expert opinion is a prerequisite to a State's exercise of its police power, no matter what the subject matter of the regulation. Even assuming no present dispute among medical authorities, we cannot ignore that it has become commonplace for a drug or food additive to be universally regarded as harmless on one day and to be condemned as perilous on the next. It is inappropriate for this Court to overrule a legislative classification by relying on the present consensus among leading authorities. The commands of the Constitution cannot fluctuate with the shifting tides of scientific opinion.
67
Even if it were conclusively established once and for all that the product dispensed by appellee is not actually or potentially dangerous in the somatic sense, I would still be unable to agree that the restriction on dispensing it falls outside the State's power to regulate in the area of health. The choice of a means of birth control, although a highly personal matter, is also a health matter in a very real sense, and I see nothing arbitrary in a requirement of medical supervision.3 It is generally acknowledged that contraceptives vary in degree of effectiveness and potential harmfulness.4 There may be compelling health reasons for certain women to choose the most effective means of birth control available, no matter how harmless the less effective alternatives.5 Others might be advised not to use a highly effective means of contraception because of their peculiar susceptibility to an adverse side effect.6 Moreover, there may be information known to the medical profession that a particular brand of contraceptive is to be preferred or avoided, or that it has not been adequately tested. Nonetheless, the concurring opinion would hold, as a constitutional matter, that a State must allow someone without medical training the same power to distribute this medicinal substance as is enjoyed by a physician.
68
It is revealing, I think, that those portions of the majority and concurring opinions rejecting the statutory limitation on distributors rely on no particular provision of the Constitution. I see nothing in the Fourteenth Amendment or any other part of the Constitution that even vaguely suggests that these medicinal forms of contraceptives must be available in the open market. I do not challenge Griswold v. Connecticut, supra, despite its tenuous moorings to the text of the Constitution, but I cannot view it as controlling authority for this case. The Court was there confronted with a statute flatly prohibiting the use of contraceptives, not one regulating their distribution. I simply cannot believe that the limitation on the class of lawful distributors has significantly impaired the right to use contraceptives in Massachusetts. By relying in Griswold in the present context, the Court has passed beyond the penumbras of the specific guarantees into the uncircumscribed area of personal predilections.
69
The need for dissemination of information on birth control is not impinged in the slightest by limiting the distribution of medicinal substances to medical and pharmaceutical channels as Massachusetts has done by statute. The appellee has succeeded, it seems, in cloaking his activities in some new permutation of the First Amendment although his conviction rests in fact and law on dispensing a medicinal substance without a license. I am constrained to suggest that if the Constitution can be strained to invalidate the Massachusetts statute underlying appellee's conviction, we could quite as well employ it for the protection of a 'curbstone quack,' reminiscent of the 'medicine man' of times past, who attracted a crowd of the curious with a soapbox lecture and then plied them with 'free samples' of some unproved remedy. Massachusetts presumably outlawed such activities long ago, but today's holding seems to invite their return.
1
The Court of Appeals below described the recipient of the foam as 'an unmarried adult woman.' 429 F.2d 1398, 1399 (1970). However, there is no evidence in the record about her marital status.
2
Section 21 provides in full:
'Except as provided in section twenty-one A, whoever sells, lends, gives away, exhibits or offers to sell, lend or give away an instrument or other article intended to be used for self-abuse, or any drug, medicine, instrument or article whatever for the prevention of conception or for causing unlawful abortion, or advertises the same, or writes, prints, or causes to be written or printed a card, circular, book, pamphlet, advertisement or notice of any kind stating when, where, how, of whom or by what means such article can be purchased or obtained, or manufactures or makes any such article shall be punished by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years or by a fine of not less than one hundred nor more than one thousand dollars.'
Section 21A provides in full:
'A registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. A registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician.
'A public health agency, a registered nurse, or a maternity health clinic operated by or in an accredited hospital may furnish information to any married person as to where professional advice regarding such drugs or articles may be lawfully obtained.
'This section shall not be construed as affecting the provisions of sections twenty and twenty-one relative to prohibition of advertising of drugs or articles intended for the prevention of pregnancy or conception; nor shall this section be construed so as to permit the sale or dispensing of such drugs or articles by means of any vending machine or similar device.'
3
Appellant suggests that the purpose of the Massachusetts statute is to promote marital fidelity as well as to discourage premarital sex. Under § 21A, however, contraceptives may be made available to married persons without regard to whether they are living with their spouses or the uses to which the contraceptives are to be put. Plainly the legislation has no deterrent effect on extramarital sexual relations.
4
This factor decisively distinguishes Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943), where the Court held that a physician lacked standing to bring an action for declaratory relief to challenge, on behalf of his patients, the Connecticut law prohibiting the use of contraceptives. The patients were fully able to bring their own action. Underlying the decision was the concern that 'the standards of 'case or controversy' in Article III of the Constitution (not) become blurred,' Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510 (1965)—a problem that is not at all involved in this case.
5
Indeed, in First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech. E.g., Thornhill v. Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093 (1940). See United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524 (1960).
6
See also Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), where a custodian, in violation of state law, furnished a child with magazines to distribute on the streets. The Court there implicitly held that the custodian had standing to assert alleged freedom of religion and equal protection rights of the child that were threatened in the very litigation before the Court and that the child had no effective way of asserting herself.
7
Of course, if we were to conclude that the Massachusetts statute impinges upon fundamental freedoms under Griswold, the statutory classification would have to be not merely rationally related to a valid public purpose but necessary to the achievement of a compelling state interest. E.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). But just as in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), we do not have to address the statute's validity under that test because the law fails to satisfy even the more lenient equal protection standard.
8
Appellant insists that the unmarried have no right to engage in sexual intercourse and hence no health interest in contraception that needs to be served. The short answer to this contention is that the same devices the distribution of which the State purports to regulate when their asserted purpose is to forestall pregnancy are available without any controls whatsoever so long as their asserted purpose is to prevent the spread of disease. It is inconceivable that the need for health controls varies with the purpose for which the contraceptive is to be used when the physical act in all cases is one and the same.
9
The Court of Appeals stated, 429 F.2d, at 1401:
'(W)e must take notice that not all contraceptive devices risk 'undesirable . . . (or) dangerous physical consequences.' It is 200 years since Casanova recorded the ubiquitous article which, perhaps because of the birthplace of its inventor, he termed a 'redingote anglais.' The reputed nationality of the condom has now changed, but we have never heard criticism of it on the side of health. We cannot think that the legislature was unaware of it, or could have thought that it needed a medical prescription. We believe the same could be said of certain other products.'
10
In Stanley, 394 U.S., at 564, 89 S.Ct., at 1247, the Court stated:
'(A)lso fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.
"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized man.' Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).
'See Griswold v. Connecticut, supra; cf. NAACP v. Alabama (ex rel. Patterson) 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958).'
1
I have earlier expressed my reasons for believing that the O'Brien decision was not consistent with First Amendment rights. See Brandenburg v. Ohio, 395 U.S. 444, 455, 89 S.Ct. 1827, 1833, 23 L.Ed.2d 430 (concurring opinion).
2
In Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, the Court upheld a state court injunction against peaceful picketing carried on in violation of a state 'anti-restraint-of-trade' law. Giboney, however, is easily distinguished from the present case. Under the circumstances there present, 'There was clear danger, imminent and immediate, that unless restrained, appellants would succeed in making (state antitrust) policy a dead letter . . .. They were exercising their economic power together with that of their allies to compel Empire to abide by union rather than by state regulation of trade.' Id., at 503, 69 S.Ct. at 691 (footnote omitted; emphasis supplied). There is no such coercion in the instant case nor is there a similar frustration of state policy, see text at n. 4, infra. For an analysis of the state policies underlying the Massachusetts statute which Baird was convicted of having violated, see Dienes, The Progeny of Comstockery—Birth Control Laws Return to Court, 21 Am.U.L.Rev. 1, 3—44 (1971).
3
Even under the restrictive meaning which the Court has given the First Amendment, as applied to the States by the Fourteenth, advocacy of law violation is permissible 'except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' Brandenburg v. Ohio, supra, n. 1, 395 U.S., at 447, 89 S.Ct., at 1829.
4
This factor alone would seem to distinguish O'Brien, supra as that case turned on the Court's judgment that O'Brien's 'conduct' frustrated a substantial governmental interest.
5
For a partial collection of cases involving action that comes under First Amendment protection see Brandenburg v. Ohio, supra, n. 1, 395 U.S., at 455—456, 89 S.Ct., at 1833—1834 (concurring opinion).
1
Section 21 provides as follows:
'Except as provided in section twenty-one one A, whoever sells, lends, gives away, exhibits or offers to sell, lend or give away an instrument or other article intended to be used for self-abuse, or any drug, medicine, instrument or article whatever for the prevention of conception or for causing unlawful abortion, or advertises the same, or writes, prints, or causes to be written or printed a card, circular, book, pamphlet, advertisement or notice of any kind stating when, where, how, of whom or by what means such article can be purchased or obtained, or manufactures or makes any such article shall be punished by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years or by a fine of not less than one hundred nor more than one thousand dollars.'
Section 21A makes these exceptions:
'A registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. A registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician.
'A public health agency, a registered nurse, or a maternity health clinic operated by or in an accredited hospital may furnish information to any married person as to where professional advice regarding such drugs or articles may be lawfully obtained.
'This section shall not be construed as affecting the provisions of sections twenty and twenty-one relative to prohibition of advertising of drugs or articles intended for the prevention of pregnancy or conception; nor shall this section be construed so as to permit the sale or dispensing of such drugs or articles by means of any vending machine or similar device.'
2
The indictment states:
'The Jurors for the Commonwealth of Massachusetts on their oath present that William R. Baird, on the sixth day of April, in the year of our Lord one thousand nine hundred and sixty-seven, did unlawfully give away a certain medicine and article for the prevention of conception to wit: Emko Vaginal Foam, the giving away of the said medicine and article by the said William R. Baird not being in accordance with, or authorized or permitted by, the provisions of Section 21A of Chapter 272, of the General Laws of the said Commonwealth.'
3
'Had § 21A authorized registered physicians to administer or prescribe contraceptives for unmarried as well as for married persons, the legal position of the petitioner would not have been in any way altered. Not being a physician he would still have been prohibited by § 21 from 'giving away' the contraceptive.' 310 F.Supp. 951, 954 (Mass.1970).
4
The Food and Drug Administration has made a finding that birth control pills pose possible hazards to health. It therefore restricts distribution and receipt of such products in interstate commerce to properly labeled packages that must be sold pursuant to a prescription. 21 CFR § 130.45. A violation of this law is punishable by imprisonment for one year, a fine of not more than $10,000, or both. 21 U.S.C. §§ 331, 333.
1
The Court places some reliance on the opinion of the Supreme Judicial Court of Massachusetts in Sturgis v. Attorney General, 358 Mass. 37, 260 N.E.2d 687 (1970), to show that § 21A is intended to regulated morals rather than public health. In Sturgis the state court rejected a challenge by a group of physicians to that part of the statute prohibiting the distribution of contraceptives to unmarried women. The court accepted the State's interest in 'regulating the private sexual lives of single persons,' that interest being expressed in the restriction on distributees. Mass., 260 N.E.2d., at 690. The purpose of the restriction on distributors was not in issue.
2
The opinion of the Court states in passing that if the restriction on distributors were in fact intended as a health measure, it would be overly broad. Since the Court does not develop this argument in detail, my response is addressed solely to the reasoning in the opinion of Mr. Justice WHITE, concurring in the result.
3
For general discussions of the need for medical supervision before choosing a means of birth control, see Manual of Family Planning and Contraceptive Practice 47—53 (M. Calderone ed. 1970); Advanced Concepts in Contraception 22—24 (F. Hoffman & R. Kleinman ed. 1968).
4
See U.S. Commission on Population Growth and the American Future, Population and the American Future, pt. II, pp. 38—39 (Mar. 16, 1972); Manual of Family Planning supra, at 268—274, 316, 320, 342, 346; Jaffe, Toward the Reduction of Unwanted Pregnancy, 174 Science 119, 121 (Oct. 8, 1971); G. Hardin, Birth Control 128 (1970); E. Havemann, Birth Control (1967). The contraceptive substance dispensed by appellee, vaginal foam, is thought to be between 70% and 80% effective. See Jaffe, supra, at 121; Dingle & Tietze, Comparative Study of Three Contraceptive Methods, 85 Amer. J. Obst. & Gyn. 1012, 1021 (1963). The birth control pill, by contrast, is thought to be better than 99% effective. See Havemann, Birth Control, supra.
5
See Perkin, Assessment of Reproductive Risk in Nonpregnant Women—A Guide to Establishing Priorities for Contraceptive Care, 101 Amer. J. Obst. & Gyn. 709 (1968).
6
See Manual of Family Planning supra, at 301, 332—333, 336 340.
| 45
|
405 U.S. 504
92 S.Ct. 1048
31 L.Ed.2d 394
Donald Gilbert HUMPHREY, Petitioner,v.Elmer O. CADY, Warden.
No. 70—5004.
Argued Dec. 7, 1971.
Decided March 22, 1972.
Syllabus
Petitioner was convicted of contributing to the delinquency of a minor, a misdemeanor punishable by a maximum sentence of one year. In lieu of sentence, he was committed to the 'sex deviate facility' in the state prison, for a potentially indefinite period, pursuant to the Wisconsin Sex Crimes Act. That Act provides that when a court finds that a convicted person was 'probably directly motivated by a desire for sexual excitement,' it may commit the defendant to the Department of Health and Social Services for a social, physical, and mental examination, and if the Department recommends specialized treatment, the court must hold a hearing on the need therefor. If the State establishes the need for treatment, the court must commit the defendant for treatment in lieu of sentence for a period equal to the maximum sentence authorized for the crime. At the end of that period the Department may petition for a renewal of the commitment for five years. After notice and hearing, the court may renew the commitment if it finds that discharge would be 'dangerous to the public.' Further five-year renewals may be similarly obtained. Petitioner is subject to a five-year renewal order, obtained at the expiration of his one-year sentence. He challenges the original and renewal commitment procedures. He argues that commitment for compulsory treatment under the Sex Crimes Act, at least after the original commitment, is essentially equivalent to commitment under Wisconsin's Mental Health Act, which provides for jury determinations, and that his commitment without jury action deprives him of equal protection of the laws. He also claims that he was denied effective assistance of counsel at both hearings and the opportunity to be present and to confront the State's witnesses at the renewal hearing. He charges equal protection and due process violations as a result of his commitment to state prison rather than to a mental hospital, as provided by the Mental Health Act. At the renewal hearing his counsel argued that a new commitment would constitute double jeopardy and indicated a broad constitutional challenge to the Sex Crimes Act. However, no further action on petitioner's behalf was taken. The District Court dismissed his habeas corpus petition on the grounds that his claims were lacking in merit and that they had been waived by failure to present them adequately to the state courts. The Court of Appeals refused to certify probable cause for an appeal, on the ground that the claims were frivolous. Held:
1. Petitioner's claims are substantial enough to warrant an evidentiary hearing. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620; Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326. Pp. 508—514.
(a) The renewal proceedings bear substantial resemblance to the post-sentencing proceedings in Baxstrom, supra, and the Wisconsin Supreme Court has held that even the initial commitment is not just a sentencing alternative but an independent commitment for treatment, comparable to commitment under the Mental Health Act. Pp. 508—511.
(b) The Mental Health Act and the Sex Crimes Act are apparently not mutually exclusive, and an equal protection claim would be persuasive if it develops on remand that petitioner was deprived of a jury determination or other procedural protections merely by the arbitrary decision to seek commitment under one Act rather than the other. P. 512.
(c) Remand will provide ample opportunity to develop facts relevant to the State's claim of mootness as well as to petitioner's other constitutional claims. Pp. 512—514.
2. Federal habeas corpus is not barred by every state procedural default, and an evidentiary hearing is required to determine whether petitioner knowingly and intelligently made a deliberate strategic waiver of his claims in state court. Pp. 514 517.
Reversed and remanded to District Court.
Irvin B. Charne, Milwaukee, Wis., for petitioner.
George L. Frederick, Madison, Wis., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petitioner was convicted of contributing to the delinquency of a minor, a misdemeanor punishable by a maximum sentence of one year. Wis.Stat.Ann. § 947.15 (1958). In lieu of sentence, he was committed to the 'sex deviate facility,' located in the state prison, for a potentially indefinite period of time, pursuant to the Wisconsin Sex Crimes Act. Wis.Stat.Ann. § 959.15 (1958), as amended, Wis.Stat.Ann. c. 975 (1971). In this petition for federal habeas corpus, he seeks to challenge the constitutional validity of the statutory procedures for commitment and the conditions of his confinement. The District Court dismissed his petition without an evidentiary hearing, on the ground that (1) his claims were for the most part lacking in merit as a matter of law, and (2) his claims had been waived by his failure to present them adequately to the state courts. The Court of Appeals refused to certify probable cause for an appeal, 28 U.S.C. § 2253, relying not on the ground of waiver but solely on the ground that the claims lacked merit.1 We granted certiorari to consider the constitutional challenge to the statute. 401 U.S. 973, 91 S.Ct. 1202, 28 L.Ed.2d 322 (1971). We have concluded that an evidentiary hearing is necessary to resolve petitioner's constitutional claims, and also to resolve the question of waiver; consequently we remand the case to the District Court for a hearing.2
2
* The Wisconsin Sex Crimes Act provides that after a person is convicted of any crime, the court may consider whether the crime was 'probably directly motivated by a desire for sexual excitement.' If the court finds such motivation, it may commit the defendant to the Department of Public Welfare (now the Department of Health and Social Services) for a social, physical, and mental examination. If the Department recommends specialized treatment for the defendant's 'mental and physical aberrations,' the court must hold a hearing on the need for such treatment. If the State establishes the need for treatment by a preponderance of the evidence, the court must commit the defendant to the Department for treatment in lieu of sentence, for a period equal to the maximum sentence authorized for the defendant's crime. At the end of that period, the Department may petition for an order renewing the commitment for five years. After notice and hearing, the court may renew the commitment if it finds that the defendant's discharge would be 'dangerous to the public because of (his) mental or physical deficiency, disorder or abnormality.' Further five-year renewals may be similarly obtained without limitation.
3
Petitioner is presently subject to a five-year renewal order, obtained at the expiration of his one-year maximum sentence. His principal claims relate to the procedure that resulted in the order renewing his commitment. In addition, he challenges the original commitment procedures, and the conditions of his confinement.
4
A review of petitioner's claims compels us to conclude that they are at least substantial enough to warrant an evidentiary hearing, in light of this Court's decisions in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), and Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Thus we reject the contrary conclusion of the Court of Appeals, implicit in its decision to deny leave to appeal.
5
A. One of petitioner's principal arguments is that commitment for compulsory treatment under the Sex Crimes Act, at least after the expiration of the initial commitment in lieu of sentence, is essentially equivalent to commitment for compulsory treatment under Wisconsin's Mental Health Act, Wis.Stat.Ann., c. 51 (1957); that a person committed under the Mental Health Act has a statutory right to have a jury determine whether he meets the standards for commitment, Wis.Stat.Ann. § 51.03; and that petitioner's commitment under the Sex Crimes Act without such a jury determination deprived him of equal protection of the laws.
6
In Baxstrom, substantially the same argument was advanced by a convicted prisoner who was committed under New York law for compulsory treatment, without a jury trial, at the expiration of his penal sentence. This Court held that the State, having made a jury determination generally available to persons subject to commitment for compulsory treatment, could not, consistent with the Equal Protection Clause, arbitrarily withhold it from a few. 383 U.S., at 110—112, 86 S.Ct., at 762—763. The Court recognized that the prisoner's criminal record might be a relevant factor in evaluating his mental condition, and in determining the type of care and treatment appropriate for his condition; it could not, however, justify depriving him of a jury determination on the basic question whether he was mentally ill and an appropriate subject for some kind of compulsory treatment.
7
Since 1880, Wisconsin has relied on a jury to decide whether to confine a person for compulsory psychiatric treatment.3 Like most, if not all, other States with similar legislation, Wisconsin conditions such confinement not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty.4 In making this determination, the jury serves the critical function of introducing into the process a lay judgment, reflecting values generally held in the community, concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment.5
8
Commitment for compulsory treatment under the Wisconsin Sex Crimes Act appears to require precisely the same kind of determination, involving a mixture of medical and social or legal judgments.6 If that is so (and that is properly a subject for inquiry on remand), then it is proper to inquire what justification exists for depriving persons committed under the Sex Crimes Act of the jury determination afforded to persons committed under the Mental Health Act.
9
Respondent seeks to justify the discrimination on the ground that commitment under the Sex Crimes Act is triggered by a criminal conviction; that such commitment is merely an alternative to penal sentencing; and consequently that it does not require the same procedural safeguards afforded in a civil commitment proceeding. That argument arguably has force with respect to an initial commitment under the Sex Crimes Act, which is imposed in lieu of sentence, and is limited in duration to the maximum permissible sentence.7 The argument can carry little weight, however, with respect to the subsequent renewal proceedings, which result in five-year commitment orders based on new findings of fact, and are in no way limited by the nature of the defendant's crime or the maximum sentence authorized for that crime. The renewal orders bear substantial resemblance to the post-sentence commitment that was at issue in Baxstrom. Moreover, the Wisconsin Supreme Court has expressly held that even the initial commitment under the Sex Crimes Act is not simply a sentencing alternative, but rather an independent commitment for treatment, comparable to commitment under the Mental Health Act. The Wisconsin court held, anticipating this Court's decision in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), that a hearing was required even for the initial commitment under the Sex Crimes Act. Huebner v. State, 33 Wis.2d 505, 521—530, 147 N.W.2d 646, 654—658 (1967). While the Huebner decision was grounded in considerations of procedural due process, the Wisconsin court also noted carefully the relevance of Baxstrom and the Equal Protection Clause to its decision.8
10
An alternative justification for the discrimination might be sought in some special characteristic of sex offenders, which may render a jury determination uniquely inappropriate or unnecessary. It appears, however, that the Mental Health Act and the Sex Crimes Act are not mutually exclusive; that 'aberrations' warranting commitment under the latter might also amount to 'mental illness' warranting commitment under the former.9 The equal protection claim would seem to be especially persuasive if it develops on remand that petitioner was deprived of a jury determination, or of other procedural protections, merely by the arbitrary decision of the State to seek his commitment under one statute rather than the other.10
11
B. The remand hearing will also provide an opportunity for the District Court to consider factual questions relevant to petitioner's other claims. In addition to the lack of a jury trial, petitioner challenges several other aspects of the hearing that led to the renewal of his commitment. He claims he was denied effective assistance of counsel, and he was denied the opportunity to be present and to confront the State's witnesses. These claims are tied inextricably to the question of possible waiver of rights at that hearing, a question that clearly requires further exploration on remand, see infra, at 514—517.
12
Petitioner also challenges the adequacy of the hearing that led to his initial commitment. The record shows that petitioner was not represented by counsel at that initial commitment, App. 11 12, and thus the question arises whether the state court ever in fact held the hearing required by Huebner and Specht, and now by statute as well. Moreover, petitioner claims that, even if there was such a hearing, it provided at most an opportunity to challenge the finding that he needed treatment, and not an opportunity to challenge the initial determination that his crime was sexually motivated, a determination that was a necessary prerequisite to the invocation of the whole commitment process. Respondent argues that any defect in the initial commitment has been rendered moot by the intervening renewal hearing.11 It may be, however, that the initial commitment has continuing effects that cannot be remedied by a mere attack on the subsequent renewal order.12 On remand, the District Court should resolve this threshold question of mootness, and if the Court determines that the merits of these claims are properly before it, then it should proceed to resolve the relevant factual and legal questions.
13
Finally, petitioner challenges the place and character of his confinement under the Sex Crimes Act. He objects to the fact that he was committed to the state prison, rather than to a mental hospital, as he would have been under the Mental Health Act; and he contends that no treatment was provided at the prison, notwithstanding the fact that he was in a prison unit labeled 'Sex Deviate Facility.' These matters, in his view, deprived him of equal protection and due process. Respondent argues that this aspect of petitioner's claim has become moot, because (1) petitioner has been released on parole, see n. 2, supra, and (2) the State has established a new treatment facility at the state mental hospital, to which petitioner might be committed if his parole were revoked.13 On remand, the parties will have ample opportunity to develop the facts relevant to the question of mootness, as well as to petitioner's substantial constitutional claims.
II
14
Plainly, then, we cannot accept as a ground for decision the conclusion of the Court of Appeals that petitioner's claims are too frivolous to require a hearing. And alternative ground was relied on by the District Court, however, and respondent presses that argument here. The District Court held that petitioner had waived his constitutional claims by failing to present them properly to the state courts. In order to consider this argument, it will be necessary to review the somewhat complicated procedural history of this case.
15
Petitioner first sought to challenge the constitutionality of the Sex Crimes Act at the hearing on the State's petition to renew his commitment beyond the initial one-year period. His appointed counsel argued that a new commitment order would constitute a prohibited second punishment for a single offense, and indicated that she was making a broad constitutional challenge to the Sex Crimes Act. The state trial judge adjourned the matter to permit the parties to brief the constitutional issues. When petitioner's counsel failed to submit a brief, or to take any further action on behalf of petitioner, the state court concluded that the bare petition of the Department of Public Welfare was sufficient to support an order continuing petitioner's confinement.14 No appeal was taken from that order.15
16
Petitioner subsequently filed a petition for habeas corpus, without the assistance of counsel, in the Wisconsin Supreme Court, which at that time was the only state court authorized to grant habeas corpus relief to state prisoners.16 The petition was summarily dismissed without a response from the State or an opinion by the court. While the petition is not in the record before us, both parties represent that it was substantially identical to the subsequent petition for federal habeas corpus that initiated the present proceedings.17
17
The federal petition, also prepared without the assistance of counsel, alleges, in addition to the claim of double jeopardy, a claim that petitioner was denied equal protection and due process, referring specifically to, inter alia, the lack of a jury trial, and confinement in the state prison.
18
The District Court held that the failure of petitioner's trial counsel to file a brief in the state trial court amounted to a deliberate strategic decision to abandon petitioner's constitutional claims; it justified the Wisconsin Supreme Court's denial of post-conviction relief; and it operated as a bar to federal relief as well. We cannot agree with respondent or the District Court that the present record shows the deliberate bypass of state remedies that might bar federal consideration of petitioner's claims. We conclude, however, that respondent should be given an opportunity to develop the relevant facts. Accordingly, the case must be remanded for an evidentiary hearing on this point, as well as on the merits of such claims as may be ripe for federal determination.
19
This Court has repeatedly made it plain that not every state procedural default bars federal habeas corpus relief. Title 28 U.S.C. §§ 2254(b), (c), which require a state prisoner to exhaust available state remedies, are limited in their application to those state remedies still open to the habeas applicant at the time he files his application in federal court. Fay v. Noia, 372 U.S. 391, 434—435, 83 S.Ct. 822, 846—847, 9 L.Ed.2d 837 (1963); see Picard v. Connor, 404 U.S. 270, 272 n. 3, 92 S.Ct. 509, 510, 30 L.Ed.2d 438 (1971). In this case it appears that petitioner has met the requirements of the exhaustion rule, inasmuch as no direct appeal is presently available to him, and he has taken his claim for post-conviction relief to the highest state court.18
20
This Court has also held, however, that a federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts, on the ground that in so doing he has forfeited his state court remedies. Fay v. Noia, supra, at 438—439, 83 S.Ct., at 848—849. But such a waiver must be the product of an understanding and knowing decision by the petitioner himself, who is not necessarily bound by the decision or default of his counsel. An evidentiary hearing will ordinarily be required before the District Court can determine whether petitioner made a deliberate strategic waiver of his claim in state court. In this case, a hearing is necessary to determine (1) the reason for counsel's failure to file a brief or to take further action in the state courts, and (2) the extent of petitioner's knowledge and participation in that decision. If the District Court cannot find persuasive evidence of a knowing and intelligent waiver on the part of petitioner himself, then the Court should proceed to consider petitioner's constitutional claims.
21
The judgment is reversed and the case is remanded to the District Court for further proceedings in accordance with this opinion. It is so ordered.
22
Reversed and remanded.
23
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
The Court of Appeals said in pertinent part:
'Plaintiff also claims various procedural rights to which he would be entitled in the course of a separate proceeding for conviction of an offense, but the continuation of commitment is not such a proceeding.' App., 58.
2
After the petition for certiorari had been filed, it appears that petitioner was released on parole to the custody of the Secretary of the State Department of Health and Social Services. That change in his custody does not necessarily moot his claims; it simply requires the substitution of the Secretary for the prison warden as respondent, which can be accomplished by motion under Rule 49 of this Court, or by the District Court on remand.
3
The jury-trial provision first appeared in c. 266, Wis.Laws 1880, pp. 299, 301; compare Wis.Rev.Stat. § 593, p. 208 (1878), with Wis.Rev.Stat., § 593, p. 114 (1883 Supp.).
4
The Mental Health Act authorizes commitment of a person for compulsory treatment if the court or jury finds that he is (1) mentally ill, and (2) a 'proper subject for custody and treatment.' Wis.Stat. Ann. §§ 51.02(5), 51.03 (1957). The social and legal aspects of the determination are implicit not only in the determination of who is a 'proper subject for custody and treatment,' but also in the definition of mental illness itself, contained in the Interstate Compact on Mental Health, and recently adopted by Wisconsin, as well as by many other States: "Mental illness' means mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community.' (Emphasis added.) Wis.Stat.Ann. § 51.75, Art. II(f) (Supp.1971).
5
In 1926 the Wisconsin Legislature voted to eliminate the jury-trial provision from the Mental Health Act, at the request of the state medical society, but the Governor vetoed the bill. Again in 1947 an attempt was made to eliminate the jury trial. A legislative committee reported that juries too often refused to order commitment when the medical experts thought it appropriate. Wis.Stat.1947, c. 51, general comment of interim committee, at p. 802. This time the state legislature refused to do away with jury trials, however, and indeed when the legislature enacted in that same year a new statute for the compulsory treatment of 'sex psychopaths,' the new statute contained a provision for jury trial paralleling the provision in the Mental Health Act. Wis.Stat.1947, § 51.37(4). Not until 1951, with the passage of a new Sex Crimes Act, did the provision for jury trial disappear from the legislation governing the compulsory treatment of sex offenders. Wis.Stat.1951, § 340.485(14)(a).
6
The Sex Crimes Act authorizes an initial commitment of an otherwise eligible person for compulsory treatment if the court finds that he is in need of 'specialized treatment for his mental or physical aberrations,' Wis.Stat.Ann. § 975.06(1)—(2) (1971), which restated Wis.Stat.Ann. § 959.15(5)—(6), adding a provision for a judicial hearing, as required by the Wisconsin Supreme Court in Huebner v. State, 33 Wis.2d 505, 147 N.W.2d 646 (1967). The statute authorizes renewal of the commitment order if the court finds that discharge would be 'dangerous to the public because of the person's mental or physical deficiency, disorder or abnormality.' Wis.Stat.Ann. § 975.14 (1971), formerly Wis.Stat.Ann. § 959.15(14)(b) (1958).
7
Two courts of appeals have implied the contrary, see Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1231, 25 L.Ed.2d 423 (1970), and United States ex rel. Schuster v. Herold, 410 F.2d 1071 (CA2), cert. denied, 396 U.S. 847, 90 S.Ct. 81, 24 L.Ed.2d 96 (1969). This case does not present the claim of right to a jury trial at the initial commitment, however, and we intimate no view on that question here. Petitioner's only objections to the initial commitment are discussed infra, at 513.
8
Following Huebner, petitioner rests his claim alernatively on Specht and the Due Process Clause, or on Baxstrom and the Equal Protection Clause. The Wisconsin Supreme Court has, however, rejected the argument that either Baxstrom or Huebner requires the State to extend to sex offenders the right to a jury trial at the hearing on the petition for renewal of commitment. Buchanan v. State, 41 Wis.2d 460, 164 N.W.2d 253 (1969). In rejecting the equal protection claim, the court relied on distinctions so elusive that, if they can support the discrimination at all, they will require further factual development at the remand hearing in this case. The jury question was also raised, but not decided, in Hill v. Burke, 289 F.Supp. 921 (W.D.Wis.1968), aff'd, 422 F.2d 1195 (CA7 1970).
9
Tr. of Oral Arg. 22; Respondent's Supplemental Memorandum, filed Feb. 25, 1971, pp. 3—4. Compare the criteria for commitment in n. 4 with the criteria in n. 6, supra.
10
Baxstrom v. Herold, supra at 111, 86 S.Ct. at 762, 15 L.Ed.2d 620; Cross v. Harris, 135 U.S.App.D.C. 259, 262, 418 F.2d 1095, 1098 (1969); Millard v. Harris, 132 U.S.App.D.C. 146, 152, 406 F.2d 964, 970 (1968).
11
See State ex rel. Stroetz v. Burke, 28 Wis.2d 195, 136 N.W.2d 829 (1965).
12
For example, if petitioner can successfully challenge the initial finding that his crime was sexually motivated, then his commitment under the Sex Crimes Act would be improper even if he meets the statutory standards for continued commitment, i.e., even if his discharge would be 'dangerous to the public because of . . . mental or physical . . . abnormality.' In that case, he could properly be committed only under the Mental Health Act, in accordance with its procedures and criteria for commitment, and its conditions of confinement.
13
See Brief for Respondent 28—30, and Appendix to Brief 140 156.
14
The state court relied largely on petitioner's failure to introduce any evidence in his behalf. In this connection it is noteworthy that the record does not show any evidence introduced by the State, either; moreover, under Wisconsin law, the State has the burden of proof in such proceedings. Goetsch v. State, 45 Wis.2d 285, 172 N.W.2d 688 (1969) (decided after the commitment hearing in this case).
15
An eppeal is authorized by Wis.Stat.Ann. § 975.16, formerly Wis.Stat.Ann. § 959.15(16).
16
Wis.Stat.Ann., c. 292 (1958), which has been replaced by a comprehensive post-conviction review statute, Wis.Stat.Ann. § 974.06 (1971).
17
On remand, the District Court will have the opportunity to ascertain precisely what claims were presented in the state habeas petition.
18
There is, of course, no requirement that petitioner file repetitious applications in the state courts. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Brown v. Allen, 344 U.S. 443, 448 n. 3, 73 S.Ct. 397, 402, 97 L.Ed. 469 (1953). The question on remand is whether any of petitioner's claims is so clearly distinct from the claims he has already presented to the state courts that it may fairly be said that the state courts have had no opportunity to pass on the claim; and if so, whether there is presently available a state forum in which he can effectively present the claim.
Moreover, some or all of petitioner's claims may be entitled to be treated as claims for relief under the Civil Rights Act, 42 U.S.C. § 1983, in which case no exhaustion is required. Wilwording v. Swenson, supra.
| 01
|
405 U.S. 473
92 S.Ct. 1014
31 L.Ed.2d 374
Otis LOPER, Petitioner,v.George J. BETO, Corrections Director, et al.
No. 70-5388.
Argued Jan. 13, 1972.
Decided March 22, 1972.
Syllabus
For the purpose of impeaching petitioner's credibility, the prosecutor in petitioner's 1947 rape trial was permitted to interrogate him about his previous criminal record. Petitioner admitted four felony convictions during the period 1931—1940. He was found guilty by the jury and was sentenced to a term of 50 years. He filed a petition for habeas corpus in Federal District Court alleging that the previous convictions were constitutionally invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, because he had been denied the assistance of counsel. The District Court denied relief and the Court of Appeals affirmed, stating that the 'fact that there are possible infirmities in the evidence does not necessarily raise an issue of constitutional proportions which would require reversal.' Held: The judgment is vacated and the case is remanded to the Court of Appeals for further proceedings. Pp. 480—485.
440 F.2d 934, 937, vacated and remanded.
John T. Cabaniss, Houston, Tex., for petitioner.
Robert Darden, San Antonio, Tex., for respondent.
Mr. Justice STEWART announced the judgment of the Court and an opinion in which Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join.
1
The petitioner, Otis Loper, was brought to trial in a Texas criminal court in 1947 upon a charge of statutory rape. The alleged victim, Loper's 8-year-old stepdaughter, was the only witness who identified him as the perpetrator of the crime. The sole witness for the defense was Loper himself, who testified that he had not assaulted the victim in any way. For the purpose of impeaching Loper's credibility, the prosecutor was permitted on cross-examination to interrogate Loper about his previous criminal record. In response to this line of questioning, Loper admitted in damaging detail to four previous felony convictions during the period 1931—1940, three in Mississippi and one in tennessee.1 At the conclusion of the one-day trial the jury found Loper guilty as charged and sentenced him to a term of 50 years in prison.
2
Loper initiated the present habeas corpus proceeding in the United States District Court for the Southern District of Texas in 1969. He alleged, among other things, that the previous convictions used to impeach his credibility at the trial were constitutionally invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, because he had been denied the assistance of counsel in the Mississippi and Tennessee courts that had convicted him.2 His sworn testimony at the habeas corpus hearing confirmed these allegations.3 In addition, he produced court records to corroborate this testimony.4 The District Court denied habeas corpus relief, placing 'little or no credence' in Loper's testimony, and holding that in any event 'the question does not rise to constitutional stature and is not subject to collateral attack.'5
3
On appeal, the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. Although recognizing 'the force of Loper's argument to the effect that such convictions may have impaired his credibility in the minds of the jury as a witness in his own behalf,' the appellate court held that 'the use of such convictions as evidence for purposes of impeachment which goes only to credibility, is not nearly so serious as the use of a conviction for enhancement, which may add years of imprisonment to the sentence of a defendant. . . . The issue presented raises an evidentiary question. The fact that there are possible infirmities in the evidence does not necessarily raise an issue of constitutional proportions which would require reversal.' 440 F.2d 934, 937 (CA5).6
4
We limited our grant of certiorari to a single constitutional question, worded as follows in the petition for certiorari: Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case? 404 U.S. 821, 92 S.Ct. 151, 30 L.Ed.2d 49. This is a recurring question that has received conflicting answers in the United States Courts of Appeals.7 It is a question that has also divided state appellate courts.8
5
The starting point in considering this question is, of course, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. In that case the Court unanimously announced a clear and simple constitutional rule: In the absence of waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer.9
6
The Court dealt with a sequel to Gideon in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. There a Texas indictment charging the petitioner with assault contained allegations of previous felony convictions, that if proved, would have increased the punishment for assault under the state recidivist statutes. The indictment was read to the jury at the beginning of the trial. Records of two of the previous convictions were offered in evidence during the course of the trial, and it appeared that at least one of these convictions had been obtained in violation of Gideon. In reversing the Texas judgment, the Court said:
7
'To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that . . . right.' 389 U.S., at 115, 88 S.Ct., at 262.
8
Earlier this Term we had before us a case in which it appeared that previous convictions obtained in violation of Gideon had played a part in the determination of the length of a convicted defendant's prison sentence. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. We there ruled that the Court of Appeals for the Ninth Circuit had been correct in holding that the teaching of Burgett required a remand of the case to the trial court for resentencing.
9
The Tucker case involved only that aspect of Burgett that prohibits the use of invalid prior convictions to 'enhance punishment.' The case now before us involves the use of such convictions 'to support guilt.'10 For the issue of innocence or guilt in this case turned entirely on whether the jury would believe the testimony of an 8-year-old girl or that of Loper. And the sole purpose for which the prior convictions were permitted to be used was to destroy the credibility of Loper's testimony in the eyes of the jury.11
10
Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant's credibility deprives him of due process of law.12 We can put the matter no better than in the words of the Court of Appeals for the First Circuit:
11
'We conclude that the Burgett rule against use of uncounseled convictions 'to prove guilt' was intended to prohibit their use 'to impeach credibility,' for the obvious purpose and likely effect of impeaching the defendant's credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.' Gilday v. Scafati, 428 F.2d 1027, 1029.
12
A dissenting opinion filed today suggests that our decision presses the 'sound doctrine of retroactivity beyond the outer limits of its logic.' On the contrary, our decision in this case follows directly from the rationale under which Gideon v. Wainwright, supra, was given retroactive application. We have said that the principle established in Gideon goes to 'the very integrity of the fact-finding process' in criminal trials, and that a conviction obtained after a trial in which the defendant was denied the assistance of a lawyer 'lacked reliability.' Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 and n. 20. Loper has 'suffered anew' from this unconstitutional deprivation, Burgett v. Texas, supra, regardless of whether the prior convictions were used to impeach him before or after the Gideon decision. It would surely be unreasonable, as one dissenting opinion suggests, to expect the judge at Loper's trial to have anticipated Gideon, just as it would have been unreasonable to have expected the judge at Gideon's trial to have foreseen our later decision in that case. But a necessary result of applying any decision retroactively is to invalidate rulings made by trialjudges that were correct under the law prevailing at the time the judges made them.13 If the retroactivity of Gideon is 'sound,' then this case cannot be decided under the ill-starred and discredited doctrine of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595.
13
The judgment before us is set aside, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
14
It is so ordered.
15
Vacated and remanded.
16
Mr. Justice WHITE, concurring in the result.
17
The Court of Appeals affirmed the denial of Loper's petition for habeas corpus, reasoning that the use of invalid prior convictions to impeach a defendant in a criminal case does not raise an issue of constitutional proportions even though so using those convictions might well have influenced the outcome of the case. It was on that issue that we granted certiorari; and as our past cases now stand, I agree with Mr. Justice STEWART that the Court of Appeals' reasons for affirming the District Court were erroneous. This judgment, however, does not necessarily mean that Loper's conviction must be set aside. There remain issues, unresolved by the Court of Appeals, as to whether the challenged prior convictions were legally infirm: was Loper represented by counsel at the time of the earlier convictions; if not, did he waive counsel? These matters are best considered in the first instance by the Court of Appeals. The same is true with respect to the legal significance of the lack of proof with respect to the validity of one or more of the prior convictions used for impeachment purposes at Loper's trial. In this connection, I do not understand our prior decisions to hold that there is no room in cases such as this for a finding of harmless error; and if this case is ultimately to turn on whether there was harmless error or not, I would prefer to have the initial judgment of the lower court.
18
Mr. Chief Justice BURGER, with whom Mr. Justice POWELL joins, dissenting.
19
In 1942 this Court, in deciding Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, held that the Due Process Clause of the Fourteenth Amendment did not call for the setting aside of a robbery conviction that had been entered against an indigent defendant whose request for appointed counsel had been denied by the state trial court. Betts was overruled in 1963 by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Loper's trial for rape was held five years after Betts and 16 years before Gideon. Yet the Court today holds that an error of constitutional magnitude occurred when the judge presiding at Loper's trial failed to make, on his own motion, an evidentiary ruling that would have been inconsistent both with state law and with the United States Constitution as then explicitly interpreted by this Court. I dissent.
20
(1)
21
Three witnesses were called at Loper's 1947 trial. His eight-year-old stepdaughter testified that Loper raped her on August 9, 1947. A physician gave testimony corroborating that the child had been raped. Loper himself denied having committed the act, but admitted that there was a period of time during the day in question when he was at home alone with his stepdaughter and his four-month-old baby boy; he further admitted on cross-examination that his stepdaughter was, as far as he knew, a truthful child.
22
Under further cross-examination, Loper admitted to four prior burglary convictions entered against him in 1931, 1932, 1935, and 1940, respectively. At the 1969 habeas corpus proceeding here under review, Loper introduced court records relating to three of these burglary convictions and gave testimony relating to two of those three. The evidence presented to the District Court with respect to the four convictions may be summarized as follows:
23
(a) The court records for the 1931 conviction indicated only that Loper pleaded guilty upon being arraigned and that a six-month sentence was imposed nine days later. Loper testified before the District Court that he was not represented by an attorney in connection with these 1931 proceedings; that he could not then have afforded private counsel; and that he never informed the trial court that he did not want to be represented by counsel.
24
(b) Loper introduced no court record and gave no testimony at all with respect to his 1932 conviction.
25
(c) Loper gave no testimony with respect to his 1935 conviction, but the court record of that conviction appears on its face to suggest that he was represented by counsel: 'Came the Attorney General and the defendant in person, and this case was tried . . . before the Court and the . . . jury . . . (whose members,) having heard the proof, arguments of Counsel and the charge of the Court(,) on oath say defendant is guilty . . .' (Emphasis added.)
26
(d) The court record of Loper's 1940 conviction recited that Loper appeared 'in his own proper person.' Loper testified before the District Court that he did not have counsel at his 1940 trial; that he did not 'believe' he could then have afforded private counsel; and that he never informed the state court that he did not want to be represented by counsel.
27
Even if we, unlike the District Court,1 treat as absolutely true everything to which Loper testified at the habeas corpus hearing, there is no basis on which we can conclude that he was not represented by counsel in the proceedings leading to his 1932 and 1935 convictions. With respect to the 1940 conviction, it surely cannot be said that Loper, through his testimony that he does not now 'believe' that he then could have afforded private counsel, met his 'burden of proving his inability at that time to hire an attorney.' Kitchens v. Smith, 401 U.S. 847, 848, 91 S.Ct. 1089, 1090, 28 L.Ed.2d 519 (1971). There is no basis, then, for a retroactive application of Gideon v. Wainwright to bring into question the validity of his 1940 burglary conviction.
28
It thus appears that of the four convictions introduced to impeach Loper's credibility at his 1947 rape trial, only the burglary conviction of 1931—a conviction entered upon Loper's plea of guilty—can reasonably be found on this record to have been even arguably invalid under Gideon.
29
(2)
30
When a defendant in a criminal trial elects to testify on his own behalf, he asks the jury, in effect, to believe his testimony rather than any conflicting testimony introduced by the prosecution. He presents himself to the jury as a person worthy of belief. In so doing, he brings into issue his credibility as a witness, and he thereby exposes himself to possible cross-examination designed to impeach that credibility. Such cross-examination is limited by state rules of evidence, of course, to matters which are relevant to credibility and which are not, at the same time, so prejudicial to the defendant that they must be excluded despite their relevance. Each State's rules governing such cross-examination reflect a balance that has been struck by that State in weighing, with respect to a given category of evidence, its probative value for impeachment purposes against the prejudicial effect it might have upon the jury's determination of the defendant's guilt or innocence of the crime charged.2
31
The plurality opinion concludes that the Due Process Clause was violated if one or more of the prior convictions used to impeach Loper's credibility, even though fully valid under Betts v. Brady—the prevailing law when Loper was tried in 1947—was rendered constitutionally infirm by Gideon. The plurality opinion does not make clear, however, whether evidence of any such convictions is considered to be so lacking in probative value as to violate due process or to be so prejudicial as to do so. If its conclusion were grounded solely on a consideration of undue prejudice, the rationale underlying today's decision would be elusive indeed. There is no suggestion in the record that the jury might have failed to follow the instructions given by the trial judge that consideration of these prior convictions was to be restricted solely to the issue of Loper's credibility. Nor can any plausible contention be made that a jury has more difficulty following such instructions when it is dealing with an uncounseled conviction than when it is dealing with a counseled one.
32
It must be, then, that the conclusion of the plurality opinion is based upon the view that it is fundamentally unfair for a jury to be allowed to treat an uncounseled conviction, introduced to impeach a defendant, as though it had the probative value of a counseled conviction. Under this view, jurors who are told of a prior uncounseled conviction are misled in regard to a matter of fact; i.e., by being told merely that the defendant was in fact previously convicted of a felony, they are misled into believing that he was duly convicted when, under a retroactive application of Gideon, he in fact was not duly convicted. I cannot agree that such a view justifies a finding here that it was fundamentally unfair of the trial judge at Loper's 1947 rape trial to fail to make an evidentiary ruling, on his own motion, that he could have justified only by anticipating by 16 years this Court's overruling of Betts v. Brady in 1963. Not even the wisest member of this Court could have hazarded that prediction in 1947.
33
The plurality opinion, of course, does not analyze the case in these terms. It merely concludes, under a rigidly mechanistic approach, that since this Court held in Gideon that an uncounseled felony conviction calls for a new trial with counsel, we are compelled to strike down a fully counseled pre-Gideon conviction obtained through a trial in which evidence of one or more prior uncounseled convictions was collaterally used. This, of course, gives Gideon a collateral consequence of wholly unrealistic dimensions that are unrelated to basic fairness or due process; it is an effort to 'unring the bell' on a series of burglary convictions dating back to a period 41 years ago. Parenthetically, I note that Loper nowhere denies that he committed these burglaries.
34
We all agree that the convictions used to impeach Loper's credibility during the 1947 trial were valid under the law prevailing at that time. The jury at Loper's 1947 trial cannot, therefore, be said to have been misled in regard to any contemporaneous matter of fact. Nor can it be said, without distorting the doctrine of retroactivity beyond all semblance of rationality and common sense, that the prosecutor or the presiding judge at Loper's rape trial acted in violation of the principle of 'fundamental fairness.' If Loper's trial was 'fundamentally fair' when it was conducted, how can it be said to have undergone a metamorphosis because—16 years later and for another purpose—the law changed?
35
When we held that Gideon is retroactive, we meant that Gideon applies to an uncounseled felony conviction obtained in the past and renders that conviction invalid for all future purposes, i.e., it renders unlawful the continuation into the future of the convicted prisoner's incarceration unless a new trial is had. Gideon does not, however, render such a conviction retroactively invalid for all purposes to which it may have already been put in the past. The Court, in giving such an enlarged effect to Gideon, plows new ground, disregarding the implications that will surely follow from the broadening of scope it now gives to the doctrine of retroactivity. For there must be many convictions that will be senselessly rendered vulnerable to attack to today's holding.
36
The Court applies that doctrine of retroactivity as though it required us to assess the fairness of past judicial proceedings without making any distinctions between a decision that was rendered after those proceedings and given retroactive effect, and a decision that was rendered before those proceedings; the Court thus seems to view the doctrine of retroactivity as requiring us to judge the fairness of Loper's 1947 rape trial as though that trial followed Gideon. Had the trial indeed followed Gideon, and had the trial judge permitted the prosecution to use prior uncounseled convictions to impeach Loper, then it might well be said that the judge denied fundamental fairness to Loper in refusing to follow the clear teaching of a decision of this Court and in thereby 'erod(ing) the principle' of that decision. Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967). We are, however, presented with no such situation here. The judge at Loper's trial did not refuse to follow any decision of this Court. Indeed, had he made the ruling that the Court today implicitly holds he was required to make, he would have been very specifically refusing thereby to follow this Court's then-controlling decision in Betts v. Brady.
37
The plurality opinion states that '(i)f the retroactivity of Gideon is 'sound,' then this case cannot be decided under the ill-starred and discredited doctrine of Betts v. Brady . . ..' If we are precise, of course, this case is not to be 'decided under' either Betts or Gideon, for it raises an entirely different question from that which the Court faced in those two cases. Both Betts and Gideon dealt with the substantive right to counsel in a state felony trial. The instant case deals with the collaterally related, but altogether different, question of the fundamental fairness of an implied evidentiary ruling made long before Gideon. The failure of the plurality opinion to recognize this simple, albeit crucial, distinction unfortunately prevents the drawing of a rational line that would preserve all the values of both Gideon and Burgett without at the same time producing the extravagant result reached by the Court today.
38
The introduction, in good faith and without objection, of lawfully admissible evidence, the truth of which is not presently subject to challenge, can hardly be called a violation of due process. Nor will such a violation arise retroactively by the occurrence of later events that may give grounds for challenging the truth of that evidence. Cf. Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963): '(T)he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.' In 1947, Loper's prior burglary convictions, viewed as matters of evidentiary fact in the light of this Court's then-recent decision in Betts v. Brady, were valid convictions. Being valid in 1947, they were then admissible in evidence to impeach Loper's credibility. This Court's decision in Gideon 16 years later may have rendered one or more of those convictions vulnerable to attack and not usable for future evidentiary or other purposes. Bearing in mind, however, that those burglary convictions were nothing but matters of evidentiary fact for the purposes of Loper's 1947 rape trial, any subsequently discovered invalidity in one of those burglary convictions no more rendered the conduct of Loper's rape trial fundamentally unfair than would the subsequent discovery of new evidence tending, for example, to discredit the testimony of a prosecution witness who was questioned in good faith by the State. The holding in Gideon that uncounseled convictions are constitutionally invalid properly leads us to require new trials to sustain any further confinement of persons previously convicted without counsel. But where prior uncounseled convictions were used in a pre-Gideon trial solely for evidentiary purposes to impeach the defendant, the logic of the rule enunciated in Townsend v. Sain, supra, counsels that we should treat Gideon for what it is in this context, i.e., a decision whose effect on the prior impeaching convictions is properly analogized to the discovery of new evidence. Neither fundamental fairness nor any specific constitutional provision requires that a rule of evidence be made retroactive; consideration for the orderly administration of justice dictates the contrary.
39
Burgett v. Texas, supra, on which the plurality opinion relies, should not be read either to require or to justify today's decision. Burgett dealt with a post-Gideon trial and established that it is a violation of due process to introduce against a defendant evidence of a prior conviction known at the time of its introduction to be constitutionally infirm under existing law. In regard to Loper's case, the worst that can be said is that 16 years after his trial there was an event—the decision in Gideon that, had it pre-dated rather than postdated the trial, would have affected an evidentiary ruling by the trial judge.
40
The rule implicit in the result reached by the Court today does violence both to common sense and to society's interest in the finality of judgments. Only if trial judges were soothsayers could they adhere to it. For under that rule, a prior conviction, admissible for impeachment purposes under state law and fully valid under the Constitution as explicitly interpreted by this Court at the time the conviction is sought to be introduced, becomes retroactively inadmissible if, years after the trial, a decision of this Court renders that prior conviction constitutionally infirm. With all respect, I submit that the United States Constitution does not give this Court the power to impose upon the States any such unmanageable and abstractly based rule as that. Indeed, such a rule is repugnant to the concept of federalism and to the very notions of reasonableness and orderliness embodied in the Due Process Clause. It is a distressing example of pressing the sound doctrine of retroactivity beyond the outer limits of its logic.
41
If Burgett does, indeed, mean what the plurality opinion reads into it, we should overrule that decision without delay. As Mr. Justice Harlan, for himself, Mr. Justice Black and Mr. Justice White, observed, 'We do not sit as a court of errors and appeals in state cases . . .' 389 U.S., at 120, 88 S.Ct. at 264.
42
Mr. Justice BLACKMUN, dissenting.
43
The plurality in this case applies Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and seemingly, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), to proscribe the use of allegedly uncounseled prior convictions of many years ago for the purpose of impeaching the defendant who takes the stand in his own defense. Burgett may be claimed to be a natural succeeding step to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), but its application to Loper's case has aspects, not particularly stressed by the Court, that are troublesome for me:
44
1. The resolution of the original statutory rape case came down to a choice, on the part of the jury, between the testimony of the eight-year-old victim and the testimony of Loper. This, of course, is not uncommon in a rape case, but it always provides an element of unsureness. It is the woman's—or the child's—word against the man's. Hanging in the balance is a penalty of great severity. The 50-year sentence imposed on Loper is illustrative and is a tempting target for a reviewing court.
45
2. Obviously, the Court's familiar remand 'for further proceedings consistent with this opinion' is really meaningless in this case. Certainly it does not carry with it the usual meaning and implications. The incident that is the subject of the criminal charge took place 25 years ago. The victim, then eight years old, is now about 33. I suspect that an event which would be vivid at the time for a child has faded, mercifully, in the victim's memory. Retrial, if not impossible, is highly unlikely. The Court's remand therefore actually translates into an enforced state acquittal and release for Loper.
46
3. The plurality's reliance upon Loper's testimony at the habeas hearings and upon certified records of Mississippi and Tennessee proceedings is not complete. Perhaps the records of the 1931 and 1940 proceedings could be said to support an implication that Loper was not represented by counsel in those cases. But no record at all of the 1932 Mississippi proceeding was presented. And the 1935 recital that Loper appeared 'in person' is no more than the customary recital, if properly drawn, for any criminal proceeding when counsel is, in fact, present. As the plurality's footnote 3 reveals, Loper testified as to the absence of counsel at only the 1931 and 1940 proceedings. He said nothing with respect to the 1932 and 1935 proceedings. Thus, for me, the 1932 and 1935 prior convictions stand effectively unchallenged on this record. Surely, as to them, Loper has not sustained his burden of proof.
47
4. I have more than a mild suspicion that as a practical matter the outcome of the case would have been exactly the same had the priors not been used to impeach Loper's credibility. Yet their use was legally accepted 25 years ago. That use, now held improper by the Court, destroys the conviction irretrievably.
48
5. Loper's troubles with the law did not cease with his statutory rape conviction in 1947. As the opinion of the Court of Appeals reveals, 440 F.2d 934, 936, Loper was on parole in 1963 when he was arrested for car theft in Mississippi. While a parole revocation order was awaiting execution, he escaped and was a fugitive for more than a year.
49
6. I see no need to recede from Burgett v. Texas at this time, but its application to the circumstances of Loper's case gives me the impression that what appears to be an acceptable principle can be run into the ground when indiscriminately applied. Here again, by impractical application, the plurality has painted itself into a corner. Here again, some realism is needed. See United States v. Tucker, 404 U.S., at 452, 92 S.Ct., at 594 (Blackmun, J., dissenting).
50
We were advised at oral argument that Loper once more is on parole and is working in Texas.* Thus, assuming he behaves himself or, to put it more formally, that he does not violate his parole, the plurality's decision, however it were to go, would not have much effect upon his present freedom. On balance, I feel that THE CHIEF JUSTICE and Mr. Justice REHNQUIST, in dissent, have the better of the argument, and certainly the stronger position in the light of the practicalities. I therefore also dissent.
51
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice POWELL join, dissenting.
52
In reversing the judgment of the Court of Appeals, which affirmed denial of federal habeas corpus relief to petitioner, the plurality undertakes to apply the constitutional doctrine of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), to the case where the uncounseled conviction is used to impeach the criminal defendant when he takes the stand in his own defense at subsequent trial. In order to reach this question, of course, the plurality must conclude that the prior burglary convictions obtained many years ago in Tennessee and Mississippi were in fact uncounseled, and that the defendant had not waived the constitutional right to counsel that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), accords him. Petitioner so testified with respect to the Mississippi convictions at the federal habeas hearing. But the habeas judge, a veteran of more than 20 years' experience as a federal district court judge, found as follows with respect to petitioner's assertions of constitutional error:
53
'At the outset it might be stated that petitioner has made false statements under oath, and has testified to a set of facts so roundly and thoroughly shown to be false by unimpeachable evidence that little or no credence may be placed in his own testimony. . . .' (App. 61.)
54
On the basis of other factual inconsistencies that were resolved against the petitioner, the trial judge made the following general observation concerning petitioner's credibility:
55
'As stated at the outset, petitioner has filed innumerable applications for relief. Pound for pound, he is probably the most prolific writer of writs to come before this Court. His applications, verified under oath, and his testimony in open court under oath, have been found repeatedly to be completely false.' (App. 65.)
56
It is therefore surprising, at least at first blush, to find the plurality reaching the constitutional question that it decides. I believe the procedural posture in which this case is presented calls for more attention than it receives in the plurality's opinion.
57
In 1947, petitioner was convicted in a Texas state court of the crime of statutory rape of his eight-year-old stepdaughter. In the course of that trial, petitioner took the stand, and, as appropriate under Texas law, was cross-examined about four prior convictions for burglary, which had been obtained against him in the States of Mississippi and Tennessee during the period from 1931 to 1940. The jury convicted petitioner of the offense, and sentenced him to serve 50 years in the penitentiary. That conviction has long since become final, and indeed petitioner is now on parole.
58
In the present habeas proceeding, petitioner sought to attack not only the 25-year-old Texas judgment of conviction under which he still serves, but also to challenge the constitutional validity of the Mississippi and Tennessee burglary convictions which vary in age from 30 to 40 years. He introduced certified copies of a 1940 Mississippi conviction, reciting appearances at the trial by the prosecutor and by 'the defendant in his own proper person'; a certified copy of the indictment and judgment in a 1935 Tennessee burglary conviction reciting appearances by the prosecutor 'and the defendant in person'; and a certified copy of an indictment, judgment, and sentence obtained in Mississippi in 1931, which were silent regarding the presence or absence of counsel. No documentary evidence whatever was introduced with respect to the 1932 Mississippi burglary conviction, which was the fourth such judgment about which he was interrogated in the course of the Texas rape trial.
59
In addition to such documentary evidence, petitioner in the federal habeas proceeding took the stand himself and testified explicitly that he had not been advised of his right to counsel, nor had he been furnished counsel in the 1931 and 1940 Mississippi burglary convictions. But the testimony of the petitioner in this proceeding was found by the federal habeas judge to be false. (Supra, at 498.)
60
In Johnson v. Zerbst, 304 U.S. 458, 468—469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938), one of the landmark habeas corpus decisions of this Court, Mr. Justice Black said:
61
'It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity. (Footnote omitted.) Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel. If in a habeas corpus hearing, he does meet his burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ.'
62
In addition to the very substantial interests in 'a visible end to the litigable aspect of the criminal process . . .,'1 this case presents other unique practical considerations for placing the traditional Johnson burden upon the petitioner to establish a substantial constitutional deprivation. In this case, unlike the normal habeas proceeding, not only the underlying state conviction is put in question, but also convictions of another era from other States.
63
It is a sufficiently difficult task for a federal district court sitting in Texas to review a Texas state criminal proceeding for constitutional error; in that case the Texas state custodian himself is a defendant in the proceeding, all counsel and the district judge are familiar with local Texas criminal procedure, and the State and petitioner both have available such witnesses as may be necessary to augment the record pertaining to the judgment under attack. Whatever evidentiary hearing is held will take place in the general locale where those witnesses who have knowledge of the earlier state proceedings are available to testify.
64
It is a good deal more difficult for the same Texas habeas court to make a second-level collateral review of judgments of conviction rendered in the state courts of Mississippi and Tennessee. The States that rendered the convictions are not parties to the Texas habeas proceeding, and, of course, have no interest whatever in sustaining the validity of sentences long since served. Neither the Texas District Court nor Texas counsel can be expected to have any familiarity with the vagaries of criminal procedure in Mississippi and Tennessee. If there are any surviving witnesses to the actual court proceedings, which took place from 30 to 40 years ago, they are sufficiently distant from the location of the Texas habeas court as to render their voluntary appearance unlikely, and their compulsion by process impossible.
65
In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 804, 8 L.Ed.2d 70 (1962), a case that came here on certiorari to review a judgment of the Supreme Court of Florida, this Court held that, in the face of a record completely silent on the issue, there was a presumption against waiver of a fundamental constitutional right such as the right to counsel.2 One need not quarrel with this principle, applied as it was in Carnley to the review of a state supreme court refusal to vacate a recent judgment of one of its lower courts, to believe that in the circumstances presented by the instant case the burden of proof prescribed for federal habeas actions in Johnson v. Zerbst, supra, should remain on the habeas petitioner. This is consistent with the holding last Term in Kitchens v. Smith, 401 U.S. 847, 848, 91 S.Ct. 1089, 1090, 28 L.Ed.2d 519 (1971), in which a petitioner asserted in a state habeas proceeding that his Sixth Amendment rights under Gideon v. Wainwright had been violated because the State had failed to provide him with counsel in a 1944 proceeding at which time he alleged he was indigent. In reversing the denial of habeas relief, the Court said: 'Of course, to establish his right to appointed counsel in 1944, petitioner had the burden of proving his inability at that time to hire an attorney.'
66
Under Gideon v. Wainwright, the petitioner in the case before us was entitled to the assistance of counsel in each of the Mississippi and Tennessee burglary trials in which he was a defendant. However, even under Gideon, the assignment of counsel to every criminal defendant is not mandatory; the defendant may, upon being advised of his right, determine that he does not wish to avail himself of it. Thus, the fact that the transcript of the judgment roll admitted from the Tennessee and Mississippi proceedings indicates in at least two of the four cases that petitioner did not have counsel is not conclusive on the issue of whether his rights under Gideon v. Wainwright were violated. Under Johnson v. Zerbst, the burden in federal habeas corpus is upon him to prove to the satisfaction of the federal habeas judge that he did not waive the right to counsel. Here petitioner explicitly testified in a manner that, if the trial judge had chosen to believe him, would indeed have established that he did not waive his right to counsel in the Mississippi proceedings and thus those convictions were obtained in violation of Gideon v. Wainwright. However, on the basis of his overall assessment of petitioner's credibility, the trial judge declined to believe these self-serving assertions. The uniform doctrine of the cases, both in this Court and elsewhere, is that the finder of fact is entitled to wholly disbelieve the testimony of an interested witness. NLRB v. Pittsburgh S.S. Co., 337 U.S. 656, 659, 69 S.Ct. 1283, 1285, 90 L.Ed. 1602 (1949). As I read the memorandum opinion of the District Judge, that is precisely what he chose to do here.
67
It is true that our grant of certiorari in this case was limited to the question that is decided by the plurality in today's opinion. But the limited nature of the grant is not an advance guarantee that after reading briefs and hearing oral argument, we will be satisfied that the question is properly presented to us. Our duty to avoid constitutional adjudication when narrower grounds of decision are possible is clearly established by such authority as Ashwander v. TVA, 297 U.S. 288, 345—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), and Rescue Army v. Municipal Court of the City of Los Angeles, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947).
68
Concluding as I do that the necessary predicate for the plurality's constitutional decision is absent, I would dismiss the writ of certiorari as improvidently granted. Since the plurality addresses itself to the merits of the case, I do likewise. I would affirm the judgment of the Court of Appeals on the ground that petitioner has not satisfactorily met his burden of proof that the Mississippi and Tennessee convictions were obtained in violation of Gideon v. Wainwright, and therefore that court was correct in affirming the District Court's judgment denying habeas relief.
1
'Q. During the past ten years how many times have you been indicted and convicted in this State or any other State for a felony?
'A. About twice in the past ten years.
'Q. How about on May 7th, 1940, weren't you arrested . . .
'MR. LETTS: Your honor, I object to, that, as to his being arrested, as that is not admissible in this case.
'THE COURT: Well, let him finish the question, Mr. Letts.
'Q. All right, On May 7, 1940, what were you indicted and convicted for?
'A. Burglary.
'Q. Where was that?
'A. Carthage, Mississippi.
'Q. What did you get for that?
'A. Five years in the penitentiary.
'Q. On January 15th, 1935, what were you indicted and convicted for then?
'A. Burglary.
'MR. LETTS: We object, your honor, as that has been over ten years.
'Q. What were you indicted, tried and convicted for then on January 15th, 1935, in Brushy Mountain Parish, Petros, Tennessee?
'A. Burglary.
'Q. What did you get for that?
'A. Four years.
'Q. How about October 27th, 1931, what . . .
'MR. LETTS: Your honor, we object to that and ask the Court to instruct the jury not to consider it. That reaches way back to 1931 and the Court knows it would prejudice and inflame the minds of the jury in this case.
'THE COURT: Objection over-ruled.
'Q. Where were you arrested on November 29th, 1934?
'A. In Chattanooga, Tennessee.
'Q. What about October 27th, 1931, what were you convicted for in Parchman, Mississippi, then?
'A. Burglary. Mississippi, then?
'A. Six months, I think.
'Q. There have been so many offenses you have committed that you can't remember them straight, can you?
'MR. LETTS: We object to that remark, your honor.
'THE COURT: Objection sustained.
'Q. It was for burglary in 1931?
'A. Yes.
'Q. Have you always gone by the name of Otis Loper?
'A. Not always.
'Q. What other names have you gone by?
'A. Milton Cummings.
'Q. That was in Mississippi, wasn't it?
'A. Yes sir.
'Q. What were you indicted and tried for on that case in Mississippi in 1932?
'A. Burglary.
'Q. How much time did you get on that conviction?
'A. Two years.
'Q. And that was under the name of Milton Cummings?
'A. Yes.
'Q. And that is 4 times that you have been convicted of burglary, a felony?
'A. Yes.
'MR. DUGGAN: That's all, no more questions.'
2
Loper's petition was originally dismissed by the District Court, but the Court of Appeals vacated the dismissal and remanded for an evidentiary hearing on the question whether Loper had been deprived of his right to appeal from the Texas judgment of conviction. 383 F.2d 400 (CA5). On remand, the District Judge, noting that Loper had filed numerous habeas corpus petitions over a period of 20 years, appointed counsel to represent Loper and directed him to raise any points that 'conceivably might be raised in his behalf,' in order that a single evidentiary hearing could serve to put an end to postconviction litigation in Loper's case. Loper, with the assistance of counsel, then advanced six claims, and the evidentiary hearing was directed t resolving all six contentions. The claim at issue here had not been raised in any of Loper's previous petitions.
3
'Q. Were you convicted in 1931 of burglary in Scott County, Mississippi?
'A. Yes, sir.
'Q. How old were you at this time?
'A. I don't remember, but I believe I was around 17 years, something around that age. I'm not for sure.
'Q. Were you represented by an attorney in connection with that proceeding?
'A. No, sir, I didn't have an attorney.
'Q. Were you advised that you had a right to an attorney whether you could afford one or not?
'A. No, sir.
'Q. Did you know that you were entitled to one whether you could afford one or not?
'A. No, sir.
'Q. Did you inform the court that you did not want to be represented by an attorney?
'A. No, sir.
' Q. Were you convicted in that proceeding?
'A. Yes, sir.
'Q. Were you convicted, Mr. Loper, of burglary in 1940 in Leake County, Mississippi?
'A. Yes, sir.
'Q. How old were you at the time that occurred?
'A. I believe I was about 25 or 26, I don't remember for sure.
'Q. Let me ask you one more question about that Scott County, Mississippi, conviction. Did you plead guilty or not guilty?
'A. I plead guilty.
'Q. Were you sentenced to a term in prison?
'A. Yes, sir.
'Q. All right, sir. Now, in connection with the 1940 conviction, were you represented by an attorney?
'A. No, sir.
'Q. At any stage of the proceedings?
'A. No, sir.
'Q. Were you advised that you had a right to an attorney whether you could afford one or not?
'A. No, sir.
'Q. Could you in fact afford one?
'A. I don't believe I could have then.
'Q. What about 1931, the conviction in Scott County, Mississippi, could you have afforded an attorney?
'A. I couldn't have, no, sir.
'Q. Did you know in connection with the 1940 proceeding that you were entitled to be represented by counsel whether you could afford it or not?
'A. No, sir.
'Q. Did you inform the court that you did not want to be represented by an attorney?
'A. No, sir.
'Q. Was the 1940 proceeding in Leake County, Mississippi, did you plead guilty or not guilty?
'A. Not guilty.
'Q. Was a trial held?
'A. Yes, sir.
'Q. Who conducted the defense in that trial?
'A. Well, there wasn't anybody. I just didn't know what to ask the people. I didn't know anything about how to.
'Q. Did you conduct your own trial?
'A. As far as it was conducted, yes, sir.
'Q. Why did you attempt to do so yourself?
'A. Well, I didn't have an attorney, and nobody to help me. I didn't want to plead guilty to it.'
4
A certified record of the 1940 proceeding in Leake County, Mississippi, recited that Loper appeared 'in his own proper person.' A certified copy of the 1935 proceeding in Hamilton County, Tennessee, recited that Loper appeared 'in person.' A certified copy of the 1931 proceeding inn Scott County, Mississippi, recited simply that Loper and his codefendants 'entered pleas of guilty, as charged in the indictment.' No record was introduced of the 1932 conviction in Mississippi.
5
The memorandum and order of the District Court are unreported.
6
A dissenting opinion, post, at 502, implies that the District Court found that the petitioner did not meet his burden of proving that he had not waived his right to counsel in the Mississippi and Tennessee courts. But no such finding appears in the record. The District Court did say that 'there is no evidence other than petitioner's own statement that he was not represented by counsel at the time of his prior convictions, which evidence, as stated above, I decline to accept as credible.' (Emphasis added.) This statement is wholly incorrect, for Loper did introduce documentary evidence to corroborate his testimony that he had not been represented by counsel on at least two of his prior convictions. See n. 4, supra. Nowhere in the District Court's opinion is there any finding of fact as to whether Loper might have waived counsel. And the fact that the challenged convictions occurred at a time when, under our decisions, state courts were under no constitutional obligation to provide lawyers to indigent defendants in all felony cases, would make any such finding highly unrealistic, in the face of the documentary evidence and the petitioner's uncontradicted testimony. For, at the time of the petitioner's previous convictions, there was no known constitutional right to be 'waived.'
Moreover, the judgment that we review today is not that of the District Court, but of the Court of Appeals. That court stated:
'The convictions mentioned have been of record for a number of years, yet the record before us does not disclose that any attack has ever been made upon those convictions. Except for the assertions of Loper the record fails to furnish any conclusive information
as to the facts and circumstances surrounding his former convictions. So far as the record before us reveals, there are outstanding, unchallenged, state court convictions of felonies in the States of Mississippi and Tennessee. . . . (I)f the convictions possessed the infirmities which Loper claims, he has failed to make any effort to set them aside for over 30 years. No one else could have done so. Surely such an attack was available to him in view of the retroactive application of the Gideon decision which was decided over six years prior to the hearing under review.' 440 F.2d, at 937.
But despite these observations, the Court of Appeals, perhaps recognizing the error in the statement of the District Court quoted above, did not rest its decision on a finding that the petitioner had failed to meet his burden of proving the invalidity of the prior convictions. It reached the merits of the legal question involved, and we granted certiorari to review that decision. There is thus no basis in the record upon which we may either dismiss this case or affirm the decision below on the ground that the petitioner did not meet his burden of proving that the prior convictions were invalid. See Burgett v. Texas, 389 U.S. 109, 114—115, 88 S.Ct. 258, 261—262, 19 L.Ed.2d 319; Losieau v. Sigler, 406 F.2d 795, 803 (CA8); Williams v. Coiner, 392 F.2d 210, 212—213 (CA4).
The dissenting opinion relies upon our decision last Term in Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519. Yet we held in that case that the petitioner on collateral review had sufficiently 'proved he was without counsel due to indigency at the time of his (1944) conviction,' even though, unlike the present case, the petitioner 'introduced no evidence other than his own testimony.' Id., at 849, 91 S.Ct., at 1090.
7
Compare the decisions in this case and in United States ex rel. Walker v. Follette, 443 F.2d 167 (CA2 1971), with Gilday v. Scafati, 428 F.2d 1027 (CA1 1970); Tucker v. United States, 431 F.2d 1292 (CA9 1970); and Howard v. Craven, 446 F.2d 586 (CA9 1971).
8
Simmons v. State, 456 S.W.2d 66 (Ct.Cr.App.Tex.1970), holds that prior convictions obtained without the benefit of counsel
may nevertheless be used for the purpose of impeachment. Most reported state decisions, however, hold the contrary. See Spaulding v. State, 481 P.2d 389 (Alaska 1971); In re Dabney, 71 Cal.2d 1, 76 Cal.Rptr. 636, 452 P.2d 924 (1969); Johnson v. State, 9 Md.App. 166, 263 A.2d 232 (1970); White v. State, 11 Md.App. 423, 274 A.2d 671 (1971); Subilosky v. Commonwealth, 265 N.E.2d 80 (Mass.1970) (semble).
9
This constitutional rule is wholly retroactive. Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41; Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519.
10
Under Texas law at the time, the jury, upon finding Loper guilty, was authorized in its absolute and unreviewable discretion to impose any punishment from five years in prison to death in the electric chair. Texas Pen.Code, Art. 1189 (1948). Thus, bringing the prior convictions to the attention of the jury may well also have served to enhance Loper's punishment.
11
This is not a case where the record of a prior conviction was used for the purpose of directly rebutting a specific false statement made from the witness stand. Cf. Walker v. Follette, 443 F.2d 167, and see Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503. The previous convictions were used, rather, simply in an effort to convict Loper by blackening his character and thus damaging his general credibility in the eyes of the jury.
That a record of prior convictions may actually do more than simply impeach a defendant's credibility has been often noted. See, e.g., C. McCormick, Evidence § 43, p. 93 (1954):
'The sharpest and most prejudicial impact of the practice of impeachment by conviction . . . is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a 'record' of past convictions, particularly if they are for crimes similar to the one on
trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility.'
12
In the circumstances of this case there is little room for a finding of harmless error, if, as appears on the record now before us, Loper was unrepresented by counsel and did not waive counsel at the time of the earlier convictions. Cf. Subilosky v. Moore, 443 F.2d 334 (CA,1); Tucker v. United States, 431 F.2d 1292; Gilday v. Scafati, 428 F.2d 1027.
13
The reasoning of that dissenting opinion would dictate that the rule in Burgett must not be given retroactive application, at least to cases where the sentence was imposed prior to Gideon. Yet, by our disposition of Bates v. Nelson, 393 U.S. 16, 89 S.Ct. 50, 21 L.Ed.2d 21, where we vacated and remanded in light of Burgett a denial of habeas corpus following a 1957 conviction, we indicated that Burgett is retroactive in its application without regard to whether the use of the prior convictions was made prior to or after Gideon. Every federal court that has considered the question has held Burgett retroactive, and none has made the distinction suggested by the dissenting opinion. See, e.g., Walker v. Follette, 443 F.2d 167 (CA2 1971); Losieau v. Sigler, 406 F.2d 795 (CA8 1969); Tucker v. Craven, 421 F.2d 139 (CA9 1970); Oswald v. Crouse, 420 F.2d 373 (CA10 1969).
1
The District Court, after observing Loper and hearing him testify, stated that 'petitioner has made false statements under oath, and has testified to a set of facts so roundly and thoroughly shown to be false by unimpeachable evidence that little or no credence may be placed in his own testimony . . ..'
2
Cf. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), where this Court was called upon to strike a somewhat similar balance with respect to cross-examination designed to impeach the credibility of
character witnesses who claim to be familiar with a defendant's reputation in the community. The Court held that when a defendant in a federal trial puts his character in evidence by calling such witnesses, the government may cross-examine those witnesses to determine whether they are aware of any prior arrests that may be on the defendant's record and that may consequently have affected his reputation. The Court reasoned that, despite the possibility of prejudice, '(t)o hold otherwise would give defendant the benefit of testimony that he was honest and law-abiding in reputation when such might not be the fact . . ..' Id., at 484, 69 S.Ct., at 222 (emphasis added).
*
Tr. of Oral Arg. 27, 31—32.
1
Mackey v. United States, 401 U.S. 667, 690, 91 S.Ct. 1160, 1179, 28 L.Ed.2d 404 (1971) (separate opinion of Harlan, J.).
2
Carnley was convicted and sentenced on September 19, 1958. On June 16, 1960, the Supreme Court of Florida granted a provisional writ of habeas corpus that was discharged on September 23, 1960. Carnley v. Cochran, 123 So.2d 249, 250 (1960).
| 01
|
405 U.S. 518
92 S.Ct. 1103
31 L.Ed.2d 408
Millard GOODING, Warden, Appellant,v.Johnny C. WILSON.
No. 70—26.
Argued Dec. 8, 1971.
Decided March 23, 1972.
Syllabus
Georgia statute providing that '(a)ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor,' which has not been narrowed by the Georgia courts to apply only to 'fighting' words 'which by their very utterance . . . tend to incite an immediate breach of the peace,' Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, is on its face unconstitutionally vague and overbroad under the First and Fourteenth Amendments. Pp. 520—528.
431 F.2d 855, affirmed.
Courtney Wilder Stanton, Atlanta, Ga., for appellant.
Elizabeth R. Rindskopf, Atlanta, Ga., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellee was convicted in Superior Court, Fulton County, Georgia, on two counts of using opprobrious words and abusive language in violation of Georgia Code Ann. § 26—6303, which provides: 'Any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.' Appellee appealed the conviction to the Supreme Court of Georgia on the ground, among others, that the statute violated the First and Fourteenth Amendments because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967). Appellee then sought federal haveas corpus relief in the District Court for the Northern District of Georgia. The District Court found that, because appellee had failed to exhaust his available state remedies as to the other grounds he relied upon in attacking his conviction, only the contention that § 26—6303 was facially unconstitutional was ripe for decision.1 303 F.Supp. 952 (1969). On the merits of that question, the District Court, in disagreement with the Georgia Supreme Court, held that § 26—6303, on its face, was unconstitutionally vague and broad and set aside appellee's conviction. The Court of Appeals for the Fifth Circuit affirmed. 431 F.2d 855 (1970). We noted probable jurisdiction of the State's appeal, 403 U.S. 930, 91 S.Ct. 2244, 29 L.Ed.2d 708 (1971). We affirm.
2
Section 26—6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, Cohen v. California, 403 U.S. 15, 18—22, 91 S.Ct. 1780, 1784—1786, 29 L.Ed.2d 284 (1971); Terminiello v. Chicago, 337 U.S. 1, 4—5, 69 S.Ct. 894, 895—896, 93 L.Ed. 1131 (1949). Only the Georgia courts can supply the requisite construction, since of course 'we lack jurisdiction authoritatively to construe state legislation.' United States v. Thirty-seven (37) Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1405, 28 L.Ed.2d 822 (1971). It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when 'no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,' id., at 486, 85 S.Ct., at 1121; see also Baggett v. Bullitt, 377 U.S. 360, 366, 84 S.Ct. 1316, 1319, 12 L.Ed.2d 377 (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971), id., at 619—620, 91 S.Ct., at 1691 (White, J., dissenting); United States v. Raines, 362 U.S. 17, 21—22, 80 S.Ct. 519, 522—523, 4 L.Ed.2d 524 (1960); NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.
3
'Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.' Coates v. City of Cincinnati, supra, 402 U.S., at 619—620, 91 S.Ct., at 1691 (opinion of White, J.) (citation omitted).
4
The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within 'narrowly limited classes of speech.' Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Even as to such a class, however, because 'the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), '(i)n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,' Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. 'Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.' NAACP ' Button, supra, 371 U.S., at 433, 83 S.Ct., at 338.
5
Appellant does not challenge these principles but contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words—'fighting' words 'those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' Chaplinsky v. New Hampshire, supra, 315 U.S., at 572, 62 S.Ct., at 769. In Chaplinsky, we sustained a conviction under Chapter 378, § 2, of the Public Laws of New Hampshire, which provided: 'No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name . . ..' Chaplinsky was convicted for addressing to another on a public sidewalk the words, 'You are a God damned racketeer,' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.' Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, 'long before the words for which Chaplinsky was convicted,' sharply limited the statutory language 'offensive, derisive or annoying word' to 'fighting' words:
6
'(N)o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. . . .
7
'The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . Derisive and annoying words can be taken as coming within the purview of the statute . . . only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . .
8
'The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee . . .' 91 N.H. 310, 313, 320—321, 18 A.2d 754, 758, 762 (1941).
9
In view of that authoritative construction, this Court held: 'We are unable to say that the limited scope of the statute as thus construed contravenes the constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.' 315 U.S., at 573, 62 S.Ct., at 770. Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish 'fighting' words under carefully drawn statutes not also susceptible of application to protected expression, Cohen v. California, 403 U.S., at 20, 91 S.Ct., at 1785; Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 1314, 25 L.Ed.2d 570 (1970); see Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1969). We reaffirm that proposition today.
10
Appellant argues that the Georgia appellate courts have by construction limited the proscription of § 26—6303 to 'fighting' words, as the New Hampshire Supreme Court limited the New Hampshire statute. 'A consideration of the (Georgia) cases construing the elements of the offense makes it clear that the opprobrious words and abusive language which are thereby prohibited are those which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person, and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in statutory language what this Court has previously denominated 'fighting words." Brief for Appellant 6. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, 'Thus, in the decisions brought to this Court's attention, no meaningful attempt has been made to limit or properly define these terms.' 303 F.Supp., at 955. The District Judge and one member of the unanimous Court of Appeals panel were Georgia practitioners before they ascended the bench.2 Their views of Georgia law necessarily are persuasive with us. C. Wright, Law of Federal Courts § 58, pp. 240—241 (2d ed. 1970). We have, however, made our own examination of the Georgia cases, both those cited and others discovered in research. That examination brings us to the conclusion, in agreement with the courts below, that the Georgia appellate decisions have not construed § 26—6303 to be limited in application, as in Chaplinsky, to words that 'have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.' The dictionary definitions of 'opprobrious' and 'abusive' give them greater reach than 'fighting' words. Webster's Third New International Dictionary (1961) defined 'opprobrious' as 'conveying or intended to convey disgrace,' and 'abusive' as including 'harsh insulting language.' Georgia appellate decisions have construed § 26—6303 to apply to utterances that, although within these definitions, are not 'fighting' words as Chaplinsky defines them. In Lyons v. State, 94 Ga.App. 570, 95 S.E.2d 478 (1956), a conviction under the statute was sustained for awakening 10 women scout leaders on a camp-out by shouting, 'Boys, this is where we are going to spend the night.' 'Get the G—- d—- bed rolls out . . . let's see how close we can come to the G—- d—- tents.' Again, in Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), the Georgia Supreme Court held that a jury question was presented by the remark, 'You swore a lie.' Again, Jackson v. State, 14 Ga.App. 19, 80 S.E. 20 (1913), held that a jury question was presented by the words addressed to another, 'God damn you, why don't you get out of the road?' Plainly, although 'conveying . . . disgrace' or 'harsh insulting language,' these were not words 'which by their very utterance . . . tend to incite an immediate breach of the peace.' Chaplinsky v. New Hampshire, supra, 315 U.S., at 572, 62 S.Ct., at 769.
11
Georgia appellate decisions construing the reach of 'tending to cause a breach of the peace' underscore that § 26—6303 is not limited, as appellant argues, to words that 'naturally tend to provoke violent resentment.' Lyons v. State, supra; Fish v. State, supra; and Jackson v. State, supra. Indeed, the Georgia Court of Appeals3 in Elmore v. State, 15 Ga.App. 461, 83 S.E. 799 (1914), construed 'tending to cause a breach of the peace' as mere
12
'words of description, indicating the kind of character of opprobrious words or abusive language that is penalized, and the use of words or language of this character is a violation of the statute, even though addressed to one who, on account of circumstances or by virtue of the obligations of office, cannot actually then and there resent the same by a breach of the peace . . ..
13
'. . . Suppose that one at a safe distance and out of hearing of any other than the person to whom he spoke, addressed such language to one locked in a prison cell or on the opposite bank of an impassable torrent, and hence without power to respond immediately to such verbal insults by physical retaliation, could it be reasonably contended that, because no breach of the peace could then follow, the statute would not be violated? . . .
14
'. . . (T)hough, on account of circumstances or obligations imposed by office, one may not be able at the time to assault and beat another on account of opprobrious words or abusive language, the words or language might still tend to cause a breach of the peace at some future time, when the person to whom they were addressed might be no longer hampered by physical inability, present conditions, or official position.' 15 Ga.App., at 461—463, 83 S.E., at 799—800.4
15
Moreover, in Samuels v. State, 103 Ga.App. 66, 67, 118 S.E.2d 231, 232 (1961) the Court of Appeals, in applying another statute, adopted from a textbook the common-law definition of 'breach of the peace.'
16
'The term 'breach of the peace' is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community. . . . By 'peace,' as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members.'
17
This definition makes it a 'breach of peace' merely to speak words offensive to some who hear them, and so sweeps too broadly. Street v. New York, 394 U.S., at 592, 89 S.Ct., at 1365. '(H)ow infinitely more doubtful and uncertain are the boundaries of an offense including any 'diversion tending to a breach of the peace' . . ..' Gregory v. City of Chicago, 394 U.S. 111, 119, 89 S.Ct. 946, 950, 22 L.Ed.2d 134 (1969) (Black, J., concurring) (emphasis supplied).
18
Accordingly, we agree with the District Court that our decisions in Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), compel the conclusion that § 26—6303, as construed, does not define the standard of responsibility with requisite narrow specificity. In Ashton we held that 'to make an offense of conduct which is 'calculated to create disturbances of the peace' leaves wide open the standard of responsibility.' 384 U.S., at 200, 86 S.Ct., at 1410. In Cox v. Louisiana the statute struck down included as an element congregating with others 'within intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby.' As the District Court observed, '(a)s construed by the Georgia courts, especially in the instant case, the Georgia provision as to breach of the peace is even broader than the Louisiana statute.' 303 F.Supp., at 956.
19
We conclude that '(t)he separation of legitimate from illegitimate speech calls for more sensitive tools than (Georgia) has supplied.' Speiser v. Randall, 357 U.S., at 525, 78 S.Ct., at 1342. The most recent decision of the Georgia Supreme Court, Wilson v. State, supra, in rejecting appellee's attack on the constitutionality of § 26—6303, stated that the statute 'conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice.' 223 Ga., at 533, 156 S.E.2d, at 448. Because earlier appellate decisions applied § 26—6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt 'measured by common understanding and practice' does not limit the application of § 26 6303 to 'fighting' words defined by Chaplinsky. Rather, that broad standard effectively 'licenses the jury to create its own standard in each case.' Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741, 81 L.Ed. 1066 (1937). Accordingly, we agree with the conclusion of the District Court, '(t)he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application.' 303 F.Supp., at 955—956. Unlike the construction of the New Hampshire statute by the New Hampshire Supreme Court, the Georgia appellate courts have not construed § 26—6303 'so as to avoid all constitutional difficulties.' United States v. Thirty-Seven (37) Photographs, 402 U.S., at 369, 91 S.Ct., at 1405.
20
Affirmed.
21
Mr. Justice POWELL and Mr. Justice REHNQUIST, took no part in the consideration or decision of this case.
22
Mr. Chief Justice BURGER, dissenting.
23
I fully join in Mr. Justice BLACKMUN's dissent against the bizarre result reached by the Court. It is not merely odd, it is nothing less than remarkable that a court can find a state statute void on its face, not because of its language which is the traditional test—but because of the way courts of that State have applied the statute in a few isolated cases, decided as long ago as 1905 and generally long before this Court's decision in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Even if all of those cases had been decided yesterday, they do nothing to demonstrate that the narrow language of the Georgia statute has any significant potential for sweeping application to suppress or deter important protected speech.
24
In part the Court's decision appears to stem from its assumption that a statute should be regarded in the same light as its most vague clause, without regard to any of its other language. Thus, since the statute contains the words 'tending to cause a breach of the peace' the Court finds its result 'compelled' by such decisions as Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). The statute at bar, however, does not prohibit language 'tending to cause a breach of the peace.' Nor does it prohibit the use of 'opprobrious words or abusive language' without more. Rather, it prohibits use 'to or of another, and in his presence (of) opprobrious words or abusive language, tending to cause a breach of the peace.' If words are to bear their common meaning, and are to be considered in context, rather than dissected with surgical precision using a semantic scalpel, this statute has little potential for application outside the realm of 'fighting words' that this Court held beyond the protection of the First Amendment in Chaplinsky. Indeed, the language used by the Chaplinsky Court to describe words properly subject to regulation bears a striking resemblance to that of the Georgia statute, which was enacted many, many years before Chaplinsky was decided. See 315 U.S., at 573, 62 S.Ct., at 770. And if the early Georgia cases cited by the majority establish any proposition, it is that the statute, as its language so clearly indicates, is aimed at preventing precisely that type of personal, face-to-face, abusive and insulting language likely to provoke a violent retaliation self-help, as we euphemistically call it—that the Chaplinsky case recognized could be validly prohibited. The facts of the case now before the Court demonstrate that the Georgia statute is serving that valid and entirely proper purpose. There is no persuasive reason to wipe the statute from the books, unless we want to encourage victims of such verbal assaults to seek their own private redress.
25
The Court apparently acknowledges that the conduct of the defendant in this case is not protected by the First Amendment, and does not contend that the Georgia statute is so ambiguous that he did not have fair notice that his conduct was prohibited. Nor does the Court deny that under normal principles of constitutional adjudication, appellee would not be permitted to attack his own conviction on the ground that the statute in question might in some hypothetical situation be unconstitutionally applied to the conduct of some party not before the Court. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960) (Brennan, J.). Instead, the Court relies on certain sweeping language contained in a few opinions for the proposition that, without regard to the nature of appellee's conduct, the statute in question must be invalidated on its face unless 'it is not susceptible of application to speech, . . . that is protected by the First and Fourteenth Amendments.'
26
Such an expansive statement of the technique of invalidated state statutes on their face because of their substantial overbreach finds little in policy or the actual circumstances of the Court's past decisions to commend it. As the Court itself recognizes, if the First Amendment overbreadth doctrine serves any legitimate purpose, it is to allow the Court to invalidate statutes because their language demonstrates their potential for sweeping improper applications posing a significant likelihood of deterring important First Amendment speech—not because of some insubstantial or imagined potential for occasional and isolated applications that go beyond constitutional bounds. Writing in a related context, Mr. Justice Black, only last Term, evidenced proper regard for normal principles of adjudication when he observed:
27
'Procedures for testing the constitutionality of a statute 'on its face' . . . and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges . . . when such an application of the statute would conflict with the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. . . . (T)he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect is rarely if ever an appropriate task for the judiciary. . . .' Younger v. Harris, 401 U.S. 37, 52—53, 91 S.Ct. 746, 754, 27 L.Ed.2d 669 (1971).
28
These observations were directed specifically to the practice of issuing federal court injunctions against state prosecutions, but the problem presented by this case is much the same.
29
Consistent with this properly restrained approach, the overbreadth decisions of this Court, including most of those relied on by the majority, have up to now invalidated state statutes on their face only when their potential for sweeping and improper application in important areas of First Amendment concern was far more apparent—both from the language of the statute and the subject matter of its coverage—than in this case. Indeed, in many of the Court's leading cases, the statute's improper sweep and deterrent potential were amply documented by the very facts of the case before the Court. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), heavily relied on by the majority, for example, involved a 'breach of the peace' conviction of a leader of black students on the basis of his participation in a peaceful demonstration protesting racial discrimination and a speech urging a 'sit in' at segregated lunch counters. Although the Court held, in the alternative, that a statutory prohibition against congregating with others on a public sidewalk 'with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby' was unconstitutionally vague and overbroad, it is clear that its primary holding was that the statute had been unconstitutionally applied to appellant's conduct as revealed by the record before the Court. See 379 U.S., at 545—551, 85 S.Ct., at 459—462. In contrast to today's opinion, which mentions the facts of the instant case only by way of passing in a footnote, the Cox opinion contained a careful recital and examination of the facts involved, and took care to observe that there was not in the record 'any evidence . . . of 'fighting words.' See Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.' 379 U.S., at 551, 85 S.Ct., at 462. It was clear, therefore, that in Cox not only the language of the statute, but the facts of the very case before the Court, involving as it did protected political speech concerning a burning issue of great social concern, were cogent and persuasive evidence of the statute's potential for sweeping and improper applications. By way of contrast, there is nothing in the language of the Georgia statute, or even in the isolated and ancient Georgia decisions relied on by the Court today that indicates that the statute involved in this case has ever been applied to suppress speech even remotely comparable to that involved in Cox.
30
There is no need to consider each of the other decisions relied on by the majority to reach its result in detail. Suffice it to say that such cases as Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), and Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), arose out of factual situations and involved statutory language and objectives so far different from the instant case in terms of the actual and apparent danger to free expression that their relevance to the case at hand is at best strained and remote.*
31
The Court makes a mechanical and, I suggest, insensitive application of the overbreadth doctrine today. As Mr. Justice BLACKMUN correctly points out, it is difficult to imagine how a State could enact a statute more clearly and narrowly aimed at regulating the type of conduct that the unanimous holding of Chaplinsky tells us may be regulated. It is regrettable that one consequence of this holding may be to mislead some citizens to believe that fighting words of this kind may be uttered free of any legal sanctions.
32
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.
33
It seems strange, indeed, that in this day a man may say to a police officer, who is attempting to restore access to a public building, 'White son of a bitch, I'll kill you' and 'You son of a bitch, I'll choke you to death,' and say to an accompanying officer, 'You son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces,' and yet constitutionally cannot be prosecuted and convicted under a state statute that makes it a misdemeanor to 'use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . .' This, however, is precisely what the Court pronounces as the law today.
34
The Supreme Court of Georgia, when the conviction was appealed, unanimously held the other way. Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967). Surely any adult who can read—and I do not exclude this appellee-defendant from that category—should reasonably expect no other conclusion. The words of Georgia Code § 26—6303 are clear. They are also concise. They are not, in my view, overbroad or incapable of being understood. Except perhaps for the 'big' word 'opprobrious'—and no point is made of its bigness-any Georgia schoolboy would expect that this defendant's fighting and provocative words to the officers were covered by § 26—6303. Common sense permits no other conclusion. This is demonstrated by the fact that the appellee, and this Court, attack the statute, not as it applies to the appellee, but as it conceivably might apply to others who might utter other words.
35
The Court reaches its result by saying that the Georgia statute has been interpreted by the State's courts so as to be applicable in practice to otherwise constitutionally protected speech. It follows, says the Court, that the statute is overbroad and therefore is facially unconstitutional and to be struck down in its entirety. Thus Georgia apparently is to be left with no valid statute on its books to meet Wilson's bullying tactic. This result, achieved by what is indeed a very strict construction, will be totally incomprehensible to the State of Georgia, to its courts, and to its citizens.
36
The Court would justify its conclusion by unearthing a 66-year-old decision, Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), of the Supreme Court of Georgia, and two intermediate appellate court cases over 55 years old, Jackson v. State, 14 Ga.App. 19, 80 S.E. 20 (1913), and Elmore v. State, 15 Ga.App. 461, 83 S.E. 799 (1914), broadly applying the statute in those less permissive days, and by additional reference to (a) a 1956 Georgia intermediate appellate court decision, Lyons v. State, 94 Ga.App. 570, 95 S.E.2d 478, which, were it the first and only Georgia case, would surely not support today's decision, and (b) another intermediate appellate court decision, Samuels v. State, 103 Ga.App. 66, 118 S.E.2d 231 (1961), relating, not to § 26—6303, but to another statute.
37
This Court appears to have developed its overbreadth rationale in the years since these early Georgia cases. The State's statute, therefore, is condemned because the State's courts have not had an opportunity to adjust to this Court's modern theories of overbreadth.
38
I wonder, now that § 26—6303 is voided, just what Georgia can do if it seeks to proscribe what the Court says it still may constitutionally proscribe. The natural thing would be to enact a new statute reading just as § 26—6303 reads. But it, too, presumably would be overbroad unless the legislature would add words to the effect that it means only what this Court says it may mean and no more. See Criminal Code of Georgia § 26—2610 (1969).
39
I cannot join the Court in placing weight upon the fact that Judge Smith of the United States District Court had been a Georgia practitioner and that Judge Morgan of the Court of Appeals had also practiced in that State. After all, each of these Georgia federal judges is bound by this Court's self-imposed straitjacket of the overbreadth approach. Judge Smith's personal attitude is clear, for he said:
40
'(T)his Court does not see any policy reasons for upholding the right of a person to use the type of language expressed by this petitioner. It strains the concept of freedom of speech out of proportion when it is argued that such language is and should be protected.' 303 F.Supp. 952, 955 (N.D.Ga.1969).
41
And the Court of Appeals joined in this comment when, on the point at issue here, it merely agreed 'with the well reasoned opinion of the district court.' 431 F.2d 855, 859 (C.A.5 1970).
42
For me, Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), was good law when it was decided and deserves to remain as good law now. A unanimous Court, including among its members Chief Justice Stone and Justices Black, Reed, Douglas, and Murphy, obviously thought it was good law. But I feel that by decisions such as this one and, indeed, Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), the Court, despite its protestations to the contrary, is merely paying lip service to Chaplinsky. As the appellee states in a footnote to his brief, p. 14, 'Although there is no doubt that the state can punish 'fighting words' this appears to be about all that is left of the decision in Chaplinsky.' If this is what the overbreadth doctrine means, and if this is what it produces, it urgently needs re-examination. The Court has painted itself into a corner from which it, and the States, can extricate themselves only with difficulty.
1
The District Court stated, 'Accordingly, this order will not deal with the alleged unconstitutional application of this statute nor any of the other points raised in the writ, except for the facial unconstitutionality of Georgia Code § 26—6303.' 303 F.Supp., at 953. The state conviction was upon two counts of assault and battery as well as upon two counts of using opprobrious and abusive language. Appellee was also convicted of federal offenses arising out of the same incident, and those convictions were affirmed by the Court of Appeals for the Fifth Circuit. Tillman v. United States, 406 F.2d 930 (1969). The facts giving rise to the prosecutions are stated in the opinion of the Supreme Court of Georgia as follows:
'The defendant was one of a group of persons who, on August 18, 1966, picketed the building in which the 12th Corps Headquarters of the United States Army was located, carrying signs opposing the war in Viet Nam. When the inductees arrived at the building, these persons began to block the door so that the inductees could not enter. They were requested by police officers to move from the door, but refused to do so. The officers attempted to remove them from the door, and a scuffle ensued. There was ample evidence to show that the defendant committed assault and battery on the two police officers named in the indictment. There was also sufficient evidence of the use of the opprobrious and abusive words charged, and the jury was authorized to find from the circumstances shown by the evidence that the words were spoken without sufficient provocation, and tended to cause a breach of the peace.' 223 Ga. 531, 535, 156 S.E.2d 446, 449—450.
'Count 3 of the indictment alleged that the accused 'did without provocation use to and of M. G. Redding and in his presence, the following abusive language and opprobrious words, tending to cause a breach of the peace: 'White son of a bitch, I'll kill you.' 'You son of a bitch, I'll choke you to death." Count 4 alleged that the defendant 'did without provocation use to and of T. L. Raborn, and in his presence, the following abusive language and opprobrious words, tending to cause a breach of the peace: 'You son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces.'" Id., at 534, 156 S.E.2d, at 449.
2
Judge Sidney O. Smith, Jr., of Gainesville, Georgia, was the District Judge. Judge Lewis R. Morgan of Newnan, Georgia, a member of the Court of Appeals panel, sat as District Judge in Georgia before his appointment to the Court of Appeals.
3
We were informed in oral argument that the Court of Appeals of Georgia is a court of statewide jurisdiction, the decisions of which are binding upon all trial courts in the absence of a conflicting decision of the Supreme Court of Georgia. Federal courts therefore follow these holdings as to Georgia law. Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205, 76 S.Ct. 273, 277, 100 L.Ed. 199 (1956).
4
The dissents question reliance upon Georgia cases decided more than 50 years ago. But Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905) and Jackson v. State, 14 Ga.App. 19, 80 S.E. 20 (1913), were cited by the Supreme Court of Georgia in 1967 in Wilson v. State, 223 Ga. 531, 156 S.E.2d 446, to support that holding. Thus, Fish and Jackson remain authoritative interpretations of § 26—6303 by the State's highest court.
*
Even assuming that the statute, on its face, were impermissibly overbroad, the Court does not satisfactorily explain why it must be invalidated in its entirety. To be sure, the Court notes that 'we lack jurisdiction authoritatively to construe state legislation.' But that cryptic statement hardly resolves the matter. The State of Georgia argues that the statute applies only to fighting words that Chaplinsky holds may be prohibited, and the Court apparently agrees that the statute would be valid if so limited. The Court should not assume that the Georgia courts, and Georgia prosecutors and police, would ignore a decision of this Court sustaining appellee's conviction narrowly and on the explicit premise that the statute may be validly applied only to 'fighting words' as defined in Chaplinsky. See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 892, 894 896, and nn. 189, 190 (1970). Where such a clear line defining the area of constitutional application is available, the fact that the Court cannot authoritatively construe the state statute to excise its unconstitutional applications should make us more, not less, reluctant to strike it down on its face. This is especially so when the Court, by relying on old Georgia case to bolster its conclusion, virtually concedes that the plain language does not offend the First Amendment.
| 23
|
405 U.S. 538
92 S.Ct. 1113
31 L.Ed.2d 424
Dorothy LYNCH et al., Appellants,v.HOUSEHOLD FINANCE CORPORATION, et al.
No. 70—5058.
Argued Dec. 7, 1971.
Decided March 23, 1972.
Rehearing Denied April 24, 1972.
See 406 U.S. 911, 92 S.Ct. 1611.
Syllabus
Appellee Household Finance Corp. sued appellant Lynch in state court alleging nonpayment of a promissory note, and, prior to serving her with process, garnished her savings account under Connecticut law authorizing summary pre-judicial garnishment. Appellant challenged the validity of the state statutes under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and sought declaratory and injunctive relief under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3). The District Court dismissed the complaint on the grounds (1) that it lacked jurisdiction under § 1343(3), as that section applies only if 'personal' rights, as opposed to 'property' rights, are impaired, and (2) that relief was barred by 28 U.S.C. § 2283, proscribing injunctions against state court proceedings. Held:
1. There is no distinction between personal liberties and proprietary rights with respect to jurisdiction under 28 U.S.C. § 1343(3). Pp. 542—552.
(a) Neither the language nor the legislative history of that section distinguishes between personal and property rights. Pp. 543—546.
(b) There is no conflict between that section and 28 U.S.C. § 1331, and the legislative history of § 1331 does not provide any basis for narrowing the scope of § 1343(3) jurisdiction. Pp. 546 550.
(c) It would be virtually impossible to apply a 'personal liberties' limitation on § 1343(3) as there is no real dichotomy between personal liberties and property rights. It has long been recognized that rights in property are basic civil rights. Pp. 550 552.
2. Prejudgment garnishment under the Connecticut statutes is levied and maintained without the participation of the state courts, and thus an injunction against such action is not barred by the provisions of 28 U.S.C. § 2283. Pp. 552—556.
318 F.Supp. 1111, reversed and remanded.
David M. Lesser, New Haven, Conn., for appellants.
Richard G. Bell, New Haven, Conn., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
In 1968, the appellant, Mrs. Dorothy Lynch, a resident of New Haven, Connecticut, directed her employer to deposit $10 of her $69 weekly wage in a credit union savings account. In 1969, appellee Household Finance Corp. sued Mrs. Lynch for $525 in a state court, alleging nonpayment of a promissory note. Before she was served with process, the appellee corporation garnished her savings account under the provisions of Connecticut law that authorize summary pre-judicial garnishment at the behest of attorneys for alleged creditors.1
2
The appellant then brought this class action in a federal district court against Connecticut sheriffs who levy on bank accounts and against creditors who invoke the garnishment statute.2 Mrs. Lynch alleged that she had no prior notice of the garnishment and no opportunity to be heard. She claimed that the state statutes were invalid under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and sought declaratory and injunctive relief pursuant to 42 U.S.C. § 19833 and its jurisdictional counterpart, 28 U.S.C. § 1343(3).4 A district court of three judges was convened to hear the claim under 28 U.S.C. §§ 2281 and 2284.
3
The District Court did not reach the merits of the case. It dismissed the complaint without an evidentiary hearing on the grounds that it lacked jurisdiction under § 1343(3) and that relief was barred by the statute prohibiting injunctions against state court proceedings, 28 U.S.C. § 2283. 318 F.Supp. 1111. We noted probable jurisdiction, pursuant to 28 U.S.C. § 1253,5 to consider the jurisdictional issues presented. 401 U.S. 935, 91 S.Ct. 962, 28 L.Ed.2d 214.
4
We hold, for the reasons that follow, that neither § 1343(3) nor § 2283 warranted dismissal of the appellant's complaint. Accordingly, we remand the case to the District Court for consideration of the remaining issues in this litigation.
5
* In dismissing the appellant's complaint, the District Court held that § 1343(3) applies only if 'personal' rights, as opposed to 'property' rights, are allegedly impaired. The court relied on the decision of the Court of Appeals for the Second Circuit in Eisen v. Eastman, 421 F.2d 560, 563, which rested, in turn, on Mr. Justice Stone's well-known opinion a generation ago in Hague v. CIO, 307 U.S. 496, 531, 59 S.Ct. 954, 971, 83 L.Ed. 1423. See also, e.g., Weddle v. Director, 4 Cir., 436 F.2d 342; Bussie v. Long, 5 Cir., 383 F.2d 766; Howard v. Higgins, 10 Cir., 379 F.2d 227.
6
This Court has never adopted the distinction between personal liberties and proprietary rights as a guide to the contours of § 1343(3) jurisdiction.6 Today we expressly reject that distinction.
7
* Neither the words of § 1343(3) nor the legislative history of that provision distinguishes between personal and property rights. In fact, the Congress that enacted the predecessor of §§ 1983 and 1343(3) seems clearly to have intended to provide a federal judicial forum for the redress of wrongful deprivations of property by persons acting under color of state law.
8
This Court has traced the origin of § 1983 and its jurisdictional counterpart to the Civil Rights Act of 1866, 14 Stat. 27. Adickes v. S. H. Kress & Co., 398 U.S. 144, 162—163, 90 S.Ct. 1598, 1611—1612, 26 L.Ed.2d 142; Monroe v. Pape, 365 U.S. 167, 171, 183—185, 81 S.Ct. 473, 475, 481—483, 5 L.Ed.2d 492.7 That Act guaranteed 'broad and sweeping . . .protection' to basic civil rights. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386. Acquisition, enjoyment, and alienation of property were among those rights. Jones v. Alfred H. Mayer Co., 392 U.S. 409. 432, 88 S.Ct. 2186, 2199, 20 L.Ed.2d 1189.8
9
The Fourteenth Amendment vindicated for all persons the rights established by the Act of 1866. Monroe, supra, 365 U.S., at 171, 81 S.Ct., at 1475; Hague, supra, 307 U.S. at 509—510, 59 S.Ct. at 961—962. 'It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.' Shelley v. Kraemer, 334 U.S. 1, 10, 68 S.Ct. 836, 841, 92 L.Ed. 1161. See also, Buchanan v. Warley, 245 U.S. 60, 74—79, 38 S.Ct. 16, 18—20, 62 L.Ed. 149; H. Flack, The Adoption of the Fourteenth Amendment 75—78, 81, 90—97 (1908); J. tenBroek, The Antislavery Origins of the Fourteenth Amendment (1951).
10
The broad concept of civil rights embodied in the 1866 Act and in the Fourteenth Amendment is unmistakably evident in the legislative history of § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the direct lineal ancestor of §§ 1983 and 1343(3). Not only was § 1 of the 1871 Act derived from § 2 of the 1866 Act,9 but the 1871 Act was passed for the express purpose of 'enforc(ing) the Provisions of the Fourteenth Amendment.' 17 Stat. 13. And the rights that Congress sought to protect in the Act of 1871 were described by the chairman of the House Select Committee that drafted the legislation as 'the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.' Cong.Globe, 42d Cong., 1st Sess., App. 69 (1871) (Rep. Shellabarger, quoting from Corfield v. Coryell, 6 Fed.Cas. pp. 546, 551—552, No. 3,230 (CCED Pa.)). That the protection of property as well as personal rights was intended is also confirmed by President Grant's message to Congress urging passage of the legislation,10 and by the remarks of many members of Congress during the legislative debates.11
B
11
In 1875, Congress granted the federal courts jurisdiction of 'all suits of a civil nature at common law or in equity . . . arising under the Constitution or laws of the United States.' 18 Stat. 470. Unlike § 1343(3), this general federal-question provisions, the forerunner of 28 U.S.C. § 1331, required that a minimum amount in controversy be alleged and proved.12 Mr. Justice Stone's opinion in Hague, supra, as well as the federal court decisions that followed it, e.g., Eisen v. Eastman, 421 F.2d 560, reflect the view that there is an apparent conflict between §§ 1343(3) and 1331,13 i.e., that a broad reading of § 1343(3) to include all rights secured by the Constitution would render § 1331, and its amount-in-controversy requirement, superfluous. These opinions sought to harmonize the two jurisdictional provisions by construing § 1343(3) as conferring federal jurisdiction of suits brought under § 1983 only when the right asserted is personal, not proprietary.
12
The initial failure of this reasoning is that the supposed conflict between §§ 1343(3) and 1331 simply does not exist. Section 1343(3) applies only to alleged infringements of rights under 'color of . . . State law,' whereas § 1331 contains no such requirement. Thus, for example, in suits against federal officials for alleged deprivations of constitutional rights, it is necessary to satisfy the amount-in-controversy requirement for federal jurisdiction. See Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.
13
But the more fundamental point to be made is that any such contraction of § 1343(3) jurisdiction is not supported by the legislative history of § 1331. The 1875 Act giving the federal courts power to hear suits arising under Art. III, § 2, of the Constitution was, like the Act of 1871, an expansion of national authority over matters that, before the Civil War, had been left to the States. F. Frankfurter & J. Landis, The Business of the Supreme Court 65 (1928); Zwickler v. Koota, 389 U.S. 241, 245—248, 88 S.Ct. 391, 393—395, 19 L.Ed.2d 444; Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 645 (1942). The Act therefore, is 'clearly . . . part of, rather than an exception to, the trend of legislation which preceded it.' Chadbourn & Levin, supra, at 645; Zwickler, supra. There was very little discussion of the measure before its enactment, in contrast to the extensive congressional debate that attended the passage of the Act of 1871.14 And there is, as a result, no indication whatsoever that Congress, in a rather hastily passed measure, intended to narrow the scope of a provision passed four years earlier as part of major civil rights legislation.15
14
The 'cardinal rule . . . that repeals by implication are not favored,' Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351; Jones v. Alfred H. Mayer Co. 392 U.S., at 437, 88 S.Ct., at 2202; thus counsels a refusal to pare down § 1343(3) jurisdiction—and the substantive scope of § 1983—by means of the distinction between personal liberties and property rights, or in any other way. The statutory descendents of § 1 of the Civil Rights Act of 1871 must be given the meaning and sweep that their origins and their language dictate.16
15
Moreover, although the purpose of the amount-in-controversy requirement is to reduce congestion in the federal courts, S.Rep.No.1830, 85th Cong., 2d Sess. (1958), U.S.Code Cong. & Admin.News, p. 3099, Congress has substantially lessened its importance with respect to § 1331 by passing many statutes that confer federal-question jurisdiction without an amount-in-controversy requirement.17 So it was that when Congress increased the jurisdictional amount from $3,000 to $10,000, Act of July 25, 1958, 72 Stat. 415, it made clear that its primary concern was to reduce the federal judiciary's workload with regard to cases arising under federal diversity jurisdiction, 28 U.S.C. § 1332, not under § 1331.18
16
A final, compelling reason for rejecting a 'personal liberties' limitation upon § 1343(3) is the virtual impossibility of applying it.19 The federal courts have been particularly bedeviled by 'mixed' cases in which both personal and property rights are implicated, and the line between them has been difficult to draw with any consistency or principled objectivity.20 The case before us presents a good example of the conceptual difficulties created by the test.21
17
Such difficulties indicate that the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a 'personal' right, whether the 'property' in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82—85 (1924); J. Adams, A Defence of the Constitutions of Government of the United States of America, in F. Coker, Democracy, Liberty, and Property 121—132 (1942); 1 W. Blackstone, Commentaries, *138—140. Congress recognized these rights in 1871 when it enacted the predecessor of §§ 1983 and 1343(3). We do no more than reaffirm the judgment of Congress today.
II
18
Under 28 U.S.C. § 2283, a federal court may not 'grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.' The District Court relied upon this statute as an alternative ground for the dismissal of the appellant's complaint. The appellant contends that § 2283 is inapplicable to this case because prejudgment garnishment under Conn.Gen.Stat.Rev. § 52—32922 is not a proceeding in state court. We agree.23
19
In Connecticut, garnishment is instituted without judicial order. Ibid.; 1 E. Stephenson, Connecticut Civil Procedure 151 (2d ed. 1970).24 The levy of garnishment—usually effected by a deputy sheriff—does not confer jurisdiction on state courts and may, in fact, occur prior to commencement of an alleged creditor's suit. Young v. Margiotta, 136 Conn. 429, 433, 71 A.2d 924, 926. Despite the state court's control over the plaintiff's docketed case, garnishment is 'distinct from and independent of that action.' Potter v. Appleby, 136 Conn. 641, 643, 73 A.2d 819, 820. The garnished property is secured, not under authority of the court, but merely in the hands of the garnishee. Conn.Gen.Stat.Rev. § 52 329. Prejudgment garnishment is thus levied and maintained without the participation of the state courts.
20
In this case, the appellant sought to enjoin garnishment proceedings, not the finance company's suit on the promissory note. The District Court noted that 'garnishment may be separated from the underlying in personam action,' but held that § 2283 was a bar because the interference with existing creditors' suits caused by such an injunction 'probably would be substantial.' 318 F.Supp., at 1115. According to the appellees, interference would occur because garnishment is necessary to make any eventual judgment in the pending state suit effective. Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 282, 80 L.Ed. 293.
21
This argument is not persuasive in the context of the Connecticut prejudgment garnishment scheme. Garnishment might serve to make a subsequent judgment effective. Cf. Hill, supra; Manufacturers Record Publishing Co. v. Lauer, 5 Cir., 268 F.2d 187, cert. denied, 361 U.S. 913, 80 S.Ct. 258, 4 L.Ed.2d 184; Furnish v. Board of Medical Examiners of California, 257 F.2d 520, cert. denied, 358 U.S. 882, 79 S.Ct. 123, 3 L.Ed.2d 111. But the garnishment was, in this case, an action taken by private parties who were not proceeding under a court's supervision25 and who were using, as agents, state officials who were themselves not acting pursuant to a court order or under a court's authority.
22
In Hill, supra, we said that the 'proceeding' that a federal court is forbidden to enjoin 'includes all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process.' Id., 296 U.S., at 403, 56 S.Ct., at 282 (emphasis supplied). In this case, the garnishment occurred before the appellee corporation had served the appellant with process.
23
More important, the state court and its officers are insulated from control over the garnishment. Connecticut appears to be one of the few States authorizing an attorney for an alleged creditor to garnish or attach property without any participation by a judge or clerk of the court. Stephenson, supra, at 230. A person whose account has been seized can get only minimal relief at best.26 The state courts have held that they cannot enjoin a garnishment on the ground that it was levied unconstitutionally. Michael's Jewelers v. Handy, 6 Conn.Cir. 103, 266 A.2d 904; Harris v. Barone, 147 Conn. 233, 158 A.2d 855. One assumption underlying § 2283 is that state courts will vindicate constitutional claims as fairly and efficiently as federal courts. But this assumption cannot obtain when the doors of the state courts are effectively closed to a person seeking to enjoin a garnishment on constitutional grounds.
24
Because of the extrajudicial nature of Connecticut garnishment, an injunction against its maintenance is not, therefore, barred by the terms of § 2283. In light of this conclusion, we need not decide whether § 1983 is an exception to § 2283 'expressly authorized by Act of Congress.' We have explicitly left that question open in other decisions.27 And we may put it to one side in this case because the state act that the federal court was asked to enjoin was not a proceeding 'in a State court' within the meaning of § 2283.
25
We conclude, therefore, that the District Court had jurisdiction to entertain the appellant's suit for an injunction under § 1983. Accordingly, the judgment before us is reversed, and the case remanded for further proceedings consistent with this opinion.
26
It is so ordered.
27
Judgment reversed and case remanded.
28
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
29
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
30
I agree with the Court that federal jurisdiction under 28 U.S.C. § 1343 is not limited to the adjudication of personal rights and if the disposition of this case turned solely on that issue I would without reservation join in the majority opinion. But I cannot agree either with the approach that the majority takes to the antiinjunction statute, 28 U.S.C. § 2283, or its conclusion that the statute does not bar this suit. I do not mean to suggest that appellants' due process attack on the Connecticut garnishment statute is not substantial. It obviously is. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Nevertheless, in my view, appellants should be required to press their constitutional attack in the state courts.
31
In Connecticut, garnishment or attachment is one method of beginning a lawsuit. Conn.Gen.Stat.Rev. § 52—329; 1 E. Stephenson, Connecticut Civil Procedure 156—157, 232—237 (2d ed. 1970). Of course, the requisite personal service upon a defendant is necessary to obtain in personam jurisdiction, Conn.Gen.Stat.Rev. § 52—54, as well as to secure an effective garnishment, Stephenson, supra, at 244, but as a matter of right in certain kinds of civil actions a plaintiff may simultaneously garnish a defendant's bank account and serve a summons upon the defendant, together with a complaint stating the nature of the underlying action. Conn.Gen.Stat.Rev. § 52—329. A state court obtains jurisdiction of the action and of questions concerning the garnishment when return of process is made to that court. Stephenson, supra, at 67. Garnishment is 'ancillary to the main action for damages and cannot exist without such action.' Id., at 143. Its purpose, as the majority notes, is to secure property that will thus be made available for the satisfaction of a judgment. Ibid. A writ of garnishment may be issued by a judge of the court of jurisdiction, Conn.Gen.Stat.Rev. § 52—89 (Supp.1969), but because garnishment in Connecticut, unlike most other States, is a matter of right and requires no prior judicial determination, the writ may also be issued by a court clerk or licensed attorney. Conn.Gen.Stat.Rev. § 51—85. In either case, the matter is accomplished simply by completing a form.
32
Appellant Lynch brought this federal action to enjoin the garnishment more than seven months after the writ had been executed, the summons and complaint served, process returned, and the case docketed in Connecticut court. At the earliest moment that a federal injunction could have issued the state court proceeding was well under way. Despite this, the majority purports to sever the garnishment from the action that underlies it. The Court reasons that Connecticut garnishment is not a proceeding in state court because it is carried out by private parties not acting pursuant to a court order. Ante, at 554—555.
33
If the majority means that garnishment is a severable matter, independent of the main suit and for that reason outside of § 2283, then I would suppose it permissible for a federal court to enjoin any garnishment or attachment, whether obtained at the inception of a lawsuit, while it is in progress, or after judgment and for the purpose of execution. This approach to the anti-injunction statute, articulated in Simon v. Southern R. Co., 236 U.S. 115, 124—125, 35 S.Ct. 255, 258—259, 59 L.Ed. 492 (1915), was, I thought, laid to rest in Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 282, 80 L.Ed. 293 (1935), where the Court construed 'proceedings in any court of a State' comprehensively and as embracing
34
'all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process. It applies to appellate as well as to original proceedings; and is independent of the doctrine of res judicata. It applies alike to action by the court and by its ministerial officers; applies not only to an execution issued on a judgment, but to any proceeding supplemental or ancillary taken with a view to making the suit or judgment effective.' (Footnotes omitted.)
35
The Court today embarks on quite a different course and rejects not only Hill v. Martin but also a substantial body of federal court of appeals law to the effect that § 2283 bars federal court interference with executions on state court judgments. E.g., Manufacturers Record Publishing Co. v. Lauer, 268 F.2d 187 (CA5), cert. denied, 361 U.S. 913, 80 S.Ct. 258, 4 L.Ed.2d 184 (1959); Furnish v. Board of Medical Examiners of California, 257 F.2d 520 (CA9), cert. denied, 358 U.S. 882, 79 S.Ct. 123, 3 L.Ed.2d 111 (1958); Norwood v. Parenteau, 228 F.2d 148 (CA8 1955), cert. denied, 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956).1
36
The Court also suggests that § 2283 is inapplicable here because no Connecticut court authorized the garnishment. Its view apparently is that a federal injunction would therefore not interfere with state court processes. Until now, however, it has been reasonably clear that § 2283 cannot be avoided by the simple expedient of enjoining parties instead of judges. Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 537 (1940). Moreover, the Court's rationale proves too much. Contrary to the views expressed in Hill v. Martin, supra, state court ministerial officers could be enjoined at any time and for any purpose in the course of a litigation and without regard to § 2283. In addition, parties to state court litigation could be enjoined from performing any one or all of the tasks essential to the orderly progress of litigation so long as the acts in question are not carried out pursuant to court order. Depositions of parties and witnesses, interrogatories to parties, and subpoenas for witnesses are commonly pursued without resort to a judge. Are these and other functions not performed under court order now subject to attack in federal court at the option of the offended state court litigant?
37
Today's decision will, I fear, create confusion by making the applicability of § 2283 turn on rules that are difficult to apply. The potential for conflict between state and federal courts will increase and the price for judicial errors will be paid by litigants and courts alike. The common sense of the matter, it seems to me, is that the garnishment at issue here is part and parcel of a state court proceeding now under way. Garnishment in Connecticut may be characterized as separate from the underlying action, but it is nonetheless a proceeding and derives its legitimacy from the suit it accompanies. At the time this federal action was brought, return of process had long since been completed and the state court had acquired jurisdiction of a straightforward cause of action, including questions of the legitimacy and constitutionality of the garnishment.
38
It also seems to me that, quite apart from § 2283, today's holding departs from such cases as Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), and Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), which counsel against atomizing state litigation by enjoining, for example, the introduction of illegally obtained evidence, as well as from the more general admonitions of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 699 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); and Perez v. Ledesma, supra, against improvident exercise of a federal court's equitable powers to frustrate or interfere with the operations of state courts by adjudicating federal questions that are involved in state court litigation and which can be adjudicated there. As the Court said in Stefanelli, if such interventions were to be permitted, '(e)very question of procedural due process of law—with its far-flung and undefined range—would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue.' 342 U.S., at 123, 72 S.Ct., at 122. Such resort, if permitted, 'would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts.' Id., at 123—124, 72 S.Ct., at 122.
39
Appellee Barrett invokes Younger and companion cases as a ground for affirming the judgment of the District Court. Of course, those cases involved federal injunctions against state criminal proceedings, but the relevant considerations, in my view, are equally applicable where state civil litigation is in progress, as is here the case.2
40
I would affirm the judgment of the court below.
1
The garnishment was levied pursuant to Conn.Gen.Stat.Rev. § 52—329. For a further description of Connecticut's statutory garnishment scheme, see Part II of this opinion, infra.
2
The second named appellant, Norma Toro, had her checking account garnished by her former landlord, one Eugene Composano. Subsequently Composano released the garnishment. An issue of mootness—which was not resolved by the District Court—is thus presented. We do not, however, reach this issue. Appellant Lynch had a savings account garnished, appellant Toro a checking account. The considerations applicable to one type of account seem identical to those applicable to the other. In this opinion, therefore, we shall only refer to the case of appellant Lynch.
An issue is also raised as to the propriety of the classes purported to be represented by the appellants and appellees. In view of our disposition of the case, we leave this issue for consideration by the District Court upon remand.
3
The statute provides:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
4
The statute states in relevant part:
'The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . .'
5
The appellees argue that we have no jurisdiction to consider this case on direct appeal from the three-judge District Court, 28 U.S.C. § 1253, because the court did not reach the merits of the appellant's claim for an injunction but dismissed for lack of subject matter jurisdiction.
But whether a direct appeal will lie depends on 'whether the three-judge (court was) property convened.' Moody v. Flowers, 387 U.S. 97, 99, 87 S.Ct. 1544, 1546, 18 L.Ed.2d 643. This action challenges the constitutionality of a state statute and seeks to enjoin its enforcement. The questions it raises are substantial. It, therefore, meets the requirements for convening a three-judge court. 28 U.S.C. § 2281; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794. This case may, therefore, be distinguished from Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701, upon which the appellees rely. In that case, we had no power to consider the merits of an appeal because the ordinance in question was neither a state statute nor of statewide application. Perez, supra, at 89, 91 S.Ct., at 679 (concurring opinion). When a state statute is challenged and injunctive relief sought, we have granted direct review pursuant to § 1253 although three-judge courts dismissed for lack of subject-matter jurisdiction, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 71 L.Ed.2d 663; Abernathy v. Carpenter, 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409; Doud v. Hodge, 350 U.S. 485, 76 S.Ct. 491, 100 L.Ed. 577; Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568, or because relief was thought to be barred by 28 U.S.C. § 2283, Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182.
The appellees also note that § 1253 permits appeals to this Court only from orders 'granting or denying . . . an interlocutory or permanent injunction . . .' They argue that since the three-judge court never considered whether an injunction should be granted an appeal should lie to the Court of Appeals. The three-judge court, however, entered a judgment 'denying all relief sought by plaintiffs.' We therefore have jurisdiction to consider the claims presented.
6
The appellees cite three cases decided by this Court before Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, that, they say, support the limitation of § 1343(3) jurisdiction to claims deprivation of personal liberties. Carter v. Greenhow, 114 U.S. 317, 5 S.Ct. 928, 29 L.Ed. 202; Pleasants v. Greenhow, 114 U.S. 323, 5 S.Ct. 931, 29 L.Ed. 204; Holt v. Indiana Mfg. Co., 176 U.S. 68, 20 S.Ct. 272, 44 L.Ed. 374. The appellees also rely on two recent affirmances, without opinion, of decisions by three-judge district courts dismissing § 1343(3) suits on the ground that the rights allegedly infringed were proprietary. Hornbeak v. Hamm, 393 U.S. 9, 89 S.Ct. 47, 21 L.Ed.2d 14, aff'g 283 F.Supp. 549 (MD Ala.1968); Abernathy v. Carpenter, 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409, aff'g 208 F.Supp. 793 (WD Mo.1962).
All of these cases involved constitutional challenges to the collection of state taxes. Congress has treated judicial interference with the enforcement of state tax laws as a subject governed by unique considerations and has restricted federal jurisdiction accordingly:
'The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.' 28 U.S.C. § 1341.
We have repeatedly barred anticipatory federal adjudication of the validity of state tax laws. Dows v. City of Chicago, 11 Wall. 108, 20 L.Ed. 65; Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407; see also Perez v. Ledesma, 401 U.S., at 126—127, n. 17, 91 S.Ct., at 697—698 (opinion of Brennan, J.). The decisions cited by appellees may, therefore, be seen as consistent with congressional restriction of federal jurisdiction in this special class of cases, and with long-standing judicial policy.
7
Section 2 of the 1866 Act was the model for § 1 of the Civil Rights Act of 1871, 17 Stat. 13. See n. 9, infra. Sections 1983 and 1343(3) are direct descendants of § 1 of the Act of 1871. In 1874, Congress consolidated the various federal statutes at large under separate titles in the Revised Statutes in order to codify existing law. In the process, the substantive provision of § 1 of the 1871 Act became separated from its jurisdictional counterpart. Rev.Stat. § 1979. Although the original substantive provision had protected rights, privileges, or immunities secured by the Constitution, the provision in the Revised Statutes was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well.
Originally, suits under § 1 of the 1871 Act could be brought in either circuit or district court. After codification in 1874, the jurisdictional grant to the district courts was identical in scope with the expanded substantive provision, Rev.Stat. § 563(12). Circuit court jurisdiction was limited to claimed deprivations of rights, privileges, or immunities secured by the Constitution or by any Act of Congress 'providing for equal rights.' Rev.Stat. § 629(16). In 1911, when Congress abolished the circuit courts' original jurisdiction and merged the two jurisdictional sections into what is now § 1343(3), the 'equal rights' limitation was retained in the revised jurisdictional grant. Act of Mar. 3, 1911, 36 Stat. 1087. Despite the different wording of the substantive and jurisdictional provisions, when the § 1983 claim alleges constitutional violations, § 1343(3) provides jurisdiction and both sections are construed identically. Douglas v. City of Jeannette, 319 U.S. 157, 161, 63 S.Ct. 877, 880, 87 L.Ed. 1324.
8
See generally Report of C. Shurz, S.Exec.Doc.No.2, 39th Cong., 1st Sess. (1865); Cong.Globe, 39th Cong., 1st Sess., 3034 3035 and App. 219 (1866); J. tenBroek, The Antislavery Origins of the Fourteenth Amendment (1951); Frank & Munro, The Original Understanding of 'Equal Protection of the Laws,' 50 Col.L.Rev. 131, 144—145 (1950).
9
Section 2 of the 1866 Civil Rights Act, 14 Stat. 27, currently codified in slightly different form as 18 U.S.C. § 242, read in pertinent part:
'(A)ny person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State . . . to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude . . . shall be deemed guilty of a misdemeanor . . .' (Emphasis supplied.)
Section 2 provided criminal penalties for any violation of § 1 of the 1866 Act. Screws v. United States, 325 U.S. 91, 98—100, 65 S.Ct. 1031, 1033—1035, 89 L.Ed. 1495. The latter section enumerated the rights the Act protected, including, inter alia, the right 'to make and enforce contracts, to sue . . . to inherit, purchase, lease, sell, hold, and convey real and personal property. . . .'
Representative Shellabarger, chairman of the House Select Committee which drafted the Civil Rights Act of 1871, stated that
'The model for (§ 1 of the 1871 Act) will be found in the second section of the act of April 9, 1866, known as the 'civil rights act.' That section provides a criminal proceedings in identically the same case as this one provides a civil remedy . . .' Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871).
10
The President, in a message dated March 23, 1871, stated: FC 'A condition of affairs now exists in some States of the Union rendering life and property insecure * * * I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States.' Cong.Globe, 42d Cong., 1st Sess., 244.
11
See, e.g., Cong.Globe, 42d Cong., 1st Sess., 332—334 (Rep. Hoar); 369—370 (Rep. Monroe); 375—376 (Rep. Lowe); 429 (Rep. Beatty); 448 (Rep. Butler); 459—461 (Rep. Coburn); 475—476 (Rep. Dawes); 501 (Sen. Frelinghuysen); 568 (Sen. Edmunds); 577 (Sen. Carpenter); 607 (Sen. Pool); 650—651 (Sen. Sumner); 653 (Sen. Osborn); 666 (Sen. Spencer).
See also S.Rep.No.1, 42d Cong., 1st Sess. (1871). Several months before the passage of the Civil Rights Act of 1871, a Senate Committee was formed to investigate conditions in the Southern States. One purpose of the investigation was to 'ascertain . . . whether persons and property are secure. . . .' Id., at II.
12
The jurisdictional amount was increased from $500 to $2,000 by the Act of Mar. 3, 1887, 24 Stat. 552; to $3,000 by the Act of Mar. 3, 1911, 36 Stat. 1091; and to $10,000 by the Act of July 25, 1958, 72 Stat. 415.
13
The plaintiffs in Hague brought suit in a federal district court to enjoin enforcement of city ordinances prohibiting the distribution of printed matter and the holding of public meetings without a permit. They alleged that the ordinances violated the union members' right of free speech and assembly. Both the District Court and the Court of Appeals found jurisdiction under §§ 1331 and 1343(3). This Court reversed as to jurisdiction under § 1331, since the plaintiffs had failed to establish the requisite amount in controversy. Although no opinion commanded a majority, jurisdiction under § 1343(3) was upheld. Mr. Justice Roberts, writing the lead opinion, expressed the view that the reference in § 1343 to 'any right, privilege or immunity secured by the Constitution' should be interpreted to cover only alleged violations of the Privileges and Immunities Clause of the Fourteenth Amendment. In Monroe v. Pape, 365 U.S. 167, 170—171, 81 S.Ct. 473, 475—476, 5 L.Ed.2d 492, we rejected such a narrow reading of similar language in § 1983.
14
'(A) study of the history of the bill as revealed by the Congressional Record yields no reason for its enactment at that time, and may even be said to raise a strong presumption that it was 'sneak' legislation. It was originally introduced in the House of Representatives in the form of a bill to amend the removal statute.' Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 642—643 (1942). Nonetheless, the passage of the Act, despite the lack of debate, has been regarded as the 'culmination of a movement . . . to strengthen the Federal Government against the states.' F. Frankfurter & J. Landis, The Business of the Supreme Court 65 n. 34 (1928). See also Maury, The Late Civil War, Its Effect on Jurisdiction, and on Civil Remedies Generally, 23 Am.L.Reg. 129 (1875).
15
As noted, Congress in 1875 also enlarged the scope of § 1983's predecessor to protect rights secured by federal law as well as rights secured by the Constitution. See n. 7, supra. Moreover, when Congress increased the amount-in-controversy requirement to $3,000 in 1911, 36 Stat. 1091, there was no indication that jurisdiction under what is now § 1343(3) was to be reduced. In fact, the legislation explicitly preserved the exemption of action brought under § 1343(3)'s predecessor from the amount-in-controversy requirement.
16
In United States v. Price, 383 U.S. 787, 797, 86 S.Ct. 1152, 1158, 16 L.Ed.2d 267, we interpreted the phrase 'rights, privileges, or immunities secured . . . by the Constitution or laws of the United States,' contained in 18 U.S.C. § 242, to embrace 'all of the Constitution and laws of the United States.' The similar language in §§ 1983 and 1343(3) was originally modeled on § 242's predecessor, § 2 of the Civil Rights Act of 1866. See n. 9, supra. In Price, supra, we said that '(w)e are not at liberty to seek ingenious analytical instruments' to avoid giving a congressional enactment the scope that its language and origins require. Id., at 801, 86 S.Ct., at 1160.
17
A series of particular statutes grant jurisdiction, without regard to the amount in controversy, in virtually all areas that otherwise would fall under the general federal-question statute. Such special statutes cover: admiralty, maritime, and price cases, 28 U.S.C. § 1333; bankruptcy matters and proceedings, 28 U.S.C. § 1334; review of orders of the Interstate Commerce Commission, 28 U.S.C. § 1336; cases arising under any Act of Congress regulating commerce, 28 U.S.C. § 1337; patent, copyright, and trademark cases, 28 U.S.C. § 1338; postal matters, 28 U.S.C. § 1339; internal revenue and custom duties actions, 28 U.S.C. § 1340; election disputes, 28 U.S.C. § 1344; cases in which the United States is a party, 28 U.S.C. §§ 1345, 1346, 1347, 1348, 1349, 1358, and 1361; certain tort actions by aliens, 28 U.S.C. § 1350; actions on bonds executed under Federal law, 28 U.S.C. § 1352; cases involving Indian allotments, 28 U.S.C. § 1353; and injuries under federal law, 28 U.S.C. § 1357.
18
'While this bill applies the $10,000 minimum limitation to cases involving Federal questions, its effect will be greater on diversity cases since many of the so-called Federal question cases will be exempt from its provisions.' S.Rep.No. 1830, 85th Cong., 2d Sess., 6 (1958). The Senate report was echoing the finding of the Judicial Conference's Committee on Jurisdiction and Venue that raising the jurisdictional amount would 'have significant effect mainly upon diversity cases.' Id., at 22.
Recent studies have demonstrated that the amount-in-controversy requirement still has 'relatively little impact on the volume of federal question litigation.' American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 172, 489—492 (1969). See also, Warren, Address to the American Law Institute, 1960, 25 F.R.D. 213; C. Wright, Law of Federal Courts 107 (2d ed. 1970). Information from the Administrative Office of the United States Courts shows that a majority of private federal-question cases involve less than $10,000. American Law Institute, supra, at 491.
Although litigation involving federal civil rights is increasing, such actions constituted only 4.6% of the suits instituted in district courts during the 1970 fiscal year. Administrative Office of the United States Courts, 1970 Report, II 31.
19
As noted above, we have never adopted the property rights-personal liberties test for § 1343(3) jurisdiction. In Eisen v. Eastman, 421 F.2d 560, the Court of Appeals for the Second Circuit said that application of the test would bar many welfare claims. Id., 421 F.2d at 566 n. 10. We have, however, continually found § 1343(3) jurisdiction in such cases. See, e.g., California Department of Human Resources Development v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666; Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647.
See also Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577; Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138; Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36. These cases, arguably, involved only deprivations of property, but we found § 1343(3) jurisdiction nonetheless.
20
Difficulty in application has been one source of the commentators' dissatisfaction with the 'personal liberties' limitation. See generally Note, 24 Vand.L.Rev. 990 (1971); Laufer, Hague v. C.I.O.: Mr. Justice Stone's Test of Federal Jurisdiction A Reappraisal, 19 Buff.L.Rev. 547 (1970); Note, 1970 Duke L.J. 819; Note, 43 N.Y.U.L.Rev. 1208 (1968); Note, 66 Harv.L.Rev. 1285 (1953).
The federal courts have produced inconsistent results regarding § 1343(3) jurisdiction of welfare claims. Compare Roberts v. Harder, 2 Cir., 440 F.2d 1229, with Alvarado v. Schmidt, D.C., 317 F.Supp. 1027. See also n. 19, supra. Yet, without always explaining why such interests are 'personal' rather than 'proprietary,' courts have consistently found civil rights jurisdiction over suits alleging discrimination in the issuance of business licenses. See, e.g., Barnes v. Merritt, 5 Cir., 376 F.2d 8; Glicker v. Michigan Liquor Control Comm'n, 6 Cir., 160 F.2d 96. Similarly, claims involving discrimination in employment, e.g., Birnbaum v. Trussell, 2 Cir., 371 F.2d 672, or termination of leases in public housing projects, e.g., Escalera v. New York City Housing Authority, 2 Cir., 425 F.2d 853, are often found cognizable under § 1343(3). How such 'personal' interests are to be distinguished from the 'property' interest in wages deposited in a savings account, as in this case, is not readily discernible. Compare this case with Santiago v. McElroy, D.C., 319 F.Supp. 284.
21
The District Court found that access to funds held in a savings account was indistinguishable from simple ownership of money. Thus garnishment of that account did not infringe personal rights. Mrs. Lynch, however, alleged that because of the garnishment she was unable to pay her rent on time and encountered difficulty maintaining her family on a minimally adequate diet. If these allegations are true, Mrs. Lynch's personal liberty could be profoundly affected by garnishment of her savings.
22
The statute provides:
'When the effects of the defendant in any civil action in which a judgment or decree for the payment of money may be rendered are concealed in the hands of his agent or trustee so that they cannot be found or attached, or when a debt is due from any person to such defendant, or when any debt, legacy or distributive share is or may become due to such defendant from the estate of any deceased person or insolvent debtor, the plaintiff may insert in his writ a direction to the officer to leave a true and attested copy thereof and of the accompanying complaint, at least twelve days in the case of the superior court or the court of common pleas, or six days in the case of the circuit court, before the session of the court to which it is returnable, with such agent, trustee or debtor of the defendant, or, as the case may be, with the executor, administrator or trustee of such estate, or at the usual place of abode of such garnishee; and from the time of leaving such copy all the effects of the defendant in the hands of any such garnishee, and any debt due from any such garnishee to the defendant, and any debt, legacy or distributive share, due or that may become due to him from such executor, administrator or trustee in insolvency, not exempt from execution, shall be secured in the hands of such garnishee to pay such judgment as the plaintiff may recover.'
23
Cf. Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1.
24
Garnishment occurs at the beginning of the suit upon the direction of the plaintiff's lawyer, acting as a Commissioner of the Superior Court. Conn.Gen.Stat.Rev. §§ 51—85, 52—89. 'The plaintiff or his attorney merely includes in his writ of summons a direction to the sheriff to make an attachment or serve garnishment process.' 1 E. Stephenson, Connecticut Civil Procedure 151 (2d ed. 1970).
25
The fact that the plaintiffs' attorneys are, formally, officers of the court does not convert the Connecticut garnishment process into a state court proceeding for § 2283 purposes, since the attorneys have complete discretion to issue a writ. See n. 24, supra; Sharkiewicz v. Smith, 142 Conn. 410, 114 A.2d 691; Sachs v. Nussenbaum, 92 Conn. 682, 104 A. 393.
26
The courts have no authority to inquire into the probable validity of the creditor's claim, or whether special circumstances warrant provisional security for an alleged creditor. Sachs v. Nussenbaum, 92 Conn., at 689, 104 A., at 395. Prior to the termination of the litigation, a garnishment may be reduced or dissolved only upon a showing that the garnishment is excessive i.e., in excess of the creditor's apparent claim—or upon substitution of a bond with surety. Conn.Gen.Stat.Rev. §§ 52—302 and 52—304. Black Watch Farms v. Dick, D.C., 323 F.Supp. 100, 101 102. This involvement has been termed 'meager.' Stephenson, supra, at 154.
27
See Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 1119, 14 L.Ed.2d 22; Cameron v. Johnson, 390 U.S., at 613, n. 3, 88 S.Ct., at 1337, 20 L.Ed.2d 182; Younger v. Harris, 401 U.S. 37, 54, 91 S.Ct. 746, 755, 27 L.Ed.2d 669. The circuits have divided on the question. Cf., e.g., Cooper v. Hutchinson, 3 Cir., 184 F.2d 119, and Baines v. City of Danville, 4 Cir., 337 F.2d 579.
1
Some confusion persists whether a federal court may, consistently with § 2283, enjoin the operation of a state court judgment procured by fraud. See C. Wright, Law of Federal Courts 179—181 (2d ed. 1970). That question is not presented here.
2
I thus would affirm whether or not 42 U.S.C. § 1983 is an exception to the bar of § 2283. That question is at issue in Mitchum v. Foster, No. 70—27, now sub judice.
| 12
|
405 U.S. 596
92 S.Ct. 1126
31 L.Ed.2d 515
UNITED STATES, Appellant,v.TOPCO ASSOCIATES, INC.
No. 70—82.
Argued Nov. 16, 1971.
Decided March 29, 1972.
Syllabus
The United States brought this injunction action charging a violation of § 1 of the Sherman Act by appellee, Topco, a cooperative association of about 25 small and medium-sized independent regional supermarket chains operating in 33 States. As its members' purchasing agent appellee procures more than 1,000 different items, most of which have brand names owned by Topco. The members' combined retail sales in 1967 were.$2.3 billion, exceeded by only three national grocery chains. A member's average market share in its area is about 6% and its competitive position is frequently as strong as that of any other chain. The members own equal amounts of Topco's common stock (the voting stock), choose its directors, and completely control the association's operations. Topco's bylaws establish an 'exclusive' category of territorial licenses, under which most members' licenses are issued and the two other membership categories have proved to be de facto exclusive. Since no member under this system may sell Topco-brand products outside the territory in which it is licensed, expansion into another member's territory is in practice permitted only with the other member's consent, and since a member in effect has a veto power over admission of a new member, members can control actual or potential competition in the territorial areas in which they are concerned. Topco members are prohibited from selling any products supplied by the association at wholesale, whether trademarked or not, without securing special permission, which is not granted without the consent of other interested licensees (usually retailers) and then the member must agree to restrict Topco product sales to a specific area and under certain conditions. The Government charged that Topco's scheme of dividing markets violates the Sherman Act because it operates to prohibit competition in Topco-brand products among retail grocery chains, and also challanged Topco's restrictions on wholesaling. Topco contended that it needs territorial divisions to maintain its private-label program and to enable it to compete with the larger chains; that the association could not exist if the territorial divisions were not exclusive; and that the restrictions on competition in Topco-brand sales enable members to meet larger chain competition. The District Court, agreeing with Topco, upheld the restrictive practices as reasonable and pro-competitive. Held: The Topco scheme of allocating territories to minimize competition at the retail level is a horizontal restraint constituting a per se violation of § 1 of the Sherman Act, and the District Court erred in applying a rule of reason to the restrictive practices here involved. United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238. Topco's limitations upon reselling at wholesale or for the same reason per se invalid under § 1. Pp. 606 612.
319 F.Supp. 1031, reversed and remanded.
Howard E. Shapiro, Washington, D.C., for appellant.
Victor E. Grimm, Chicago, Ill., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The United States brought this action for injunctive relief against alleged violation by Topco Associates, Inc. (Topco), of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. Jurisdiction was grounded in § 4 of the Act, 15 U.S.C. § 4. Following a trial on the merits, the United States District Court for the Northern District of Illinois entered judgment for Topco, 319 F.Supp. 1031, and the United States appealed directly to this Court pursuant to § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. We noted probable jurisdiction, 402 U.S. 905, 91 S.Ct. 1374, 28 L.Ed.2d 644 (1971), and we now reverse the judgment of the District Court.
2
* Topco is a cooperative association of approximately 25 small and medium-sized regional supermarket chains that operate stores in some 33 States.1 Each of the member chains operates independently; there is no pooling of earnings, profits, capital, management, or advertising resources. No grocery business is conducted under the Topco name. Its basic function is to serve as a purchasing agent for its members.2 In this capacity, it procures and distributes to the members more than 1,000 different food and related nonfood items, most of which are distributed under brand names owned by Topco. The association does not itself own any manufacturing, processing, or warehousing facilities, and the items that it procures for members are usually shipped directly from the packer or manufacturer to the members. Payment is made either to Topco or directly to the manufacturer at a cost that is virtually the same for the members as for Topco itself.
3
All of the stock in Topco is owned by the members, with the common stock, the only stock having voting rights, being equally distributed. The board of directors, which controls the operation of the association, in drawn from the members and is normally composed of high-ranking executive officers of member chains. It is the board that elects the association's officers and appoints committee members, and it is from the board that the principal executive officers of Topco must be drawn. Restrictions on the alienation of stock and the procedure for selecting all important officials of the association from within the ranks of its members give the members complete and unfettered control over the operations of the association.
4
Topco was founded in the 1940's by a group of small, local grocery chains, independently owned and operated, that desired to cooperate to obtain high quality merchandise under private labels in order to compete more effectively with larger national and regional chains.3 With a line of canned, dairy, and other products, the association began. It added frozen foods in 1950, fresh produce in 1958, more general merchandise equipment and supplies in 1960, and a branded bacon and carcass beef selection program in 1966. By 1964, Topco's members had combined retail sales of more than $2 billion; by 1967, their sales totaled more than.$2.3 billion, a figure exceeded by only three national grocery chains.4
5
Members of the association vary in the degree of market share that they possess in their respective areas. The range is from 1.5% to 16%, with the average being approximately 6%. While it is difficult to compare these figures with the market shares of larger regional and national chains because of the absence in the record of accurate statistics for these chains, there is much evidence in the record that Topco members are frequently in as strong a competitive position in their respective areas as any other chain. The strength of this competitive position is due, in some measure, to the success of Topco-brand products. Although only 10% of the total goods sold by Topco members bear the association's brand names, the profit on these goods is substantial and their very existence has improved the competitive potential of Topco members with respect to other large and powerful chains.
6
It is apparent that from meager beginnings approximately a quarter of a century ago, Topco has developed into a purchasing association wholly owned and operated by member chains, which possess much economic muscle, individually as well as cooperatively.
II
7
Section 1 of the Sherman Act provides, in relevant part:
8
'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . ..'
9
The United States charged that, beginning at least as early as 1960 and continuing up to the time that the complaint was filed, Topco had combined and conspired with its members to violate § 15 in two respects. First, the Government alleged that there existed:
10
'a continuing agreement, understanding and concert of action among the co-conspirator member firms acting through Topco, the substantial terms of which have been and are that each co-conspiritor or member firm will sell Topco-controlled brands only within the marketing territory allocated to it, and will refrain from selling Topco-controlled brands outside such marketing territory.'
11
The division of marketing territories to which the complaint refers consists of a number of practices by the association.
12
Article IX, § 2, of the Topco bylaws establishes three categories of territorial licenses that members may secure from the association:
13
'(a) Exclusive—An exclusive territory is one in which the member is licensed to sell all products bearing specified trademarks of the Association, to the exclusion of all other persons.
14
'(b) Non-exclusive—A non-exclusive territory is one in which a member is licensed to sell all products bearing specified trademarks of the Association, but not to the exclusion of others who may also be licensed to sell products bearing the same trademarks of the Association in the same territory.
15
'(c) Coextensive—A coextensive territory is one in which two (2) or more members are licensed to sell all products bearing specified trademarks of the Association to the exclusion of all other persons. . . .'
16
When applying for membership, a chain must designate the type of license that it desires. Membership must first be approved by the board of directors, and thereafter by an affirmative vote of 75% of the association's members. If, however, the member whose operations are closest to those of the applicant, or any member whose operations are located within 100 miles of the applicant, votes against approval, an affirmative vote of 85% of the members is required for approval. Bylaws, Art. I, § 5. Because, as indicated by the record, members cooperate in accommodating each other's wishes, the procedure for approval provides, in essence, that members have a veto of sorts over actual or potential competition in the territorial areas in which they are concerned.
17
Following approval, each new member signs an agreement with Topco designating the territory in which that member may sell Topco-brand products. No member may sell these products outside the territory in which it is licensed. Most licenses are exclusive, and even those denominated 'coextensive' or 'non-exclusive' prove to be de facto exclusive. Exclusive territorial areas are often allocated to members who do no actual business in those areas on the theory that they may wish to expand at some indefinite future time and that expansion would likely be in the direction of the allocated territory. When combined with each member's veto power over new members, provisions for exclusivity work effectively to insulate members from competition in Topco-brand goods. Should a member violate its license agreement and sell in areas other than those in which it is licensed, its membership can be terminated under Art. IV, §§ 2 (a) and 2(b) of the bylaws. Once a territory is classified as exclusive, either formally or de facto, it is extremely unlikely that the classification will ever be changed. See Bylaws, Art. IX.
18
The Government maintains that this scheme of dividing markets violates the Sherman Act because it operates to prohibit competition in Topco-brand products among grocery chains engaged in retail operations. The Government also makes a subsidiary challenge to Topco's practices regarding licensing members to sell at wholesale. Under the bylaws, members are not permitted to sell any products supplied by the association at wholesale, whether trademarked or not, without first applying for and receiving special permission from the association to do so.6 Before permission is granted, other licensees (usually retailers), whose interests may potentially be affected by wholesale operations, are consulted as to their wishes in the matter. If permission is obtained, the member must agree to restrict the sale of Topco products to a specific geographic area and to sell under any conditions imposed by the association. Permission to wholesale has often been sought by members, only to be denied by the association. The Government contends that this amounts not only to a territorial restriction violative of the Sherman Act, but also to a restriction on customers that in itself is violative of the Act.7
19
From the inception of this lawsuit, Topco accepted as true most of the Government's allegations regarding territorial divisions and restrictions on wholesaling, although it differed greatly with the Government on the conclusions, both factual and legal, to be drawn from these facts.
20
Topco's answer to the complaint is illustrative of its posture in the District Court and before this Court:
21
'Private label merchandising is a way of economic life in the food retailing industry, and exclusivity is the essence of a private label program; without exclusivity, a private label would not be private. Each national and large regional chain has its own exclusive private label products in addition to the nationally advertised brands which all chains sell. Each such chain relies upon the exclusivity of its own private label line to differentiate its private label products from those of its competitors and to attract and retain the repeat business and loyalty of consumers. Smaller retail grocery stores and chains are unable to compete effectively with the national and large regional chains without also offering their own exclusive private label products.
22
'The only feasible method by which Topco can procure private label products and assure the exclusivity thereof is through trademark licenses specifying the territory in which each member may sell such trademarked products.' Answer, App. 11.
23
Topco essentially maintains that it needs territorial divisions to compete with larger chains; that the association could not exist if the territorial divisions were anything but exclusive; and that by restricting competition in the sale of Topcobrand goods, the association actually increases competition by enabling its members to compete successfully with larger regional and national chains.
24
The District Court, considering all these things relevant to its decision, agreed with Topco. It recognized that the panoply of restraints that Topco imposed on its members worked to prevent competition in Topco-brand products,8 but concluded that
25
'(w)hatever anti-competitive effect these practices may have on competition in the sale of Topco private label brands is far outweighed by the increased ability of Topco members to compete both with the national chains and other supermarkets operating in their respective territories.' 319 F.Supp. 1031, 1043 (1970).
26
The court held that Topco's practices were procompetitive and, therefore, consistent with the purposes of the antitrust laws. But we conclude that the District Court used an improper analysis in reaching its result.
III
27
On its face, § 1 of the Sherman Act appears to bar any combination of entrepreneurs so long as it is 'in restraint of trade.' Theoretically, all manufacturers, distributors, merchants, sellers, and buyers could be considered as potential competitors of each other. Were § 1 to be read in the narrowest possible way, any commercial contract could be deemed to violate it. Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683 (1918) (Brandeis, J.). The history underlying the formulation of the antitrust laws led this Court to conclude, however, that Congress did not intend to prohibit all contracts, nor even all contracts that might in some insignificant degree or attenuated sense restrain trade or competition. In lieu of the narrowest possible reading of § 1, the Court adopted a 'rule of reason' analysis for determining whether most business combinations or contracts violate the prohibitions of the Sherman Act. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). An analysis of the reasonableness of particular restraints includes consideration of the facts peculiar to the business in which the restraint is applied, the nature of the restraint and its effects, and the history of the restraint and the reasons for its adoption. Chicago Board of Trade v. United States, supra, 246 U.S., at 238, 38 S.Ct., at 243.
28
While the Court has utilized the 'rule of reason' in evaluating the legality of most restraints alleged to be violative of the Sherman Act, it has also developed the doctrine that certain business relationships are per se violations of the Act without regard to a consideration of their reasonableness. In Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), Mr. Justice Black explained the appropriateness of, and the need for, per se rules:
29
'(T)here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable—an inquiry so often wholly fruitless when undertaken.'
30
It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act. See generally Van Cise, The Future of Per Se in Antitrust Law, 50 Va.L.Rev. 1165 (1964). One of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a 'horizontal' restraint, in contradistinction to combinations of persons at different levels of the market structure, e.g., manufacturers and distributors, which are termed 'vertical' restraints. This Court has reiterated time and time again that '(h)orizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling of competition.' White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738 (1963). Such limitations are per se violations of the Sherman Act. See Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899), aff'g 85 F. 271 (C.A.6 1898) (Taft, J.); United States v. National Lead Co., 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077 (1947); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); Northern Pacific R. Co. v. United States, supra; Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969); United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967); United States v. Arnold, Schwinn & Co., 388 U.S. 365, 390, 87 S.Ct. 1856, 1871, 18 L.Ed.2d 1249 (1967) (Stewart, J., concurring in part and dissenting in part); Serta Associates, Inc. v. United States, 393 U.S. 534, 89 S.Ct. 870, 21 L.Ed.2d 753 (1969), aff'g 296 F.Supp. 1121, 1128 (N.D.Del.1968).
31
We think that it is clear that the restraint in this case is a horizontal one, and, therefore, a per se violation of § 1. The District Court failed to make any determination as to whether there were per se horizontal territorial restraints in this case and simply applied a rule of reason in reaching its conclusions that the restraints were not illegal. See, e.g., Comment, Horizontal Territorial Restraints and the Per Se Rule, 28 Wash. & Lee L.Rev. 457, 469 (1971). In so doing, the District Court erred.
32
United States v. Sealy, Inc., supra, is, in fact, on all fours with this case. Sealy licensed manufacturers of mattresses and bedding to make and sell products using the Sealy trademark. Like Topco, Sealy was a corporation owned almost entirely by its licensees, who elected the Board of Directors and controlled the business. Just as in this case, Sealy agreed with the licensees not to license other manufacturers or sellers to sell Sealy-brand products in a designated territory in exchange for the promise of the licensee who sold in that territory not to expand its sales beyond the area demarcated by Sealy. The Court held that this was a horizontal territorial restraint, which was per se violative of the Sherman Act.9
33
Whether or not we would decide this case the same way under the rule of reason used by the District Court is irrelevant to the issue before us. The fact is that courts are of limited utility in examining difficult economic problems.10 Our inability to weigh, in any meaningful sense, destruction of competition in one sector of the economy against promotion of competition in another sector is one important reason we have formulated per se rules.
34
In applying these rigid rules, the Court has consistently rejected the notion that naked restraints of trade are to be tolerated because they are well intended or because they are allegedly developed to increase competition. E.g., United States v. General Motors Corp., 384 U.S. 127, 146—147, 86 S.Ct. 1321, 1331, 16 L.Ed.2d 415 (1966); United States v. Masonite Corp., 316 U.S. 265, 62 S.Ct. 1070, 86 L.Ed. 1461 (1942); Fashion Originators' Guild v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941).
35
Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete—to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster. Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy. Cf. United States v. Philadelphia National Bank, 374 U.S. 321, 371, 83 S.Ct. 1715, 1745, 10 L.Ed.2d 915 (1963).
36
The District Court determined that by limiting the freedom of its individual members to compete with each other, Topco was doing a greater good by fostering competition between members and other large supermarket chains. But, the fallacy in this is that Topco has no authority under the Sherman Act to determine the respective values of competition in various sectors of the economy. On the contrary, the Sherman Act gives to each Topco members and to each prospective member the right to ascertain for itself whether or not competition with other supermarket chains is more desirable than competition in the sale of Topco-brand products. Without territorial restrictions, Topco members may indeed '(cut) each other's throats.' Cf. White Motor Co., supra, 372 U.S., at 278, 83 S.Ct., at 710 (Clark, J. dissenting). But we have never found this possibility sufficient to warrant condoning horizontal restraints of trade.
37
The Court has previously noted with respect to price fixing, another per se violation of the Sherman Act, that:
38
'The reasonable price fixed today may through economic and business changes become the unreasonable price of to-morrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed.' United States v. Trenton Potteries Co., 273 U.S. 392, 397, 47 S.Ct. 377, 379, 71 L.Ed. 700 (1927).
39
A similar observation can be made with regard to territorial limitations. White Motor Co., supra, 372 U.S., at 265 n. 2, 83 S.Ct., at 703 (Brennan, J., concurring).
40
There have been tremendous departures from the notion of a free-enterprise system as it was originally conceived in this country. These departures have been the product of congressional action and the will of the people. If a decision is to be made to sacrifice competition in one portion of the economy for greater competition in another portion this too is a decision that must be made by Congress and not by private forces or by the courts. Private forces are too keenly aware of their own interests in making such decisions and courts are ill-equipped and ill-situated for such decisionmaking. To analyze, interpret, and evaluate the myriad of competing interests and the endless data that would surely be brought to bear on such decisions, and to make the delicate judgment on the relative values to society of competitive areas of the economy, the judgment of the elected representatives of the people is required.
41
Just as the territorial restrictions on retailing Topco-brand products must fall, so must the territorial restrictions on wholesaling. The considerations are the same, and the Sherman Act requires identical results.
42
We also strike down Topco's other restrictions on the right of its members to wholesale goods. These restrictions amount to regulation of the customers to whom members of Topco may sell Topco-brand goods. Like territorial restrictions, limitations on customers are intended to limit intra-brand competition and to promote inter-brand competition. For the reasons previously discussed, the arena in which Topco members compete must be left to their unfettered choice absent a contrary congressional determination. United States v. General Motors Corp., supra; cf. United States v. Arnold, Schwinn & Co., supra; United States v. Masonite Corp., supra; United States v. Trenton Potteries, supra. See also, White Motor Co., supra, 372 U.S., at 281—283, 83 S.Ct., at 711—712 (Clark, J., dissenting).
43
We reverse the judgment of the District Court and remand the case for entry of an appropriate decree.
44
It is so ordered.
45
Reversed and remanded.
46
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
47
Mr. Justice BLACKMUN, concurring in the result.
48
The conclusion the Court reaches has its anomalous aspects, for surely, as the District Court's findings make clear, today's decision in the Government's favor will tend to stultify Topco members' competition with the great and larger chains. The bigs, therefore, should find it easier to get bigger and, as a consequence, reality seems at odds with the public interest. The per se rule, however, now appears to be so firmly established by the Court that, at this late date, I could not oppose it. Relief, if any is to be forthcoming, apparently must be by way of legislation.
49
Mr. Chief Justice BURGER, dissenting.
50
This case does not involve restraints on interbrand competition or an allocation of markets by an association with monopoly or near-monopoly control of the sources of supply of one or more varieties of staple goods. Rather, we have here an agreement among several small grocery chains to join in a cooperative endeavor that, in my view, has an unquestionably lawful principal purpose; in pursuit of that purpose they have mutually agreed to certain minimal ancillary restraints that are fully reasonable in view of the principal purpose and that have never before today been held by this Court to be per se violations of the Sherman Act.
51
In joining in this cooperative endeavor, these small chains did not agree to the restraints here at issue in order to make it possible for them to exploit an already established line of products through non-competitive pricing. There was no such thing as a Topco line of products until this cooperative was formed. The restraints to which the cooperative's members have agreed deal only with the marketing of the products in the Topco line, and the only function of those restraints is to permit each member chain to esand through its own local advertising and and trough its own local advertising and marketing efforts, a local consumer awareness of the trademarked family of products as that member's 'private label' line. The goal sought was the enhancement of the individual members' abilities to compete, albeit to a modest degree, with the large national chains which had been successfully marketing private-label lines for several years. The sole reason for a cooperative endeavor was to make economically feasible such things as quality control, large quantity purchases at bulk prices, the development of attractively printed labels, and the ability to offer a number of different lines of trademarked products. All these things, of course, are feasible for the large national chains operating individually, but they are beyond the reach of the small operators proceeding alone.1
52
After a careful review of the economic considerations bearing upon this case, the District Court determined that 'the relief which the government here seeks would not increase competition in Topco private label brands'; on the contrary, such relief 'would substantially diminish competition in the supermarket field.' 319 F.Supp. 1031, 1043. This Court has not today determined, on the basis of an examination of the underlying economic realities, that the District Court's conclusions are incorrect. Rather, the majority holds that the District Court had no business examining Topco's practices under the 'rule of reason'; it should not have sought to determine whether Topco's practices did in fact restrain trade or commerce within the meaning of § 1 of the Sherman Act; it should have found no more than that those practices involve a 'horizontal division of markets' and are, by that very fact, per se violations of the Act.
53
I do not believe that our prior decisions justify the result reached by the majority. Nor do I believe that a new per se rule should be established in disposing of this case, for the judicial convenience and ready predictability that are made possible by per se rules are not such overriding considerations in antitrust law as to justify their promulgation without careful prior consideration of the relevant economic realities in the light of the basic policy and goals of the Sherman Act.
54
* I deal first with the cases upon which the majority relies in stating that '(t)his Court has reiterated time and time again that '(h)orizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling of competition.' White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738 (1963).' White Motor, of course, laid down no per se rule; nor were any horizontal territorial limitations involved in that case. Indeed, it was in White Motor that this Court reversed the District Court's holding that vertically imposed territorial limitations were per se violations, explaining that '(w)e need to know more than we do about the actual impact of these arrangements on competition to decide whether they . . . should be classified as per se violations of the Sherman Act.' 372 U.S., at 263, 83 S.Ct., at 702. The statement from the White Motor opinion quoted by the majority today was made without citation of authority and was apparently intended primarily to make clear that the facts then before the Court were not to be confused with horizontally imposed territorial limitations. To treat dictum in that case as controlling here would, of course, be unjustified.
55
Having quoted this dictum from White Motor, the Court then cites eight cases for the proposition that horizontal territorial limitations are per se violations of the Sherman Act. One of these cases, Northern Pacific R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958), dealt exclusively with a prohibited tying arrangement and is improperly cited as a case concerned with a division of markets.2 Of the remaining seven cases, four involved an aggregation of trade restraints that included price-fixing agreements. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967);3 Serta Associates, Inc. v. United States, 393 U.S. 534, 89 S.Ct. 870, 21 L.Ed.2d 753 (1969), aff'g 296 F.Supp. 1121 (N.D.Ill.1968). Price fixing is, of course, not a factor in the instant case.
56
Another of the cases relied upon by the Court, United States v. National Lead Co., 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077 (1947), involved a world-wide arrangement4 for dividing territories, pooling patents, and exchanging technological information. The arrangement was found illegal by the District Court without any reliance on a per se rule;5 this Court, in affirming, was concerned almost exclusively with the remedies ordered by the District Court and made no attempt to declare a per se rule to govern the merits of the case.
57
In still another case on which the majority relies, United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), the District Court had, indeed, held that the agreements between the manufacturer and certain of its distributors, providing the latter with exclusive territories, were horizontal in nature and that they were, as such, per se violations of the Act. 237 F.Supp. 323, 342—343. Since no appeal was taken from this part of the District Court's order,6 that issue was not before this Court in its review of the case. Indeed, in dealing with the issues that were before it, this Court followed an approach markedly different from that of the District Court. First, in reviewing the case here, the Court made it clear that it was proceeding under the 'rule of reason,' and not by per se rule;7 second, the Court saw the issues presented as involving vertical, not horizontal, restraints.8 It can hardly be contended therefore that this Court's decision in Schwinn is controlling precedent for the application in the instant case of a per se rule that prohibits horizontal restraints without regard to their market effects.
58
Finally, there remains the eighth of the cases relied upon by the Court—actually, the first in its list of 'authorities' for the purported per se rule. Circuit Judge (later Chief Justice) Taft's opinion for the court in United States v. Addyston Pipe & Steel Co., 85 F. 271 (CA6 1898), aff'd, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899) has generally been recognized—and properly so—as as a fully authoritative exposition of antitrust law. But neither he, nor this Court in affirming, made any pretense of establishing a per se rule against all agreements involving horizontal territorial limitations. The defendants in that case were manufacturers and vendors of cast-iron pipe who had 'entered into a combination to raise the prices for pipe' throughout a number of States 'constituting considerably more than three-quarters of the territory of the United States, and significantly called . . . 'pay territory." 85 F., at 291. The associated defendants in combination controlled two-thirds of the manufactured output of such pipe in this 'pay territory'; certain cities ('reserved' cities) within the territory were assigned to particular individual defendants who sold pipe in those cities at prices fixed by the association, the other defendants submitting ficititious bids and the selling defendants paying a fixed 'bonus' to the association for each sale. Outside the 'reserved' cities, all sales by the defendants to customers in the 'pay territory' were again, at prices determined by the association and were allocated to the association member who offered, in a secret auction, to pay the largest 'bonus' to the association itself. The effect was, of course, that the buying public lost all benefit of competitive pricing. Although the case has frequently—and quite properly—been cited as a horizontal allocation-of-markets case, the sole purpose of the secret customer allocations was to enable the members of the association to fix prices charged to the public at non-competitive levels. Judge Taft rejected the defendants' argument that the prices actually charged were 'reasonable'; he held that it was sufficient for a finding of a Sherman Act violation that the combination and agreement of the defendants gave them such monopoly power that they, rather than market forces, fixed the prices of all cast-iron pipe in three-fourths of the Nation's territory. The case unquestionably laid important groundwork for the subsequent establishment of the per se rule against price fixing. It did not, however, establish that a horizontal division of markets is, without more, a per se violation of the Sherman Act.
II
59
The foregoing analysis of the cases relied upon by the majority indicates to me that the Court is not merely following prior holdings; on the contrary, it is establishing a new per se rule. In the face of the District Court's well supported findings that the effects of such a rule in this case will be adverse to the public welfare,9 the Court lays down that rule without regard to the impact that the condemned practices may have on competition. In doing so, the Court virtually invites Congress to undertake to determine that impact. Ante, at 611—612. I question whether the Court is fulfilling the role assigned to it under the statute when it declines to make this determination; in any event, if the Court is unwilling on this record to assess the economic impact, it surely should not proceed to make a new rule to govern the economic activity. White Motor Co. v. United States, 372 U.S., at 263, 83 S.Ct., at 702.
60
When one of his versions of the proposed Act was before the Senate for consideration in 1890, Senator Sherman, in a lengthy, and obviously carefully prepared, address to that body, said that the bill sought
61
'only to prevent and control combinations made with a view to prevent competition, or for the restraint of trade, or to increase the profits of the producer at the cost of the consumer. It is the unlawful combination, tested by the rules of common law and human experience, that is aimed at by this bill, and not the lawful and useful combination.
62
'I admit that it is difficult to define in legal language the precise line between lawful and unlawful combinations. This must be left for the courts to determine in each particular case. All that we, as lawmakers, can do is to declare general principles, and we can be assured that the courts will apply them so as to carry out the meaning of the law . . ..' 21 Cong.Rec. 2457, 2460.
63
In 'carry(ing) out the meaning of the law' by making its 'determin(ations) in each particular case,' this Court early concluded that it was Congress' intent that a 'rule of reason' be applied in making such case-by-case determinations. Standard Oil Co. v. United States, 221 U.S. 1, 60, 31 S.Ct. 502, 515, 55 L.Ed. 619 (1911). And that rule of reason was to be applied in light of the Act's policy to protect the 'public interests.' United States v. American Tobacco Co., 221 U.S. 106, 179, 31 S.Ct. 632, 648, 55 L.Ed. 663 (1911). The per se rules that have been developed are similarly directed to the protection of the public welfare; they are complementary to, and in no way inconsistent with, the rule of reason. The principal advantages that flow from their use are, first, that enforcement and predictability are enhanced and, second, that unncessary judicial investigation is avoided in those cases where practices falling within the scope of such rules are found. As the Court explained in Northern Pacific Co. v. United States, supra, 356 U.S., at 5, 78 S.Ct., at 518,
64
'(T)here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.' In formulating a new per se rule today the Court does not tell us what 'pernicious effect on competition' the practices here outlawed are perceived to have; nor does it attempt to show that those practices 'lack . . . any redeeming virtue.' Rather, it emphasizes only the importance of predictability, asserting that 'courts are of limited utility in examining difficult economic problems' and have not yet been left free by Congress to 'ramble through the wilds of economic theory in order to maintain a flexible approach.'10
65
With all respect, I believe that there are two basic fallacies in the Court's approach here. First, while I would not characterize our role under the Sherman Act as one of 'rambl(ing) through the wilds,' it is indeed one that requires our 'examin(ation of) difficult economic problems.' We can undoubtedly ease our take, but we should not abdicate that role by formulation of per se rules with no justification other than the enhancement of predictability and the reduction of judicial investigation. Second, from the general proposition that per se rules play a necessary role in antitrust law, it does not follow that the particular per se rule promulgated today is an appropriate one. Although it might well be desirable in a proper case for this Court to formulate a per se rule dealing with horizontal territorial limitations, it would not necessarily be appropriate for such a rule to amount to a blanket prohibition against all such limitations. More specifically, it is far from clear to me why such a rule should cover those division-of-market agreements that involve no price fixing and which are concerned only with trademarked products that are not in a monopoly or near-monopoly position with respect to competing brands. The instant case presents such an agreement; I would not decide it upon the basis of a per se rule.11
66
The District Court specifically found that the horizontal restraints involved here tend positively to promote competition in the supremarket field and to produce lower costs for the consumer. The Court seems implicitly to accept this determination, but says that the Sherman Act does not give Topco the authority to determine for itself 'whether or not competition with other suprmarket chains is more desirable than competition in the sale of Topco-brand products.' Ante, at 611. But the majority overlooks a further specific determination of the District Court, namely, that the invalidation of the restraints here at issue 'would not increase competition in Topco private label brands.' 319 F.Supp., at 1043. Indeed, the District Court seemed to believe that it would, on the contrary, lead to the likely demise of those brands in time. And the evidence before the District Court would appear to justify that conclusion.
67
There is no national demand for Topco brands, nor has there ever been any national advertising of those brands. It would be impracticable for Topco, with its limited financial resources, to convert itself into a national brand distributor in competition with distributors of existing national brands. Furthermore, without the right to grant exclusive licenses, it could not attract and hold new members as replacements for those of its present members who, following the pattern of the past, eventually grow sufficiently in size to be able to leave the cooperative organization and develop their own individual private-label brands. Moreover, Topco's present members, once today's decision has had its full impact over the course of time, will have no more reason to promote Topco products through local advertising and merchandising efforts than they will have such reason to promote any other generally available brands.
68
The issues presented by the antitrust cases reaching this Court are rarely simple to resolve under the rule of reason; they do indeed frequently require us to make difficult economic determinations. We should not for that reason alone, however, be overly zealous in formulating new per se rules, for an excess of zeal in that regard is both contrary to the policy of the Sherman Act and detrimental to the welfare of consumers generally. Indeed, the economic effect of the new rule laid down by the Court today seems clear: unless Congress intervenes, grocery staples marketed under privatelabel brands with their lower consumer prices will soon be available only to those who patronize the large national chains.
1
Topco, which is referred to at times in this opinion as the 'association,' is actually composed of 23 chains of supermarket retailers and two retailer- owned cooperative wholesalers.
2
In addition to purchasing various items for its members, Topco performs other related functions: e.g., it insures that there is adequate quality control on the products that it purchases; it assists members in developing specifications on certain types of products (e.g., equipment and supplies); and it also aids the members in purchasing goods through other sources.
3
The founding members of Topco were having difficulty competing with larger chains. This difficulty was attributable in some degree to the fact that the larger chains were capable of developing their own private-label programs.
Private-label products differ from other brand-name products in that they are sold at a limited number of easily ascertainable stores. A&P, for example, was a pioneer in developing a series of products that were sold under an A&P label and that were only available in A&P stores. It is obvious that by using private-label products, a chain can achieve significant cost economies in purchasing, transportation, warehousing, promotion, and advertising. These economies may afford the chain opportunities for offering private-label products at lower prices than other band-name products. This, in turn, provides many advantages of which some of the more important are: a store can offer national-brand products at the same price as other stores, while simultaneously offering a desirable, lower priced alternative; or, if the profit margin is sufficiently high on private-brand goods, national-brand products may be sold at reduced price. Other advantages include: enabling a chain to bargain more favorably with national-brand manufacturers by creating a broader supply base of manufacturers, thereby decreasing dependence on a few, large national-brand manufacturers; enabling a chain to create a 'price-mix' whereby prices on special items can be lowered to attract customers while profits are maintained on other items; and creation of general goodwill by offering lower priced, higher quality goods.
4
The three largest chains are A&P, Safeway, and Kroger.
5
Topco was named in the complaint as as sole defendant, but the complaint clearly charged that its members, while not defendants, were coconspirators in Topco's violation of the Sherman Act.
6
Article IX, § 8, of the bylaws provides, in relevant part:
'Unless a member's membership and licensing agreement provides that such member may sell at wholesale, a member may not wholesale products supplied by the Association. If a membership and licensing agreement permits a member to sell at wholesale, such member shall control the resale of products bearing trademarks of the Association so that such sales are confined to the territories granted to the member, and the method of selling shall conform in all respects with the Association's policies.'
Shortly before trial, Topco amended this bylaw with an addition that permitted any member to wholesale in the exclusive territories in which it retailed. But the restriction remained the same in all other cases.
It is apparent that this bylaw on its face applies whether or not the products sold are trademarked by Topco. Despite the fact that Topco's general manager testified at trial that, in practice, the restriction is confined to Topco-branded products, the District Court found that the bylaw is applied as written. We find nothing clearly erroneous in this finding. Assuming, arguendo, however, that the restriction is confined to products trademarked by Topco, the result in this case would not change.
7
When the Government first raised this point in the District Court, Topco objected on the ground that it was at variance with the charge in the complaint. The District Court apparently agreed with Topco that the complaint did not cover customer limitations, but permitted the Government to pursue this line on the basis that if the limitations were proved, the complaint could later be amended. App. 141. Topco acquiesced in this procedure, and both sides dealt with customer limitations in examining witnesses. The District Court made specific findings and conclusions with respect to the totality of the restraints on wholesaling. In light of these facts, the additional fact that the complaint was never formally amended should not bar our consideration of the issue.
8
The District Court recognized that '(t)he government has introduced evidence indicating that some applications by Topco members to expand into territories assigned to other members have been denied,' 319 F.Supp. 1031, 1042, but concluded that these decisions by Topco did not have an appreciable influence on the decision of members as to whether or not to expand. Topco expands on this conclusion in its brief by asserting that 'the evidence is uncontradicted that a member has never failed to build a new store because it was unable to obtain a license.' Brief for Appellee 18 n. 18. The problem with the conclusion of the District Court and the assertion by Topco is that they are wholly inconsistent with the notion that territorial divisions are crucial to the existence of Topco, as urged by the association and found by the District Court. From the filing of its answer to the argument before this Court, Topco has maintained that without a guarantee of an exclusive territory, prospective licensees would not join Topco and present licensees would leave the association. It is difficult to understand how Topco can make this argument and simultaneously urge that territorial restrictions are an unimportant factor in the decision of a member on whether to expand its business.
9
It is true that in Sealy the Court dealt with price fixing as well as territorial restrictions. To the extent that Sealy casts doubt on whether horizontal territorial limitations, unaccompanied by price fixing, are per se violations of the Sherman Act, we remove that doubt today.
10
There has been much recent commentary on the wisdom of per se rules. See, e.g., Comment, Horizontal Territorial Restraints and the Per Se Rule, 28 Wash. & Lee L.Rev. 457 (1971); Averill, Sealy, Schwinn and Sherman One: An Analysis and Prognosis, 15 N.Y.L.F. 39 (1969); Note, Selected Antitrust Problems of the Franchisor: Exclusive Arrangements, Territorial Restrictions, and Franchise Termination, 22 U.Fla.L.Rev. 260, 286 (1969); Sadd, Antitrust Symposium: Territorial and Customer Restrictions After Sealy and Schwinn, 38 U.Cin.L.Rev. 249, 252—253 (1969); Bork, The Rule of Reason and the Per Se Concept, pt. 1, Price Fixing and Market Division, 74 Yale L.J. 775 (1965).
Without the per se rules, businessmen would be left with little to aid them in predicting in any particular case what courts will find to be legal and illegal under the Sherman Act. Should Congress ultimately determine that predictability is unimportant in this area of the law, it can, of course, make per se rules inapplicable in some or all cases, and leave courts free to ramble through the wilds of economic theory in order to maintain a flexible approach.
1
The District Court's findings of fact include the following:
'33. A competitively effective private label program to be independently undertaken by a single retailer or chain would require an annual sales volume of $250 million or more and in order to achieve optimum efficiency, the volume required would probably have to be twice that amount.' 319 F.Supp. 1031, 1036.
2
There is dictum in the case to the effect that United States v. Addyston Pipe & Steel Co., 85 F. 271 (CA6 1898), aff'd, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899), established a 'division of markets' as unlawful in and of itself. 356 U.S., at 5, 78 S.Ct., at 518. As I will show, however, Addyston Pipe established no such thing; it was primarily a price-fixing case.
3
I cannot agree with the Court's description of Sealy as being 'on all fours with this case.' Ante, at 609. Sealy does support the proposition that the restraints on the Topco licensees are horizontally imposed. Beyond that, however, Sealy is hardly controlling here. The territorial restrictions in Sealy were found by this Court to be so intimately a part of an unlawful price-fixing and policing scheme that the two arrangements fell together: '(T) his unlawful resale price-fixing activity refutes appellee's claim that the territorial restraints were mere incidents of a lawful program of trademark licensing. Cf. Timken Roller Bearing Co. v. United States (341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951)). The territorial restraints were a part of the unlawful price-fixing and policing.' 388 U.S., at 356, 87 S.Ct., at 1852.
4
In summarizing its findings, the District Court made the following statements:
'When the story is seen as a whole, there is no blinking the fact that there is no free commerce in titanium. Every pound of it is trammelled by privately imposed regulation. The channels of this commerce have not been formed by the winds and currents of competition. They are, in large measure, artificial canals privately constructed. . . .
'. . . No titanium pigments enter the United States except with the consent of NL (defendant National Lead). No foreign titanium pigments move in interstate commerce except with like approval. No titanium pigment produced by NL may leave the ports of the United States for points outside the Western Hemisphere.' 63 F.Supp. 513, 521—522.
5
The District Court clearly decided the case under the 'rule of reason.' It found that there was 'a combination and conspiracy in restraint of trade; and the restraint is unreasonable. As such it is outlawed by Section 1 of the Sherman Act.' 63 F.Supp., at 523 (emphasis added). The court rejected the argument made by the defense that the basic agreement on which the arrangement was founded was permissible under 'the doctrine which validates covenants in restraint of trade when reasonably ancillary to a lawful principal purpose . . . (T)he world-wide territorial allocation was unreasonable in scope when measured against the business actualities.' Id., at 524 (emphasis added).
6
'The appellees did not appeal from the findings and order invalidating (territorial) restraints on resale by distributors . . ..' 388 U.S., at 368, 87 S.Ct., at 1860.
7
'The Government does not contend that a per se violation of the Sherman Act is presented by the practices which are involved in this appeal . . .. Accordingly, we are remitted to an appraisal of the market impact of these practices.
'. . . (W)e must look to the specifics of the challenged practices and their impact upon the makretplace in order to make a judgment as to whether the restraint is or is not 'reasonable' in the special sense in which § 1 of the Sherman Act must be read for purposes of this type of inquiry.' 388 U.S., at 373—374, 87 S.Ct., at 1862.
8
'We are here confronted with challenged vertical restrictions as to territory and dealers. . . . These are not horizontal restraints, in which the actors are distributors with or without the manufacturer's participation.' 388 U.S., at 372, 87 S.Ct., at 1862.
9
Among the facts found by the District Court are the following: private-label brand merchandising, which is beyond the reach of the small chains acting independently and which by definition depends upon local exclusivity, permits the merchandiser to offer the public 'lower consumer prices on products of high quality' and 'to bargain more favorably with national brand manufacturers'; such merchandising fosters 'the establishment of a broader supply base of manufacturers, thereby decreasing dependence upon a relatively few, large national brand manufacturers'; it also enables '(s)maller manufacturers, the most common source of private label products, who are generally unable to develop national brand name recognition for their products, (to) benefit . . . by the assurance of a substantial market for their products . . ..' 319 F.Supp., at 1035.
10
It seems ironical to me that in another antitrust case decided today, Ford Motor Co. v. United States, 405 U.S. 562, 92 S.Ct. 1142, 31 L.Ed.2d 492, the Court, in contrast to its handling of the instant case, goes out of its way to commend another District Court for its treatment of a problem involving 'predictions and assumptions concerning future economic and business events.' Id., at 578, 92 S.Ct., at 1149.
11
The national chains market their own private-label products, and these products are available nowhere else than in the stores of those chains. The stores of any one chain, of course, do not engage in price competition with each other with respect to their chain's private-label brands, and no serious suggestion could be made that the Sherman Act requires otherwise. I fail to see any difference whatsoever in the economic effect of the Topco arrangement for the marketing of Topco brand products and the methods used by rangement for the marketing of Topco-the national chains in marketing their private-label brands. True, the Topco arrangement involves a 'combination,' while each of the national chains is a single integrated corporation. The controlling consideration, however, should be that in neither case is the policy of the Sherman Act offended, for the practices in both cases work to the benefit, and not to the detriment, of the consuming public.
| 78
|
31 L.Ed.2d 492
92 S.Ct. 1142
405 U.S. 562
FORD MOTOR COMPANY, Appellant,v.UNITED STATES et al.
No. 70—113.
Argued Nov. 18, 1971.
Decided March 29, 1972.
Syllabus*
In this divestiture action under § 7 of the Celler-Kefauver Anti-merger Act, the Government challenged the acquisition by appellant, Ford, the second largest automobile manufacturer, of certain assets of Electric Autolite Co. (Autolite), an independent manufacturer of spark plugs and other automotive parts. The acquisition included the Autolite trade name, Autolite's only domestic spark plug plant, and extensive rights to its nationwide distribution organization for spark plugs and batteries. The brand used in the spark plug replacement market (aftermarket) has historically been the same as the original equipment (OE) brand. Autolite and other independents had furnished manufacturers with OE plugs at or below cost, seeking to recoup their losses by profitable aftermarket sales. Ford, which previously had bought all its spark plugs from independents and was the largest purchaser from that source, made the Autolite acquisition in 1961 for the purpose of participating in the aftermarket. At about that time General Motors (GM) had about 30% of the domestic spark plug market. Autolite had 15%, and Champion, the only other major independent, had 50% (which declined to 40% in 1964, and 33% in 1966). The District Court found that the industry's oligopolistic structure encouraged maintenance of the OE tie and that spark plug manufacturers, to the extent that they are not owned by auto makers, will compete more vigorously for private brand sales in the aftermarket. The court held that the acquisition of Autolite violated § 7 since its effect 'may be substantially to lessen competition' in automotive spark plugs because: (1) 'as both a prime candidate to manufacture and the major customer of the dominant member of the oligopoly,' Ford's pre-acquisition position was a moderating influence on the independent companies, and (2) the acquisition significantly foreclosed to independent spark plug manufacturers access to the purchaser of a substantial share of the total industry output. After hearings, the court ordered the divestiture of the Autolite plant and trade name because of the industry's oligopolistic structure, which encouraged maintenance of the OE tie. The court stressed that it was in the self-interest of the OE spark plug manufacturers to discourage private-brand sales but noted that changes in marketing methods indicated a substantial growth in the private-brand sector of the spark plug market, which, if allowed to develop without unlawful restraint, may account for 17% of the total aftermarket by 1980. Additionally, the court enjoined Ford for 10 years from manufacturing spark plugs; ordered it for five years to buy one-half its annual requirements from the divested plant under the 'Autolite' name, during which time it was prohibited from using its own name on spark plugs; and for 10 years ordered it to continue its policy of selling to its dealers at prices no less than its prevailing minimum suggested jobbers' selling price. In contesting divestiture, Ford argued that under its ownership Autolite became a more effective competitor against Champion and GM than it had been as an independent and that other benefits resulted from the acquisition. Held:
1. The District Court correctly held that the effect of Ford's acquisition of the Autolite spark plug assets and trade name may be substantially to lessen competition in the spark plug business and thus to violate § 7 of the Celler-Kefauver Antimerger Act; and that the alleged beneficial effects of the merger did not save it from illegality under that provision, United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915. Pp. 569—571.
2. The relief ordered by the District Court was proper. Pp. 571—578.
(a) Divestiture is necessary to restore the pre-acquisition market structure, in which Ford was the leading purchaser from independent sources, and in which a substantial segment of the market was open to competitive selling. After the divestiture, with Ford again as a purchaser of spark plugs, competitive pressures for its business will be generated and the anti-competitive consequences of its entry as a manufacturer will be eliminated. Pp. 573—575.
(b) The ancillary injunctive provisions are necessary to give the divested plant an opportunity to re-establish its competitive position and to nurture the competitive forces at work in the market-place. Pp. 575—578.
286 F.Supp. 407, 315 F.Supp. 372, affirmed.
Whitney North Seymour, New York City, for appellant.
Daniel M. Friedman, Washington, D.C., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a direct appeal under § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29, from a judgment of the District Court (286 F.Supp. 407, 315 F.Supp. 372), holding that Ford Motor Co. (Ford) violated § 7 of the Celler-Kefauver Antimerger Act1 by acquiring certain assets from Electric Autolite Co. (Autolite). The assets included the Autolite trade name, Autolite's only spark plug plant in this country (located at New Fostoria, Ohio), a battery plant, and extensive rights to its nationwide distribution organization for spark plugs and batteries. The present appeal2 is limited to that portion of the judgment relating to spark plugs and ordering Ford to divest the Autolite name and the spark plug plant. The ancillary injunctive provisions are also here for review.
2
* Ford, the second-leading producer of automobiles, General Motors, and Chrysler together account for $90% of the automobile production in this country. Though Ford makes a substantial portion of its parts, prior to its acquisition of the assets of Autolite it did not make spark plugs or batteries but purchased those parts from independent companies.
3
The original equipment of new cars, insofar as spark plugs are concerned, is conveniently referred to as the OE tie. The replacement market is referred to as the aftermarket. The independents, including Autolite, furnished the auto manufacturers with OE plugs at cost or less, about six cents a plug, and they continued to sell at that price even when their costs increased threefold. The independents sought to recover their losses on OE sales by profitable sales in the aftermarket where the requirement of each vehicle during its lifetime is about five replacement plug sets. By custom and practice among mechanics, the aftermarket plug is usually the same brand as the OE plug. See generally Hansen & Smith, The Champion Case: What Is Competition?, 29 Harv.Bus.Rev. 89 (1951).
4
Ford was anxious to participate in this aftermarket and, after various efforts not relevant to the present case, concluded that its effective participation in the aftermarket required 'an established distribution system with a recognized brand name, a full line of high volume service parts, engineering experience in replacement designs, low volume production facilities and experience, and the opportunity to capitalize on an established car population.'
5
Ford concluded it could develop such a division of its own but decided that course would take from five to eight years and be more costly than an acquisition. To make a long story short, it acquired certain assets of Autolite in 1961.
6
General Motors had previously entered the spark plug manufacturing field, marking the AC brand. The two other major domestic producers were independents—Autolite and Champion. When Ford acquired Autolite, whose share of the domestic spark plug market was about 15%, only one major independent was left and that was Champion, whose share of the domestic market declined from just under 50% in 1960 to just under 40% in 1964 and to about 33% in 1966. At the time of the acquisition, General Motors' market share was about 30%. There were other small manufacturers of spark plugs but they had no important share of the market.3
7
The District Court held that the acquisition of Autolite violated § 7 of the Celler-Kefauver Antimerger Act because its effect 'may be substantially to lessen competition.'4 It gave two reasons for its decision.
8
First, prior to 1961 when Ford acquired Autolite it had a 'pervasive impact on the aftermarket,' 315 F.Supp., at 375, in that it was a moderating influence on Champion and on other companies derivatively. It explained that reason as follows:
9
'An interested firm on the outside has a twofold significance. It may someday go in and set the stage for noticeable deconcentration. While it merely stays near the edge, it is a deterrent to current competitors. United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964). This was Ford uniquely, as both a prime candidate to manufacture and the major customer of the deminant member of the oligopoly. Given the chance that Autolite would have been doomed to oblivion by defendant's grass-roots entry, which also would have destroyed Ford's soothing influence over replacement prices, Ford may well have been more useful as a potential than it would have been as a real producer, regardless how it began fabrication. Had Ford taken the internal-expansion route, there would have been no illegality; not, however, because the result necessarily would have been commendable, but simply because that course has not been proscribed.' 286 F.Supp., at 441.
10
See also FTC v. Procter & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303; United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775.
11
Second, the District Court found that the acquisition marked 'the foreclosure of Ford as a purchaser of about ten per cent of total industry output.' 315 F.Supp., at 375. The District Court added:
12
'In short, Ford's entry into the spark plug market by means of the acquisition of the factory in Fostoria and the trade name 'Autolite' had the effect of raising the barriers to entry in to that market as well as removing one of the existing restraints upon the actions of those in the business of manufacturing spark plugs.
13
'It will also be noted that the number of competitors in the spark plug manufacturing industry closely parallels the number of competitors in the automobile manufacturing industry and the barriers to entry into the auto industry are virtually insurmountable at present and will remain so for the foreseeable future. Ford's acquisition of the Autolite assets, particularly when viewed in the context of the original equipment (OE) tie and of GM's ownership of AC, has the result of transmitting the rigidity of the oligopolistic structure of the automobile industry to the spark plug industry, thus reducing the chances of future deconcentration of the spark plug market by forces at work within that market.' Ibid.
14
See also FTC v. Consolidated Foods Corp., 380 U.S. 592, 85 S.Ct. 1220, 14 L.Ed.2d 95; Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510; United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057.
15
We see no answer to that conclusion if the letter and spirit of the Celler-Kefauver Antimerger Act5 are to be honored. See United States v. Philadelphia National Bank, 374 U.S. 321, 362 363, 83 S.Ct. 1715, 1740—1741, 10 L.Ed.2d 915; United States v. Penn-Olin Chemical Co., 378 U.S., at 170—171, 84 S.Ct., at 1716 1717; Brown Shoe Co. v. United States, 370 U.S., at 311—323, 82 S.Ct., at 1516—1522.
16
It is argued, however, that the acquisition had some beneficial effect in making Autolite a more vigorous and effective competitor against Champion and General Motors than Autolite had been as an independent. But what we said in United States v. Philadelphia National Bank, supra, disposes of that argument. A merger is not saved from illegality under § 7, we said,
17
'because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial. A value choice of such magnitude is beyond the ordinary limits of judicial competence, and in any event has been made for us already, by Congress when it enacted the amended § 7. Congress determined to preserve out traditionally competitive economy. It therefore proscribed anticompetitive mergers, the benign and the malignant alike, fully aware, we must assume, that some price might have to be paid.' 374 U.S., at 371, 83 S.Ct., at 1745, 1746.
18
Ford argues that the acquisition left the marketplace with a greater number of competitors. To be sure, after Autolite sold its New Fostoria plant to Ford, it constructed another in Decatur, Alabama, which by 1964 had 1.6% of the domestic business. Prior to the acquisition, however, there were only two major independent producers and only two significant purchasers of original equipment spark plugs. The acquisition thus aggravated an already oligopolistic market.
19
As we indicated in Brown Shoe Co. v. United States, 370 U.S., at 323—324, 82 S.Ct., at 1523:
20
'The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a 'clog on competition,' Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 314, 69 S.Ct. 1051, 1062, 93 L.Ed. 1371, which 'deprive(s) . . . rivals of a fair opportunity to compete.' H.R.Rep.No.1191, 81st Cong., 1st Sess. 8. Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement.'
21
Moreover, Ford made the acquisition in order to obtain a foothold in the aftermarket. Once established, it would have every incentive to perpetuate the OE tie and thus maintain the virtually insurmountable barriers to entry to the aftermarket.
II
22
The main controversy here has been over the nature and degree of the relief to be afforded.
23
During the year following the District Court's finding of a § 7 violation, the parties were unable to agree upon appropriate relief. The District Court then held nine days of hearings on the remedy and, after full consideration, concluded that divestiture and other relief were necessary.
24
The OE tie, it held, was in many respects the key to the solution since the propensity of the mechanic in a service station or independent garage is to select as a replacement the spark plug brand that the manufacturer installed in the car. The oligopolistic structure of the spark plug manufacturing industry encourages the continuance of that system. Neither GM nor Autolite sells privatelable plugs. It is obviously in the selfinterest of OE plug manufacturers to discourage private-brand sales and to encourage the OE tie. There are findings that the private brand sector of the spark plug market will grow substantially in the next decade because mass merchandisers are entering this market in force. They not only sell all brands over the counter but also have service bays where many carry only spark plugs of their own proprietary brand. It is anticipated that by 1980 the total private brand portion of the spark plug market may then represent 17% of the total aftermarket. The District Court added:
25
'To the extent that the spark (plug) manufacturers are not owned by the auto makers, it seems clear that they will be more favorably disposed toward private brand sales and will compete more vigorously for such sales. Also, the potential entrant continues to have the chance to sell not only the private brand customer but the auto maker as well.' 315 F.Supp., at 378.
Accordingly the decree
26
(1) enjoined Ford for 10 years from manufacturing spark plugs,
27
(2) ordered Ford for five years to purchase one-half of its total annual requirement of spark plugs from the divested plant under the 'Autolite' name,
28
(3) prohibited Ford for the same period from using its own trade names on plugs,
29
(4) Protected New Fostoria, the town where the Autolite plant is located, by requiring Ford to continue for 10 years its policy of selling spark plugs to its dealers at prices no less than its prevailing minimum suggested jobbers' selling price,6
30
(5) protected employees of the New Fostoria plant by ordering Ford to condition its divestiture sale on the purchaser's assuming the existing wage and pension obligations and to offer employment to any employee displaced by a transfer of nonplug operations from the divested plant.7
31
The relief in an antitrust case must be 'effective to redress the violations' and 'to restore competition.'8 United States v. E. I. Du Pont De Nemours & Co., 366 U.S. 316, 326, 81 S.Ct. 1243, 1250, 6 L.Ed.2d 318. The District Court is clothed with 'large discretion' to fit the decree to the special needs of the individual case. International Salt Co. v. United States, 332 U.S. 392, 401, 68 S.Ct. 12, 17, 92 L.Ed. 20; United States v. E. I. Du Pont De Nemours & Co., 353 U.S., at 608, 77 S.Ct., at 885; United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S.Ct. 254, 260, 89 L.Ed. 160.
32
Complete divestiture is particularly appropriate where asset or stock acquisitions violate the antitrust laws. United States v. E. I. Du Pont De Nemours & Co., supra, 366 U.S., at 328—335, 81 S.Ct., at 1251—1255; United States v. Crescent Amusement Co., supra, 323 U.S., at 189, 65 S.Ct., at 262; Schine Chain Theatres v. United States, 334 U.S. 110, 128, 68 S.Ct., 947, 957, 92 L.Ed. 1245; United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12.
33
Divestiture is a start toward restoring the pre-acquisition situation. Ford once again will then stand as a large industry customer at the edge of the market with a renewed interest in securing favorable terms for its substantial plug purchases. Since Ford will again be a purchaser, it is expected that the competitive pressures that existed among other spark plug producers to sell to Ford will be re-created. The divestiture should also eliminate the anticompetitive consequences in the aftermarket flowing from the second largest automobile manufacturer's entry through acquisition into the spark plug manufacturing business.
34
The divested plant is given an incentive to provide Ford with terms which will not only satisfy the 50% requirement provided for five years by the decree but which even after that period may keep at least some of Ford's ongoing purchases. The divested plant is awarded at least a foothold in the lucrative aftermarket and is provided an incentive to compete aggressively for that market.
35
As a result of the acquisition of Autolite, the structure of the spark plug industry changed drastically, as already noted. Ford, which before the acquisition was the largest purchaser of spark plugs from the independent manufacturers, became a major manufacturer. The result was to foreclose to the remaining independent spark plug manufacturers the substantial segment of the market previously open to competitive selling and to remove the significant procompetitive effects in the concentrated spark plug market that resulted from Ford's position on the edge of the market as a potential entrant.
36
To permit Ford to retain the Autolite plant and name and to continue manufacturing spark plugs would perpetuate the anticompetitive effects of the acquisition.9
37
The District Court rightly concluded that only divestiture would correct the condition caused by the unlawful acquisition.
38
A word should be said about the other injunctive provisions. They are designed to give the divested plant an opportunity to establish its competitive position. The divested company needs time so it can obtain a foothold in the industry. The relief ordered should 'cure the ill effects of the illegal conduct, and assure the public freedom from its continuance,' United States v. United States Gypsum Co., 340 U.S. 76, 88, 71 S.Ct. 160, 169, 95 L.Ed. 89, and it necessarily must 'fit the exigencies of the particular case.' International Salt Co. v. United States, 332 U.S., at 401, 68 S.Ct., at 17. Moreover, 'it is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor.' United States v. E. I. Du Pont De Nemours & Co., 366 U.S., at 334, 81 S.Ct., at 1254.
39
Ford concedes that '(i)f New Fostoria is to survive, it must for the foreseeable future become and remain the OE supplier to Ford and secure and retain the benefits of such OE status in sales of replacement plugs.' The ancillary measures ordered by the District Court are designed to allow Autolite to re-establish itself in the OE and replacement markets and to maintain it as a viable competitor until such time as forces already at work within the marketplace weaken the OE tie. Thus Ford is prohibited for 10 years from manufacturing its own plugs.10 But in five years it can buy its plugs from any source and use its name on OE plugs.
40
But prior to that time Ford cannot use or market plugs bearing the Ford trade name. In view of the importance of the OE tie, if Ford were permitted to use its own brand name during the initial five-year period, there would be a tendency to impose the oligopolistic structure of the automotive industry on the replacement parts market and the divested enterprise might well be unable to become a strong competitor. Ford argues that any prohibition against the use of its name is permissible only where the name deceives or confuses the public.11 But this is not an unfair competition case. The temporary ban on the use of the Ford name is designed to restore the pre-acquisition competitive structure of the market.
41
The requirement that, for five years, Ford purchase at least half of its spark plug requirements from the divested company under the Autolite label is to give the divested enterprise an assured customer while it struggles to be re-established as an effective, independent competitor.
42
It is suggested, however, that 'the District Court's orders assured that Ford could not begin to have brand name success in the replacement market for at least 10 to 13 years.' Post, at 591. This conclusion distorts the effect of the District Court decree and the nature of the spark plug industry. Ford's own studies indicate that it would take five to eight years for it to develop a spark plug division internally. A major portion of this period would be devoted to the development of a viable position in the aftermarket. The five-year prohibition on the use of its own name and the 10-year limitation on its own manufacturing mesh neatly to allow Ford to establish itself in the aftermarket prior to becoming a manufacturer while, at the same time, giving Autolite the opportunity to reestablish itself by providing a market for its production. Thus, the District Court's decree delays for only two to five years the date on which Ford may become a manufacturer with an established share of the aftermarket. Given the normal five-to-eight-year lead time on entry through internal expansion, the District Court's decree does not significantly lessen Ford's moderating influence as a potential entrant on the edge of the market. Moreover, in light of the interim benefits this ancillary relief will have on the re-establishment of Autolite as a viable competitor and of Ford as a major purchaser, we cannot agree with the characterization of the relief as 'harshly restrictive,' post, at 595, or the assertion that the decree, in any practical and significant sense, 'prohibit(s) Ford from entering the market through internal expansion.' Post, at 592.
43
Antitrust relief should unfetter a market from anticompetitive conduct and 'pry open to competition a market that has been closed by defendants' illegal restraints.' International Salt Co. v. United States, 332 U.S., at 401, 68 S.Ct., at 17. The temporary elimination of Ford as a manufacturer of spark plugs lowers a major barrier to entry to this industry. See C. Kaysen & D. Turner, Antitrust Policy—An Economic and Legal Analysis 116 (1959). Forces now at work in the marketplace may bring about a deconcentrated market structure and may weaken the onerous OE tie. The District Court concluded that the forces of competition must be nurtured to correct for Ford's illegal acquisition. We view its decree as a means to that end.12
44
The thorough and thoughtful way the District Court considered all aspects of this case, including the nature of the relief, is commendable. The drafting of such a decree involves predictions and assumptions concerning future economic and business events. Both public and private interests are involved; and we concude that the District Court with a single eye to the requirements of § 7 and the violation that was clearly established made a reasonable judgment on the means needed to restore and encourage the competition adversely affected by the acquisition.
45
Affirmed.
46
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
47
Mr. Justice STEWART, concurring in the result.
48
The spark plug industry as it stood prior to Ford's acquisition of Autolite was hardly characterized by vigorous competition. For 25 years, the industry had consisted of AC, owned by and supplying original equipment (OE) plugs to General Motors; Champion, independent and supplying Ford; Autolite, independent dependent and supplying Chrysler; and a number of small producers who had no OE sales and only a minuscule share of the aftermarket.1 The habit among mechanics of installing replacement plugs carrying the same brand as the automobile's original plugs, reinforced by the unwillingness of service stations to stock more than two or three brands,2 made possible the 'OE tie,' which rendered any large-scale entry into the aftermarket virtually impossible without first obtaining a large OE customer. Moreover, price competition was minimal, both in the OE market (where any reduction in the six-cent price would immediately be matched by rivals), and in the aftermarket (where spark plugs accounted for such a small percentage of the normal tuneup charge that price differentials did not have a significant impact upon consumer choice).
49
The District Court found that the acquisition of Autolite's spark plug assets by Ford further lessened competition in the industry in two ways: it foreclosed Ford as a potential purchaser of spark plugs from independent producers, and it eliminated what the District Court found to have been Ford's 'moderating effect' upon Champion's pricing policies in the aftermarket. These findings standing alone might provide a basis for concluding that the acquisition violated § 7 but, as THE CHIEF JUSTICE demonstrates in his dissenting opinion post, at 591—592, the remedy ordered will not restore the preacquisition market forces upon which the District Court focused. For, under the court's injunctions, Ford will be neither a potential market entrant, nor a potential purchaser of half its OE requirements from producers other than Autolite, for a substantial period of time after the divestiture takes place.
50
In my judgment, both the finding of a § 7 violation and the remedy ordered may be better rationalized in terms of probable future trends in the spark plug market, visible at the time of the acquisition. The District Court observed that 'a court cannot shut its eyes to contemporary or predictable factors conducive to change in the competitive structure.' 286 F.Supp. 407, 442. This was a proper inquiry because we have held that § 7 'requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future.' United States v. Philadelphia National Bank, 374 U.S. 321, 362, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915.3
51
The District Court found that the growth of service-centers operated by mass merchandisers carrying private label brands might eventually loosen the OE tie and the tight oligopoly in the spark plug market that it had fostered. Had Ford entered the market through internal expansion, either Champion or Autolite would have been left without an OE entry, but would nevertheless have owned an established brand name with an existing distribution system, together with a large production capacity. Even the threat of being so stranded, not to mention its realization, would have given both Champion and Autolite an incentive to compete as suppliers to private label sellers, as these sellers began to represent a significant share of the market, and to undermine the OE tie. Ford's acquisition of Autolite did more than foreclose it as a potential OE customer, or eliminate its 'moderating effect' upon Champion's pricing policies; it eliminated one of the only two independent producers with a sufficient share of the aftermarket to give it a chance to compete effectively without an OE tie. Thus, the acquisition had the probable effect of indefinitely postponing the day when existing market forces could produce a measurable deconcentration in the market.
52
While the District Court did not justify the divestiture in precisely these terms, I think its prediction of future trends in the spark plug industry is an adequate basis to support the remedy ordered. THE CHIEF JUSTICE's opinion, post, at 591—592, is correct in its assertion that the ancillary injunctions are anticompetitive in the short run, and that the District Court took extraordinary measures to mother the divested producer for the next decade. But I cannot say that these injunctions are not reasonably calculated to establish the new Autolite producer as a viable firm and thus to restore the pre-acquisition market structure, insofar as it is now possible to do so. A divestiture decree without ancillary injunctions would not automatically restore the status quo ante, as THE CHIEF JUSTICE's opinion seems to assume. The Electric Autolite Company, from which Ford acquired the assets in question here, will not be recreated by the divestiture, and it is reasonable to assume that a new owner of the Autolite trade name and the New Fostoria plant will require a period of time to become as effective a competitor as was Electric Autolite prior to the acquisition.
53
Though the economics of the market are such that the divestiture cannot be assured of success, it does at least have a chance of bringing increased competition to the spark plug industry. And while divestiture remedies in § 7 cases have not enjoyed spectacular success in the past, remedies short of divestiture have been uniformly unsuccessful in meeting the goals of the Act. See Elzinga, The Antimerger Law: Pyrrhic Victories, 12 J.Law & Econ. 43 (1969).
54
Mr. Chief Justice BURGER, concurring in part and dissenting in part.
55
In addition to requiring divestiture of Autolite, the District Court made ancillary injunctive provisions that go far beyond any that have been cited to the Court. Ford is forbidden to manufacture spark plugs for 10 years; Ford is ordered to purchase one-half of its total annual requirement of spark plugs from the divested company under the 'Autolite' name, and Ford is forbidden for the same period to use its own trade name on any spark plugs. These provisions are directed to prevent Ford from making an independent entry into the spark plug market and, in effect, to require it to subsidize Autolite for a period of time. Despite the Draconian qualify of this restriction on Ford, I can find no justification in the District Court's findings for this remedy. I dissent from the broad sweep of the District Court's remedial decree. I would remand for further consideration of the remedial aspects of this case.
56
An understanding of the District Court's findings as to the spark plug market shows three reasons why it was in error in requiring Ford to support Autolite. First, the court did not find that the weakness of an independent Autolite's competitive position resulted from Ford's acquisition. Rather, a reading of its findings makes apparent that the precariousness of Autolite's expected post-divestment position results from pre-existing forces in the market. Therefore, the drastic measures employed to strengthen Autolite's position at Ford's expense cannot be justified as a remedy for any wrong done by Ford. Second, the remedy will perpetuate for a time the very evils upon which the District Court based a finding of an antitrust violation. Third, the court's own findings indicate that the remedy is not likely to secure Autolite's competitive position beyond the termination of the restrictions. Therefore, there is no assurance that the judicial remedy will have the desired impact on long-run competition in the spark plug market.
57
The Court makes two critical errors in order to avoid the effect of this reasoning. It rejects the factfinding by the District Court in order to uphold its remedial order; and it repeats that court's error by discussing the assistance necessary to restore Autolite to the status quo ante without ever delineating that prior state of affairs or indicating how Ford, by acquiring Autolite and holding it for a number of years, had undermined its ability to reassume its former independent competitive position.
58
The District Court made extensive findings on the nature of the spark plug market. Some of these findings appear in the Court's opinion, but some factors that seem crucial to me are either omitted or not adequately set forth. Therefore I will sketch these findings at some risk of repetition.
59
Beyond doubt, the spark plug market has been overwhelmingly dominated by three manufacturers for a long period: AC, owned by General Motors, which had about 30% of the market in 1961; Champion, which had supplied Ford since 1910 and had approximately 50% of the market in 1961; and Autolite, which had supplied Chrysler since 1941 and had 15% of the market in 1961. Together these three companies had over 95% of the total market in 1961.
60
The reason for the continued domination of the market by the three big plug manufacturers is the pervasive feature of the plug market known as the 'OE (original equipment) tie.' This denominates the phenomenon that mechanics who replace spark plugs in a car engine have tended, almost exclusively, to use the brand of plug installed by the auto builder as original equipment. Though not required by spark plug technology, mechanics have followed this practice because of a strong desire to avoid any chance of injuring an engine by putting a mismatched plug into it. Further, because plugs are low-profit items, those who install them tend to carry an inventory of a small number of brands. Most carry only two and some carry three brands, and they choose the brands installed by the big auto manufacturers as original equipment. Thus, it takes a position as supplier to a large auto maker to gain recognition in the spark plug replacement market. The Government conceded in the District Court, for instance, that American Motors, with 5% of the auto market, would not be able to create market acceptance for an independent brand of plug by installing it as original equipment in its cars.
61
Because of the competitive importance of having their plugs installed as original equipment by one of the three auto companies, plug manufacturers have over a long period been willing to sell OE plugs for initial installation by auto manufacturers at a price below their production cost. The longstanding price for OE plugs, about 6 cents, is now approximately one-third of the cost of producing these plugs. Such below-cost selling is profitable for the plug companies because of the foothold it gives them in competing for the normal five or six sets of replacement plugs necessary in the lifespan of an automobile. This pricing policy has been partially responsible for the semipermanent relations between the plug manufacturers and the auto manufacturers: it is only those plug companies that profit from the OE tie over the long run that can afford this belowcost sale to the auto companies.
62
The strength of the OE tie is demonstrated by the inability of well-known auto supply manufacturers to gain a significant share of the spark plug market in the absence of an OE tie. As the District Court found, no company without the OE tie
63
'ever surpassed the 2% level. Several have come and gone. Firestone Tire and Rubber Company merchandised Firestone replacements for 35 years before it gave up in 1964. Although it owned some 800 accessory stores and successfully wholesaled other items to more than 50,000 shops and filling stations, it could not surmount the patent discrimination against brands not blessed with Detroit's approbation. Goodyear Tire and Rubber Company quit in only three years. Globe Union, a fabricator which had barely 1% of the nation's shipments, withdrew in 1960.' 286 F.Supp. 407, 434—435.
64
Two small manufacturers survive, producing plugs for private-label brands. Thus 'Atlas' plugs, sponsored by the Standard Oil companies, has 1.4% of the replacement market; 'Prestolite' and Sears, Roebuck's 'Allstate' each have 1.2%; and Montgomery Ward's 'Riverside' label has 0.6% of the replacement market.
65
An independent entry into the plug market by Ford, with the expected substitution of its own plugs as original equipment in its cars, would have necessarily deprived one of the two significant independent plug producers of its OE status. The District Court found that, because of the importance of the OE tie, the plug producer deprived of this support would most likely have lost any significant position in the market.1 Autolite, with only 15% of the market before the acquisition, would certainly have lost any significant position in the market if an independent entry by Ford had led Chrysler to shift its patronage from Autolite to Champion. The District Court asserted that a Champion without OE status would have had some chance of maintaining a significant market position because of its size, although it gave no reason for thinking Champion's size immunized it from dependence on OE status. Before 1961, Champion had just under 50% of the market. As a result of Champion's move to Chrysler in 1961, its position in the market dropped to 33% by 1966. The District Court found no basis for predicting which of the two big independents would have won such a competition for continued OE status.
66
Thus, an independent entry by Ford would not likely have increased the number of significant competitors in the spark plug market. Rather, it would simply have substituted Ford for one of the two significant independent manufacturers. The result of this expectation is that the District Court did not base its finding of illegality on the ground typically present when a potential entrant enters on ologopolistic market by acquisition rather than internal expansion, i.e., that such a move has deprived the market of the pro-competitive effect of an increase in the number of competitors. Here an independent entry would not have increased the number of competitors but simply would have exchanged one competitor for another. In noting this paradoxical fact, the District Court concluded that 'Ford may well have been more useful as a potential than it would have been as a real producer, regardless how it began fabrication.'2 286 F.Supp. at 441.
67
Not finding that Ford's entry by acquisition had deprived the spark plug market of any pro-competitive effect of an independent entry, the District Court relied on two other grounds for finding a violation of the antitrust laws. First, it concluded that as a potential entrant on the edge of the market which was also a major purchaser in the market, Ford exercised a 'moderating' influence on the market; the second basis for determining theacquisition illegal was the finding that the acquisition 'foreclosed' other companies from competing for the business of supplying Ford with spark plugs.
68
With respect to Autolite itself, the District Court made several relevant findings. First, it found that Autolite is a fixed-production plant. In other words, it can be profitable only turning out approximately the number of plugs it now manufactures. It could not, for instance, reduce its production by half and sell that at a profit. Second, it made extensive findings with respect to Autolite's distribution system:
69
'Ford received six regional offices, personnel and a list of Electric Autolite's warehousers and jobbers. All of these have been and still are at liberty to deal with anyone they wish. Each old direct account had to be visited individually and, if it consented, be resigned by defendant (Ford). Within a few months, 52 did enter into new ignition contracts. However, 50 of these for the previous year had also been . . . (distributors of other Ford products). By mid-1966, direct accounts totaled 156, of which 104 in 1960 had been pledged to neither Ford nor Autolite. The same bloc of 50 had been committed to both. The net increase traceable with any semblance of accuracy to the acquisition is two first-layer middlemen . . ..' 286 F.Supp., at 422.
70
As to difficulties that a divested Autolite might have in establishing an independent distribution system, the District Court mentioned only one:3 if Ford were to offer its own plugs to its car dealers at a fairly low price, one which independent jobbers could not meet, Autolite would have difficulty independently establishing its distribution system. The jobbers would be less interested in handling Autolite's line since the Ford dealers would not want Autolite at the jobbers' price and, with this demand cut out, the jobbers would be less interested in pushing Autolite generally.
71
There is another set of relevant facts found by the District Court. The District Judge found that 'there is a rising wind of new forces in the spark plug market which may profoundly change it.' 315 F.Supp. 372, 377. On the basis of the testimony of an executive of one of the producers of plugs for private labels, the court found that the private-brand sector would grow during the next 10 years. This highly speculative observation of the District Court was based on a finding that the mass merchandisers are beginning to enter the plug marketing field in force. Not only do the mass merchandisers market private-brand plugs over the counter, but they are also building service bays. And in these bays many carry only their own proprietary brand of spark plugs. This witness predicted that the mass merchandisers would increase their share of the aftermarket from 4.4% to 10% by 1980. He further predicted that oil companies would enter the replacement market, resulting in a total of 17% of the replacement market being supplied by private-label plugs by 1980. The court concluded that these forces 'may well lead to (the market's) eventual deconcentration by increasing the number of potential customers for a new entrant into the plug manufacturing business and reducing the need for original equipment identification.' 315 F.Supp., at 378.
72
In its separate opinion on remedies, the District Court correctly stated the relevant law; the purpose, and limit of antitrust remedies, is to
73
'free these forces (within the market) from the unlawful restraint imposed upon them so that they may run their natural course.' 315 F.Supp., at 377.
74
The violators may not be required to do more than return the market to the status quo ante. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 152—153, 68 S.Ct. 915, 926—927, 92 L.Ed. 1260 (1948); Reynolds Metals Co. v. FTC, 114 U.S.App.D.C. 2, 309 F.2d 223 (1962) (Burger, J.). Applying this general provision to the instant situation, the District Court correctly stated:
75
'The court wishes to note here that although it finds that divestiture is the only effective remedy, it does not agree with the Government that the remedy should be affirmatively designed to 'break the OE tie.' The remedy is designed to correct the violations of Section 7 found by the court. The OE tie, as such, does not violate Section 7.' 315 F.Supp., at 378.
76
The District Court then concluded that, in addition to divestiture of the Autolite plant and trade name, certain injunctive provisions were required 'to give (Autolite) an opportunity to establish its competitive position.' Ibid. It therefore ordered that Ford be prohibited from manufacturing spark plugs for a period of 10 years. It further ordered that for a period of five years Ford would be required to purchase one-half of its total annual needs of spark plugs from Autolite, bearing the Autolite label. For this five-year period Ford was also ordered not to use or market a spark plug under a trade name owned by or licensed to it. The effect of these orders was twofold. They assured Autolite of a purchaser for a large part of its production for five years. And they prevented Ford from immediately entering the competition for a share of the aftermarket with a plug under its own name; it could not even label a plug under its own name for five years and could not manufacture its own plug for 10 years. Given the findings of the court that even with the status of supplier of original equipment (with the company's own brand name on plugs) to a major auto manufacturer it would take a new entrant into the spark plug market five to eight years to establish a position for its brand in the replacement market, the District Court's orders assured that Ford could not begin to have brand-name success in the replacement market for at least 10 to 13 years.4
77
In my view these drastic remedial provisions are not warranted by the court's findings as to the grounds on which Ford's acquisition violated the antitrust laws. Further, in light of the District Court's own factfindings, these remedies will have short run anticompetitive impact and they give no assurance that they will succeed in allowing Autolite to establish its competitive position.
78
The remedial provisions are unrelated to restoring the status quo ante with respect to the two violations found by the District Court, the ending of Ford's status as a potential entrant with a moderating influence on the market and the foreclosure of a significant part of the plug market. Indeed, the remedies may well be anti-competitive in both respects. First, the District Court's order actually undercuts the moderating influence of Ford's position on the edge of the market. It is the possibility that a company on the sidelines will enter a market through internal expansion that has a moderating influence on the market. By prohibiting Ford from entering the market through internal expansion, therefore, the remedy order wipes out, for the duration of the restriction, the pro-competitive influence Ford had on the market prior to its acquisition of Autolite. Second, the Court's order does not fully undo the foreclosure effect of the acquisition. Divestment alone would return the parties to the status quo ante. Ford would then be free to deal with Autolite or another plug producer or to enter the market through internal expansion. Yet the Court has ordered Ford to buy at least half its requirements from Autolite for five years. Thus, the order itself forecloses part of Ford's needs from the forces of competition.
79
The above problems might be minor if the District Court's remedy were justifiable in terms of returning Autolite to the status quo ante by overcoming some harm to its ability to compete accomplished by Ford's acquisition. But on this issue the District Court opinion and the majority of this Court are confused. Although the District Court asserted that Autolite needed the aid of its injunctive remedies to establish its competitive position, the court made no findings in its remedy opinion as to the source of Autolite's competitive weakness. Therefore it never reached the issue whether the source of weakness had anything to do with the violations attributed to Ford. Instead, the court's opinion proceeded from the recognition of competitive problems immediately to the prescription of a remedy.
80
In fact, a fair reading of the findings of the District Court shows that the acquisition did not injure Autolite's competitive position. Autolite's OE status was continued and its share of the aftermarket was increased from 12.5% to 19%. Thus, its trademark is at least as strong now as when Ford acquired the company. Nor did the acquisition and holding of Autolite injure its distribution system. The District Court found that Autolite did not own a distribution system. It merely had short-term contracts with jobbers who distributed its plugs to those who install them in cars or sell them to the public. Almost all of these jobbers had concurrent distribution relations with Ford. In fact, between 1961 and 1966 Ford tripled the number of jobbers handling Autolite plugs. From the opinion below, it appears that Ford has done nothing that will prevent an independent Autolite from seeking to maintain these distribution channels. The only possible finding of injury to be squeezed out of the acquisition relates to the fact that Autolite has been shorn of its status as OE supplier of Chrysler. But this is inconclusive. Autolite had nothing more in its position as OE supplier to Chrysler than it would if Ford voluntarily chose to use Autolite plugs after the divestment: a relationship based on short-term contracts the auto manufacturer could refuse to renew at any time.
81
The findings of the District Court indicate that Autolite's precarious position did not result from its acquisition by Ford. Prior to the acquisition both Champion and Autolite were in a continually precarious position in that their continued large share of the market was totally dependent on their positions as OE suppliers to auto manufacturers. The very factor that assured that they faced no serious competition in the short run also assured that in the long run their own position was dependent on their relationship with a large auto manufacturer. Thus, the threat to Autolite posed by a simple divestiture is the same threat it had lived with between 1941 and 1961 as an independent entity: it might be left without any OE supply relationship with a major auto manufacturer, and therefore its market position based on this relationship might decline drastically.
82
Today's opinion errs when it states, ante, at 571, that the District Judge found the OE tie the 'key to the solution' of this problem. Although the court indeed found this tie a pervasive factor in the market, it also found that the phenomenon was not created by Ford and that it did not constitute a § 7 violation. Therefore the Court errs in justifying the ancillary remedies as necessary to overcome the OE tie. Even if such a remedy might overcome the OE tie, which I question, there is no justification for burdening Ford with the restrictive order.
83
Further, the only conclusion to be drawn from the trial findings is that the remedy is unlikely to result in a secure market position for Autolite at the end of the restricted period. Once again it will be dependent for its survival on whether it can maintain an OE supply status. The District Court's suggestion that Autolite can find a niche supplying private-brand labels is unpersuasive. It cannot be predicted with any certainty that these sales outlets will grow to the extent predicted by one person in that line of the business. Further, even if they do, this is no assurance of Autolite's survival. There are already several companies in the business of producing plugs for private labels. Autolite will have to compete with them. The results will not be helpful. One possibility is that Autolite would completely monopolize the private-brand market to the extent of about 17% of the replacement market. This is as uncompetitive as it is unlikely. The more reasonable likelihood is that Autolite might be able to gain a position producing, for instance, 5% of the replacement market plugs. But this would be useless because the District Court's findings make clear that Autolite's fixed-production plant cannot supply such a small share of the market at a profit.
84
In the final analysis it appears to me that the District Court, seeing the immediate precariousness of Autolite's position as a divested entity, designed remedies to support Autolite without contemplating whether it was equitable to restrict Ford's freedom of action for these purposes or whether there was any real chance of Autolite's eventual survival. I fear that this is a situation where the form of preserving competition has taken precedence over an understanding of the realities of the particular market. Therefore I dissent from today's affirmance of the District Court's harshly restrictive remedial provisions.5
85
Mr. Justice BLACKMUN, concurring in part and dissenting in part.
86
I concur in Part I of the Court's opinion and in that portion of Part II that approves divestiture as part of the remedy. I cannot agree; however, that prohibiting Ford from using its own name or its trade name on any spark plugs for five years and enjoining it entirely from manufacturing plugs for 10 years is just, equitable, or necessary. Instead, the stringency of those remedial provisions strikes me as confiscatory and punitive. The Court's opinion, ante, at 566, recognizes that Ford could develop its own spark plug division internally and place itself in the same position General Motors has occupied for so long, but that this would take from five to eight years. The restraint on Ford's entering the spark plug area is thus for a period longer than it would take Ford to achieve a position in the market through internal development. And to deny it the use of its own name is to deny it a property right that has little to do with this litigation.
*
The syallabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
1
Section 7 provides in part:
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.' 38 Stat. 731, as amended, 64 Stat. 1125, 15 U.S.C. § 18.
2
We noted probable jurisdiction June 7, 1971. 403 U.S. 903, 91 S.Ct. 2204, 29 L.Ed.2d 679.
3
Autolite did not sell all of its assets to Ford and changed the name of the parts of its business that it retained to Eltra Corp. which in 1962 began manufacturing spark plugs in Decatur, Alabama, under the brand name Prestolite. But in 1964 it had only 1.6% of the domestic business. Others included Atlas, sponsored by Standard Oil of New Jersey, with 1.4% of that business, and Riverside, sponsored by Montgomery Ward with 0.6%. As further stated by the District Court:
'Most of the manufacturing for the private labels among these marketers is done by ELTRA and General Battery and Ceramic Corporation, the only producers of any stature at all after the Big Three.' 286 F.Supp. 407, 435.
4
The words were suggested by the Federal Trade Commission which told the Congress:
'Under the Sherman Act, an acquisition is unlawful if it creates a monopoly or constitutes an attempt to monopolize. Imminent monopoly may appear when one large concern acquires another, but it is unlikely to be perceived in a small acquisition by a large enterprise. As a large concern grows through a series of such small acquisitions, its accretions of power are individually so minute as to make it difficult to use the Sherman Act test against them. . . .' S.Rep.No.1775, 81st Cong., 2d Sess. 5; U.S.Code Cong. Service 1950, pp. 4293, 4297.
The Committee defined the words 'may be' as follows:
'The concept of reasonable probability conveyed by these words is a necessary element in any statute which seeks to arrest retraints of trade in their incipiency and before they develop into full-fledged restraints violative of the Sherman Act. A requirement of certainty and actuality of injury to competition is incompatible with any effort to supplement the Sherman Act by reaching incipient restraints.' Id., at 6; U.S.Code Cong. Service 1950, p. 4298.
5
Congressman Celler in testifying for the Celler-Kefauver bill that was the 1950 amendment to § 7 of the Clayton Act said:
'(T)he worth of the individual is the worth of the Nation; no more and no less. That which strengthens the individual bolsters the Nation; that which dwarfs the individual belittles the Nation.' Hearing on H.R. 988 at seq. before Subcommittee No. 3 of the House Committee on the Judiciary, 81st Cong., 1st Sess., serv. 10, pp. 14—15 (1949).
Senator Kefauver spoke in the same vein:
'(I)f our democracy is going to survive in this country we must keep competition, and we must see to it that the basic materials and resources of the country are available to any little fellow who wants to go into business.
'Charts and statistics will show that every year there is more and more concentration, with more and more corporations purchasing out their competitors, so that unless this trend is halted we are going to come to a place where the basic industries and business of America are controlled by a very, very small group of a small number of corporations.
'We have already reached that point in a great many of our basic industries. The evil of that course is quite apparent. When people lose their economic freedom, they lose their political freedom.
'When the destiny of people over the land is dependent upon the decision of two or three people in a central office somewhere, then the people are going to demand that the Government do something about it.
'When it reaches that stage, it is going to result in statism of one sort or another; and whichever sort it may be, one is equally as bad as another, as I see it.' Id., at 12.
6
The District Court found this provision necessary in order to asesmble an adequate distribution system for the aftermarket. Without it, service stations and independent jobbers would be unable to compete with franchised car dealers for the replacement business. Ford does not challenge this provision in this Court.
7
Ford does not challenge this ancillary portion of the District Court decree protecting the employees of the New Fostoria plant.
8
The suggestion that antitrust 'violators may not be required to do more than return the market to the status quo ante,' post, at 590, is not a correct statement of the law. In United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, we sustained broad injunctions regulating motion picture licenses and clearances which were not related to the status quo ante. Reynolds Metals Co. v. FTC, 114 U.S.App.D.C. 2, 309 F.2d 223 (1962), concerned the enforcement powers of the Federal Trade Commission, not the equitable powers of the District Court.
Section 4 of the Sherman Act, 15 U.S.C. § 4, and § 15 of the Clayton Act, 15 U.S.C. § 25, empower 'the Attorney General, to institute proceedings in equity to prevent and restrain . . . violations' of the antitrust laws. The relief which can be afforded under these statutes is not limited to the restration of the status quo ante. There is no power to turn back the clock. Rather, the relief must be directed to that which is 'necessary and appropriate in the public interest to eliminate the effects of the acquisition offensive to the statute,' United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 607, 77 S.Ct. 872, 885, 1 L.Ed.2d 1057 (emphasis added), or which will 'cure the ill effects of the illegal conduct, and assure the public freedom from its continuance.' United States v. United States Gypsum Co., 340 U.S. 76, 88, 71 S.Ct. 160, 169, 95 L.Ed. 89 (emphasis added).
9
'(I)t would be a novel, not to say absurd, interpretation of the anti-trust act to hold that after an unlawful combination is formed and has acquired the power which it (has) no right to acquire,—namely, to restrain commerce by suppressing competition, and is proceeding to use it and execute the purpose for which the combination was formed, it must be left in possession of the power that it has acquired, with full freedom to exercise it.' Northern Securities Co. v. United States, 193 U.S. 197, 357, 24 S.Ct. 436 465, 48 L.Ed. 679.
10
Ford argues that the 10-year prohibition on its manufacture of spark plugs will lessen competition because it will remove a potential competitor from the marketplace. This prohibition, however, is merely a step toward the restoration of the status quo ante, and is, moreover, necessary for Autolite to re-establish itself.
11
Ford also argues that the right to its own trade name is a constitutionally protected property right (cf. Howe Scale Co. of 1886 v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972; Brown Chemical Co. v. Meyer, 139 U.S. 540, 11 S.Ct. 625, 35 L.Ed. 247; United States v. Tropiano, 418 F.2d 1069, 1076 (CA2 1969)), and that the remedial provision of § 15 of the Clayton Act should not be construed to limit the use of this right. Even on that assumption, we could not accept the conclusion advanced by Ford.
Even constitutionally protected property rights such as patents may not be used as levers for obtaining objectives proscribed by the antitrust laws. E.g., Besser Mft. Co. v. United States, 343 U.S. 444, 448—449, 72 S.Ct. 838, 841, 96 L.Ed. 1063; Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363. Here, the use by Ford of its trade name would perpetuate the OE tie and would have the prohibited effect of hindering the re-entry of Autolite to the spark plug market as a viable competitor.
'The trade mark may become a detrimental weapon if it is used to serve a harmful or injurious purpose. If it becomes a tool to circumvent free enterprise and unbridled competition, public policy dictates that the rights enjoyed by its ownership be kept within their proper bounds. If a trade mark may be the legal basis for allocating world markets, fixing of prices, restricting competition, the unfailing device has been found to destroy every vestige of inhibition set up by the Sherman Act.' United States v. Timken Roller Bearing Co., 83 F.Supp. 284, 316 (ND Ohio 1949), aff'd, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951).
12
The District Court decree thus implements the congressional judgment in favor of atomized markets reflected in the Celler-Kefauver Antimerger Act:
'But we cannot fail to recognize Congress' desire to promote competition through the protection of viable, small, locally owned businesses. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision.' Brown Shoe Co. v. United States, 370 U.S. 294, at 344, 82 S.Ct. 1502, at 1534, 8 L.Ed.2d 510.
1
Both Champion and Autolite supplied OE plugs to American Motors, which in 1961 had roughly 5% of the domestic automobile market.
2
According to a 1966 survey, only 11% of all metropolitan area service stations stocked any brand of spark plug other than Champion, AC, or Autolite, and only 30% stocked all three of the leading brands.
3
Ford argues that the acquisition allowed Autolite to compete more effectively against the two larger brands, Champion and AC. Since this argument is addressed to the effect of the acquisition upon competition, the Court obviously provides no answer to the argument when it quotes Philadelphia National Bank for the proposition that arguments unrelated to the merger's effect upon competition are irrelevant in a § 7 case. But Ford's arguments that Autolite was a more effective competitor after the acquisition rests principally on the fact that Autolite's market share increased after 1961 while Champion's decreased. This development, however, can be attributed for the most part to the fact that Autolite now provides OE plugs to Ford, rather than to the smaller Chrysler. Autolite's increased market share, therefore, is more likely attributable to the OE tie than to any increase in its competitive vigor.
1
Of course, the decline would take a number of years, since it would be spread over the life of the cars on the road bearing the producer's plugs as original equipment—probably five to eight years.
2
Mr. Justice STEWART, concurring in the result, relies on factual assumptions that seem to me directly contrary to findings made by the District Court. While that court found future developments might arise in the plug market that would enable an independent Autolite without OE status to survive, it also found that an independent entry by Ford in 1960, or even as of the date of the projected divestiture, would have left Autolite doomed because the market would not yet be ready to offer it an independent niche. By slighting these findings, Mr. Justice STEWART is able to avoid the question whether Ford should have to bear the burden of maintaining Autolite's life until a time when market changes might support it when it is clear that an earlier independent entry by Ford would have left it moribund. He further overlooks the problems discussed below as to the unlikelihood of Autolite's success, its fixed-production needs versus the small size of the market free of the OE tie.
3
The District Court made no mention of whether a divested Autolite would have the six regional offices and personnel that it had in 1960. Given the District Court's solicitude for Autolite's health, I can only assume that it expected Autolite to be sent out with whatever it had brought in.
4
The majority opinion errs in its evaluation, ante, at 577, of the effect of the restrictions on Ford's ability to establish itself in the aftermarket. The District Court opinion makes clear that gaining a position in the replacement market takes five to eight years after the brand of plugs is first installed as original equipment: 18 months to three years before the first cars need plug replacements plus several annual car populations requiring this brand before service centers would be motivated to stock it. Thus, the prohibition against Ford's using its own name for five years delays the beginning of an independent Ford entry and results in assuring that Ford could not gain a position in the aftermarket for 10 to 13 years after the effective date of the divestiture.
5
This case illustrates the unsoundness of the direct appeal permitted in cases of this kind under 15 U.S.C. § 29. In a factually complicated case like this, we would be immeasurably aided by the screening process provided by a Court of Appeals review. Limited expediting of such cases, under the discretion of this Court, would satisfy all needs justifying direct review in this Court.
| 78
|
405 U.S. 625
92 S.Ct. 1221
31 L.Ed.2d 536
Claude ALEXANDER, Petitioner,v.State of LOUISIANA.
No. 70—5026.
Argued Dec. 6 and 7, 1971.
Decided April 3, 1972.
Syllabus
Petitioner, a Negro, attacks his rape conviction in Lafayette Parish, which was affirmed by the Louisiana Supreme Court, contending that the grand jury selection procedures followed in his case were invidiously discriminatory against Negroes and, because of a statutory exemption provision, against women. The jury commissioners (all white) sent out questionnaires (including a space for racial designation) to those on a list compiled from nonracial sources. Of the 7,000-odd returns, 1,015 (14%) were from Negroes, though Negroes constituted 21% of the parish population presumptively eligible for grand jury service. By means of two culling-out procedures, when racial identifications that the commissioners had attached to the forms were plainly visible, the pool was reduced to 400, of whom 27 (7%) were Negro, from which group the 20-man grand jury venires were drawn. Petitioner's venire included one Negro (5%), and the grand jury that indicted him had none. There was no evidence of conscious racial selection and one commissioner testified that race was no consideration. Held:
1. Petitioner made out a prima facie case of invidious racial discrimination in the selection of the grand jury that indicted him—not only on a statistical basis but by a showing that the selection procedures were not racially neutral—and the State, which did not adequately explain the disproportionately low number of Negroes throughout the selection process, did not meet the burden of rebutting the presumption of unconstitutionality in the procedures used. Cf. Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599. Pp. 628—632.
2. Petitioner's contentions regarding discrimination against women in the selection of grand jurors are not reached. Pp. 633 634.
255 La. 941, 233 So.2d 891, reversed.
Charles Stephen Ralston, New York City, for petitioner.
Bertrand De Blanc, Lafayette, La., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
After a jury trial in the District Court for the Fifteenth Judicial District of Lafayette Parish, Louisiana, petitioner, a Negro, was convicted of rape and sentenced to life imprisonment. His conviction was affirmed on appeal by the Louisiana Supreme Court,1 and this Court granted certiorari.2 Prior to trial, petitioner had moved to quash the indictment because (1) Negro citizens were included on the grand jury list and venire in only token numbers, and (2) female citizens were systematically excluded from the grand jury list, venire, and impaneled grand jury.3 Petitioner therefore argued that the indictment against him was invalid because it was returned by a grand jury impaneled from a venire made up contrary to the requirements of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Petitioner's motions were denied.
2
According to 1960 U.S. census figures admitted into evidence below, Lafayette Parish contained 44,986 persons over 21 years of age and therefore presumptively eligible for grand jury service;4 of this total, 9,473 persons (21.06%) were Negro.5 At the hearing on petitioner's motions to quash the indictment, the evidence revealed that the Lafayette Parish jury commission consisted of five members, all of whom were white, who had been appointed by the court. The commission compiled a list of names from various sources (telephone directory, city directory, voter registration rolls, lists prepared by the school board, and by the jury commissioners themselves) and sent questionnaires to the persons on this list to determine those qualified for grand jury service. The questionnaire included a space to indicate the race of the recipient. Through this process, 7,374 questionnaires were returned, 1,015 of which (13.76%) were from Negroes,6 and the jury commissioners attached to each questionnaire an information card designating, among other things, the race of the person, and a white slip indicating simply the name and address of the person. The commissioners then culled out about 5,000 questionnaires, ostensibly on the ground that these persons were not qualified for grand jury service or were exempted under state law. The remaining 2,000 sets of papers were placed on a table, and the papers of 400 persons were selected, purportedly at random, and placed in a box from which the grand jury panels of 20 for Lafayette Parish were drawn. Twenty-seven of the persons thus selected were Negro (6.75%).7 On petitioner's grand jury venire, one of the 20 persons drawn was Negro (5%), but none of the 12 persons on the grand jury that indicted him, drawn from this 20, was Negro.
3
* For over 90 years, it has been established that a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881). Although a defendant has no right to demand that members of his race be included on the grand jury that indicts him, Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880), he is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.8 Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880); Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896). Cf. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). It is only the application of these settled principles that is at issue here.
4
This is not a case where it is claimed that there have been no Negroes called for service within the last 30 years, Patton v. Mississippi, 332 U.S. 463, 464, 68 S.Ct. 184, 185, 92 L.Ed. 76 (1947); only one Negro chosen within the last 40 years, Pierre v. Louisiana, 306 U.S. 354, at 359, 59 S.Ct. 536, at 539 (1939); or no Negroes selected 'within the memory of witnesses who had lived (in the area) all their lives,' Norris v. Alabama, 294 U.S. 587, 591, 55 S.Ct. 579, 581, 79 L.Ed. 1074 (1935). Rather, petitioner argues that, in his case, there has been a consistent process of progressive and disproportionate reduction of the number of Negroes eligible to serve on the grand jury at each stage of the selection process until ultimately an all-white grand jury was selected to indict him.
5
In Lafayette Parish, 21% of the population was Negro and 21 or over, therefore presumptively eligible for grand jury service. Use of questionnaires by the jury commissioners created a pool of possible grand jurors which was 14% Negro, a reduction by one-third of possible black grand jurors. The commissioners then twice culled this group to create a list of 400 prospective jurors, 7% of whom were Negro—a further reduction by one-half. The percentage dropped to 5% on petitioner's grand jury venire and to zero on the grand jury that actually indicted him. Against this background, petitioner argues that the substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population raises a strong inference that racial discrimination and not chance has produced this result because elementary principles of probability make it extremely unlikely that a random selection process would, at each stage, have so consistently reduced the number of Negroes.9
6
This Court has never announced mathematical standards for the demonstration of 'systematic' exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination. At two crucial steps in the selection process, when the number of returned questionnaires was reduced to 2,000 and when the final selection of the 400 names was made, these racial identifications were visible on the forms used by the jury commissioners, although there is no evidence that the commissioners consciously selected by race. The situation here is thus similar to Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953), where the Court sustained a challenge to an array of petit jurors in which the names of prospective jurors had been selected from segregated tax lists. Juror cards were prepared from these lists, yellow cards being used for Negro citizens and white cards for whites. Cards were drawn by a judge, and there was no evidence of specific discrimination. The Court held that such evidence was unnecessary, however, given the fact that no Negroes had appeared on the final jury: 'Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate.' 345 U.S., at 562, 73 S.Ct., at 892. Again, in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), the Court reversed the conviction of a defendant who had been tried before an all-white petit jury. Jurors had been selected from a one-volume tax digest divided into separate sections of Negroes and whites; black taxpayers also had a '(c)' after their names as required by Georgia law at the time. The jury commissioners testified that they were not aware of the '(c)' appearing after the names of the Negro taxpayers; that they had never included or excluded anyone because of race; that they had placed on the jury list only those persons whom they knew personally; and that the jury list they compiled had had no designation of race on it. The county from which jury selection was made was 42% Negro, and 27% of the county's taxpayers were Negro. Of the 33 persons drawn for the grand jury panel, three (9%) were Negro, while on the 19-member grand jury only one was Negro; on the 90-man venire from which the petit jury was selected, there were seven Negros (8%), but no Negroes appeared on the actual jury that tried petitioner. The Court held that this combination of factors constituted a prima facie case of discrimination, and a similar conclusion is mandated in the present case.
7
Once a prima facie case of invidious discrimination is established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result. Turner v. Fouche, 396 U.S. 346, 361, 90 S.Ct. 532, 540, 24 L.Ed.2d 567 (1970); Eubanks v. Louisiana, 356 U.S. 584, 587, 78 S.Ct. 970, 973, 2 L.Ed.2d 991 (1958). The State has not carried this burden in this case; it has not adequately explained the elimination of Negroes during the process of selecting the grand jury that indicted petitioner. As in Whitus v. Georgia, supra, the clerk of the court, who was also a member of the jury commission, testified that no consideration was given to race during the selection procedure. App. 34. The Court has squarely held, however, that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion. Turner v. Fouche, supra, 396 U.S., at 361, 90 S.Ct., at 540; Jones v. Georgia, 389 U.S. 24, 25, 88 S.Ct. 4, 5, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967). 'The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.' Hernandez v. Texas, 347 U.S., at 482, 74 S.Ct., at 672. See also Norris v. Alabama, 294 U.S., at 598, 55 S.Ct., at 583. The clerk's testimony that the mailing list for questionnaires was compiled from nonracial sources is not, in itself, adequate to meet the State's burden of proof, for the opportunity to discriminate was presented at later stages in the process. The commissioners, in any event, had a duty 'not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds.' Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942). See also Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940). Cf. Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549 (1970). We conclude, therefore, that 'the opportunity for discrimination was present and (that it cannot be said) on this record that it was not resorted to by the commissioners.' Whitus v. Georgia, supra, 385 U.S., at 552, 87 S.Ct., at 647.
II
8
Petitioner also challenges the Louisiana statutory exemption of women who do not volunteer for grand jury service. Article 402, La.Code Crim.Proc. This claim is novel in this Court and, when urged by a male, finds no support in our past cases. The strong constitutional and statutory policy against racial discrimination has permitted Negro defendants in criminal cases to challenge the systematic exclusion of Negroes from the grand juries that indicted them. Also, those groups arbitrarily excluded from grand or petit jury service are themselves afforded an appropriate remedy. Cf. Carter v. Jury Commission of Greene County, supra. But there is nothing in past adjudications suggesting that petitioner himself has been denied equal protection by the alleged exclusion of women from grand jury service. Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court held that because trial by jury in criminal cases under the Sixth Amendment is 'fundamental to the American scheme of justice,' id., at 149, 88 S.Ct., at 1447, such a rigth was guaranteed to defendants in state courts by the Fourteenth Amendment, but the Court has never held that federal concepts of a 'grand jury,' binding on the federal courts under the Fifth Amendment, are obligatory for the States. Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed. 232 (1884).
9
Against this background and because petitioner's conviction has been set aside on other grounds, we follow our usual custom of avoiding decision of constitutional issues unnecessary to the decision of the case before us. Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 245, 49 L.Ed. 482 (1905). See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The State may or may not recharge petitioner, a properly constituted grand jury may or may not return another indictment, and petitioner may or may not be convicted again. See Ballard v. United States, 329 U.S. 187, 196, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946).
10
Reversed.
11
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
12
Mr. Justice DOUGLAS, concurring.
13
While I join Part I of the Court's opinion, I am convinced we should also reach the constitutionality of Louisiana's exclusion of women from jury service. The issue is squarely presented, it has been thoroughly briefed and argued, and it is of recurring importance. The Court purports to follow 'our usual custom' of avoiding unnecessary constitutional issues. But that cannot be the sole rationale, for both questions are of constitutional dimension. We could just as well say that deciding the constitutionality of excluding women from juries renders it unnecessary to reach the question of racial exclusion.
14
It can be argued that the racial exclusion admits of the 'easier' analysis. But this Court does not sit to decide only 'easy' questions. And even when faced with 'hard' constitutional questions, we have often decided cases on alternate grounds where a decision on only one would have been dispositive. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274.
15
Petitioner complains of the exclusion of blacks and women from the grand jury which indicted him. Conceivably, he could have also complained of the exclusion of several other minority groups. Would he then be relegated to suffer repetitive re-indictment and re-conviction while this court considered the exclusion of each group in a separate lawsuit? I believe the time has come to reject the dictum in Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664, that a State 'may confine' jury service 'to males.' I would here reach the question we reserved in Hoyt v. Florida, 368 U.S. 57, 60, 82 S.Ct. 159, 161, 7 L.Ed.2d 118, and hold that Art. 402, La.Code Crim.Proc.,1 as applied to exclude women as a class from Lafayette Parish jury rolls, violated petitioner Alexander's constitutional right to an impartial jury drawn from a group representative of a cross-section of the community.2
16
It is irrelevant to our analysis that Alexander attacks the composition of the grand jury that indicted him, not the petit jury which convicted him, for it is clear that a State which has a grand jury procedure must administer that system consonantly with the Federal Constitution. The Court asserts, however, that 'federal concepts' of a grand jury do not obligate the States, and cites Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed.2d 232. Ante, at 633. But Hurtado supports no such proposition. That case merely held that the Fifth Amendment grand jury requirement was not binding on the States. It said nothing as to the constitutional requirements which obtain once a State chooses to provide a grand jury, and we are directed to no other case which does speak to the subject. But this Court has said time and again, regardless of a State's freedom to reject the federal grand jury, and to reject even the petit jury for offenses punishable by less than six months' imprisonment, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, 'Once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria . . .' Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549.3
17
It is furthermore clear that just such a 'federal constitutional criteri(on)' is that the grand jury, just as the petit jury must be drawn from a representative cross-section of the community. The Court was speaking of both grand and petit juries in Carter v. Jury Commission, supra, when, quoting Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84, it defined the jury as 'a body truly representative of the community.' 396 U.S., at 330, 90 S.Ct., at 524. The Court was speaking of grand and petit juries when it said in Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469: 'Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.' (Emphasis supplied.) As Mr. Justice Black said, speaking for the Court in Pierre v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 83 L.Ed. 757: 'Indictment by Grand Jury and trial by jury cease to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races . . . are excluded as such from jury service.' (Footnote omitted.)
18
The requirement that a jury reflect a cross-section of the community occurs throughout our jurisprudence: 'The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680.' Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181. Accord, Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446; Witherspoon v. Illinois, 391 U.S. 510, 520, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776; Ballard v. United States, 329 U.S. 187, 192—193, 67 S.Ct. 261, 263—264, 91 L.Ed. 181; Labat v. Bennett, 5 Cir., 365 F.2d 698, 722—724.4
19
This is precisely the constitutional infirmity of the Louisiana statute. For a jury list from which women have been systematically excluded is not representative of the community.
20
'It is said, however, that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men personality, background, economic status—and not sex.
21
Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up excusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.' Ballard v. United States, supra, 329 U.S., at 193—194, 67 S.Ct., at 264. (Emphasis supplied; footnotes omitted).
22
The record before us, moreover, indisputably reveals that such a systematic exclusion operated with respect to the Lafayette Parish jury lists. There were no women on the grand jury that indicted petitioner, and there were no women on the venire from which the jury was chosen. While the venire was selected from returns to questionnaires sent to parish residents, not a single one of the some 11,000 questionnaires was even sent to a woman. This was done deliberately.5
23
The State relies on the fact that the automatic exemption it grants to women is the same as the one upheld in Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118. In Hoyt, however, there were women on the jury rolls, and the jury commissioners had made good-faith efforts to include women on the jury lists despite the fact that they had an automatic exemption unless they volunteered for service. Id., 368 U.S., at 69, 82 S.Ct., at 166 (Warren, C.J., concurring opinion). Here, on the other hand, only the feeblest efforts were made to interest women in service,6 and there was testimony that only a single woman had filled out a jury service questionnaire.7 This, out of a parish population of 45,000 adults, 52% of whom were female.
24
The absolute exemption provided by Louisiana, and no other State,8 betrays a view of a woman's role which cannot withstand scrutiny under modern standards. We once upheld the constitutionality of a state law denying to women the right to practice law, solely on grounds of sex. Bradwell v. State, 16 Wall. 130, 21 L.Ed. 442. The rationale underlying Art. 402 of the Louisiana Code is the same as that which was articulated by Justice Bradley in Bradwell:
25
'Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .
26
'. . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.' Id., at 141—142.
27
Classifications based on sex are no longer insulated from judicial scrutiny by a legislative judgment that 'woman's place is in the home,' or that woman is by her 'nature' ill-suited for a particular task. See, e.g., Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225. But such a judgment is precisely that which underpins the absolute exemption from jury service at issue.9 Insofar as Hoyt, supra, embodies this discredited stereotype, it should be firmly disapproved.10 See Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U.L.Rev. 675, 708—721 (1971).
28
Louisiana says, however, that women are not totally excluded from service; they may volunteer. The State asserts it is impractical to require women affirmatively to claim the statutory exemption because of the large numbers who would do so. This argument misses the point. Neither man nor woman can be expected to volunteer for jury service. Hoyt, supra, 368 U.S., at 64—65, 82 S.Ct., at 164. See L. Kanowitz, Women and the Law 30 (1969). Thus, the automatic exemption, coupled with the failure even to apprise parish women of their right to volunteer, results in as total an exclusion as would obtain if women were not permitted to serve at all.
29
Some violations of due process of law may be excused in the context of a criminal trial, if the error cannot be shown to have had an effect on the outcome. See, e.g., Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Napue v. Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217. But the right to a representative jury is one which would be trivialized were a similar requirement imposed:
30
'We can never measure accurately the prejudice that results from the exclusion of certain types of qualified people from a jury panel. Such prejudice is so subtle, so intangible, that it escapes the ordinary methods of proof. It may be absent in one case and present in another; it may gradually and silently erode the jury system before it becomes evident. But it is no less real or meaningful for our purposes. If the constitutional right to a jury impartially drawn from a cross-section of the community has been violated, we should vindicate that right even though the effect of the violation has not yet put in a tangible appearance. Otherwise that right may be irretrievably lost in a welter of evidentiary rules.' Fay v. New York, 332 U.S. 261, 300, 67 S.Ct. 1613, 1634, 91 L.Ed. 2043 (Murphy, J., dissenting).
31
A statutory procedure which has the effect of excluding all women does not produce a representative jury, and is therefore repugnant to our constitutional scheme. Cf. White v. Crook, 251 F.Supp. 401, 408—409 (MD Ala.1966). For these reasons, I would hold Art. 402, La.Code Crim.Proc., to be unconstitutional.
1
255 La. 941, 233 So.2d 891 (1970). Petitioner was indicted for aggravated rape, and a 12-member jury unanimously returned a verdict of 'Guilty without Capital Punishment.'
2
401 U.S. 936, 91 S.Ct. 946, 28 L.Ed.2d 215 (1971).
3
Petitioner does not here challenge the composition of the petit jury that convicted him. The principles that apply to the systematic exclusion of potential jurors on the ground of race are essentially the same for grand juries and for petit juries, however. Pierre v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538 539, 83 L.Ed. 757 (1939). See generally Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881).
4
The general qualifications for jurors set by Louisiana law are that a person must be a citizen of the United States and of Louisiana who has resided in the parish for at least a year prior to jury service, be at least 21 years old, be able to read, write, and speak the English language, '(n)ot be under interdiction, or incapable of serving as a juror because of a mental or physical infirmity,' and '(n)ot be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned.' La.Code Crim.Proc., Art. 401 (1967).
5
Testimony at the hearing on the motion to quash the indictment also revealed that there were 40,896 registered voters in the parish. Of this total, 17,803 were white males, and 16,483 were white females; 3,573 were Negro males, and 3,037 were Negro females. App. 38.
6
One hundred and eighty-nine questionnaires had no racial designation. App. 15.
7
There are some inconsistencies in the record as to the total number of Negroes in this group. The State introduced a certification by the clerk of the court stating that there were 25 Negroes and four persons with no race shown. App. 15. A count of the actual list of jurors, however, shows 27 Negroes and five persons with no race shown. App. 16—24.
8
Section 4 of the 1875 Civil Rights Act, 18 Stat. 336, now codified as 18 U.S.C. § 243, affirms and reinforces this constitutional right: 'No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.'
9
We take note, as we did in Whitus v. Georgia, 385 U.S. 545, 552 n. 2, 87 S.Ct. 643, 647, 17 L.Ed.2d 599 (1967), of petitioner's demonstration that under one statistical technique of calculating probability, the chances that 27 Negroes would have been selected at random for the 400-member final jury list, when 1,015 out of the 7,374 questionnaires returned were from Negroes, are one in 20,000. Brief for Petitioner, 18 n. 18.
1
Article 402, La.Code Crim.Proc.: 'A woman shall not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service.'
2
The fact that Alexander is a male challenging the exclusion of females from the jury rolls is not of significance, for his claim rests, not on equal protection principles, but on the right of any defendant to an impartial jury, no matter what his sex or race.
3
While Carter arose under the Equal Protection Clause, and concerned the right of prospective jurors excluded from the venire solely by reason of their race, the analysis is the same in the instant case, where the question is the accused's right to an impartial jury. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424.
4
The cases most precisely articulating the requirement that a jury reflect a cross section of the community arose under our supervisory power over the federal courts. See, e.g., Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181; Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The detail with which these cases were written, however, simply reflects our obligation to provide guidelines for the federal system. It is consistent with our principle of federalism that the States be permitted greater latitude in fashioning their jury-selection procedures, but to avoid constitutional infirmity the result must be designed to produce a representative cross section of the community. Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469; Carter v. Jury Commission, 396 U.S. 320, 322, 333, 90 S.Ct. 518, 519, 525, 24 L.Ed.2d 549.
5
Mr. LeBlanc, clerk of the court in Lafayette Parish, and a member of the parish jury commission, testified as to the process by which the venire was chosen at the hearing on the motion to quash Alexander's indictment:
'A. The slips or list that are put in the general venire box are made from questionnaires that I mailed out.
'Q. Now, who is this questionnaire sent to? How is that determined?
'A. To the different people in the Parish by the registrar of voter's list and the telephone book, city directory, different lists that are submitted by school board or any list that we can find that we think we got address (sic) for the mixed race one way or the other.
'Q. Was the questionnaire mailed to any women at all?
'A. We have received some that was filed in by some ladies. I think one.
'Q. Did you mail any to any women intentionally or did you intentionally exclude women when you mailed them?
'A. We didn't mail any to the women.' App. 35, 53.
6
The only evidence in the record that any effort whatsoever was expended to encourage women to volunteer for jury service was a statement by Mr. LeBlanc that he had 'discussed that with the Assistant District Attorney,' and that he had 'sent her at (sic) different women's clubs to explain to the women the possibility of being on the jury.' App. 54. He also averred that 'we're working on the women to submit names and intention to serve.' Ibid.
'As indicated in n. 5, supra, however, these efforts produced but a single questionnaire from a woman. The 11,000 questionnaires sent to men, on the other hand, resulted in over 7,000 responses. App. 15.
7
Testimony of Mr. LeBlanc. See nn. 5—6, supra.
8
No State now prohibits women from service on juries altogether, Alabama's prohibition having been found unconstitutional in White v. Crook, 251 F.Supp. 401 (MD Ala.1966). Most States afford equal treatment to men and women, although exemptions are frequently provided for women who are pregnant or who have children under 18 at home. Five States now allow women an absolute exemption, based solely on their sex, but they must affirmatively request it. Ga.Code Ann. § 59—124 (1965); Mo.Const., Art. I, § 22(b); N.Y. Judiciary Law § 507(7), McKinney's Consol.Laws, c. 30 (1968); R.I.Gen.Laws Ann. § 9—9—11 (1970); Tenn.Code Ann. § 22—101, § 22—108 (1955).
9
Perhaps the purest articulation of the objection to woman jury service is that of Judge Turner, dissenting in Rosencrantz v. Territory, 2 Wash.Ter. 267, 5 P. 305 (1884), a case in which a female defendant challenged the grand jury which indicted her on the ground that it included married women living with their husbands. The challenge was rejected over Judge Turner's dissent:
'It is said that the rights of the weaker sex, if I may now call them so, are more regarded than in the days of Blackstone; and that the theory for that day, that women were unfitted by physical constitution and mental characteristics to assume and perform the civil and political duties and obligations of citizenship, has been exploded by the advanced ideas of the nineteenth century. This may be true. No man honors the sex more than I. None has witnessed more cheerfully the improvement in the laws of the States, and particularly in the laws of this Territory, whereby many of the disabilities of that day are removed from them, and their just personal and property rights put upon an equal footing with those of men. I cannot say, however, that I wish to see them perform the duties of jurors. The liability to perform jury duty is an obligation, not a right. In the case of woman, it is not necessary that she should accept the obligation to secure or maintain her rights. If it were, I should stifle all expression of the repugnance that I feel at seeing her introduced into associations and exposed to influences which, however others regard it, must, in my opinion, shock and blunt those fine sensibilities, the possession of which is her chiefest charm, and the protection of which, under the religion and laws of all countries, civilized or semi-civilized, is her most sacred right.
'If one woman is competent as a juror, all women having the same qualifications are competent. If women may try one case, they may try all cases. It is unnecessary, to say more; to suggest the shocking possibilities to which our wives, mothers, sisters, and daughters may be exposed . . .. These observations, however, are not pertinent here. The question is, What is the law?
'I say, that the laws now concerning the important incidents of a jury trial are, by express constitutional provision, what they were at the common law, and that under that law a jury was no jury unless it was composed of men.' Id., at 278—279, 5 P., at 309 310.
10
In Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, there is also a dictum approving the constitutionality of excluding women from jury service. Relying solely on the proposition that: 'Until recently, and for nearly a half-century after the Fourteenth Amendment was adopted, it was universal practice in the United States to allow only men to sit on juries,' the Court opined that 'woman jury service has not so become a part of the textual or customary law of the land that one convicted of crime must be set free by this Court if his state has lagged behind what we personally may regard as the most desirable practice in recognizing the rights adn obligations of womanhood.' Id., at 289—290, 67 S.Ct. at 1628—1629. This dictum was totally irrelevant to the holding in Fay approving New York's special 'blue-ribbon' jury system for the Court stated flatly that: 'The evidence does not show that women are excluded from the special jury.' Id., at 278, 67 S.Ct., at 1622. Indeed, there were women on the very jury which was at issue in the case. Ibid.
The 'nose-counting' approach which led to the Fay Court's refusal to recognize woman jury service as 'part of the textual or customary law of the land' has, of course, been thoroughly undermined by subsequent events. See n. 8, supra. It has been suggested that the decision itself was overruled by Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Id., at 185 n. 25, 88 S.Ct., at 1468, and text following (Harlan, J., dissenting). And what little there may be left after Duncan, is, like Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, and Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118, based on an obsolete view of woman's role which does not square with reality. '(The Fay) dictum . . . calls to mind—in its total reliance on historical practice as justification for sex discrimination—the . . . observation . . . that attitudes can be more formidable than arguments.' Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U.L.Rev. 675, 715 (1971). See State v. Emery, 224 N.C. 581, 601, 31 S.E.2d 858, 871 (1944) (Seawell, J., dissenting). See also Resencrantz v. Territory, supra (Turner, J., dissenting).
| 12
|
405 U.S. 645
92 S.Ct. 1208
31 L.Ed.2d 551
Peter STANLEY, Sr., Petitioner,v.State of ILLINOIS.
No. 70—5014.
Argued Oct. 19, 1971.
Decided April 3, 1972.
Syllabus
Petitioner, an unwed father whose children, on the mother's death, were declared state wards and placed in guardianship, attacked the Illinois statutory scheme as violative of equal protection. Under that scheme the children of unmarried fathers, upon the death of the mother, are declared dependents without any hearing on parental fitness and without proof of neglect, though such hearing and proof are required before the State assumes custody of children of married or divorced parents and unmarried mothers. The Illinois Supreme Court, holding that petitioner could properly be separated from his children upon mere proof that he and the dead mother had not been married and that petitioner's fitness as a father was irrelevant, rejected petitioner's claim. Held:
1. Under the Due Process Clause of the Fourteenth Amendment petitioner was entitled to a hearing on his fitness as a parent before his children were taken from him. Pp. 647—658.
(a) The fact that petitioner can apply for adoption or for custody and control of his children does not bar his attack on the dependency proceeding. Pp. 647—649.
(b) The State cannot, consistently with due process requirements, merely presume that unmarried fathers in general and petitioner in particular are unsuitable and neglectful parents. Parental unfitness must be established on the basis of individualized proof. See Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90. Pp. 649—658.
2. The denial to unwed fathers of the hearing on fitness accorded to all other parents whose custody of their children is challenged by the State constitutes a denial of equal protection of the laws. P. 658.
45 Ill.2d 132, 256 N.E.2d 814, reversed and remanded.
Patrick T. Murphy, Chicago, Ill., for petitioner.
Morton E. Friedman, Chicago, Ill., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Joan Stanley lived with Peter Stanley intermittently for 18 years, during which time they had three children.1 When Joan Stanley died, Peter Stanley lost not only her but also his children. Under Illinois law, the children of unwed fathers become wards of the State upon the death of the mother. Accordingly, upon Joan Stanley's death, in a dependency proceeding instituted by the State of Illinois, Stanley's children2 were declared wards of the State and placed with court-appointed guardians. Stanley appealed, claiming that he had never been shown to be an unfit parent and that since married fathers and unwed mothers could not be deprived of their children without such a showing, he had been deprived of the equal protection of the laws guaranteed him by the Fourteenth Amendment. The Illinois Supreme Court accepted the fact that Stanley's own unfitness had not been established but rejected the equal protection claim, holding that Stanley could properly be separated from his children upon proof of the single fact that he and the dead mother had not been married. Stanley's actual fitness as a father was irrelevant. In re Stanley, 45 Ill.2d 132, 256 N.E.2d 814 (1970).
2
Stanley presses his equal protection claim here. The State continues to respond that unwed fathers are presumed unfit to raise their children and that it is unnecessary to hold individualized hearings to determine whether particular fathers are in fact unfit parents before they are separated from their children. We granted certiorari, 400 U.S. 1020, 91 S.Ct. 584, 27 L.Ed.2d 631 (1971), to determine whether this method of procedure by presumption could be allowed to stand in light of the fact that Illinois allows married fathers—whether divorced, widowed, or separated—and mothers—even if unwed—the benefit of the presumption that they are fit to raise their children.
3
* At the outset we reject any suggestion that we need not consider the propriety of the dependency proceeding that separated the Stanleys because Stanley might be able to regain custody of his children as a guardian or through adoption proceedings. The suggestion is that if Stanley has been treated differently from other parents, the difference is immaterial and not legally cognizable for the purposes of the Fourteenth Amendment. This Court has not, however, embraced the general proposition that a wrong may be done if it can be undone. Cf. Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Surely, in the case before us, if there is delay between the doing and the undoing petitioner suffers from the deprivation of his children, and the children suffer from uncertainty and dislocation.
4
It is clear, moreover, that Stanley does not have the means at hand promptly to erase the adverse consequences of the proceeding in the course of which his children were declared wards of the State. It is first urged that Stanley could act to adopt his children. But under Illinois law, Stanley is treated not as a parent but as a stranger to his children, and the dependency proceeding has gone forward on the presumption that he is unfit to exercise parental rights. Insofar as we are informed, Illinois law affords him no priority in adoption proceedings. It would be his burden to establish not only that he would be a suitable parent but also that he would be the most suitable of all who might want custody of the children. Neither can we ignore that in the proceedings from which this action developed, the 'probation officer,' see App. 17, the assistant state's attorney, see id., at 29—30, and the judge charged with the case, see id., at 16—18, 23, made it apparent that Stanley, unmarried and impecunious as he is, could not now expect to profit from adoption proceedings.3 The Illinois Supreme Court apparently recognized some or all of these considerations, because it did not suggest that Stanley's case was undercut by his failure to petition for adoption.
5
Before us, the State focuses on Stanley's failure to petition for 'custody and control'—the second route by which, it is urged, he might regain authority for his children. Passing the obvious issue whether it would be futile or burdensome for an unmarried father—without funds and already once presumed unfit—to petition for custody, this suggestion overlooks the fact that legal custody is not parenthood or adoption. A person appointed guardian in an action for custody and control is subject to removal at any time without such cause as must be shown in a neglect proceeding against a parent. Ill.Rev.Stat., c. 37, § 705—8. He may not take the children out of the jurisdiction without the court's approval. He may be required to report to the court as to his disposition of the children's affairs. Ill.Rev.Stat., c. 37, § 705—8. Obviously then, even if Stanley were a mere step away from 'custody and control,' to give an unwed father only 'custody and control' would still be to leave him seriously prejudiced by reason of his status.
6
We must therefore examine the question that Illinois would have us avoid: Is a presumption that distinguishes and burdens all unwed fathers constitutionally repugnant? We conclude that, as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of the laws guaranteed by the Fourteenth Amendment.
II
7
Illinois has two principal methods of removing nondelinquent children from the homes of their parents. In a dependency proceeding it may demonstrate that the children are wards of the State because they have no surviving parent or guardian. Ill.Rev.Stat., c. 37, §§ 702—1, 702—5. In a neglect proceeding it may show that children should be wards of the State because the present parent(s) or guardian does not provide suitable care. Ill.Rev.Stat., c. 37, §§ 702—1, 702—4.
8
The State's right—indeed, duty—to protect minor children through a judicial determination of their interests in a neglect proceeding is not challenged here. Rather, we are faced with a dependency statute that empowers state officials to circumvent neglect proceedings on the theory that an unwed father is not a 'parent' whose existing relationship with his children must be considered.4 'Parents,' says the State, 'means the father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, and includes any adoptive parent,' Ill.Rev.Stat., c. 37, § 701—14, but the term does not include unwed fathers.
9
Under Illinois law, therefore, while the children of all parents can be taken from them in neglect proceedings, that is only after notice, hearing, and proof of such unfitness as a parent as amounts to neglect, an unwed father is uniquely subject to the more simplistic dependency proceeding. By use of this proceeding, the State, on showing that the father was not married to the mother, need not prove unfitness in fact, because it is presumed at law. Thus, the unwed father's claim of parental qualification is avoided as 'irrelevant.'
10
In considering this procedure under the Due Process Clause, we recognize, as we have in other cases, that due process of law does not require a hearing 'in every conceivable case of government impairment of private interest.' Cafeteria and Restaurant Workers Union etc. v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). That case explained that '(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation' and firmly established that 'what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' Id., at 895, 81 S.Ct., at 1748; Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970).
11
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring).
12
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed 'essential,' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), 'basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and '(r)ights far more precious . . . than property rights,' May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, 262 U.S. at 399, 43 S.Ct. at 626, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, 316 U.S., at 541, 62 S.Ct., at 1113, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).
13
Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony. The Court has declared unconstitutional a state statute denying natural, but illegitimate, children a wrongful-death action for the death of their mother, emphasizing that such children cannot be denied the right of other children because familial bonds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit. Levy v. Louisiana, 391 U.S. 68, 71—72, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436 (1968). 'To say that the test of equal protection should be the 'legal' rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such 'legal' lines as it chooses.' Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 75—76, 88 S.Ct. 1515, 1516, 20 L.Ed.2d 441 (1968).
14
These authorities make it clear that, at the least, Stanley's interest in retaining custody of his children is cognizable and substantial.
15
For its part, the State has made its interest quite plain: Illinois has declared that the aim of the Juvenile Court Act is to protect 'the moral, emotional, mental, and physical welfare of the minor and the best interests of the community' and to 'strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal . . .' Ill.Rev.Stat., c. 37, § 701—2. These are legitimate interests, well within the power of the State to implement. We do not question the assertion that neglectful parents may be separated from their children.
16
But we are here not asked to evaluate the legitimacy of the state ends, rather, to determine whether the means used to achieve these ends are constitutionally defensible. What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case? We observe that the State registers no gain towards its declared goals when it separates children from the custody of fit parents. Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.
17
In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), we found a scheme repugnant to the Due Process Clause because it deprived a driver of his license without reference to the very factor (there fault in driving, here fitness as a parent) that the State itself deemed fundamental to its statutory scheme. Illinois would avoid the self-contradiction that rendered the Georgia license suspension system invalid by arguing that Stanley and all other unmarried fathers can reasonably be presumed to be unqualified to raise their children.5
18
It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents.6 It may also be that Stanley is such a parent and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children.7 This much the State readily concedes, and nothing in this record indicates that Stanley is or has been a neglectful father who has not cared for his children. Given the opportunity to make his case, Stanley may have been seen to be deserving of custody of his offspring. Had this been so, the State's statutory policy would have been furthered by leaving custody in him.
19
Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), dealt with a similar situation. There we recognized that Texas had a powerful interest in restricting its electorate to bona fide residents. It was not disputed that most servicemen stationed in Texas had no intention of remaining in the State; most therefore could be deprived of a vote in state affairs. But we refused to tolerate a blanket exclusion depriving all servicemen of the vote, when some servicemen clearly were bona fide residents and when 'more precise tests,' id., at 95, 85 S.Ct., at 779, were available to distinguish members of this latter group. 'By forbidding a soldier ever to controvert the presumption of nonresidence,' id., at 96, 85 S.Ct., at 780, the State, we said, unjustifiably effected a substantial deprivation. It viewed people one-dimensionally (as servicemen) when a finer perception could readily have been achieved by assessing a serviceman's claim to residency on an individualized basis.
20
'We recognize that special problems may be involved in determining whether servicemen have actually acquired a new domicile in a State for franchise purposes. We emphasize that Texas is free to take reasonable and adequate steps, as have other States, to see that all applicants for the vote actually fulfill the requirements of bona fide residence. But (the challenged) provision goes beyond such rules.
21
'(T)he presumption here created is . . . definitely conclusive—incapable of being overcome by proof of the most positive character." Id., at 96, 85 S.Ct., at 780.
22
'All servicemen not residents of Texas before induction,' we concluded, 'come within the provision's sweep. Not one of them can ever vote in Texas, no matter' what their individual qualifications. Ibid. We found such a situation repugnant to the Equal Protection Clause.
23
Despite Bell and Carrington, it may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley's. The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency.8 Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.
24
Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.9
25
Bell v. Burson held that the State could not, while purporting to be concerned with fault in suspending a driver's license, deprive a citizen of his license without a hearing that would assess fault. Absent fault, the State's declared interest was so attenuated that administrative convenience was insufficient to excuse a hearing where evidence of fault could be considered. That drivers involved in accidents, as a statistical matter, might be very likely to have been wholly or partially at fault did not foreclose hearing and proof in specific cases before licenses were suspended.
26
We think the Due Process Clause mandates a similar result here. The State's interest in caring for Stanley's children is de minimis if Stanley is shown to be a fit father. It insists on presuming rather than proving Stanley's unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing when the issue at stake is the dismemberment of his family.
III
27
The State of Illinois assumes custody of the children of married parents, divorced parents, and unmarried mothers only after a hearing and proof of neglect. The children of unmarried fathers, however, are declared dependent children without a hearing on parental fitness and without proof of neglect. Stanley's claim in the state courts and here is that failure to afford him a hearing on his parental qualifications while extending it to other parents denied him equal protection of the laws. We have concluded that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. It follows that denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause.10
28
The judgment of the Supreme Court of Illinois is reversed and the case is remanded to that court for proceedings not inconsistent with this opinion. It is so ordered.
29
Reversed and remanded.
30
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
31
Mr. Justice DOUGLAS joins in Parts I and II of this opinion.
32
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN concurs, dissenting.
33
The only constitutional issue raised and decided in the courts of Illinois in this case was whether the Illinois statute that omits unwed fathers from the definition of 'parents' violates the Equal Protection Clause. We granted certiorari to consider whether the Illinois Supreme Court properly resolved that equal protection issue when it unanimously upheld the statute against petitioner Stanley's attack.
34
No due process issue was raised in the state courts; and no due process issue was decided by any state court. As Mr. Justice Douglas said for this Court in State Farm Mutual Automobile Ins. Co. v. Duel, 324 U.S. 154, 160, 65 S.Ct. 573, 577, 89 L.Ed. 812 (1945), 'Since the (state) Supreme Court did not pass on the question, we may not do so.' We had occasion more recently to deal with this aspect of the jurisdictional limits placed upon this Court by 28 U.S.C. § 1257 when we decided Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). Having rejected the claim that Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), should be retroactively applied to invalidate petitioner Hill's conviction on the ground that a search incident to arrest was overly extensive in scope, the Court noted Hill's additional contention that his personal diary, which was one of the items of evidence seized in that search, should have been excluded on Fifth Amendment grounds as well. Mr. Justice White, in his opinion for the Court, concluded that we lacked jurisdiction to consider the Fifth Amendment contention:
35
'Counsel for (the petitioner) conceded at oral argument that the Fifth Amendment issue was not raised at trial. Nor was the issue raised, briefed or argued in the California appellate courts. (Footnote omitted.) The petition for certiorari likewise ignored it. In this posture of the case, the question, although briefed and argued here, is not properly before us.' 401 U.S., at 805, 91 S.Ct., at 1111.
36
In the case now before us, it simply does not suffice to say, as the Court in a footnote does say, that 'we dispose of the case on the constitutional premise raised below, reaching the result by a method of analysis readily available to the state court.' Ante, at 658 n. 10. The Court's method of analysis seems to ignore the strictures of Justices Douglas and White, but the analysis is clear: the Court holds sua sponte that the Due Process Clause requires that Stanley, the unwed biological father, be accorded a hearing as to his fitness as a parent before his children are declared wards of the state court; the Court then reasons that since Illinois recognizes such rights to due process in married fathers, it is required by the Equal Protection Clause to give such protection to unmarried fathers. This 'method of analysis' is, of course, no more or less than the use of the Equal Protection Clause as a shorthand condensation of the entire Constitution: a State may not deny any constitutional right to some of its citizens without violating the Equal Protection Clause through its failure to deny such rights to all of its citizens. The limits on this Court's jurisdiction are not properly expandable by the use of such semantic devices as that.
37
Not only does the Court today use dubious reasoning in dealing with limitations upon its jurisdiction, it proceeds as well to strike down the Illinois statute here involved by 'answering' arguments that are nowhere to be found in the record or in the State's brief—or indeed in the oral argument. I have been unable, for example, to discover where or when the State has advanced any argument that 'it is unnecessary to hold individualized hearings to determine whether particular fathers are in fact unfit parents before they are separated from their children.' Ante, at 653. Nor can I discover where the State has 'argu(ed) that Stanley and all other unmarried fathers can reasonably be presumed to be unqualified to raise their children.' Ante, at 653. Or where anyone has even remotely suggested the 'argu(ment) that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley's.' Ante, at 656. On the other hand, the arguments actually advanced by the State are largely ignored by the Court.1
38
All of those persons in Illinois who may have followed the progress of this case will, I expect, experience no little surprise at the Court's opinion handed down today. Stanley will undoubtedly be surprised to find that he has prevailed on an issue never advanced by him. The judges who dealt with this case in the state courts will be surprised to find their decisions overturned on a ground that never considered. And the legislators and other officials of the State of Illinois, as well as those attorneys of the State who are familiar with the statutory provisions here at issue, will be surprised to learn for the first time that the Illinois Juvenile Court Act establishes a presumption that unwed fathers are unfit. I must confess my own inability to find any such presumption in the Illinois Act. Furthermore, from the record of the proceedings in the Juvenile Court of Cook County in this case, I can only conclude that the judge of that court was unaware of any such presumption, for he clearly indicated that Stanley's asserted fatherhood of the children would stand him in good stead, rather than prejudice him, in any adoption or guardianship proceeding. In short, far from any intimations of hostility toward unwed fathers, that court gave Stanley 'merit points' for his acknowledgment of paternity and his past assumption of at least marginal responsibility for the children.2
39
In regard to the only issue that I consider properly before the Court, I agree with the State's argument that the Equal Protection Clause is not violated when Illinois gives full recognition only to those father-child relationships that arise in the context of family units bound together by legal obligations arising from marriage or from adoption proceedings. Quite apart from the religious or quasi-religious connotations that marriage has—and has historically enjoyed—for a large proportion of this Nation's citizens, it is in law an essentially contractual relationship, the parties to which have legally enforceable rights and duties, with respect both to each other and to any children born to them. Stanley and the mother of these children never entered such a relationship. The record is silent as to whether they ever privately exchanged such promises as would have bound them in marriage under the common law. See Cartwright v. McGown, 121 Ill. 388, 398, 12 N.E. 737, 739 (1887). In any event, Illinois has not recognized common-law marriages since 1905. Ill.Rev.Stat., c. 89, § 4. Stanley did not seek the burdens when he could have freely assumed them.
40
Where there is a valid contract of marriage, the law of Illinois presumes that the husband is the father of any child born to the wife during the marriage; as the father, he has legally enforceable rights and duties with respect to that child. When a child is born to an unmarried woman, Illinois recognizes the readily identifiable mother, but makes no presumption as to the identity of the biological father. It does, however, provide two ways, one voluntary and one involuntary, in which that father may be identified. First, he may marry the mother and acknowledge the child as his own; this has the legal effect of legitimating the child and gaining for the father full recognition as a parent. Ill.Rev.Stat., c. 3, § 12, subd. 8. Second, a man may be found to be the biological father of the child pursuant to a paternity suit initiated by the mother; in this case, the child remains illegitimate, but the adjudicated father is made liable for the support of the child until the latter attains age 18 or is legally adopted by another. Ill.Rev.Stat., c. 106 3/4, § 52.
41
Stanley argued before the Supreme Court of Illinois that the definition of 'parents,' set out in Ill.Rev.Stat., c. 37, § 701 14, as including 'the father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, (or) . . . any adoptive parent,'3 violates the Equal Protection Clause in that it treats unwed mothers and unwed fathers differently. Stanley then enlarged upon his equal protection argument when he brought the case here; he argued before this Court that Illinois is not permitted by the Equal Protection Clause to distinguish between unwed fathers and any of the other biological parents included in the statutory definition of legal 'parents.'
42
The Illinois Supreme Court correctly held that the State may constitutionally distinguish between unwed fathers and unwed mothers. Here, Illinois' different treatment of the two is part of that State's statutory scheme for protecting the welfare of illegitimate children. In almost all cases, the unwed mother is readily identifiable, generally from hospital records, and alternatively by physicians or others attending the child's birth. Unwed fathers, as a class, are not traditionally quite so easy to identify and locate. Many of them either deny all responsibility or exhibit no interest in the child or its welfare; and, of course, many unwed fathers are simply not aware of their parenthood.
43
Furthermore, I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male's often casual encounter. This view is reinforced by the observable fact that most unwed mothers exhibit a concern for their offspring either permanently or at least until they are safely placed for adoption, while unwed fathers rarely burden either the mother or the child with their attentions or loyalties. Centuries of human experience buttress this view of the realities of human conditions and suggest that unwed mothers of illegitimate children are generally more dependable protectors of their children than are unwed fathers. While these, like most generalizations, are not without exceptions, they nevertheless provide a sufficient basis to sustain a statutory classification whose objective is not to penalize unwed parents but to further the welfare of illegitimate children in fulfillment of the State's obligations as parens patriae.4
44
Stanley depicts himself as a somewhat unusual unwed father, namely, as one who has always acknowledged and never doubted his fatherhood of these children. He alleges that he loved, cared for, and supported these children from the time of their birth until the death of their mother. He contends that he consequently must be treated the same as a married father of legitimate children. Even assuming the truth of Stanley's allegations, I am unable to construe the Equal Protection Clause as requiring Illinois to tailor its statutory definition of 'parents' so meticulously as to include such unusual unwed fathers, while at the same time excluding those unwed, and generally unidentified, biological fathers who in no way share Stanley's professed desires.
45
Indeed, the nature of Stanley's own desires is less than absolutely clear from the record in this case. Shortly after the death of the mother, Stanley turned these two children over to the care of a Mr. and Mrs. Ness; he took no action to gain recognition of himself as a father, through adoption, or as a legal custodian, through a guardianship proceeding. Eventually it came to the attention of the State that there was no living adult who had any legally enforceable obligation for the care and support of the children; it was only then that the dependency proceeding here under review took place and that Stanley made himself known to the juvenile court in connection with these two children.5 Even then, however, Stanley did not ask to be charged with the legal responsibility for the children. He asked only that such legal responsibility be given to no one else. He seemed, in particular, to be concerned with the loss of the welfare payments he would suffer as a result of the designation of others as guardians of the children.
46
Not only, then, do I see no ground for holding that Illinois' statutory definition of 'parents' on its face violates the Equal Protection Clause; I see no ground for holding that any constitutional right of Stanley has been denied in the application of that statutory definition in the case at bar.
47
As Mr. Justice Frankfurter once observed, 'Invalidating legislation is serious business. . . .' Morey v. Doud, 354 U.S. 457, 474, 77 S.Ct. 1344, 1354, 1 L.Ed.2d 1485 (1957) (dissenting opinion). The Court today pursues that serious business by expanding its legitimate jurisdiction beyond what I read in 28 U.S.C. § 1257 as the permissible limits contemplated by Congress. In doing so, it invalidates a provision of critical importance to Illinois' carefully drawn statutory system governing family relationships and the welfare of the minor children of the State. And in so invalidating that provision, it ascribes to that statutory system a presumption that is simply not there and embarks on a novel concept of the natural law for unwed fathers that could well have strange boundaries as yet undiscernible.
1
Uncontradicted testimony of Peter Stanley, App. 22.
2
Only two children are involved in this litigation.
3
The Illinois Supreme Court's opinion is not at all contrary to this conclusion. That court said: '(T)he trial court's comments clearly indicate the court's willingness to consider a future request by the father for custody and guardianship.' 45 Ill.2d 132, 135, 256 N.E.2d 814, 816. (Italics added.) See also the comment of Stanley's counsel on oral argument: 'If Peter Stanley could have adopted his children, we would not be here today.' Tr. of Oral Arg. 7.
4
Even while refusing to label him a 'legal parent,' the State does not deny that Stanley has a special interest in the outcome of these proceedings. It is undisputed that he is the father of these children, that he lived with the two children whose custody is challenged all their lives, and that he has supported them.
5
Illinois says in its brief, at 21—23,
'(T)he only relevant consideration in determining the propriety of governmental intervention in the raising of children is whether the best interests of the child are served by such intervention.
'In effect, Illinois has imposed a statutory presumption that the best interests of a particular group of children necessitates some governmental supervision in certain clearly defined situations. The group of children who are illegitimate are distinguishable from legitimate children not so much by their status at birth as by the factual differences in their upbringing. While a legitimate child usually is raised by both parents with the attendant familial relationships and a firm concept of home and identity, the illegitimate child normally knows only one parent—the mother. . . .
'. . . The petitioner has premised his argument upon particular factual circumstances—a lengthy relationship with the mother . . . a familial relationship with the two children, and a general assumption that this relationship approximates that in which the natural parents are married to each other.
'. . . Even if this characterization were accurate (the record is insufficient to support it) it would not affect the validity of the statutory definition of parent. . . . The petitioner does not deny that the children are illegitimate. The record reflects their natural mother's death. Given these two factors, grounds exist for the State's intervention to ensure adequate care and protection for these children. This is true whether or not this particular petitioner assimilates all or none of the normal characteristics common to the classification of fathers who are not married to the mothers of their children.'
See also Illinois' Brief 23 ('The comparison of married and putative fathers involves exclusively factual differences. The most significant of these are the presence or absence of the father from the home on a day-to-day basis and the responsibility imposed upon the relationship'), id., at 24 (to the same effect), id., at 31 (quoted below in n. 6), id., at 24—26 (physiological and other studies are cited in support of the proposition that men are not naturally inclined to childrearing), and Tr. of Oral Arg. 31 ('We submit that both based on history or (sic) culture the very real differences . . . between the married father and the unmarried father, in terms of their interests in children and their legal responsibility for their children, that the statute here fulfills the compelling governmental objective of protecting children . . .').
6
The State speaks of 'the general disinterest of putative fathers in their illegitimate children' (Brief 8) and opines that '(i)n most instances the natural father is a stranger to his children.' Brief 31.
7
See In re T., 8 Mich.App. 122, 154 N.W.2d 27 (1967). There a panel of the Michigan Court of Appeals in unanimously affirming a circuit court's determination that the father of an illegitimate son was best suited to raise the boy, said:
'The appellants' presentation in this case proceeds on the assumption that placing Mark for adoption is inherently preferable to rearing by his father, that uprooting him from the family which he knew from birth until he was a year and a half old, secretly institutionalizing him and later transferring him to strangers is so incontrovertibly better that no court has the power even to consider the matter. Hardly anyone would even suggest such a proposition if we were talking about a child born in wedlock.
'We are not aware of any sociological data justifying the assumption that an illegitimate child reared by his natural father is less likely to receive a proper upbringing than one reared by his natural father who was at one time married to his mother, or that the stigma of illegitimacy is so pervasive it requires adoption by strangers and permanent termination of a subsisting relationship with the child's father.' Id., at 146, 154 N.W.2d, at 39.
8
Cf. Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). 'Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. . . . (But to) give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.' Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780 (1965), teaches the same lesson. '. . . States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State. Oyama v. (State of) California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249. By forbidding a soldier ever to controvert the presumption of nonresidence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment.'
9
We note in passing that the incremental cost of offering unwed fathers an opportunity for individualized hearings on fitness appears to be minimal. If unwed fathers, in the main, do not care about the disposition of their children, they will not appear to demand hearings. If they do care, under the scheme here held invalid, Illinois would admittedly at some later time have to afford them a properly focused hearing in a custody or adoption proceeding.
Extending opportunity for hearing to unwed fathers who desire and claim competence to care for their children creates no constitutional or procedural obstacle to foreclosing those unwed fathers who are not so inclined. The Illinois law governing procedure in juvenile cases. Ill.Rev.Stat., c. 37, § 704—1 et seq., provides for personal service, notice by certified mail, or for notice by publication when personal or certified mail service cannot be had or when notice is directed to unknown respondents under the style of 'All whom it may Concern.' Unwed fathers who do not promptly respond cannot complain if their children are declared wards of the State. Those who do respond retain the burden of proving their fatherhood.
10
Predicating a finding of constitutional invalidity under the Equal Protection Clause of the Fourteenth Amendment on the observation that a State has accorded bedrock procedural rights to some, but not to all similarly situated, is not contradictory to our holding in Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In that case a due process, rather than an equal protection, claim was raised in the state courts. The federal courts were, in our opinion, barred from reversing the state conviction on grounds of contravention of the Equal Protection Clause when that clause had not been referred to for consideration by the state authorities. Here, in contrast, we dispose of the case on the constitutional premise raised below, reaching the result by a method of analysis readily available to the state court.
For the same reason the strictures of Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1161, 22 L.Ed.2d 398 (1969), and Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), have been fully observed.
1
In reaching out to find a due process issue in this case, the Court seems to have misapprehended the entire thrust of the State's argument. When explaining at oral argument why Illinois does not recognize the unwed father, counsel for the State presented two basic justifications for the statutory definition of 'parents' here at issue. See Tr. of Oral Arg. 25—26. First, counsel noted that in the case of a married couple to whom a legitimate child is born, the two biological parents have already 'signified their willingness to work together' in caring for the child by entering into the marriage contract; it is manifestly reasonable, therefore, that both of them be recognized as legal parents with rights and responsibilities in connection with the child. There has been no legally cognizable signification of such willingness on the part of unwed parents, however, and 'the male and female . . . may or may not be willing to work together towards the common end of child rearing.' To provide legal recognition to both of them as 'parents' would often be 'to create two conflicting parties competing for legal control of the child.'
The second basic justification urged upon us by counsel for the State was that, in order to provide for the child's welfare, 'it is necessary to impose upon at least one of the parties legal responsibility for the welfare of (the child), and since necessarily the female is present at the birth of the child and identifiable as the mother.' the State has elected the unwed mother, rather than the unwed father, as the biological parent with that legal responsibility.
It was suggested to counsel during an ensuing colloquy with the bench that identification seemed to present no insuperable problem in Stanley's case and that, although Stanley had expressed an interest in participating in the rearing of the children, 'Illinois won't let him.' Counsel replied that, on the contrary, 'Illinois encourages him to do so if he will accept the legal responsibility for those children by a formal proceeding comparable to the marriage ceremony, in which he is evidencing through a judicial proceeding his desire to accept legal responsibility for the children.' Stanley, however, 'did not ask for custody. He did not ask for legal responsibility. He only objected to someone (else) having legal control over the children.' Tr. of Oral Arg. 38, 39—40.
2
The position that Stanley took at the dependency proceeding was not without ambiguity. Shortly after the mother's death, he placed the children in the care of Mr. and Mrs. Ness, who took the children into their home. The record is silent as to whether the Ness household was an approved foster home. Through Stanley's act, then, the Nesses were already the actual custodians of the children. At the dependency proceeding, he resisted only the court's designation of the Nesses as the legal custodians; he did not challenge their suitability for that role, nor did he seek for himself either that role or any other role that would have imposed legal responsibility upon him. Had he prevailed, of course, the status quo would have obtained: the Nesses would have continued to play the role of actual custodians until either they or Stanley acted to alter the informal arrangement, and there would still have been no living adult with any legally enforceable obligation for the care and support of the infant children.
3
The Court seems at times to ignore this statutory definition of 'parents,' even though it is precisely that definition itself whose constitutionality has been brought into issue by Stanley. In preparation for finding a purported similarity between this case and Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the Court quotes the legislatively declared aims of the Juvenile Court Act to 'strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal.' (Emphasis added.) The Court then goes on to find a 'self-contradiction' between that stated aim and the Act's nonrecognition of unwed fathers. Ante, at 653. There is, of course, no such contradiction. The word 'parent' in the statement of legislative purpose obviously has the meaning given to it by the definitional provision of the Act.
4
When the marriage between the parents of a legitimate child is dissolved by divorce or separation, the State, of course, normally awards custody of the child to one parent or the other. This is considered necessary for the child's welfare, since the parents are no longer legally bound together. The unmarried parents of an illegitimate child are likewise not legally bound together. Thus, even if Illinois did recognize the parenthood of both the mother and father of an illegitimate child, it would, for consistency with its practice in divorce proceedings, be called upon to award custody to one or the other of them, at least once it had by some means ascertained the identity of the father.
5
As the majority notes, ante, at 646, Joan Stanley gave birth to three children during the 18 years Peter Stanley was living 'intermittently' with her. At oral argument, we were told by Stanley's counsel that the oldest of these three children had previously been declared a ward of the court pursuant to a neglect proceeding that was 'proven against' Stanley at a time, apparently, when the juvenile court officials were under the erroneous impression that Peter and Joan Stanley had been married. Tr. of Oral Arg. 19.
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|
405 U.S. 669
92 S.Ct. 1232
31 L.Ed.2d 569
Laverne CARTER et al., Appellants,v.Wayne STANTON et al.
No. 70—5082.
Argued Nov. 8, 1971.
Decided April 3, 1972.
Jon D. Noland, Indianapolis, Ind., for appellants.
Mark Peden, Indianapolis Ind., for appellee William Sterrett.
Robert W. Geddes, Indianapolis, Ind., for appellee, Wayne Stanton.
PER CURIAM.
1
Appellants are women who contend that an Indiana welfare regulation governing eligibility for state and federal aid to dependent children contravenes the Fourteenth Amendment and the Social Security Act, 49 Stat. 627, as amended, 42 U.S.C. § 602(a)(10). The regulation provides that a person who seeks assistance due to separation or the desertion of a spouse is not entitled to aid until the spouse had been continuously absent for at least six months, unless there are exceptional circumstances of need. Burns' Ind.Admin.Rules & Regs. (52—1001)—2 (1967). Appellants brought this action in the United States District Court for the Southern District of Indiana, basing jurisdiction on 42 U.S.C. § 1983 and 28 U.S.C. § 1343, and seeking both declaratory and injunctive relief. A three-judge court was convened pursuant to 28 U.S.C. § 2281. After a 'preliminary hearing on defendants" motion to dismiss 'at which the court' received evidence upon which to resolve the matter, the court dismissed the complaint on the ground that none of the claimants had exercised her right under Indiana law to appeal from a county decision denying welfare assistance, Burns' Ind.Admin.Rules & Regs. § (52—1211)—1 (Supp.1970), and therefore appellants had failed to exhaust administrative remedies. In the alternative, the court held that the pleadings did not present a substantial federal question der 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202. Carter v. Stanton, No. IP 70—C—124 (SD Ind., Dec. 11, 1970). This direct appeal followed and we noted probable jurisdiction. 402 U.S. 994, 91 S.Ct. 2180, 29 L.Ed.2d 159 (1971).
2
Contrary to the State's view, our jurisdiction of this appeal under 28 U.S.C. § 1253 is satisfactorily established. Sullivan v. Alabama State Bar, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 749, aff'g 295 F.Supp. 1216 (MD Ala.1969); Whitney Stores, Inc. v. Summerford, 393 U.S. 9, 89 S.Ct. 44, 21 L.Ed.2d 9, aff'g 280 F.Supp. 406 (S.C 1968). Also, the District Court plainly had jurisdiction of this case pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). Damico, an indistinguishable case, likewise establishes that exhaustion is not required in circumstances such as those presented here. Cf. McNeese v. Board of presented here. Cf. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
3
Finally, if the court's characterization of the federal question presented as insubstantial was based on the face of the complaint, as it seems to have been, it was error. Cf. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Damico v. California, supra. But it appears that at the hearing on the motion to dismiss, which was based in part on the asserted failure 'to state a claim upon which relief can be granted' (App. 19), matters outside the pleadings were presented and not excluded by the court. The court was therefore required by Rule 12(b) of the Federal Rules of Civil Procedure to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56. Under Rule 56, summary judgment cannot be granted unless there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. If this is the course the District Court followed, its order is opaque and unilluminating as to either the relevant facts or the law with respect to the merits of appellants' claim. In this posture of the case, we are unconvinced that summary judgment was properly entered. The judgment of the District Court is therefore vacated and the case is remanded to that court for proceedings consistent with this opinion.
4
Judgment vacated and case remanded.
5
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
6
Mr. Justice DOUGLAS.
7
I agree that both this Court and the District Court have jurisdiction to entertain this case and that the appellants were not required to exhaust administrative remedies before launching their challenge. But, although the District Court should have made more complete findings of fact and conclusions of law, I would not remand simply on this score but would hold that the appellants are entitled to judgment.
8
The problem is simple and should be disposed of here.
9
The federal Act defines a 'dependent child' as a 'needy child . . . who has been deprived of parental support or care by reason of . . . continued absence from the home.'1 Indiana by its Board of Public Welfare has adopted the federal definition of 'needy child.'2
10
The term 'continued absence from the home' is not defined in the federal Act, though HEW recommends 'that no period of time be specified as a basis for establishing continued absence as an eligibility factor.'3 Indiana, however, has established by rule a definition of 'continued absence' in case of 'desertion or separation.' In those two instances it makes 'continued absence' mean that 'the absence shall have been continuous' for at least six months,4 except when the department of welfare finds there are 'exceptional circumstances of need.'
11
A dependent child gets aid immediately and continuously in case the parent is incarcerated or in case the parent is inducted into the armed services. The six-month rule creates a separate class of needy children who by the federal standard may be as 'needy' as those in the other two categories.
12
The federal Act directs that 'aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.'5 The federal regulation requires decisions on applications to be made 'promptly' and 'not in excess of' 30 days and that the assistance check or notification of denial be mailed within that period.6 As noted, the federal Act contains no waiting period to establish 'continued absence.' And the HEW Handbook, already referred to,7 states as respects 'continued absence' that '(a) child comes within this interpretation if for any reason his parent is absent.'8
13
Here, as in California Human Resources Dept. v. Java, 402 U.S. 121, 135, 91 S.Ct. 1347, 1349, 28 L.Ed.2d 666, the State's program 'tends to frustrate' the Social Security Act. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, 'establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.' Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448. While a State has a legitimate interest in preventing fraud, there are, as we said in Shapiro v. Thompson, 394 U.S. 618, 637, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600, 'less drastic means' available 'to minimize that hazard.' Rather than remanding for a lower court determination for the law of the case, the merits ought to be decided now inasmuch as (a) the facts are essentially undisputed, (b) the appellants' claim based on the federal Act is plainly correct, and (c) further litigation would work a hardship upon welfare recipients affected by the Indiana rule. See generally Note, Individualized Criminal Justice In The Supreme Court: A Study of Dispositional Decision Making, 81 Harv.L.Rev. 1260 (1968); Bell, Appellate Court Opinions And The Remand Process, 2 Ga.L.Rev. 526, 536 (1968).
14
The Indiana regulation so plainly collides with the federal Act that I would end this frivolous defense to this welfare litigation by deciding the merits and reversing by reason of the Supremacy Clause.
1
49 Stat. 629, as amended, 42 U.S.C. § 606(a).
2
Ind. State Bd. of Pub. Welfare Reg. 2—400(a).
3
Dept. of Health, Education, & Welfare Handbook of Public Assistance Administration, pt. IV, § 3422.5 (1968).
4
Burns' Ind.Admin.Rules & Regs. (52—1001)—2 (1967): 'When the continued absence is due to desertion or separation, the absence shall have been continuous for a period of at least six (6) months prior to the date of application for assistance to dependent children; except that under exceptional circumstances of need and where it is determined that the absence of a parent is actual and bona fide an application may be filed and a child may be considered immediately eligible upon a special finding of the county department of public welfare setting forth the facts and reasons for such action.'
5
42 U.S.C. § 602(a)(10).
6
45 CFR § 206.10(3), 36 Fed.Reg. 3864.
7
N. 3, supra.
8
Part IV, § 3422.2, of the Handbook provides:
'Continued absence of the parent from the home constitutes the reason for deprivation of parental support or care under the following circumstances:
'1. When the parent is out of the home;
'2. When the nature of the absence is such as either to interrupt or to terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child; and
'3. When the known or indefinite duration of the absence precludes counting on the parent's performance of his function in planning for the present support or care of the child.
'A child comes within this interpretation if for any reason his parent is absent, and this absence interferes with the child's receiving maintenance, physical care, or guidance from his parent, and precludes the parent's being counted on for support or care of the child. For example: The child's father has left home, without forewarning his family, and the mother really does not know why he left home, nor when or whether he will return.'
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|
31 L.Ed.2d 612
92 S.Ct. 1344
405 U.S. 699
T. R. GRUBBS dba T. R. Grubbs Tire & Appliance, Petitioner,v.GENERAL ELECTRIC CREDIT CORPORATION.
No. 71—257.
Argued March 23, 1972.
Decided April 18, 1972.
Syllabus
Respondent, a New York corporation, brought suit for $66,000 on a promissory note against petitioner, a citizen of Texas, in a Texas state court, and petitioner filed a cross-action for $25,000 seeking damages for slander, conversion, and conspiracy in restraint of trade. A later cross-action included the United States, which held a judgment against petitioner, as a party defendant. The action was removed to the Federal District Court for trial of the issues, on petition of the United States. The District Court, without objection, considered all the issues and awarded petitioner a $20,000 judgment against respondent. The Court of Appeals, sua sponte, held that the District Court lacked jurisdiction and ordered the case returned to the state court. Held: Where after removal a case is tried on the merits without objection and the federal court enters a judgment, the issue on appeal is not whether the case was properly removed, but whether the District Court would have had original jurisdiction if the case had been filed in that court. Here there was diversity jurisdiction in the District Court if the action had been brought there originally. Pp. 702—706.
447 F.2d 286, reversed and remanded.
Bill J. Cornelius, Jefferson, Tex., for petitioner.
Hubert D. Johnson, Dallas, Tex., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner recovered a money judgment against respondent in the United States District Court for the Eastern District of Taxes, and respondent appealed to the United States Court of Appeals for the Fifth Circuit. That court held the District Court lacked jurisdiction of the case, and reversed the judgment with instructions that the case be remanded to the Texas state court whence it had been removed. This Court granted certiorari, 404 U.S. 983, 92 S.Ct. 446, 30 L.Ed.2d 366. We have concluded that, whether or not the case was properly removed, the District Court did have jurisdiction of the parties at the time it entered judgment. Under such circumstances the validity of the removal procedure followed may not be raised for the first time on appeal, and we accordingly reverse the judgment of the Court of Appeals.
2
In September 1964 respondent General Electric Credit Corp. (GECC) commenced a lawsuit against petitioner Grubbs by the filing of a petition in the Texas state trial court. The petition sought recovery upon a promissory note claimed to have been previously executed by petitioner to GECC in the principal sum of some $66,000. Two years later, petitioner Grubbs filed an amended answer and 'cross-action,' seeking damages from respondent and from the General Electric Co. (GE) by reason of alleged slander, conversion, and conspiracy in restraint of trade.1 GE appeared in the state court in answer to petitioner's cross-action against it, and respondent likewise filed an answer.
3
The following year, petitioner filed a second amended answer and cross-actions, one of which included the United States as an added party defendant. The basis asserted by petitioner for naming the United States as a party was the fact that the latter held an outstanding judgment against petitioner, as did several of his other creditors, and petitioner prayed the state court to determine priorities among the judgment liens. Responding to the gathering momentum of this long-dormant lawsuit, the United States then filed in the United States District Court for the Eastern District of Texas a petition for removal of the action to that court 'for trial and determination upon the merits of all issues or claims therein, as is provided by Title 28, Section(s) 1444, 1441(c) and 1446.'
4
All of the parties treated the effect of the removal petition as placing before the District Court not only the claim by petitioner against the United States for adjudication of lien priorities, but also respondent's claim against petitioner on the promissory note and petitioner's claim for damages against respondent based on conspiracy to restrain trade and tortious interference with business relations.
5
At no time following the filing of the removal petition by the United States did respondent, by motion to remand or otherwise, object to the District Court's taking jurisdiction of the entire 'action.' In that court, the United States answered petitioner's cross-action and filed its own 'cross-action' against respondent and GE, asserting that the latter two had maliciously interfered with the contractual relationship between petitioner and the United States, and seeking damages as a result of this alleged wrong.
6
The case was ultimately tried to the District Court without a jury. That court held against respondent on its promissory-note claim, held in favor of petitioner on his claim against respondent for tortious interference, and awarded $20,000 damages thereon, and dismissed the claims of petitioner and the United States against GE and the claim of the United States against respondent. The court further found that it was unable to determine the priority of liens as between the various parties. Judgment was accordingly entered in favor of petitioner Grubbs and against respondent GECC in the amount of $20,000, and providing that the remaining parties take nothing by their actions.
7
GECC appealed to the Court of Appeals, which on its own motion questioned the jurisdiction of the District Court. After calling for supplemental briefs on the issue, the Court of Appeals decided that the only conceivable basis for jurisdiction of the action in the District Court was the removal by the United States purportedly in accordance with 28 U.S.C. § 1444. That court held, however, that petitioner's 'interpleader' of the United States and other parties for a determination of priority of judgment liens was a spurious basis for joining the United States as a party defendant under 28 U.S.C. § 2410. Therefore, in the view of that court, the provisions of 28 U.S.C. § 1444, authorizing removal by the United States of an action brought under 28 U.S.C. § 2410, were not available to the Government. Concluding, thus, that the removal had not been authorized by statute, the Court of Appeals decided that there was no other basis for the District Court's jurisdiction of the action, and that the case should be remanded to the state court in which it had originated.
8
Longstanding decisions of this Court make clear, however, that where after removal a case is tried on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction of the case had it been filed in that court. In Baggs v. Martin, 179 U.S. 206, 21 S.Ct. 109, 45 L.Ed. 155 (1900), a receiver appointed by a federal court was sued in state court and removed the action to the federal court that appointed him. Following judgment on the merits, the receiver sought reversal of the judgment on the ground that the case was not properly removable from the state court. Since the federal court that had earlier appointed the receiver would have had original jurisdiction of an action against him, this Court held that he could not then object to the removal of the case when removal had come as a result of his own action.
9
Mackay v. Uinta Development Co., 229 U.S. 173, 33 S.Ct. 638, 57 L.Ed. 1138 (1913), dealt with an action that had been commenced in the Wyoming state court between two citizens of different States. Plaintiff's claim was for less than the jurisdictional amount, but defendant's counterclaim exceeded the jurisdictional amount. The case was removed to federal court without objection by either party, and there tried on the merits. When the losing party later sought to upset a judgment against him on the merits because of failure to comply with the removal statutes, this Court rejected the claim, saying:
10
'(R)egardless of the manner in which the case was brought or how the attendance of the parties in the United States court was secured, there was presented to the Circuit Court a controversy between citizens of different States in which the amount claimed by one non-resident was more than $2,000, exclusive of interest and costs. As the court had jurisdiction of the subject-matter the parties could have been realigned by making Mackay plaintiff and the Development Company defendant, if that had been found proper. But if there was any irregularity in docketing the case or in the order of the pleadings such an irregularity was waivable, and neither it nor the method of getting the parties before the court operated to deprive it of the power to determine the cause.' Id., at 176—177, 33 S.Ct., at 639.
11
Applying this doctrine to the case before us, we note that the parties concede in their briefs that petitioner is a citizen of Texas, and that respondent and GE are citizens of New York for purposes of diversity jurisdiction. This concession is supported by excerpts from discovery proceedings included in the record. Respondent GECC in its pleading initiating the action in the state trial court sought recovery of $66,000 from petitioner Grubbs; Grubbs in his state court cross-action sought recovery of $25,000 from respondent. There was thus diversity jurisdiction in the Federal District Court under 28 U.S.C. § 1332 if the action had been brought in that court originally.
12
In American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), this Court held that the rule enunciated in Baggs v. Martin, supra, had no application to a case where at the time of judgment citizens of the same State were on both sides of the litigation. There the state court plaintiff had joined two insurance carriers and their local agent in an action to recover for a fire loss. Finn held that the dispute between the plaintiff and the insurance carriers was not a 'separate and independent claim or cause of action' under 28 U.S.C. § 1441(c), and that therefore removal of the action to a federal court by one of the carriers was unauthorized by statute. Since complete diversity did not obtain even as of the date of judgment, and since there was no other basis for federal jurisdiction, this Court reversed the judgment of the Court of Appeals, which had held the case properly removable.
13
In this case there were, of course, parties other than petitioner, respondent, and GE, both at the time of removal and at the time of judgment. Indeed, the case might be said to abound in parties. Petitioner in his 'cross-action' against the United States for determination of lien priorities asserted a claim against an additional party that had virtually no relationship to the claim or relief sought by petitioner against respondent, or that sought by respondent against petitioner.2
14
While, of course, Texas is free to establish such rules of practice for her own courts as she chooses, the removal statutes and decisions of this Court are intended to have uniform nationwide application. 'Hence the Act of Congress must be construed as setting up its own criteria, irrespective of local law, for determining in what instances suits are to be removed from the state to the federal courts.' Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 104, 61 S.Ct. 868, 870, 85 L.Ed. 1214 (1941). The rule enunciated in Baggs v. Martin, supra, Mackay v. Uinta Development Co., supra, and American Fire & Casualty Co. v. Finn, supra, likewise lays down a doctrine that is intended to have uniform nationwide application. However many parties, cross-claims, or indeed lawsuits Texas practice may permit to be joined in one 'case' or one 'action,' the requirement of Finn was applied in the context of a two-sided lawsuit. We conclude that the requirement that jurisdiction exist at the time of judgment, stated in that case, is satisfied here where the District Court had jurisdiction to render judgment as between the plaintiff-counter-defendant, the defendant-counterclaimant, and the additional counter-defendant. It would serve no purpose to require that in order to sustain jurisdiction in such a case, the prevailing party in the original two-sided litigation must go further and show that there was likewise jurisdiction as to virtually unrelated claims that the state court had permitted to be joined in the same lawsuit.
15
Finding that the necessary jurisdiction did exist, we reverse the judgment of the Court of Appeals and remand the case to that court for consideration of respondent's appeal on the merits.
16
Reversed.
1
The business relationship of the parties was as follows. Grubbs was a franchised dealer for GE, GECC provided financing for customers of Grubbs who purchased GE products.
2
Petitioner's state court cross-action against the United States was by its terms based on 'Rule 22 of the U.S. Rules of Civil Procedure.' However, under Fed.Rule Civ.Proc. 22, a defendant seeking interpleader must frame his pleading either as a cross-claim seeking relief against a co-party already in the lawsuit, or as a counterclaim seeking relief against the plaintiff. If the defendant states a claim seeking relief against such a co-party or plaintiff-counter-defendant, he may seek to bring in additional parties under the joinder provisions of rule 20. But the interpleader provided by Rule 22 must have some nexus with a party already in the case. As noted above, petitioner's interpleader claim sought no relief against any other party in the action.
| 89
|
405 U.S. 676
92 S.Ct. 1332
31 L.Ed.2d 593
Jonathan O. COLE, Superintendent, Boston State Hospital, et al., Appellants,v.Lucretia Peteros RICHARDSON.
No. 70—14.
Argued Nov. 16, 1971.
Decided April 18, 1972.
Syllabus
Appellee's employment at the Boston State Hospital was terminated when she refused to take the following oath required of all public employees in Massachusetts: 'I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method.' Appellee challenged the constitutionality of the oath statute. A three-judge District Court concluded that the attack on the 'uphold and defend' clause was foreclosed by Knight v. Board of Regents, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812, but found the 'oppose the overthrow' clause 'fatally vague and unspecific' and thus violative of the First Amendment. In response to a remand from this Court, the District Court concluded that the case was not moot, and reinstated its earlier judgment. Held: The Massachusetts oath is constitutionally permissible. Pp. 679—687.
(a) The oath provisions of the United States Constitution Art. II, § 1, cl. 8, and Art. VI, cl. 3, are not inconsistent with the First Amendment. Pp. 681—682.
(b) The District Court properly held that the 'uphold and defend' clause, a paraphrase of the constitutional oath, is permissible. P. 683.
(c) The 'oppose the overthrow' clause was not designed to require specific action to be taken in some hypothetical or actual situation but was to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes of our government. Pp. 683—685.
(d) The oath is not void for vagueness. Perjury, the sole punishment, requires a knowing and willful falsehood, which removes the danger of punishment without fair notice; and there is no problem of punishment inflicted by mere prosecution, as there has been no prosecution under the statute since its enactment nor has any been planned. Pp. 685—686.
(e) There is no constitutionally protected right to overthrow a government by force, violence, or illegal or unconstitutional means, and therefore there is no requirement that one who refuses to take Massachusetts' oath be granted a hearing for the determination of some other fact before being discharged. Pp. 686 687.
Reversed and remanded.
Walter H. Mayo, III, Asst. Atty. Gen., Boston, Mass., for appellants.
Stephen H. Oleskey, Boston, Mass., for appellee, pro hac vice, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
In this appeal we review the decision of the three-judge District Court holding a Massachusetts loyalty oath unconstitutional, 300 F.Supp. 1321.
2
The appellee, Richardson, was hired as a research sociologist by the Boston State Hospital. Appellant Cole is superintendent of the hospital. Soon after she entered on duty Mrs. Richardson was asked to subscribe to the oath required of all public employees in Massachusetts. The oath is as follows:
3
'I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.'1
4
Mrs. Richardson informed the hospital's personnel department that she could not take the oath as ordered because of her belief that it was in violation of the United States Constitution. Approximately 10 days later appellant Cole personally informed Mrs. Richardson that under state law she could not continue as an employee of the Boston State Hospital unless she subscribed to the oath. Again she refused. On November 25, 1968, Mrs. Richardson's employment was terminated and she was paid through that date.
5
In March 1969 Mrs. Richardson filed a complaint in the United States District Court for the District of Massachusetts. The complaint alleged the unconstitutionality of the statute, sought damages and an injunction against its continued enforcement, and prayed for the convocation of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284.
6
A three-judge District Court held the oath statute unconstitutional and enjoined the appellants from applying the statute to prohibit Mrs. Richardson from working for Boston State Hospital.2 The District Court found the attack on the 'uphold and defend' clause, the first part of the oath, foreclosed by Knight v. Board of Regents, 269 F.Supp. 339 (S.D.N.Y.1967), aff'd, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968). But it found that the 'oppose the overthrow' clause was 'fatally vague and unspecific,' and therefore a violation of First Amendment rights. The court granted the requested injunction but denied the claim for damages.
7
Appeals were then brought to this Court under 28 U.S.C. § 1253. We remanded for consideration of whether the case was moot in light of a suggestion that Mrs. Richardson's job had been filled in the interim. 397 U.S. 238, 90 S.Ct. 1099, 25 L.Ed.2d 275 (1970). On remand, the District Court concluded that Mrs. Richardson's position had not been filled and that the hospital stood ready to hire her for the continuing research project except for the problem of the oath. In an unreported opinion dated July 1, 1970, it concluded that the case was not moot and reinstated its earlier judgment. Appellants again appealed, and we noted probable jurisdiction. 403 U.S. 917, 91 S.Ct. 2224, 29 L.Ed.2d 694 (1971).
8
We conclude that the Massachusetts oath is constitutionally permissible, and in light of the prolonged litigation of this case we set forth our reasoning at greater length than previously.
9
A review of the oath cases in this Court will put the instant oath into context. We have made clear that neither federal nor state government may condition employment on taking oaths that impinge on rights guaranteed by the First and Fourteenth Amendments respectively, as for example those relating to political beliefs. Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); Connell v. Higginbotham, 403 U.S. 207, 209, 91 S.Ct. 1772, 1774, 29 L.Ed.2d 418 (1971) (Marshall, J., concurring in result). Nor may employment be conditioned on an oath that one has not engaged, or will not engage, in protected speech activities such as the following: criticizing institutions of government; discussing political doctrine that approves the overthrow of certain forms of government; and supporting candidates for political office. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961). Employment may not be conditioned on an oath denying past, or abjuring future, associational activities within constitutional protection; such protected activities include membership in organizations having illegal purposes unless one knows of the purpose and shares a specific intent to promote the illegal purpose. Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967); Keyishian v. Board of Regents, supra; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). Thus, last Term in Wadmond the Court sustained inquiry into a bar applicant's associational activities only because it was narrowly confined to organizations that the individual had known to have the purpose of violent overthrow of the government and whose purpose the individual shared. And, finally, an oath may not be so vague that "men of common intelligence must necessarily guess at its meaning and differ as to its application, (because such an oath) violates the first essential of due process of law." Cramp v. Board of Public Instruction, 368 U.S., at 287, 82 S.Ct., at 280. Concern for vagueness in the oath cases has been especially great because uncertainty as to an oath's meaning may deter individuals from engaging in constitutionally protected activity conceivably within the scope of the oath.
10
An underlying, seldom articulated concern running throughout these cases is that the oaths under consideration often required individuals to reach back into their past to recall minor, sometimes innocent, activities. They put the government into 'the censorial business of investigating, scrutinizing, interpreting, and then penalizing or approving the political viewpoints' and past activities of individuals. Law Students Civil Rights Research Council v. Wadmond, 401 U.S., at 192, 91 S.Ct., at 740 (Marshall, J., dissenting).
11
Several cases recently decided by the Court stand out among our oath cases because they have upheld the constitutionality of oaths, addressed to the future, promising constitutional support in broad terms. These cases have begun with a recognition that the Constitution itself prescribes comparable oaths in two articles. Article II, § 1, cl. 8, provides that the President shall swear that he will 'faithfully execute the Office . . . and will to the best of (his) Ability preserve, protect and defend the Constitution of the United States.' Article VI, cl. 3, provides that all state and federal officers shall be bound by an oath 'to support this Constitution.' The oath taken by attorneys as a condition of admission to the Bar of this Court identically provides in part 'that I will support the Constitution of the United States'; it also requires the attorney to state that he will 'conduct (himself) uprightly, and according to law.' Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966), involved Georgia's statutory requirement that state legislators swear to 'support the Constitution of this State and of the United States,' a paraphrase of the constitutionally required oath. The Court there implicitly concluded that the First Amendment did not undercut the validity of the constitutional oath provisions. Although in theory the First Amendment might have invalidated those provisions, approval of the amendment by the same individuals who had included the oaths in the Constitution suggested strongly that they were consistent. The Court's recognition of this consistency did not involve a departure from its many decisions striking down oaths that infringed First and Fourteenth Amendment rights. The Court read the Georgia oath as calling simply for an acknowledgment of a willingness to abide by 'constitutional processes of government.' 385 U.S., at 135, 87 S.Ct., at 349, 17 L.Ed.2d 235. Accord, Knight v. Board of Regents, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968) (without opinion). Although disagreeing on other points, in Wadmond, supra, all members of the Court agreed on this point. Mr. Justice Marshall noted there, while dissenting as to other points,
12
'The oath of constitutional support requires an individual assuming public responsibilities to affirm . . . that he will endeavor to perform his public duties lawfully.' 401 U.S., at 192, 91 S.Ct., at 740.
13
The Court has further made clear that an oath need not parrot the exact language of the constitutional oaths to be constitutionally proper. Thus in Ohlson v. Phillips, 397 U.S. 317, 90 S.Ct. 1124, 25 L.Ed.2d 337 (1970), we sustained the constitutionality of a state requirement that teachers swear to 'uphold' the Constitution. The District Court had concluded that the oath was simply a "recognition that ours is a government of laws and not of men," and that the oath involved an affirmation of 'organic law' and rejection of 'the use of force to overthrow the government.' Ohlson v. Phillips, 304 F.Supp. 1152 (Colo.1969).
14
The District Court in the instant case properly recognized that the first clause of the Massachusetts oath, in which the individual swears to 'uphold and defend' the Constitutions of the United States and the Commonwealth, is indistinguishable from the oaths this Court has recently approved. Yet the District Court applied a highly literalistic approach to the second clause to strike it down. We view the second clause of the oath as essentially the same as the first.
15
The second clause of the oath contains a promise to 'oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.' The District Court sought to give a dictionary meaning to this language and found 'oppose' to raise the specter of vague, undefinable responsibilities actively to combat a potential overthrow of the government. That reading of the oath understandably troubled the court because of what it saw as vagueness in terms of what threats would constitute sufficient danger of overthrow to require the oath giver to actively oppose overthrow, and exactly what actions he would have to take in that respect. Cf. Ohlson v. Phillips, 304 F.Supp., at 1154 and n. 4.
16
But such a literal approach to the second clause is inconsistent with the Court's approach to the 'support' oaths. One could make a literal argument that 'support' involves nebulous, undefined responsibilities for action in some hypothetical situations. As Mr. Justice Harlan noted in his opinion concurring in the result on our earlier consideration of this case,
17
'Almost any word or phrase may be rendered vague and ambiguous by dissection with a semantic scalpel. . . . (But such an approach) amounts to little more than verbal calisthenics. Cf. S. Chase, The Tyranny of Words (1959); W. Empson, Seven Types of Ambiguity (1955).' Cole v. Richardson, 397 U.S. 238, 240, 90 S.Ct. 1099, 1101, 25 L.Ed.2d 275 (1970).
18
We have rejected such rigidly literal notions and recognized that the purpose leading legislatures to enact such oaths, just as the purpose leading the Framers of our Constitution to include the two explicit constitutional oaths, was not to create specific responsibilities but to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes of our system, as Mr. Justice Marshall suggested in Wadmond, 401 U.S., at 192, 91 S.Ct., at 740. Here the second clause does not require specific action in some hypothetical or actual situation. Plainly 'force, violence or . . . any illegal or unconstitutional method' modifies 'overthrow' and does not commit the oath taker to meet force with force. Just as the connotatively active word 'support' has been interpreted to mean simply a commitment to abide by our constitutional system, the second clause of this oath is merely oriented to the negative implication of this notion; it is a commitment not to use illegal and constitutionally unprotected force to change the constitutional system. The second clause does not expand the obligation of the first; it simply makes clear the application of the first clause to a particular issue. Such repetition, whether for emphasis or cadence, seems to be the wont of authors of oaths. That the second clause may be redundant is no ground to strike it down; we are not charged with correcting grammar but with enforcing a constitution.
19
The purpose of the oath is clear on its face. We cannot presume that the Massachusetts Legislature intended by its use of such general terms as 'uphold,' 'defend,' and 'oppose' to impose obligations of specific, positive action on oath takers. Any such construction would raise serious questions whether the oath was so vague as to amount to a denial of due process. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Cramp v. Board of Public Instruction, 368 U.S., at 287, 82 S.Ct., at 280, 7 L.Ed.2d 285 (1961).
20
Nor is the oath as interpreted void for vagueness. As Mr. Justice Harlan pointed out in his opinion on our earlier consideration of this case, the oath is 'no more than an amenity.' 397 U.S., at 240, 90 S.Ct., at 1100. It is punishable only by a prosecution for perjury3 and, since perjury is a knowing and willful falsehood, the constitutional vice of punishment without fair warning cannot occur here. See American Communications Assn. v. Douds, 339 U.S. 382, 413, 70 S.Ct. 674, 691, 94 L.Ed. 925 (1950). Nor here is there any problem of the punishment inflicted by mere prosecution. See Cramp v. Board of Public Instruction, 368 U.S., at 284, 82 S.Ct., at 279, 7 L.Ed.2d 285. There has been no prosecution under this statute since its 1948 enactment, and there is no indication that prosecutions have been planned or begun. The oath 'triggered no serious possibility of prosecution' by the Commonwealth. Cole v. Richardson, 397 U.S., at 241, 90 S.Ct., at 1101. Were we confronted with a record of actual prosecutions or harassment through threatened prosecutions, we might be faced with a different question. Those who view the Massachusetts oath in terms of an endless 'parade of horribles' would do well to bear in mind that many of the hazards of human existence that can be imagined are circumscribed by the classic observation of Mr. Justice Holmes, when confronted with the prophecy of dire consequences of certain judicial action, that it would not occur 'while this Court sits.' Panhandle Oil Co. v. State of Miss. ex rel. Knox, 277 U.S. 218, at 223, 48 S.Ct. 451, at 453, 72 L.Ed. 857 (dissenting).
21
Appellee mounts an additional attack on the Massachusetts oath program in that it does not provide for a hearing prior to the determination not to hire the individual based on the refusal to subscribe to the oath. All of the cases in this Court that require a hearing before discharge for failure to take an oath involved impermissible oaths. In Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) (not an oath case), the State sought to dismiss a professor for claiming the Fifth Amendment privilege in a United States Senate committee hearing; the Court held the State's action invalid because the exercise of the privilege was a constitutional right from which the State could not draw any rational inference of disloyalty. Appellee relies on Nostrand v. Little, 362 U.S. 474, 80 S.Ct. 840, 4 L.Ed.2d 892 (1960), and Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971), but in those cases the Court held only that the mere refusal to take the particular oath was not a constitutionally permissible basis for termination. In the circumstances of those cases, only by holding a hearing, showing evidence of disloyalty, and allowing the employee an opportunity to respond might the State develop a permissible basis for concluding that the employee was to be discharged.
22
Since there is no constitutionally protected right to overthrow a government by force, violence, or illegal or unconstitutional means, no constitutional right is infringed by an oath to abide by the constitutional system in the future. Therefore, there is no requirement that one who refuses to take the Massachusetts oath be granted a hearing for the determination of some other fact before being discharged.
23
The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.
24
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
25
Mr. Justice STEWART and Mr. Justice WHITE, concurring.
26
All agree that the first part of this oath, under which a person swears to 'uphold and defend' the Federal and State Constitutions, is wholly valid under the First and Fourteenth Amendments. But if 'uphold' and 'defend' are not words that suffer from vagueness and overbreadth, then surely neither is the word 'oppose' in the second part of the oath.
27
When the case was here before, Mr. Justice Harlan expressed the view that '(t) his oath does not impinge on conscience or belief, except to the extent that oath taking as such may offend particular individuals.' Cole v. Richardson, 397 U.S. 238, 241, 90 S.Ct. 1099, 1101, 25 L.Ed.2d 275 (concurring in result). We agree. And as to such individuals, the Massachusetts law clearly permits an affirmation rather than an oath. Mass.Gen.Laws, c. 264, § 14.
28
On this basis we join the opinion and judgment of the Court.
29
Mr. Justice DOUGLAS, dissenting.
30
The part of the oath that says 'I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method' is plainly unconstitutional by our decisions. See Board of Education v. Barnette, 319 U.S. 624, 634, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628.
31
Advocacy of basic fundamental changes in government, which might popularly be described as 'overthrow,' is within the protection of the First amendment even when it is restrictively construed. In Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430, a case involving criminal syndicalism, this Court ruled that a State may not 'forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' Id., at 447, 89 S.Ct., at 1829. The same idea was put in somewhat different words in Noto v. United States, 367 U.S. 290, 297—298, 81 S.Ct. 1517, 1521, 6 L.Ed.2d 836 that 'abstract teaching' of overthrow is protected activity as contrasted to 'preparing a group for violent action and steeling it to such action.' And see Yates v. United States, 354 U.S. 298, 318, 77 S.Ct. 1064, 1076, 1 L.Ed.2d 1356.
32
The present oath makes such advocacy a possible offense under a restrictive reading of the First Amendment.
33
The views expressed by Mr. Justice Black and me give the First Amendment a more expansive reading. We have condemned loyalty oaths as 'manifestation(s) of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people.' Wieman v. Updegraff, 344 U.S. 183, 193, 73 S.Ct. 215, 220, 97 L.Ed. 216 (Black, J., concurring). And see Speiser v. Randall, 357 U.S. 513, 532, 78 S.Ct. 1332, 1354, 2 L.Ed.2d 1460 (Douglas, J., concurring). We said in Brandenburg that the protection of the First Amendment as applied to the States through the Fourteenth does not depend on the 'quality of advocacy,' since that 'turns on the depth of the conviction.' 395 U.S., at 457, 89 S.Ct., at 1834 (Douglas, J., concurring). The line between the permissible control by a State and the impermissible control is 'the line between ideas and overt acts.' Id., at 456, 89 S.Ct., at 1834. 'The First Amendment . . . leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us.' Yates v. United States, supra, 354 U.S., at 344, 77 S.Ct., at 1090. (Black, J., concurring and dissenting). This oath, however, requires that appellee 'oppose' that which she has an indisputable right to advocate.1 Yet the majority concludes that the promise of 'opposition'—exacted as a condition of public employment2—is a mere redundancy which does not impair appellee's freedom of expression.3
34
It is suggested, however, that because only the second portion of the oath is unconstitutional we should sever the two clauses and uphold the first. Even on this assumption, the entire oath must fall. This Court should, of course, base its decisions upon local law where, in so doing, we may avoid deciding federal constitutional questions. Here, we have been cited to no evidence of a legislative intent to separate the two clauses of the oath. This case is thus governed by Pedlosky v. Massachusetts Institute of Technology, 352 Mass. 127, 224 N.E.2d 414 (1967), where the Supreme Judicial Court of Massachusetts was confronted with a two-part test oath similar in effect to the one before us.4 'The substance of the oath (was) not confined merely to a declaration of support of the Federal and State Constitutions. It equally concern(ed) an undertaking by the plaintiff that 'I will faithfully discharge the duties of the position of assistant professor of mathematics according to the best of my ability." Id., at 128—129, 224 N.E.2d, at 416. Finding the oath to be 'altogether too vague a standard to enforce judicially' and being without evidence 'whether the Legislature would have enacted (it) without the (invalid) provision,' the court was unable to hold that the provisions were severable, and thus unanimously struck down the entire oath. Id., at 129, 224 N.E.2d, at 416.
35
I would follow the lead of the Supreme Judicial Court of Massachusetts—the court which has the final word on how the statutes of that State are to be construed—and hold that the entire oath must fall.
36
I conclude that whether the First Amendment is read restrictively or literally as Jefferson would have read it, the oath which the District Court struck down, 300 F.Supp. 1321, is plainly unconstitutional. I would affirm its judgment.
37
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
38
Appellee was discharged from her job with the Boston State Hospital solely because she refused to swear or affirm the following oath:1
39
'I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and . . . I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.' Mass.Gen.Laws, c. 264, § 14.
40
She brought this action in the United States District Court for the District of Massachusetts seeking declaratory and injunctive relief against enforcement of the oath as a condition of her employment.2 The District Court found that the oath was unconstitutionally vague and granted the relief requested by appellee. The Court now reverses the District Court and sustains the validity of the oath in its entirety. In my opinion, the second half of the oath is not only vague, but also overbroad. Accordingly, I dissent.
41
The first half of the oath, requiring an employee to indicate a willingness to 'uphold and defend' the state and federal Constitutions, is clearly constitutional. It is nothing more than the traditional oath of support that we have unanimously uphold as a condition of public employment.
42
It is the second half of the oath to which I object. I find the language 'I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method' to be impermissibly vague and overbroad.
43
It is vague because 'men of common intelligence (must) speculate at their peril on its meaning.' Whitehill v. Elkins, 389 U.S. 54, 59, 88 S.Ct. 184, 186, 19 L.Ed.2d 228 (1967). See also Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Cline v. Frink Dairy Co., 274 U.S. 445, 465, 47 S.Ct. 681, 687, 71 L.Ed. 1146 (1927); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). The most striking problem with the oath is that it is not clear whether the last prepositional phrase modifies the verb 'oppose' or the noun 'overthrow.' Thus, an affiant cannot be certain whether he is swearing that the will 'oppose' governmental overthrow by utilizing every means at his disposal, including those specifically prohibited by the laws or constitutions he has sworn to support, or whether he has merely accepted the responsibility of opposing illegal or unconstitutional overthrows. The first reading would almost surely be unconstitutional since it is well established that a State cannot compel a citizen to waive the rights guaranteed him by the Constitution in order to obtain employment. See, e.g., Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). This reading would also make the second half of the oath inconsistent with the first half. It is far from clear to me which reading the Massachusetts Legislature intended. A reasonable man could certainly read the oath either way, and Massachusetts has not offered to make a binding clarification of its purport.
44
Even assuming that the second reading were unconditionally adopted by the appellants and communicated to prospective employees, the vice of vagueness is still not cured, for the affiant is left with little guidance as to the responsibilities he has assumed in taking the oath. In what form, for example, must he manifest his opposition to an overthrow? At oral argument in the District Court, the Commonwealth's attorney asserted that citizens have three standards of obligation to their government to oppose overthrows:
45
'The ordinary citizen who has taken no oath has an obligation to act in extremis; a person who has taken the first part of the present oath would have a somewhat larger obligation, and one who has taken the second part has one still larger.' 300 F.Supp. 1321, 1322.3
46
I agree with the conclusion of the District Court that '(t)he very fact that such varied standards . . . can be suggested is enough to condemn the language as hopelessly vague.' Id., at 1323.
47
Vagueness is also inherent in the use of the word 'overthrow.' When does an affiant's undefined responsibility under the oath require action: When an overthrow is threatened? When an overthrow is likely to be threatened? When a threatened overthrow has some chance of success? Cf. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). The oath answers none of these questions, and for that reason, if no other, cannot stand.
48
The importance of clarity and precision in an oath of this kind should not be underestimated. Chapter 264, § 14, of the Massachusetts General Laws provides that the oath is taken subject to the pains and penalties of perjury, and § 15 of that chapter specifies that the pains and penalties may amount to one year in prison and/or a $10,000 fine.
49
In concluding that this oath is vague, I rely on Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). One part of the oath considered in Baggett, like the Massachusetts oath, required that the affiant assert a willingness to conform future conduct to the criteria set forth in an oath taken under penalty of perjury. The Court struck down the oath in Baggett, and Mr. Justice White's opinion for the Court explained in great detail the inordinate difficulties employees would have in attempting to conform their actions to the oath's criteria. Id., at 371, 84 S.Ct., at 1322. While the oath involved herein differs somewhat from that involved in Baggett, the considerations in both cases are the same, and the results should also be the same.
50
I would also strike down the second half of this oath as an overbroad infringement of protected expression and conduct.
51
The Court's prior decisions represent a judgment that simple affirmative oaths of support are less suspect and less evil than negative oaths requiring a disaffirmance of political ties, group affiliations, or beliefs. Compare Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971); Knight v. Board of Regents, 269 F.Supp. 339 (SDNY 1967), aff'd, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968); Hosack v. Smiley, 276 F.Supp. 876 (Colo. 1967), aff'd, 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275 (1968); Ohlson v. Phillips, 304 F.Supp. 1152 (Colo.1969), aff'd, 397 U.S. 317, 90 S.Ct. 1124, 25 L.Ed.2d 337 (1970), with Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967); Baggett v. Bullitt, supra; Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951).
52
Yet, I think that it is plain that affirmative oaths of loyalty, no less than negative ones, have odious connotations and that they present dangers. See Asper, The Long and Unhappy History of Loyalty Testing in Maryland, 13 Am.J.Legal Hist. 97, 104 (1969); Askin, Loyalty Oaths in Retrospect: Freedom and Reality, 1968 Wis.L.Rev. 498, 502; Note, Loyalty Oaths, 77 Yale L.J. 739, 763 (1968). We have tolerated support oaths as applied to all government employees only because we view these affirmations as an expression of 'minimal loyalty to the Government.' American Communications Assn. v. Douds, 339 U.S. 382, 415, 70 S.Ct. 674, 692, 94 L.Ed. 925 (1950). Such oaths are merely indications by the employee 'in entirely familiar and traditional language, that he will endeavor to perform his public duties lawfully.' Law Students Civil Rights Research Council, Inc. v. Wadmond, supra, 401 U.S. 154, at 192, 91 S.Ct. 720, at 740 (Marshall, J., dissenting).
53
It is precisely because these oaths are minimal, requiring only that nominal expression of allegiance 'which, by the common law, every citizen was understood to owe his sovereign,' Knight v. Board of Regents, 269 F.Supp., at 341, that they have been sustained. That they are minimal intrusions into the freedom of government officials and employees to think, speak, and act makes them constitutional; it does not mean that greater intrusions will be tolerated. On the contrary, each time this Court has been faced with an attempt by government to make the traditional support oath more comprehensive or demanding, it has struck the oath down. See, e.g., Connell v. Higginbotham, supra; Baggett v. Bullitt, supra; cf. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966).
54
When faced with an 'imminent clear and present danger,' governments may be able to compel citizens to do things that would ordinarily be beyond their authority to mandate. But, such emergency governmental power is a far cry from compelling every state employee in advance of any such danger to promise in any and all circumstances to conform speech and conduct to opposing an 'overthrow' of the government. The Constitution severely circumscribes the power of government to force its citizens to perform symbolic gestures of loyalty. Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Since the overbreadth of the oath tends to infringe areas of speech and conduct that may be protected by the Constitution, I believe that it cannot stand. See Whitehill v. Elkins, supra; Baggett v. Bullitt, supra; Wieman v. Updegraff, supra; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).
55
Because only the second half of the oath is invalid, I would normally favor severing the statute and striking only the second part. See Connell v. Higginbotham, supra. However, when confronted with an oath strikingly similar to that before us, the Supreme Judicial Court of Massachusetts held that the two portions of the oath were not severable. Pedlosky v. Massachusetts Institute of Technology, 352 Mass. 127, 224 N.E.2d 414 (1967). This Court must bow to state courts in their construction of state legislation. Therefore, we must bow to the decision of the state court and strike the oath in its entirety.
56
Before concluding, I add one additional word about loyalty oaths in general. They have become so prevalent in our country that few Americans have not at one time or another taken an oath to support federal and state governments. Such oaths are not only required as a condition of government employment, but often as a prerequisite to entering military service, to obtaining citizenship, to securing a passport or an educational loan or countless other government offerings. Perhaps we have become so inundated with a variety of these oaths that we tend to ignore the difficult constitutional issues that they present. It is the duty of judges, however, to endeavor to remain sensitive to these issues and not to 'encourage the casual taking of oaths by upholding the discharge or exclusion from public employment of those with a conscientious and scrupulous regard for such undertakings.' Baggett v. Bullitt, supra, 377 U.S., at 373—374, 84 S.Ct., at 1323.
57
Loyalty oaths do not have a very pleasant history in this country. Whereas they may be developed initially as a means of fostering power and confidence in government, there is a danger that they will swell 'into an instrument of thought control and a means of enforcing complete political conformity.' Asper, The Long and Unhappy History of Loyalty Testing in Maryland, 13 Am.J.Legal Hist. 97, 108 (1969). Within the limits of the Constitution it is, of course, for the legislators to weigh the utility of the oaths and their potential dangers and to strike a balance. But, as a people, we should always keep in mind the words of Mr. Justice Black, concurring in Speiser v. Randall, 357 U.S., at 532, 78 S.Ct., at 1354:
58
'Loyalty oaths, as well as other contemporary 'security measures,' tend to stifle all forms of unorthodox or unpopular thinking or expression—the kind of thought and expression which has played such a vital and beneficial role in the history of this Nation. The result is a stultifying conformity which in the end may well turn out to be more destructive to our free society than foreign agents could ever hope to be. . . . I am certain that loyalty to the United States can never be secured by the endless proliferation of 'loyalty' oaths; loyalty must arise spontaneously from the hearts of people who love their country and respect their government.'
59
Accordingly, I would affirm the decision of the District Court.
1
The full text of the two relevant statutes is as follows:
Mass.Gen.Laws, c. 264, § 14. Oath or affirmation; form; filing; exemptions
'Every person entering the employ of the commonwealth or any political subdivision thereof, before entering upon the discharge of his duties shall take and subscribe to, under the pains and penalty of perjury, the following oath or affirmation:—
"I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.'
'Such oath or affirmation shall be filed by the subscriber, if he shall be employed by the state, with the secretary of the commonwealth, if an employee of a county, with the county commissioners, and if an employe of a city or town, with the city clerk or the town clerk, as the case may be.
'The oath or affirmation prescribed by this section shall not be required of any person who is employed by the commonwealth or a political subdivision thereof as a physician or nurse in a hospital or other health care institution and is a citizen of a foreign country.'
C. 264, § 15. Violation of section 14; penalty
Violation of section fourteen shall be punished by a fine of not more than ten thousand dollars dollars or by imprisonment for not more than one year, or both.'
2
Richardson v. Cole, 300 F.Supp. 1321 (Mass.1969).
3
The District Court interpreted Mass.Gen.Laws, c. 264, § 15, which punishes a '(v)iolation of section fourteen,' see n. 1, supra, as 'presumably' punishing 'a failure to 'live up' to the oath.' We see no basis for this interpretation. The clear purpose of § 15 is to punish the failure to comply with the directive aspects of § 14, which requires that every person entering the employ of the Commonwealth subscribe to the oath and file it with a certain state employee. Section 14, which includes the oath, says that it is taken upon the penalty of perjury but mentions nothing about a continuing criminal responsibility to 'live up' to it.
The time may come when the value of oaths in routine public employment will be thought not 'worth the candle' for all the division of opinion they engender. However, while oaths are required by legislative acts it is not our function to evaluate their wisdom or utility but only to decide whether they offend the Constitution.
1
The majority makes the suggestion that 'we might be faced with a different question' if there were 'a record of actual prosecutions or harassment through threatened prosecutions.' Ante, at 685. Here, appellee has been discharged from employment and denied her source of livelihood because of her refusal to subscribe to an unconstitutional oath. If the oath suffers from constitutional infirmities, then it matters not whether the penalties imposed for refusing to subscribe to it were criminal or the denial of employment.
2
The Court is correct when it says 'there is no constitutionally protected right to overthrow a government by force, violence, or illegal or unconstitutional means,' ante, at 686, but that has no bearing on the present case. What is involved here is appellee's right to espouse and advocate ideas which may be unpopular to some. How we can honor that right to advocate while exacting the promise to 'oppose,' the Court leaves unanswered.
3
The majority first chides the District Court for taking 'a literal approach' and 'giv(ing) (the word 'oppose') a dictionary meaning.' The majority then reads 'oppose' to be a mere 'negative implication of th(e) notion' of 'a commitment to abide by our constitutional system' not requiring 'specific, positive action.' Ante, at 683, 684. Having thus emasculated the word, the majority then labels it as 'redundant' and a 'repetition,' ibid., and concludes that the oath, in its entirety, is simply 'to abide by the constitutional system in the future.' Ante, at 686.
If the oath is void for vagueness or overbreadth, it is because the common meaning of its words is so imprecise or so farreaching as to place a 'chilling effect' upon constitutionally protected expression. This vice—readily apparent in the present oath—is emphasized rather than avoided by the majority's opinion. The tortured route which the majority takes to give this oath a supposedly constitutional interpretation merely emphasizes the unconstitutional effect those words would have were they to be given their natural meaning.
4
The oath provided: 'I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the Commonwealth of Massachusetts, and that I will faithfully discharge the duties of the position of (insert name of position) according to the best of my ability.'
1
Appellee was not requested to take the oath before she began her employment. The reasons for the failure of the hospital officials to require the oath as a prerequisite to employment are not readily apparent from the record. In any event, the oath was required of all state employees at all relevant times.
2
Appellee also sought damages for back wages allegedly owed. It is apparent that all back wages have now been paid. Thus, this claim is no longer in controversy. The District Court rejected appellee's belated attempt to make a claim for loss of wages due to termination, and this decision was well within its discretion under Rule 15 of the Federal Rules of Civil Procedure.
3
It is clear that both speech and conduct are affected by this portion of the oath. Appellants conceded as much in their brief in the court below:
'(I)n the event that a clear and present danger arose of the actual overthrow of the government, . . . the public employee (would) be required to use reasonable means at his disposal to attempt to thwart that effort. What he might do in such circumstances could range from the use of physical force to speaking out against the downfall of the government. The kind of response required would be commensurate with the circumstances and with the employee's ability, his training, and the means available to him at the time.' (Emphasis added.) Quoted at 300 F.Supp., at 1322.
The final sentence of this quotation evidences the confusion that the State confesses about the responsibilities assumed by employees in taking the oath.
In light of the arguments that the appellants make, I find it impossible to agree with the Court that the second half of the oath adds nothing to the first. The appellants contend, contrary to the assertions of the Court, that a citizen who takes the first part of the oath has more of a duty to his government than one who takes no oath, and that one who takes the second part of the oath has a still greater duty. While the appellants are unsure as to where and how far that duty extends, they never have suggested that it simply does not exist. The argument is even made that the duty extends to the use of physical force.
Were we faced with merely a traditional oath of support, I would join the Court. I share the Court's dismay at having to hold state legislation unconstitutional, but I cannot ignore the thrust that a State would give its statutes. Cf. Pedlosky v. Massachusetts Institute of Technology, 352 Mass. 127, 224 N.E.2d 414 (1967).
| 23
|
405 U.S. 707
92 S.Ct. 1349
31 L.Ed.2d 620
EVANSVILLE-VANDERBURGH AIRPORT AUTHORITY DISTRICT et al., Petitioners,v.DELTA AIRLINES, INC., et al. NORTHEAST AIRLINES, INC., et al., Appellants, v. NEW HAMPSHIRE AERONAUTICS COMMISSION et al.
Nos. 70—99, 70—212.
Argued Feb. 23 and 24, 1972.
Decided April 19, 1972.
Syllabus
In No. 70—99 respondents challenged a 'use and service charge' of $1 'for each passenger enplaning any commercial aircraft operated from the Dress Memorial Airport' in Evansville, Indiana. The funds were to be used for the improvement and maintenance of the airport. The Indiana Supreme Court, upholding the lower court, held the charge to be an unreasonable burden on interstate commerce in violation of Art. I, § 8, of the Constitution. In No. 70—212 a New Hampshire statute levied a service charge of $1 for each passenger enplaning a scheduled commercial airliner weighing 12,500 pounds or more, and a 50 charge for each passenger enplaning a scheduled aircraft weighing less than 12,500 pounds. Fifty percent of the funds were allocated to the State's aeronautical fund, with the balance going to the municipalities or airport authorities owning the public landing areas. The New Hampshire Supreme Court sustained the constitutionality of the statute. Held: The charges imposed in these cases are constitutional. Pp. 711—702.
(a) A charge designed to make the user of state-provided facilities pay a reasonable fee for their construction and maintenance may constitutionally be imposed on interstate and intrastate users alike. Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744, distinguished. Pp. 711—717.
(b) The charges, applicable to both interstate and intrastate flights, do not discriminate against interstate commerce and travel. P. 717.
(c) Although not all users of the airport facilities are subject to the fees, and there are distinctions among different classes of passengers and aircraft, the charges reflect a fair, albeit imperfect, approximation of the use of the facilities by those for whose benefit they are imposed, and the exemptions are not wholly unreasonable. Pp. 717—719.
(d) The airlines have not shown the charges to be excessive in relation to the costs incurred by the taxing authorities in constructing and maintaining airports with public funds. New Hampshire's decision to reimburse local expenditures through unrestricted revenues is not a matter of concern to the airlines. Pp. 719—720.
(e) The charges do not conflict with any federal policies furthering uniform national regulation of air transportation. Pp. 720—721.
(f) There is no suggestion here that the charges do not advance the constitutionally permissible objective of having interstate commerce bear a fair share of airport costs. P. 722.
Ind., 265 N.E.2d 27, reversed; 111 N.H. 5, 273 A.2d 676, affirmed.
Howard P. Trockman, Evansville, Ind., for Evansville-Vanderburgh Airport Authority Dist. and others.
John K. Mallory, Jr., Washington, D.C., for Delta Airlines, Inc., Northeast Airlines, Inc., and others.
W. Michael Dunn, Concord, N.H., for New Hampshire Aeronautics Comm. and others.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question is whether a charge by a State or municipality of $1 per commercial airline passenger to help defray the costs of airport construction and maintenance violates the Federal Constitution. Our answer is that, as imposed in these two cases, the charge does not violate the Federal Constitution.
2
No. 70—99. Evansville-Vanderburgh Airport Authority District was created by the Indiana Legislature to operate Dress Memorial Airport in Evansville, Indiana. Under its authority to enact ordinances adopting rates and charges to be collected from users of the airport facilities and services, the Airport Authority enacted Ordinance No. 33 establishing 'a use and service charge of One Dollar ($1.00) for each passenger enplaning any commercial aircraft operated from the Dress Memorial Airport.' The commercial airlines are required to collect and remit the charges, less 6% allowed to cover the airlines' administrative costs in doing so. The moneys collected are held by the Airport Authority 'in a separate fund for the purpose of defraying the present and future costs incurred by said Airport Authority in the construction, improvement, equipment, and maintenance of said Airport and its facilities for the continued use and future enjoyment by all users thereof.'
3
Respondents challenged the constitutionality of the charge in an action filed in the Superior Court of Vanderburgh County, Indiana. The court held that the charge constituted an unreasonable burden on interstate commerce in violation of Art. I, § 8, of the Federal Constitution and permanently enjoined enforcement of the ordinance. The Indiana Supreme Court affirmed, Ind., 265 N.E.2d 27 (1970). We granted certiorari, 404 U.S. 820, 92 S.Ct. 43, 30 L.Ed.2d 48 (1971). We reverse.
4
No. 70—212. Chapter 391 of the 1969 Laws of New Hampshire, amending N.H.Rev.Stat.Ann. §§ 422:3, 422:43, 422:45, requires every interstate and intrastate 'common carrier of passengers for hire by aircraft on a regular schedule' that uses any of New Hampshire's five uses any of New Hampshire's five publicly owned and operated airports to 'pay a service charge of one dollar with respect to each passenger emplaning1 upon its aircraft with a gross weight of 12,500 pounds or more, or a service charge of fifty cents with respect to each passenger emplaning upon its aircraft with a gross weight of less than 12,500 pounds.' Fifth percent of the moneys collected are allocated to the State's aeronautical fund and 50% 'to the municipalities or the airport authorities owning the public landing areas at which the fees . . . were imposed.' The airlines are authorized to pass on the charge to the passenger.2
5
Appellants brought this action in the Superior Court of Merrimack County, New Hampshire, and challenged the constitutionality of the charge as to scheduled commercial flights on the grounds of repugnancy to the Commerce Clause, the Equal Protection Clause of the Fourteenth Amendment, and the provisions of the Federal Constitution protecting the right to travel. The Superior Court, without decision, transferred the action to the New Hampshire Supreme Court, and that court sustained the constitutionality of the statute. 111 N.H. 5, 273 A.2d 676 (1971). We noted probable jurisdiction, 404 U.S. 819, 92 S.Ct. 60, 30 L.Ed.2d 47 (1971).3 We affirm.
6
We begin our analysis with consideration of the contention of the commercial airlines in both cases that the charge is constitutionally invalid under the Court's decision in Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868). There the Court invalidated a Nevada statute that levied a 'tax of one dollar upon every person leaving the State by any railroad, stage coach, or other vehicle engaged or employed in the business of transporting passengers for hire.' The Court approached the problem as one of whether levy of 'any tax of that character,' whatever its amount, impermissibly burdened the constitutionally protected right of citizens to travel. In holding that it did, the Court reasoned:
7
'(I)f the State can tax a railroad passenger one dollar, it can tax him one thousand dollars. If one State can do this, so can every other State. And thus one or more States covering the only practicable routes of travel from the east to the west, or from the north to the south, may totally prevent or seriously burden all transportation of passengers from one part of the country to the other.' Id., at 46.4
8
The Nevada charge, however, was not limited, as are the Indiana and New Hampshire charges before us, to travelers asked to bear a fair share of the costs of providing public facilities that further travel. The Nevada tax applied to passengers traveling interstate by privately owned transportation, such as railroads. Thus the tax was charged without regard to whether Nevada provided any facilities for the passengers required to pay the tax. Cases decided since Crandall have distinguished it on that ground and have sustained taxes 'designed to make (interstate) commerce bear a fair share of the cost of the local government whose protection it enjoys.' Freeman v. Hewit, 329 U.S. 249, 253, 67 S.Ct. 274, 277, 91 L.Ed. 265 (1946).5 For example, in Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385 (1915), a District of Columbia resident was convicted of driving in Maryland without paying a fee charged to help defray the costs of road construction and repair. He challenged his conviction on the ground that the fee burdened interstate commerce in violation of the rights of citizens to travel into and through the State. The Court rejected that argument, holding that:
9
'(W)here a state at its own expense furnishes special facilities for the use of those engaged in commerce, interstate as well as domestic, it may exact compensation therefor. The amount of the charges and the method of collection are primarily for determination by the state itself; and so long as they are reasonable and are fixed according to some uniform, fair, and practical standard, they constitute no burden on interstate commerce. Parkersburg & O. River Transportation Co. v. Parkersburg, 107 U.S. 691, 699 (2 S.Ct. 732, 27 L.Ed. 584, 587); Huse v. Glover, 119 U.S. 543, 548, 549 (7 S.Ct. 313, 30 L.Ed. 487, 490); Monongahela Navigation Co. v. United States, 148 U.S. 312, 329, 330 (13 S.Ct. 622, 37 L.Ed. 463, 469); Minnesota Rate Cases (Simpson v. Shephard), 230 U.S. 352, 405 (33 S.Ct. 729, 57 L.Ed. 1511, 48 L.R.A.(N.S.) 1151), and authorities cited. The action of the state must be treated as correct unless the contrary is made to appear. In the instant case there is no evidence concerning the value of the facilities supplied by the state, the cost of maintaining them, or the fairness of the methods adopted for collecting the charges imposed; and we cannot say from a mere inspection of the statute that its provisions are arbitrary or unreasonable.' Id., at 624, 35 S.Ct., at 142.
10
The Court expressly distinguished Crandall, saying:
11
'There is no solid foundation for the claim that the statute directly interferes with the rights of citizens of the United States to pass through the state, and is consequently bad according to the doctrine announced in Crandall v. Nevada, 6 Wall. 35 (18 L.Ed. 744, 745). In that case a direct tax was laid upon the passenger for the privilege of leaving the state; while here the statute at most attempts to regulate the operation of dangerous machines on the highways, and to charge for the use of valuable facilities.' Ibid.6
12
We therefore regard it as settled that a charge designed only to make the user of state-provided facilities pay a reasonable fee to help defray the costs of their construction and maintenance may constitutionally be imposed on interstate and domestic users alike. The principle that burdens on the right to travel are constitutional only if shown to be necessary to promote a compelling state interest has no application in this context. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The facility provided at public expense aids rather than hinders the right to travel. A permissible charge to help defray the cost of the facility is therefore not a burden in the constitutional sense.
13
The Indiana and New Hampshire Supreme Courts differed in appraising their respective charges in terms of whether the charge was for the use of facilities in aid of travel provided by the public. The Indiana Supreme Court held that the Evansville charge 'is not reasonably related to the use of the facilities which benefit from the tax . . ..' 265 N.E.2d, at 31. The New Hampshire Supreme Court, on the other hand, held that the New Hampshire charge was a 'fee for the use of facilities furnished by the public' that did not 'exceed reasonable compensation for the use provided.' 111 N.H., at 9, 273 A.2d, at 678, 679.
14
In addressing the question, we do not think it particularly important whether the charge is imposed on the passenger himself, to be collected by the airline, or on the airline, to be passed on to the passenger if it chooses. In either case, it is the act of enplanement and the consequent use of runways and other airport facilities that give rise to the obligation. Our inquiry is whether the use of airport facilities occasioned by enplanement is a permissible incident on which to levy these fees, regardless of whether the airline or its passengers bear the formal responsibility for their payment.
15
Our decisions concerning highway tolls are instructive. They establish that the States are empowered to develop 'uniform, fair and practical' standards for this type of fee. While the Court has invalidated as wholly unrelated to road use a toll based on the carrier's seating capacity, Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953 (1931); Sprout v. South Bend, 277 U.S. 163, 48 S.Ct. 502, 72 L.Ed. 833 (1928), and the amount of gasoline over 20 gallons in the carrier's gas tank, McCarroll v. Dixie Greyhound Lines, Inc., 309 U.S. 176, 60 S.Ct. 504, 84 L.Ed. 683 (1940), we have sustained numerous tolls based on a variety of measures of actual use, including: horsepower, Hendrick v. Maryland, supra; Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222 (1916); number and capacity of vehicles, Clark v. Poor, 274 U.S. 554, 47 S.Ct. 702, 71 L.Ed. 1199 (1927); mileage within the State, Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551 (1928); gross-ton mileage, Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155 (1932); carrying capacity, Hicklin v. Coney, 290 U.S. 169, 54 S.Ct. 142, 78 L.Ed. 247 (1933); and manufacturer's rated capacity and weight of trailers, Dixie Ohio Express Co. v. State Revenue Comm., 306 U.S. 72, 59 S.Ct. 435, 83 L.Ed. 495 (1939).
16
We have also held that a State may impose a flat fee for the privilege of using its roads, without regard to the actual use by particular vehicles, so long as the fee is not excessive. Aero Mayflower Transit Co. v. Georgia Public Service Comm., 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439 (1935); Morf v. Bingaman, 298 U.S. 407, 56 S.Ct. 756, 80 L.Ed. 1245 (1936); Aero Mayflower Transit Co. v. Board of Railroad Com'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99 (1947). And in Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053 (1950), the Court sustained a Maryland highway toll of '2% upon the fair market value of motor vehicles used in interstate commerce.' That toll was supplemental to a standard mileage charge imposed by the State, so that 'the total charge as among carriers (did) vary substantially with the mileage traveled.' Id., at 546, 70 S.Ct., at 808. It was there argued, however, that the correlation between tax and use was not precise enough to sustain the toll as a valid user charge. Noting that the tax 'should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted,' id., at 545, 70 S.Ct., at 808, the Court rejected the argument:
17
'Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with 'rough approximation rather than precision.' International Harvester Co. v. Evatt, 329 U.S. 416, 422—423, 67 S.Ct. 444, 447, 91 L.Ed. 390. Each additional factor adds to administrative burdens of enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U.S. 285, 289, 55 S.Ct. 709, 710, 79 L.Ed. 1439. Upon this tpe of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads.' Id., at 546—547, 70 S.Ct., at 809.
18
Thus, while state or local tolls must reflect a 'uniform, fair and practical standard' relating to public expenditures, it is the amount of the tax, not its formula, that is of central concern. At least so long as the toll is based on some fair approximation of use or privilege for use, as was that before us in Capitol Greyhound, and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users.
19
The Indiana and New Hampshire charges meet those standards. First, neither fee discriminates against interstate commerce and travel. While the vast majority of passengers who board flights at the airports involved are traveling interstate, both interstate and intrastate flights are subject to the same charges. Furthermore, there is no showing of any inherent difference between these two classes of flights, such that the application of the same fee to both would amount to discrimination against one or the other. See Nippert v. Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760 (1946).
20
Second, these charges reflect a fair, if imperfect, approximation of the use of facilities for whose benefit they are imposed. We recognize that in imposing a fee on the boarding of commercial flights, both the Indiana and New Hampshire measures exempt in whole or part a majority of the actual number of persons who use facilities of the airports involved. Their number includes certain classes of passengers, such as active members of the military and temporary layovers,7 deplaning commercial passengers,8 and passengers on noncommercial flights,9 nonscheduled commercial flights,10 and commercial flights on light aircraft.11 Also exempt are nonpassenger users, such as persons delivering or receiving air-freight shipments, meeting or seeing off passengers, dining at airport restaurants, and working for employers located on airport grounds. Nevertheless, these exceptions are not wholly unreasonable. Certainly passengers as a class may be distinguished from other airport users, if only because the boarding of flights requires the use of runways and navigational facilities not occasioned by nonflight activities. Furthermore, business users, like shops, restaurants, and private parking concessions, do contribute to airport upkeep through rent, a cost that is passed on in part at least to their patrons. And since the visitor who merely sees off or meets a passenger confers a benefit on the passenger himself, his use of the terminal may reasonably be considered to be included in the passenger's fee.
21
The measures before us also reflect rational distinctions among different classes of passengers and aircraft. Commercial air traffic requires more elaborate navigation and terminal facilities, as well as longer and more costly runway systems, than do flights by smaller private planes.12 Commercial aviation, therefore, may be made to bear a larger share of the cost of facilities built primarily to meet its special needs, whether that additional charge is levied on a perflight basis in the form of higher takeoff and landing fees, or as a toll per passenger-use in the form of a boarding fee. In short, distinctions based on aircraft weight or commercial versus private use do not render these charges wholly irrational as a measure of the relative use of the facilities for whose benefit they are levied. Nor does the fact that they are levied on the enplanement of commercial flights, but not deplanement. It is not unreasonable to presume that passengers enplaning at an airport also deplane at the same airport approximately the same number of times. The parties in No. 70—99, for example, have stipulated that the number of passengers enplaning and deplaning at Dress Memorial Airport in 1967 was virtually the same. Thus, a fee levied only on the boarding of commercial aircraft can reasonably be supposed to cover a charge on use by passengers when they deplane.13
22
Third, the airlines have not shown these fees to be excessive in relation to costs incurred by the taxing authorities. The record in No. 70—99 shows that in 1965 the Evansville-Vanderburgh Airport Authority paid bond retirement costs of $166,000 for capital improvements at Dress Memorial Airport, but recovered only $9,700 of these costs in the form of airport revenue. The airport's revenues covered only $63,000 of the Authority's $184,000 bond costs in 1966. $87,000 of $182,000 in 1967, and $65,000 of $178,000 in 1968. The respondents in No. 70—99 have advanced no evidence that a $1 boarding fee, if permitted to go into effect, would do more than meet these past, as well as current, deficits. Appellants in No. 70—212 have likewise failed to offer proof of excessiveness.
23
This omission in No. 70—212 suffices to dispose of the final attack by appellants in that case on the New Hampshire statute. Appellants argue that the statute 'on its face belies any legislative intent to impose an exaction based solely on use' because only 50% of its revenue is allocated to the state aeronautical fund while 'the remaining fifty per cent is allocated to the municipalities or airport authorities owning the landing areas at which the fees were imposed in the form of unrestricted general revenues.' Brief 51—52. Yet so long as the funds received by local authorities under the statute are not shown to exceed their airport costs, it is immaterial whether those funds are expressly earmarked for airport use. The State's choice to reimburse local expenditures through unrestricted rather than restricted revenues is not a matter of concern to these appellants. See Clark v. Poor, 274 U.S., at 557, 47 S.Ct., at 703; Morf v. Bingaman, 298 U.S., at 412, 56 S.Ct., at 758; Aero Mayflower Transit Co. v. Board of Railroad Com'rs, 332 U.S., at 502—505, 68 S.Ct., at 170—173.
24
We conclude, therefore, that the provisions before us impose valid charges on the use of airport facilities constructed and maintained with public funds. Furthermore, we do not think that they conflict with any federal policies furthering uniform national regulation of air transportation. No federal statute or specific congressional action or declaration evidences a congressional purpose to deny or pre-empt state and local power to levy charges designed to help defray the costs of airport construction and maintenance. A contrary purpose is evident in the Airport and Airway Development Act of 1970, 84 Stat. 219, 49 U.S.C. § 1701 et seq. That Act provides that as 'a condition precedent to his approval of an airport development project,' the Secretary of Transportation must determine that
25
'the airport operator or owner will maintain a fee and rental structure for the facilities and services being provided the airport users which will make the airport as self-sustaining as possible under the circumstances existing at that particular airport, taking into account such factors as the volume of traffic and economy of collection.' 49 U.S.C. § 1718(8).
26
The commercial airlines argue in these cases that a proliferation of these charges in airports over the country will eventually follow in the wake of a decision sustaining the validity of the Indiana and New Hampshire fees, and that this is itself sufficient reason to adjudge the charges repugnant to the Commerce Clause. 'If such levies were imposed by each airport along a traveller's route, the total effect on the cost of air transportation could be prohibitive, the competitive structure of air carriers could be affected, and air transportation, compared to other forms of transportation, could be seriously impaired.' Brief for Appellants in No. 70—212, p. 44. The argument relies on Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959). There the Court invalidated an Illinois statute requiring that trucks and trailers using Illinois highways be equipped at the state line with a contour mudguard of specified design. The lower courts had found that the contour mudguard possessed no advantages in terms of safety over the conventional flap permitted in all other States and indeed created safety hazards. But there is no suggestion that the Indiana and New Hampshire charges do not in fact advance the constitutionally permissible objective of having interstate commerce bear a fair share of the costs to the States of airports constructed and maintained for the purpose of aiding interstate air travel. In that circumstance, '(a)t least until Congress chooses to enact a nation-wide rule, the power will not be denied to the State(s).' Freeman v. Hewit, 329 U.S., at 253, 67 S.Ct., at 277; see also Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 775—776, 65 S.Ct. 1515, 1523—1524, 89 L.Ed. 1915 (1945).
27
The judgment in No. 70—99 is reversed; the judgment in No. 70 212 is affirmed.
28
It is so ordered.
29
Mr. Justice POWELL took no part in the consideration or decision of these cases.
30
Mr. Justice DOUGLAS, dissenting.
31
These cases are governed by Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744, which must be overruled if we are to sustain the instant taxes.
32
One case involves an Indiana tax of $1 on every enplaning commercial airline passenger at the Evansville Airport. The other involves a New Hampshire $1 tax on every passenger enplaning a scheduled commercial aircraft with a gross weight of 12,500 pounds or more and a 50¢ tax on every passenger enplaning such aircraft with a gross weight of less than 12,500 pounds.
33
The carriers are made responsible for paying, accounting for, and remitting the fee to the local authority.
34
Crandall v. Nevada, decided before the Fourteenth Amendment, struck down a state law which levied a $1 tax on every person leaving the State by rail, stage coach, or other common carrier. Mr. Justice Miller, speaking for the Court, said the citizen had rights which the tax abridged:
35
'He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.' Id., at 44.
36
And he quoted with approval from the dissenting opinion in the Passenger Cases (Smith v. Turner) 7 How. 283, 492, 12 L.Ed. 702:
37
'For all the great purposes for which the Federal government was formed we are one people, with one common country. We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State, for entering its territories or harbors, is inconsistent with the rights which belong to citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it." 6 Wall., at 48—49.
38
Usually the right to travel has been founded on the Commerce Clause.1 See United States v. Guest, 383 U.S. 745, 758—759, 86 S.Ct. 1170, 1178—1179, 16 L.Ed.2d 239. Some, including myself, have thought the right to travel was a privilege and immunity of national citizenship.2 Edwards v. California, 314 U.S. 160, 177, 62 S.Ct. 164, 168, 86 L.Ed. 119 (Douglas, J., concurring). Whatever the source, the right exists.3 See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534; Griffin v. Breckenridge, 403 U.S. 88, 105—106, 91 S.Ct. 1790, 1800, 29 L.Ed.2d 338; Oregon v. Mitchell, 400 U.S. 112, 237—238, 91 S.Ct. 260, 321—322, 27 L.Ed.2d 272 (separate opinion of Brennan, White, and Marshall, JJ.); Shapiro v. Thompson, 394 U.S. 618, 630—631, 89 S.Ct. 1322, 1329—1330, 22 L.Ed.2d 600; United States v. Guest, 383 U.S., at 757—758, 86 S.Ct., at 1177—1178.
39
Heretofore, we have held that a tax imposed on a carrier but measured by the number of passengers is no different from a direct exaction upon the passengers themselves, whether or not the carrier is authorized to collect the tax from the passengers. Pickard v. Pullman Southern Car Co., 117 U.S. 34, 46, 6 S.Ct. 635, 640, 29 L.Ed. 785; State Freight Tax Case, 15 Wall. 232, 281, 21 L.Ed. 146. To be sure, getting onto a plane is an intrastate act. But a tax imposed on a local activity that is related to interstate commerce is valid only if the local activity is not such an integral part of interstate commerce that it cannot be realistically separated from it.4 Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 166, 74 S.Ct. 396, 400, 98 L.Ed. 583. In that case the tax struck down was the tax on gas that had been processed for interstate use—and a tax 'on the exit of the gas from the State.' Id., at 167, 74 S.Ct., at 401. We held that that exit was 'a part of interstate commerce itself.' Id., at 168, 74 S.Ct., at 402.
40
The same is true here, for the step of the passenger enplaning the aircraft is but an instant away from and an inseparable part of an interstate flight.
41
Of course interstate commerce can be made to pay its fair share of the cost of the local government whose protection it enjoys. But though a local resident can be made to pay taxes to support his community, he cannot be required to pay a fee for making a speech or exercising any other First Amendment right. Like prohibitions obtain when licensing is exacted for exercising constitutional rights. Lovell v. Griffin, 303 U.S. 444, 451—452, 58 S.Ct. 666, 668—669, 82 L.Ed. 949; Thomas v. Collins, 323 U.S. 516, 540—541, 65 S.Ct. 315, 327—328, 89 L.Ed. 430; Harman v. Forssenius, 380 U.S. 528, 542, 85 S.Ct. 1177, 1186, 14 L.Ed.2d 50. Heretofore we have treated the right to participate in interstate commerce in precisely the same way on the theory that the 'power to tax the exercise of a privilege is the power to control or suppress its enjoyment.' Murdock v. Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87 L.Ed. 1292. I adhere to that view; federal constitutional rights should neither be 'chilled' nor 'suffocated.'
42
Are we now to assume that Calvert and Murdock are no longer the law?
43
I would affirm the Indiana judgment and reverse New Hampshire's.
1
'Emplane' is a variant of 'enplane.' Webster's Third New International Dictionary 743 (1961).
2
Before the enactment of Chapter 391, N.H.Rev.Stat.Ann. § 422:43 levied a $1 service charge for each passenger boarding a scheduled airline at an airport receiving development funds from a certain state bond issue authorized in 1957. Section 422:44 imposed a similar fee for nonscheduled commercial planes. No fee was imposed for any noncommercial aircraft or for commercial aircraft weighing less than 12,500 pounds. All of the fees collected were to be used to pay off the 1957 bond issue, and the charge was to cease once repayment was completed. N.H.Rev.Stat.Ann. § 422:45.
Chapter 391 broadened the applicability of the fee for scheduled airlines to all airports that had received state or local public funds since 1959, and as to these airlines eliminated the provisions terminating the fee upon repayment of the 1957 bond issue. The Act also imposed the 50¢ service charge for boarding of small aircraft (under 12,500 pounds) operated by scheduled airlines, but retained the small-plane exemption for nonscheduled airlines.
Chapter 140 of the New Hampshire Laws of 1971, enacted after the State Supreme Court decision involved here, expanded the charge imposed on nonscheduled airlines by including all airports receiving state or local funds after 1959. The legislature did not eliminate the bond-repayment cut-off, as it had for scheduled airlines, nor did it apply the 50¢ fee to light aircraft operated by nonscheduled airlines.
3
Courts in Montana and New Jersey have invalidated airport fees similar to those involved here. Northwest Airlines, Inc. v. Joint City-County Airport Bd., 154 Mont. 352, 463 P.2d 470 (1970); Allegheny Airlines, Inc. v. Sills, 110 N.J.Super. 54, 264 A.2d 268 (1970). In addition, several legislative proposals for similar taxes have been abandoned on the basis of opinions by state or local officials arguing their invalidity.
4
Concurring Justices invalidated the tax as repugnant to the Commerce Clause. 6 Wall., at 49.
5
The State's jurisdiction to tax is, however, limited by the due process requirement that the 'taxing power exerted by the state (bear) fiscal relation to protection, opportunities and benefits given by the state.' Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 250, 85 L.Ed. 267 (1940).
6
This distinction has been drawn in other cases. For example, in striking down a state tax construed as falling 'upon the privilege of carrying on a business that was exclusively interstate in character,' Spector Motor Service, Inc. v. O'Connor, 340 U.S. 602, 609, 71 S.Ct. 508, 512, 95 L.Ed. 570 (1951) (emphasis in original), the Court expressly distinguished it from a tax 'levied as compensation for the use of highways.' Id., at 607, 71 S.Ct., at 511.
7
Active members of the military and temporary layovers are not subject to the Indiana tax. The New Hampshire statute on its face does not distinguish these classes of passengers.
8
Deplaning passengers are not subject to either tax.
9
Private aviators are not subject to either tax.
10
New Hampshire imposes a fee of $1 for nonscheduled flights on aircraft weighing more than 12,500 pounds, but no fee for nonscheduled flights on lighter planes; the $1 fee lapses upon repayment of a bond issue authorized in 1957. See n. 2, supra. The Indiana ordinance on its face does not distinguish between scheduled and nonscheduled commercial flights.
11
New Hampshire imposes a 50¢ fee for commercial flights on light aircraft if scheduled, and no fee if unscheduled. The Indiana ordinance on its face does not distinguish light from heavy aircraft.
12
The parties in No. 70—99, for example, have stipulated that '(m)ost of the facilities constituting the Terminal Building at Dress Memorial Airport would not be essential for the operation of a noncommercial airport except for the required use thereof by persons traveling on commercial airlines,' that 'runway lengths, approach areas, taxiways and ramp areas of said Dress Memorial Airport would not be so extensive except for the requirement that the same be sufficiently extensive in order to accommodate commercial airline carriers and their passengers,' and that 'Dress Memorial Airport operates and maintains an instrument lighting system and an approach lighting system for use by commercial airlines, both of which are costly to maintain and operate and would not be necessary in connection with use by private, noncommercial aircraft.' App. 54, 55.
13
Because they do reflect a rational measure of relative use, these exceptions and exemptions are also consistent with the requirement of the Equal Protection Clause, that 'in defining a class subject to legislation, the distinctions that are drawn have 'some relevance to the purpose for which the classification is made.' Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620; Carrington v. Rash, 380 U.S. 89, 93, 85 S.Ct. 775, 778, 13 L.Ed.2d 675; Louisville Gas (& Electric) Co. v. Coleman, 277 U.S. 32, 37, 48 S.Ct. 423, 425, 72 L.Ed. 770; F. S. Royster Guano Co. v. Commonwealth of Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561—562, 64 L.Ed. 989.' Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966).
1
Helson & Randolph v. Kentucky, 279 U.S. 245, 251, 49 S.Ct. 279, 281, 73 L.Ed. 683; Philadelphia & Southern S.S. Co. v. Pennsylvania, 122 U.S. 326, 339, 7 S.Ct. 1118, 1121, 30 L.Ed. 1200; Colgate v. Harvey, 296 U.S. 404, 443—444, 56 S.Ct. 252, 265 266, 80 L.Ed. 299 (Stone, J., dissenting); Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 480—481, 8 S.Ct. 689, 695—696, 31 L.Ed. 700.
2
Oregon v. Mitchell, 400 U.S. 112, 285, 91 S.Ct. 260, 345, 27 L.Ed.2d 272 (Stewart, J., concurring and dissenting); Bell v. Maryland, 378 U.S. 226, 250, 255 (separate opinion of Douglas, J.), 293—294, n. 10, 84 S.Ct. 1814, 1827, 1830, 1851, 1852, 12 L.Ed.2d 822 (Goldberg, J., concurring); New York v. O'Neill, 359 U.S. 1, 12, 79 S.Ct. 564, 571, 3 L.Ed.2d 585 (Douglas, J., dissenting); Kent v. Dulles, 357 U.S. 116, 125—127, 78 S.Ct. 1113, 1118—1119, 2 L.Ed.2d 1204; Edwards v. California, 314 U.S. 160, 177, 62 S.Ct. 164, 168, 86 L.Ed. 119 (Douglas, J., concurring), 181, 62 S.Ct. 170 (Jackson, J., concurring); Gilbert v. Minnesota, 254 U.S. 325, 337, 41 S.Ct. 125, 129, 65 L.Ed. 287 (Brandeis, J., dissenting); Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97; Cook v. Pennsylvania, 97 U.S. 566, 24 L.Ed. 1015; United States v. Wheeler, 25 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270; Colgate v. Harvey, 296 U.S., at 429—430, 56 S.Ct. 252, 258—259, 80 L.Ed. 299; Slaughter-House Cases, 16 Wall. 36, 79, 21 L.Ed. 394.
3
Only the other day in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274, we held a durational residence requirement that was a prerequisite to voting invalid because it 'directly impinges on the exercise of a . . . fundamental personal right, the right to travel.' And we cited a host of 'right to travel' cases including United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178; Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (Taney, C.J., dissenting); Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744; Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357; Edwards v. california, supra; Kent v. Dulles, 357 U.S., at 126, 78 S.Ct., at 1118; Shapiro v. Thompson, 394 U.S. 618, 629—631, 634, 89 S.Ct. 1322, 1328—1330, 1331, 22 L.Ed.2d 600; Oregon v. Mitchell, 400 U.S., at 237, 91 S.Ct., at 321 (separate opinion of Brennan, White, and Marshall, JJ.), 285—286, 91 S.Ct. 345 (Stewart, J., concurring and dissenting).
In answer to the argument that actual deterrence of travel need not be shown we said: 'It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other 'right to travel' cases in this Court always relied on the presence of actual deterrence. In Shapiro we explicitly stated that the compelling state interest test would be triggered by 'any classification which served to penalize the exercise of that right (to travel) . . .' (394 U.S.), at 634, 89 S.Ct., at 1331 (emphasis added); see id., at 638 n. 21 89 S.Ct., at 1333. While noting the frank legislative purpose to deter migration by the poor, and speculating that 'an indigent who desires to migrate . . . will doubtless hesitate if he knows that he must risk' the loss of benefits, id., at 628—629, 89 S.Ct., at 1328—1329, the majority found no need to dispute the 'evidence that few welfare recipients have in fact been deterred (from moving) by residence requirements.' Id., at 650, 89 S.Ct., at 1340 (Warren, C.J., dissenting); see also id., at 671—672, 89 S.Ct., at 1351 (Harlan, J., dissenting). Indeed, none of the litigants had themselves been deterred.' 405 U.S., at 339—340, 92 S.Ct., at 1001.
4
In Helson & Randolph v. Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683, for example, we considered a tax imposed by the State of Kentucky upon the use, within its borders, of gasoline by interstate carriers. We determined that such a tax was a direct burden on an instrumentality of interstate commerce and therefore struck it down. We said:
'The tax is exacted as the price of the privilege of using an instrumentality of interstate commerce. It reasonably cannot be distinguished from a tax for using a locomotive or a car employed in such commerce. A tax laid upon the use of the ferryboat, would present an exact parallel. And is not the fuel consumed in propelling the boat an instrumentality of commerce no less than the boat itself? A tax which falls directly upon the use of one of the means by which commerce is carried on directly burdens that commerce. If a tax cannot be laid by a state upon the interstate transportation of the subjects of commerce, as this Court definitely has held, it is little more than repetition to say that such a tax cannot be laid upon the use of a medium by which such transportation is effected. 'All restraints by exactions in the form of taxes upon such transportation, or upon acts necessary to its completion, are so many invasions of the exclusive power of Congress to regulate that portion of commerce between the States." Id., 252, 49 S.Ct., at 281.
| 78
|
405 U.S. 727
92 S.Ct. 1361
31 L.Ed.2d 636
SIERRA CLUB, Petitioner,v.Rogers C. B. MORTON, Individually, and as Secretary of the Interior of theUnited States, et al.
No. 70—34.
Argued Nov. 17, 1971.
Decided April 19, 1972.
Syllabus
Petitioner, a membership corporation with 'a special interest in the conservation and sound maintenance of the national parks, game refuges, and forests of the country,' brought this suit for a declaratory judgment and an injunction to restrain federal officials from approving an extensive skiing development in the Mineral King Valley in the Sequoia National Forest. Petitioner relies on § 10 of the Administrative Procedure Act, which accords judicial review to a 'person suffering legal wrong because of agency action, or (who is) adversely affected or aggrieved by agency action within the meaning of a relevant statute.' On the theory that this was a 'public' action involving questions as to the use of natural resources, petitioner did not allege that the challenged development would affect the club or its members in their activities or that they used Mineral King, but maintained that the project would adversely change the area's aesthetics and ecology. The District Court granted a preliminary injunction. The Court of Appeals reversed, holding that the club lacked standing, and had not shown irreparable injury. Held: A person has standing to seek judicial review under the Administrative Procedure Act only if he can show that he himself has suffered or will suffer injury, whether economic or otherwise. In this case, where petitioner asserted no individualized harm to itself or its members, it lacked standing to maintain the action. Pp. 731—741, 433 F.2d 24, affirmed.
Leland R. Selna, Jr., San Francisco, Cal., for petitioner.
Sol. Gen. Erwin N. Griswold, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
* The Mineral King Valley is an area of great natural beauty nestled in the Sierra Nevada Mountains in Tulare County, California, adjacent to Sequoia National Park. It has been part of the Sequoia National Forest since 1926, and is designated as a national game refuge by special Act of Congress.1 Though once the site of extensive mining activity, Mineral Kind in now used almost exclusively for recreational purposes. Its relative inaccessibility and lack of development have limited the number of visitors each year, and at the same time have preserved the valley's quality as a quasi-wilderness area largely uncluttered by the products of civilization.
2
The United States Forest Service, which is entrusted with the maintenance and administration of national forests, began in the late 1940's to give consideration to Mineral King as a potential site for recreational development. Prodded by a rapidly increasing demand for skiing facilities, the Forest Service published a prospectus in 1965, inviting bids from private developers for the construction and operation of a ski resort that would also serve as a summer recreation area. The proposal of Walt Disney Enterprises, Inc., was chosen from those of six bidders, and Disney received a three-year permit to conduct surveys and explorations in the valley in connection with its preparation of a complete master plan for the resort.
3
The final Disney plan, approved by the Forest Service in January 1969, outlines a $35 million complex of motels, restaurants, swimming pools, parking lots, and other structures designed to accommodate 14,000 visitors daily. This complex is to be constructed on 80 acres of the valley floor under a 30-year use permit from the Forest Service. Other facilities, including ski lifts, ski trails, a cog-assisted railway, and utility installations, are to be constructed on the mountain slopes and in other parts of the valley under a revocable special-use permit. To provide access to the resort, the State of California proposes to construct a highway 20 miles in length. A section of this road would traverse Sequoia National Park, as would a proposed highvoltage power line needed to provide electricity for the resort. Both the highway and the power line require the approval of the Department of the Interior, which is entrusted with the preservation and maintenance of the national parks.
4
Representatives of the Sierra Club, who favor maintaining Mineral King largely in its present state, followed the progress of recreational planning for the valley with close attention and increasing dismay. They unsuccessfully sought a public hearing on the proposed development in 1965, and in subsequent correspondence with officials of the Forest Service and the Department of the Interior, they expressed the Club's objections to Disney's plan as a whole and to particular features included in it. In June 1969 the Club filed the present suit in the United States District Court for the Northern District of California, seeking a declaratory judgment that various aspects of the proposed development contravene federal laws and regulations governing the preservation of national parks, forests, and game refuges,2 and also seeking preliminary and permanent injunctions restraining the federal officials involved from granting their approval or issuing permits in connection with the Mineral King project. The petitioner Sierra Club sued as a membership corporation with 'a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country,' and invoked the judicial-review provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
5
After two days of hearings, the District Court granted the requested preliminary injunction. It rejected the respondents' challenge to the Sierra Club's standing to sue, and determined that the hearing had raised questions 'concerning possible excess of statutory authority, sufficiently substantial and serious to justify a preliminary injunction. . . .' The respondents appealed, and the Court of Appeals for the Ninth Circuit reversed. 433 F.2d 24. With respect to the petitioner's standing, the court noted that there was 'no allegation in the complaint that members of the Sierra Club would be affected by the actions of (the respondents) other than the fact that the actions are personally displeasing or distasteful to them,' id., at 33, and concluded:
6
'We do not believe such club concern without a showing of more direct interest can constitute standing in the legal sense sufficient to challenge the exercise of responsibilities on behalf of all the citizens by two cabinet level officials of the government acting under Congressional and Constitutional authority.' Id., at 30.
7
Alternatively, the Court of Appeals held that the Sierra Club had no made an adequate showing of irreparable injury and likelihood of success on the merits to justify issuance of a preliminary injunction. The court thus vacated the injunction. The Sierra Club filed a petition for a writ of certiorari which we granted, 401 U.S. 907, 91 S.Ct. 870, 27 L.Ed.2d 805, to review the questions of federal law presented.
II
8
The first question presented is whether the Sierra Club has alleged facts that entitle it to obtain judicial review of the challenged action. Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue. Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a 'personal stake in the outcome of the controversy,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, as to ensure that 'the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.' Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947. Where, however, Congress has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.3
9
The Sierra Club relies upon § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702, which provides:
10
'A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.'
11
Early decisions under this statute interpreted the language as adopting the various formulations of 'legal interest' and 'legal wrong' then prevailing as constitutional requirements of standing.4 But, in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184, and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192, decided the same day, we held more broadly that persons had standing to obtain judicial review of federal agency action under § 10 of the APA where they had alleged that the challenged action had caused them 'injury in fact,' and where the alleged injury was to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated.5
12
In Data Processing, the injury claimed by the petitioners consisted of harm to their competitive position in the computer-servicing market through a ruling by the Comptroller of the Currency that national banks might perform data-processing services for their customers. In Barlow, the petitioners were tenant farmers who claimed that certain regulations of the Secretary of Agriculture adversely affected their economic position vis-a -vis their landlords. These palpable economic injuries have long been recognized as sufficient to lay the basis for standing, with or without a specific statutory provision for judicial review.6 Thus, neither Data Processing nor Barlow addressed itself to the question, which has arisen with increasing frequency in federal courts in recent years, as to what must be alleged by persons who claim injury of a noneconomic nature to interests that are widely shared.7 That question is presented in this case.
III
13
The injury alleged by the Sierra Club will be incurred entirely by reason of the change in the uses to which Mineral King will be put, and the attendant change in the aesthetics and ecology of the area. Thus, in referring to the road to be built through Sequoia National Park, the complaint alleged that the development 'would destroy or otherwise adversely affect the scenery, natural and historic objects and wildlife of the park and would impair the enjoyment of the park for future generations.' We do not question that this type of harm may amount to an 'injury in fact' sufficient to lay the basis for standing under § 10 of the APA. Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process. But the 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.
14
The impact of the proposed changes in the environment of Mineral King will not fall indiscriminately upon every citizen. The alleged injury will be felt directly only by those who use Mineral King and Sequoia National Park, and for whom the aesthetic and recreational values of the area will be lessened by the highway and ski resort. The Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney development. Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents.8
15
The Club apparently regarded an allegations of individualized injury as superfluous, on the theory that this was a 'public' action involving questions as to the use of natural resources, and that the Club's longstanding concern with and expertise in such matters were sufficient to give it standing as a 'representative of the public.'9 This theory reflects a misunderstanding of our cases involving so-called 'public actions' in the area of administrative law.
16
The origin of the theory advanced by the Sierra Club may be traced to a dictum in Scripps-Howard Radio v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229, in which the licensee of a radio station in Cincinnati, Ohio, sought a stay of an order of the FCC allowing another radio station in a nearby city to change its frequency and increase its range. In discussing its power to grant a stay, the Court noted that 'these private litigants have standing only as representatives of the public interest.' Id., at 14, 62 S.Ct., at 882. But that observation did not describe the basis upon which the appellant was allowed to obtain judicial review as a 'person aggrieved' within the meaning of the statute involved in that case,10 since ScrippsHoward was clearly 'aggrieved' by reason of the economic injury that it would suffer as a result of the Commission's action.11 The Court's statement was, rather directed to the theory upon which Congress had authorized judicial review of the Commission's actions. That theory had been described earlier in FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 869, as follows:
17
'Congress had some purpose in enacting section 402(b)(2). It may have been of opinion that one likely to be financially injured by the issue of a license would be the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license. It is within the power of Congress to confer such standing to prosecute an appeal.'
18
Taken together, Sanders and Scripps-Howard thus established a dual proposition: the fact of economic injury is what gives a person standing to seek judicial review under the statute, but once review is properly invoked, that person may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate.12 It was in the latter sense that the 'standing' of the appellant in Scripps-Howard, existed only as a 'representative of the public interest.' It is in a similar sense that we have used the phrase 'private attorney general' to describe the function performed by persons upon whom Congress has conferred the right to seek judicial review of agency action. See Data Processing, supra, 397 U.S., at 154, 90 S.Ct., at 830.
19
The trend of cases arising under the APA and other statutes authorizing judicial review of federal agency action has been toward recognizing that injuries other than economic harm are sufficient to bring a person within the meaning of the statutory language, and toward discarding the notion that an injury that is widely shared is ipso facto not an injury sufficient to provide the basis for judicial review.13 We noted this development with approval in Data Processing, 397 U.S., at 154, 90 S.Ct., at 830, in saying that the interest alleged to have been injured 'may reflect 'aesthetic, conservational, and recreational' as well as economic values.' But broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.
20
Some courts have indicated a willingness to take this latter step by conferring standing upon organizations that have demonstrated 'an organizational interest in the problem' of environmental or consumer protection. Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 395, 428 F.2d 1093, 1097.14 It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere 'interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' or 'aggrieved' within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a 'special interest' in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide 'special interest' organization however small or short-lived. And if any group with a bona fide 'special interest' could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.
21
The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process.15 It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process.16 The principle that the Sierra Club would have us establish in this case would do just that.
22
As we conclude that the Court of Appeals was correct in its holding that the Sierra Club lacked standing to maintain this action, we do not reach any other questions presented in the petition, and we intimate no view on the merits of the complaint. The judgment is
23
Affirmed.
24
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
25
Mr. Justice DOUGLAS, dissenting.
26
I share the views of my Brother BLACKMUN and would reverse the judgment below.
27
The critical question of 'standing'1 would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. See Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S.Cal.L.Rev. 450 (1972). This suit would therefore be more properly labeled as Mineral King v. Morton.
28
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes.2 The corporation sole—a creature of ecclesiastical law is an acceptable adversary and large fortunes ride on its cases.3 The ordinary corporation is a 'person' for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.4
29
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, proves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction.
30
I do not know Mineral King. I have never seen it nor traveled it, though I have seen articles describing its proposed 'development'5 notably Hano, Protectionists vs. recreationists—The Battle of Mineral King, N.Y. Times Mag., Aug. 17, 1969, p. 25; and Browning, Mickey Mouse in the Mountains, Harper's, March 1972, p. 65. The Sierra Club in its complaint alleges that '(o)ne of the principal purposes of the Sierra Club is to protect and conserve the national resources of the Sierra Nevada Mountains.' The District Court held that this uncontested allegation made the Sierra Club 'sufficiently aggrieved' to have 'standing' to sue on behalf of Mineral King.
31
Mineral King is doubtless like other wonders of the Sierra Nevada such as Tuolumne Meadows and the John Muir Trail. Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.
32
The Solicitor General, whose views on this subject are in the Appendix to this opinion, takes a wholly different approach. He considers the problem in terms of 'government by the Judiciary.' With all respect, the problem is to make certain that the inanimate objects, which are the very core of America's beauty, have spokesmen before they are destroyed. It is, of course, true that most of them are under the control of a federal or state agency. The standards given those agencies are usually expressed in terms of the 'public interest.' Yet 'public interest' has so many differing shades of meaning as to be quite meaningless on the environmental front. Congress accordingly has adopted ecological standards in the National Environmental Policy Act of 1969, Pub.L. 91—90, 83 Stat. 852, 42 U.S.C. § 4321 et seq., and guidelines for agency action have been provided by the Council on Environmental Quality of which Russell E. Train is Chairman. See 36 Fed.Reg. 7724.
33
Yet the pressures on agencies for favorable action one way or the other are enormous. The suggestion that Congress can stop action which is undesirable is true in theory; yet even Congress is too remote to give meaningful direction and its machinery is too ponderous to use very often. The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency which in time develops between the regulator and the regulated.6 As early as 1894, Attorney General Olney predicted that regulatory agencies might become 'industry-minded,' as illustrated by his forecast concerning the Interstate Commerce Commission:
34
'The Commission . . . is, or can be made, of great use to the railroads. It satisfies the popular clamor for a government supervision of railroads, at the same time that that supervision is almost entirely nominal. Further, the older such a commission gets to be, the more inclined it will be found to take the business and railroad view of things.' M. Josephson, The Politicos 526 (1938).
35
Years later a court of appeals observed, 'the recurring question which has plagued public regulation of industry (is) whether the regulatory agency is unduly oriented toward the interests of the industry it is designed to regulate, rather than the public interest it is designed to protect.' Moss v. CAB, 139 U.S.App.D.C. 150, 152, 430 F.2d 891, 893. See also Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 337—338, 359 F.2d 994, 1003—1004; Udall v. FPC, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869; Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109; Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584; Environmental Defense Fund, Inc. v. United States Dept. of HEW, 138 U.S.App.D.C. 381, 428 F.2d 1083; Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 620. But see Jaffe, The Federal Regulatory Agencies In Perspective: Administrative Limitations In A Political Setting, 11 B.C.Ind. & Com.L.Rev. 565 (1970) (labels 'industry-mindedness' as 'devil' theory).
36
The Forest Service—one of the foderal agencies behind the scheme to despoil Mineral King—has been notorious for its alignment with lumber companies, although its mandate from Congress directs it to consider the various aspects of multiple use in its supervision of the national forests.7
37
The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.8
38
Perhaps they will not win. Perhaps the bulldozers of 'progress' will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?
39
Those who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or sleep there, or run the Allagash in Maine, or climb the Guadalupes in West Texas, or who canoe and portage the Quetico Superior in Minnesota, certainly should have standing to defend those natural wonders before courts or agencies, though they live 3,000 miles away. Those who merely are caught up in environmental news or propaganda and flock to defend these waters or areas may be treated differently. That is why these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life9 which it represents will stand before the court—the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.
40
Ecology reflects the land ethic; and Aldo Leopold wrote in A Sand County Almanac 204 (1949), 'The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land.'
41
That, as I see it, is the issue of 'standing' in the present case and controversy.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
42
Extract From Oral Argument of The Solicitor General*
43
'As far as I know, no case has yet been decided which holds that a plaintiff which merely asserts that, to quote from the complaint here, its interest would be widely affected (a)nd that 'it would be aggrieved' by the acts of the defendant, has standing to raise legal questions in court.
44
'But why not? Do not the courts exist to decide legal questions? And are they not the most impartial and learned agencies that we have in our governmental system? Are there not many questions which must be decided by the courts? Why should not the courts decide any question which any citizen wants to raise?
45
'As the tenor of my argument indicates, this raises, I think, a true question, perhaps a somewhat novel question, in the separation of powers. . . .
46
'Ours is not a government by the Judiciary. It is a government of three branches, each of which was intended to have broad and effective powers subject to checks and balances. In litigable cases, the courts have great authority. But the Founders also intended that the Congress should have wide powers, and that the Executive Branch should have wide powers. All these officers have great responsibilities. They are not less sworn than are the members of this Court to uphold the Constitution of the United States.
47
'This, I submit, is what really lies behind the standing doctrine, embodied in those cryptic words 'case' and 'controversy' in Article III of the Constitution.
48
'Analytically one could have a system of government in which every legal question arising in the core of government would be decided by the courts. It would not be, I submit, a good system.
49
'More important, it is not the system which was ordained and established in our Constitution, as it has been understood for nearly 200 years.
50
'Over the past 20 or 25 years, there has been a great shift in the decision of legal questions in our governmental operations into the courts. This has been the result of continuous whittling away of the numerous doctrines which have been established over the years, designed to minimize the number of governmental questions which it was the responsibility of the courts to consider.
51
'I've already mentioned the most ancient of all: case or controversy, which was early relied on to prevent the presentation of feigned issues to the court.
52
'But there are many other doctrines, which I cannot go into in detail: review-ability, justiciability, sovereign immunity, mootness in various aspects, statutes of limitations in laches, jurisdictional amount, real party in interest, and various questions in relation to joinder.
53
'Under all of these headings, limitations which previously existed to minimize the number of questions decided in courts, have broken down in varying degrees.
54
'I might also mention the explosive development of class actions, which has thrown more and more issues into the courts.
55
'If there is standing in this case, I find it very difficult to think of any legal issue arising in government which will not have to await one or more decisions of the Court before the administrator, sworn to uphold the law, can take any action. I'm not sure that this is good for the government. I'm not sure that it's good for the courts. I do find myself more and more sure that it is not the kind of allocation of governmental power in our tripartite constitutional system that was contemplated by the Founders.
56
'I do not suggest that the administrators can act at their whim and without any check at all. On the contrary, in this area they are subject to continuous check by the Congress. Congress can stop this development any time it wants to.'
57
Mr. Justice BRENNAN, dissenting.
58
I agree that the Sierra Club has standing for the reasons stated by my Brother BLACKMUN in Alternative No. 2 of his dissent. I therefore would reach the merits. Since the Court does not do so, however, I simply note agreement with my Brother BLACKMUN that the merits are substantial.
59
Mr. Justice BLACKMUN, dissenting.
60
The Court's opinion is a practical one espousing and adhering to traditional notions of standing as somewhat modernized by Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); and Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). If this were an ordinary case, I would join the opinion and the Court's judgment and be quite content.
61
But this is not ordinary, run-of-the-mill litigation. The case poses—if only we choose to acknowledge and reach them significant aspects of a wide, growing, and disturbing problem, that is, the Nation's and the world's deteriorating environment with its resulting ecological disturbances. Must our law be so rigid and our procedural concepts so inflexible that we render ourselves helpless when the existing methods and the traditional concepts do not quite fit and do not prove to be entirely adequate for new issues?
62
The ultimate result of the Court's decision today, I fear, and sadly so, is that the 35.3-million-dollar complex, over 10 times greater than the Forest Service's suggested minimum, will now hastily proceed to completion; that serious opposition to it will recede in discouragement; and that Mineral King, the 'area of great natural beauty nestled in the Sierra Nevada Mountains,' to use the Court's words, will become defaced, at least in part, and, like so many other areas, will cease to be 'uncluttered by the products of civilization.'
63
I believe this will come about because: (1) The District Court, although it accepted standing for the Sierra Club and granted preliminary injunctive relief, was reversed by the Court of Appeals, and this Court now upholds that reversal. (2) With the reversal, interim relief by the District Court is now out of the question and a permanent injunction becomes most unlikely. (3) The Sierra Club may not choose to amend its complaint or, if it does desire to do so, may not, at this late date, be granted permission. (4) The ever-present pressure to get the project under way will mount. (5) Once under way, any prospect of bringing it to a halt will grow dim. Reasons, most of them economic, for not stopping the project will have a tendency to multiply. And the irreparable harm will be largely inflicted in the earlier stages of construction and development.
64
Rather than pursue the course the Court has chosen to take by its affirmance of the judgment of the Court of Appeals, I would adopt one of two alternatives:
65
1. I would reverse that judgment and, instead, approve the judgment of the District Court which recognized standing in the Sierra Club and granted preliminary relief. I would be willing to do this on condition that the Sierra Club forthwith amend its complaint to meet the specifications the Court prescribes for standing. If Sierra Club fails or refuses to take that step, so be it; the case will then collapse. But if it does amend, the merits will be before the trial court once again. As the Court, ante, at 730 n. 2, so clearly reveals, the issues on the merits are substantial and deserve resolution. They assay new ground. They are crucial to the future of Mineral King. They raise important ramifications for the quality of the country's public land management. They pose the propriety of the 'dual permit' device as a means of avoiding the 80-acre 'recreation and resort' limitation imposed by Congress in 16 U.S.C. § 497, an issue that apparently has never been litigated, and is clearly substantial in light of the congressional expansion of the limitation in 1956 arguably to put teeth into the old, unrealistic five-acre limitation. In fact, they concern the propriety of the 80-acre permit itself and the consistency of the entire, enormous development with the statutory purposes of the Sequoia Game Refuge, of which the Valley is a part. In the context of this particular development, substantial questions are raised about the use of a national park area for Disney purposes for a new high speed road and a 66,000-volt power line to serve the complex. Lack of compliance with existing administrative regulations is also charged. These issues are not shallow or perfunctory.
66
2. Alternatively, I would permit an imaginative expansion of our traditional concepts of standing in order to enable an organization such as the Sierra Club, possessed, as it is, of pertinent, bona fide, and well-recognized attributes and purposes in the area of environment, to litigate environmental issues. This incursion upon tradition need not be very extensive. Certainly, it should be no cause for alarm. It is no more progressive than was the decision in Data Processing itself. It need only recognize the interest of one who has a provable, sincere, dedicated, and established status. We need not fear that Pandora's box will be opened or that there will be no limit to the number of those who desire to participate in environmental litigation. The courts will exercise appropriate restraints just as they have exercised them in the past. Who would have suspected 20 years ago that the concepts of standing enunciated in Data Processing and Barlow would be the measure for today? And Mr. Justice DOUGLAS, in his eloquent opinion, has imaginatively suggested another means and one, in its own way, with obvious, appropriate, and self-imposed limitations as to standing. As I read what he has written, he makes only one addition to the customary criteria (the existence of a genuine dispute; the assurance of adversariness; and a conviction that the party whose standing is challenged will adequately represent the interests he asserts), that is, that the litigant be one who speaks knowingly for the environmental values he asserts.
I make two passing references:
67
1. The first relates to the Disney figures presented to us. The complex, the Court notes, will accommodate 14,000 visitors a day (3,100 overnight; some 800 employees; 10 restaurants; 20 ski lifts). The State of California has proposed to build a new road from Hammond to Mineral King. That road, to the extent of 9.2 miles, is to traverse Sequoia National Park. It will have only two lanes, with occasional passing areas, but it will be capable, it is said, of accommodating 700—800 vehicles per hour and a peak of 1,200 per hour. We are told that the State has agreed not to seek any further improvement in road access through the park.
68
If we assume that the 14,000 daily visitors come by automobile (rather than by helicopter or bus or other known or unknown means) and that each visiting automobile carries four passengers (an assumption, I am sure, that is far too optimistic), those 14,000 visitors will move in 3,500 vehicles. If we confine their movement (as I think we properly may for this mountain area) to 12 hours out of the daily 24, the 3,500 automobiles will pass any given point on the two-lane road at the rate of about 300 per hour. This amounts to five vehicles per minute, or an average of one every 12 seconds. This frequency is further increased to one every six seconds when the necessary return traffic along that same two-lane road is considered. And this does not include service vehicles and employees' cars. Is this the way we perpetuate the wilderness and its beauty, solitude, and quiet?
69
2. The second relates to the fairly obvious fact that any resident of the Mineral King area—the real 'user'—is an unlikely adversary for this Disneygovernmental project. He naturally will be inclined to regard the situation as one that should benefit him economically. His fishing or camping or guiding or handyman or general outdoor prowess perhaps will find an early and ready market among the visitors. But that glow of anticipation will be short-lived at best. If he is a true lover of the wilderness—as is likely, or he would not be near Mineral King in the first place—it will not be long before he yearns for the good old days when masses of people—that 14,000 influx per day—and their thus far uncontrollable waste were unknown to Mineral King.
70
Do we need any further indication and proof that all this means that the area will no longer be one 'of great natural beauty' and one 'uncluttered by the products of civilization?' Are we to be rendered helpless to consider and evaluate allegations and challenges of this kind because of procedural limitations rooted in traditional concepts of standing? I suspect that this may be the result of today's holding. As the Court points out, at 738—739, other federal tribunals have not felt themselves so confined.1 I would join those progressive holdings.
71
The Court chooses to conclude its opinion with a foot note reference to De Tocqueville. In this environmental context I personally prefer the older and particularly pertinent observation and warning of John Donne.2
1
Act of July 3, 1926, § 6, 44 Stat. 821, 16 U.S.C. § 688.
2
As analyzed by the District Court, the complaint alleged violations of law falling into four categories. First, it claimed that the special-use permit for construction of the resort exceeded the maximum-acreage limitation placed upon such permits by 16 U.S.C. § 497, and that issuance of a 'revocable' use permit was beyond the authority of the Forest Service. Second, it challenged the proposed permit for the highway through Sequoia National Park on the grounds that the highway would not serve any of the purposes of the park, in alleged violation of 16 U.S.C. § 1, and that it would destroy timber and other natural resources protected by 16 U.S.C. §§ 41 and 43. Third, it claimed that the Forest Service and the Department of the Interior had violated their own regulations by failing to hold adequate public hearings on the proposed project. Finally, the complaint asserted that 16 U.S.C.s 45c requires specific congressional authorization of a permit for construction of a power transmission line within the limits of a national park.
3
Congress may not confer jurisdiction on Art. III federal courts to render advisory opinions, Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 450, 55 L.Ed. 246, or to entertain 'friendly' suits, United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413, or to resolve 'political questions,' Luther v. Borden, 7 How. 1, 12 L.Ed. 581, because suits of this character are inconsistent with the judicial function under Art. III. But where a dispute is otherwise justiciable, the question whether the litigant is a 'proper party to request an adjudication of a particular issue,' Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, is one within the power of Congress to determine. Cf. FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 869; Flast v. Cohen, supra, 392 U.S., at 120, 88 S.Ct., at 1963 (Harlan, J., dissenting); Associated Industries of New York State v. Ickes, 2 Cir., 134 F.2d 694, 704. See generally Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 Yale L.J. 816, 827 et seq. (1969); Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U.Pa.L.Rev. 1033 (1968).
4
See, e.g., Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 281, 225 F.2d 924, 932; Ove Gustavsson Contracting Co. v. Floete, 2 Cir., 278 F.2d 912, 914; Duba v. Schuetzle, 8 Cir., 303 F.2d 570, 574. The theory of a 'legal interest' is expressed in its extreme form in Alabama Power Co. v. Ickes, 302 U.S. 464, 479—481, 58 S.Ct. 300, 303—304, 82 L.Ed. 374. See also Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137 139, 59 S.Ct. 366, 369—370, 83 L.Ed. 543.
5
In deciding this case we do not reach any questions concerning the meaning of the 'zone of interests' test or its possible application to the facts here presented.
6
See, e.g., Hardin v. Kentucky, Utilities Co., 390 U.S. 1, 7, 88 S.Ct. 651, 655, 19 L.Ed.2d 787; Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83, 78 S.Ct. 1063, 1067, 2 L.Ed.2d 1174; FCC v. Sanders Bros. Radio Station, supra, 309 U.S., at 477, 60 S.Ct., at 698.
7
No question of standing was raised in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136. The complaint in that case alleged that the organizational plaintiff represented members who were 'residents of Memphis, Tennessee who use Overton Park as a park land and recreation area and who have been active since 1964 in efforts to preserve and protect Overton Park as a part land and recreation area.'
8
The only reference in the pleadings to the Sierra Club's interest in the dispute is contained in paragraph 3 of the complaint, which reads in its entirety as follows:
'Plaintiff Sierra Club is a non-profit corporation organized and operating under the laws of the State of California, with its principal place of business in San Francisco, California since 1892. Membership of the club is approximately 78,000 nationally, with approximately 27,000 members residing in the San Francisco Bay Area. For many years the Sierra Club by its activities and conduct has exhibited a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country, regularly serving as a responsible representative of persons similar interested. One of the principal purposes of the Sierra Club is to protect and conserve the national resources of the Sierra Nevada Mountains. Its interests would be vitally affected by the acts hereinafter described and would be aggrieved by those acts of the defendants as hereinafter more fully appears.'
In an amici curiae brief filed in this Court by the Wilderness Society and others, it is asserted that the Sierra Club has conducted regular camping trips into the Mineral King area, and that various members of the Club have used and continue to use the area for recreational purposes. These allegations were not contained in the pleadings, nor were they brought to the attention of the Court of Appeals. Moreover, the Sierra Club in its reply brief specifically declines to rely on its individualized interest, as a basis for standing. See n. 15, infra. Our decision does not, of course, bar the Sierra Club from seeking in the District Court to amend its complaint by a motion under Rule 15, Federal Rules of Civil Procedure.
9
This approach to the question of standing was adopted by the Court of Appeals for the Second Circuit in Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97, 105:
'We hold, therefore, that the public interest in environmental resources—an interest created by statutes affecting the issuance of this permit—is a legally protected interest affording these plaintiffs, as responsible representatives of the public, standing to obtain judicial review of agency action alleged to be in contravention of that public interest.'
10
The statute involved was § 402(b)(2) of the Communications Act of 1934, 48 Stat. 1093.
11
This much is clear from the Scripps-Howard Court's citation of FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed 869, in which the basis for standing was the competitive injury that the appellee would have suffered by the licensing of another radio station in its listening area.
12
The distinction between standing to initiate a review proceeding, and standing to assert the rights of the public or of third persons once the proceeding is properly initiated, is discussed in 3 K. Davis, Administrative Law Treatise §§ 22.05 22.07 (1958).
13
See, e.g., Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 395, 428 F.2d 1093, 1097 (interest in health affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containing DDT); Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 339, 359 F.2d 994, 1005 (interest of television viewers in the programing of a local station licensed by the FCC); Scenic Hudson Preservation Conf. v. FPC, 2 Cir., 354 F.2d 608, 615 616 (interests in aesthetics, recreation, and orderly community planning affected by FPC licensing of a hydroelectric project); Reade v. Ewing, 2 Cir., 205 F.2d 630, 631—632 (intest of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration); Crowther v. Seaborg, D.C., 312 F.Supp. 1205, 1212 (interest in health and safety of persons residing near the site of a proposed atomic blast).
14
See Citizens Committee for Hudson Valley v. Volpe, n. 9, supra; Environmental Defense Fund, Inc. v. Corps of Engineers, D.C., 325 F.Supp. 728, 734—736; Izaak Walton League of America v. St. Clair, D.C., 313 F.Supp. 1312, 1317. See also Scenic Hudson Preservation Conf. v. FPC, supra, 354 F.2d, at 616:
'In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be included in the class of 'aggrieved' parties under § 313(b) (of the Federal Power Act).'
In most, if not all, of these cases, at least one party to the proceeding did assert an individualized injury either to himself or, in the case of an organization, to its members.
15
In its reply brief, after noting the fact that it might have chosen to assert individualized injury to itself or to its members as a basis for standing, the Sierra Club states:
'The Government seeks to create a 'heads I win, tails you lose' situation in which either the courthouse door is barred for lack of assertion of a private, unique injury or a preliminary injunction is denied on the ground that the litigant has advanced private injury which does not warrant an injunction adverse to a competing public interest. Counsel have shaped their case to avoid this trap.'
The short answer to this contention is that the 'trap' does not exist. The test of injury in fact goes only to the question of standing to obtain judicial review. Once this standing is established, the party may assert the interests of the general public in support of his claims for equitable relief. See n. 12 and accompanying text, supra.
16
Every school boy may be familiar with Alexis de Tocqueville's famous observation, written in the 1830's, that 'scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.' 1 Democracy in America 280 (1945). Less familiar, however, is De Tocqueville's further observation that judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury.
'It will be seen, also, that by leaving it to private interest to censure the law, any by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.' Id., at 102.
1
See generally Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). See also Mr. Justice Brennan's separate opinion in Barlow v. Collins, supra, 397 U.S., at 167, 90 S.Ct., at 838. The issue of statutory standing aside, no doubt exists that 'injury in fact' to 'aesthetic' and 'conservational' interests is here sufficienty threatened to satisfy the case-or-controversy clause. Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S., at 1564, 90 S.Ct., at 830.
2
In rem actions brought to adjudicate libelants' interests in vessels are well known in admiralty. G. Gilmore & C. Black, The Law of Admiralty 31 (1957). But admiralty also permits a salvage action to be brought in the name of the rescuing vessel. The Camanche, 8 Wall. 448, 476, 19 L.Ed. 397 (1869). And, in collision litigation, the first-libeled ship may counterclaim in its own name. The Gylfe v. The Trujillo, 209 F.2d 386 (CA2 1954). Our case law has personified vessels:
'A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron . . .. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed . . .. She acquires a personality of her own.' Tucker v. Alexandroff, 183 U.S. 424, 438, 22 S.Ct. 195, 201, 46 L.Ed. 264.
3
At common law, an officeholder, such as a priest or the king, and his successors constituted, a corporation sole, a legal entity distinct from the personality which managed it. Rights and duties were deemed to adhere to this device rather than to the officeholder in order to provide continuity after the latter retired. The notion is occasionally revived by American courts. E.g., Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927), discussed in Recent Cases, 12 Minn.L.Rev. 295 (1928), and in Note, 26 Mich.L.Rev. 545 (1928); see generally 1 W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 50—53 (1963); 1 P. Potter, Law of Corporations 27 (1881).
4
Early jurists considered the conventional corporation to be a highly artificial entity. Lord Coke opined that a corporation's creation 'rests only in intendment and consideration of the law.' Case of Sutton's Hospital, 77 Eng.Rep. 937, 973 (K.B.1612). Mr. Chief Justice Marshall added that the device is 'an artificial being, invisible, intangible, and existing only in contemplation of law.' Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636, 4 L.Ed. 629 (1819). Today, suits in the names of corporations are taken for granted.
5
Although in the past Mineral King Valley has annually supplied about 70,000 visitordays of simpler and more rustic forms of recreation—hiking, camping, and skiing (without lifts)—the Forest Service in 1949 and again in 1965 invited developers to submit proposals to 'improve' the Valley for resort use. Walt Disney Productions won the competition and transformed the Service's idea into a mammoth project 10 times its originally proposed dimensions. For example,
while the Forest Service prospectus called for an investment of at least $3 million and a sleeping capacity of at least 100, Disney will spend $35.3 million and will bed down 3,300 persons by 1978. Disney also plans a nine-level parking structure with two supplemental lots for automobiles, 10 restaurants and 20 ski lifts. The Service's annual license revenue is hitched to Disney's profits. Under Disney's projections, the Valley will be forced to accommodate a tourist population twice as dense as that in Yosemite Valley on a busy day. And, although Disney has bought up much of the private land near the project, another commercial firm plans to transform an adjoining 160-acre parcel into a 'piggyback' resort complex, further adding to the volume of human activity the Valley must endure. See generally Note, Mineral King Valley: Who Shall Watch the Watchmen?, 25 Rutgers L.Rev. 103, 107 (1970); Thar's Gold in Those Hills, 206 The Nation 260 (1968). For a general critique of mass recreation enclaves in national forests see Christian Science Monitor, Nov. 22, 1965, p. 5, col. 1 (Western ed.). Michael Frome cautions that the national forests are 'fragile' and 'deteriorate rapidly with excessive recreation use' because '(T)he trampling effect alone eliminates vegetative growth, creating erosion and water run-off problems. The concentration of people, particularly in horse parties, on excessively steep slopes that follow old Indian or cattle routes, has torn up the landscape of the High Sierras in California and sent tons of wilderness soil washing downstream each year.' M. Frome, The Forest Service 69 (1971).
6
The federal budget annually includes about $75 million for underwriting about 1,500 advisory committees attached to various regulatory agencies. These groups are almost exclusively composed of industry representatives appointed by the President or by Cabinet members. Although public members may be on these committees, they are rarely asked to serve. Senator Lee Metcalf warns: 'Industry advisory committees exist inside most important federal agencies, and even have offices in some. Legally, their function is purely as kibitzer, but in practice many have become internal lobbies—printing industry handouts in the Government Printing Office with taxpayers' money, and even influencing policies. Industry committees perform the dual function of stopping government from finding out about corporations while at the same time helping corporations get inside information about what government is doing. Sometimes, the same company that sits on an advisory council that obstructs or turns down a government questionnaire is precisely the company which is withholding information the government needs in order to enforce a law.' Metcalf, The Vested Oracles; How Industry Regulates Government, 3 The Washington Monthly, July 1971, p. 45. For proceedings conducted by Senator Metcalf exposing these relationships, see Hearings on S. 3067 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 91st Cong., 2d Sess. (1970); Hearings on S. 1637, S. 1964, and S. 2064 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 92d Cong., 1st Sess. (1971).
The web spun about administrative agencies by industry representatives does not depend, of course, solely upon advisory committees for effectiveness. See Elman, Administrative Reform of the Federal Trade Commission, 59 Geo.L.J. 777, 788 (1971); Johnson, A New Fidelity to the Regulatory Ideal, 59 Geo.L.J. 869, 874, 906 (1971); R. Berkman & K. Viscusi, Damming The West, The Ralph Nader Study Group Report On The Bureau of Reclamation 155 (1971); R. Fellmeth, The Interstate Commerce Omission, The Ralph Nader Study Group Report on the Interstate Commerce Commission and Transportation 15—39 and passim (1970); J. Turner, The Chemical Feast, The Ralph Nader Study Group Report on Food Protection and the Food and Drug Administration passim (1970); Massel, The Regulatory Process, 26 Law & Contemp.Prob. 181, 189 (1961); J. Landis, Report on Regulatory Agencies to the President-Elect 13, 69 (1960).
7
The Forest Reserve Act of 1897, 30 Stat. 35, 16 U.S.C. § 551, imposed upon the Secretary of the Interior the duty to 'preserve the (national) forests . . . from destruction' by regulating their 'occupancy and use.' In 1905 these duties and powers were transferred to the Forest Service created within the Department of Agriculture by the Act of Feb. 1, 1905, 33 Stat. 628, 16 U.S.C. § 472. The phrase 'occupancy and use' has been the cornerstone for the concept of 'multiple use' of national forests, that is, the policy that uses other than logging were also to be taken into consideration in managing our 154 national forests. This policy was made more explicit by the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U.S.C. §§ 528—531, which provides that competing considerations should include outdoor recreation, range, timber, watershed, wildlife, and fish purposes. The Forest Service, influenced by powerful logging interests, has, however, paid only lip service to its multiple-use mandate and has auctioned away millions of timberland acres without considering environmental or conservational interests. The importance of national forests to the construction and logging industries results from the type of lumber grown therein which is well suited to builders' needs. For example, Western acreage produces Douglas fir (structural support) and ponderosa pine (plywood lamination). In order to preserve the total acreage and so-called 'maturity' of timber, the annual size of a Forest Service harvest is supposedly equated with expected yearly reforestation. Nonetheless, yearly cuts have increased from 5.6 billion board feet in 1950 to 13.74 billion in 1971. Forestry professionals challenge the Service's explanation that this harvest increase to 240% is not really overcutting but instead has resulted from its improved management of timberlands. 'Improved management,' answer the critics, is only a euphemism for exaggerated regrowth forecasts by the Service. N.Y. Times, Nov. 15, 1971, p. 48, col. 1. Recent rises in lumber prices have caused a new round of industry pressure to auction more federally owned timber. See Wagner, Resources Report/Lumbermen,
conservationists head for new battle over government timber, 3 National J. 657 (1971).
Aside from the issue of how much timber should be cut annually, another crucial question is how lumber should be harvested. Despite much criticism, the Forest Service had adhered to a policy of permitting logging companies to 'clearcut' tracts of actioned acreage. 'Clearcutting,' somewhat analogous to strip mining, is the indiscriminate and complete shaving from the earth of all trees—regardless of size or age—often across hundreds of contiguous acres.
Of clearcutting, Senator Gale McGee, a leading antagonist of Forest Service policy, complains: 'The Forest Service's management policies are wreaking havoc with the environment. Soil is eroding, reforestation is neglected if not ignored, streams are silting, and clearcutting remains a basic practice.' N.Y. Times, Nov. 14, 1971, p. 60, col. 2. He adds: 'In Wyoming . . . the Forest Service is very much . . . nursemaid . . . to the lumber industry . . ..' Hearings on Management Practices of the Public Lands before the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs, pt. 1, p. 7 (1971).
Senator Jennings Randolph offers a similar criticism of the leveling by lumber companies of large portions of the Monongahela National Forest in West Virginia. Id., at 9. See also 116 Cong.Rec. 36971 (reprinted speech of Sen. Jennings Randolph concerning Forest Service policy in Monongahela National Forest). To investigate similar controversy surrounding the Service's management of the Bitterroot National Forest in Montana, Senator Lee Metcalf recently asked forestry professionals at the University of Montana to study local harvesting practices. The faculty group concluded that public dissatisfaction had arisen from the Forest Service's 'overriding concern for sawtimber production' and its 'insensitivity to the related forest uses and to the . . . public's interest in environmental values.' S.Doc. No. 91—115, p. 14 (1970). See also Behan, Timber Mining: Accusation or Prospect?, American Forests, Nov. 1971, p. 4 (additional comments of faculty participant); Reich, The Public and the Nation's Forests, 50 Calif.L.Rev. 381—400 (1962).
Former Secretary of the Interior Walter Hickel similarly faulted clearcutting as excusable only as a money-saving harvesting practice
for large lumber corporations. W. Hickel, Who Owns America? 130 (1971). See also Risser, The U.S. Forest Service: Smokey's Strip Miners, 3 The Washington Monthly, Dec. 1971, p. 16. And at least one Forest Service study team shares some of these criticisms of clearcutting. U.S. Dept. of Agriculture, Forest Management in Wyoming 12 (1971). See also Public Land Law Review Comm'n, Report to the President and to the Congress 44 (1970); Chapman, Effects of Logging upon Fish Resources of the West Coast, 60 J. of Forestry 533 (1962).
A third category of criticism results from the Service's huge backlog of delayed reforestation projects. It is true that Congress has underfunded replanting programs of the Service but it is also true that the Service and lumber companies have regularly ensured that Congress fully funds budgets requested for the Forest Service's 'timber sales and management.' M. Frome, The Environment and Timber Resources, in What's Ahead for Our Public Lands? 23, 24 (H. Pyles ed. 1970).
8
Permitting a court to appoint a representative of an inanimate object would not be significantly different from customary judicial appointments of guardians ad litem, executors, conservators, receivers, or counsel for indigents.
The values that ride on decisions such as the present one are often not appreciated even by the so-called experts.
'A teaspoon of living earth contains 5 million bacteria, 20 million fungi, one million protozoa, and 200,000 algae. No living human can predict what vital miracles may be locked in this dab of life, this stupendous reservoir of genetic materials that have evolved continuously since the dawn of the earth. For example, molds have existed on earth for about 2 billion years. But only in this century did we unlock the secret of the penicillins, tetracyclines, and other antibiotics from the lowly molds, and thus fashion the most powerful and effective modicines ever discovered by man. Medical scientists still wince at the thought that we might have inadvertently wiped
out the rhesus monkey, medically, the most important research animal on earth. And who knows what revelations might lie in the cells of the blackback gorilla nesting in his eyrie this moment in the Virunga Mountains of Rwanda? And what might we have learned from the European lion, the first species formally noted (in 80 A.D.) as extinct by the Romans?
'When a species is gone, it is gone forever, Nature's genetic chain, billions of years in the making, is broken for all time.' Conserve—Water, Land and Life, Nov. 1971, p. 4.
Aldo Leopold wrote in Round River 147 (1953):
'In Germany there is a mountain called the Spessart. Its south slope bears the most magnificent oaks in the world. American cabinetmakers, when they want the last word in quality, use Spessart oak. The north slope, which should be the better, bears an indifferent stand of Scotch pine. Why? Both slopes are part of the same state forest; both have been managed with equally scrupulous care for two centuries. Why the difference?
'Kick up the litter under the oaks and you will see that the leaves rot almost as fast as they fall. Under the pines, though, the needles pile up as a thick duff; decay is much slower. Why? Because in the Middle Ages the south slope was preserved as a deer forest by a hunting bishop; the north slope was pastured, plowed, and cut by settlers, just as we do with our woodlots in Wisconsin and Iowa today. Only after this period of abuse was the north slope replanted to pines. During this period of abuse something happened to the microscopic flora and fauna of the soil. The number of species was greatly reduced, i.e., the digestive apparatus of the soil lost some of its parts. Two centuries of conservation have not sufficed to restore these losses. It required the modern microscope, and a century of research in soil science, to discover the existence of these 'small cogs and wheels' which determine harmony or disharmony between men and land in the Spessart.'
9
Senator Cranston has introduced a bill to establish a 35,000-acre Pupfish National Monument to honor the pupfish which are one inch long and are useless to man. S. 2141, 92d Cong., 1st Sess. They are too small to eat and unfit for a home aquarium. But as Michael Frome has said:
'Still, I agree with Senator Cranston that saving the pupfish would symbolize our appreciation of diversity in God's tired old biosphere, the qualities which hold it together and the interaction of life forms. When fishermen rise up united to save the pupfish they can save the world as well.' Field & Stream, Dec. 1971, p. 74.
*
Tr. of Oral Arg. 31—35.
1
Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 394—395, 428 F.2d 1093, 1096—1097 (1970); Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97, 101 105 (CA2 1970), cert. denied, Parker v. Citizens Committee for Hudson Valley, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256; Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608 615—617 (CA2 1965); Izaak Walton League of America v. St. Clair, 313 F.Supp. 1312, 1316—1317 (D.Minn.1970); Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F.Supp. 878, 879—880 (D.C.D.C.1971); Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 728, 734—736 (E.D.Ark. 1970—1971); Sierra Club v. Hardin, 325 F.Supp. 99, 107—112 (D.Alaska 1971); Upper Pecos Assn. v. Stans, 328 F.Supp. 332, 333—334 (D.N.Mex.1971); Cape May County Chapter, Inc., Izaak Walton League of America v. Macchia, 329 F.Supp. 504, 510—514 (D.N.J.1971). See National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 278—279, 443 F.2d 689, 693—694 (1971); West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 234—235 (CA4 1971); Environmental Defense Fund, Inc. v. United States Dept. of HEW, 138 U.S.App.D.C. 381, 383 n. 2, 428 F.2d 1083, 1085 n. 2 (1970); Honchok v. Hardin, 326 F.Supp. 988, 991 (D.Md.1971).
2
'No man is an Iland, intire of itselfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any man's death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; it tolls for thee.' Devotions XVII.
| 78
|
406 U.S. 91
92 S.Ct. 1385
31 L.Ed.2d 712
State of ILLINOISv.CITY OF MILWAUKEE, WISCONSIN, et al.
No. 49, Orig.
Argued Feb. 29, 1972.
Decided April 24, 1972.
Syllabus
The State of Illinois has filed a motion for leave to file a bill of complaint against four Wisconsin cities and two local sewerage commissions for allegedly polluting Lake Michigan. Illinois seeks to invoke the Court's original jurisdiction on the ground that the defendants are instrumentalities of Wisconsin and that this suit is therefore one against the State that must be brought in this Court under Art. III, § 2, cl. 2, of the Constitution which confers original jurisdiction on the Court '(i)n all cases . . . in which a State shall be a party,' and 28 U.S.C. § 1251(a)(1), which provides that the Court shall have 'original and exclusive jurisdiction of (all) controversies between two or more States . . ..' Under 28 U.S.C. § 1251(b)(3) the Court has 'original but not exclusive' jurisdiction of actions by a State against citizens of another State, and under § 1331(a) a district court has original jurisdiction 'of all civil actions wherein the matter in controversy exceeds $10,000 . . . and (arises) under the Constitution (or) laws . . . of the United States.' Held:
1. Though Wisconsin could be joined as a defendant here under appropriate pleadings, it is not mandatory that it be made one, and its political subdivisions are not 'States' within the meaning of 28 U.S.C. § 1251(a)(1). If those subdivisions may be sued by Illinois in a federal district court, this Court's original jurisdiction under § 1251(b)(3) is merely permissible, not mandatory. Pp. 93—98.
2. In this case the appropriate federal district court has jurisdiction under 28 U.S.C. § 1331(a) to give relief against the nuisance of interstate water pollution and is the proper forum for litigation of the issues here involved. Pp. 98—101.
(a) The jurisdictional-amount requirement of § 1331(a) is satisfied in this action involving the purity of interstate waters. P. 98.
(b) Pollution of interstate or navigable waters creates actions under the 'laws' of the United States within the meaning of s 1331(a), since the term 'laws' embraces claims like the one here involved founded on federal common law as well as those of statutory origin. Pp. 99—100.
(c) Under § 1331(a) a State may sue a defendant other than another State in a district court. P. 100—101.
3. Federal common law applies to air and water in their ambient or interstate aspects. Pp. 101—108.
(a) The application of federal common law to abate the pollution of interstate or navigable waters is not inconsistent with federal enforcement powers under the Water Pollution Control Act. Pp. 101—104.
(b) While federal environmental protection statutes may be sources of federal common law, they will not necessarily form the outer limits of such law. Pp. 103, 107.
(c) State environmental quality standards are relevant but not conclusive sources of federal common law. P. 107.
(d) Federal equity courts have a wide range of powers to grant relief against pollution of this sort. P. 107—108.
Motion denied.
Fred F. Herzog, Chicago, Ill., for plaintiff.
Harry G. Slater, Milwaukee, Wis., for defendants.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a motion by Illinois to file a bill of complaint under our original jurisdiction against four cities of Wisconsin, the Sewerage Commission of the City of Milwaukee, and the Metropolitan Sewerage Commission of the County of Milwaukee. The cause of action alleged is pollution by the defendants of Lake Michigan, a body of interstate water. According to plaintiff, some 200 million gallons of raw or inadequately treated sewage and other waste materials are discharged daily into the lake in the Milwaukee area alone. Plaintiff alleges that it and its subdivisions prohibit and prevent such discharges, but that the defendants do not take such actions. Plaintiff asks that we abate this public nuisance.
2
* Article III, § 2, cl. 2, of the Constitution provides: 'In all Cases . . . in which a State shall be Party, the supreme Court shall have original Jurisdiction.' Congress has provided in 28 U.S.C. § 1251 that '(a) the Supreme Court shall have original and exclusive jurisdiction of: (1) All controversies between two or more States.'
3
It has long been this Court's philosophy that 'our original jurisdiction should be invoked sparingly.' Utah v. United States, 394 U.S. 89, 95, 89 S.Ct. 761, 765, 22 L.Ed.2d 99. We construe 28 U.S.C. § 1251(a)(1), as we do Art. III, § 2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases. And the question of what is appropriate concerns, of course, the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer. Washington v. General Motors Corp., 406 U.S. 109, 92 S.Ct. 1396, 31 L.Ed.2d 727.
4
Illinois presses its request for leave to file saying that the agencies named as defendants are instrumentalities of Wisconsin and therefore that this is a suit against Wisconsin which could not be brought in any other forum.
5
Under our decisions there is no doubt that the actions of public entities might, under appropriate pleadings, be attributed to a State so as to warrant a joinder of the State as party defendant.
6
In Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497, Missouri invoked our original jurisdiction by an action against the State of Illinois and the Sanitary District of the City of Chicago, seeking an injunction to restrain the discharge of raw sewage into the Mississippi River. On a demurrer to the motion for leave to file a bill of complaint, Illinois argued that the Sanitary District was the proper defendant and that Illinois should not have been made a party. That argument was rejected:
7
'The contention . . . seems to be that, because the matters complained of in the bill proceed and will continue to proceed from the acts of the Sanitary District of Chicago, a corporation of the State of Illinois, it therefore follows that the State, as such, is not interested in the question, and is improperly made a party.
8
'We are unable to see the force of this suggestion. The bill does not allege that the Sanitary District is acting without or in excess of lawful authority. The averment and the conceded facts are that the corporation is an agency of the State to do the very things which, according to the theory of the complainant's case, will result in the mischief to be apprehended. It is state action and its results that are complained of—thus distinguishing this case from that of Louisiana v. Texas (176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347), where the acts sought to be restrained were alleged to be those of officers or functionaries proceeding in a wrongful and malevolent misapplication of the quarantine laws of Texas. The Sanitary District of Chicago is not a private corporation, formed for purposes of private gain, but a public corporation, whose existence and operations are wholly within the control of the State.
9
'The object of the bill is to subject this public work to judicial supervision, upon the allegations that the method of its construction and maintenance will create a continuing nuisance, dangerous to the health of a neighboring State and its inhabitants. Surely, in such a case, the State of Illinois would have a right to appear and traverse the allegations of the bill, and, having such a right, might properly be made a party defendant.' 180 U.S., at 242, 21 S.Ct., at 344.
10
In New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937, the State of New York brought an original action against the State of New Jersey and the Passaic Valley Sewerage Commissioners, seeking an injunction against the discharge of sewage into Upper New York Bay. The question was whether the actions of the sewage agency could be attributed to New Jersey so as to make that State responsible for them. The Court said:
11
'Also, for the purpose of showing the responsibility of the State of New Jersey for the proposed action of the defendant, the Passaic Valley Sewerage Commissioners, the bill sets out, with much detail, the acts of the legislature of that State authorizing and directing such action on their part.
12
'Of this it is sufficient to say that the averments of the bill, quite undenied, show that the defendant sewerage commissioners constitute such a statutory, corporate agency of the State that their action, actual or intended, must be treated as that of the State itself, and we shall so regard it.' 256 U.S., at 302, 41 S.Ct., at 494.
13
The most recent case is New Jersey v. New York, 345 U.S. 369, 73 S.Ct. 689, 97 L.Ed. 1081. The action was originally brought by the State of New Jersey against the City and State of New York for injunctive relief against the diversion of waters from Delaware River tributaries lying within New York State. Pennsylvania was subsequently allowed to intervene. The question presented by this decision was the right of the City of Philadelphia also to intervene in the proceedings as a party plaintiff. The issues raised were broad:
14
'All of the present parties to the litigation have formally opposed the motion to intervene on grounds (1) that the intervention would permit a suit against a state by a citizen of another state in contravention of the Eleventh Amendment; (2) that the Commonwealth of Pennsylvania has the exclusive right to represent the interest of Philadelphia as parens patriae; and (3) that intervention should be denied, in any event, as a matter of sound discretion.' 345 U.S., at 372, 73 S.Ct., at 690.
15
We denied the City of Philadelphia's motion to intervene, saying:
16
'The City of Philadelphia represents only a part of the citizens of Pennsylvania who reside in the watershed area of the Delaware River and its tributaries and depend upon those waters. If we undertook to evaluate all the separate interests within Pennsylvania, we could, in effect, be drawn into an intramural dispute over the distribution of water within the Commonwealth. . . .
17
'Our original jurisdiction should not be thus expanded to the dimensions of ordinary class actions. An intervenor whose state is already a party should have the burden of showing some compelling interest in his own right, apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state.' 345 U.S., at 373, 73 S.Ct., at 691.
We added:
18
'The presence of New York City in this litigation is urged as a reason for permitting Philadelphia to intervene. But the argument misconstrues New York City's position in the case. New York City was not admitted into this litigation as a matter of discretion at her request. She was forcibly joined as a defendant to the original action since she was the authorized agent for the execution of the sovereign policy which threatened injury to the citizens of New Jersey. Because of this position as a defendant, subordinate to the parent state as the primary defendant, New York City's position in the case raises no problems under the Eleventh Amendment.' 345 U.S., at 374—375, 73 S.Ct., at 692.
19
We conclude that while, under appropriate pleadings, Wisconsin could be joined as a defendant in the present controversy, it is not mandatory that it be made one.
20
It is well settled that for the purposes of diversity of citizenship, political subdivisions are citizens of their respective States.1 Bullard v. City of Cisco, 290 U.S. 179, 54 S.Ct. 177, 78 L.Ed. 254; Cowles v. Mercer County, 7 Wall. 118, 122, 19 L.Ed. 86. If a political subdivision is a citizen for diversity purposes, then it would make no jurisdictional difference whether it was the plaintiff or defendant in such an action. That being the case, a political subdivision in one State would be able to bring an action founded upon diversity jurisdiction against a political subdivision of another State.
21
We therefore conclude that the term 'States' as used in 28 U.S.C. § 1251(a)(1) should not be read to include their political subdivisions. That, of course, does not mean that political subdivisions of a State may not be sued under the head of our original jurisdiction, for 28 U.S.C. § 1251 provides that '(b) the Supreme Court shall have original but not exclusive jurisdiction of: (3) all actions or proceedings by a State against the citizens of another State . . ..'
22
If the named public entities of Wisconsin may, however, be sued by Illinois in a federal district court, our original jurisdiction is not mandatory.
23
It is to that aspect of the case that we now turn.
II
24
Title 28 U.S.C. § 1331(a) provides that '(t)he 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.'
25
The considerable interests involved in the purity of interstate waters would seem to put beyond question the jurisdictional amount provided in § 1331(a). See Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 36 S.Ct. 30, 60 L.Ed. 174; Mississippi & Missouri R. Co. v. Ward, 2 Black 485, 492, 17 L.Ed. 31; Ronzio v. Denver & R.G.W.R. Co., 10 Cir., 116 F.2d 604, 606; C. Wright, The Law of Federal Courts 117 119 (2d ed. 1970); Note, 73 Harv.L.Rev. 1369. The question is whether pollution of interstate or navigable waters creates actions arising under the 'laws' of the United States within the meaning of § 1331(a). We hold that it does; and we also hold that § 1331(a) includes suits brought by a State.
26
Mr. Justice Brennan, speaking for for four members of this Court in Romero v. International Terminal Operating Co., 358 U.S. 354, 393, 79 S.Ct. 468, 491, 3 L.Ed.2d 368 (dissenting and concurring), who reached the issue, concluded that 'laws,' within the meaning of § 1331(a), embraced claims founded on federal common law:
27
'The contention cannot be accepted that since petitioner's rights are judicially defined, they are not created by 'the laws . . . of the United States' within the meaning of § 1331 . . .. In another context, that of state law, this Court has recognized that the statutory word 'laws' includes court decisions. The converse situation is presented here in that federal courts have an extensive responsibility of fashioning rules of substantive law . . .. These rules are as fully 'laws' of the United States as if they had been enacted by Congress.' (Citations omitted.)
28
Lower courts have reached the same conclusion. See, e.g., Murphy v. Colonial Federal Savings & Loan Assn., 388 F.2d 609, 611-612 (CA2 1967); Stokes v. Adair, 265 F.2d 662 (CA4 1959); Mater v. Holley, 200 F.2d 123 (CA5 1952); American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 180—182 (1969).
29
Judge Harvey M. Johnsen in Texas v. Pankey, 10 Cir., 441 F.2d 236, 240, stated the controlling principle:
30
'As the field of federal common law has been given necessary expansion into matters of federal concern and relationship (where no applicable federal statute exists, as there does not here), the ecological rights of a State in the improper impairment of them from sources outside the State's own territory, now would and should, we think, be held to be a matter having basis and standard in federal common law and so directly constituting a question arising under the laws of the United States.'
31
Chief Judge Lumbard, speaking for the panel in Ivy Broadcasting Co. v. American Tel. & Tel. Co., 2 Cir., 391 F.2d 486, 492, expressed the same view as follows:
32
'We believe that a cause of action similarly 'arises under' federal law if the dispositive issues stated in the complaint require the application of federal common law . . .. The word 'laws' in § 1331 should be construed to include laws created by federal judicial decisions as well as by congressional legislation. The rationale of the 1875 grant of federal question jurisdiction—to insure the availability of a forum designed to minimize the danger of hostility toward, and specially suited to the vindication of, federally created rights—is as applicable to judicially created rights as to rights created by statute.' (Citations omitted.)
33
We see no reason not to give 'laws' its natural meaning, see Romero v. International Terminal Operating Co., supra, 358 U.S., at 393 n. 5, 79 S.Ct., at 490 (Brennan, J., dissenting and concurring), and therefore conclude that § 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.
34
As respects the power of a State to bring as action under § 1331(a), Ames v. Kansas, 111 U.S. 449, 470—472, 4 S.Ct. 437, 447 448, 28 L.Ed. 482, is controlling. There Kansas had sued a number of corporations in its own courts and, since federal rights were involved, the defendants had the cases removed to the federal court. Kansas resisted, saying that the federal court lacked jurisdiction because of Art. III, s 2, cl. 2, of the Constitution, which gives this Court 'original Jurisdiction' in 'all Cases . . . in which a State shall be Party.' The Court held that, where a State is suing parties who are not other States, the original jurisdiction of this Court is not exclusive (id., at 470, 4 S.Ct., at 447) and that those suits 'may now be brought in or removed to the Circuit Courts (now the District Courts) without regard to the character of the parties.'2 Ibid. We adhere to that ruling.
III
35
Congress has enacted numerous laws touching interstate waters. In 1899 it established some surveillance by the Army Corps of Engineers over industrial pollution, not including sewage, Rivers and Harbors Act of March 3, 1899, 30 Stat. 1121, a grant of power which we construed in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, and in United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492.
36
The 1899 Act has been reinforced and broadened by a complex of laws recently enacted. The Federal Water Pollution Control Act, 62 Stat. 1155, as amended, 33 U.S.C. § 1151, tightens control over discharges into navigable waters so as not to lower applicable water quality standards. By the National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4321 et seq., Congress 'authorizes and directs' that 'the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act' and that 'all agencies of the Federal Government shall . . . identify and develop methods and procedures . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations.' Sec. 102, 42 U.S.C. § 4332. Congress has evinced increasing concern with the quality of the aquatic environment as it affects the conservation and safeguarding of fish and wildlife resources. See, e.g., Fish and Wildlife Act of 1956, 70 Stat. 1119, 16 U.S.C. § 742a; the Act of Sept. 22, 1959, 73 Stat. 642, authorizing research in migratory marine game fish, 16 U.S.C. § 760e; and the Fish and Wildlife Coordination Act, 48 Stat. 401, as amended, 16 U.S.C. § 661.
37
Buttressed by these new and expanding policies, the Corps of Engineers has issued new Rules and Regulations governing permits for discharges or deposits into navigable waters. 36 Fed.Reg. 6564 et seq.
38
The Federal Water Pollution Control Act in § 1(b) declares that it is federal policy 'to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution.' But the Act makes clear that it is federal, not state, law that in the end controls the pollution of interstate or navigable waters.3 While the States are given time to establish water quality standards, § 10(c)(1), if a State fails to do so the federal administrator4 promulgates one. § 10(c)(2). Section 10(a) makes pollution of interstate or navigable waters subject 'to abatement' when it 'endangers the health or welfare of any persons.' The abatement that is authorized follows a long-drawn out procedure unnecessary to relate here. It uses the conference procedure, hoping for amicable settlements. But if none is reached, the federal administrator may request the Attorney General to bring suit on behalf of the United States for abatement of the pollution. § 10(g).
39
The remedy sought by Illinois is not within the precise scope of remedies prescribed by Congress. Yet the remedies which Congress provides are not necessarily the only federal remedies available. 'It is not uncommon for federal courts to fashion federal law where federal rights are concerned.' Textile Workers v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972. When we deal with air and water in their ambient or interstate aspects, there is a federal common law,5 as Texas v. Pankey, 10 Cir., 441 F.2d 236, recently held.
40
The application of federal common law to abate a public nuisance in interstate or navigable waters is not inconsistent with the Water Pollution Control Act. Congress provided in § 10(b) of that Act that, save as a court may decree otherwise in an enforcement action, '(s)tate and interstate action to abate pollution of interstate or navigable waters shall be encouraged and shall not . . . be displaced by Federal enforcement action.'
41
The leading air case is Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038, where Georgia filed an original suit in this Court against a Tennessee company whose noxious gases were causing a wholesale destruction of forests, orchards, and crops in Georgia. The Court said:
42
'The caution with which demands of this sort, on the part of a State, for relief from injuries analogous to torts, must be examined, is dwelt upon in Missouri v. Illinois, 200 U.S. 496, 520, 521, 50 L.Ed. 572, 578, 579, 26 Sup.Ct.Rep. 268. But it is plain that some such demands must be recognized, if the grounds alleged are proved. When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court. Missouri v. Illinois, 180 U.S. 208, 241, 45 L.Ed. 497, 512, 21 Sup.Ct.Rep. 331.' 206 U.S., at 237, 27 S.Ct., at 619.
43
The nature of the nuisance was described as follows:
44
'It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source. If any such demand is to be enforced this must be, notwithstanding the hesitation that we might feel if the suit were between private parties, and the doubt whether for the injuries which they might be suffering to their property they should not be left to an action at law.' Id., at 238, 27 S.Ct., at 619.
45
Our decisions concerning interstate waters contain the same theme. Rights in interstate streams, like questions of boundaries, 'have been recognized as presenting federal questions.'6 Hinderlider v. La Plata Co., 304 U.S. 92, 110, 58 S.Ct. 803, 811, 82 L.Ed. 1202. The question of apportionment of interstate waters is a question of 'federal common law' upon which state statutes or decisions are not conclusive.7 Ibid.
46
In speaking of the problem of apportioning the waters of an interstate stream, the Court said in Kansas v. Colorado, 206 U.S. 46, 98, 27 S.Ct. 655, 667, 51 L.Ed. 956, that 'through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law.' And see Texas v. New Jersey, 379 U.S. 674, 85 S.Ct. 626, 13 L.Ed.2d 596 (escheat of intangible personal property), Texas v. Florida, 306 U.S. 398, 405, 59 S.Ct. 563, 567, 83 L.Ed. 817 (suit by bill in the nature of interpleader to determine the true domicile of a decedent as the basis of death taxes).
47
Equitable apportionment of the waters of an interstate stream has often been made under the head of our original jurisdiction. Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815; Kansas v. Colorado, supra; cf. Arizona v. California, 373 U.S. 546, 562, 83 S.Ct. 1468, 1478, 10 L.Ed.2d 542. The applicable federal common law depends on the facts peculiar to the particular case.
48
'Priority of appropriation is the guiding principle. But physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former—these are all relevant factors. They are merely an illustrative, not an exhaustive catalogue. They indicate the nature of the problem of apportionment and the delicate adjustment of interests which must be made.' 325 U.S., at 618, 65 S.Ct., at 1351.
49
When it comes to water pollution this Court has spoken in terms of 'a public nuisance,'8 New York v. New Jersey, 256 U.S., at 313, 41 S.Ct., at 497; New Jersey v. New York City, 283 U.S. 473, 481, 482, 51 S.Ct. 519, 521, 75 L.Ed. 1176. In Missouri v. Illinois, 200 U.S. 496, 520—521, 26 S.Ct. 268, 269 270, 50 L.Ed. 572, the Court said, 'It may be imagined that a nuisance might be created by a State upon a navigable river like the Danube, which would amount to a casus belli for a State lower down, unless removed. If such a nuisance were created by a State upon the Mississippi the controversy would be resolved by the more peaceful means of a suit in this court.'
50
It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution. While federal law governs,9 consideration of state standards may be relevant. Cf. Connecticut v. Massachusetts, 282 U.S. 660, 670, 51 S.Ct. 286, 289, 75 L.Ed. 602; Kansas v. Colorado, 185 U.S. 125, 146—147, 22 S.Ct. 552, 559—560, 46 L.Ed. 838. Thus, a State with high water-quality standards may well ask that its strict standards be honored and that it not be compelled to lower itself to the more degrading standards of a neighbor. There are no fixed rules that govern; these will be equity suits in which the informed judgment of the chancellor will largely govern.
51
We deny, without prejudice, the motion for leave to file. While this original suit normally might be the appropriate vehicle for resolving this controversy, we exercise our discretion to remit the parties to an appropriate district court10 whose powers are adequate to resolve the issues.
52
So ordered.
53
Motion denied.
1
It is equally well settled that a suit between a State and a citizen of another State is not a suit between citizens of different States for the purposes of diversity of citizenship jurisdiction. Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 487, 15 S.Ct. 192, 194, 39 L.Ed. 231.
2
See also H.R.Rep. No. 308, 80th Cong., 1st Sess., A. 104 (1947): 'The original jurisdiction conferred on the Supreme Court by Article 3, section 2, of the Constitution is not exclusive by virtue of that provision alone. Congress may provide for or deny exclusiveness.'
3
The contrary indication in Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 498 n. 3, 91 S.Ct. 1005, 1009 n. 3, 28 L.Ed.2d 256, was based on the preoccupation of that litigation with public nuisance under Ohio law, not the federal common law which we now hold is ample basis for federal jurisdiction under 28 U.S.C. § 1331(a).
4
The powers granted the Secretary of the Interior under the Federal Water Quality Act of 1965, 79 Stat. 903, were assigned by the President to the Administrator of the Environmental Protection Agency pursuant to Reorganization Plan No. 3 of 1970. See 35 Fed.Reg. 15623.
5
While the various federal environmental protection statutes will not necessarily mark the outer bounds of the federal common law, they may provide useful guidelines in fashioning such rules of decision. What we said in another connection in Textile Workers v. Lincoln Mills, 353 U.S. 448, 456—457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972, is relevant here:
'The question then is, what is the substantive law to be applied in suits under § 301(a)? We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. Federal interpretation of the federal law will govern, not state law. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.' (Citations omitted.) See also Woods & Reed, The Supreme Court and Interstate Environmental Quality: Some Notes on the Wyandotte Case, 12 Ariz.L.Rev. 691, 713 714; Note, 56 Va.L.Rev. 458.
6
Thus, it is not only the character of the parties that requires us to apply federal law. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038; cf. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 289, 8 S.Ct. 1370, 1373, 32 L.Ed. 239; The Federalist No. 80 (A. Hamilton). As Mr. Justice Harlan indicated for the Court in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421—427, 84 S.Ct. 923, 936—940, 11 L.Ed.2d 804, where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism, we have fashioned federal common law. See also Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956; C. Wright, The Law of Federal Courts 249 (2d ed. 1970); Woods & Reed, supra, n. 5, at 703—713; Note, 50 Texas L.Rev. 183. Certainly these same demands for applying federal law are present in the pollution of a body of water such as Lake Michigan bounded, as it is, by four States.
7
Those who maintain that state law governs overlook the fact that the Hinderlider case was written by Mr. Justice Brandeis who also wrote for the Court in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the two cases being decided the same day.
8
In North Dakota v. Minnesota, 263 U.S. 365, 374, 44 S.Ct. 138, 139, 68 L.Ed. 342, the Court said:
'(W)here one State, by a change in its method of draining water from lands within its border, increases the flow into an interstate stream, so that its natural capacity is greatly exceeded and the water is thrown upon the farms of another State, the latter State has such an interest as quasi-sovereign in the comfort, health and prosperity of its farm owners that resort may be had to this Court for relief. It is the creation of a public nuisance of simple type for which a State may properly ask an injunction.'
9
'Federal common law and not the varying common law of the individual States is, we think, entitled and necessary to be recognized as a basis for dealing in uniform standard with the environmental rights of a State against improper impairment by sources outside its domain. The more would this seem to be imperative in the present era of growing concern on the part of a State about its ecological conditions and impairments of them. In the outside sources of such impairment, more conflicting disputes, increasing assertions and proliferating contentions would seem to be inevitable. Until the field has been made the subject of comprehensive legislation or authorized administrative standards, only a federal common law basis can provide an adequate means for dealing with such claims as alleged federal rights. And the logic and practicality of regarding such claims as being entitled to be asserted within the federal-question jurisdiction of § 1331(a) would seem to be self-evident.' Texas v. Pankey, 441 F.2d 236, 241 242.
10
The rule of decision being federal, the 'action . . . may be brought only in the judicial district where all defendants reside, or in which the claim arose,' 28 U.S.C. § 1391(b), thereby giving flexibility to the choice of venue. See also 28 U.S.C. § 1407.
Whatever may be a municipality's sovereign immunity in actions for damages, see Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966, U.Ill.L.F. 919, 944—948; Note, 4 Suffolk L.Rev. 832 (1970), actions seeking injunctive relief stand on a different footing. The cases are virtually unanimous in holding that municipalities are subject to injunctions to abate nuisances. See cases collected in 17 E. McQuillin, The Law of Municipal Corporations § 49.51 et seq. (3d rev. ed. 1968). See also Wis.Stat.Ann. § 59.96(6)(b) (1957) as respects the suability of metropolitan sewerage commissions.
While the kind of equitable relief to be accorded lies in the discretion of the chancellor (Harrisonville v. Dickey Clay Mfg. Co., 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed. 1208), a State that causes a public nuisance is suable in this Court and any of its public entities is suable in a federal district court having jurisdiction:
'(I)t is generally held that a municipality, like a private individual, may be enjoined from maintaining a nuisance. Thus in a proper case a municipal corporation will be restrained by injunction from creating a nuisance on private property, as by the discharge of sewage or poisonous gases thereon, or, in some jurisdictions, by the obstruction of drainage of waters, or by discharging sewage or filth into a stream and polluting the water to the damage of lower riparian owners, or by dumping garbage or refuse, or by other acts. Likewise, a municipality may be enjoined from creating or operating a nuisance, whether the municipality is acting in a governmental or proprietary capacity, impairing property rights. And, if a nuisance is established causing irreparable injury for which there is no adequate remedy at law it may be enjoined irrespective of the resulting damage or injury to the municipality.' 17 McQuillin, supra, § 49.55.
| 78
|
406 U.S. 164
92 S.Ct. 1400.
31 L.Ed.2d 768
Willie Mae WEBER, Petitioner,v.AETNA CASUALTY & SURETY COMPANY et al.
No. 70—5112.
Argued Feb. 28, 1972.
Decided April 24, 1972.
Syllabus
Decedent, who died as a result of injuries received during the course of his employment, had maintained a household with four legitimate minor children, one unacknowledged minor child, and petitioner, to whom he was not married. His wife had been committed to a mental hospital. A second illegitimate child was born posthumously. Under Louisiana's workmen's compensation law unacknowledged illegitimate children are not within the class of 'children,' but are relegated to the lesser status of 'other dependents,' and may recover only if there are not enough surviving dependents in the preceding classes to exhaust the maximum benefits. The four legitimate children were awarded the maximum allowable compensation and the two illegitimate children received nothing The Louisiana courts sustained the statutory scheme, holding that Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, was not controlling. Held: Louisiana's denial of equal recovery rights to the dependent unacknowledged illegitimate children violates the Equal Protection Clause of the Fourteenth Amendment, as the inferior classification of these dependent children bears no significant relationship to the recognized purposes of recovery that workmen's compensation statutes were designed to serve. Levy v. Louisiana, supra, followed; Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288, distinguished. Pp. 167—176.
257 La. 424, 242 So.2d 567, reversed.
Vanue B. Lacour, Baton Rouge, La., for petitioner.
W. Henson Moore, Baton Rouge, La., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
The question before us, on writ of certiorari to the Supreme Court of Louisiana,1 concerns the right of dependent unacknowledged, illegitimate children to recover under Louisiana workmen's compensation laws benefits for the death of their natural father on an equal footing with his dependent legitimate children. We hold that Louisiana's denial of equal recovery rights to dependent unacknowledged illegitimates violates the Equal Protection Clause of the Fourteenth Amendment. 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).
2
On June 22, 1967, Henry Clyde Stokes died in Louisiana of injuries received during the course of his employment the previous day. At the time of his death Stokes resided and maintained a household with one Willie Mae Weber, to whom he was not married. Living in the household were four legitimate minor children, born of the marriage between Stokes and Adlay Jones Stokes who was at the time committed to a mental hospital. Also living in the home was one unacknowledged illegitimate child born of the relationship between Stokes and Willie Mae Weber. A second illegitimate child of Stokes and Weber was born posthumously.
3
On June 29, 1967, Stokes' four legitimate children, through their maternal grandmother as guardian, filed a claim for their father's death under Louisiana's workmen's compensation law.2 The defendant employer and its insurer impleaded Willie Mae Weber who appeared and claimed compensation benefits for the two illegitimate children.
4
Meanwhile, the four legitimate children had brought another suit for their father's death against a third-party tortfeasor, which was settled for an amount in excess of the maximum benefits allowable under workmen's compensation. The illegitimate children did not share in this settlement. Subsequently, the employer in the initial action requested the extinguishment of all parties' workmen's compensation claims by reason of the tort settlement.
5
The trial judge awarded the four legitimate children the maximum allowable amount of compensation and declared their entitlement had been satisfied from the tort suit settlement. Consequently, the four legitimate children dismissed their workmen's compensation claim. Judgment was also awarded to Stokes' two illegitimate offspring to the extent that maximum compensation benefits were not exhausted by the four legitimate children. Since such benefits had been entirely exhausted by the amount of the tort settlement, in which only the four dependent legitimate offspring participated, the two dependent illegitimate children received nothing.
6
* For purposes of recovery under workmen's compensation, Louisiana law defines children to include 'only legitimate children, stepchildren, posthumous children, adopted children, and illegitimate children acknowledged under the provisions of Civil Code Articles 203, 204, and 205.'3 Thus, legitimate children and acknowledged illegitimates may recover on an equal basis. Unacknowledged illegitimate children, however, are relegated to the lesser status of 'other dependents' under § 1232(8) of the workmen's compensation statute4 and may recover only if there are not enough surviving dependents in the preceding classifications to exhaust the maximum allowable benefits. Both the Louisiana Court of Appeal5 and a divided Louisiana Supreme Court6 sustained these statutes over petitioner's constitutional objections, holding that our decision in Levy, supra, was not controlling.
7
We disagree. In Levy, the Court held invalid as denying equal protection of the laws, a Louisiana statute which barred an illegitimate child from recovering for the wrongful death of its mother when such recoveries by legitimate children were authorized. The Court there decided that the fact of a child's birth out of wedlock bore no reasonable relation to the purpose of wrongful-death statutes which compensate children for the death of a mother. As the Court said in Levy:
8
'Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.' Levy v. Louisiana, 391 U.S., at 72, 88 S.Ct., at 1511.
9
The court below sought to distinguish Levy as involving a statute which absolutely excluded all illegitimates from recovery, whereas in the compensation statute in the instant case acknowledged illegitimates may recove equally with legitimate children and 'the unacknowledged illegitimate child is not denied a right to recover compensation, he being merely relegated to a less favorable position as are other dependent relatives such as parents . . .' Stokes v. Aetna Casualty & Surety Co., 257 La. 424, 433—434, 242 So.2d 567, 570 (1970). The Louisiana Supreme Court likewise characterized Levy as a tort action where the tortfeasor escaped liability on the fortuity of the potential claimant's illegitimacy, whereas in the present action full compensation was rendered, and 'no tort feasor goes free because of the law.' Id., at 434, 242 So.2d, at 570.
10
We do not think Levy can be disposed of by such finely carved distinctions. The Court in Levy was not so much concerned with the tortfeasor going free as with the equality of treatment under the statutory recovery scheme. Here, as in Levy, there is impermissible discrimination. An unacknowledged illegitimate child may suffer as much from the loss of a parent as a child born within wedlock or an illegitimate later acknowledged. So far as this record shows, the dependency and natural affinity of the unacknowledged illegitimate children for their father were as great as those of the four legitimate children whom Louisiana law has allowed to recover.7 The legitimate children and the illegitimate children all lived in the home of the deceased and were equally dependent upon him for maintenance and support. It is inappropriate, therefore, for the court below to talk of relegating the unacknowledged illegitimates 'to a less favorable position as are other dependent relatives such as parents.' The unacknowledged illegitimates are not a parent or some 'other dependent relative'; in this case they are dependent children, and as such are entitled to rights granted other dependent children.
11
Respondents contend that our recent ruling in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), controls this case. In Labine, the Court upheld, against constitutional objections, Louisiana intestacy laws which had barred an acknowledged illegitimate child from sharing equally with legitimate children in her father's estate. That decision reflected, in major part, the traditional deference to a State's prerogative to regulate the disposition at death of property within its borders. Id., at 538, 91 S.Ct., at 1020. The Court has long afforded broad scope to state discretion in this area.8 Yet the substantial state interest in providing for 'the stability of . . . land titles and in the prompt and definitive determination of the valid ownership of property left by decedents,' Labine v. Vincent, 229 So.2d 449, 452 (La.App.1969), is absent in the case at hand.
12
Moreover, in Labine the intestate, unlike deceased in the present action, might easily have modified his daughter's disfavored position. As the Court there remarked:
13
'Ezra Vincent could have left one-third of his property to his illegitimate daughter had he bothered to follow the simple formalities of executing a will. He could, of course, have legitimated the child by marrying her mother in which case the child could have inherited his property either by intestate succession or by will as any other legitimate child.' Labine, supra, 401 U.S., at 539, 91 S.Ct., at 1021.
14
Such options, however, were not realistically open to Henry Stokes. Under Louisiana law he could not have acknowledged his illegitimate children even had he desired to do so.9 The burdens of illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten them.
15
Both the statute in Levy and the statute in the present case involve statecreated compensation schemes, designed to provide close relatives and dependents of a deceased a means of recovery for his often abrupt and accidental death. Both wrongful-death statutes and workmen's compensation codes represent outgrowths and modifications of our basic tort law. The former alleviated the harsh common-law rule under which 'no person could inherit the personal right of another to recover for tortious injuries to his body';10 the latter removed difficult obstacles to recovery in workrelated injuries by offering a more certain, though generally less remunerative, compensation. In the instant case, the recovery sought under the workmen's compensation statute was in lieu of an action under the identical death statute which was at issue in Levy.11 Given the similarities in the origins and purposes of these two statutes, and the similarity of Louisiana's pattern of discrimination in recovery rights, it would require a disregard of precedent and the principles of stare decisis to hold that Levy did not control the facts of the case before us. It makes no difference that illegitimates are not so absolutely or broadly barred here as in Levy; the discrimination remains apparent.
II
16
Having determined that Levy is the applicable precedent we briefly reaffirm here the reasoning which produced that result. The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Gulf, Colorado and Santa Fe R. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666 (1897); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Though the latitude given state economic and social regulation is necessarily broad, when state statutory classifications approach sensitive and fundamental personal rights, this Court exercises a stricter scrutiny, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). The essential inquiry in all the foregoing cases is, however, inevitably a dual one: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?
17
The Louisiana Supreme Court emphasized strongly the State's interest in protecting 'legitimate family relationships,' 257 La., at 433, 242 So.2d, at 570, and the regulation and protection of the family unit have indeed been a venerable state concern. We do not question the importance of that interest; what we do question is how the challenged statute will promote it. As was said in Glona:
18
'(W)e see no possible rational basis . . . for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death.' Glona v. American Guarantee & Liability Insurance Co., supra, 391 U.S., at 75, 88 S.Ct., at 1516.
19
Nor can it be thought here that persons will shun illicit relations because the offspring may not one day reap the benefits of workmen's compensation.
20
It may perhaps be said that statutory distinctions between the legitimate and illegitimate reflect closer family relationships in that the illegitimate is more often not under care in the home of the father nor even supported by him. The illegitimate, so this argument runs, may thus be made less eligible for the statutory recoveries and inheritances reserved for those more likely to be within the ambit of familial care and affection. Whatever the merits elsewhere of this contention, it is not compelling in a statutory compensation scheme where dependency on the deceased is a prerequisite to anyone's recovery, and where the acknowledgment so necessary to equal recovery rights may be unlikely to occur or legally impossible to effectuate even where the illegitimate child may be nourished and loved.
21
Finally, we are mindful that States have frequently drawn arbitrary lines in workmen's compensation and wrongfuldeath statutes to facilitate potentially difficult problems of proof. Nothing in our decision would impose on state court systems a greater burden in this regard. By limiting recovery to dependents of the deceased, Louisiana substantially lessens the possible problems of locating illegitimate children and of determining uncertain claims of parenthood.12 Our decision fully respects Louisiana's choice on this matter. It will not expand claimants for workmen's compensation beyond those in a direct blood and dependency relationship with the deceased and it avoids altogether diffuse questions of affection and affinity which pose difficult probative problems. Our ruling requires equality of treatment between two classes of persons the genuineness of whose claims the State might in any event be required to determine.
22
The state interest in legitimate family relationships is not served by the statute; the state interest in minimizing problems of proof is not significantly disturbed by our decision. The inferior classification of dependent unacknowledged illegitimates bears, in this instance, no significant relationship to those recognized purposes of recovery which workmen's compensation statutes commendably serve.
23
The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust.13 Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as an unjust—way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth14 where—as in this case—the classification is justified by no legitimate state interest, compelling or otherwise.
24
Reversed and remanded.
25
Mr. Justice BLACKMUN, concurring in the result.
26
For me, La.Civ.Code, art. 204, is the provision in the State's statutory structure that proves fatal for this workmen's compensation case under the focus of constitutional measurement. The Article operated to deny Henry Stokes the ability even to acknowledge his illegitimates so that they might qualify as children within the definition provided by La.Rev.Stat. § 23:1021(3). This is so because the decedent (inasmuch as he was then married to Adlay Jones Stokes and remained married to her the rest of his life) and the mother were incapable of contracting marriage at the time of conception and thereafter. This bar, indeed, under the Court's decided cases, denied equal protection to the illegitimates. Cf. Labine v. Vincent, 401 U.S. 532, 539, 91 S.Ct. 1017, 1021, 28 L.Ed.2d 288 (1971).
27
I thus give primary emphasis to the presence of Art. 204 and, I believe, far more emphasis than does the Court. If that statute did not exist or were inapplicable, the case might be a different one. While the Court refers to Art. 204, and to a degree relies upon it, ante, at 171 n. 9, it seems to me that it does so only secondarily. I read the opinion as flatly granting dependent unacknowledged illegitimate children full equality with dependent legitimate children and therefore as striking down the Louisiana statutory scheme even for the situation where the father has the power to acknowledge his illegitimates but refrains from doing so. In other words, the Court holds the Louisiana system unconstitutional with respect to illegitimate dependent children wholly apart from the barrier of Art. 204. Certainly, the first paragraph of the opinion is to this effect.
28
In deciding this case, I need not, and would not, go that far. I would let the resolution of that issue await its appropriate presentation.
29
Mr. Justice REHNQUIST, dissenting.
30
This case is distinguishable from Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and could be decided the other way on the basis of this Court's more recent decision in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). Yet I certainly do not regard the Court's decision as an unreasonable drawing of the line between Levy and Labine, and would not feel impelled to dissent if I regarded Levy as rightly decided. I do not so regard it. I must agree with Mr. Justice Harlan's dissenting opinion, which described Levy and its companion case, Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), as 'constitutional curiosities,' and called the Court's method of reaching the result 'a process that can only be described as brute force.' Id., at 76, 88 S.Ct., at 1512.
31
Since Levy was a constitutional holding, its doctrine is open to later re-examination to a greater extent than if it had decided a question of statutory construction or some other nonconstitutional issue. See Coleman v. Alabama, 399 U.S. 1, 22, 90 S.Ct. 1999, 2010, 26 L.Ed.2d 387 (1970) (Burger, C.J., dissenting); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 259, 90 S.Ct. 1583, 1597, 26 L.Ed.2d 199 (1970) (Black, J., dissenting); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 410, 52 S.Ct. 443, 446—449, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting).
32
The Equal Protection Clause was adopted as a part of the Fourteenth Amendment in 1868. Five years later Mr. Justice Miller delivered this Court's initial construction of that amendment in his classic opinion in Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (1873). After setting forth an account of the adoption of that amendment, he described the account as a 'recapitulation of events, almost too recent to be called history, but which are familiar to us all.' 16 Wall., at 71. Referring to the Equal Protection Clause, he said:
33
'We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.' 16 Wall., at 81.
34
In nearly 100 years of subsequent adjudication concerning this clause, the Court has adhered to the notion expressed in the Slaughter-House Cases that racial classifications are 'suspect.' See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). But during that same period of time, this Court has proved Mr. Justice Miller a bad prophet with respect to nonracial classification.
35
As noted in Levy, in the field of economic and social legislation, the Court has given great latitude to the legislatures in making classifications. 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, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957). The test has been whether there is any rational basis for the legislative classification. See Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947). 'State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 425 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Under this test, so long as the 'discrimination is founded upon a reasonable distinction, or difference in state policy,' Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528, 79 S.Ct. 437, 411, 3 L.Ed.2d 480 (1959), the Court will not attempt to weigh its social value or determine whether the classification might have been more finely drawn. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). However, this salutary principle has been departed from by the Court in recent years, as pointed out in its opinion here, where the Court has felt that the classification has affected what it conceives to be 'fundamental personal rights.'
36
The difficulty with this approach, devoid as it is of any historical or textual support in the language of the Equal Protection Clause, is that it leaves apparently to the Justices of this Court the determination of what are, and what are not, 'fundamental personal rights.' Those who framed and ratified the Constitution and the various amendments to it chose to select certain particular types of rights and freedoms, and to guarantee them against impairment by majority action through legislation or otherwise. While the determination of the extent to which a right is protected may result in the drawing of fine lines, the fundamental sanction of the right itself is found in the language of the Constitution, and not elsewhere. The same is unfortunately not true of the doctrine of 'fundamental personal rights.' This body of doctrine created by the Court can only be described as a judicial superstructure, awkwardly engrafted upon the Constitution itself.
37
The Court's experience with similar superstructures has not been a happy one. The first part of this century saw the evolution of the doctrine of 'freedom of contract' which was held by the Court during part of that time to be a part of the Fourteenth Amendment's requirement that no person be deprived of life, liberty, or property without due process of law. This doctrine had its just deserts in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 581, 81 L.Ed. 703 (1937), where Mr. Chief Justice Hughes, speaking for the Court, said:
38
'The constitutional provision invoked is the due process clause of the Fourteenth Amendment governing the States, as the due process clause invoked in the Adkins (Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785) Case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law.'
39
In a similar vein it may be said that the Constitution does not speak of 'fundamental personal rights,' but speaks of the equal protection of the laws and prohibits the denial thereof. Two years ago, this Court in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), recognized that the broad latitude accorded state legislatures by both the contemporary history and the text of the Equal Protection Clause was not limited to statutes regulating business or industry. There, in a case dealing with the administration of public welfare assistance which, the Court noted, 'involves the most basic economic needs of impoverished human beings,' the Court nonetheless quite properly applied the 'rational basis' constitutional standard. 397 U.S., at 485, 90 S.Ct., at 1162. It reaffirmed the historically correct statement of the meaning of equal protection in these words:
40
'In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in Practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.' Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69—70, 33 S.Ct. 441, 443, 57 L.Ed. 730. 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.'
41
The Court in today's opinion, recognizing that two different standards have been applied in equal protection cases, apparently formulates a hybrid standard which is the basis of decision here. The standard is a two-pronged one:
42
'What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?'
43
Surely there could be no better nor more succinct guide to sound legislation than that suggested by these two questions. They are somewhat less useful, however, as guides to constitutional adjudication. How is this Court to determine whether or not a state interest is 'legitimate'? And how is the Court to know when it is dealing with a 'fundamental personal right'?
44
While the Court's opinion today is by no means a sharp departure from the precedents on which it relies, it is an extraordinary departure from what I conceive to be the intent of the framers of the Fourteenth Amendment and the import of the traditional presumption of constitutionality accorded to legislative enactments. Nowhere in the text of the Constitution, or in its plain implications, is there any guide for determining what is a 'legitimate' state interest, or what is a 'fundamental personal right.' The traditional police power of the States has been deemed to embrace any measure thought to further the well-being of the State in question, subject only to the specific prohibitions contained in the Federal Constitution. That Constitution of course contains numerous guarantees of individual liberty, which I would have no trouble describing as 'fundamental personal liberties,' but the right of illegitimate children to sue in state court to recover workmen's compensation benefits is not among them.
45
The relationship of the 'legitimate' state interest and 'fundamental personal right' analysis to the constitutional guarantee of equal protection of the law is approximately the same as that of 'freedom of contract' to the constitutional guarantee that no person shall be deprived of life, liberty, or property without due process of law. It is an invitation for judicial exegesis over and above the commands of the Constitution, in which values that cannot possibly have their source in that instrument are invoked to either validate or condemn the countless laws enacted by the various States. In refusing to accept the breadth of meaning of the Fourteenth Amendment urged upon the Court in the Slaughter-House Cases, Mr. Justice Miller said:
46
'And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.' 16 Wall., at 78.
47
Mr. Justice Harlan made clear in his dissent in Levy the exclusively statutory basis for wrongful-death actions as a matter of legal history, and the same may be even more emphatically said about claims for workmen's compensation benefits. In spite of the Court's statement of a test, one part of which requires the determination of the extent to which 'fundamental personal rights' might be endangered by the Louisiana classification here, we are nowhere told in the opinion just what 'fundamental personal right' it is that is involved, to say nothing of whether it is 'endangered.' The Court says that, while society has long condemned 'irresponsible liaisons beyond the bonds of marriage,' nonetheless 'visiting this condemnation on the head of an infant is illogical and unjust.' A fair-minded man might regard it as both, but the Equal Protection Clause of the Fourteenth Amendment requires neither that state enactments be 'logical' nor does it require that they be 'just' in the common meaning of those terms. It requires only that there be some conceivable set of facts that may justify the classification involved.
48
In the instant case I cannot condemn as irrational Louisiana's distinction between legitimate and illegitimate children. In a statutory compensation scheme such as this, the State must inevitably draw rather fine and arbitrary lines. For example, Louisiana declares that parents will have priority in this scheme over first cousins, regardless of the degree of dependency or affection in any given case. Surely, no one would condemn this classification as violative of the Fourteenth Amendment, since it is likely to reflect fairly the unarticulated intent of the decedent. Similarly, the State might rationally presume that the decedent would have preferred the compensation to go to his legitimate children, rather than those illegitimates whom he has not acknowledged.
49
Although the majority argues that 'the state interest in minimizing problems of proof is not significantly disturbed by our decision,' at 175 (emphasis added), it clearly recognizes, as it must, that under its decision additional and sometimes more difficult problems of proof of paternity and dependency may be raised. This is particularly true with respect to petitioner's youngest child, who was not born until after the death of his father. I believe that a State's desire to lessen these problems under its statutory scheme is a rational basis for difference in treatment of the two classes.
50
Finally, the majority apparently draws some comfort from the fact that the illegitimate children here could not have been acknowledged, since the decedent remained married to another woman while he raised these children. However, I do not believe that it follows from this fact that the statutory classification is irrational. On the contrary, this element of the statutory scheme points up another possible legislative purpose which I do not believe this Court should so freely dismiss. Louisiana, like many other States, has a wide variety of laws designed to encourage legally recognized and responsible family relationships. I believe this particular statutory provision, forbidding acknowledgment of illegitimate children when the parents were not free to marry (in this case because the father was already married to another woman), might be considered part of that statutory pattern designed to discourage formation of illicit family relationships. Whether this is a wise state policy, and whether this particular statute will be particularly effective in advancing it, are not matters for this Court's determination.
51
Levy and today's decision are not only inconsistent with the long line of earlier cases construing the Equal Protection Clause to forbid only irrational classifications; they are quite inconsistent with Dandridge v. Williams, supra, decided two years after Levy. If state welfare legislation involving 'the most basic economic needs of impoverished human beings' is to be judged by the traditional 'reasonable basis' standard, I am at a loss to see why that standard should not likewise govern legislation determining eligibility for state workmen's compensation benefits.
52
All legislation involves classification and line drawing of one kind or another. When this Court expands the traditional 'reasonable basis' standard for judgment under the Equal Protection Clause into a search for 'legitimate' state interests that the legislation may 'promote,' and 'for fundamental personal rights' that it might 'endanger,' it is doing nothing less than passing policy judgments upon the acts of every state legislature in the country.
1
Stokes v. Aetna Casualty & Surety Co., 257 La. 424, 242 So.2d 567 (1970).
2
La.Rev.Stat. § 23:1232 (1967) establishes the schedule of payment of workmen's compensation benefits to various classifications of dependents as follows:
'Payment to dependents shall be computed and divided among them on the following basis:
'(1) If the widow or widower alone, thirty-two and one-half per centum of wages.
'(2) If the widow or widower and one child, forty-six and one-quarter per centum of wages.
'(3) If the widow or widower and two or more children, sixty-five per centum of wages.
'(4) If one child alone, thirty-two and one-half per centum of wages of deceased.
'(5) If two children, forty-six and one-quarter per centum of wages.
'(6) If three or more children, sixty-five per centum of wages.
'(7) If there are neither widow, widower, nor child, then to the father or mother, thirty-two and one-half per centum of wages of the deceased. If there are both father and mother, sixty-five percentum of wages.
'(8) If there are neither widow, widower, nor child, nor dependent parent entitled to compensation, then to one brother or sister, thirty-two and one-half per centum of wages with eleven per centum additional for each brother or sister in excess of one. If other dependents than those enumerated, thirty-two and one-half per centum of wages for one, and eleven per centum additional for each such dependent in excess of one, subject to a maximum of sixty-five per centum of wages for all, regardless of the number of dependents.'
3
La.Rev.Stat. § 23:1021(3). The relevant provisions for acknowledgment of an illegitimate child are as follows:
La.Civ.Code, Art. 202 (1967):
'Illegitimate children who have been acknowledged by their father, are called natural children; those who have not been acknowledged by their father, or whose father and mother were incapable of contracting marriage at the time of conception, or whose father is unknown, are contradistinguished by the appellation of bastards.'
La.Civ.Code, Art. 203:
'The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the father and mother or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.'
La.Civ.Code, Art. 204:
'Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception; however, such acknowledgment may be made if the parents should contract a legal marriage with each other.'
4
See n. 2, supra.
5
232 So.2d 328 (La.App.1969).
6
Stokes v. Aetna Casualty & Surety Co., see n. 1, supra.
7
The affinity and dependency on the father of the posthumously born illegitimate child are, of course, not comparable to those of offspring living at the time of their father's death. This fact, however, does not alter our view of the case. We think a posthumously born illegitimate child should be treated the same as a posthumously born legitimate child, which the Louisiana statutes fail to do.
8
The Court over a century ago voiced strong support for state powers over inheritance: 'Now the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and term upon which property real or personal within its dominion may be transmitted by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it.' Mager v. Grima, 8 How. 490, 493, 12 L.Ed. 1168 (1850). See Lyeth v. Hoey, 305 U.S. 188, 193, 59 S.Ct. 155, 158, 83 L.Ed. 119 (1938).
9
La.Civ.Code, Art. 204, see n. 3, supra, prohibits acknowledgment of children whose parents were incapable of contracting marriage at the time of conception. Acknowledgment may only be made if the parents could contract a legal marriage with each other. Decedent in the instant case remained married to his first wife—the mother of his four legitimate children—until his death. Thus, at all times he was legally barred from marrying Willie Mae Weber, the mother of the two illegitimate children. It therefore was impossible for him to acknowledge legally his illegitimate children and thereby qualify them for protection under the Louisiana Workmen's Compensation Act. See also Williams v. American Emp.Ins. Co., 237 La. 101, 110 So.2d 541 (1959), where the Louisiana Supreme Court held that a posthumously born illegitimate child cannot be classified as a child entitled to workmen's compensation benefits, as defined under La.Rev.Stat. § 23:1021(3).
10
See 391 U.S. 73, 76, 88 S.Ct. 1512, 1515, 20 L.Ed.2d 436 (1968) (Harlan, J., dissenting in Glona v. American Guarantee & Liability Insurance Co., and Levy v. Louisiana).
11
La.Civ.Code, Art. 2315.
12
The most relevant sections of the Louisiana statutes defining dependency for purposes of workmen's compensation recovery read as follows:
La.Rev.Stat. § 23:1231:
'For injury causing death within two years after the accident there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided, for a period of four hundred weeks. . . .'
La.Rev.Stat. § 23:1251:
'The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
'(3) A child under the age of eighteen years . . . upon the parent with whom he is living at the time of the injury of the parent.'
The above section thus qualifies the illegitimate children in this case as dependents.
La.Rev.Stat. § 23:1252:
'In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death . . .'
Naturally, the variations of dependency claims coming to Louisiana courts under these sections are many, but Louisiana has consistently required valid evidence of dependency for recovery. See, e.g., Sandidge v. Aetna Casualty & Surety Co., 29 So.2d 522 (La.App.1947), where children, living with their mother who was separated from the father, in order to receive the maximum compensation for the father's death, must establish that they were wholly dependent upon the father for their support.
13
See, e.g., Gray & Rudovsky, The Court Acknowledges the Illegitimate: Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., 118 U.Pa.L.Rev. 1 (1969). A comprehensive study of the legal status of illegitimacy and the effects thereof is H. Krause, Illegitimacy: Law and Social Policy (1971); reviewed by Wadlington, 58 Va.L.Rev. 188 (1972).
14
See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); and see also Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).
| 12
|
406 U.S. 128
92 S.Ct. 1456
31 L.Ed.2d 741
AFFILIATED UTE CITIZENS OF the State of UTAH et al., Petitioners,v.UNITED STATES et al.
No. 70—78.
Argued Oct. 18, 1971.
Decided April 24, 1972.
Rehearing Denied June 12, 1972.
See 407 U.S. 916, 92 S.Ct. 2430.
Syllabus
The Ute Partition Act was designed to provide for the partition and distribution of the tribe's assets between the mixed-blood and full-blood members; for termination of federal supervision over the trust and restricted property of mixed-bloods; and for a development program for the full-bloods with a view toward terminating federal supervision of them. In addition to cash and land, the tribe owned oil, gas, and mineral rights (principally oil shale deposits underlying the reservation) and unadjudicated and unliquidated claims against the Government. The Act provided that upon publication of the final membership rolls, the tribal business committee (representing the full-bloods) and the mixed-bloods' 'authorized representatives' were to start dividing assets that could be practicably distributed, based upon the relative number of persons in each group, with a further plan to be prepared for distributing the mixed-bloods' assets to individual members. After each mixed-blood had received his distributive share, federal restrictions were to be removed except as to the remaining interest in tribal property. The assets not practicably distributable were to be jointly managed by the committee and the mixed-bloods' representatives. Under the Act, the mixed-bloods, by way of selecting their representatives, organized the Affiliated Ute Citizens (AUC) as an unincorporated association, which, as authorized by the statute, created the Ute Distribution Corp. (UDC) to manage (jointly with the committee) the oil, gas, and mineral rights and unad-judicated or unliquidated claims against the Government as part of the plan for distributing assets to individual mixed-bloods. UDC issued 10 shares of its stock in the name of each mixed-blood and made an agreement with First Security Bank of Utah (the bank) for the bank to become the UDC stock transfer agent, the bank to hold the stock certificates and issue receipts to the shareholders. Under UDC's articles, a mixed-blood shareholder desiring to dispose of his stock prior to August 27, 1964, had to give first-refusal rights to tribe members absent which no stock sale was valid. A sale could be made to a nonmember only if no member accepted the offer, and the price could be no lower than that offered to members. The UDC certificates were to bear a stamp revealing these conditions, along with a caveat that the certificates did not represent ordinary corporate shares; that the stock's future value could not be determined; and that the stock should be retained for the shareholder's benefit. Upon the sale to a nonmember, the seller was to furnish an affidavit to the reservation superintendent stating the amount he received. The federal trust relationship involving the divided assets contemplated by the Act was terminated by proclamation of the Secretary of the Interior effective August 27, 1961. Auc Case. AUC, acting for itself and its 490 mixed-blood members, in April 1968 sued the United States for a pro rate distribution to the individual members of the mixed-bloods' 27% of the mineral estate underlying the reservation and for a determination that AUC and not UDC was entitled to manage that property jointly with the committee. Jurisdiction was asserted under 25 U.S.C. § 345 and 28 U.S.C. §§ 1399 and 2409. The District Court granted the Government's motion to dismiss, and the Court of Appeals affirmed. Reyos Case. In February 1965, a group of mixed-bloods (12 of whom were selected as 'bellwether plaintiffs' for initial trial purposes) sued the bank, two bank employees (Gale and Haslem) and (under the Tort Claims Act) the United States, charging violations of the Securities Exchange Act of 1934 and the SEC's Rule 10b—5, which prohibits 'any device, scheme, or artifice to defraud' in connection with securities transactions. The claimed violations involved plaintiffs' sales of UDC shares in 1963 and 1964 (some made before and some after August 27). The District Court, inter alia, found that mixed-bloods had sold 1,387 shares of UDC stock to nonmembers, Haslem buying 50 shares (after August 27, 1964) and Gale 63 (44 before that date and 19 after). The 12 plaintiffs sold 120 shares, Gale buying 10 and Haslem six. Thirty-two other whites bought shares from mixed-bloods during the 1963—1964 period. In 1964—1965 mixed-bloods sold shares at $300 to $700 per share, while the price range on transfer between whites was $500 to $700. Gale and Haslem received various commissions for their services in connection with transfers of UDC stock from mixed-bloods to nonmembers, solicited contracts for open purchases of UDC stock on bank premises during business hours, and prepared the necessary affidavits and other papers, using, at best, 'informal' procedures. The District Court concluded that the Government had reason to know of the sales to non-Indians and failed to perform its duty to the mixed-bloods to discourage and prevent the sales; that Gale and Haslem had devised a scheme to acquire for themselves and others UDC shares at less than their fair value; and that the bank had notice of the employees' improper activities. The court found that each of the defendants (with certain exceptions applicable to the Government) was liable to each of the 12 plaintiffs, and assessed damages by using a $1,500-per-share value for the UDC stock as of the times of the sales. The court reached that figure after taking account of the oil shale deposits underlying the reservation, along with gas, coal, and other minerals; petitioners' remaining interests in an Indian Claims Commission award; unadjudicated claims against the Government; the specific prices for UDC share sales by mixed-bloods to whites; the fact that mixed-bloods (who were under heavy selling pressure) were not so well informed about the stock's potential value as were whites; the influence of Gale's and Haslem's improper activities on selling prices; opinion evidence as to worth above $700 per share; and other factors. The measure of damages for each seller, the court held, was the difference between the fair value of the UDC shares at the time of sale and the fair value of what the seller received. The Court of Appeals reversed in substantial part, holding that after the 1961 termination the Government owed petitioners no duty in connection with the UDC stock sales; that Gale and Haslem were liable only where they personally purchased shares for their own accounts or for resale to an undisclosed principal at a higher price, but not in other instances, where their actions were held to be only ministerial; and that the bank's liability did not extend beyond Gale's and Haslem's. The District Court's valuation of the UDC stock was held to lack record support, and the proper measure of damages was held to be 'the profit made by the defendant on resale' or, absent a resale, 'the prevailing market price at the time of the purchase from the plaintiffs.' A petition for certiorari covering both the AUC case and the Reyos case was granted. Held:
The AUC Case
1. The AUC case was properly dismissed for want of jurisdiction as an unconsented suit against the United States. Pp. 141—143.
(a) Though under 25 U.S.C. § 345, the Government has consented to suits to enforce an Indian's right to an allotment of land, the AUC's claimed interest in the mineral estate has not been made subject to an allotment. Pp. 142—143.
(b) Title 28 U.S.C. §§ 1399 and 2409 are inapplicable, since those provisions confer jurisdiction with respect to partition suits where the United States is a tenant in common or a joint tenant, which is not the situation here. P. 143.
2. The UDC and not the AUC is entitled to manage jointly with the full-bloods the oil, gas, and mineral rights underlying the reservation. P. 143—144.
The Reyos Case
3. The Ute Partition Act and the 1961 termination proclamation ended federal supervision over the trust and the mixed-bloods' restricted property, including the UDC shares, and the right of first refusal specified in the UDC corporate articles created no duty on the Government's part to the terminated mixed-bloods seeking to sell their shares. Pp. 149—150.
4. The Court of Appeals correctly determined that Gale and Haslem violated Rule 10b—5 by making misstatements of material fact, namely, that the prevailing market price of the UDC shares was the figure at which their purchases were made, but the court erred in holding that there was no violation of the Rule unless the record disclosed evidence of reliance on the misrepresentations. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of his decision. Pp. 150—154.
5. The bank's liability is coextensive with that of Gale and Haslem. P. 154.
6. The correct measure of damages under § 28 of the Securities Exchange Act of 1934 is the difference between the fair value of what the mixed-blood seller received for his stock and what he would have received had there been no fraudulent conduct (except where the defendant received more than the seller's actual loss, in which case the defendant's profit is the amount of damages). Pp. 154—155.
7. The District Court's valuation of $1,500 per UDC share has adequate record support. Pp. 155—156.
10 Cir., 431 F.2d 1349, affirmed; 10 Cir., 431 F.2d 1337, affirmed in part, reversed in part.
Parker M. Nielson, Salt Lake City, Utah, for petitioners.
A. Raymond Randolph, for respondent United States, pro hac vice, by special leave of Court.
Marvin J. Bertoch, Salt Lake City, Utah, for respondents First Security Bank of Utah, N.A., and others.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
These two consolidated cases center in the Ute Indian Supervision Termination Act of August 27, 1954 (hereafter Partition Act), 68 Stat. 868, as amended, 70 Stat. 936 and 76 Stat. 597, 25 U.S.C. §§ 677—677aa; the Securities Exchange Act of 1934, 48 Stat. 881, as amended, §§ 3(a)(4) and (5), 10(b) and 15(c)(1), 15 U.S.C. §§ 78c(a)(4) and (5), 78j(b) and 78o(c)(1); the emergence of Affiliated Ute Citizens of the State of Utah (AUC), an unincorporated association, and of Ute Distribution Corp. (UDC), a Utah corporation; and the alleged victimization of Indian shareholders in their sales of UDC shares.
2
* Background
3
The Ute Partition Act1 pertained to the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah. At the time of the Act's adoption the tribe had a membership of about 1,765,2 consisting of 439 mixed-bloods3 and 1,326 full-bloods. Section 1 of the Act stated its purpose, namely 'to provide for the partition and distribution of the assets of the . .. Tribe . . . between the mixed-blood and full-blood members thereof; for the termination of Federal supervision over the trust, and restricted property, of the mixed-blood members of said tribe; and for a development program for the full-blood members thereof, to assist them in preparing for termination of Federal supervision over their property.' 25 U.S.C. § 677. The thenestimated value of the cash, accounts receivable, and land owned by the tribe was $20,702,885.4 The tribe possessed additional assets consisting of oil, gas, and mineral rights (principally oil shale deposits underlying the reservation), and unadjudicated and unliquidated claims against the United States.
4
Section 8 of the Act, 25 U.S.C. § 677g, called for the preparation of the rolls of full-blood members and mixed-blood members, and for the finality of those rolls. Section 5, as amended, 25 U.S.C. § 677d, provided that upon the publication of the final rolls 'the tribe shall thereafter consist exclusively of full-blood members,' and that mixed-blood members 'shall have no interest therein except as otherwise provided' in the Act.
5
Section 10, 25 U.S.C. § 677i, stated that when the final membership rolls had been published, the tribal business committee, representing the full-bloods, and the 'authorized representatives' of the mixed-bloods were to 'commence a division of the assets of the tribe that are then susceptible to equitable and practicable distribution.' This was to be based 'upon the relative number of persons comprising the final membership roll of each group.'5 Upon the adoption of a plan of division, the mixed-bloods were to prepare a further plan for the distribution of their group's assets to the individual members. § 13 of the Act, 25 U.S.C. § 677l. After each mixed-blood had received his distributive share, directly or in whole or in part through the device of a corporation or other entity in which he had an interest, federal restrictions were to be removed except as to any remaining interest in tribal property, that is, the unadjudicated or unliquidated claims against the United States, gas, oil, and mineral rights, and other tribal assets not susceptible of equitable and practicable distribution. § 16, 25 U.S.C. § 677o. The Secretary of the Interior then was to issue a proclamation 'declaring that the Federal trust relationship to such individual is terminated.' § 23, 25 U.S.C. § 677v. Those assets, such as the mineral estate, excepted from the division plans, were to be 'managed jointly by the Tribal Business Committee and the authorized representatives of the mixed-blood group.' § 10, 25 U.S.C. § 677i.
6
Section 6 of the Act, 25 U.S.C. § 677e, authorized the mixed-bloods to organize, to adopt a constitution and bylaws, and to provide, by that constitution, for the selection of authorized representatives with power 'to take any action that is required by (the Act) to be taken by the mixed-blood members as a group.'
7
&
| 78
|
406 U.S. 1
92 S.Ct. 1411.
31 L.Ed.2d 658
S & E CONTRACTORS, INC., Petitioner,v.UNITED STATES.
No. 70—88.
Argued Oct. 21, 1971.
Reargued March 20, 1972.
Decided April 24, 1972.
Syllabus
In a contracts disputes procedure, the Atomic Energy Commission (AEC) approved claims of its contractor for additional compensation. In response to an AEC certifying officer's request for advice as to one item, however, the General Accounting Office (GAO) ruled that the claims could not be certified for payment. When the AEC then refused to pay the compensation, the contractor brought suit in the Court of Claims alleging that the GAO had no authority to overturn the AEC approval. The Government, through the Department of Justice, defended on the ground that the AEC determination was not final but was subject to judicial review under the standards specified in § 321 of the Wunderlich Act, '(t)hat . . . the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.' The Court of Claims held that 'the Government has the right to the same extent as the contractor to seek judicial review of an unfavorable administrative decision on a contract claim.' Held:
1. The AEC, which for the purpose of this contract was the United States, had exclusive administrative authority under the disputes clause procedure to resolve the dispute here at issue, and neither the contract between the parties nor the Wunderlich Act permitted still further administrative review by the GAO. Pp. 8—12.
2. The Wunderlich Act does not confer upon the Department of Justice the right to appeal from a decision of an administrative agency, nor is this a case involving a contractor's fraud, concerning which the Department has broad powers to act under several statutory provisions. Pp. 12—19.
433 F.2d 1373, 193 Ct.Cl. 335, reversed.
Geoffrey Creyke, Jr., Washington, D.C., for petitioner.
Irving Jaffe, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question presented in this case is whether the Department of Justice may challenge the finality of a contract disputes decision made by the Atomic Energy Commission (AEC) in favor of its contractor, where the contract provides that the decision of AEC shall be 'final and conclusive.' Section 1 of the Wunderlich Act leaves open for contest a claim that 'is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.'1
2
Moreover, 41 U.S.C. § 322, provides that '(n)o Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board.'
3
The Department of Justice challenged the settlement made by the AEC on two grounds, (1) that the decision was 'not supported by substantial evidence' and (2) that it was 'erroneous as a matter of law.'
4
But the disputes clause in the contract2 says that the decision of the AEC is 'final and conclusive,' unless a court determines that the award is vulnerable under §§ 1 and 2 of the Act. There is no federal statute which submits disputes of this character to review by one or more administrative agencies, where as here there is no charge of fraud or bad faith. Nor is there a statute which enables another federal agency to contest in court the validity of the decision of the AEC, absent fraud or bad faith.
5
In plain lay language the question then is whether, absent fraud or bad faith, the contractor can rely on the ruling of the federal agency with which it made the contract or can be forced to go through still another tier of federal review. We hold that absent fraud or bad faith the federal agency's settlement under the disputes clause is binding on the Government; that there is not another tier of administrative review; and that, save for fraud or bad faith, the decision of AEC is 'final and conclusive,' it being for these purposes the Federal Government. We reverse the judgment of the Court of Claims.
6
* On August 4, 1961, petitioner contracted with the AEC to build a testing facility at the National Reactor Test Station in Idaho. The work was completed and accepted by the AEC on June 29, 1962. Because of various changes in contract specifications and difficulties in meeting performance schedules, petitioner submitted a series of claims to the contracting officer for resolution under the standard disputes clause contained in the contract, asking for equitable modifications of the contract and additional compensation. On August 8 and November 8, 1962, the contracting officer approved some of the claims and disapproved others, and the petitioner sought review of the adverse decisions with the AEC.
7
Since it did not then have a contract appeals board,3 the Commission referred petitioner's appeal to a hearing examiner, before whom an adversary hearing was held. On June 26, 1963, the examiner decided in favor of eight of petitioner's claims and remanded the dispute to the contracting officer for negotiations to determine the exact amount due petitioner. 2 A.E.C. 631. The contracting officer then sought review of this decision by the Commission. See 10 CFR § 2.760 (Jan. 1, 1963).
8
The Commission declined to review four of the claims, 2 A.E.C. 738, which had the effect of sustaining the examiner's decision on them. 10 CFR § 2.762(a) (Jan. 1, 1963). Included within this group was the examiner's determination that amounts due petitioner could not be retained to offset claims allegedly owed by petitioner to other contractors and other agencies of government. The Commission modified the examiner's decision on three of the remaining claims and reversed him on the last, which petitioner has since abandoned. It 'remanded to the contracting officer with instructions to proceed to final settlement or decision in accordance with the decision of the hearing examiner dated June 26, 1963, as modified by (its) order of November 14, 1963, and by (that) decision.' 2 A.E.C. 850, 856.
9
On March 6, 1964, prior to the AEC's final ruling but after it had upheld the examiner's decision on the 'retainage' claim, a certifying officer of the Commission requested the opinion of the General Accounting Office on whether a voucher for the retainage claim could be certified for payment. Jurisdiction for the Comptroller General's review was purportedly founded upon 31 U.S.C. § 82d.4 After some 33 months of what amounted to a plenary review of the proceedings before the examiner, the Comptroller General concluded that the voucher could not be certified for payment. 46 Comp.Gen. 441. On March 27, 1967, the AEC wrote petitioner, saying, 'The Atomic Energy Commission's view is that § & E Contractors, Inc. has exhausted its administrative recourse to the Commission. The Commission will take no action, in connection with the claims, inconsistent with the views expressed by the Comptroller General . . ..' The petitioner then brought this action in the Court of Claims seeking a judgment of $1.95 million and an order remanding the case for negotiations on the time extension to which it claimed it was entitled under the AEC's original decision.
10
The defenses tendered raised no issue of any fraud or bad faith of the contractor against the United States.
11
On cross-motions for summary judgment, a commissioner of the Court of Claims ruled in favor of petitioner, holding that the General Accounting Office lacked authority to review the decision of the AEC and that the AEC's refusal to follow its own decisions favorable to petitioner was a breach of the disputes clause of the contract. On review by the Court of Claims, however, that decision was reversed by a four-to-three vote. While the majority acknowledged 'that the Comptroller General effectively stopped payment of the claims,' it did not pass upon the legality of that action. 433 F.2d 1373, 1375, 193 Ct.Cl. 335, 340. Reasoning, instead, that the Wunderlich Act allowed both the Department of Justice and contractors an equal right to judicial review of administrative decisions and that the AEC's refusal to abide by its earlier decision was a permissible means of obtaining this review, it remanded petitioner's claims 'to the commissioner for his consideration and report on the various claims under Wunderlich Act standards.' Id., at 1381, 193 Ct.Cl., at 351.
12
The Commissioner did not base his opinion on any issue of fraud or bad faith of the contractor against the United States, nor did the Court of Claims. The case is now here on a petition for writ of certiorari which we granted. 402 U.S. 971, 91 S.Ct. 1659, 29 L.Ed.2d 135.
13
Petitioner argues that neither the text nor the legislative history of the Wunderlich Act supports the right of the United States to seek judicial review of an administrative decision on a contractual dispute, that the General Accounting Office was without statutory or contractual authority to overturn the AEC's decision, and that the AEC should not be allowed to abandon after some 33 months its own decision that had been made in petitioner's favor. In response, the Solicitor General contends that the Wunderlich Act does give the Department of Justice the right of judicial review of contract decisions made by federal administrative agencies and that the Department of Justice is free to assert whatever defenses it desires in the Court of Claims without regard to the earlier actions of the federal contracting agency.
II
14
The disputes clause included in Government contracts is intended, absent fraud or bad faith, to provide a quick and efficient administrative remedy and to avoid 'vexatious and expensive and, to the contractor oftentimes, ruinous litigation.' Kihlberg v. United States, 97 U.S. 398, 401, 24 L.Ed. 1106 (1878). The contractor has ceded his right to seek immediate judicial redress for his grievances and has contractually bound himself to 'proceed diligently with the performance of the contract' during the disputes process. The purpose of avoiding 'vexatious litigation' would not be served, however, by substituting the action of officials acting in derogation of the contract.5
15
The result in some cases might be sheer disaster. In the present case nearly a decade has passed since petitioner completed the performance of a contract under which the only agency empowered to act determined that it was entitled to payment. To postpone payment for such a period is to sanction precisely the sort of 'vexatious litigation' which the disputes process was designed to avoid.
16
Here, petitioner contracted with the United States acting through the AEC and it was exclusively with this Commission that the administrative resolution of disputes rested. Disputes initially were to be resolved between the contractor and the contracting officer and, if a settlement satisfactory to the contractor could be reached at that level, no review would lie.6 See United States v. Mason & Hanger Co., 260 U.S. 323, 43 S.Ct. 128, 67 L.Ed. 286; United States v. Corliss Steam-Engine Co., 91 U.S. 321, 23 L.Ed. 397.
17
By the disputes clause7 the decision of the AEC is 'final and conclusive' unless 'a court of competent jurisdiction' decides otherwise for the enumerated reasons. Neither the Wunderlich Act nor the disputes clause empowers any other administrative agency to have a veto of the AEC's 'final' decision or authority to review it. Nor does any other Act of Congress except where fraud or bad faith is involved, give any other part of the Executive Branch authority to submit the matter to any court for determination. In other words, we cannot infer that by some legerdemain the disputes clause submitted the dispute to further administrative challenge or approval,8 and did not mean what it says when it made the AEC's decision 'final and conclusive.' See United States v. Mason & Hanger Co., supra, at 326, 43 S.Ct., at 129. Kipps, The Right of the Government to Have Judicial Review of a Board of Contract Appeals Decision Made Under the Disputes Clause, 2 Pub.Contract L.J. 286 (1969); Schultz, Wunderlich Revisited: New Limits on Judicial Review of Administrative Determination of Government Contract Disputes, 29 Law & Contemp.Prob. 115, 132—133 (1964).
18
A citizen has the right to expect fair dealing from his government, see Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012, and this entails in the present context treating the government as a unit rather than as an amalgam of separate entities. Here, the AEC spoke for the United States and its decision, absent fraud or bad faith, should be honored. Cf. NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328.
19
Since the AEC withheld payment solely because of the views of the Comptroller General and since he had been given no authority to function as another tier of administrative review, there was no valid reason for the AEC not to settle with petitioner according to its earlier decision. For that purpose the AEC was the United States. Cf. Small Business Administration v. McClellan, 364 U.S. 446, 449, 81 S.Ct. 191, 194, 5 L.Ed.2d 200.
20
The cases deny review by the Comptroller General of administrative disputes clause decisions as 'without legal authority' absent fraud or overreaching. E.g., McShain Co. v. United States, 83 Ct.Cl. 405, 409 (1936). In James Graham Mfg. Co. v. United States, 91 F.Supp. 715 (ND Cal.1950), for example, the contracting agency had determined that the contractor was entitled to reimbursement for certain expenditures under two cost-plus-fee contracts, but the Comptroller General refused payment. While the court noted the 'extensive and broad' powers of the Comptroller General, it held that, absent instances of 'fraud or overreaching,' where the Comptroller General's power was founded upon specific statutory provisions such as 41 U.S.C. § 53, he had no 'authority to determine the propriety of contract payments' approved by the contracting agency. 91 F.Supp., at 716. Accordingly, summary judgment was entered by the court, which said, 'Since the Navy Department has determined that plaintiff contractor is entitled to the payment sought, this Court must adjudge accordingly.' Id., at 717.
21
Congress contemplated giving the General Accounting Office such powers and, indeed, the Senate twice passed—in the form of the McCarran bill—a provision which would have allowed the Comptroller to review disputes decisions to determine if they were 'fraudulent, grossly erroneous, so mistaken as necessarily to imply bad faith, or not supported by reliable, probative, and substantial evidence.' S. 24, 83d Cong., 1st Sess. (1953). 'If enacted, it would (have) invest(ed) the GAO with the power—which it has never had—to upset an administrative decision which it (found) 'grossly erroneous' or 'not supported by reliable, probative, and substantial evidence." Schultz, Proposed Changes in Government Contract Disputes Settlement: The Legislative Battle over the Wunderlich Case, 67 Harv.L.Rev. 217, 243 (1953). The House of Representatives rejected this provision, however, and the Wunderlich Act was ultimately passed in its present form. We cannot, therefore, construe it to give the Comptroller General powers which Congress has plainly denied.
22
It is suggested, however, that the Comptroller General's power is not one of review over the AEC decision but is merely the power 'to force the contractor to bring suit and thus to obtain judicial review for the Government.' The disputes clause, however, sets forth the administrative means for resolving contractual disputes. Under the present contract the AEC is the final administrative arbiter of such claims and nowhere is there a provision for oversight by the Comptroller General. The Comptroller General, however, conducted a 33-month de novo review of the AEC proceedings; he blocked the payment to which the AEC determined petitioner was entitled; and he placed upon petitioner the burden of going to the Court of Claims to receive that payment. That action by the Comptroller General was a form of additional administrative oversight foreclosed by the disputes clause.
III
23
A majority of the Court of Claims held 'that the Government has the right to the same extent as the contractor to seek judicial review of an unfavorable administrative decision on a contract claim.' 433 F.2d, at 1378, 193 Ct.Cl., at 346. The Solicitor General adopts this view and sees in the Attorney General's obligation to conduct litigation on behalf of the United States, 28 U.S.C. §§ 516, 519, the power to overturn decisions of coordinate offices of the Executive Department.
24
The Attorney General has the duty to 'conduct . . . litigation in which the United States, an agency, or officer thereof is a party,' 28 U.S.C. § 516, and to 'supervise all (such) litigation,' 28 U.S.C. § 519. That power is pervasive but it does not appear how under the Wunderlich Act it gives the Department of Justice the right to appeal from a decision of the AtomicEnergy Commission. Normally, where the responsibility for rendering a decision is vested in a coordinate branch of Government, the duty of the Department of Justice is to implement that decision and not to repudiate it. See 39 Op.Atty.Gen. 67, 68 (1937); 38 Op.Atty.Gen. 149, 150 (1934); 25 Op.Atty.Gen. 524, 529 (1905); 25 Op.Atty.Gen. 93, 96 (1903); 20 Op.Atty.Gen. 711, 713 (1894); 20 Op.Atty.Gen. 270, 272 (1891); 17 Op.Atty.Gen. 332, 333 (1882). Indeed, this view of the role of the Department of Justice may be traced back to William Wirt, the first of our Attorneys General to keep detailed records of his tenure in office. 'Writ it was who first recorded the propositions that the Attorney General does not decide questions of fact, that the Attorney General does not sit as an arbitrator in disputes between the government departments and private individuals nor as a reviewing officer to hear appeals from the decisions of public officers . . ..' H. Cummings & C. McFarland, Federal Justice 84 (1937) (footnotes omitted).
25
The power to appeal to the Court of Claims a decision of the federal agency under a disputes clause in a contract which the agency is authorized to make is not to be found in the Wunderlich Act and its underlying legislative history.9 That Act was designed to overturn our decision in United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), which had closed the courthouse doors to certain citizens aggrieved by administrative action amounting to something less than fraud. See S.Rep.No.32, 83d Cong., 1st Sess.; H.R.Rep.No.1380, 83d Cong., 2d Sess. It should not be construed to require a citizen to perform the Herculean task of beheading the Hydra in order to obtain justice from his Government.
26
We are reluctant to construe a statute enacted to free citizens from a form of administrative tyranny so as to subject them to additional bureaucratic oversight, where there is no evidence of fraud or overreaching. In this connection, it should be noted that committee reports accompanying the Wunderlich Act indicate that judicial review was provided so that contractors would not inflate their bids to take into account the uncertainties of administrative action.10 This objective would be ill served if Government contractors—having won a favorable decision before the agencies with whom they contracted—had also to run the gantlet of the General Accounting Office and the Department of Justice.
IV
27
A contractor's fraud is of course a wholly different genus than the case now before us. Even where the contractor has obtained a judgment and the time for review of it has expired, fraud on an administrative agency or on the court enforcing the agency action is ground for setting aside the judgment. '(S) etting aside the judgment to permit a new trial, altering the terms of the judgment, or restraining the beneficiaries of the judgment from taking any benefit whatever from it,' Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 245, 64 S.Ct. 997, 1001, 88 L.Ed. 1250 are the usual forms of relief which have been granted. Patents obtained with unclean hands and contracts that are based on those patents are similarly tainted and will not be enforced. Precision Co. v. Automotive Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381. Contracts with the United States—like patents—are matters concerning far more than the interest of the adverse parties; they entail the public interest:
28
'(W)here a suit in equity concerns the public interest as well as the private interest of the litigants this doctrine assumes even wider and more significant proportions. For if an equity court properly uses the maxim to withhold its assistance in such a case it not only prevents a wrongdoer from enjoying the fruits of his transgression but averts an injury to the public.' Id., at 815, 65 S.Ct., at 997, 998.
29
Congress has made elaborate provisions for dealing with fraudulent claims of contractors. Where the Comptroller General is convinced 'that any settlement was induced by fraud,' he is directed to 'certify . . . all the facts . . . to the Department of Justice, to the Administrator of General Services, and to the contracting agency concerned.' 58 Stat. 664, as amended, 41 U.S.C. § 116(b). The Administrator of General Services is also given broad powers of investigation and he is directed to give the Department of Justice 'any information received by him indicating any fraudulent practices, for appropriate action.' 41 U.S.C. § 118(d). Moreover, whenever 'any contracting agency or the Administrator of General Services believes that any settlement was induced by fraud,' the facts shall be reported to the Department of Justice. 41 U.S.C. § 118(e). And the Department of Justice is given broad powers to act. Ibid. In addition, Congress has imposed severe penalties on contractors who commit fraudulent acts and it has given the federal courts power to hear and determine such cases. 41 U.S.C. § 119.
30
Broad, flexible civil remedies are also provided against those who 'use or engage in . . . an agreement, combination, or conspiracy to use or engage in or to cause to be used or engaged in, any fraudulent trick, scheme, or device, for the purpose of securing or obtaining, or aiding to secure or obtain, for any person any payment, property, or other benefits from the United States or any Federal agency in connection with the procurement, transfer, or disposition of property . . ..' 63 Stat. 392, 40 U.S.C. § 489(b).
31
As to the Court of Claims, 28 U.S.C. § 2514 provides that: 'A claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof.
32
'In such cases the Court of Claims shall specifically find such fraud or attempt and render judgment of forfeiture.'11
33
These statutory provisions show that, apart from the inherent power of courts to deal with fraud, the Department of Justice indubitably has standing to appear or intervene at any time in any appropriate court to restrain enforcement of contracts with the United States based on fraud. See, e.g., United States v. Hougham, 364 U.S. 310, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960); Rex Trailer Co. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149 (1956); United States v. Dinerstein, 362 F.2d 852 (CA2 1966).
34
So far as the Wunderlich Act is concerned, it is irrelevant whether the administrative agency deciding this dispute is the AEC or the AEC's board of contract appeals. It was common in the beginning to give final authority over the resolution of disputes under a Government contract to the designated contracting officer, save for 'fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment.' Kihlberg v. United States, 97 U.S., at 402, 24 L.Ed. 1106. Later came the present boards of contract appeals.
35
Boards of contract appeals within the respective agencies today are common. They are not statutory creations but are established by administrative regulations. S.Doc.No.99, 89th Cong., 2d Sess., Operation and Effectiveness of Government Boards of Contract Appeals 20—21. Their decisions 'constitute administrative adjudication in its purest sense.' Id., at 21. As noted,12 the AEC has had a board of contract appeals since 1964. Boards of contract appeals were in effect long before the Wunderlich Act and that explains why the Act provides for review 'of any decision of the head of any department or agency or his duly authorized representative or board.' 41 U.S.C. § 321 (emphasis added).
36
We held in United States v. Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652, that even where the decision on review in the Court of Claims is that of a board of contract appeals, the review must be on the administrative record and that no trial de novo may be held. That decision led to proposals in Congress that, in effect, rulings of contract appeals boards be denied finality.13 S.Doc.No.99, supra, at 25—26 and n. 70. But Congress has not taken that step. Some have urged that where a decision of a board of contract appeals is involved, the United States should have standing to appeal to the Court of Claims. Id., at 159. But our leading authority on these problems, Professor Harold C. Petrowitz, who wrote S.Doc.No.99, supra, observed, 'This has never been done, and the procedure may appear anomalous in view of the relatively close relationship between boards and the agencies they serve.' Ibid. However serious the problem may be and whatever its dimensions, it is obviously one for the Congress to resolve, not for us to resolve within the limits of the Wunderlich Act.
37
This case does not involve the situation where an administrative agency, upon timely petition for rehearing or prompt sua sponte reconsideration, determines that its earlier decision was wrong and, for that reason, refuses to abide by it. The AEC has not, to this day, repudiated the merits of its decisions in favor of petitioner. Nor, to repeat, is this a case of a fraud of a contractor against the United States. This is simply an instance where a contractor successfully resolved its disputes with the agency with which it had contracted and to whom that power had been delegated. The fruits of petitioner's labors were frustrated, however, by the intermeddling of another agency without power to act and, when petitioner sought enforcement of its rights in court, still another agency of the Government entered and sought to disavow the decision made here by the AEC.
38
If the General Accounting Office or the Department of Justice is to be an ombudsman reviewing each and every decision rendered by the coordinate branches of the Government, that mandate should come from Congress, not from this Court.
39
The judgment of the Court of Claims is reversed.
40
Reversed.
41
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
42
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice POWELL join, concurring.
43
Because I agree that in this case, where neither fraud nor bad faith is charged, the Wunderlich Act, 41 U.S.C. §§ 321—322, does not operate to give the United States the power to challenge a contract disputes clause finding of fact in favor of the contractor by the Government's own contracting agency, I join the Court's opinion and its judgment. I venture some supportive comments:
44
1. The contracting officer and the Atomic Energy Commission acted here in an executive capacity for the United States. See Small Business Administration v. McClellan, 364 U.S. 446, 448—450, 81 S.Ct. 191, 194, 5 L.Ed.2d 200 (1960). The Commission is the party to the contract with the contractor. Its exercise of executive judgment is necessarily that of the United States. Yet the Government, by its position here, would grant itself the right to challenge its own executive determination whenever the General Accounting Office, by interposition, thinks this should be done. This, for me, does not make good sense, and in the absence of clear congressional authorization, I doubt that it would make good law.
45
2. The disputes clause in Government contracts has been employed for over four decades. The clause is one drawn and prescribed by the United States. It is not one drawn by the contractor or by any group of contractors with whom the United States deals. And for years, with the specified exceptions, that clause itself has been regarded as conferring no right of judicial review on the part of the Government.
46
3. By accepting the disputes clause in his contract, the contractor bears the interim financial burden and gives up the right of rescission and the right to sue for damages. What he receives in return is the Government's assurances of speedy settlement and of prompt payment, not payment delayed for months or, as here, for years.
47
4. To compel a contractor to go through the administrative process and to proceed and to perform with less than his usual arsenal of defenses against administrative arbitrariness or unfairness, and then to have that determination submitted to judicial review at the behest of still another agency of Government, subjects the contractor to untoward delay in payment and to a financial hazard that may well prove to be ruinous.
48
5. The result would be a strange one if, as even the GAO here concedes, a contracting officer's decision favorable to a contractor possesses finality, United States v. Corliss Steam-Engine Co., 91 U.S. 321, 23 L.Ed. 397 (1876); United States v. Mason & Hanger Co., 260 U.S. 323, 43 S.Ct. 128, 67 L.Ed. 286 (1922), while a decision at the higher level of the agency itself does not. When the officer and the contractor agree to the disposition of a dispute, there is no occasion for the issuance of a decision by the contracting officer, and the Wunderlich Act, by its terms, does not apply. And if the contractor accepts a decision of the contracting officer, and does not appeal to the Commission, that decision, by the specific provisions of the disputes clause, is final and conclusive as to questions of fact. Under the Government's position, however, the decision at the agency head would enjoy no such preferred and conclusive status.*
49
6. Lurking in the background of the Court's decision is advantage to the Government resulting from what strikes me as a possible breach of contract. The contractor here, according to the longterm understanding of the disputes clause, consented to the disposition of disputes by the contracting officer and by the AEC on appeal, and to the finality of decision at those points. It did not consent to its review or to the exercise of veto power by any other agency of Government. When the United States then disavows the Commission's decision—a decision that, as the Court notes, to this day has never been withdrawn or repudiated by the AEC—it seems to me that the Government imposes something to which the contractor has not agreed.
50
7. The legislative history, which the dissent finds so clearly supportive of its conclusion, is not at all that clear for me. I doubt if anyone who reads and absorbs the Appendix to the dissent's opinion will find it clear and indicative. I regard it, as does the Court and as did the dissenters in the Court of Claims, as decidedly ambiguous at best. Even the Court of Claims majority struggled with the history and conceded that it did not 'explicitly' provide for Government-in-stituted judicial review. 433 F.2d 1373, at 1376, 193 Ct.Cl. 335, 342. This is not surprising, for the Wunderlich Act was intended to relieve contractors from the holding in United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), where the Court restricted contractor-instigated judicial review to the situation of alleged and proved fraud. In Wunderlich the Government sought to reinstate an Interior Secretary's fact decision, favorable to the Government and adverse to the contractor, which the Court of Claims had set aside as 'arbitrary,' 'capricious,' and 'grossly erroneous.' The Government there urged—and prevailed over three dissenting votes—a narrow judicial review standard for the contractor. Congress reacted, and the Wunderlich Act overrode this restrictive measure of review and opened the door to the contractor to the extent permitted by the proviso clause of § 321.
51
I am not able to read into this legislative change a corresponding nod in the direction of the Government. The flat rejection by Congress of the proposed provision for GAO review is significant. There would be no point in that rejection if GAO has the power to defeat the finality of the disputes decision anyway. And the differing approaches taken on this appeal by the Department of Justice and the GAO themselves indicate the inconclusiveness of the legislative history.
52
8. The issue is not whether advantage is or is not to be taken of the Government. Of course, the Government's rights are to be protected. That protection, however, is afforded by the nature and workings of the contract disputes system, by its emphasis on expeditious performance and getting the job done, and by the presence of the contracting officer and the agency, but not of the GAO. This results in fulfillment of the contract and, at the same time, gives the contractor the protection he needs against fraud, capriciousness, arbitrariness, bad faith, and absence of evidence. In the exercise of its legislative judgment, Congress has determined that in this area the Government needs no more.
53
I therefore join in reversing the judgment of the Court of Claims and in giving this contractor the benefit of the decision made by the Atomic Energy Commission itself, the very agency that was the contractor's opposite party to the contract.
54
Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, dissenting.
55
This is a suit by petitioner against the United States to recover on a contract between petitioner and the Atomic Energy Commission. The contract included a 'disputes clause,' which provided that the Commission would decide any factual disputes that arose under the contract and that its decision would 'be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence.' The disputes clause also provided that while it did 'not preclude consideration of law questions in connection with (disputes) decisions,' it was not to 'be construed as making final the (Commission's) decision . . . on a question of law.' Disputes arose during performance of the contract, and the Commission decided them in petitioner's favor. The General Accounting Office, however, when rendering an advisory opinion requested on behalf of the Commission as to one of the disputed items, disagreed with the Commission's decision, and for that reason the Commission refused to pay. In petitioner's subsequent suit in the Court of Claims, petitioner relied upon the Commission's decision as a 'final and conclusive' resolution of the disputes, entitling petitioner to summary judgment. The Department of Justice defended the suit on the grounds that the Commission's decision was not supported by substantial evidence and was erroneous on questions of law. The issue before us is whether the Government, through the Department of Justice, may assert those defenses.
56
It may be helpful at the outset to put this case in perspective by reviewing briefly the law developed over the past century to regulate the enforcement of disputes clauses in Government procurement contracts. Until 1954, with the passage of the Wunderlich Act, disputes clauses provided that the decision of a designated Government official upon a matter in dispute under the contract would be final and binding upon both parties. Although in terms the disputes clauses precluded judicial review of disputes decisions, this Court beginning in 1878 consistently held that the finality of a disputes decision could be challenged in court by either party on the ground of fraud or bad faith by the deciding Government official. Thus the 'fraud' exception to the finality of disputes decisions was not written into disputes clauses but was judicially fashioned.
57
Under this system, then, a contractor dissatisfied with an adverse disputes decision could contest the finality of that decision only by proving in court that it was fraudulent. The Government, of course, bore an identical burden when it contested the finality of a disputes decision in favor of the contractor. That situation arose when GAO, congressional watchdog of Government expenditures, refused to sanction payment to a contractor of the amount found due under a disputes decision in his favor and thereby forced him to bring suit. GAO's view of the disputes decision, however, was of no consequence in court; indeed, whether or not the Government defended the contractor's suit was a matter solely for the judgment of the Government's lawyear, the Department of Justice. Once in court, the contractor relied upon the finality of the disputes decision and recovered on that basis unless the Government proved that the decision was fraudulent.
58
Over the years, the Court of Claims gradually broadened the fraud exception to the finality of disputes decisions. In 1951, however, this Court stopped the trend by holding that a disputes decision, rendered pursuant to a disputes clause purporting to make that decision final, was conclusive upon both parties unless the challenger proved in court that the deciding Government official was guilty of 'conscious wrongdoing, an intention to cheat or be dishonest.' United States v. Wunderlich, 342 U.S. 98, 100, 72 S.Ct. 154, 155, 96 L.Ed. 113 (1951). Wunderlich's narrow definition of the fraud exception alarmed the Government as well as contractors, for, in practical effect, it meant that disputes decisions were virtually invulnerable to challenge.
59
The result of this concern was the so-called Wunderlich Act, drafted by GAO and supported by GAO, Government procurement agencies, and contractors. The Act overruled Wunderlich by directing that no disputes clause, purporting to make disputes decisions final, 'shall be pleaded in any suit . . . as limiting judicial review of any (disputes) decision to cases where fraud by (the Government) official . . . is alleged.' The Act did more than simply overrule Wunderlich, however, for it also explicitly stated the grounds upon which courts could set aside disputes decisions: 'any (disputes) decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.' Finally, the Act provided that '(n)o Government contract shall contain a provision making final on a question of law the decision of any (Government) official . . ..'
60
The Wunderlich Act, then, rendered the old forms of disputes clauses unserviceable, for no longer could the parties bind themselves to the finality of a disputes decision, judicially reviewable only if the challenger proved that it was fraudulent. Consequently, the disputes clause in the contract before us did not even attempt to provide for the finality of the Commission's disputes decisions, but instead expressly tracked the language of the Act. Under this disputes clause and the Act, the party dissatisfied with a disputes decision is no longer limited to challenging the finality of that decision only on the ground that it was 'fraudulent,' for the dissatisfied party is now entitled also to prove in court that the decision was 'capricious,' 'arbitrary,' 'so grossly erroneous as necessarily to imply bad faith,' 'not supported by substantial evidence,' or incorrect 'on a question of law.' In this case, the Government relied upon the last two grounds to challenge the finality of the Commission's disputes decision in favor of petitioner.1
61
As noted above, under pre-Wunderlich Act disputes clauses, which purported to make disputes decisions final, the Government, like the contractor, could avail itself of the judicially created fraud exception to the finality of disputes decisions. The Government obtained judicial review when GAO refused to sanction payment after a disputes decision in favor of the contractor, thus forcing him to bring a suit in which the Department of Justice represented the Government. That was precisely the path followed in this case, for GAO, in response to a request for an advisory opinion, informed the Commission that payment would be improper because the disputes decision did not meet the standards of the Wunderlich Act, and, in petitioner's subsequent suit, the Department of Justice represented the Government. Had this case arisen under earlier forms of disputes clauses, which purported to make disputes decisions final, and before the Wunderlich Act, the Government could have defended the suit only on the judicially created ground that the disputes decision was fraudulent. Under the current clause and the Act, however, the Government is not limited to that narrow ground. Like the contractor, the Government may now also rely upon any or all of the other grounds enumerated in the clause and the Act. The Commission's disputes decision is not 'final and conclusive,' under the clause and the Act, if the Court of Claims determines, as the Government asserted here, that the decision was 'not supported by substantial evidence' or was incorrect 'on a question of law.'2
62
Yet the Court today holds that the Government has no right to defend petitioner's suit. Had the Commission's disputes decision been adverse to petitioner, of course, petitioner would have been free to challenge its finality in court, under the disputes clause and the Act, on the grounds that it was 'not supported by substantial evidence' and was incorrect 'on a question of law.' The Court holds, however, that the Government may not challenge the finality of the disputes decision in favor of petitioner because the Government, under the disputes clause and the Act, has no right to judicial review of disputes decisions.3 The Court reaches this conclusion on the strength of its assertions that GAO had no business exercising its statutory authority and advising the Commission that the disputes decision was erroneous, that the Department of Justice had no business exercising its statutory authority and appearing in the Court of Claims to defend petitioner's suit, and that the Government is always entitled to relief if the contractor perpetrates a fraud. Noticeably absent from the Court's opinion is any justification for interpreting the disputes clause and the Act to apply only when a disputes decision is adverse to the contractor. Somehow the Court construes a contract and a statute that bar finality for all disputes decisions to require finality for disputes decisions in favor of contractors.
63
Today's decision is demonstrably wrong. The Court holds that Congress enacted the Wunderlich Act for the benefit of contractors, to arm them with grounds in addition to fraud to challenge in court the finality of disputes decisions unfavorable to them. Yet, without an iota of support in the language of the Act, which expressly governs 'any' disputes decision in 'any suit,' or in the Act's legislative history, which confirms that the expanded grounds of judicial review were to be available to both the Government and contractors, the Court holds that the Government, unlike contractors, may not rely upon the Act to challenge in court the finality of disputes decisions. Indeed, the Court goes further, for, as noted, the disputes clause before us did not purport to make the Commission's disputes decisions final. The Court thus holds that the Act denies the Government the privilege of entering into a contract that affords it as well as the contractor the right to judicial review of disputes decisions. Hence, while the Act ensures that contractors are entitled to judicial review even when the disputes clause provides for finality, the Act also, according to the Court, ensures that the Government is denied judicial review even when the disputes clause does not provide for finality. Today's decision produces the absurd result that when the Government agreed to a disputes clause with no provision for judicial review, it could nevertheless challenge the finality of a disputes decision at least for fraud, but now that the Government has agreed to a disputes clause specifying five grounds of judicial review, including fraud, it is entitled, holds the Court, to none at all.4 The Government's position is thus worse than it was before the Act, for it is deprived of even the limited review for fraud to which it was entitled under Wunderlich. Finally, the Act flatly prohibits disputes clauses that make disputes decisions final on questions of law. The clause before us, following the Act, expressly provided that the Commission's disputes decisions could not be final on questions of law. Yet, in the face of the Act and the disputes clause, the Court holds that the Commission's decision is final on questions of law.
64
Analysis of the judicial history of disputes clauses, both in this Court and in the Court of Claims, will unfortunately unduly extend the length of this opinion. But the devastation today's decision wreaks upon Government procurement practices is sufficient justification, and Congress should be alerted to the urgent need for immediate remedial legislation. Congress alone can restore the former balance between Government and contractor, for today's decision not only holds that the Act's expanded scope of judicial review is available solely for contractors, but also holds that the Act, in some unspecified way, prohibits the contracting parties from agreeing to a disputes clause that affords the Government that same scope of review. Congress must therefore make more explicit what is already explicit in the Wunderlich Act, but this time in terms so plain that even this Court will be unable to thwart the congressional will.
65
* A.
66
The contract in Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106 (1878), as the Court construed it, provided that the decision of a designated Government official would be 'conclusive.' The official rendered a decision adverse to the contractor, and the contractor brought suit. Because there was 'neither allegation nor proof of fraud or bad faith' by the official, the Court held that his decision could not 'be subjected to the revisory power of the courts without doing violence to the plain words of the contract.' Id., at 401. The Court then enunciated the standard of judicial review that has been the basis for the decision of every subsequent disputes clause case, both in this Court and in the Court of Claims: 'in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the (contractor) as well as upon the government.' Id., at 402 (emphasis added).
67
The very first case in this Court, then, laid down the rule that a decision rendered pursuant to a disputes clause was equally binding upon both parties; the contractor and the Government could impeach a disputes decision that the contract purported to make final, but only by proving that the decision was fraudulent. Until today, this Court never departed from the Kihlberg view that the same standard of judicial review is available to both parties.
68
Sweeney v. United States, 109 U.S. 618, 3 S.Ct. 344, 27 L.Ed. 1053 (1883), reiterated the Kihlberg rule in another suit by a contractor dissatisfied with a disputes decision rendered by a Government official. Because 'there was neither fraud nor such gross mistake as would necessarily imply bad faith, nor any failure to exercise an honest judgment on the part of the officer,' the Court held, 'on the authority of Kihlberg v. United States,' that the official's decision was conclusive. Id., at 620, 3 S.Ct., at 344.
69
The Court next decided three cases involving contracts between private parties. In Martinsburg & Potomac R. Co. v. March, 114 U.S. 549, 5 S.Ct. 1035, 29 L.Ed. 255 (1885), a contractor agreed to do certain work for a railroad company, and the contract provided that disputes would be decided by a company official whose decision would be 'final and conclusive.' Id., at 553, 5 S.Ct., at 1037. The official's decision was in favor of the company, and the contractor brought suit. The Court, stating that the 'case is within the principles announced in Kihlberg v. United States and Sweeney v. United States,' id., at 550, 5 S.Ct., at 1035 (here, and in subsequent similar quotations, citations not repeated), held that the official's decision was conclusive because there was no proof that he 'had been guilty of fraud, or had made such gross mistake in his estimates as necessarily implied bad faith, or had failed to exercise an honest judgment in discharging the duty imposed upon him,' id., at 553, 5 S.Ct., at 1037.
70
The contract in Chicago, S.F. & C.R. Co. v. Price, 138 U.S. 185, 11 S.Ct. 290, 34 L.Ed. 917 (1891), was essentially the same as the contract in March. In Price, however, the official's disputes decision was in favor of the contractor. The company refused to pay in accordance with the decision, and the contractor brought suit. The Court first reviewed March and stressed that March had applied 'the principles announced in Kihlberg v. United States (supra) and Sweeney v. United States (supra).' Id., at 193, 11 S.Ct., at 291. The Court then pointed out that '(t)he only difference between the case (March) and the present one is that the alleged mistakes of the engineer in the former were favorable to the railroad company, while in this case they are favorable to the contractors.' Id., at 194, 11 S.Ct., at 292. '(T)hat difference,' said the Court, 'cannot affect the interpretation of the contract.' Ibid. Because there was no proof of 'fraud upon the part of the company's engineers, or such gross mistakes by them as imply bad faith,' the Court held that the disputes decision was binding upon the company. Id., at 195, 11 S.Ct., at 292.
71
Price thus established that the party whose employee was delegated authority to make the disputes decision could also challenge the finality of that decision, although, like the contractor, only under the Kihlberg test of fraud. The Court reaffirmed this application of the Kihlberg rule in Sheffield & Birmingham Coal, Iron & R. Co. v. Gordon, 151 U.S. 285, 14 S.Ct. 343, 38 L.Ed. 164 (1894), holding that 'in the absence of fraud or mistake' by the company official, his decision in favor of the contractor 'was conclusive upon the company.' Id., at 292, 14 S.Ct., at 345.
72
United States v. Gleason, 176 U.S. 588, 20 S.Ct. 228, 44 L.Ed. 284 (1900), involved a Government official's disputes decision adverse to the contractor. The Court again affirmed the rule of Kihlberg and the intervening cases
73
'that it is competent for parties to a contract, of the nature of the present one, to make it a term of the contract that the decision of an engineer, or other officer, of all or specified matters of dispute that may arise during the execution of the work, shall be final and conclusive, and that, in the absence of fraud or of mistake so gross as to necessarily imply bad faith, such decision will not be subjected to the revisory power of the courts. Martinsburg & P.R. Co. v. March (supra); Chicago, S.F. & C.R. Co. v. Price (supra).' Id., at 602, 20 S.Ct., at 233.
74
The Court also followed the Kihlberg rule in Ripley v. United States, 223 U.S. 695, 701—702, 704, 32 S.Ct. 352, 355—356, 56 L.Ed. 614 (1912), and Merrill-Ruckgaber Co. v. United States, 241 U.S. 387, 36 S.Ct. 662, 60 L.Ed. 1058 (1916).
75
In United States v. Mason & Hanger Co., 260 U.S. 323, 43 S.Ct. 128, 67 L.Ed. 286 (1922), the contractor was paid in accordance with a disputes decision in his favor, but the Comptroller of the Treasury disagreed with the decision and subsequently deducted the amount paid from other sums due the contractor. Id., at 325, 43 S.Ct., at 128. The contractor brought suit, relying upon the finality of the disputes decision. The Court's holding was direct and simple:
76
'We have decided that the parties to the contract can so provide and that the decision of the officer is conclusive upon the parties Kihlberg v. United States (supra); Martinsburg & Potomac R.R. Co. v. March (supra); United States v. Gleason (supra); Ripley v. United States (supra). This is extending the rule between private parties to the Government.' Id., at 326, 43 S.Ct., at 129.
77
Mason & Hanger, then, applied the Kihlberg rule when the contractor in a Government contract relied upon the disputes decision by a Government official and the Government challenged it. Hence, both parties to a Government contract, like both parties to a private contract, as in Price and Gordon, were free to challenge the finality of a disputes decision, although only upon the limited grounds permissible under Kihlberg.
78
Mason & Hanger also held that 'the Comptroller of the Treasury has no power' over a disputes decision, 260 U.S., at 326, 43 S.Ct., at 129, meaning that his disagreement with the decision was irrelevant and had no effect in court, where the parties' rights under the contract were determined. The Government, like the contractor, could prevail only by proving that the disputes decision was fraudulent. The Comptroller's authority was limited to his power to refuse to sanction payment to the contractor, thereby forcing the contractor to bring suit for a judicial determination of his right to payment in accordance with the disputes decision in his favor.5
79
In sum, the rule first announced in Kihlberg in 1878 had, with Mason & Hanger in 1922, been held to apply to any disputes decision, whether in a Government or in a private contract, and to apply no matter which party relied upon the finality of the decision. If the Government (or, in a private contract, the party whose official decided the dispute) relied upon the finality of the decision, the contractor had to prove that it was fraudulent. Kihlberg; Sweeney; March; Gleason. If the contractor relied upon the finality of the decision, the Government (or, in a private contract, the party whose official decided the dispute) had to prove that it was fraudulent. Price; Gordon; Mason & Hanger.6
80
In United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256 (1950), the Court once again gave extended consideration to the proper judicial interpretation of disputes clauses. The Court pointed out that '(c)ontractual provisions such as these have long been used by the Government. No congressional enactment condemns their creation or enforcement.' Id., at 460, 70 S.Ct., at 290. The Court then reviewed Kihlberg, Sweeney, and March, and said that '(t)he holdings of the foregoing cases have never been departed from by this Court. They stand for the principle that parties competent to make contracts are also competent to make such agreements.' Id., at 461, 70 S.Ct., at 290. The Court added that '(i)f parties competent to decide for themselves are to be deprived of the privilege of making such anticipatory provisions for settlement of disputes, this deprivation should come from the legislative branch of government.' Id., at 462, 70 S.Ct., at 291.
81
Finally, came United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951). The contract contained the usual disputes clause providing that the disputes decision was 'final and conclusive.' Id., at 99, 72 S.Ct., at 155. After noting that the same disputes clause had been upheld in Moorman, the Court stated:
82
'Contracts, both governmental and private, have been before this Court in several cases in which provisions equivalent to (this disputes clause) have been approved and enforced 'in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment . . ..' Kihlberg v. United States (supra); Sweeney v. United States (supra); Martinsburg & P.R. Co. v. March (supra); Chicago, S.F. & C.R. Co. v. Price (supra).' Id., at 99—100, 72 S.Ct., at 155.
83
We thus have an unbroken line of cases in this Court, from 1878 to 1951, applying a simple, straightforward rule of judicial review. A contractual disputes clause making final a decision by an agent of one of the parties was given full effect in court, subject to the judicially created exception that allowed relief to the party challenging the decision if he was able to prove that it was fraudulent. This rule applied whether the contract was Government or private and no matter which party challenged the finality of the decision. In short, a disputes clause was equally binding upon both parties.
B
84
Most disputes clause cases, of course, have been decided not by this Court but by the Court of Claims. That court followed the Kihlberg rule when a contractor challenged a disputes decision against him, see, e.g., Kennedy v. United States, 24 Ct.Cl. 122 (1889); P. H. McLaughlin & Co. v. United States, 37 Ct.Cl. 150 (1902); Pacific Hardware & Steel Co. v. United States, 49 Ct.Cl. 327 (1914); Brinck v. United States, 53 Ct.Cl. 170 (1918); Southern Shipyard Corp. v. United States, 76 Ct.Cl. 468 (1932), as well as when the Government challenged a disputes decision in the contractor's favor.
85
In Pacific Hardware, supra, the contract provided that a Government official would deduct specified amounts from the contract price if the contractor delayed in performing the contract. Deductions were made, and the contractor brought suit. The court applied the Kihlberg rule and upheld the deductions. 49 Ct.Cl., at 336. The contract also provided that the official could waive deductions under certain circumstances. The contractor argued that this power violated public policy and therefore vitiated the contract. The court rejected the argument, but added that the power to decide in favor of the contractor by waiving deductions, like the power to decide against the contractor by making deductions, was subject to the Kihlberg rule:
86
'Of course, if there were fraud or such gross error as implies bad faith or a failure to exercise an honest judgment in deciding that the deductions be not made, the Government would not be bound and the contractor would remain liable.' Id., at 337.
87
In Yale & Towne Mfg. Co. v. United States, 58 Ct.Cl. 633 (1923), the disputes decision was in favor of the contractor, but the Government refused to pay because the Comptroller of the Treasury disagreed with the decision. The contractor argued 'that the contract reposed in the contracting officer . . . the right to determine whether or not and the extent to which the contractor was entitled to extension of time, and that the finding of that officer was conclusive upon the parties in the absence of fraud or mistakes so gross as to imply bad faith.' Id., at 637.
88
The court, noting 'that a long line of decisions not only by this court but by the Supreme Court requires the sustaining of the (contractor's) contention,' stated:
89
'Provisions in Government contracts reposing in some designated official the right to determine certain questions and making his determination thereof conclusive are of frequent occurrence. Such provisions are inserted largely for the protection of the Government, and the cases in which such a determination by the designated official has been upheld by the courts have been largely cases in which the rule has been invoked in favor of the United States and against the (contractor), but the rule is none the less effective if perchance it occasionally may operate the other way.' Id., at 638 (emphasis added).
90
In Penn Bridge Co. v. United States, 59 Ct.Cl. 892 (1924), the disputes decision was in favor of the contractor, but the Comptroller General disagreed with the decision and deducted the amount from other sums due the contractor. The Court, referring to the Comptroller's attempt to 'substitute his judgment for that of the contracting officer and thereby eliminate from the case the finding of the contracting officer when the rights of the parties are in this court for adjudication,' id., at 898, stated that 'action by the comptroller could (not) in any way conclude this court in the determination of the rights of the parties under the contract,' id., at 896. The court then applied the Kihlberg rule. Id., at 897.
91
Penn Bridge, then, aside from reaffirming that the same rule of judicial review applied whether the Government or the contractor challenged the finality of a disputes decision, also demonstrates that GAO's view of the correctness of a disputes decision was of no effect in court. GAO's only power—the power of the purse—was to force the contractor to bring suit and thus to obtain judicial review for the Government. But once the case reached court, review was the same for both parties.
92
GAO's opinion of a disputes decision was irrelevant in court even when GAO favored the contractor. In Eaton, Brown & Simpson, Inc. v. United States, 62 Ct.Cl. 668 (1926), the disputes decision was in favor of the Government, but the Comptroller General disagreed and paid the contractor. In the contractor's suit to recover on other claims, the court held that the disputes decision controlled and deducted the amount GAO had paid from other sums due the contractor. 'The action of the comptroller is not conclusive upon this court in determining the rights of the parties. See Penn Bridge Co. v. United States.' Id., at 685.
93
In Carroll v. United States, 76 Ct.Cl. 103 (1932), the Comptroller General disagreed with a disputes decision in favor of the contractor and assessed damages in a sum greater than the amount due under the contract. The contractor brought suit, and the Government argued that it was entitled to the excess. The court replied:
94
'The issue is not a new or novel one insofar as judicial precedents are concerned. At least beginning with the case of Kihlberg v. United States to the present time, the Supreme Court has uniformly held that in Government contracts containing provisions similar to the one in suit, the parties are competent to bind themselves to the conclusiveness and finality of the action and findings of the department with which the contract is made, and that such action is not open to the supervisory power of the courts unless overturned by proof of fraud or such gross error as to warrant the implication of fraud.' Id., at 124—125.
95
In Albina Marine Iron Works v. United States, 79 Ct.Cl. 714 (1934), the disputes decision was in the contractor's favor, but the Comptroller General disagreed and assessed damages. The court held that the disputes decision
96
'was a final disposition of the matter. Neither fraud nor bad faith is alleged or proven. The court cannot go behind the decision of the contracting officer where the contract makes him the final arbiter of the facts of the case unless there has been fraud or such gross error which, in effect, would imply bad faith. The cases in this court and the Supreme Court so holding are numerous.' Id., at 720.
97
After repeating that it could not review the disputes decision 'without the establishment of fraud or such gross error which would imply bad faith,' the court concluded:
98
'It is seldom that a case arises like the instant case, where the contractor is upholding the decision of the contracting officer and the Government is attempting to overthrow the decision of the officer appointed and designated by it to contract and carry out the terms of the undertaking. Unless proven to the contrary, full faith and credit should be accorded an officer of the Government in arriving at a decision which requires fair and impartial action on his part.' Id., at 721.
99
In McShain Co. v. United States, 83 Ct.Cl. 405 (1936), the designated Government official decided that the contractor's delay in completing the contract was unavoidable. The Comptroller General later decided that part of the delay was the contractor's fault and deducted damages from the amount due under the contract. The contractor brought suit, relying upon the finality of the disputes decision. The court said:
100
'Neither fraud nor bad faith is alleged or proven. This court and the Supreme Court by numerous decisions have held there is no going behind the decision of the contracting officer when the contract provides that 'his finding of facts therein shall be final and conclusive on the parties thereto.' The action of the Comptroller General was without legal authority. Kihlberg v. United States; United States v. Gleason.' Id., at 409.7
101
In B—W Construction Co. v. United States, 97 Ct.Cl. 92 (1942), the Comptroller General deducted damages for delay after a disputes decision in the contractor's favor. The court held that because of the disputes clause '(i)t is . . . the action of the head of the department that is before us for review. On the question now before us that action is binding on us unless we find that it was arbitrary or grossly erroneous. In no event are we bound under this contract by the action of the Comptroller General.' Id., at 123.
102
In Mitchell Canneries v. United States, 77 F.Supp. 498, 111 Ct.Cl. 228 (1948), the Comptroller General disagreed with a disputes decision in favor of the contractor and set off that amount against other sums due the contractor on other contracts. The court applied '(t)he established principle of law that the findings of fact of a contracting officer are binding upon both the Government and the contractor if there is no fraud, gross error or arbitrariness by the contracting officer amounting to bad faith.' Id., at 502, 111 Ct.Cl., at 247.
103
These Court of Claims cases are further cogent authority that the Government was, until today, entitled to exactly the same judicial review as contractors. A disputes clause providing for a final decision by a Government official was equally binding upon both parties. GAO's opinion of that decision was irrelevant in court. GAO's only power was to refuse to sanction payment under a disputes decision favorable to a contractor and thereby compel the contractor to bring suit. Once in court, the standard of review applicable to contractor challenges likewise controlled the Government's challenge.
104
The district courts reached the identical result. In James Graham Mfg. Co. v. United States, 91 F.Supp. 715 (ND Cal.1950), the Comptroller General refused to accept a disputes decision in favor of the contractor. Although the agency adhered to the merits of its decision, it refused to pay because of the Comptroller's contrary view. The court said:
105
'Another officer of the United States government, the Comptroller General, who has general control of the government's purse strings, has refused to sanction payment of the account which the Navy Department has approved. The question . . . is: Has he power to determine that payment shall not be made?
106
'The powers of the Comptroller General are extensive and broad. But he does not, absent fraud or overreaching, have authority to determine the propriety of contract payments when the contracts themselves vest the final power of determination in the contracting executive department. United States v. Mason & Hanger Co. (Supra); United States v. Moorman (Supra).' Id., at 716.8
107
In Consolidated Vultee Aircraft Corp. v. United States, 97 F.Supp. 948 (D.C.Del.1951), the contractor received an adverse disputes decision from the contracting officer but won reversal on appeal to the agency. GAO disagreed with the agency's decision and refused to pay, forcing the contractor to bring suit. The court held for the contractor on the authority of Mason & Hanger, Penn Bridge, and James Graham. Id., at 951.
C
108
The law was thus crystal clear. The district courts, the Court of Claims, and this Court consistently applied the rule, originally announced almost a century ago in Kihlberg, that contractual clauses providing for the finality of disputes decisions rendered by an employee of one of the parties were enforceable in court, with the judicially created exception for fraudulent decisions. No court, nor even any contractor, ever questioned that GAO could obtain judicial review for the Government simply by refusing to approve payment on a disputes decision favorable to a contractor. It was accepted by all that the Government and the contractor both were entitled to judicial review.9 The problem that gave rise to the Wunderlich Act was not who was entitled to judicial review nor how judicial review was to be attained. The problem was the scope of judicial review.
109
As the Court noted in United States v. Carlo Bianchi & Co., 373 U.S. 709, 713, 83 S.Ct. 1409, 1412, 10 L.Ed.2d 652 (1963), under the Kihlberg rule a court's function 'in matters governed by 'disputes' clauses was in effect to give an extremely limited review of the administrative decision'; the Court of Claims, however, had 'somewhat expanded' the scope of judicial review 'over the years.' See, e.g., Needles for Use and Ben. of Needles v. United States, 101 Ct.Cl. 535, 601—607 (1944). It was this expansion of the scope of judicial review that Wunderlich addressed.
110
Certiorari was granted in Wunderlich 'to clarify the rule of this Court which created an exception to the conclusiveness of such administrative decision(s).' 342 U.S., at 99, 72 S.Ct., at 155. The Court gave a restrictive interpretation to this exception.
111
'Despite the fact that other words such as 'negligence,' 'incompetence,' 'capriciousness' and 'arbitrary' have been used in the course of the opinions, this Court has consistently upheld the finality of the department head's decision unless it was founded on fraud, alleged and proved. So fraud is in essence the exception. By fraud we mean conscious wrongdoing, an intention to cheat or be dishonest. The decision of the department head, absent fraudulent conduct, must stand under the plain meaning of the contract.' Id., at 100, 72 S.Ct., at 155.
112
Within a month after Wunderlich was decided, its restrictive scope of judicial review was applied against the Government. In Leeds & Northrup Co. v. United States, 101 F.Supp. 999 (ED Pa.1951), the contractor, after a favorable disputes decision, was reimbursed for certain costs. Several years later, GAO reviewed that decision, disagreed with it, and set off the amount already paid from sums due the contractor on another contract. The contractor was therefore compelled to bring suit. The court first pointed out that GAO's power
113
'is subject to the rights of parties to a contract, including the Government, to provide for some designated person or persons, even if in the employ of one of the parties, to make a final determination of any question which may arise between them. This principle has been unequivocally declared by the courts, including the Supreme Court of the United States, in many cases.' Id., at 1002.
114
After quoting extensively from James Graham, the court stated the rule of judicial review as follows:
115
'The Bureau's determinations of questions of fact under (the disputes clause) are final and conclusive in the absence of fraud. United States v. Wunderlich. For a court to set aside such determinations under (the disputes clause,) fraud, meaning conscious wrongdoing or an intention to cheat or be dishonest, must be alleged and proved. United States v. Wunderlich.' Id., at 1003.
116
See also Sunroc Refrigeration Co. v. United States, 104 F.Supp. 131 (ED Pa.1952), which, following Leeds & Northrup, also applied the Wunderlich scope of review against the Government.
II
117
The Wunderlich opinion concluded, 'If the standard of fraud that we adhere to is too limited, that is a matter for Congress.' 342 U.S., at 100, 72 S.Ct., at 156. Almost immediately after the decision was issued, congressional legislation was sought to expand the scope of judicial review limited by Wunderlich to 'fraud' in a narrow sense. I have attached an Appendix detailing the legislative history and shall only summarize that history here.
118
Although several bills were introduced in the 82d Congress, congressional attention focused upon S. 2487. In its original form, S. 2487 provided:
119
'That no provision of any (Government) contract . . . relating to the finality or conclusiveness of any decision of the Government (official), in a dispute involving a question of fact arising under such contract, shall be construed to limit judicial review of any such decision only to cases in which fraud by such Government (official) is alleged.'
120
Wunderlich, of course, construed the standard disputes clause, which purported to make disputes decisions final, to limit judicial review to instances of fraudulent decisions. S. 2487, then, was simply an acceptance of the invitation extended in Wunderlich itself. S. 2487, however, did not specify what the scope of judicial review would be, but merely directed that judicial review could not be limited to fraud. Moreover, there was no indication in the language of S. 2487 that it was overruling Wunderlich only as to disputes decisions unfavorable to contractors. It obviously applied to the judicial review of 'any such decision.' (Emphasis added.)
121
The Comptroller General's initial report of GAO's views on S. 2487 made that abundantly clear. The report criticized Wunderlich as contrary to the interests of both the Government and contractors. Indeed, as a representative of the Government, the Comptroller General stressed Wunderlich's undesirable impact upon the Government's interest, for administrative 'officials can make just as arbitrary determinations in favor of contractors, at the expense of the taxpayers.'10 And, as the Assistant Comptroller General put it in his testimony at the Senate hearings, Wunderlich 'means that the decision of the administrative officials nearly always will be final because of the extreme difficulty of proving fraud.'11 Because the restricted scope of judicial review prescribed in Wunderlich applied to the Government no less than to contractors, GAO had good reason for its concern.12
122
GAO then offered a substitute bill that it believed would protect the Government's interests. The bill provided that a disputes clause decision
123
'shall not be treated as binding if the General Accounting Office or a court finds that the action of (the Government official) is fraudulent, arbitrary, capricious, grossly erroneous, or that it is not supported by substantial evidence.'
124
GAO's substitute bill thus differed from S. 2487 in two respects. First, rather than merely reversing Wunderlich, it explicitly defined the expanded scope of review by specifying five grounds upon which a disputes decision could be set aside. Clearly this expanded review was to operate for both contractors and the Government, just as the 'fraud' standard of review always had. It would be absurd to suppose that GAO defined the expanded scope of review only for contractors.
125
Second, GAO's substitute bill authorized GAO review in addition to judicial review. More precisely, it empowered GAO as well as the courts to set aside any disputes decision, whether favorable to the contractor or favorable to the Government. That was a significant expansion of S. 2487. GAO never previously was empowered to upset a disputes decision. Rather, GAO authority was always limited to refusing to sanction payment on a decision favorable to a contractor, thereby forcing him into court. At that point, of course, GAO's view of the merits of the disputes decision was irrelevant. Consequently, GAO's substitute bill, if enacted, would have increased GAO's power enormously, for it effectively authorized GAO to oust the courts of all jurisdiction to review disputes decisions that GAO considered unacceptable. Not surprisingly, this part of GAO's proposal became highly controversial.
126
Extended hearings on S. 2487 were held in the Senate. Although most of the witnesses and statements concerned themselves solely with urging expanded judicial review for contractors, without adverting to such review for the Government, there were notable exceptions. The Associated General Contractors took the position that judicial review must be available to both parties, as did several attorneys who specialized in the representation of contractors.13 Opponents of that view proposed bills that would have expressly limited the right of judicial review to contractors.14 The Comptroller General subsequently submitted another report objecting to these bills because their adoption would deprive the Government of the defense of administrative finality while permitting contractors 'to utilize such defense should the accounting officers of the Government attempt to question the validity of a payment.'15 It is significant that no one ever suggested during the Senate hearings that the expanded scope of review provided in S. 2487 and GAO's substitute bill was to be available only for contractors and not also for the Government.
127
An amended S. 2487 was reported out of Committee following the hearings.16 It provided that no disputes clause
128
'shall be pleaded as limiting judicial review of any (disputes) decision to cases in which fraud by (the Government) official . . . is alleged.'
129
Thus, amended S. 2487, like the bill in its original form, contained an explicit reversal of the Wunderlich standard of judicial review. Like the original bill, moreover, amended S. 2487 gave not the slightest indication that it was a command solely to the Government not to 'plead' the disputes clause as limiting the contractor's right to judicial review. Amended S. 2487 plainly directed that no disputes clause could be pleaded to limit judicial review of any disputes decisions. Neither party, under amended S. 2487, could rely upon a disputes clause to limit the other party's right to judicial review to instances of fraudulent disputes decisions.
130
Amended S. 2487, however, went beyond the original bill by incorporating GAO's substitute bill:
131
'(A)nd any such provision shall be void with respect to any such decision which the General Accounting Office or a court, having jurisdiction, finds fraudulent, grossly erroneous, so mistaken as necessarily to imply that faith, or not supported by reliable, probative, and substantial evidence.'
132
Thus, amended S. 2487 reversed Wunderlich, adopted GAO's definition of the expanded scope of review, and authorized GAO as well as the courts to apply that expanded review and set aside any disputes decisions.
133
The Committee Report on amended S. 2487 expressly noted 'that to the same extent (the Wunderlich) decision would operate to the disadvantage of an aggrieved contractor, it would also operate to the disadvantage of the Government in those cases, as sometimes happens, when the contracting officer makes a decision detrimental to the Government interest in the claim.'17 The reversal of Wunderlich, then, was clearly seen as an expansion of judicial review that would apply no matter which party, the Government or the contractor, challenged the disputes decision.
134
The report then explained that the addition of GOA's proposal meant that amended S. 2487 would
135
'have the effect of permitting review in the General Accounting Office or a court with respect to any decision of a contracting officer or a head of an agency which is found to be fraudulent, grossly erroneous, so mistaken as necessarily to imply bad faith, or not supported by reliable, probative, and substantial evidence. In other words, in those instances where a contracting officer has made a mistaken decision, either wittingly or unwittingly, it will not be necessary for the aggrieved party to, in effect, charge him with being a fraud or a cheat in order to affect (sic) collection of what is rightfully due.'18
136
Thus, the expanded scope of review, explicitly defined, would be available to both parties before either GAO or a court. In short, amended S. 2487 empowered a court to set aside a disputes decision at the behest of either the Government or the contractor, and, likewise, it empowered GAO to set aside a decision challenged by either party. Although the report asserted that amended S. 2487 was intended 'simply to recognize the jurisdiction which the General Accounting Office already has,'19 in fact amended S. 2487 would have given GAO the entirely new power to make a binding review of disputes decisions. It would have made GAO, as was later charged, into a second court of claims.
137
Although the Senate passed amended S. 2487, the 82d Congress expired without House action. When it was reintroduced in the Senate of the 83d Congress,20 Senator McCarran, the bill's sponsor, observed that the Wunderlich decision 'cuts two ways' and, as an example, cited a case I have already discussed, Leeds & Northrup Co. v. United States, 101 F.Supp. 999 (E.D.Pa.1951), in which '(t)he Comptroller General . . . attempted to recover on behalf of the Government, because the mistake was against the Government. The contractor interposed a defense based on . . . the Wunderlich case. . . . (T)he result was a failure of recovery on behalf of the Government.'21 Thus, Senator McCarran, like GAO, recognized that the narrow review permissible under Wunderlich bound both the Government and the contractor, and, like GAO, he considered that reversal of Wunderlich would also apply equally to both parties. A month later during floor debate, Senator McCarran again emphasized that while Wunderlich could 'operate greatly to the disadvantage of contractors,' it could also 'operate to the disadvantage of the Government.'22 The Senate then passed the bill, obviously with the understanding that the expanded scope of judicial review provided would be available to both the Government and contractors.
138
Amended S. 2487 was also introduced in the House of the 83d Congress.23 At the initial House hearing in July 1953, several witnesses asserted that enactment of the bill was essential to enable both the Government and contractors to obtain effective judicial review of disputes decisions.24 Opposition then developed to the provision empowering GAO to invalidate such decisions. The objection was, quite predictably, that '(t)he effect of the provision is to set up the General Accounting Office as a 'court of claims.' . . . (A)n agency of the legislative branch . . . should not be used to perform functions intended for the judicial branch.'25
139
Understanding the precise nature of this objection is important. No one suggested that amended S. 2487 did not grant the Government the same scope of judicial review that it granted contractors. Obviously, since amended S. 2487 authorized both GAO and the courts to exercise the same review, and since the objection was that GAO should not be able to set aside disputes decisions favorable to contractors, it would have been absurd to suggest that amended S. 2487 did not likewise authorize the courts to set aside such decisions. Nor did anyone question the ability of GAO to obtain judicial review for the Government through its power to refuse to approve payment on disputes decisions. All agreed that the purpose of the proposed legislation was to overturn the standard of review set by Wunderlich; the narrow scope of judicial review permissible under that case was to be done away with in favor of a broader, specifically defined review. The purpose was to expand judicial review, not to insert further administrative review into the disputes process. Thus, the opposition urged, not unreasonably, that the avowed purpose of overruling Wunderlich would not be served by expanding GAO's power to transform it into another court. Hence, deletion of GAO from amended S. 2487 would leave the power of binding review exclusively with the courts.
140
The Comptroller General bowed to this opposition. Stating (erroneously, I think) that GAO 'has not asked for authority which it did not have before the decision in the Wunderlich case,' he offered another substitute bill deleting the objectionable provision. He asserted that 'this substitute language will accomplish what we have been striving for all along and will place the General Accounting Office in precisely the same situation it was in before' Wunderlich.26 This bill, in the form submitted by GAO with one minor addition, was enacted as the Wunderlich Act.
141
Thus, the result of GAO's attempt to obtain the power of binding review over disputes decisions was failure. That power was left where it was before the Act, solely with the courts. GAO simply retained the power it had always had, the power to force the contractor into court where the Government would get judicial review of the disputes decision in his favor.
142
The hearings resumed in January 1954. In urging passage of GAO's revised substitute bill, GAO's General Counsel stated that, despite deletion of the provision for binding GAO review, the bill would not only protect contractors but would also protect the Government 'against decisions adverse to the interests of the United States. Certainly the rights of contract(ors) and the Government to review or appeal should be coextensive.'27 Similarly, the Associate General Counsel of the General Services Administration asserted that GAO's revised substitute bill was adequate to 'insure an opportunity to protect the Government against excessive generosity,' since GAO, under the bill, 'could seek a court review by a setoff or by applying to the Department of Justice for recovery in a case where they felt that the action of the contracting officer was grossly erroneous as against the Government.'28
143
Many witnesses who opposed GAO's original substitute bill, and thus opposed amended S. 2487, now supported GAO's revised substitute bill because it made clear that the power to set aside disputes decisions was vested exclusively in the courts and not shared by the courts with GAO. There was no suggestion from anyone that deletion of GAO from amended S. 2487 also had the effect of precluding the Government from obtaining judicial review under the standards available to contractors. Any such suggestion would have been absurd, for, as noted above, amended S. 2487 granted the courts and GAO exactly the same power. In fact, at one point in the hearings, a witness objected that GAO's revised substitute bill did 'not say specifically that an appeal can be taken by an aggrieved contractor.' The ensuing colloquy with Committee members made plain that the language of the bill 'necessarily include(d) both parties.'29 Moreover, as in the case of the Senate Committee, the House Committee was presented with a proposed bill that would have expressly limited the right of judicial review to contractors.30 As with the Senate, that suggestion was not adopted. Instead, the Committee reported out the bill, submitted by GAO, that is now the Wunderlich Act.
144
The Act expanded the scope of judicial review, and that was all it did. The Committee report made that plain. 'The committee foresees no possibility of the proposed legislation creating any new rights that a contractor may not have had prior to its enactment, with the exception of the standards of review therein prescribed.'31 Nor did the Act grant GAO new power, for, as the report said, 'there is no intention of setting up the General Accounting Office as a 'court of claims." On the other hand, the Act did not diminish GAO's existing authority to hold up payment and force the contractor to bring suit, as the report also stressed. 'The elimination of the specific mention of the General Accounting Office from the provisions of the bill as amended should not be construed as taking away any of the jurisdiction of that Office.'32 Thus GAO authority was left exactly where it was.
145
A point I have already made about deletion of the reference to GAO bears repeating. Amended S. 2487, by incorporating GAO's original substitute bill, granted GAO precisely the same binding power of review that it granted the courts. Contractors did not object to that provision because it authorized GAO to set aside disputes decisions unfavorable to contractors. They objected because amended S. 2487 authorized GAO to set aside disputes decisions favorable to contractors. That power, opponents of amended S. 2487 urged, must be vested solely in the courts. They prevailed, and the reference to GAO was deleted. Deletion of the authority granted to GAO obviously could have no effect whatever on the identical authority granted to the courts.33
146
The Senate originally passed amended S. 2487 upon the clear understanding that the expanded scope of judicial review it contained would be available to both the Government and contractors. When the House bill came to the Senate after deletion of the GAO provision, Senator McCarran, who had previously stressed that Wunderlich hurt both the Government and contractors, explained that while the House bill differed from the bill passed by the Senate, since it deleted the authority to GAO, it was 'designed to accomplish the same purpose.'34 That purpose, of course, was to overturn Wunderlich and to provide the courts with grounds of review in addition to fraud. The two bills could not, of course, 'accomplish the same purpose' if the House bill authorized expanded judicial review only for contractors, leaving the Government either with the Wunderlich standard or with no review at all. After Senator McCarran responded affirmatively to the statement that the difference was only 'a modification of the language in the Senate bill, and the two bills agree in their effect,'35 the Senate passed the House bill.
147
The text of the Act is its own witness to the congressional purpose. It provides that no clause in a Government contract purporting to make final an administrative determination of a dispute arising under the contract 'shall be pleaded in any suit . . . as limiting judicial review.' The proviso then defines the applicable scope of review.
148
It is impossible to read the plain words of this statute as directing that judicial review is available only for disputes decisions unfavorable to contractors. Indeed, the language is so clear that there should be no need to search through the legislative history for a contrary meaning.36 That history, in any event, demonstrates that the Act means exactly what it says.
149
Two significant considerations buttress my conclusion that the Court's construction of the Act is patently and grievously erroneous. First. The bill that became the Wunderlich Act was a Government bill. As the Committee report said, the Act, with a minor exception, 'is exactly the same legislation suggested by the Comptroller General.'37 GAO offered it as a substitute for the original S. 2487 because of Government concern that administrative 'officials can make just as arbitrary determinations in favor of contractors, at the expense of the taxpayers.'38 The bill explicitly stated that the expanded scope of review would add to 'fraudulent' the grounds that the disputes decision was 'arbitrary,' 'capricious,' 'grossly erroneous,' or 'not supported by substantial evidence.' After GAO modified the bill to delete the provision authorizing GAO review, in addition to court review, on those grounds, Government procurement agencies joined forces with GAO in strong support of passage. It is absurd to suppose that the Government pressed for a bill that granted contractors an expanded scope of judicial review, inserted in the bill by the Government, yet denied the Government judicial review on those same grounds.
150
Second. That absurdity is compounded by the consequences that result from interpreting the Act to deny the Government judicial review of disputes decisions. Before Wunderlich, the Government could challenge the finality of those decisions at least on the ground of fraud. If the Act affords only contractors judicial review and denies review to the Government, it follows that the Government has been deprived even of the right it had under Wunderlich to challenge 'fraudulent' disputes decisions. The principal Government procurement agencies, now including the Atomic Energy Commission, have created contract appeals boards as the final level of agency review of disputes decisions. Because the Act expressly provides for judicial review of such 'board' decisions, interpreting it to deny the Government review means that however 'fraudulent,' however 'arbitrary,' however 'capricious,' however 'grossly erroneous,' however clearly 'not supported by substantial evidence' the board's determination, the procurement agency and the Government itself are helpless to redress the wrong. In this case, that might mean the loss of more than one million dollars to American taxpayers. But at stake are countless millions. To say that Government wrote and secured passage of a bill to work that result is preposterous.39
III
151
So far as I can penetrate the Court's opinion, its primary premise is exposed by such sentences as these: 'The purpose of avoiding 'vexatious litigation' would not be served, however, by substituting the action of officials acting in derogation of the contract.' Ante, at 8.40 'Neither the Wunderlich Act nor the disputes clause empowers any other administrative agency to have a veto of AEC's 'final' decision or authority to review it.' Id. at 9 'In other words, we cannot infer that by some legerdemain the disputes clause submitted the dispute to further administrative challenge or approval . . ..' Ibid. 'Here, the AEC spoke for the United States and its decision, absent fraud or bad faith, should be honored.' Id. at 1041 'Since the AEC withheld payment solely because of the views of the Comptroller General and since he had been given no authority to function as another tier of administrative review, there was no valid reason for AEC not to settle with petitioner according to its earlier decision.' Ibid.42 'That action by the Comptroller General was a form of additional administrative oversight foreclosed by the disputes cause.' Id., at 12. '(The Act) should not be construed to require a citizen to perform the Herculean task of beheading the Hydra in order to obtain justice from his Government.' Id., at 12. 'We are reluctant to construe a statute enacted to free citizens from a form of administrative tyranny so as to subject them to additional bureaucratic oversight, where there is no evidence of fraud or overreaching.' Ibid.43 'This objective (preventing the inflating of bids) would be ill served if Government contractors—having won a favorable decision before the agencies with whom they contracted—had also to run the gantlet of the General Accounting Office and the Department of Justice.' Ibid.
152
The Court's be tenoire, then, is primarily the General Accounting Office, with a sideswipe at the Department of Justice. We are left to infer, I gather, that Congress shared the Court's distaste for the activities of those agencies in these cases and enacted the Wunderlich Act, not only to arm contractors with expanded grounds of judicial review of disputes decisions favorable to the Government, but also, by the device of denying judicial review to the Government, to abolish the authority of GAO to disapprove payments to contractors under disputes decisions, thus forcing contractors to use, and, by that device, to relieve the Department of Justice of any suits to defend on behalf of the United States. There are three dispositive answers to the Court's supposition.
153
First. The notion that Congress enacted the Wunderlich Act to abolish the authority of GAO and the Department of Justice is completely a figment of the Court's own imagination. As the judicial history shows, both agencies have exercised for decades powers identical to those exercised in this case, with no prior complaints that I can discover and with complete congressional approval. I need only quote from the Committee report that accompanied the bill that is now the Wunderlich Act.
154
'The proposed legislation, as amended, will not add to, narrow, restrict, or change in any way the present jurisdiction of the General Accounting Office either in the course of a settlement or upon audit, and the language used is not intended either to change the jurisdiction of the General Accounting Office or to grant any new jurisdiction, but simply to recognize the jurisdiction which the General Accounting Office already has.
155
'The elimination of the specific mention of the General Accounting Office from the provisions of the bill as amended should not be construed as taking away any of the jurisdiction of that Office. It is intended that the General Accounting Office, as was its practice, in reviewing a contract and change orders for the purpose of payment, shall apply the standards of review that are granted to the courts under this bill. At the same time there is no intention of setting up the General Accounting Office as a 'court of claims.' Nor should the elimination of the specific mention of the General Accounting Office in the bill be construed as limiting its review to the fraudulent intent standard prescribed by the Wunderlich decision.
156
'The specific intent of this legislation, insofar as it affects the General Accounting Office, is explicitly stated in the letter . . . from the Comptroller General himself
157
The report then quoted from the Comptroller General's letter in which he said that GAO 'has not asked for authority which it did not have before the decision in the Wunderlich case,' and in which he quoted from the Senate Committee's report on amended S. 2487:
158
'(I)t is not intended to narrow or restrict or change in any way the present jurisdiction of the General Accounting Office, either in the course of a settlement or upon audit; (it) is not intended either to change the jurisdiction of the General Accounting Office or to grant any new jurisdiction, but simply to recognize the jurisdiction which the General Accounting Office already has.'44
159
Second. The case law detailed earlier in this opinion, including Eaton, Brown & Simpson, Inc. v. United States, 62 Ct.Cl. 668 (1926), in which GAO disagreed with a disputes decision in favor of the Government and paid the contractor, establishes without question that GAO has no power to overturn a disputes decision. The limit of its authority is to refuse to sanction payment to the contractor and thus force him to bring suit. The judicial precedents in this Court, the Court of Claims, and the district courts are explicit that only a court can determine the merits of the dispute within the grounds of review specified by the Wunderlich Act. It is therefore completely irrelevant that 'the AEC withheld payment solely because of the views of the Comptroller General.' Ante, at 10. Indeed, the Court exposes the fallacy of its own position when it states that 'the disputes clause in the contract says that the decision of the AEC is 'final and conclusive,' unless a court determines that the award is vulnerable under §§ 1 and 2 of the Act.' Id., at 3—4 (emphasis added). See also id., at 9: 'By the disputes clause the decision of AEC is 'final and conclusive' unless 'a court of competent jurisdiction' decides otherwise for the enumerated reasons.' (Emphasis added.)
160
Third. Similarly, the Court states, in response to the Government's nonexistent contention that the Department of Justice has 'the power to overturn decisions of coordinate offices of the Executive Department,' id., at 12, 'That power (of the Department of Justice to defend suits against the United States) is pervasive but it does not appear how under the Wunderlich Act it gives the Department of Justice the right to appeal from a decision of the Atomic Energy Commission,' ibid. (emphasis added). See also ibid.: 'The power to appeal to the Court of Claims a decision of the federal agency under a disputes clause in a contract which the agency is authorized to make is not to be found in the Wunderlich Act and its underlying legislative history.' (Emphasis added.) No one suggests that the Department of Justice has a 'right to appeal.' It is involved in this case only because GAO's refusal to sanction payment forced petitioner to sue the United States, thus creating a lawsuit that the Department of Justice, as the Government's lawyer, had a duty to defend. It would be strange if the Department had a duty to confess judgment.
161
In support of its construction of the Act, the Court makes a statement, which I have already quoted, that invites a further comment:
162
'(J)udicial review was provided so that contractors would not inflate their bids to take into account the uncertainties of administrative action. This objective would be ill served if Government contractors—having won a favorable decision before the agencies with whom they contracted—had also to run the gantlet of the General Accounting Office and the Department of Justice.' Id., at 14—15.
163
Contractor witnesses at the committee hearings asserted that contractors would have to inflate their bids if they could attack a disputes decision only on the ground that it was fraudulent. As the Court says, the Act resolved this problem by expanding the scope of judicial review, so that contractors can attack a disputes decision on grounds in addition to fraud. That was the protection Congress gave contractors so that they would not have to inflate their bids.
164
After recognizing this, the Court says that because contractors got expanded judicial review to prevent the necessity of inflating bids, they also got the benefit of not having decisions in their favor subject to judicial review at all, since otherwise the objective of preventing inflated bids 'would be ill-served.' It would be difficult to imagine a more obvious non sequitur. The Court could as easily say that '(t)his objective would be ill served' if the contractors ever lost a disputes decision.
165
I might add that the Court does not say that the 'objective would be ill served' if favorable contractor decisions were subject to judicial review; it says that the 'objective would be ill served' if contractors 'had also to run the gantlet of the General Accounting Office and the Department of Justice.' Yet what the Court means, of course, is judicial review, for neither GAO nor the Department of Justice can take a favorable decision away from a contractor. Only a court can do that.
166
The Court is forced to go to extreme lengths to assert that the Government still may have relief for fraud. That is because the Court concedes, as it must, that its construction of the Act denying the Government judicial review forecloses review of disputes decisions that are 'fraudulent,' just as it forecloses judicial review of decisions that are 'arbitrary,' 'capricious,' 'grossly erroneous,' or 'not supported by substantial evidence.' The Court's attempted escape is to suggest that the Government may have relief for fraud under the statutes in which 'Congress has made elaborate provisions for dealing with fraudulent claims of contractors.' Id., at 16. Apart from the absence of any explanation why, if statutory remedies were always available, this Court found it necessary to fashion, for Government and contractor alike, a judicial exception to the finality of disputes decisions, the point is frivolous.45 Obviously the fraud statutes the Court mentions have no application whatever to the fraud we are discussing in this case.
167
The 'fraud' that is an issue in a disputes clause case is not contractor fraud. Not one case construing a disputes clause, from 1878 to the present day, ever mentions 'fraud' by the contractor. Nor has anyone ever suggested that the Government needs judicial review of disputes decisions to guard against fraud by the contractor. The 'fraud' that is involved is a fraudulent decision. The disputes clause and the Act itself provide judicial review to determine whether the 'decision . . . is fraudulent.' (Emphasis added.) When a disputes decision is challenged, the only questions concern that decision: wat it 'fraudulent'? was it 'capricious'? was it 'arbitrary'? was it 'grossly erroneous'? was it 'not supported by substantial evidence'?46 The Court is abgenus than the case now before us.' fraud is of course a wholly different solutely right that '(a) contractor's Id., at 15.
IV
168
The time-tested standards of statutory construction require interpretation of the statutory wording to effect the congressional purpose as revealed by legislative history. The Court totally discards those standards in construing the Wunderlich Act. Instead, the Court purports to discover a nonexistent hostility of Congress toward the 'intermeddling,' id., at 19, of GAO and the Department of Justice in the disputes process and for that reason a congressional purpose to prevent the subjection of 'citizens . . . to additional bureaucratic oversight,' id., at 14. The virtually century-long judicial history that forms the background of the Act, is explicit language, and its clear legislative history completely refute the proposition. I dissent and would affirm the judgment of the Court of Claims.
APPENDIX TO OPINION OF BRENNAN, J., DISSENTING
169
Within two months after the decision in United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), six bills to expand the scope of judicial review of agency disputes decisions were introduced. S. 2432 (Sen. Chavez); S. 2487 (Sen. McCarran); H.R. 6214 (Rep. Celler); H.R. 6301 (Rep. Springer); H.R. 6338 (Rep. Wilson); H.R. 6404 (Rep. Walter). Hearings were held in the Senate on S. 2487. Hearings on S. 2487 before a Subcommittee of the Senate Committee on the Judiciary, 82d Cong., 2d Sess. (1952). S. 2487 provided:
170
'That no provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the Government contracting officer, or of the head of the department or agency of the United States concerned or his representative, in a dispute involving a question of fact arising under such contract, shall be construed to limit judicial review of any such decision only to cases in which fraud by such Government contracting officer or such head of department or agency or his representative is alleged.' Id., at 1.
171
The Comptroller General's report to the Judiciary Committee, setting forth GAO'S views on S. 2487, stated that GAO felt that the result of the Wunderlich decision was 'undesirable both as to the contractor's interests and the interests of the Government.' Id., at 5—6. The Comptroller General stressed the latter interest.
172
'I am as deeply concerned, however, that the rule allows the contracting officials uncontrolled discretion over the Government's contractual affairs as well and places them in a position to make as arbitrary and reckless use of their power against the interests of the Government as against the interests of the contractor. In other words, deciding officials can make just as arbitrary determinations in favor of contractors, at the expense of the taxpayers.' Id., at 6.
173
The report concluded that GAO considered S. 2487
174
'inadequate and . . . objectionable because no provision is made therein for a review of decisions of administrative officers by the General Accounting Office. Without a provision to that effect the General Accounting Office in performing its statutory functions would be precluded from questioning the propriety or legality of payments made to a contractor as the result of an arbitrary or grossly erroneous decision on the part of the contracting officer.' Id., at 7.
175
The report recommended a substitute bill, which provided that
176
'Any stipulation in a Government contract to the effect that disputed questions shall be finally determined by an administrative official, representative or board shall not be treated as binding if the General Accounting Office or a court finds that the action of such officer, representative or board is fraudulent, arbitrary, capricious, grossly erroneous, or that it is not supported by substantial evidence.' Ibid.
177
Frank L. Yates, the Assistant Comptroller General, expanded on the report in his testimony before the Subcommittee. He asserted that prior to Wunderlich disputes clause decisions on questions of fact arising under Government contracts 'were not disturbed by the General Accounting Office or the courts unless the action of the administrative officer was fraudulent, arbitrary, capricious, grossly erroneous, or without foundation in fact.' Wunderlich, Mr. Yates said, 'means that the decision of the administrative officials nearly always will be final because of the extreme difficulty of proving fraud.' Id., at 8. And, he continued, 'the rule works both ways,' for '(a) deciding administrative official can make decisions adverse to the Government as well as to contractors, in which event an improper decision results in a burden, an improper burden, to the taxpayers of the country.' Id., at 9. Thus, he said, 'it appears that the executive contracting agencies without specific legislation authorizing them to do so, may, by agreement with the contractor, circumvent the operations of courts and the General Accounting Office to the serious detriment of both private business and the Government.' Id., at 9—10. Mr. Yates explained that GAO's substitute bill would restore 'to the courts and to the General Accounting Office . . . their normal and proper jurisdiction,' for:
178
'(I)t would permit (administrative officers) to make determinations on questions of fact which would have final effect if the decisions were not found by the General Accounting Office or the courts to be fraudulent, arbitrary, capricious, et cetera. Such a law not only would protect a contractor from fraudulent, arbitrary or capricious action by giving him, in addition to resort to the courts, a further administrative remedy before the General Accounting Office . . . but it would also provide a protection, through the General Accounting Office, against decisions adverse to the interests of the United States. Certainly the rights of contractors and the Government to review or appeal should be coextensive.' Id., at 11.
179
The managing director of the Associated General Contractors, H. E. Foreman, testified that the construction industry had for many years attempted without success to secure changes in the standard disputes clause. The industry's latest proposed disputes clause, which Mr. Foreman read at the hearing, provided '(t)hat nothing in this contract . . . shall void the right of either party to this contract carrying the dispute before a court of competent jurisdiction.' Id., at 24. The association's general counsel, John C. Hayes, stated that its position was 'that any decision made by a contracting officer or head of a department, agency, or bureau, should be subject to judicial review, in order to guarantee that such decision is reasonable, made with due regard to the rights of both the contracting parties, and supported by the evidence upon which such decision was based.' Id., at 29. In amplifying on this position, Mr. Hayes testified that only 'by permitting judicial review of the contracting officer's decision . . . can the rights of both the contracting parties be protected.' Although he then referred to the need for legislation that would authorize the courts to 'enter judgment against the United States on any claim in which the contractor shall seek a review' of a disputes decision, he immediately added that the legislation should provide 'that any provision in any contract with the United States abridging the right of the parties to court review shall be null and void.' Id., at 30. Finally, in commenting on GAO's proposed substitute bill, Mr. Hayes said that the association 'would welcome further administrative review,' but that contractors also 'should be permitted our judicial review, whether it be the government or whether it be the contractor, it doesn't make any difference. It has to cut both ways . . ..' Id., at 31. Replying to a specific question, Mr. Hayes denied that judicial review 'was a one-way street in favor of the contractor,' repeating that 'it cuts both ways.' He concluded that the association wished 'to take the position of being absolutely fair in urging legislation that will protect the rights of both Government and contractor.' Id., at 32.
180
There was much discussion of GAO's substitute bill and GAO's role in the review of agency disputes decisions. A former counsel to the Comptroller General, O. R. McGuire, testified that GAO's review should be limited to questions of law and that GAO should 'accept the facts, unless, of course, there is fraud, or just gross mistake.' Id., at 41. John W. Gaskins, who was on the brief for Wunderlich in the Supreme Court, proposed a revision of GAO's substitute bill specifically granting both GAO and the courts 'jurisdiction to set aside any (administrative) decision' that did not conport with the standards set out in GAO's bill. Id., at 68. Gardiner Johnson, an attorney who specialized in the representation of contractors, testified that, as he understood GAO's position, GAO 'simply wanted practically the same right that the contractors are requesting, to take an appeal from what they consider to be an unfair and unreasonable decision.' Id., at 84. As so understood, he said, 'our people have no basic quarrel with that. We are against all forms of unfair, unreasonable decisions either against the Government and the taxpayer or against the contractor.' Id., at 83.
181
Most of the witnesses and most of the submitted statements, however, were concerned only with protecting contractors. E.g., id., at 2—3, 62, 70—75, 85—87, 119—136. A few witnesses went even further. Robert E. Kline, Jr., an attorney representing the National Association of River and Harbors Contractors, proposed amendments to S. 2487 designed 'to assure full restoration to Government contractors of their inherent right to judicial review of unjust decisions by Government contracting officers and department heads.' Id., at 58. These amendments specifically limited the legislation to contractors' suits in which a court would 'enter judgment against the United States.' Id., at 59. Alan Johnstone, an attorney representing a contractor, initially suggested that the legislation 'should provide . . . simply that all administrative determinations in the performance of a contract with the United States shall be subject to review by the Comptroller General and by the courts, according to law, the provisions of any such contract to the contrary notwithstanding.' Id., at 61—62. Mr. Johnstone returned to testify later and, although expressing a preference for a 'bill mak(ing) justiciable any grievance which either of the parties to the contract would have,' submitted two proposed bills on behalf of himself, Mr. McGuire, and Mr. Gaskins, both of whom had already testified, and Harry D. Ruddiman, who subsequently testified at the House hearings. These proposals made judicial review available only to contractors, one providing that 'the United States shall not employ as a defense the finality of' agency decisions, the other that 'the United States shall not avail itself of the defense of the finality of such decision(s).' Id., at 107.
182
In contrast, the Associated General Contractors, adhering to the position its representatives had taken at the hearings, submitted a resolution adopted at its annual convention stating that any disputes decision 'should be subject to judicial review, in order to guarantee that such decision is reasonable, made with due regard to the rights of both the contracting parties, and supported by the evidence upon which such decision was based,' and urging legislation that would provide 'that any provision in any contract with the United States abridging the rights of the parties thereto to court review shall be null and void.' Id., at 114.
183
After the hearings concluded, the Comptroller General sent the Committee a copy of his report to the Chairman of the House Judiciary Committee dealing with the House bills. Id., at 116—119. This report reiterated many of the comments made in the Comptroller General's earlier report to the Senate Committee. The report also objected to the two proposed bills, submitted by Mr. Johnstone, limiting judicial review to contractors on the ground that 'the Government would be precluded from employing the finality of the administrative decision as a defense to a suit, (while) the contractors would be free to utilize such defense should the accounting officers of the Government attempt to question the validity of a payment made to a contractor.' The report, as did the prior one, recommended adoption of GAO's substitute bill. Id., at 119.
184
S. 2487 was reported out in amended form, incorporating the substance of GAO's proposal. As amended, S. 2487 provided
185
'That no provision of any contract entered into by the United States, relating to the finality or conclusiveness, in a dispute involving a question arising under such contract, of any decision of an administrative official, representative, or board, shall be pleaded as limiting judicial review of any such decision to cases in which fraud by such official, representative, or board is alleged; and any such provision shall be void with respect to any such decision which the General Accounting Office or a court, having jurisdiction, finds fraudulent, grossly erroneous, so mistaken as necessarily to imply bad faith, or not supported by reliable, probative, and substantial evidence. . . .' S.Rep. No. 1670, 82d Cong., 2d Sess., 1 (1952).
186
The Committee report stated that '(t)he purpose of the proposed legislation is to overcome the inequitable effect, under a recent Supreme Court decision, of language in Government contracts which makes the decision of the contracting officer or the head of the agency final with respect to questions of fact.' Ibid. The report pointed out 'that to the same extent (the Wunderlich) decision would operate to the disadvantage of an aggrieved contractor, it would also operate to the disadvantage of the Government in those cases, as sometimes happens, when the contracting officer makes a decision detrimental to the Government interest in the claim.' Id., at 2. The report further explained that:
187
'S. 2487 will have the effect of permitting review in the General Accounting Office or a court with respect to any decision of a contracting officer or a head of an agency which is found to be fraudulent, grossly erroneous, so mistaken as necessarily to imply bad faith, or not supported by reliable, probative, and substantial evidence. In other words, in those instances where a contracting officer has made a mistaken decision, either wittingly or unwittingly, it will not be necessary for the aggrieved party to, in effect, charge him with being a fraud or a cheat in order to affect (sic) collection of what is rightfully due.' Ibid.
188
Finally, the report stressed that amended S. 2487 was 'not intended to narrow or restrict or change in any way the present jurisdiction of the General Accounting Office . . . but simply to recognize the jurisdiction which the General Accounting Office already has.' Id., at 2—3.
189
Although the Senate, without debate, passed amended S. 2487, 98 Cong.Rec. 7783—7784; id., at 9059, the House did not act upon it during the 82d Congress. It was reintroduced in the Senate of the 83d Congress as S. 24. The Committee report was with formal changes, identical to the report on amended S. 2487. S.RepNo.32, 83d Cong., 1st Sess. (1953). Senator McCarran, the bill's sponsor, explained on the floor that the effect of the Wunderlich decision was to require 'that the aggrieved party allege and prove that some Government employee deliberately cheated, or intended to defraud him, in order to get a court review of the question.' 99 Cong.Rec. 4572. He also noted that
190
'Senators who have looked into this matter know that this decision of the Supreme Court cuts two ways. It can hurt the Government badly, as well as doing an injustice to contractors. In a recent case . . . (t)he Comptroller General . . . attempted to recover on behalf of the Government, because the mistake was against the Government. The contractor interposed a defense based on . . . the Wunderlich case . . . (T)he result was a failure of recovery on behalf of the Government.
191
'It was because of this case . . . that the Comptroller General . . . testified before the Judiciary Committee in behalf of this bill.' Id., at 4573.
192
Later the same day, however, Senator McCarran stated that the Air Force 'objected to the fact that the bill gave the Comptroller General the same right that was given to a contractor to question a decision of a contracting officer.' Id., at 4598. He also stated that 'the Comptroller General feels that in order to protect the interests of the Government, it is necessary that he shall have as much right to question the decision of a contracting officer . . . as may be given to the private party to the contract.' Id., at 4599. When S. 24 reached the floor a month later, Senator McCarran again emphasized that while the Wunderlich decision could 'operate greatly to the disadvantage of contractors,' it could also 'operate to the disadvantage of the Government.' Id., at 6170. The Senate then passed the bill. Id., at 6201.
193
Representative Reed introduced amended S. 2487 in the House as H.R. 1839, and hearings were held on it and two related bills, H.R. 3634 (Rep. Celler) and H.R.6946 (Rep. Willis). Hearings on H.R. 1839 et al. before Subcommittee No. 1 of the House Committee on the Judiciary, 83d Cong., 1st and 2d Sess., ser. 12 (1953, 1954).
194
At the initial hearing in July 1953, all witnesses supported the bill. Elwyn L. Simmons, a contractor, asserted that, because of 'incompetent or negligent or capricious agency representative(s),' the Wunderlich decision could 'work as readily against the Government's interests as against that of the contractor' and that 'only your immediate legislative action through enactment of H.R. 1839 or S. 24 can now protect both the Government and the contractor from this . . . unprecedented situation.' Id., at 4. Referring to the Senate debates on S. 24, Mr. Simmons noted
195
'that there was some objection by contractors doing business with the Air Force to the inclusion of the GAO under the provisions of this bill. I do not know what basis these Air Force contractors have for their objection, but we as general contractors are used to the GAO in our business and their auditing staff and forms no basis for our objection.' Id., at 5.
196
George P. Leonard, an officer of the Wunderlich Contracting Co., testified that because of Wunderlich 'neither the Government through the GAO, nor the contractors through the courts, have any right to appeal from contracting officers' decisions even though they may be grossly erroneous.' Id., at 7. He added that he saw 'no reason why anybody should object to either the General Accounting Office or the courts passing on these decisions of the contracting officers.' Id., at 8.
197
Harry D. Ruddiman, who argued for Wunderlich before the Supreme Court, submitted a prepared statement asserting that unless H.R. 1839 was enacted, 'not only the contractor but also the Government, will be unable to obtain effective judicial review of contracting officers' decisions.' In his view, H.R. 1839 'would restore to the courts an effective review of determinations made by contracting officers.' Id., at 12. Although, in light of the Senate reports on amended S. 2487 and S. 24, Mr. Ruddiman discounted '(f)ears . . . that the reference to the General Accounting Office in S. 24 would give it powers with respect to the review of payments under Government contracts beyond those which it already possesses,' he suggested in his statement that 'any doubt on the matter . . . can very easily be removed by striking out the words 'the General Accounting Office or" in H.R. 1839. Id., at 13. In his testimony, however, Mr. Ruddiman expressed reservations about removing GAO from the bill.
198
'Lastly, I would like to deal with an objection which has been raised to including the General Accounting Office in the provisions of this bill. I don't know just exactly what the basis of the objection is, but in my opinion, any fears along that line are groundless. As I see it, the General Accounting Office, as a matter of practice, in reviewing contracts and change orders for purposes of payment, is always going to apply the standards of review that are granted to the courts. That has been their practice before the Wunderlich decision. They figured if there was good reason to doubt the finality of the decision, the matter ought to be referred to the courts. I think that is all that would be done by the language of this bill.
199
'At one time I thought there would probably be no objection to striking out the reference to the General Accounting Office as mentioned in S. 24 or H.R. 1839. I felt that even if you had no reference, the General Accounting Office would still exercise that same jurisdiction. However, in view of the fact that the Senate has already passed a bill which has included a reference to the General Accounting Office, I think it would be dangerous now to eliminate the General Accounting Office from the provisions of this bill. It might be misconstrued as taking away this jurisdiction from the General Accounting Office.' Id., at 16.
200
Representative Graham, a committee member, replied that it was 'needless to refer to' GAO anyway. Ibid. Mr. Ruddiman, however, adhered to his view in a letter to the Subcommittee the following day.
201
'I feel that if the bill, as passed by the Senate, had contained no reference to the General Accounting Office, and the House of Representatives had passed such a bill without amendment, the General Accounting Office as a practical matter would, in reviewing payments under Government contracts and change orders, employ these same standards of review that are granted by the bill to the courts. Thus, if the General Accounting Office was confronted with an administrative decision which it thought would be set aside by the courts, it would refuse to make payment and throw the matter into court. However, since the Senate, in passing S. 24, has expressly included the General Accounting Office in the bill, some doubt as to the General Accounting Office jurisdiction might arise if the House of Representatives should then strike out all reference to the General Accounting Office. There would then be the possibility that this action would be construed as limiting review by the General Accounting Office to the ineffective ground of fraudulent intent prescribed by the Wunderlich decision. It is therefore my suggestion that the bill be passed without change in the language employed by the Senate.' Id., at 17.
202
Alan Johnstone, the final witness of the day, likewise urged that GAO be left in H.R. 1839. Id., at 18. He said that 'this bill would throw wide the portals of the courts of justice to anyone, including the Government, which has a grievance,' and, referring, as had Senator McCarran, to Leeds & Northrup Co. v. United States, 101 F.Supp. 999 (ED Pa.1951), in which a contractor successfully asserted a Wunderlich defense, he said 'that what is sauce for the goose is sauce for the gander.' Id., at 19.
203
Opposition to H.R. 1839 was also becoming apparent. Among the letters sent to the Committee, id., at 22—30, all calling for legislation to protect the rights of contractors, was one urging deletion of the reference to GAO because '(t)he effect of the provision is to set up the General Accounting Office as a 'court of claims.' . . . (A)n agency of the legislative branch . . . should not be used to perform functions intended for the judicial branch.' Id., at 26.
204
Shortly before the hearings resumed in January 1954, the Comptroller General wrote the Chairman of the Committee about H.R. 1839. He noted that 'there was considerable opposition to the bill from some quarters . . . on the basis . . . that the General Accounting Office should not be given express authority by statute to review and overrule the determinations of administrative officials.' Id., at 135. He responded that GAO 'has not asked for authority which it did not have before the decision in the Wunderlich case,' and he referred to the statement in the Senate reports that the bill would not affect GAO's jurisdiction. Nevertheless, he then presented a substitute bill, to which he said there would be little or no opposition by industry groups and administrative agencies. He stated that 'this substitute language will accomplish what we have been striving for all along and will place the General Accounting Office in precisely the same situation it was in before' Wunderlich. Id., at 136. GAO's proposed bill provided:
205
'That no provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, that any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence. . . .' Ibid.
206
With the addition of the words 'in any suit now filed or to be filed,' added to deal with retroactivity problems, see, e.g., id., at 48, 82, GAO's bill eventually was enacted as the Wunderlich Act.
207
In commenting upon GAO's bill, E. L. Fisher, GAO's general counsel, reiterated much of the testimony of the Assistant Comptroller General, Mr. Yates, at the Senate hearing. Mr. Fisher, as had Mr. Yates, stressed that the Wunderlich 'rule works both ways. A deciding administrative official can make decisions adverse to the Government as well as to contractors.' Id., at 38. Mr. Fisher, in language virtually identical to that earlier used by Mr. Yates, urged passage of either H.R. 1839 or GAO's proposed substitute because they
208
'would permit (administrative officers) to make determinations on questions of fact which would have final effect if the decisions were not found by the General Accounting Office or the courts to be fraudulent, arbitrary, capricious, and so forth. Such a law not only would protect a contractor from fraudulent, arbitrary or capricious action by giving him, in addition to resort to the courts, a further administrative remedy before the General Accounting Office, and would also provide a protection, through the General Accounting Office, against decisions adverse to the interests of the United States. Certainly the rights of contract(ors) and the Government to review or appeal should be coextensive.' Id., at 39.
209
The associate general counsel of the General Services Administration, J. H. Macomber, Jr., similarly emphasized the need to protect the Government's interests, stating 'that there should be come provision in the legislation, if not an explicit provision at least by appropriate wording with respect to the judicial review portion, that will insure an opportunity to protect the Government against excessive generosity, against decisions of the contracting officer adverse to the Government.' Id., at 59. Mr. Macomber suggested that
210
'there might be some doubt under the wording of H.R. 6946 . . . where specific reference is made to a finding by the court(,) as to whether the General Accounting Office could seek a court review by a setoff or by applying to the Department of Justice for recovery in a case where they felt that the action of the contracting officer was grossly erroneous as against the Government. I think that the language suggested by the Comptroller General's revision gets away from that difficulty.' Ibid.
211
Mr. Simmons, a contractor who had supported H.R. 1839 at the initial hearing, appeared again to support GAO's substitute bill on the ground that it 'was prepared to meet objections of certain industries against giving the General Accounting Office express statutory authority to review administrative decisions under the disputes clause, and is designed to give the General Accounting Office no more authority in this connection than it had before the Wunderlich decision.' Id., at 76.
212
Many other witnesses supported GAO's substitute bill on essentially the same grounds. E.g., id., at 52—56, 77—88, 91—95, 101—104, 123—124. Louis F. Dahling, associate counsel for the Automobile Manufacturers Association, asserted that H.R. 1839 would 'make the General Accounting Office another Court of Claims' and thus deprive contractors of their day in court.
213
'Now, it does not appear from the language in that bill that there would be any appeal from a decision of the General Accounting Office, and that office will in all probability make the first review of any disputes clause decision. If that agency should decide that the decision was not supported by substantial evidence, it would appear that the contractor would have no redress. Furthermore, the General Accounting Office is a part of the legislative department of the Government. . . . If this agency is made another Court of Claims, in a sense it becomes a judge and jury and a prosecutor.' Id., at 97.
214
Mr. Dahling therefore supported GAO's bill because it did 'not grant judicial power to the General Accounting Office.' Id., at 98. Charles Maechling, Jr., a representative of the Radio-Electronics-Television Manufacturers Association, echoed this view.
215
'Under S. 24, however, the scope and powers of the General Accounting Office are vastly enlarged, and this agency of the Government, which has heretofore exercised principally investigatory and audit functions, becomes clothed with powers of a judicial nature. S. 24 appears to set up the General Accounting Office as a third administrative tier of review in Government contract disputes.' Id., at 105.
216
Similarly, the American Merchant Marine Institute submitted a statement objecting to H.R. 1839.
217
'in so far as it establishes the General Accounting Office as a sort of intermediate or 'floating' court and vests it with express statutory authority to set aside (an administrative) decision merely because its administrative officers in their opinion consider the decision not to be supported by substantial evidence. On the other hand, we fully agree that a decision of a contracting officer or, upon appeal, of the head of the contracting agency, should be subject to judicial review and reversal by the courts . . .. This judicial function, however, should not be shared with or otherwise vested in the General Accounting Office . . . The literal effect of S. 24 appears to be that once the General Accounting Office may have found the decision to be not supported by substantial evidence, it may not thereafter be pleaded in court either by the contracting party or the Government as limiting the scope of judicial review to that provided for by the disputes clause.' Id., at 122.
218
Opposition to H.R. 1839, then, was premised on the fear that its reference to GAO might deprive contractors of any recourse to the courts. That judicial review was the contractors' sole concern is also clear from the position taken by the Associated General Contractors, id., at 61—75, which supported H.R. 1839 on the ground that it would restore to contractors 'the fundamental right of judicial review of disputes arising under Government contracts.' Id., at 62.
219
That deletion of the reference to GAO was not understood as denying judicial review to the Government becomes evident from an examination of Representative Willis' testimony about his bill, H.R. 6946, which was identical to H.R. 1839 except that it omitted the words 'the General Accounting Office or.' Id., at 31. He testified that the 'Wunderlich decision could react and has reacted unfavorably to the Government where the Government felt it was the aggrieved party.' Id., at 32. The following colloquy then occurred:
220
'Mr. Hyde. The only question that occurred to me was that you mentioned there might be a time when the Government was the aggrieved party. With the present procedure, the Government is not likely to be the aggrieved party?
221
'Mr. Willis. It could be. It could very well be, because here you are dealing with fraud, and the court says that in order to have relief one must be guilty of fraud. Now, a contracting officer who hands down a decision against the Government can very adversely affect the Government itself, and the Government some of these days might find a decision very much against itself. The decision works both ways, in that there is no appeal either way from the holding of the contracting officer unless a showing of fraud is made, and the Government itself might be caught some of these days under this Wunderlich decision. I know of one case when the court so ruled.
222
'Mr. Hyde. If the contracting officer makes a finding, under what circumstances would the Government be the one to take an appeal or want to take an appeal? Who would be the one in the Government to say, 'We are going to take an appeal'?
223
'Mr. Willis. I imagine the General Accounting Office would be interested, and the Department of Justice and the Department of Defense. Suppose a dispute arises . . . (a)nd then on matters of fact the contracting officer holds one way. Then neither side has recourse unless there is a showing that the contracting officer was dishonest, was guilty of fraud, or intended to cheat someone.' Id., at 33—34.
224
This testimony is significant also in light of the later testimony of Franklin M. Schultz, a former law professor who had written about the problems created by the Wunderlich decision. Mr. Schultz expressed concern that GAO's substitute bill did 'not say specifically that an appeal can be taken by an aggrieved contractor.' A committee member then asked whether the language of GAO's bill did 'not necessarily include both parties.' Id., at 110. The following colloquy ensued:
225
'Mr. Schultz. Yes, and that is exactly my point. . . . (S)everal years from now, if the Comptroller General decides . . . that a contracting officer's decision is not supported by substantial evidence, he could refuse payment, and in a court action he could say that this bill means that it is a two-way street, not only may the contractor upset the contracting officer for not having substantial evidence behind the decision, but in the case where the contracting officer makes a decision favorable to the contractor the GAO has similar upsetting power. . . .
226
'Mr. Willis. This judicial review referred to in that passage there referring to a review by GAO, when GAO has been left out deliberately as compared to S. 24?
227
'Mr. Schultz. Well, that is persuasive, sir, but you do have the testimony of Mr. Fisher, sponsoring (GAO's) bill . . . saying that the rights of contractors and the Government to appeal should be coextensive. . . .' Id., at 110—111.
228
Mr. Schultz went on to say, what was implicit in the above colloquy, that his objection was not to judicial review for the Government, which he recognized would be available, but to judicial review for either the Government or contractors on the basis of the 'substantial evidence' test. He indicated that his 'own preference would be for the language of (GAO's) bill without the phrase 'substantial evidence." id., at 113, and in a subsequent letter to the Subcommittee he again suggested that neither the Government nor contractors should be permitted to rely upon that standard to upset an administrative decision, id., at 118—119.
229
The Subcommittee was presented with, but took no action upon, a bill proposed by the American Bar Association that would have expressly limited the right of judicial review to contractors. Id., at 89. Instead, the Committee reported out the bill that is now the Wunderlich Act. H.R.Rep. No. 1380, 83d Cong., 2d Sess. (1954). The report stated that:
230
'The purpose of the proposed legislation . . . is to covercome the effect of the Supreme Court decision . . . under which the decisions of Government officers rendered pursuant to the standard disputes clauses in Government contracts are held to be final absent fraud on the part of such Government officers.
231
'. . . The proposed legislation also prescribes fair and uniform standards for the judicial review of such administrative decisions in the light of the reasonable requirements of the various Government departments and agencies, of the General Accounting Office and of Government contractors.' Id., at 1—2.
232
The report also discussed the effect of the legislation on GAO, in much the same terms as had the prior Senate reports.
233
'The proposed legislation, as amended, will not add to, narrow, restrict, or change in any way the present jurisdiction of the General Accounting Office either in the course of a settlement or upon audit, and the language used is not intended either to change the jurisdiction of the General Accounting Office or to grant any new jurisdiction, but simply to recognize the jurisdiction which the General Accounting Office already has.
234
'The elimination of the specific mention of the General Accounting Office from the provisions of the bill as amended should not be construed as taking away any of the jurisdiction of that Office. It is intended that the General Accounting Office, as was its practice, in reviewing a contract and change orders for the purpose of payment, shall apply the standards of review that are granted to the courts under this bill. At the same time there is no intention of setting up the General Accounting Office as a 'court of claims.' Nor should the elimination of the specific mention of the General Accounting Office in the bill be construed as limiting its review to the fraudulent intent standard prescribed by the Wunderlich decision.' Id., at 6—7.
235
Representative Graham stated on the floor of the House that the Comptroller General had approved the bill, and the House passed it without debate. 100 Cong.Rec. 5510. When the bill came to the Senate, Senator McCarran explained that
236
'The purpose of the proposed legislation is to overcome the inequitable effect, under the decision of the Supreme Court in the Wunderlich case, of language in Government contracts which makes the decision of the contracting officer or the head of the agency final, with respect to questions of fact. To put it another way, the objective of this bill is to preserve the right of review by the courts in cases involving action by a contracting officer which is arbitrary, capricious, fraudulent, or so grossly erroneous as necessarily to imply bad faith.
237
'The language of the House bill, while quite different from the language approved in the Senate, is designed to accomplish the same purpose. It is my understanding the Department of Justice takes the view that the House language will accomplish the same purpose as the Senate language. It is my further understanding that the Comptroller General of the United States has expressed complete satisfaction with the House language, and has declared that in his opinion it will accomplish the purposes sought to be served by the Senate language.' Id., at 5717.
238
After Senator McCarran further assured the Senate that GAO was 'satisfied with the language in the House bill' and that 'otherwise (he) would not care to go along,' ibid., a final colloquy occurred:
239
'Mr. Thye. As I understand, the bill was passed by the Senate, and a similar bill was passed by the House. The only question involved is a modification of the language in the Senate bill, and the two bills agree in their effect, so to speak?
240
'Mr. McCarran. That is correct.
241
'Mr. Type. There is nothing else of a legislative nature involved. Is that correct?
242
'Mr. McCarran. That is correct.' Id., at 5718.
243
The Senate then passed the bill. Ibid.
1
The Wunderlich Act, 68 Stat. 81, provides:
'No provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.' 41 U.S.C. § 321.
'No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board.' 41 U.S.C. § 322.
2
The contract provided:
'6. Disputes
'(a) Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the Commission. The decision of the Commission or its duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer's decision.
'(b) This 'Disputes' Clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above; Provided, that nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.'
3
The Atomic Energy Commission Board of Contract Appeals was not established until 1964. See 10 CFR § 3.1 et seq. (Jan. 1, 1971).
4
Volume 55 Stat. 876, 31 U.S.C. § 82d provides:
'The liability of certifying officers or employees shall be enforced in the same manner and to the same extent as now provided by law with respect to enforcement of the liability of disbursing and other accountable officers; and they shall have the right to apply for and obtain a decision by the Comptroller General on any question of law involved in a payment on any vouchers presented to them for certification.'
5
The American Bar Association, as amicus curiae, notes 'that the contractor's consent to permit a specific representative of the Government to decide disputes—the Commission—should not be read as permitting any different representative of the Government to 'veto' decisions rendered by the Commission which are in favor of the contractor.'
6
While the quoted language from paragraph 6(a) of the contract concerns factual disputes and while questions of law are dealt with in paragraph 6(b) (see n. 2, supra), there is no reason to believe that the two clauses should not be considered in pari materia or that a different avenue for review should apply to legal questions than to those of fact. Indeed, paragraph 6(b) speaks of 'consideration of law questions in connection with decisions provided for in paragraph (a).' (Emphasis added.) The difference between the two clauses relates only to the standard of reviewability and does not establish separate avenues of review.
7
See n. 2, supra.
8
For certain types of fraud against the Government, Congress has vested the General Accounting Office with investigative powers. In the case of kickbacks by Government contractors, for example, 'the General Accounting Office shall have the power to inspect the plants and to audit the books and records of any prime contractor or subcontractor engaged in the performance of a negotiated contract,' 74 Stat. 741, 41 U.S.C. § 53, and criminal penalties are provided if a violation is established. 41 U.S.C. § 54.
If the Comptroller General has the broad, roving, investigatory powers that are asserted, specific statutory grants of authority such as this provision relating to kickbacks would be superfluous.
9
It has been said that the Act's legislative history 'has something for everyone.' Kipps, The Right of the Government to Have Judicial Review of a Board of Contract Appeals Decision Made Under the Disputes Clause, 2 Pub.Contract L.J. 286, 295 (1969). Suffice it to say we find the Act's history at best ambiguous. In construing laws we have been extremely wary of testimony before committee hearings and of debates on the floor of Congress save for precise analyses of statutory phrases by the sponsors of the proposed laws. See generally NLRB v. Fruit Packers, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129 (1964); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 288, 76 S.Ct. 349, 360, 100 L.Ed. 309 (1956); Schwegmann Bros. v. Calvert Corp., 341 U.S. 384, 394—395, 71 S.Ct. 745, 750, 95 L.Ed. 1035 (1951); United States v. St. Paul, M. & M.R. Co., 247 U.S. 310, 318, 38 S.Ct. 525, 528, 62 L.Ed. 1130 (1918); Omaha & Council Bluffs Street R. Co. v. ICC, 230 U.S. 324, 333, 33 S.Ct. 890, 57 L.Ed. 1501 (1913); United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 318, 17 S.Ct. 540, 550, 41 L.Ed. 1007 (1897).
The reason is the caveat of Mr. Justice Holmes, 'We do not inquire what the legislature meant; we ask only what the statute means.' The Theory of Legal Interpretation, 12 Harv.L.Rev. 417, 419.
10
The House Report stated, 'A continuation of this situation (created by the Wunderlich decision) will render the performance of Government work less attractive to the responsible industries upon whom the Government must rely for the performance of such work, and will adversely affect the free and competitive nature of such work. It will discourage the more responsible element of every industry from engaging in Government work and will attract more speculative elements whose bids will contain contingent allowances intended to protect them from unconscionable decisions of Government officials rendered during the performance of their contracts.' H.R.Rep.No. 1380, 83d Cong., 2d Sess., 4.
In a similar vein, the Senate Report on the Senate version of the Wunderlich Act stated, 'The impact of this decision on the many business firms who, in a condition of expanding production with respect to the defense of the United States, must deal with many of the Government departments in Government construction and defense materials, was one that could only cause great expense to the United States in that the contractors would be forced to puff up their bids so as to be sure of sufficient funds to provide for unforeseen contingencies.' S.Rep.No. 32, 83d Cong., 1st Sess., 2.
11
Where the Department of Justice has successfully asserted this defense of fraud, the Court of Claims has disallowed contractors' claims. See, e.g., Kamen Soap Products Co. v. United States, 124 F.Supp. 608, 129 Ct.Cl. 619, (1954) (fraudulent preparation of evidence); Morris Demolition Corp. v. United States, 99 Ct.Cl. 336 (1943); Jerman v. United States, 96 Ct.Cl. 540 (1942) (fraudulent invoices); Mervin Contracting Corp. v. United States, 94 Ct.Cl. 81 (1941) (false payroll vouchers); Atlantic Contracting Co. v. United States, 57 Ct.Cl. 185 (1922) (embezzlement).
12
See n. 3, supra. And see 29 Fed.Reg. 12829 et seq.
13
For other aspects of exhaustion of administrative review of decisions from boards of contract appeals, see United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256; United States v. Grace & Sons, 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662, United States v. Utah Construction Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642.
*
Judge Collins, dissenting in the Court of Claims, says it well:
'When a dispute arises between a contractor and the Government, the 'dispute' clause sets out clearly the procedure to be followed. First, the parties may voluntarily settle the dispute. If they do, that is the end of the matter. If no settlement is reached, the disputed matters are decided by the agency's contracting officer. If the contractor does not appeal to the agency from the contracting officer's decision within the prescribed time, that, again, is the end of the matter. If, however, the contractor does appeal to the agency, then, according to the court, a decision rendered by the agency or its board favorable to the contractor is not the end of the matter; the agency is free at any time to disavow or repudiate its own decision, thereby forcing the contractor to sue. The anomaly created by the court's decision is too obvious to need elaboration. While an agency will still be bound by the decisions of its contracting officers, it will not be bound by decisions made at the highest level.' 433 F.2d 1373, 1397—1398, 193 Ct.Cl. 335, 379—380. (Footnote omitted.)
1
The concurring opinion seems to read the judicial-review provision out of the disputes clause: 'And if the contractor accepts a decision of the contracting officer, and does not appeal to the Commission, that decision, by the specific provisions of the disputes clause, is final and conclusive as to question of fact. Under the Government's position, however, the decision at the agency head would enjoy no such preferred and conclusive status.' Ante, at 21 (emphasis added). The Commission's disputes decision does not have 'conclusive status' under the disputes clause, of course, because of a 'specific provision' of the clause. That provision directs that the Commission's decision is 'final and conclusive unless' (emphasis added) a court determines that it was 'fraudulent,' etc. It does not direct that the Commission's decision is final and conclusive unless the contractor appeals to the courts. That is the language of the earlier provision, referred to by the concurring opinion, under which the contracting officer's decision is final and conclusive unless the contractor appeals to the Commission. If 'the specific provisions of the disputes clause' apply after the contracting officer's decision, surely they also apply after the Commission's decision.
2
The Court's opening sentence appears to say that we are dealing with a pre-Wunderlich Act disputes clause that 'provides that the decision of AEC shall be 'final and conclusive." Ante, at 2—3. The Court later recognizes the obvious: 'By the Disputes Clause the decision of AEC is 'final and conclusive' unless 'a court of competent jurisdiction' decides otherwise for the enumerated reasons.' Id., at 9.
3
It was suggested at oral argument that the procurement agency might pay the contractor in accordance with a disputes decision in his favor and that subsequently, prompted by GAO's post-audit, the Department of Justice might sue the contractor to recoup the payment on the ground that the agency's decision was improper under the disputes clause and the Wunderlich Act. The Court's holding today, of course, prohibits the Government from obtaining judicial review of disputes decisions by that method. Indeed, that would be an a fortiori case, for the agency not only would have decided in favor of the contractor, but also would have paid him in accordance with its decision. If a disputes decision is final when the agency refuses to implement it by payment, certainly it is final when the agency pays.
4
The Court's constant repetition of the phrase 'fraud or bad faith' might suggest to the casual reader that the Court is holding that the Government may challenge the finality of disputes decisions on those grounds. That, however, is not true, for fraud and bad faith are two of the grounds specified in the disputes clause and the Wunderlich Act: a disputes decision may be set aside if it is 'fraudulent' or if it is 'so grossly erroneous as necessarily to imply bad faith.' In contrast to the disputes clause and the Act, the Court is not referring to disputes decisions resulting from the fraud or bad faith of the disputes decisionmaker. Rather the Court is referring to fraud or bad faith on the part of the contractor, as the Court's statement of facts makes clear: 'The defenses tendered raised no issue of any fraud or bad faith of the contractor against the United States.' Ante, at 7. 'The Commissioner did not base his opinion on any issue of fraud or bad faith of the contractor against the United States, nor did the Court of Claims.' Ibid. See also id., at 9—10 n. 8 and Part IV of the Court's opinion. The concurring opinion also refers to 'fraud' and 'bad faith.' Ante, at 19. Again, however, the reference is not to fraud and bad faith as used in the disputes clause and the Act.
5
The Court's citation of Mason & Hanger, ante, at 10 is, to say the least, perplexing.
6
Goltra v. Weeks, 271 U.S. 536, 46 S.Ct. 613, 70 L.Ed. 1074 (1926), which involved a contractor's challenge to the finality of a disputes decision by a Government official, also demonstrates that the rule was the same no matter which party challenged the decision. The Court there held that the official's decision was binding 'unless there is an absence of good faith in the exercise of the judgment.' Id., at 548, 46 S.Ct., at 617. Significantly, the Court cited as authority, not only Kihlberg, Sweeney, March, and Gleason, all cases in which the contractor challenged and the Government (in March, the party whose official decided the dispute) relied upon the disputes decision, but also Mason & Hanger, in which the Government challenged the finality of a disputes decision upon which the contractor relied.
7
The Court cites McShain Co. for the proposition that '(t)he cases deny review' by GAO 'absent fraud or overreaching.' Ante, at 10. Since McShain Co. is simply another example of the application of the Kihlberg rule against the Government, I am at a loss to understand the Court's statement. As the excerpt I have quoted in the text demonstrates, McShain Co. did not 'deny review' by GAO; rather, like the other cases, it held that GAO's view of the merits of the disputes decision was irrelevant in court and that the Government could upset the finality of that decision only by proving in court that it was fraudulent.
8
The Court states, ante, at 11, that the District Court in James Graham, by referring to 'fraud or overreaching,' referred to instances 'where the Comptroller General's power was founded upon specific statutory provisions such as 41 U.S.C. § 53,' a statute relating to 'kickbacks by Government contractors,' id., at 9 n. 8. In fact, however, the District Court not only did not refer to that statute, it did not refer to any statute, nor even intimate that a statute might be relevant. What the District Court did was use the phrase 'fraud or overreaching' as shorthand for the Kihlberg rule, the judicially created fraud exception to the finality of disputes decisions. That usage is readily apparent from a glance at the District Court's citations: Mason & Hanger and Moorman from this Court, and Penn Bridge, Carroll, and McShain Co. from the Court of Claims.
The Court also says, id., at 11, that in James Graham 'summary judgment was entered by the court, which said, 'Since the Navy Department has determined that plaintiff contractor is entitled to the payment sought, this Court must adjudge accordingly." The Court omits to quote the immediately preceding sentence in the James Graham opinion: 'And the Navy Department's decision that these particular dues and contributions are reimbursable is not arbitrary or unconscionable.' 91 F.Supp., at 717 (emphasis added). Thus, again, the District Court was referring to the disputes decision, and not, as the Court today would have it, to 'fraud or overreaching' by the contractor.
9
The concurring opinion asserts that '(t)he contractor here, according to the longterm understanding of the disputes clause, consented to the disposition of disputes by the contracting officer and by the AEC on appeal, and to the finality of decision at those points.' Ante, at 21. If the concurring opinion is speaking of pre-Wunderlich Act disputes clauses, the authorities I have cited establish the utter inaccuracy of the assertion. Indeed, the concurring opinion also asserts that 'for years, with the specified exceptions, (the disputes) clause itself has been regarded as conferring no right of judicial review on the part of the Government.' Id., at 20 (emphasis added). The italicized words can only refer to the judicially created exception for fraudulent decisions. The concurring opinion gives no indication that, in either of the assertions, it is referring to the current disputes clause.
10
Hearings on S. 2487 before a Subcommittee of the Senate Committee on the Judiciary 82d Cong., 2d Sess., 6.
11
Id., at 8.
12
It is misleading to assert, as does the Court, that Wunderlich 'closed the courthouse doors to certain citizens.' Ante, at 14 (emphasis added). Similarly, the concurring opinion asserts that Wunderlich 'restricted contractor-instigated judicial review' and that the Government 'prevailed' in Wunderlich with 'a narrow judicial review standard for the contractor.' Ante, at 22 (emphasis added). The concurring opinion's assertions are the more surprising in view of its apparent recognition that the Government was subject to the same standard of judicial review as contractors. See n. 9, supra.
13
Hearings on S. 2487, supra, n. 10, at 29—32, 68, 83—84, 107, 114.
14
Id., at 59, 107. Moreover, H.R. 6301, also introduced in the 82d Congress, provided for judicial review only in those instances 'in which the contractor shall seek to set aside a decision on a disputed question between the United States and such contractor, made by an officer, board, or other representative of the United States . . ..' Neither House supported this bill.
15
Hearings on S. 2487, supra, n. 10, at 119.
16
See S.Rep. No. 1670, 82d Cong., 2d Sess.
17
Id., at 2.
18
Ibid.
19
Id., at 3.
20
Amended S. 2487 was reintroduced as S. 24, but for ease of reference I will continue to refer to it as amended S. 2487.
21
99 Cong.Rec. 4573.
22
99 Cong.Rec. 6170.
23
Amended S. 2487 was introduced as H.R. 1839, but for ease of reference I will continue to refer to it as amended S. 2487.
24
Hearings on H.R. 1839 et al. before Subcommittee No. 1 of the House Committee on the Judiciary, 83d Cong., 1st and 2d Sess., ser. 12, at 3—20.
25
Id., at 26.
26
Id., at 136.
27
Id., at 39.
28
Id., at 59.
29
Id., at 110.
30
Id., at 89.
31
H.R.Rep. No. 1380, 83d Cong., 2d Sess., 6.
32
Id., at 7.
33
The Court's only foray into the legislative history is its assertion that 'Congress contemplated giving the General Accounting Office such powers and, indeed, the Senate twice passed in the form of the McCarran bill—a provision which would have allowed the Comptroller to review disputes decisions to determine if they' satisfied the standards of the Act. Ante, at 11. The Court therefore concludes that the Act cannot be construed 'to give the Comptroller General powers which Congress has plainly denied.' Id., at 12. Similarly, the concurring opinion asserts that '(t)he flat rejection by Congress of the proposed provision for GAO review is significant. There would be no point in that rejection if GAO has the power to defeat the finality of the disputes decision anyway.' Ante, at 22—23. Unfortunately, the Court and the concurring opinion overlook that the proposed provision was not simply 'for GAO review.' It was for binding GAO review. Because it was not enacted, GAO does not 'have a veto of AEC's 'final' decision,' ante, at 9 (opinion of the Court); GAO does not have 'power to defeat the finality of the disputes decision,' ante, at 23 (concurring opinion). Both the Act and the disputes clause specifically provide that only a court can set aside a disputes decision. And that is precisely the point the legislative history makes clear.
34
100 Cong.Rec. 5717.
35
100 Cong.Rec. 5718.
36
The need arises in this case only because petitioner argues that, despite the clear language of the Act, the legislative history reveals that Congress meant to reserve the right of judicial review solely to contractors. It is thus somewhat odd that the Court considers it worthwhile to assert 'that the Act's legislative history 'has something for everyone" and that the Court 'find(s) the Act's history at best ambiguous.' Ante, at 13 n. 9. The concurring opinion likewise professes to find the legislative history 'decidedly ambiguous at best,' ante, at 22, yet nevertheless goes on to assert that Congress 'intended to relieve contractors' and 'opened the door to the contractor,' ibid. (emphasis added). These comments are all the more inexplicable because neither the Court nor the concurring opinion attempts even the most cursory analysis of the text of the Act itself.
37
H.R.Rep.No.1380, supra, no. 31, at 6.
38
See n. 10, supra.
39
The concurring opinion asserts that '(i)n the exercise of its legislative judgment, Congress has determined that in this area the Government,' unlike contractors, does not need the Act's protection 'against fraud, capriciousness, arbitrariness, bad faith, and absence of evidence.' Ante, at 23. As the concurring opinion never refers to the language of the Act, and finds the legislative history 'not at all that clear,' 'decidedly ambiguous at best,' ibid., at 22 and 'inconclusive,' ibid., at 23, it is difficult to understand the basis for this statement.
40
This statement, albeit obscurely, may mean that the purpose of avoiding litigation would not be served by subjecting a disputes decision in favor of the contractor to judicial review, for that would be litigation. Yet just as obviously the purpose of avoiding litigation would not be served by subjecting a disputes decision against the contractor to judicial review.
41
See n. 4, supra, n. 43, infra.
42
This is a difficult statement to understand. Assume that the Commission had 'no valid reason' not to pay petitioner. Was the Commission's nonpayment in violation of the Wunderlich Act? The Court does not say. If nonpayment violated neither the contract nor the Act, it seems rather strange that this Court should order the Commission to pay. The Court's statement appears to be connected with its later statement that '(t)he AEC has not, to this day, repudiated the merits of its decisions in favor of petitioner.' Ante, at 1421. Again, however, the Court does not say how or even whether the Commission's 'nonrepudication' violated the contract or the Act.
In the same vein, the concurring opinion asserts that there is 'a possible breach of contract' in this case: 'When the United States then disavows the Commission's decision—a decision which, as the Court notes, to this day has never been withdrawn or repudiated by the AEC—it seems to me that the Government imposes something to which the contractor has not agreed.' Ante, at 21, 22. The concurring opinion, however, does not say how the Government's 'disavowal' violated the contract.
43
If this statement implies that a contractor is 'subject . . . to additional bureaucratic oversight, where there is . . . evidence of fraud or overreaching' (emphasis added), one might well ask why that is so. Fraud is only one of the five grounds of judicial review specified in the Act and the disputes clause. Obviously either all or none are available. See n. 4, supra.
44
H.R.Rep.No.1380, supra, n. 31, at 6—7 (emphasis added). This detailed refutation that GAO authority was being curtailed was necessary to allay the fears expressed by the attorney who argued Wunderlich for the contractor. He testified during the House hearings that deletion of GAO from amended S. 2487, passed by the Senate, might be misconstrued as depriving GAO of its prior authority to refuse to sanction payment and thereby 'throw the matter into court.' See Appendix, infra, at pp. 78—80. Today's decision fulfills his prophecy.
45
The Court asserts that '(i)f the Comptroller General has the broad, roving, investigatory powers that are asserted, specific statutory grants of authority such as this provision (41 U.S.C. § 53) relating to kickbacks would be superfluous.' Ante, at 10 n. 8. The GAO authority asserted here, however, is simply the authority to refuse to sanction payment under a disputes decision on the ground that the decision does not satisfy the standards of the Wunderlich Act. The Act, of course, has nothing whatever to do with illegal activities of contractors. It concerns only the finality of administrative disputes decisions. Enforcement of the Act obviously would not make the statutory prohibition of kickbacks 'superfluous.'
46
Even my Brother Douglas once recognized this:
'We should allow the Court of Claims, the agency close to these disputes, to reverse an official whose conduct is plainly out of bounds whether he is fraudulent, perverse, captious, incompetent or just palpably wrong.' United States v. Wunderlich, supra, 342 U.S., at 102, 72 S.Ct., at 156 (dissenting opinion) (emphasis added.)
| 89
|
406 U.S. 117
92 S.Ct. 1379
31 L.Ed.2d 733
State of NEBRASKA, Plaintiff,v.State of IOWA.
No. 17, Orig.
Argued March 29, 1972.
Decided April 24, 1972.
Syllabus
The exceptions to the Special Master's Report in this action brought by Nebraska for construction and enforcement of the Iowa-Nebraska Boundary Compact of 1943, entered into to establish a permanent location of a boundary line made difficult by the meanderings of the Missouri River, are generally overruled. Iowa's exception to the Master's recommendation for an injunction enjoining Iowa from further prosecution of certain pending cases is sustained, as the Court is confident Iowa will abide by the adoption of the Master's conclusion that in any proceeding between a private litigant and the State in which a claim of title good under Nebraska law to land allegedly ceded to Iowa under the Compact is proved, Iowa shall not invoke its common-law doctrine of state ownership as defeating such title. The States may submit a proposed decree in accordance with this opinion, and, if they cannot agree, the Master will prepare and submit a recommended decree. Pp. 117-127.
Howard H. Moldenhauer, Omaha, Neb., for plaintiff.
Michael Murray, Logan, Iowa, for defendant.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Both Iowa and Nebraska filed Exceptions to the Report submitted by the Special Master in this original action brought by Nebraska against Iowa for construction and enforcement of the Iowa-Nebraska Boundary Compact of 1943.1
2
The Missouri River is the boundary between the two States. In 1892, in another suit brought by Nebraska against Iowa, this Court held that the boundary line in the river at Carter Lake, Iowa, was to be located according to the principle that the boundary 'is a varying line' so far as affected by 'changes of diminution and accretion in the mere washing of the waters of the stream,' but not where the river is shifted by avulsion: 'By this selection of a new channel the boundary was not changed, and it remained as it was prior to the avulsion, the centre line of the old channel; . . . unless the waters of the river returned to their former bed, [such center line] became a fixed and unvarying boundary, no matter what might be the changes of the river in its new channel.' Nebraska v. Iowa, 143 U.S. 359, 370, 12 S.Ct. 396, 400, 36 L.Ed. 186 (1892); the decree is in 145 U.S. 519, 12 S.Ct. 976, 36 L.Ed. 798 (1892). The Compact adopts this line at Carter Lake, and for the rest of the boundary fixes the line in 'the middle of the main channel of the Missouri river,' defined as the 'center line of the proposed stabilized channel of the Missouri river as established by the United States engineers' office, Omaha, Nebraska, and shown on the alluvial plain maps of the Missouri river from Sioux City, Iowa, to Rulo, Nebraska, and identified by file numbers AP-1 to 4 inclusive, dated January 30, 1940, and file numbers AP-5 to 10 inclusive, dated March 29, 1940, which maps are now on file in the United States engineers' office at Omaha, Nebraska, and copies of which maps are now on file with the secretary of state of the state of Iowa and with the secretary of the State of Nebraska.' The 'proposed stabilized channel' refers to a project begun in the early 1930's by the United States Army Corps of Engineers to tame the river along its entire length by containing it within a designed channel. The work had been partially completed by 1943, but was suspended when World War II intervened. When work resumed in 1948, the channel was partly redesigned, and by 1959 the river had been confined in the newly designed channel.
3
The States determined in 1943 to agree by compact upon a permanent location of the boundary line when experience showed that 'the fickle Missouri River . . . refused to be bound by the Supreme Court decree [of 1892]. In the past thirty-five years the river has changed its course so often that it has proved impossible to apply the court decision in all cases, since it is difficult to determine whether the channel of the river has changed by 'the law of accretion' or 'that of avulsion." Eriksson, Boundaries of Iowa, 25 Iowa J. of Hist. and Pol. 233, 235 (1927). The Special Master found, on ample evidence, and we adopt his findings, that by 1943 the shifts of the river channel had been so numerous and intricate, both in its natural state and as a result of the work of the Corps of Engineers, that it would be practically impossible to locate the original boundary line.2
4
The fixing of the permanent boundary by Compact resulted in some riparian lands formerly in each State being located within the other State. This created the problem of the effect to be given by the new State to titles, mortgages, and other liens that had arisen under the laws of the other State. Sections 2 and 3 of the Compact were designed to solve this problem.3 Under § 2 each State 'cedes' to the other State 'and relinquishes jurisdiction over' all such lands now located within the Compact boundary of the other. Under § 3, '[t]itles, mortgages, and other liens' affecting such lands 'good in' the ceding State 'shall be good in' the other State.
5
The instant dispute between the States arose when Iowa in 1963 claimed state ownership of some 30 separate areas of land, water, marsh, or mixture of the three wholly on the Iowa side of the Compact boundary. The eighth and part of a ninth such areas were formed before 1943. The 21st and part of a 22d were formed after 1943.4 Iowa's claim was based on Iowa common law that private titles to riparian lands run only to the ordinary high-water mark on navigable streams and that the State is the owner of the beds of all navigable streams within the State and is also the owner of any islands that may form therein. McManus v. Carmichael, 3 Iowa 1 (1856); Holman v. Hodges, 112 Iowa 714, 84 N.W. 950 (1901). The areas formed before 1943 lie south of Omaha and those formed after 1943 lie north of Omaha. Two of the pre-1943 areas are Nottleman Island and Schemmel Island. Each is the subject of an action to quiet title brought by Iowa in Iowa courts.5 The defense in each case is that there exist 'titles . . . good in Nebraska' to the islands that, under § 3 of the Compact, Iowa obligated itself to recognize to be 'good in Iowa' as against any claim of Iowa under its doctrine of state ownership.
6
Thus, the controversy between the States in this case centers around the proper construction of their Compact. The Special Master's Findings and Conclusions generally favor Nebraska's position on the merits of the controversy over the areas that formed before July 12, 1943, and Iowa's exceptions are addressed to them. On the other hand, the Findings and Conclusions favor Iowa's position on the merits of the controversy over the areas that formed after July 12, 1943, and Nebraska's exceptions are primarily addressed to them. We overrule all exceptions, save two, of Nebraska's addressed to printing errors in the Report,6 except as we sustain, infra, Iowa's Exceptions IV and V insofar as the Special Master recommended that an injunction issue, and except as mentioned in n. 8, infra.
7
The Special Master construed the word 'cedes' in § 2 as meant by the States to describe all areas formed before July 12, 1943, regardless of their location with reference to the original boundary, whose '[t]itles, mortgages, and other liens' were, at the date of the Compact, 'good in' the ceding State, and ruled that, under § 3, the other State is bound to recognize such '[t]itles, mortgages, and other liens' to be 'good in' its State, and not to claim ownership in itself. Iowa urges, in its Exceptions II and III, that this construction is erroneous and that §§ 2 and 3 should be construed as relating only to areas formed before July 12, 1943, that can be proved by clear, satisfactory, and convincing evidence to have been on the Nebraska side of the original boundary before the Compact fixed the permanent boundary. We overrule Iowa's Exceptions. Iowa's construction would require the claimant who proves title 'good in Nebraska' also to shoulder the burden of proving the location of the original boundary before 1943, as well as proving that the lands were on the Nebraska side of that boundary. That, said the Special Master, and we agree, 'would be placing a burden upon the land owner which the states themselves refused to undertake in 1943 and agreed would not be necessary. The states would in effect be saying to the land owners, 'we could not prove where the boundary was in 1943 but now, after we have waited 27 years, we are going to make you prove where it was at your expense even though we know it is impossible."7
8
Iowa's Exceptions IV and V concern the Special Master's findings that the State of Iowa does not own Nottleman Island and Schemmel Island. The Special Master found that the proofs sufficed to establish title 'good in Nebraska' to Nottleman Island and Schemmel Island, but did not suffice to prove title 'good in Nebraska' to the other areas claimed by Iowa that were formed before 1943.8 He found, and we agree, that titles 'good in Nebraska' include private titles to riparian lands that under Nebraska law, differing from Iowa law, run to the thread of the contiguous stream. Kinkead v. Turgeon, 74 Neb. 573, 104 N.W. 1061 (1905), 74 Neb. 580, 109 N.W. 744 (1906).9 He found further that titles 'good in Nebraska' embrace titles obtained by 10 years' open, notorious, and adverse possession under claim of right without any requirement of a record title; under Iowa law, a claim must be under 'COLOR OF TITLE,' REQUIRING SOME TYPE OF record title to commence the period of adverse possession.10
9
The Special Master recommended that as to areas formed before July 12, 1943, §§ 2 and 3 should be construed as limiting the State of Iowa to contesting with private litigants in state or federal courts the question whether the private claimants can prove title 'good in Nebraska,' and when private litigants prove such title, as obliging Iowa not to interpose Iowa's doctrine of state ownership as defeating such title.11 We agree, and to that extent overrule Iowa's Exceptions IV and V. As to Nottleman Island and Schemmel Island, however, the Special Master recommended that, in addition to a judgment that titles 'good in Nebraska' have been proved as to those islands, so that Iowa is precluded from claiming title thereto under its doctrine of state ownership, this Court should enjoin the State of Iowa, its officers, agents, and servants from further prosecution of the cases now pending in the Iowa courts.12 We see no reason for an injunction at this stage. We are confident that the State of Iowa will abide by our adoption of the Special Master's conclusion that in any proceeding between a private litigant and the State of Iowa in which a claim of title good under the law of Nebraska is proved, the State of Iowa will not invoke its common-law doctrine of state ownership as defeating such title. Iowa's Exceptions IV and V are therefore sustained insofar as the Special Master recommended that an injunction issue.
10
Nebraska's basic Exception is to the Findings and Conclusion of the Special Master that ownership of areas that have formed since July 12, 1943, should be determined under the law of the State in which they formed, the boundary fixed by the Compact being the line that determines in which State they formed.13 This pertains to the 21 areas and part of a 22d that lie north of Omaha. See n. 4, supra.
11
Although the Special Master recommended, and we agree, that claimants of title to these areas as against Iowa may also have the opportunity to show title 'good in Nebraska' on the Compact date, July 12, 1943,14 Nebraska offered no proof to support such a claim as to any of the areas. Nebraska does contend, however, that any accretions to Nebraska riparian lands that cross the Compact boundary line into Iowa, caused when the river moves gradually and imperceptibly, should be declared to accrue to the Nebraska riparian owner under Nebraska law, since under Nebraska law the boundary of the Nebraska owner moves with the thalweg or main navigable channel, regardless of which State the movement is in. The Special Master rejected that contention. We agree that the contention is without merit for the reasons stated in Tyson v. State of Iowa, 283 F.2d 802 (CA8 1960). That was a condemnation action by the United States in which the question was the ownership of an island at Tyson Bend, one of the areas north of Omaha to which Iowa claims ownership. See n. 4, supra. The island had formed between the designed channel and a main channel created when the river escaped from the designed channel between 1943 and 1948. The island had then become connected to the Nebraska shore when the designed channel filled with sediment after a 1952 flood. The Corps of Engineers determined to dredge a canal in the designed channel to place the river back in the designed channel. Condemnation of an easement on the island was necessary to carry the project forward, and the question of ownership of the island had to be settled to determine who was entitled to compensation. The Tyson claimants claimed the land as an accretion to Nebraska land or river beds belonging to them. The State of Iowa claimed it as an island formed over the state-owned river bed in Iowa under the Iowa doctrine of state ownership. The Court of Appeals for the Eighth Circuit held that the ownership of the island should be determined by the law of the State in which the land was situated, that is, by the law of Iowa, since the island was on the Iowa side of the Compact boundary. The Court of Appeals expressly rejected the same contention urged upon us by Nebraska, holding, in agreement with the District Court in the case, that 'the Nebraska law of accretion did not operate to create riparian rights within the territorial limits of Iowa.' 283 F.2d at 811. Hence, whether the Nebraska riparian owner has title to the accretions that cross the boundary into Iowa is determined by Iowa law. Nebraska argues that Tyson was wrongly decided. We do not agree. Tyson is consistent with what the Court said in Arkansas v. Tennessee, 246 U.S. 158, 175-176, 38 S.Ct. 301, 305, 62 L.Ed. 638 (1918):
12
'How the land that emerges on either side of an interstate boundary stream shall be disposed of as between public and private ownership is a matter to be determined according to the law of each State, under the familiar doctrine that it is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent to them. . . . But these dispositions are in each case limited by the interstate boundary, and cannot be permitted to press back the boundary line from where otherwise it should be located.' (Emphasis added.)
13
The States may submit a proposed decree in accord with this opinion. If the States cannot agree, the Special Master is requested, after appropriate hearing, to prepare and submit a recommended decree.
14
It is so ordered.
15
Decree accordingly.
1
Iowa Code 1971, p. Ixiv; Iowa Acts 1943, c. 306; Nebraska Laws 1943, c. 130; Act of July 12, 1943, 57 Stat. 494.
Leave to file the action was granted in 1965. 379 U.S. 876, 85 S.Ct. 143 (1964); 379 U.S. 996, 85 S.Ct. 716, 13 L.Ed.2d 699 (1965). There have been successive Special Masters. See 380 U.S. 968, 85 S.Ct. 1324, 14 L.Ed.2d 267 (1965); 392 U.S. 918, 88 S.Ct. 2243, 20 L.Ed.2d 1380 (1968); 393 U.S. 910, 89 S.Ct. 232, 21 L.Ed.2d 196 (1968). Senior Judge Joseph P. Willson completed the case after extensive hearings and filed his Report on November 9, 1971. 404 U.S. 933, 92 S.Ct. 265, 30 L.Ed.2d 246 (1971). The Exceptions of the States were orally argued before this Court on March 29, 1972.
Iowa's Exception I renews the objection to the Court's jurisdiction that was overruled when leave to file was granted. We overrule the Exception. 'Just as this Court has power to settle disputes between States where there is no compact, it must have final power to pass upon the meaning and validity of compacts.' West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28, 71 S.Ct. 557, 560, 95 L.Ed. 713 (1951); Const. Art. III, § 2; 28 U.S.C. § 1251.
2
Report 63, 65, 67, 68, 80.
3
Each State Legislature adopted a statute to evidence its agreement to the Compact. Sections 2 and 3 of each statute create obligations reciprocated by the other State in §§ 2 and 3 of its statute. In the Iowa statute the sections are:
'Sec. 2. The State of Iowa hereby cedes to the State of Nebraska and relinquishes jurisdiction over all lands now in Iowa but lying westerly of said boundary line and contiguous to lands in Nebraska.
'Sec. 3. Titles, mortgages, and other liens good in Nebraska shall be good in Iowa as to any lands Nebraska may cede to Iowa and any pending suits or actions concerning said lands may be prosecuted to final judgment in Nebraska and such judgments shall be accorded full force and effect in Iowa.'
4
The areas formed before 1943 are Nottleman Island, Schemmel Island, St. Mary's Bend, Auldon Bar, Copeland Bend, State Line Island, Wilson Island, Deer Island, and a portion of Winnebago Bend. Report 106, 165.
The areas formed since 1943 are Dakota Bend, Omadi Bend, Between Omadi and Browers Bends, Snyder Bend, Glover's Point Bend, Rabbit Island, Upper Monona Bend, Monona Bend, Blackbird Bend, Tieville Bend, Upper Decatur Bend, Middle Decatur Bend, Lower Decatur Bend, Louisville Bend, Blencoe Bend, Little Sioux Bend, Bullard Bend, Soldier Bend, Sandy Point Bend, Tyson Bend, and California Bend. Id., at 107.
5
On March 18, 1963, Iowa filed, in the District Court for Mills County, State of Iowa v. Darwin Merrit Babbit et al., Equity No. 17433 to quiet title to Nottleman Island. On March 26, 1963, Iowa filed, in the District Court of Fremont County, State of Iowa v. Henry E. Schemmel et al., Equity No. 19765 to quiet title to Schemmel Island. Proceedings in the actions have been suspended pending our decision.
6
Exceptions of the State of Nebraska, No. 6, p. 8, and No. 12, p. 11. Iowa concedes that the Exceptions are well taken. Iowa Reply 5, 7. The errors will be deemed corrected as suggested by the Exceptions.
7
Report 88-89.
8
Id., at 174. The Special Master found alternatively, that if his construction of §§ 2 and 3 was not accepted, nevertheless the landowners met the burden of proving that Nottleman and Schemmel Islands were actually on the Nebraska side of the original boundary. Since we agree with the Special Master's construction, we consider no Exceptions addressed to those findings.
9
In Iowa's Reply, filed January 19, 1972, Iowa for the first time in this protracted litigation retracts its concession, made often and throughout the proceedings, that Kinkead established this principle of Nebraska law. In its Reply, at 15-16, Iowa contends that 'the common law of the State of Nebraska did not in fact give the Nebraska riparian owners along the Missouri River title or ownership of the bed of the navigable channel of the river, and they acquired no property right to such bed until it was abandoned by the river.' Our reading of the Nebraska cases satisfies us that the argument is frivolous.
10
Report 68-69. Claimants to titles to areas of Nottleman Island rested at least in part on the Nebraska law of adverse possession. Report 121-126.
11
Id., at 174-175.
12
Id., at 201; see n. 5, supra.
13
Id., at 193.
14
Id., at 192.
| 1011
|
406 U.S. 186
92 S.Ct. 1603
31 L.Ed.2d 785
State of VERMONT, plaintiff,v.State of NEW YORK et al.
No. 50, Orig.
Supreme Court of the United States
April 24, 1972
On motion for leave to file bill of complaint.
PER CURIAM.
1
The motion by Vermont for leave to file a bill of complaint invoking our original jurisdiction against New York and against International Paper Co., a New York corporation doing business in New York, is granted. New York and International Paper Co. are given until June 19, 1972, to answer the bill of complaint.
2
So ordered.
| 89
|
406 U.S. 109
92 S.Ct. 1396
31 L.Ed.2d 727
State of WASHINGTON et al., Plaintiffs,v.GENERAL MOTORS CORPORATION et al.
No. 45, Orig.
Argued Feb. 28, 29, 1972.
Decided April 24, 1972.
Syllabus
Eighteen States have filed a motion for leave to file a bill of complaint against the Nation's four major automobile manufacturers and their trade association, alleging a conspiracy in violation of the federal antitrust laws, a common-law conspiracy in restraint of trade to restrain the development of motor vehicle air pollution control equipment, and a public nuisance in violation of state and federal common law. Those States seek an injunction, inter alia, requiring the defendants to accelerate a research and development program to produce effective pollution control devices and pollution-free engines and to install anti-pollution equipment in all vehicles they manufactured during the alleged conspiracy. Held: Though the Court has original but not exclusive jurisdiction, it exercises discretion to avoid impairing its ability to administer its appellate docket. In view of the nature of the relief requested and the availability of the federal district courts as an alternative forum, the Court declines to assume jurisdiction. As a matter of law as well as of practical necessity, remedies for air pollution must be considered in the context of local situations, making it advisable that this controversy be resolved in the appropriate federal district courts. Pp. 113—116.
Motions of North Dakota and West Virginia to be joined as parties plaintiff granted. Motion for leave to file bill of complaint denied and parties remitted to other federal forum.
Fredric C. Tausend, Seattle, Wash., for plaintiffs.
Lloyd N. Cutler, Washington, D.C., for defendants.
[Arguments from counsel from pages 110-111 intentionally omitted]
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Plaintiffs are 18 States who, by this motion for leave to file a bill of complaint, seek to involve this Court's original jurisdiction under Art. III, § 2, cl. 2, of the Constitution.1 Named as defendants are the Nation's four major automobile manufacturers and their trade association.
2
Plaintiffs allege a conspiracy among the defendants to restrain the development of motor vehicle air pollution control equipment. They allege that the conspiracy began as early as 1953 but was concealed until January 1969. Count I of the proposed complaint charges a violation of the federal antitrust laws. Count II charges a common-law conspiracy in restraint of trade independently of the Sherman and Clayton Acts.2 In their prayer for relief, plaintiffs seek an injunction requiring the defendants to undertake 'an accelerated program of spending, research and development designed to produce a fully effective pollution control device or devices and/or pollution free engine at the earliest feasible date' and also ordering defendants to install effective pollution control devices in all motor vehicles they manufactured during the conspiracy and as standard equipment in all future motor vehicles which they manufacture. Other prophylactic relief is also sought.
3
The proposed complaint plainly presents important questions of vital national importance. See, e.g., Hearings before the Subcommittee on Air and Water Pollution of the Senate Committee on Public Works, 90th Cong., 1st Sess. (1967). Our jurisdiction over the controversy cannot be disputed. Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051; Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038. For reasons which will appear, however, we deny leave to file the bill of complaint.
4
The gravamen of plaintiffs' allegations is a horizontal conspiracy among the major automobile manufacturers to impede the research and development of automotive air pollution control devices. See generally L. Jaffe & L. Tribe, Environmental Protection 141—180 (1971). It is argued that the facts alleged in support of the statutory and common-law claims are identical and that they could be elicited as well by a Special Master appointed by this Court as by a federal district court judge, and that resort to a Special Master would not place a burden on this Court's time and resources substantially greater than when we hear an antitrust case on direct appeal from a district court under the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. And it is argued that the sheer number of States that seek to invoke our original jurisdiction in this motion is reason enough for us to grant leave to file.3
5
The breadth of the constitutional grant of this Court's original jurisdiction dictates that we be able to exercise discretion over the cases we hear under this jurisdictional head, lest our ability to administer our appellate docket be impaired. Massachusetts v. Missouri, 308 U.S. 1, 19, 60 S.Ct. 39, 43, 84 L.Ed. 3; Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 497—499, 91 S.Ct. 1005, 1009—1010, 28 L.Ed.2d 256; H. Hart & H. Wechsler, The Federal Courts and the Federal System 258—260 (1953); Woods & Reed, The Supreme Court and Interstate Environmental Quality: Some Notes on the Wyandotte Case, 12 Ariz.L.Rev. 691; Note, 11 Stan.L.Rev. 665, 694—700. In Massachusetts v. Missouri, supra, 308 U.S., at 18—19, 60 S.Ct., at 43, where Massachusetts sought to invoke our original jurisdiction in order to collect a tax claim, we said:
6
'In the exercise of our original jurisdiction so as truly to fulfill the constitutional purpose we not only must look to the nature of the interest of the complaining State—the essential quality of the right asserted—but we must also inquire whether recourse to that jurisdiction . . . is necessary for the State's protection. . . . To open this Court to actions by States to recover taxes claimed to be payable by citizens of other States, in the absence of facts showing the necessity for such intervention, would be to assume a burden which the grant of original jurisdiction cannot be regarded as compelling this Court to assume and which might seriously interfere with the discharge by this Court of its duty in deciding the cases and controversies appropriately brought before it.'
7
By the same token, we conclude that the availability of the federal district court as an alternative forum and the nature of the relief requested suggest we remit the parties to the resolution of their controversies in the customary forum. The nature of the remedy which may be necessary, if a case for relief is made out, also argues against taking original jurisdiction.
8
Air pollution is, of course, one of the most notorious types of public nuisance in modern experience. Congress has not, however, found a uniform, nationwide solution to all aspects of this problem and, indeed, has declared 'that the prevention and control of air pollution at its source is the primary responsibility of States and local government.' 81 Stat. 485, 42 U.S.C. § 1857(a)(3). To be sure, Congress has largely pre-empted the field with regard to 'emissions from new motor vehicles,' 42 U.S.C. § 1857f—6a(a); 31 Fed.Reg. 5170 (1966); and motor vehicle fuels and fuel additives, 84 Stat. 1699, 42 U.S.C. s 1857f-6c(c)(4). See Currie, Motor Vehicle Air Pollution: State Authority and Federal Pre-emption, 68 Mich.L.Rev. 1083 (1970); Hill, The Politics of Air Pollution: Public Interest and Pressure Groups, 10 Ariz.L.Rev. 37, 44—45 (1968); Stevens, Air Pollution and the Federal System: Responses to Felt Necessities, 22 Hastings L.J. 661, 674—676 (1971). It has also pre-empted the field so far as emissions from airplanes are concerned, 42 U.S.C. §§ 1857f—9 to 1857f—12. So far as factories, incinerators, and other stationary devices are implicated, the States have broad control to an extent not necessary to relate here.4 See Stevens, supra, passim; Comment, 58 Calif.L.Rev. 1474 (1970). But in certain instances, as, for example, where federal primary and secondary ambient air quality standards have been established,5 42 U.S.C. §§ 1857c—4 and 1857c—5, or where 'hazardous air pollutant(s)' have been defined, 42 U.S.C. § 1857c—7, there may be federal pre-emption. See 42 U.S.C. § 1857c—8 et seq. Moreover, geophysical characteristics which define local and regional airsheds are often significant considerations in determining the steps necessary to abate air pollution. See Hearings before the Subcommittee on Air and Water Pollution of the Senate Committee on Public Works, 90th Cong., 1st Sess., 130 (1967); Coons, Air Pollution & Government Structure, 10 Ariz.L.Rev. 48, 60—64 (1968). Thus, measures which might be adequate to deal with pollution in a city such as San Francisco, might be grossly inadequate in a city such as Phoenix, where geographical and meteorological conditions trap aerosols and particulates.
9
As a matter of law as well as practical necessity corrective remedies for air pollution, therefore, necessarily must be considered in the context of localized situations.6 We conclude that the causes should be heard in the appropriate federal district courts.7
10
The motions of the States of North Dakota and West Virginia to be joined as parties plaintiff are granted. The motion for leave to file a bill of complaint is denied and the parties are remitted without prejudice to the other federal forum.
11
It is so ordered.
12
Mr. Justice POWELL took no part in the consideration or decision of these motions.
13
Motion to join as parties plaintiff granted. Motion for leave to file complaint denied.
1
Fifteenth States originally moved for leave to file a bill of complaint. We subsequently granted leave to the State of Idaho to intervene as plaintiff. 403 U.S. 949, 91 S.Ct. 2272, 29 L.Ed.2d 862. By today's decision we also grant leave to the States of North Dakota and West Virginia to be joined as parties plaintiff.
2
A third count of plaintiffs' proposed complaint also charged 'a public nuisance contrary to the public policy of the Plaintiff States . . . (and) the federal government.' Motion for Leave to File Bill of Complaint 12. In a memorandum filed with this Court Feb. 19, 1972, however, plaintiffs struck this count from their proposed complaint; but Idaho, the intervenor, did not join in that motion. In light of our disposition of Counts I and II of the bill of complaint, Idaho's motion for leave to file a bill of complaint solely for Count III should be denied a fortiori. Should any of the plaintiffs desire to renew the public nuisance count of the bill of complaint in the District Court, they are free to do so under our decision today in Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712.
3
In addition to the 18 States which are plaintiffs, 16 other States and the City of New York have filed a brief as amicus curiae supporting plaintiffs' motion for leave to file a bill of complaint.
4
Because federal motor vehicle emission control standards apply only to new motor vehicles, States also retain broad residual power over used motor vehicles. Moreover, citizens, States and local governments may initiate actions to enforce compliance with federal standards and to enforce other statutory and common-law rights. 42 U.S.C. § 1857h—2.
5
National primary ambient air quality standards are those 'which in the judgment of the Administrator (of the Environmental Protection Agency) . . . are requisite to protect the public health . . ..' 42 U.S.C. § 1857c—4(b)(1). Secondary ambient air quality standards are those 'requisite to protect the public welfare,' 42 U.S.C. § 1857c—4(b)(2), which 'includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being.' 42 U.S.C. § 1857h(h). For implementation plans for primary and secondary ambient air quality standards, see 42 U.S.C. § 1857c—5.
Rules and regulations setting ambient air quality standards have been promulgated by the Environmental Protection Agency. 36 Fed.Reg. 22384 (1971).
6
It was in recognition of this fact that Congress directed the Administrator of the Environmental Protection Agency to 'designate as an air quality control region any interstate area or major intrastate area which he deems necessary or appropriate for the attainment and maintenance of ambient air quality standards.' 42 U.S.C. § 1857c—2(c).
7
Multi-district litigation apparently involving the same factual claims as are presented here has been consolidated in the District Court for the Central District of California and pretrial proceedings are already under way. See In re Motor Vehicle Air Pollution Control Equipment, 311 F.Supp. 1349 (Jud.Panel on Multidist.Lit.1970).
| 78
|
406 U.S. 187
92 S.Ct. 1477
32 L.Ed.2d 1
SIXTY-SEVENTH MINNESOTA STATE SENATEv.Richard A. BEENS et al.
Nos. 71—1024, 71—1145.
April 29, 1972.
PER CURIAM.
1
These two appeals are taken by the Minnesota State Senate from orders of a three-judge Federal District Court, Beens v. Erdahl, 336 F.Supp. 715, reapportioning the Minnesota Legislature. The appeals do not challenge the District Court's conclusion that the legislature is now malapportioned. And at this point they are not concerned with population variances or with other issues of the type customarily presented in reapportionment litigation. The controversy focuses, instead, on (a) the District Court's refusal to honor the Minnesota statute fixing the number of the State's legislative districts at 67 and (b) the court's proceeding, over the initial opposition of all parties (but upon the suggestion of two amici, the Lieutenant Governor and a representative), to reduce the number of legislative districts to 35, the number of senators by almost 50%, and the number of representatives by nearly 25%. We conclude that the District Court erred in its rulings. Accordingly, we summarily vacate the court's orders and remand the cases for further proceedings promptly to be pursued.
2
* The Minnesota Bicameral Legislature was last effectively apportioned in 1966. Ex.Sess.Laws 1966, c. 1.1 Section 2.021 of Minn.Stat. (1969), the very first section of the 1966 Act, states that, 'until a new apportionment shall have been made,' the State's senate shall consist of 67 members and its house of representatives of 135 members.2 Section 2.031, subd. 1, from the second section of the 1966 Act, prescribes 67 legislative districts for both the senate and the house.3 Sections 2.041 2.711, inclusive, then delineate these 67 districts.4 The State's Constitution, Art. IV, § 2, provides a legislator-population minimum ratio (one senator for every 5,000 inhabitants and one representative for every 2,000 inhabitants) and states, 'The representation in both houses shall be apportioned equally throughout the different sections of the State, in proportion to the population thereof.'
3
The 1970 federal census took place in due course. The Minnesota Legislature did not produce a reapportionment act during its regular session in 1971. One was passed on October 29, 1971, during the reconvening of an extra session called that year. The lawmakers adjourned sine die on October 30. The Governor, however, vetoed the act on November 1 and this 1971 reapportionment endeavor failed to become law.5 The Governor has not called the legislature to another extra session for more work on reapportionment,6 and it is not scheduled to meet again in regular session until January 1973. Minn.Const., Art. IV, § 1; Minn.Stat. § 3.01 (1969). The 1972 primary and general elections will take place in the interim. Minn.Stat. §§ 202.02 and 203.02 (1969). Thus, the 1966 statute remains as the State's last effective legislative apportionment.
II
4
The original plaintiffs, who are among the appellees here, are three qualified voters of the State. By their complaint, filed in April 1971 and asserting jurisdiction under 28 U.S.C. §§ 1343(3) and (4) and 42 U.S.C. §§ 1983 and 1988, they sought (a) a declaratory judgment that the 1966 Act apportioning the legislature violates the Equal Protection Clause of the Fourteenth Amendment, (b) an injunction restraining the Minnesota Secretary of State and all county auditors from conducting future elections for legislators pursuant to that Act, and (c) reapportionment of the legislature by the federal court itself. The three-judge court was convened. The appellant, the Sixty-seventh Minnesota State Senate, intervened as a party defendant under Fed.Rules Civ.Proc. 24(a).
5
The District Court, after hearings and with the assistance of stipulations, issued three significant orders:
6
A. On November 15, 1971, it made appropriate findings, not challenged here as to their basic provisions, and declared the 1966 Act in its entirety, Minn.Stat. §§ 2.021 2.712 (1969), inclusive, violative of the Federal Constitution, enjoined the Secretary of State and the county auditors from conducting future elections under the Act, and appointed two Special Masters (a third was named later) to aid the court in formulating a new apportionment plan. See 336 F.Supp. 715, 718 719.
7
B. On December 3 it found 'that it best can fulfill its duty of apportioning the Minnesota Legislature in accordance with the Constitution of the United States and with due regard for State policy' by dividing the State into 35 senatorial districts and dividing each senatorial district into three house districts, and ordered that the parties, intervenors, and amici could present plans for apportioning the legislature accordingly. In an accompanying memorandum the court said, 'The only serious questions . . . are whether we have the authority to change the size of the Legislature; and if so, to what extent.' It answered the first of these questions in the affirmative, quoting the following sentence from Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971):
8
'Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.' 402 U.S., at 15, 91 S.Ct., at 1276.
9
The court stated that the legislature could not be apportioned into 67 senate districts and 135 house districts without violating either the Federal Constitution or the Minnesota Constitution; that the existing practice of dividing one senate district into three house districts and all others into two cannot be continued without violating the requirements of equal protection; that the greater the population of each district, the more closely can the one man, one vote standard be met and still give effect to the state policy of adhering to the boundaries of political subdivisions; that state policy with respect to the legislature's size 'is difficult to discern'; that the Governor had recommended a reduction in size; that there is merit in having an odd-numbered senate and house where, as in Minnesota, the State has 'two strong and rather evenly divided political parties'; that federal constitutional and state policy requirements can best be harmonized by having 35 senate districts and by dividing each senate district into three house districts; that there are persuasive arguments that 'positive benefits to the State will accrue by substantially reducing the size of the Senate and moderately reducing the size of the House'; and that 'it is not our desire to fix for the future the size of the Senate and the House in Minnesota,' for the legislature, if it wishes, may appropriately reapportion. See 336 F.Supp. 720—721.
10
C. On January 25, 1972, it entered its 'Final Order and Plan of Apportionment' by which it adopted a plan therein described. The court also modified its injunction of November 15 so as to enjoin the state secretary and county auditors from conducting any future elections for the legislature under any plan other than the one adopted by the court 'or a constitutional plan adopted after this date by the State of Minnesota.' In accord with Minn.Const., Art. IV, § 24, 1972 elections under the new plan for all positions in the senate and house were ordered. 336 F.Supp. 715, 732.
11
The senate, as intervenor, first appealed from the orders of November 15, 1971, and December 3, 1971 (case No. 71—1024), and then from the order of January 25, 1972 (case No. 71—1145). Both appeals are under 28 U.S.C. § 1253. We denied the senate's motion to expedite the appeals, but granted its motion to consolidate them. 405 U.S. 985, 92 S.Ct. 1256, 31 L.Ed.2d 451 (1972). We then granted its application for a temporary stay pending further order of the Court. 406 U.S. 905, 92 S.Ct. 1608, 1612, 31 L.Ed.2d 815 (1972).
III
12
The appellees have moved to dismiss. Two grounds are asserted:
13
A. That the senate lacks authority and standing to prosecute the appeals. It is said that the senate's authorizing resolution does not entitle its counsel to take the appeals; that the resolution relates only to legislative district bound-aries and not to their number; that the Office of Senate Counsel speaks only for certain members of the senate and not for the whole; that it is the legislature, and not just the senate, that is the legal entity concerned for purposes of the appeals; and that only the legislature has standing.
14
The authorizing senate resolution, however, is in broad terms:
15
'BE IT RESOLVED, by the Senate of the State of Minnesota, that the Office of Senate Counsel be and it is hereby authorized and directed to take such steps as may be necessary to represent the interests and will of this body to the extent deemed necessary in both state and federal court actions involving the prescription of the bounds of senatorial and representative districts, the apportionment of senators and representatives among those districts, and the orderly process of elections therefrom . . ..' Journal of the Minnesota Senate 1971, 39th Day, p. 460.
16
The resolution was adopted July 31, 1971, by a 56-to-0 vote. A motion to reconsider made two and a half months later failed by a vote of 33—31. Id., 40th day, at 492.
17
We are not inclined to read this authorizing resolution restrictively, as the appellees suggest. Certainly the present appeals are in a federal court action that concerns apportionment 'and the orderly process of elections therefrom.' And certainly the senate is directly affected by the District Court's orders. That the senate is an appropriate legal entity for purpose of intervention and, as a consequence, of an appeal in a case of this kind is settled by our affirmance of Silver v. Jordan, 241 F.Supp. 576 (S.D.Cal.1964), aff'd, 381 U.S. 415, 85 S.Ct. 1572, 14 L.Ed.2d 689 (1965), where it was said:
18
'The California State Senate's motion to intervene as a substantially interested party was granted because it would be directly affected by the decree of this court.' 241 F.Supp., at 579.
19
A group of senators thus had the right to intervene. The concurrence of the house was not necessary as it would have been to enact legislation.
20
B. That the appeals are not from orders granting or denying injunctive relief, within the requirement of 28 U.S.C. § 1253. Although the orders of November 15, 1971, and January 25, 1972, specifically enjoin state and county officers, the appellees assert that the restraining portions of those orders are not now attacked and are conceded by the appellant. This, in our view, is too narrow an analysis. The order of November 15 clearly enjoins the state and county officers 'from holding or conducting any future elections under the present Apportionment Statutes.' That of January 25 does the same except with respect to the plan then adopted by the court or one thereafter validly adopted by the State. The court's injunctive holding applies to §§ 2.031 and 2.021, respectively fixing the number of legislative districts and the number of senators and representatives, as well as to the succeeding sections determining the boundaries of the 67 districts. The appellant's appeal relates to §§ 2.031 and 2.021. The court's injunction with respect to those sections is sufficient to justify a direct appeal under § 1253. Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970), cited by the appellees, is inapposite.
IV
21
That the three-judge federal court possesses the power to reapportion the State's legislature when the applicable state statutes fall short of constitutional requirements is not questioned. Reynolds v. Sims, 377 U.S. 533, 586—587, 84 S.Ct. 1362, 1394—1395, 12 L.Ed.2d 506 (1964). The 1966 Minnesota apportionment legislation, the court found, in the light of the 1970 census figures no longer provided a constitutionally acceptable apportionment of either house. No one challenges that basic finding here, and we have no reason to rule otherwise. The 1971 legislature had endeavored to reapportion and, thus, to fulfill the requirement imposed upon it by Art. IV, § 23, of the State's Constitution.7 See Magraw v. Donovan, 163 F.Supp. 184, 187 188 (D.Minn.1958), and Honsey v. Donovan, 236 F.Supp. 8 (D.Minn.1964). The legislature's efforts in that direction, however, were nullified by the Governor's veto of the Act it passed, an action the executive had the power to take. Duxbury v. Donovan, 272 Minn. 424, 138 N.W.2d 692 (1965). The net result was the continuing applicability of the 1966 act. Under these circumstances judicial relief was appropriate.
22
The three-judge court, however, was not content with devising judicial apportionment within the framework of the existing and otherwise valid statutory structure. Instead of recognizing the provision in Minn.Stat. § 2.021 (1969), that the state senate 'is composed of 67 members and the house of representatives is composed of 135 members,' and the further provision in § 2.031 that the senators and representatives 'are apportioned throughout the state in 67 legislative districts,' the court declared those sections invalid along with §§ 2.041—2.711, the provisions that delineate the boundaries of the specified 67 legislative districts.
23
We need not review at length the several pronouncements of this Court relating to state legislative reapportionment. The pertinent cases, particularly those of June 15, 1964, and the guidelines they provide are well-known. It suffices to note that in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, the Court stated that apportionment '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 . . .' 377 U.S., at 586, 84 S.Ct., at 1394.8 But we also stated, 'With respect to the operation of the Equal Protection Clause, it makes no difference whether a State's apportionment scheme is embodied in its constitution or in statutory provisions,' and, then, 'Clearly, courts should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as is possible.' 377 U.S., at 584, 84 S.Ct., at 1393. And the Minnesota Constitution, Art. IV, § 23, vests the legislature with power to reapportion.
24
It follows from this that a federal reapportionment court should accommodate the relief ordered to the appropriate provisions of state statutes relating to the legislature's size insofar as is possible. We do not have difficulty, as the District Court professed to have, in discerning the State's policy as to the legislature's size. That policy, long in effect in Minnesota and restated no longer than six years ago in § 2.021, is for 67 senators and 135 representatives, and, in § 2.031, is for 67 legislative districts. These are figures that have been determined by the legislature and approved by the Governor of the State. The present Governor's contrary recommendation, although certainly entitled to thoughtful consideration, represents only the executive's proffered current policy, just as the reapportionment plan he vetoed on November 1, 1971, represented only the legislature's proffered current policy.
25
We note, in repetition, that the District Court invalidated the entire 1966 Act, §§ 2.021—2.712, despite the fact that the details of the legislative districts' configurations are included only in §§ 2.041—2.711. Section 2.021 merely specifies the number of senators and representatives; § 2.031 calls for the apportionment of those legislators throughout the State in 67 districts; and § 2.712 provided the effective date of the 1966 act, the efficacy of which, for the period prior to the 1970 census, is not at issue here. In the light of the State's policy of statutory severability, Minn.Stat. § 645.20 (1969),9 and recognizing that this specific number of legislative districts has been in effect in Minnesota since 1913 and through two succeeding reapportionments, we necessarily conclude that the District Court's invalidation of the six-year-old reapportionment law swept too broadly in nullifying statutory sections that are capable of standing alone.
26
We know of no federal constitutional principle or requirement that authorizes a federal reapportioning court to go as far as the District Court did and, thus, to by-pass the State's formal judgment as to the proper size of its legislative bodies. No case decided by this Court has gone that far and we have found no district court decision that has employed such radical surgery in reapportionment. There are cases where judicial reapportionment has effectuated minor changes in a legislature's size. Nearly all those cases reflect an increase or decrease of only a few seats10 and most appear to have been justified by a state constitutional demand, agreement of the parties, the observance of geographical boundaries, or mathematical convenience. We do not disapprove a court-imposed minor variation from a State's prescribed figure when that change is shown to be necessary to meet constitutional requirements. And we would not oppose the District Court's reducing, in this case, the number of representatives in the Minnesota house from 135 to 134, as the parties apparently have been willing to concede. That action would fit exactly the 67-district pattern. But to slash a state senate's size almost in half and a state house's size by nearly one-fourth is to make more than a mere minor variation. If a change of that extent were acceptable, so, too, would be a federal court's cutting or increasing size by 75% or 90% or, indeed, by prescribing a unicameral legislature for a State that has always followed the bicameral precedent. We repeat what was said recently in another legislative apportionment case: 'The remedial powers of an equity court must be adequate to the task, but they are not unlimited.' Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878, 29 L.Ed.2d 363 (1971).
27
In summary, the number of a State's legislative districts or the number of members in each house of its legislature raises no issue of equal protection unless the number so prescribed occasions significant and invalidating population deviations.
28
'Determining the size of its legislative bodies is of course a matter within the discretion of each individual State. Nothing in this opinion should be read as indicating that there are any federal constitutional maximums or minimums on the size of state legislative bodies.' Reynolds v. Sims, 377 U.S., at 581 n. 63, 84 S.Ct., at 1392.
29
See also Connor v. Johnson, 330 F.Supp. 506, 507 (S.D.Miss), order stayed on other grounds, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268, opinion on remand, 330 F.Supp. 521 (S.D.Miss.1971); Bannister v. Davis, 263 F.Supp. 202, 208 (E.D.La.1966); Dungan v. Sawyer, 250 F.Supp. 480, 489 (D.Nev.1965).
30
We conclude that the action of the three-judge court in so drastically changing the number of legislative districts and the size of the respective houses of the Minnesota Legislature is not required by the Federal Constitution and is not justified as an exercise of federal judicial power.
31
Our ruling here, of course, is no expression of opinion on our part as to what is desirable by way of legislative size for the State of Minnesota or for any other State. It may well be that 67 senators and 135 representatives make a legislature of unwieldy size. That is a matter of state policy. We certainly are not equipped—and it is not our function and task—to effectuate policy of that kind or to evaluate it once it has been determined by the State. Neither is it the function and task of the Federal District Court. Size is for the State to determine in the exercise of its wisdom and in the light of its awareness of the needs and desires of its people.
32
The orders of the District Court are vacated and the cases are remanded for further proceedings consistent with this opinion. The District Court is instructed to give this matter priority and to act promptly and forthwith so that the State's 1972 electoral process may get under way with assurance as soon as possible. It is already late in the day, but the maintenance of legislative districts long in effect provides a minimum of disruption even now.11
33
The judgment in these cases shall issue forthwith.
34
It is so ordered.
35
Orders vacated and case remanded with instructions.
36
Mr. Justice STEWART, dissenting.
37
It is undisputed here that the apportionment of the Minnesota State Legislature violated the Equal Protection Clause of the Fourteenth Amendment. Thus, it was incumbent upon the three-judge federal court to devise a constitutional reapportionment, unless and until the Minnesota Legislature and Governor could agree upon and enact a new and constitutional reapportionment of their own. The only question presented by these appeals is whether the three-judge court abused its equitable discretion by devising the reapportionment plan that it did—a plan that called for a reduction in the size of both houses of the state legislature.
38
There is no doubt that '(o)nce a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.' Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554. At the same time '(t)he remedial powers of an equity court . . . are not unlimited.' Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878, 29 L.Ed.2d 363. In the reapportionment context, it is the duty of a court seeking to remedy an unconstitutional apportionment to right the constitutional wrong while minimizing disturbance of legitimate state policies.
39
In these cases, the three-judge court appears conscientiously to have undertaken this task. It clearly recognized that the size of the houses of the Minnesota Legislature set by state statute was a state policy deserving respect. But it also recognized that there were several other legitimate state policies at stake—for one, the conformance of legislative district boundaries to political jurisdictional boundaries. The three-judge court also found that these policies were, unfortunately, in conflict. It stated:
40
'The larger the population of each Senate and House District, the more closely can the equal protection (one man-one vote) requirements be met and still give effect to the State policy of adhering to the boundaries of political subdivisions. Conversely, the smaller the population of each district, the greater the likelihood that the deviations will be higher than are acceptable or that artificial boundaries will result.'
41
Faced with this perceived conflict among legitimate state policies, the three-judge court weighed those policies and decided that preservation of political jurisdictional boundaries should take precedence over preservation of the present size of the senate and the house.1
42
Perhaps the three-judge court's assessment of the relative weights of what it saw as competing state policies was mistaken. Perhaps its accommodation of those policies was also mistaken. But those judgments by the three-judge court were based on long and careful study of the distribution of population in Minnesota and of the possible alternative apportionments of the legislature.
43
This Court chooses to act on these appeals summarily. Yet we do not have before us all the population statistics and jurisdictional and district maps that were before the three-judge court. We do not have the benefit of the reports of the Special Masters that were available to the three-judge court. We do not even have briefs on the merits of these cases. And, of course, we have not heard oral arguments. For these and other reasons we are simply not able at this point even to begin to evaluate the three-judge court's exercise of its remedial power in equity.
44
Surely, if state policies are in real conflict and if, as the three-judge court found, equal protection requirements cannot be met without sacrificing one of these policies, then the cases are very difficult. I certainly cannot say, on the basis of the information before us, that the three-judge court clearly overstepped its equitable discretion in its resolution of the problem. As the Court recognizes today, there is no rigid and absolute limit on a court's equitable discretion to order changes in the size of legislative bodies in order to remedy an unconstitutional apportionment. Every case is different, and these questions are inevitably questions of degree.
45
I have disagreed with the Court's Procrustean view of the Fourteenth Amendment's substantive requirement of 'one man, one vote.'2 But until and unless those established requirements are modified, the federal courts are often going to be faced with hard remedial problems such as those presented here. Difficult problems produce solutions that are difficult to review, even after full briefing and oral argument. I cannot believe that summary action here is either wise or appropriate, and I therefore respectfully dissent.
1
This was the ninth general reapportionment in Minnesota since the adoption of the State's Constitution in 1857. Initially there were 26 districts, 37 senators, and 80 representatives. Minn.Const.1857, Schedule § 12 (both versions). The succeeding plans, and the number of districts and legislators they specified, were
Districts Senators Representatives
Laws 1860, c. 73 21 21 42
Laws 1866, c. 4 22 22 47
Laws 1871, c. 20 41 41 106
Laws 1881, c. 128 47 47 103
Laws 1889, c. 2 54 54 114
Laws 1897, c. 120 63 63 119
Laws 1913, c. 91 67 67 130
Ex.Sess.Laws 1959, c. 45 67 67 135
By Laws 1917, c. 217, the number of representatives was increased by one (the 65th district), but there was no accompanying general reapportionment.
Throughout this entire period of more than a century, the Minnesota Constitution, Art. IV, § 23, has called for reapportionment at the first legislative session after each federal census. See also Magraw v. Donovan, 163 F.Supp. 184 (D.Minn.1958), and Honsey v. Donovan, 236 F.Supp. 8 (D.Minn.1964).
2
'2.021 Number of members. For each legislature, until a new apportionment shall have been made, the senate is composed of 67 members and the house of representatives is composed of 135 members.'
3
'2.031 Apportionment. Subdivision 1. The representatives in the senate and house of representatives are apportioned throughout the state in 67 legislative districts.'
4
Sections 2.041—2.711 were §§ 3—70, inclusive, of the 1966 act.
5
A legislative reapportionment act is subject to executive veto under Minn.Const., Art. IV, §§ 11 and 12, and Art. V, § 4. Duxbury v. Donovan, 272 Minn. 424, 138 N.W.2d 692 (1965).
6
Power is vested in the Governor to convene both houses of the legislature 'on extraordinary occasions.' Minn.Const., Art. V, § 4. This power is also recognized by Art. IV, § 1, of the Constitution.
7
Art. IV, § 23. 'The legislature shall have the power to provide by law for an enumeration of the inhabitants of this State, and also have the power at their first session after each enumeration of the inhabitants of this state made by the authority of the United States, to prescribe the bounds of congressional, senatorial and representative districts, and to apportion anew the senators and representatives among the several districts according to the provisions of section second of this article.'
8
In the companion case of Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 676, 84 S.Ct. 1429, 1440, 12 L.Ed.2d 595, the Court observed again that 'primary responsibility for legislative apportionment rests with the legislature itself.'
9
'645.20 Construction of severable provisions. Unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. If any provision of a law is found to be unconstiutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.'
The 1966 act did not state that its provisions shall not be severable. In contrast, Minnesota's immediately preceding apportionment act, Ex.Sess.Laws 1959, c. 45, did contain in its § 72 an express nonseverability provision; that provision was repealed by c. 1, § 71, of the 1966 act. The legislative intent in 1966 is thus apparent.
10
Sims v. Amos, 336 F.Supp. 924, 936, 937 (M.D.Ala.1972) (house reduced from 106 to 105 so as to have three times the number of senate seats); Schaefer v. Thomson, 251 F.Supp. 450 (D.Wyo.1965), aff'd, Harrison v. Schaefer, 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966) (senate increased from 25 to 30 on agreement of the parties and in accord with the state constitution); Klahr v. Goddard, 250 F.Supp. 537 (D.Ariz.1966) (senate reduced from 31 to 30 and house from 80 to 60. The preservation of county lines, as prescribed by the State's constitution. Art. 4, pt. 2, § 1, was an announced consideration in this substantial house reduction which no one opposed. No appeal was taken); Herweg v. Thirty Ninth Legislative Assembly, 246 F.Supp. 454 (D.Mont.1965) (senate reduced from 56 to 55 and house increased from 94 to 104. A constitutional provision, Art. VI, § 3, prohibiting the division of counties, was thereby observed); Paulson v. Meier, 246 F.Supp. 36 (D.N.D.1965) (senate reduced from 53 to 49 and house from 106 to 98. The State's constitution, Art. II, § 26, mandated a senate of 49 members).
In other cases federal courts have altered the size of existing legislatures by approximating the number of legislators specified in new plans that the courts were nullifying. Swann v. Adams, 263 F.Supp. 225 (S.D.Fla.1967); WMCA, Inc. v. Lomenzo, 238 F.Supp. 916 (S.D.N.Y.1965), aff'd, 382 U.S. 4, 86 S.Ct. 24, 15 L.Ed.2d 2 (1965). The state policy thus has been effectuated despite the invalidity of the legislature's proposed plan.
11
The 1972 general election in Minnesota will take place November 7. The primaries are scheduled for September 12. Candidates may file between July 5 and July 18. A legislative candidate must establish residence in his district by May 7. Minn.Stat. §§ 203.02, 202.02, 202.04; Minn.Const., Art. IV, § 25. Inasmuch as the Minnesota Legislature is nonpartisan, Minn.Stat. § 202.03, subd. 1, the earlier dates for political party precinct caucuses and party conventions have no relevance in these cases. If time presses too seriously, the District Court has the power appropriately to extend the time limitations imposed by state law. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971).
1
The court also was careful to recognize another state policy—that there should be an odd number of legislators in each house so as to minimize the risk of tie votes.
2
See, e.g., Lucas v. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 713, 744, 84 S.Ct. 1459, 1477, 12 L.Ed.2d 632; Swann v. Adams, 385 U.S. 440, 447, 87 S.Ct. 569, 573, 17 L.Ed.2d 501. See also Wells v. Rockefeller, 394 U.S. 542, 549, 89 S.Ct. 1234, 1239, 22 L.Ed.2d 535.
| 12
|
406 U.S. 250
92 S.Ct. 1551
32 L.Ed.2d 45
Charles O. DUKES, Petitioner,v.WARDEN, CONNECTICUT STATE PRISON.
No. 71—5172.
Argued March 21, 1972.
Decided May 15, 1972.
Rehearing Denied June 19, 1972.
See 407 U.S. 934, 92 S.Ct. 2464.
Syllabus
Petitioner's claim that his guilty plea was not voluntarily and intelligently made because of an alleged conflict of interest on the part of his counsel has no merit, and that alleged conflict of interest is therefore not a reason for vacating his plea. Pp. 251—257.
161 Conn. 337, 288 A.2d 58, affirmed.
James A. Wade, Hartford, Conn., for petitioner; and
John D. LaBelle, Manchester, Conn., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
On May 16, 1967, petitioner, on advice of counsel, pleaded guilty in the Superior Court of Hartford County, Connecticut, to charges of narcotics violation and larceny of goods. On June 16, 1967, before being sentenced, he informed the court that he had retained new counsel and desired to withdraw his plea and stand trial. The court refused to permit him to withdraw his plea and sentenced him to a term of five to 10 years on the narcotics charge and to a term of two years on the larceny charge. The Connecticut Supreme Court affirmed this conviction on his direct appeal challenging the voluntariness of his plea, State v. Dukes, 157 Conn. 498, 255 A.2d 614 (1969), and the United States District Court for the District of Connecticut denied his application for federal habeas corpus relief sought in Civil Action No. 13029. He then brought this state habeas corpus action in the Superior Court for Hartford County, and attacked the voluntariness of his plea under the Federal Constitution on a ground not raised either on his direct appeal or in his action for federal habeas corpus relief. He alleged that a conflict of interest arising from his lawyer's representation of two girls with whom petitioner had been charged in an unrelated false pretenses case was known to the judge who sentenced him and rendered his plea involuntary and unintelligent. After a full hearing, the Superior Court denied relief. The Supreme Court of Connecticut affirmed, 161 Conn. 337, 288 A.2d 58 (1971). The Supreme Court stated that, although the petition for state habeas relief alleged that the guilty plea was not voluntary and intelligent on several grounds, '(o)n appeal, however, (petitioner) has asserted in essence only that he was denied the effective assistance of counsel, which rendered his plea involuntary . . ..' 161 Conn., at 339, 288 A.2d at, 60. We granted certiorari. 404 U.S. 937, 92 S.Ct. 293, 30 L.Ed.2d 249 (1971).
2
The two girls were represented by Mr. Zaccagnino of the firm of Zaccagnino, Linardos, & Delaney in the false pretenses case, and petitioner by another lawyer, when petitioner retained the firm to defend him in the narcotics and larceny case. There were also charges pending against petitioner in New Haven and Fairfield counties. He also faced the possibility of prosecution as a second offender, having been convicted in state court in 1961 of breaking and entry and assault.
3
Petitioner, accompanied by Mr. Zaccagnino, appeared on May 9, 1967, to plead to the narcotics and larceny charges. The lawyer advised him to plead guilty if a plea bargain could be negotiated whereby the State's Attorney would consolidate all outstanding charges in and out of Hartford County and agree not to prosecute petitioner as a second offender, but to recommend a sentence of five to 10 years on the narcotics charge, two years on the larceny charge, and concurrent sentences on all the other charges. Under Conn.Gen. Stat.Rev. § 54—17a (1958) the New Haven County and Fairfield County charges would be transferred to Hartford County for disposition only if the State's Attorneys of the counties consented and petitioner pleaded guilty to the charges. When petitioner refused to accept this advice, Mr. Zaccagnino asked the court to be relieved as petitioner's counsel. The court denied the request but accepted petitioner's plea of not guilty and continued the trial to the next day so that petitioner might try to retain another lawyer. As petitioner went to the corridor outside the courtroom, however, Hartford police officers arrested him on still another charge. Petitioner attempted suicide at the police station to which he was taken and was hospitalized for several days. Accordingly the trial date was postponed to May 16.
4
Petitioner did not engage new counsel but appeared for trial on May 16 represented by Mr. Delaney, partner of Mr. Zaccagnino who was engaged in another court. Petitioner now showed interest in a plea bargain, and Mr. Delaney and the State's Attorney engaged in negotiations, which were interrupted from time to time while Mr. Delaney consulted with petitioner. A plea bargain on the terms Mr. Zaccagnino had urged petitioner on May 9 to accept was finally struck, and petitioner withdrew his notguilty plea and entered the guilty plea he now attacks. The State's Attorney had misgivings because of petitioner's expressed dissatisfaction with Mr. Zaccagnino the week before, and the following occurred:
5
'(State's Attorney): . . . The record also ought to appear that Mr. Delaney is here with him today and he is in the office of Mr. Zaccagnino. I think the Court might inquire with respect to the representation since there had been some indication that counsel had asked to withdraw the other day.
6
'The Court: Well now, Mr. Dukes, I want to be sure that everything is in order here. . . . Now I want, now Mr. Delaney is here, are you fully satisfied with the services he is rendering you, Mr. Dukes?
7
'The Accused: Yes, sir.
8
'The Court: You are. And now you know of course, Mr. Dukes, that—you know of course that the State of Connecticut has the burden of proving you guilty on the charge and you are free to go to trial but you still wish to change your plea, is that correct?
9
'The Accused: Yes, sir.
10
'The Court: And do you do this of your own free will, Mr. Dukes?
11
'The Accused: Yes, sir.
12
'The Court: And you know the probable consequences of it?
13
'The Accused: Yes, sir.
14
'The Court: Very well, and no one has induced you to do this, influenced you one way or the other? You are doing this of your own free will?
15
'The Accused: Yes.
16
'The Court: Very well then. We will accept the change of plea.'
17
The court set June 2, 1967, for sentencing petitioner. But the documents transferring the New Haven County and Fairfield County charges had not arrived, and the presentence report had not been completed, on that day, and the date was therefore continued to June 16, 1967. By coincidence, however, the judge's calendar for June 2 also listed the case of the two girls who, on Mr. Zaccagnino's advice, had pleaded guilty to the false pretenses charges and were to be sentenced. That proceeding did not involve petitioner because the disposition of the charges as to him was part of the plea bargain. In urging leniency for the two girls, Mr. Zaccagnino made statements putting the blame on petitioner for the girls' plight. These statements are the primary basis of petitioner's claim of divided loyalty on the part of Mr. Zaccagnino that he alleges rendered his guilty plea of May 16 involuntary and unintelligent. Mr. Zaccagnino said:
18
'(B)oth of them came under the influence of Charles Dukes. Now how they could get in a position to come under the influence of somebody like him, if Your Honor pleases, creates the problem here that I think is the cause of the whole situation.
19
'Both these girls left their homes, came under the influence of Dukes and got involved. I think, Your Honor, though, that the one thing . . . that should stand in their good stead, as a result of their willingness to cooperate with the State Police they capitulated Dukes into making a plea. I think, Your Honor, since I was on both sides of the case, having been on the other side on the other case I can tell Your Honor that it was these girls that because of their refusal . . . to cooperate with Dukes and to testify against him that capitulated him into taking a plea on which he will shortly be removed from society . . ..'
20
Mr. Zaccagnino appeared on June 16 to represent petitioner in the proceedings to complete the plea bargain. He was surprised to be told by petitioner that petitioner had obtained new counsel and intended to withdraw his guilty plea and stand trial. It appears from petitioner's cross-examination at the state habeas hearing that he had learned on June 2 of Mr. Zaccagnino's statements about him when the girls were sentenced.1 Yet he did not tell Mr. Zaccagnino that this was why he was changing lawyers, nor did he tell the court that this was why he wanted to withdraw his plea. When pressed by the court to give a reason, he answered, 'At the time I pleaded, I just came out of the hospital, I think it was a day, and I was unconscious for three days, and I didn't realize at the time actually what I was pleading to.'2 His explanation for wanting another lawyer was that he thought an out-of-town lawyer would give him better service: 'I would rather have an attorney out of town for certain reasons of the case.' The court refused to permit petitioner to withdraw the plea and heard counsel on the question of the sentence to be imposed. The State's attorney, despite the collapse of the plea bargain, recommended, and the court imposed, a first offender's sentence of five to 10 years on the narcotics count and two years on the larceny count; that is the precise sentence the State's Attorney had agreed to recommend as part of the plea bargain. Mr. Zaccagnino, however, was concerned that petitioner's unwillingness to go through with the plea bargain left petitioner vulnerable to the prosecution on the outstanding charges in the various counties: '(I)t was a matter that Your Honor would normally . . ., in a situation like this, enter concurrent sentences, if, in fact, it was so recommended by the State's Attorney; but since (petitioner) doesn't want to plea to these other matters, I would like to make that note for the record, because I feel at some later date he may have to come back to this court and see Your Honor or see another judge on these other matters now pending before it.'3
21
On this state of facts, the Connecticut Supreme Court concluded that petitioner had not sustained his claim that a conflict of interest on the part of Mr. Zaccagnino rendered his plea involuntary and unintelligent. The Court said, 161 Conn., at 344—345, 288 A.2d, at 62:
22
'There is nothing in the record before us which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent. (Petitioner) does not claim, and it is nowhere indicated in the finding, nor could it be inferred from the finding, that either Attorney Zaccagnino or Attorney Delaney induced (petitioner) to plead guilty in furtherance of a plan to obtain more favorable consideration from the court for other clients. . . . Neither does the finding in any way disclose, nor is it claimed, that (petitioner) received misleading advice from Attorney Zaccagnino or Attorney Delaney which led him to plead guilty. . . . Moreover, the trial court specifically found that when (petitioner) engaged Zaccagnino as his counsel, he knew that Zaccagnino was representing two defendants in the unrelated case in which he was a codefendant, that he never complained to the court that he was not satisfied with Attorney Zaccagnino because of this dual representation, that he was not represented at the entry of his plea by Attorney Zaccagnino, that he was represented by Attorney Delaney at the entry of his plea, that he had a lengthy conversation with Attorney Delaney prior to entering his plea which he recalled completely, and that on specific inquiry by the court before he pleaded guilty, he told the court that he was satisfied with the representation by Attorney Delaney. The court did not err in concluding that (petitioner's) plea was not rendered involuntary and unintelligent by the alleged conflict of interest.'
23
We fully agree with this reasoning and conclusion of the Connecticut Supreme Court. Since there is thus no merit in petitioner's sole contention in this proceeding—that Mr. Zaccagnino's alleged conflict of interest affected his plea—that conflict of interest is not 'a reason for vacating his plea.' Santobello v. New York, 404 U.S. 257, 267, 92 S.Ct. 495, 501, 30 L.Ed.2d 427 (1971) (Marshall, J., concurring and dissenting).
24
Affirmed.
25
Mr. Justice STEWART, concurring.
26
In Santobello v. New York, 404 U.S. 257, 267, 92 S.Ct. 495, 501, 30 L.Ed.2d 427, I joined Mr. Justice Marshall's separate opinion because I agree 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.' Id., at 267—268, 92 S.Ct., at 501—502.
27
If a defendant moves to withdraw a guilty plea before judgment and if he states a reason for doing so, I think that he need not shoulder a further burden of proving the 'merit' of his reason at that time. Before judgment, the courts should show solicitude for a defendant who wishes to undo a waiver of all the constitutional rights that surround the right to trial—perhaps the most devastating waiver possible under our Constitution. Any requirement that a defendant prove the 'merit' of his reason for undoing this waiver would confuse the obvious difference between the withdrawal of a guilty plea before the government has relied on the plea to its disadvantage, and a later challenge to such a plea, on appeal or collaterally, when the judgment is final and the government clearly has relied on the plea.
28
But I do not believe that these problems are presented in this case. Certiorari was granted to consider the petitioner's contention that his plea was made involuntarily and unintelligently because of his lawyer's alleged conflict of interest. This conflict-of-interest claim was not raised until a habeas corpus proceeding, years after judgment had been pronounced. The petitioner does not now challenge the refusal of the trial court to permit him to withdraw his guilty plea before judgment. Rather, he challenges a later refusal by the trial court to vacate his plea on a motion made well after judgment and sentence, presenting a claim not previously raised.
29
Thus, I agree with the Court that the petitioner's claim should be evaluated under the standards governing an attack on a guilty plea made after judgment, not under the far different standards governing a motion to withdraw a plea made before judgment has been pronounced. I also agree with the Court that, evaluated under the former standards, the petitioner's claim of involuntariness attributable to his counsel's conflict of interest lacks merit.
30
It is on this understanding that I join the opinion and judgment of the Court.
31
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS joins, dissenting.
32
I dissent. Before sentencing, petitioner stated that he was innocent, and sought to vacate his guilty plea so that he could proceed to trial with new counsel in whom he had confidence. He claims, with ample support in the record, that he was advised to plead guilty—and indeed pressured to do so—by lawyers who did not devotedly represent his interests. I agree with petitioner that he shold have been permitted to withdraw his guilty plea.
33
* Petitioner, Charles Dukes, was arrested on March 14, 1967, and charged by Hartford, Connecticut, authorities with a violation of the Uniform State Narcotic Drug Act and with receiving stolen goods. From the beginning, there was a sharp conflict between petitioner and his lawyers over whether he should plead guilty. Two partners from the law firm that petitioner retained, each of whom handled the case on different occasions, tried to convince petitioner to plead guilty to both charges. They argued that because there were several other outstanding charges against him, petitioner's best hope was to secure an agreement to consolidate all the charges for disposition together, so that he could receive reasonable concurrent sentences. But petitioner maintained that he was innocent and would not agree to plead guilty. App. 39, 112, 119—120.
34
Although petitioner had not yet pleaded to either of the charges, the narcotics case was called for trial on May 9, 1967. The conflict between lawyer and client surfaced dramatically when petitioner's attorney immediately sought to withdraw from the case 'because there happens to be a slight conflict between my client and myself, and it's not financial, Your Honor, it is one basically that goes to the heart of my representing him . ...' Noting his view that an advocate 'must believe in the cause' of his client, the lawyer went on to reiterate that the disagreement might 'prejudice the defendant.' He reported that petitioner 'either wants to represent himself or get counsel outside of the county that he can have more confidence in for some reason or other.' App. 9, 10, 17. The majority concedes that this announced 'conflict' was over the lawyer's insistence on pleading the client guilty. Then petitioner himself addressed the court to explain that 'with local counsel I am afraid, well, I know there is going to be resentment. I have reasons to believe that through conversations, and I'd like the opportunity to hire an attorney from another state that don't (sic) have no knowledge of the case . . . Otherwise . .. I intend to try my own case.' App. 18. Petitioner's lawyer spoke again, concluding with the judgment that he, for one, could not 'do this man justice in this particular issue.' App. 19—20. But the court denied counsel's motion to withdraw 'at this time.' Petitioner then pleaded not guilty, and trial was scheduled for the following morning.
35
Proceedings did not actually resume until a week later, on May 16.1 After conversations in the courthouse that morning, App. 131—132, Dukes agreed to follow the advice of his lawyers, who admittedly had been applying 'pressure' on him, App. 112, 140: he pled guilty to both the narcotics charge and the larceny-receiving charge. Prior to entry of the pleas, the judge asked petitioner whether he was 'fully satisfied with the services (your lawyer) is rendering you . . ..' App. 24, 41. Petitioner said that he was. But this satisfaction, such as it was, was short lived.
36
On June 16, 1967, petitioner appeared for sentencing. His lawyer immediately informed the court that petitioner wished to withdraw his plea and had secured other counsel, from New Haven. Noting the lateness of these developments, petitioner's lawyer conceded that 'I had a suspicion . . . that this (might) take place because of the problem when he entered the plea. I was maybe a little forceful.' And although he disputed petitioner's claim that his present lawyers did not 'properly represent him,' counsel once again informed the court that petitioner 'doesn't have any confidence in me.' App. 28, 31. Petitioner himself told the court about his difficulty in getting a lawyer who would, he thought, do him justice. He also explained that when he pleaded guilty he was still recuperating from his recent suicide attempt, see n. 1, supra, and 'didn't realize at the time actually what I was pleading to.' App. 32. See n. 8, infra. Thus, contrary to the majority's description, petitioner, through his lawyer and in his own voice, gave several specific reasons for wanting to withdraw his plea.
37
Following the prosecutor's statement opposing petitioner's request, and without any further inquiry, the judge refused to let petitioner withdraw the guilty plea. When the judge asked Dukes what he wished to say before being sentenced, Dukes replied: 'I am rather flabbergasted really, because I didn't expect this this morning. It just puzzles me. I am not guilty of the charges. I am not guilty.' App. 33.2 Petitioner was sentenced to five to 10 years on the narcotics count and two years on the receiving-stolen-property count, as the prosecutor had recommended. The alleged reason for the plea—to gain consolidation of all outstanding charges against petitioner, and thereby secure concurrent sentences on the pending charges—was never fulfilled. On the day of sentencing, petitioner refused to plead guilty to any charges, and consolidation was impossible. App. 30—33, 157.
38
As just noted, the sentencing judge did not inquire into the facts surrounding either petitioner's legal representation or his plea. But these facts were developed at a state habeas corpus hearing,3 and petitioner's lack of confidence in his lawyer finds striking support in the hearing record.
39
That record details the sharp conflict between lawyer and client over the decision to plead guilty. But, more significantly, it reveals that the lawyer who advised petitioner to plead guilty had a gross conflict of interest. Ancillary to the instant proceedings, petitioner's lawyer was representing two young women charged with conspiracy to obtain money by false pretenses. Petitioner was a codefendant in this second case, and was represented by another attorney. This second prosecution was unrelated to the matter now before our Court. The two young women pleaded guilty to the false pretenses charges on April 18, 1967, and on June 2, 1967, appeared for sentencing. The sentencing judge was the same judge who was to sentence petitioner two weeks later.
40
In his remarks to the judge on behalf of the two women, the lawyer told the court that these women had come 'under the influence of Charles Dukes,' who had led them astray. He pointed out that their cooperation with the state police had 'led to the downfall of Dukes' and 'capitulated (Dukes) into taking a plea (of guilty) on which he will shortly be removed from society.'4 He placed on Dukes the blame for the offenses committed by the women, saying that he was 'the most culpable since he had all the instruments with which to dupe the girls.' App. 43—44, 68—71.5 The two women were then sentenced to short prison terms.
41
In short, to secure lighter sentences for one set of clients, the lawyer denigrated another of his clients who was to appear before the same judge for sentencing in two weeks. Even absent any showing that the lawyer's 'pressure' on petitioner to plead guilty was improperly motivated, the gross conflict of interest obvious from counsel's remarks lends strong support to petitioner's presentence claim that he was not receiving devoted representation from his attorney.
II
42
I would permit petitioner to withdraw his guilty plea. As Justice Douglas has recently reminded us,
43
'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 of proof beyond all reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.' Santobello v. New York, 404 .u.S. 257, 264, 92 S.Ct. 495, 500, 30 L.Ed.2d 427 (1971) (concurring opinion).
44
See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). The precondition for all these rights is the constitutional '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). A defendant may waive his constitutional rights through a guilty plea, but such waivers are not quickly presumed, and, in fact, are viewed with the 'utmost solicitude.' Boykin v. Alabama, supra, 395 U.S., at 243, 89 S.Ct., at 1712. Our decisions, constitutional and statutory, have all recognized that, consistent with the requirements of law enforcement, adequate safeguards can and should exist to give meaning to the right not to plead guilty. E.g., Santobello v. New York, supra; Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, supra; McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941); Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927).
45
I would not view a guilty plea as an irrevocable waiver of a defendant's federal constitutional right to a full trial, even where the plea is, strictly speaking, 'voluntarily' entered. I adhere to the view 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.' Santobello v. New York, supra, 404 U.S., at 267—268, 92 S.Ct., at 501 (opinion of Marshall, J., concurring and dissenting, with whom Brennan, J., and Stewart, J., joined).
46
Such a rule is a sensible part of the constitutional law of waiver. We view guilty pleas with the 'utmost solicitude' because they involve the simultaneous waiver of so many constitutional rights; our system of law favors the assertion of constitutional rights, not their waiver. It is inconsistent with that basic viewpoint for guilty pleas to be irrevocable even before sentencing. Usually because of new information or new insights, defendants may have 'sober second thoughts' about their pleas. Where the sentencing itself is postponed beyond the day of pleading, the door should not be slammed shut to formal reconsideration of the decision to plead guilty. A guilty plea is not a trap. Ordinarily, a defendant who changes his mind for sufficient reason and in timely fashion should not be deemed to have waived his right to a full trial. In short, absent the government's showing specific and substantial harm, I would generally permit withdrawal of the plea before sentencing.
47
Such a rule would not compromise the government's interests. '(I)n 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.' Santobello v. New York, supra, at 268, 92 S.Ct., at 502 (opinion of Marshall, J., concurring and dissenting). The defendant seeks only the basic opportunity to contest the original charges against him. A full trial could be promptly held, and, since the period between plea and sentencing is usually short, there will have been no substantial delay. Where the government can show specific and substantial harm, the defendant may be held to his plea. But, ordinarily, the government can claim only disappointed expectations. In such a case, the balance of interests must favor vindication of the individual's most basic constitutional rights.
48
In the instant case, petitioner tendered a specific reason for vacating his guilty plea. Protesting his innocence, he claimed that he was not getting satisfactory legal representation and had retained new counsel. The record as already made by June 16, 1967, showed an admitted and longstanding conflict between lawyer and client over the course of the litigation. Properly advised by loyal counsel, the defendant himself, of course, must have the ultimate decision about pleading guilty. The lawyer admitted that he had been 'a little forceful' in urging petitioner to plead guilty. Given all these things, petitioner, in my view, had ample justification for rescinding the plea before sentencing.
49
But we need not be limited to the bare record already made by June 16, 1967. The trial judge then did not even minimally inquire into the facts behind petitioner's rather inarticulate claims. He should have done so, rather than quickly and simply denying the motion to vacate the plea. It was not until the state habeas action that the facts surrounding petitioner's representation were developed. As this subsequent record shows, petitioner's fears that he was not getting devoted representation had strong objective basis. (It is of course irrelevant that the evidence of a clear conflict of interest may have exceeded even petitioner's earlier fears of inadequate representation.6) As the court below concluded,
50
'Obviously, the derogatory remarks by (the attorney) on behalf of his clients in one case about a client whom he is representing in another case were highly improper. 'When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and his champion." 161 Conn. 337, 345—346, 288 A.2d 58, 62—63 (1971).
51
This finding of 'improper' conduct gives graphic support to petitioner's presentence claim that his lawyers were not properly representing his interests, the main reason petitioner gave for wanting to withdraw his plea.
52
There is no need to decide whether this conflict of interest deprived petitioner of his Fourteenth Amendment right to counsel, or functioned to make his guilty plea 'involuntary.' It is sufficient to conclude here that, before sentencing, petitioner's plausible dissatisfaction with counsel constituted a sufficient reason for withdrawing his guilty plea.7 The majority appears to equate the questions, suggesting by its analysis that if the plea was neither involuntary nor secured and 'affected' by unconstitutionally ineffective counsel, it may not be vacated. But this is to equate the situations before and after sentencing. I think we are required to apply a much less rigorous standard before sentencing. The point in this case is that (1) petitioner sought to vacate his plea before sentencing because he questioned the representation he was receiving, and that (2) petitioner's conclusions, on this record, were plausible, to say the least. This, it seems to me, is enough to permit withdrawal of the plea before sentencing. The majority totally ignores the fact that the record demonstrates a long-standing conflict between lawyer and client, that the lawyer himself admitted being forceful in securing the plea, and that the lawyer engaged in what the court below found to be 'highly improper' conduct in conflict with the loyalty a client rightfully expects from his lawyer. As if he did not understand whose choice it is to go to trial, petitioner's own lawyer gave this extraordinary account of his relationship with petitioner, who throughout protested his innocence:
53
'(Dukes) claimed consistently to me that he didn't make any sale of narcotics, and so I told him what I thought about the case, after reviewing the evidence. So from the beginning, Dukes wanted a trial, and I probably thought I might have been too forceful, but it sometimes happens that your judgment, you're trying to impose upon a client, knowing that it's in his best interest, at least in your opinion it is, and I told Charlie it would be winning the battle and clearing the way, because there was no way, with these five felony warrants pending against him, that I was able to win them all, because I said no matter what you think about this case, it's my opinion that it's your best interest to plead guilty, and at no time did I have a conversation whether he was guilty or not. Mr. Delaney handled that at the time of the change of plea, but I know when I talked to him, he maintained he was innocent. At some later date he changed his plea, so I assume there was some conversation about that, and I don't know what took place in the meantime, but basically, there was the reason that I made that statement to the Court, because he was insistent that he wanted to try the case, and I kept trying to get the matter put down, because I didn't think it was in his best interest to try it.' App. 120.
54
Of course, on my view, it is of no real significance that on the day of the guilty plea petitioner expressed satisfaction with counsel. Where the loyalties of counsel are questioned even after the plea is entered, a defendant undercuts the premise of his prior guilty plea and the waiver of rights that plea entailed. Surely the same is true where, as here, the defendant specifically asserts his innocence after pleading.8
55
When a defendant gives a reason for withdrawing his plea before sentencing, and the reason is a good one, he should be allowed to withdraw the plea and regain his right to a trial. Here, petitioner's reason was conflict of interest of his lawyer. A part of this conflict was his lawyer's insistence that he plead guilty and petitioner's insistence that he was innocent. This is certainly a conflict. No wonder the last words of petitioner before sentencing were:
56
'I am rather flabbergasted really, because I didn't expect this this morning. It just puzzles me. I am not guilty of the charges. I am not guilty.' The State in our case has never claimed that it would suffer any harm beyond disappointed expectations about the plea itself.9 Where the defendant has presented a plausible reason for withdrawing his plea, this mere disappointment cannot bar him from regaining his constitutional rights before sentencing.
57
I would remand the case with instructions that the plea be vacated and petitioner given an opportunity to replead to the charges in the information.
1
'Q. . . . On June 2nd, weren't you in Court with Mr. Zaccagnino when your case had to be postponed . . .?
'A. I'm trying to think of the day that the girls got sentenced, because I was not in Court the day they got sentenced, because I know that I wasn't in Court that specific day, because that's when I was told what was said about me, and so forth and so on, in Court, so I'm quite sure I wasn't in Court that day.' App. to Petitioner's Brief, 162—163 (emphasis supplied).
2
The state habeas court took evidence on the question whether his plea was involuntary as the product of the after-effects of his suicide attempt and found against petitioner. Petitioner has not sought review on this question. The only issue before us is his claim that the alleged conflict of interest rendered the plea involuntary and unintelligent.
3
As events proved, all other charges pending in the various counties were dismissed, although after the decision of the Connecticut Supreme Court affirming petitioner's conviction on direct appeal. Petitioner thus received the benefits of the plea bargain without paying the cost of pleading guilty to the other offenses.
1
The record discloses that on May 10 the case was continued until May 16 for trial. On May 9, as petitioner left the courtroom, he was arrested by Hartford police on other charges. Petitioner attempted suicide while in police custody, and was hospitalized for several days.
2
The New Haven attorney was not in the courtroom, although he had telephoned the prosecutor that morning from out of town. Petitioner apparently expected his new lawyer to be present in the courtroom and to 'take over' after the guilty plea was withdrawn. App. 150—151. That lawyer did represent petitioner on his direct appeal to the Supreme Court of Connecticut. 157 Conn. 498, 255 A.2d 614 (1969).
3
I express no view on the subject of whether further evidentiary development might be appropriate were petitioner to pursue this case on federal habeas corpus. See nn. 4 and 7, infra. Given the way I view this case, enough is present in the record to vindicate petitioner's position.
4
It is not clear from the lawyer's words whether he meant that Dukes had been 'capitulated' into pleading guilty to the offense allegedly committed with the two women. At the habeas hearing, the lawyer testified that he did not remember Dukes' ever taking a plea in that case. App. 122. There is a strong basis for thinking that the lawyer was in fact referring to the guilty plea entered in our case. At the women's sentencing, he specifically stated that 'since I was on both sides of the case, having been on the other side on the other case I can tell Your Honor that it was these girls that .. . capitulated (Dukes) into taking a plea . . ..' App. 68 (emphasis added). However, the court below found that all the 'remarks by (the attorney) concerning the plaintiff had only to do with the relationship of the plaintiff and the two girls in that particular case where all three of them were codefendants, and in no way referred to the present case for which he was later to be sentenced.' 161 Conn. 337, 341, 288 A.2d 58, 60. Nevertheless, certified court records sent to our Court make clear that Dukes never pleaded guilty to the offenses involving the women, and those charges were nolled in February 1970. A direct connection between the false pretenses case and our case is apparently conceded by today's majority when it notes that the plea bargain in our case included a deal in which petitioner would plead guilty to the false pretenses charge. See ante, at 253—254. Obviously, if counsel was in fact reporting the women's role in 'capitulating' Dukes to plead guilty in our case, his own conflict of interest would be even more pernicious than that now clear from the record.
5
the court below observed that these 'improper remarks made by counsel on June 2, 1967, were a repetition of what had already been told to the court in substance by the State's attorney.' 161 Conn., at 347, 288 A.2d, at 63. (The court made a similar observation about the presentence report, which is not in our record.) This, of course, is irrelevant to the question of whether petitioner was represented by an attorney loyal to his interests. But, in any event, it is incorrect to say that counsel's remarks merely repeated the statements of the prosecutor. The prosecutor simply reported that the two women 'became associated with one Charles Dukes . . . Charles Dukes had paraphernalia with respect to checks and money orders and they agreed to cash these checks with false credentials furnished by him.' App. 65. This is a far cry from the vivid and pointedly argumentative remarks of the women's (and petitioner's) lawyer.
6
The majority suggests that on June 16 petitioner knew about his lawyer's remarks at the women's sentencing, but didn't tell the court. Ante, at 254—455. The majority gives us no clue why petitioner would possibly want to withhold this information, if he had it. Rather, its factual conclusion rests on a single phrase in petitioner's habeas corpus testimony, and burdens this rather inarticulate petitioner with the linguistic precision of Justices of this Court. Read in context and with what I think is more common sense, petitioner's awkward phrasing clearly refers to the day 'when' the lawyer's remarks were made, not when petitioner was subsequently 'told' about them. I think it apparent that when petitioner sought to vacate his plea on June 16, he did not know about his lawyer's particular act of betrayal on June 2. What is clear, however, is that the judge who sentenced Dukes was fully aware of the lawyer's remarks, having heard them two weeks earlier before sentencing the women.
7
The majority intimates that we are restricted to deciding this case on a 'voluntariness' theory. It is true that, since precedent suggested that petitioner's only possible line of constitutional attack was to challenge the 'voluntariness' of his plea, his papers have focused on this approach, although not exclusively. See Brief for Petitioner 16, 19, 22. But we are not restricted to the precise formulation petitioner has favored. At all relevant times in this action, petitioner claimed that he should have been permitted to withdraw his guilty plea before sentencing because his lawyer was not rendering satisfactory representation. Ibid. This is the claim, raised here and below, which I would reach and decide.
8
Petitioner also claimed that on the day of the plea he was in a weakened physical state because of his recent hospitalization and in a confused state of mind. This claim was explored at the state habeas hearing, where petitioner also testified that when he pleaded guilty he thought that the plea was merely 'temporary.' App. 149—150, 154. Although the habeas court found that petitioner's plea was 'voluntarily and intelligently made,' App. 46, petitioner had clearly gone through a trying week before the plea. See, n. 1, supra. In my view, the uncontradicted facts about his recent hospitalization, App. 40, would themselves entitle petitioner to a 'sober second thought,' and to withdraw his plea before sentencing.
9
Ours is not a case in which, prior to the defendant's motion to vacate his plea, the government had performed its part of a plea bargain and could not be restored to the status quo ante. Since petitioner had pleaded guilty to the original charges filed against him, no counts had been irrevocably dismissed prior to petitioner's motion to vacate. When, on the day of sentencing, petitioner refused to plead guilty to pending charges in other cases, be could not receive the benefits of an agreement concerning those pending charges; but the government was not thereby hurt. See supra, at 262. Obviously, where the government has simply agreed to recommend a specific sentence, withdrawal of the plea before sentencing would not compromise the government's position.
| 01
|
406 U.S. 337
92 S.Ct. 1598
32 L.Ed.2d 107
Harold Engene HUFFMAN, Petitioner,v.Faye I. BOERSEN.
No. 71—5097.
Argued April 19, 1972.
Decided May 15, 1972.
Leo Eisenstatt, Omaha, Neb., for petitioner.
Vincent L. Dowding, Grand Island, Neb., for respondent.
PER CURIAM.
1
We granted certiorari to review the constitutionality of Neb.Rev.Stat. § 25—1914 (1964)1 under which the Nebraska Supreme Court dismissed this indigent petitioner's appeal for his failure to deposit the $75 cash or bond security for costs required of appellants by the statute. 404 U.S. 990, 92 S.Ct. 540, 30 L.Ed.2d 541 (1971). The judgment appealed from annulled petitioner's marriage to respondent and dismissed his counter suit claiming paternity and custody of a child born to respondent. After our grant of certiorari, Nebraska enacted Legislative Bill 1120 providing, among other things, that the Nebraska courts 'shall authorize . . . (an) appeal . . . without prepayment of . . . security, by a person who makes an affidavit that he is unable to . . . give security . . .,' except that '(a)n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.' Counsel for both parties were of the opinion on oral argument here that this new statute is applicable to the instant case. Counsel for respondent also conceded that petitioner's appeal on the paternity issue has merit.2 Accordingly, the judgment is vacated and the cause remanded to the Nebraska Supreme Court for reconsideration in light of the supervening statute.
2
It is so ordered.
3
Judgment vacated and cause remanded.
4
Mr. Justice DOUGLAS, concurring.
5
While I agree to either reversing the judgment below or vacating and remanding, I do so on somewhat different grounds.
6
This case is clearly controlled by Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113. It involves, not a divorce, but an annulment and a claim concerning the paternity and custody of a child. The principles announced in Boddie are therefore clearly applicable no matter how closely Boddie is confined.1
7
What the Supreme Court of Nebraska may do about the statute that has recently been enacted is its business and not ours. The parties before us cannot by their agreement make that statute applicable. Only the Supreme Court of Nebraska can do so, and we cannot direct that court to reconsider this case in light of the supervening statute.2 The Supreme Court of Nebraska is sovereign in its own right in connection with local law matters. Boddie contains the guiding federal principle and that principle alone should control the disposition that we make of the case.3
1
'On appeal in any case taken from the district court to the Supreme Court the appellant . . . shall, within one month next after the rendition of the judgment or decree . . . sought to be reversed, vacated or modified, . . . file in the district court a bond or undertaking in the sum of seventy-five dollars to be approved by the clerk of the district court, conditioned that the appellant shall pay all costs adjudged against him in the Supreme Court; or, in lieu thereof, shall make a cash deposit with said clerk of at least seventy-five dollars for the same purpose . . ..'
2
'Q. You told us today that you concede that the determination of the paternity question was insufficient, invalid I think is the word you used.
'Mr. Dowding. Yes, I'm willing to agree that (petitioner) did not have his day in court on the paternity issue.
'Q. And we could say so on a remand.
'Mr. Dowding. Yes. So stipulate.' Tr. of Oral Arg. 40.
1
I share the view of Justice Black, however, that:
'(T)he 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. . . .
'(T)he crucial foundation on which Boddie rests also forbids denial of an indigent's right of appeal in civil cases merely because he is too poor to pay appeal costs. Once the right to unhampered access to the judicial process has been established, that right is diluted unless the indigent litigant has an opportunity to assert and obtain review of the errors committed at trial.' Meltzer v. G. Buck LeCraw & Co., 402 U.S. 954, 955—956, 958, 91 S.Ct. 1624, 1625, 1626, 29 L.Ed.2d 124 (opinion of Black, J.).
2
Some States do have procedures by which federal appellate courts may certify questions of law to the state supreme court. Florida is one. See Diffenderfer v. Central Baptist Church, 404 U.S. 412, 415, 92 S.Ct. 574, 576, 30 L.Ed.2d 567 (Douglas, J., dissenting). Nebraska has no such procedure.
3
It is possible that the Nebraska Supreme Court will have no opportunity, despite the remand, to rule on the applicability of the new statute to petitioner. Legislative Bill 1120 provides that '(a)n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.' In the federal system, 'good faith' has 'been defined as a requirement that an appeal present a nonfrivolous question for review.' Cruz v. Hauck, 404 U.S. 59, 62, 92 S.Ct. 313, 315, 30 L.Ed.2d 217 (Douglas, J., concurring). Here, respondent urges strenuously that the annulment issue is indeed frivolous. While counsel is willing to stipulate that there is merit to the paternity issue, the effect of such a stipulation on the views of the trial judge, who is on record as believing petitioner's assertions to be 'wholly without merit,' App. 49, is highly speculative.
Should petitioner's in forma pauperis appeal be disallowed because of the trial court's certification of the appeal as frivolous, I would hold that petitioner had been denied the equal protection of the laws. Cruz v. Hauck, supra.
| 12
|
406 U.S. 340
92 S.Ct. 1550
32 L.Ed.2d 110
ATLANTIC COAST LINE RAILROAD COMPANY, Petitioner,v.ERIE LACKAWANNA RAILROAD COMPANY et al.
No. 71—107.
Argued April 17 and 18, 1972.
Decided May 15, 1972.
Devereux Milburn, New York City, for petitioner.
Barrett Prettyman, Jr., Washington, D.C., for respondents.
PER CURIAM.
1
We granted certiorari to review the judgment of the Court of Appeals for the Second Circuit, 442 F.2d 694 (1971), affirming the judgment of the District Court for the Southern District of New York, 315 F.Supp. 357 (1970). 404 U.S. 909, 92 S.Ct. 226, 30 L.Ed.2d 181 (1971). We agree that in this noncollision admiralty case the District Court properly dismissed petitioner's third-party complaint for contribution against respondent Erie on the authority of Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952). The judgment of the Court of Appeals is therefore affirmed.
2
Affirmed.
3
Mr. Justice POWELL took no part in the consideration or decision of this case.
| 78
|
406 U.S. 311
92 S.Ct. 1593
32 L.Ed.2d 87
UNITED STATES, Petitioner,v.Loarn Anthony BISWELL.
No. 71-81.
Argued March 28, 1972.
Decided May 15, 1972.
Syllabus
Warrantless search of locked storeroom during business hours as part of inspection procedure authorized by § 923(g) of the Gun Control Act of 1968, which resulted in the seizure of unlicensed firearms from a dealer federally licensed to deal in sporting weapons held not violative of Fourth Amendment. Pp. 311—317.
442 F.2d 1189, reversed and remanded.
A. Kent Greenawalt for petitioner.
Warren F. Reynolds, Hobbs, N.M., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Gun Control Act of 1968, 82 Stat. 1213, 18 U.S.C. § 921 et seq., authorizes official entry during business hours into 'the premises (including places of storage) of any firearms or ammunition . . . dealer . . . for the purpose of inspecting or examining (1) any records or documents required to be kept . . . and (2) any firearms or ammunition kept or stored by such . . . dealer . . . at such premises.'1 18 U.S.C. § 923(g). Respondent, a pawn shop operator who was federally licensed to deal in sporting weapons, was visited one afternoon by a city policeman and a Federal Treasury agent who identified himself, inspected respondent's books, and requested entry into a locked gun storeroom. Respondent asked whether the agent had a search warrant, and the investigator told him that he did not, but that § 923(g) authorized such inspections. Respondent was given a copy of the section to read and he replied, 'Well, that's what it says so I guess it's okay.' Respondent unlocked the storeroom, and the agent found and seized two sawed-off rifles which respondent was not licensed to possess. He was indicted and convicted for dealing in firearms without having paid the required special occupational tax.2 The Court of Appeals reversed, however, holding that § 923(g) was unconstitutional under the Fourth Amendment because it authorized warrantless searches of business premises and that respondent's ostensible consent to the search was invalid under Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The Court of Appeals concluded that the sawed-off rifles, having been illegally seized, were inadmissible in evidence. 442 F.2d 1189 (CA10 1971). We granted certiorari, 404 U.S. 983, 92 S.Ct. 445, 30 L.Ed.2d 366 (1971), and now reverse the judgment of the Court of Appeals.
2
As the Court of Appeals correctly recognized, we had no occasion in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), to consider the reach of the Fourth Amendment with respect to various federal regulatory statutes. In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), we dealt with the statutory authorization for warrantless inspections of federally licensed dealers in alcoholic beverages. There, federal inspectors, without a warrant and without the owner's permission, had forcibly entered a locked storeroom and seized illegal liquor. Emphasizing the historically broad authority of the Government to regulate the liquor industry and the approval of similar inspection laws of this kind in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886),3 we concluded that Congress had ample power 'to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand.' 397 U.S., at 76, 90 S.Ct., at 777. We found, however, that Congress had not expressly provided for forcible entry in the absence of a warrant and had instead given Government agents a remedy by making it a criminal offense to refuse admission to the inspectors under 26 U.S.C. § 7342.
3
Here, the search was not accompanied by any unauthorized force, and if the target of the inspection had been a federally licensed liquor dealer, it is clear under Colonnade that the Fourth Amendment would not bar a seizure of illicit liquor. When the officers asked to inspect respondent's locked storeroom, they were merely asserting their statutory right, and respondent was on notice as to their identity and the legal basis for their action. Respondent's submission to lawful authority and his decision to step aside and permit the inspection rather than face a criminal prosecution4 is analogous to a householder's acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the lawfulness of the search depend on consent; in both, there is lawful authority independent of the will of the householder who might, other things being equal, prefer no search at all. In this context, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), is inapposite, since there the police relied on a warrant that was never shown to be valid; because their demand for entry was not pursuant to lawful authority, the acquiscence of the householder was held an involuntary consent. In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute.
4
We think a like result is required in the present case, which involves a similar inspection system aimed at federally licensed dealers in firearms. Federal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry, but close scrutiny of this traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders. See Congressional Findings and Declaration, Note preceding 18 U.S.C. § 922. Large interests are at stake, and inspection is a crucial part of the regulatory scheme, since it assures that weapons are distributed through regular channels and in a traceable manner and makes possible the prevention of sales to undesirable customers and the detection of the origin of particular firearms.
5
It is also apparent that if the law is to be properly enforced and inspection made effective, inspections without warrant must be deemed reasonable official conduct under the Fourth Amendment. In See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the mission of the inspection system was to discover and correct violations of the building code, conditions that were relatively difficult to conceal or to correct in a short time. Periodic inspection sufficed, and inspection warrants could be required and privacy given a measure of protection with little if any threat to the effectiveness of the inspection system there at issue. We expressly refrained in that case from questioning a warrantless regulatory search such as that authorized by § 923 of the Gun Control Act. Here, if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible.
6
It is also plain that inspections for compliance with the Gun Control Act pose only limited threats to the dealer's justifiable expectations of privacy. When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection. Each licensee is annually furnished with a revised compilation of ordinances that describe his obligations and define the inspector's authority. 18 U.S.C. § 921(a)(19). The dealer is not left to wonder about the purposes of the inspector or the limits of his task.
7
We have little difficulty in concluding that where, as here, regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute. The seizure of respondent's sawed-off rifles was not unreasonable under the Fourth Amendment, and the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. So ordered.
8
Judgment of Court of Appeals reversed and case remanded.
9
Mr. Justice BLACKMUN, concurring in the result.
10
Had I been a member of the Court when Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), was decided, I would have joined the respective dissenting opinions of Mr. Justice Black and of The Chief Justice, 397 U.S., at 79 and 77, 90 S.Ct., at 778 and 777. I therefore concur in the result here.
11
Mr. Justice DOUGLAS, dissenting.
12
As Mr. Justice Clark, writing for the three-judge panel in the Court of Appeals for the Tenth Circuit said, the Federal Gun Control Act, 18 U.S.C. § 923(g), has a provision for inspection that is 'almost identical' with the one in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60.
The present one provides:
13
'The Secretary may enter during business hours the premises (including places of storage) of any firearms or ammunition . . . dealer . . . for the purpose of inspecting or examining (1) any records or documents required to be kept . . . and (2) any firearms or ammunition kept or stored by such . . . dealer . . .' 18 U.S.C. § 923(g).
The one is Colonnade provided:
14
'The Secretary or his delegate may enter during business hours the premises . . . of any dealer for the purpose of inspecting or examining any records or other documents required to be kept . . . under this chapter . . ..' 26 U.S.C. § 5146(b).
15
The Court legitimates this inspection scheme because of its belief that, had respondent been a dealer in liquor instead of firearms, such a search as was here undertaken would have been valid under the principles of Colonnade. I respectfully disagree. Colonnade, of course, rested heavily on the unique historical origins of governmental regulation of liquor. And the Court admits that similar regulation of the firearms traffic 'is not as deeply rooted in history as is governmental control of the liquor industry.' Yet, assuming, arguendo, that the firearms industry is as appropriate a subject of pervasive governmental inspection as is the liquor industry, the Court errs.
16
In Colonnade, we agreed that 'Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand.' 397 U.S., at 76, 90 S.Ct., at 777. But we also said:
17
'Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.' Id., at 77, 90 S.Ct., at 777.
18
Here, the statute authorizing inspection is virtually identical to the one we considered in Colonnade. The conclusion necessarily follows that Congress, as in Colonnade, has here 'selected a standard that does not include forcible entries without a warrant.' Ibid.
19
In my view, a search conducted over the objection of the owner of the premises sought to be searched is 'forcible,' whether or not violent means are used to effect the search. In this case, the owner withdrew his objection upon being shown a copy of the statute authorizing inspection, saying: 'If that is the law, I guess it is all right.' If we apply the test of 'consent' that we used in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, we would affirm this judgment,* for as Mr. Justice Stewart, speaking for the Court in Bumper, said:
20
'When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
21
'When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.' Id., at 548 550, 88 S.Ct., at 1792.
22
I would affirm the judgment below.
1
'Each licensed importer, licensed manufacturer, licensed dealer, and licensed collector shall maintain such records of importation, production, shipment, receipt, sale, or other disposition, of firearms and ammunition at such place, for such period, and in such form as the Secretary (of the Treasury) may by regulations prescribe. Such importers, manufacturers, dealers, and collectors shall make such records available for inspection at all reasonable times, and shall submit to the Secretary such reports and information with respect to such records and the contents thereof as he shall by regulations prescribe. The Secretary may enter during business hours the premises (including places of storage) of any firearms or ammunition importer, manufacturer, dealer, or collector for the purpose of inspecting or examining (1) any records or documents required to be kept by such importer, manufacturer, dealer, or collector under the provisions of this chapter or regulations issued under this chapter, and (2) any firearms or ammunition kept or stored by such importer, manufacturer, dealer, or collector at such premises. Upon the request of any State or any political subdivision thereof, the Secretary may make available to such State or any political subdivision thereof, any information which he may obtain by reason of the provisions of this chapter with respect to the identification of persons within such State or political subdivision thereof, who have purchased or received firearms or ammunition, together with a description of such firearms or ammunition.' 18 U.S.C. § 923(g).
2
Respondent was licensed under 18 U.S.C. § 923 to sell certain sporting weapons as defined in 18 U.S.C. § 921. The sawed-off rifles, however, fell under 26 U.S.C. § 5845's technical definition of 'firearms,' and every dealer in such firearms was required by 26 U.S.C. § 5801 to pay a special occupational tax of $200 a year. Such firearms are also required to be registered to a dealer in the National Firearms Registration and Transfer Record. 26 U.S.C. § 5841. Respondent was indicted on six counts. Count I, on which he was convicted, charged that he had 'wilfully and knowingly engaged in business as a dealer in firearms, as defined by 26 U.S.C. § 5845 . . . without having paid the special 'occupational) tax required by 26 U.S.C. § 5801 for his business.' Counts II—V, on which he was acquitted, charged that he had possessed certain firearms that were not identified by serial number, as required by 26 U.S.C. § 5842, and that were not registered in the National Firearms Registration and Transfer Record, as required by 26 U.S.C. § 5841. Count VI, which charged respondent with failing to maintain properly the records required under 18 U.S.C. § 923, was severed and is awaiting trial.
3
'The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable,' and they are not embraced within the prohibition of the amendment. . . . (I)n the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment.' 116 U.S., at 623 624, 6 S.Ct., at 528 (footnote omitted).
4
Congress has made it a crime to violate any provision of the Gun Control Act. 18 U.S.C. § 924.
*
The majority concludes that Bumper is 'inapposite' to this case. Bumper holds that an otherwise invalid search is not legitimated because of the occupant's consent to a law enforcement officer's assertion of authority. Bumper is only 'inapposite' if one has already concluded that consent is irrelevant to the validity of the search at issue.
| 01
|
406 U.S. 205
92 S.Ct. 1526
32 L.Ed.2d 15
State of WISCONSIN, Petitioner,v.Jonas YODER et al.
No. 70—110
Argued Dec. 8, 1971.
Decided May 15, 1972.
Syllabus
Respondents, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin's compulsory school attendance law (which requires a child's school attendance until age 16) by declining to send their children to public or private school after they had graduated from the eighth grade. The evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community. The evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life and that they would endanger their own salvation and that of their children by complying with the law. The State Supreme Court sustained respondents' claim that application of the compulsory school-attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment. Held:
1. The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest in parents with respect to the religious upbringing of their children. Pp. 213—215.
2. Respondents have amply supported their claim that enforcement of the compulsory formal education requirement after the eighth grade would gravely endanger if not destroy the free exercise of their religious beliefs. Pp. 215—219.
3. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish have demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interests that the State relies on in support of its program of compulsory high school education. In light of this showing, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. p(p). granting an exemption to the Amish. Pp. 219—229, 234—236.
4. The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by foregoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. Pp. 229—234.
49 Wis.2d 430, 182 N.W.2d 539, affirmed.
John William Calhoun, Madison, Wis., for petitioner.
William B. Ball, Harrisburg, Pa., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
On petition of the State of Wisconsin, we granted the writ of certiorari in this case to review a decision of the Wisconsin Supreme Court holding that respondents' convictions for violating the State's compulsory school-attendance law were invalid under the Free Exercise Clause of the First Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment. For the reasons hereafter stated we affirm the judgment of the Supreme Court of Wisconsin.
2
Respondents Jonas Yoder and Wallace Miller are members of the Old Order Amish religion, and respondent Adin Yutzy is a member of the Conservative Amish Mennonite Church. They and their families are residents of Green County, Wisconsin. Wisconsin's compulsory school-attendance law required them to cause their children to attend public or private school until reaching age 16 but the respondents declined to send their children, ages 14 and 15, to public school after they complete the eighth grade.1 The children were not enrolled in any private school, or within any recognized exception to the compulsory-attendance law,2 and they are conceded to be subject to the Wisconsin statute.
3
On complaint of the school district administrator for the public schools, respondents were charged, tried, and convicted of violating the compulsory-attendance law in Green County Court and were fined the sum of $5 each.3 Respondents defended on the ground that the application of the compulsory-attendance law violated their rights under the First and Fourteenth Amendments.4 The trial testimony showed that respondents believed, in accordance with the tenets of Old Order Amish communities generally, that their children's attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but, as found by the county court, also endanger their own salvation and that of their children. The State stipulated that respondents' religious beliefs were sincere.
4
In support of their position, respondents presented as expert witnesses scholars on religion and education whose testimony is uncontradicted. They expressed their opinions on the relationship of the Amish belief concerning school attendance to the more general tenets of their religion, and described the impact that compulsory high school attendance could have on the continued survival of Amish communities as they exist in the United States today. The history of the Amish sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century who rejected institutionalized churches and sought to return to the early, simple, Christian life de-emphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.
5
A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. Their conduct is regulated in great detail by the Ordnung, or rules, of the church community. Adult baptism, which occurs in late adolescence, is the time at which Amish young people voluntarily undertake heavy obligations, not unlike the Bar Mitzvah of the Jews, to abide by the rules of the church community.5
6
Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. They object to the high school, and higher education generally, because the values they teach are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a 'wordly' influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through-doing; a life of 'goodness,' rather than a life of intellect; wisdom, rather than technical knowledge, community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.
7
Formal high school education beyond the eighth grade is contrary to Amish beliefs, not only because it places Amish children in an environment hostile to Amish beliefs with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has learned basic reading, writing, and elementary mathematics, these tratis, skills, and attitudes admittedly fall within the category of those best learned through example and 'doing' rather than in a classroom. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism. In short, high school attendance with teachers who are not of the Amish faith—and may even be hostile to it—interposes a serious barrier to the integration of the Amish child into the Amish religious community. Dr. John Hostetler, one of the experts on Amish society, testified that the modern high school is not equipped, in curriculum or social environment, to impart the values promoted by Amish society.
8
The Amish do not object to elementary education through the first eight grades as a general proposition because they agree that their children must have basic skills in the 'three R's' in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of daily affairs. They view such a basic education as acceptable because it does not significantly expose their children to wordly values or interfere with their development in the Amish community during the crucial adolescent period. While Amish accept compulsory elementary education generally, wherever possible they have established their own elementary schools in many respects like the small local schools of the past. In the Amish belief higher learning tends to develop values they reject as influences that alienate man from God.
9
On the basis of such considerations, Dr. Hostetler testified that compulsory high school attendance could not only result in great psychological harm to Amish children, because of the conflicts it would produce, but would also, in his opinion, ultimately result in the destruction of the Old Order Amish church community as it exists in the United States today. The testimony of Dr. Donald A. Erickson, an expert witness on education, also showed that the Amish succeed in preparing their high school age children to be productive members of the Amish community. He described their system of learning through doing the skills directly relevant to their adult roles in the Amish community as 'ideal' and perhaps superior to ordinary high school education. The evidence also showed that the Amish have an excellent record as law-abiding and generally self-sufficient members of society.
10
Although the trial court in its careful findings determined that the Wisconsin compulsory school-attendance law 'does interfere with the freedom of the Defendants to act in accordance with their sincere religious belief' it also concluded that the requirement of high school attendance until age 16 was a 'reasonable and constitutional' exercise of governmental power, and therefore denied the motion to dismiss the charges. The Wisconsin Circuit Court affirmed the convictions. The Wisconsin Supreme Court, however, sustained respondents' claim under the Free Exercise Clause of the First Amendment and reversed the convictions. A majority of the court was of the opinion that the State had failed to make an adequate showing that its interest in 'establishing and maintaining an educational system overrides the defendants' right to the free exercise of their religion.' 49 Wis.2d 430, 447, 182 N.W.2d 539, 547 (1971).
11
* There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon's statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their off-spring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. See also Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); cf. Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). Thus, a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, 'prepare (them) for additional obligations.' 268 U.S., at 535, 45 S.Ct., at 573.
12
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. The invalidation of financial aid to parochial schools by government grants for a salary subsidy for teachers is but one example of the extent to which courts have gone in this regard, notwithstanding that such aid programs were legislatively determined to be in the public interest and the service of sound educational policy by States and by Congress. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). See also Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 513, 91 L.Ed. 711 (1947).
13
The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. E.g., Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); McGowan v. Maryland, 366 U.S. 420, 459, 81 S.Ct. 1101, 1122, 6 L.Ed.2d 393 (1961) (separate opinion of Frankfurter, J.); Prince v. Marssachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 441, 88 L.Ed. 645 (1944).
II
14
We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin's compulsory school-attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forbears have adhered to for almost three centuries. In evaluating those claims we must be careful to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a 'religious' belief or practice entitled to constitutional protection may present a most delicate question,6 the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.
15
Giving no weight to such secular considerations, however, we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. That the Old Order Amish daily life and religious practice stem from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, 'be not conformed to this world . . ..' This command is fundamental to the Amish faith. Moreover, for the Old Order Amish, religion is not simply a matter of theocratic belief. As the expert witnesses explained, the Old Order Amish religion pervades and determines virtually their entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rules of the church community.
16
The record shows that the respondents' religious beliefs and attitude toward life, family, and home have remained constant perhaps some would say static—in a period of unparalleled progress in human knowledge generally and great changes in education.7 The respondents freely concede, and indeed assert as an article of faith, that their religious beliefs and what we would today call 'life style' have not altered in fundamentals for centuries. Their way of life in a church-oriented community, separated from the outside world and 'worldly' influences, their attachment to nature and the soil, is a way inherently simple and uncomplicated, albeit difficult to preserve against the pressure to conform. Their rejection of telephones, automobiles, radios, and television, their mode of dress, of speech, their habits of manual work do indeed set them apart from much of contemporary society; these customs are both symbolic and practical.
17
As the society around the Amish has become more populous, urban, industrialized, and complex, particularly in this century, government regulation of human affairs has correspondingly become more detailed and pervasive. The Amish mode of life has thus come into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards. So long as compulsory education laws were confined to eight grades of elementary basic education imparted in a nearby rural schoolhouse, with a large proportion of students of the Amish faith, the Old Order Amish had little basis to fear that school attendance would expose their children to the worldly influence they reject. But modern compulsory secondary education in rural areas is now largely carried on in a consolidated school, often remote from the student's home and alien to his daily home life. As the record so strongly shows, the values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion; modern laws requiring compulsory secondary education have accordingly engendered great concern and conflict.8 The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.
18
The impact of the compulsory-attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. See Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 1147, 6 L.Ed.2d 563 (1961). Nor is the impact of the compulsory-attendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent. As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.9
19
In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents' entire mode of life support the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents' religious beliefs.
III
20
Neither the findings of the trial court nor the Amish claims as to the nature of their faith are challenged in this Court by the State of Wisconsin. Its position is that the State's interest in universal compulsory formal secondary education to age 16 is so great that it is paramount to the undisputed claims of respondents that their mode of preparing their youth for Amish life, after the traditional elementary education, is an essential part of their religious belief and practice. Nor does the State undertake to meet the claim that the Amish mode of life and education is inseparable from and a part of the basic tenets of their religion indeed, as much a part of their religious belief and practices as baptism, the confessional, or a sabbath may be for others.
21
Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State's control, but it argues that 'actions,' even though religiously grounded, are outside the protection of the First Amendment.10 But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. See, e.g., Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879). But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. E.g., Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Cantwell v. Connecticut, 310 U.S. 296, 303—304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). This case, therefore, does not become easier because respondents were convicted for their 'actions' in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. Cf. Lemon v. Kurtzman, 403 U.S., at 612, 91 S.Ct., at 2111, 29 L.Ed.2d 745.
22
Nor can this case be disposed of on the grounds that Wisconsin's requirement for school attendance to age 16 applies uniformly to all citizens of the State and does not, on its face, discriminate against religions or a particular religion, or that it is motivated by legitimate secular concerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. Sherbert v. Verner, supra; cf. Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). The Court must not ignore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise. By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses
23
'we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a 'tight rope' and one we have successfully traversed.' Walz v. Tax Commission, supra, at 672, 90 S.Ct., at 1413.
24
We turn, then, to the State's broader contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way. Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption. See, e.g., Sherbert v. Verner, supra; 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).
25
The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society. We accept these propositions.
26
However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve those interests. Respondents' experts testified at trial, without challenge, that the value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith. See Meyer v. Nebraska, 262 U.S., at 400, 43 S.Ct., at 627, 67 L.Ed. 1042.
27
The State attacks respondents' position as one fostering 'ignorance' from which the child must be protected by the State. No one can question the State's duty to protect children from ignorance but this argument does not square with the facts disclosed in the record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society, even if apart from the conventional 'mainstream.' Its members are productive and very law-abiding members of society; they reject public welfare in any of its usual modern forms. The Congress itself recognized their self-sufficiency by authorizing exemption of such groups as the Amish from the obligation to pay social security taxes.11
28
It is neither fair nor correct to suggests that the Amish are opposed to education beyond the eighth grade level. What this record shows is that they are opposed to conventional formal education of the type provided by a certified high school because it comes at the child's crucial adolescent period of religious development. Dr. Donald Erickson, for example, testified that their system of learning-by-doing was an 'ideal system' of education in terms of preparing Amish children for life as adults in the Amish community, and that 'I would be inclined to say they do a better job in this than most of the rest of us do.' As he put it, 'These people aren't purporting to be learned people, and it seems to me the self-sufficiency of the community is the best evidence I can point to—whatever is being done seems to function well.'12
29
We must not forget that in the Middle Ages important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles. There can be no assumption that today's majority is 'right' and the Amish and others like them are 'wrong.' A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.
30
The State, however, supports its interest in providing an additional one or two years of compulsory high school education to Amish children because of the possibility that some such children will choose to leave the Amish community, and that if this occurs they will be ill-equipped for life. The State argues that if Amish children leave their church they should not be in the position of making their way in the world without the education available in the one or two additional years the State requires. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that upon leaving the Amish community Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because of educational shortcomings. Indeed, this argument of the State appears to rest primarily on the State's mistaken assumption, already noted, that the Amish do not provide any education for their children beyond the eighth grade, but allow them to grow in 'ignorance.' To the contrary, not only do the Amish accept the necessity for formal schooling through the eighth grade level, but continue to provide what has been characterized by the undisputed testimony of expert educators as an 'ideal' vocational education for their children in the adolescent years.
31
There is nothing in this record to suggest that the Amish qualities of reliability, self-reliance, and dedication to work would fail to find ready markets in today's society. Absent some contrary evidence supporting the State's position, we are unwilling to assume that persons possessing such valuable vocational skills and habits are doomed to become burdens on society should they determine to leave the Amish faith, nor is there any basis in the record to warrant a finding that an additional one or two years of formal school education beyond the eighth grade would serve to eliminate any such problem that might exist.
32
Insofar as the State's claim rests on the view that a brief additional period of formal education is imperative to enable the Amish to participate effectively and intelligently in our democratic process, it must fall. The Amish alternative to formal secondary school education has enabled them to function effectively in their day-to-day life under self-imposed limitations on relations with the world, and to survive and prosper in contemporary society as a separate, sharply identifiable and highly self-sufficient community for more than 200 years in this country. In itself this is strong evidence that they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise of religious belief.13 When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny, there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. Indeed, the Amish communities singularly parallel and reflect many of the virtues of Jefferson's ideal of the 'sturdy yeoman' who would form the basis of what he considered as the ideal of a democratic society.14 Even their idiosyncratic separateness exemplifies the diversity we profess to admire and encourage.
33
The requirement for compulsory education beyond the eighth grade is a relatively recent development in our history. Less than 60 years ago, the educational requirements of almost all of the States were satisfied by completion of the elementary grades, at least where the child was regularly and lawfully employed.15 The independence and successful social functioning of the Amish community for a period approaching almost three centuries and more than 200 years in this country are strong evidence that there is at best a speculative gain, in terms of meeting the duties of citizenship, from an additional one or two years of compulsory formal education. Against this background it would require a more particularized showing from the State on this point to justify the severe interference with religious freedom such additional compulsory attendance would entail.
34
We should also note that compulsory education and child labor laws find their historical origin in common humanitarian instincts, and that the age limits of both laws have been coordinated to achieve their related objectives.16 In the context of this case, such considerations, if anything, support rather than detract from respondents' position. The origins of the requirement for school attendance to age 16, an age falling after the completion of elementary school but before completion of high school, are not entirely clear. But to some extent such laws reflected the movement to prohibit most child labor under age 16 that culminated in the provisions of the Federal Fair Labor Standards Act of 1938.17 It is true, then, that the 16-year child labor age limit may to some degree derive from a contemporary impression that children should be in school until that age. But at the same time, it cannot be denied that, conversely, the 16-year education limit reflects, in substantial measure, the concern that children under that age not be employed under conditions hazardous to their health, or in work that should be performed by adults.
35
The requirement of compulsory schooling to age 16 must therefore be viewed as aimed not merely at providing educational opportunities for children, but as an alternative to the equally undesirable consequence of unhealthful child labor displacing adult workers, or, on the other hand, forced idleness.18 The two kinds of statutes—compulsory school attendance and child labor laws—tend to keep children of certain ages off the labor market and in school; this regimen in turn provides opportunity to prepare for a livelihood of a higher order than that which children could pursue without education and protects their health in adolescence.
36
In these terms, Wisconsin's interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance for children generally. For, while agricultural employment is not totally outside the legitimate concerns of the child labor laws, employment of children under parental guidance and on the family farm from age 14 to age 16 is an ancient tradition that lies at the periphery of the objectives of such laws.19 There is no intimation that the Amish employment of their children on family farms is in any way deleterious to their health or that Amish parents exploit children at tender years. Any such inference would be contrary to the record before us. Moreover, employment of Amish children on the family farm does not present the undesirable economic aspects of eliminating jobs that might otherwise be held by adults.
IV
37
Finally, the State, on authority of Prince v. Massachusetts, argues that a decision exempting Amixh children from the State's requirement fails to recognize the substantive right of the Amish child to a secondary education, and fails to give due regard to the power of the State as parens patriae to extend the benefit of secondary education to children regardless of the wishes of their parents. Taken at its broadest sweep, the Court's language in Prince, might be read to give support to the State's position. However, the Court was not confronted in Prince with a situation comparable to that of the Amish as revealed in this record; this is shown by the Court's severe characterization of the evils that it thought the legislature could legitimately associate with child labor, even when performed in the company of an adult. 321 U.S., at 169—170, 64 S.Ct., at 443—444. The Court later took great care to confine Prince to a narrow scope in Sherbert v. Verner, when it stated:
38
'On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for 'even when the action is in accord with one's religious convictions, (it) is not totally free from legislative restrictions.' Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 . . ..' 374 U.S., at 402—403, 83 S.Ct., at 1793.
39
This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.20 The record is to the contrary, and any reliance on that theory would find no support in the evidence.
40
Contrary to the suggestion of the dissenting opinion of Mr. Justice DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it is their right of free exercise, not that of their children, that must determine Wisconsin's power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary.21 The State's position from the outset has been that it is empowered to apply its compulsory-attendance law to Amish parents in the same manner as to other parents—that is, without regard to the wishes of the child. That is the claim we reject today.
41
Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court's past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here and those presented in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). On this record we neither reach nor decide those issues.
42
The State's argument proceeds without reliance on any actual conflict between the wishes of parents and children. It appears to rest on the potential that exemption of Amish parents from the requirements of the compulsory-education law might allow some parents to act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world. The same argument could, of course, be made with respect to all church schools short of college. There is nothing in the record or in the ordinary course of human experience to suggest that non-Amish parents generally consult with children of ages 14—16 if they are placed in a church school of the parents' faith.
43
Indeed it seems clear that if the State is empowered, as parens patriae, to 'save' a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will in large measure influence, if not determine, the religious future of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. If not the first, perhaps the most significant statements of the Court in this area are found in Pierce v. Society of Sisters, in which the Court observed:
44
'Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.' 268 U.S., at 534—535, 45 S.Ct., at 573.
45
The duty to prepare the child for 'additional obligations,' referred to by the Court, must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship. Pierce, of course, recognized that where nothing more than the general interest of the parent in the nurture and education of his children is involved, it is beyond dispute that the State acts 'reasonably' and constitutionally in requiring education to age 16 in some public or private school meeting the standards prescribed by the State.
46
However read, the Court's holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a 'reasonable relation to some purpose within the competency of the State' is required to sustain the validity of the State's requirement under the First Amendment. To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. But in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its claims in terms of the welfare of the child and society as a whole. The record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.
47
In the fact of our consistent emphasis on the central values underlying the Religion Clauses in our constitutional scheme of government, we cannot accept a parens patriae claim of such all-encompassing scope and with such sweeping potential for broad and unforeseeable application as that urged by the State.
V
48
For the reasons stated we hold, with the Supreme Court of Wisconsin, that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age 16.22 Our disposition of this case, however, in no way alters our recognition of the obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the 'necessity' of discrete aspects of a State's program of compulsory education. This should suggest that courts must move with great circumspection in performing the sensitive and delicate task of weighing a State's legitimate social concern when faced with religious claims for exemption from generally applicable education requirements. It cannot be overemphasized that we are not dealing with a way of life and mode of education by a group claiming to have recently discovered some 'progressive' or more enlightened process for rearing children for modern life.
49
Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education. In light of this convincing showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Sherbert v. Verner, supra.
50
Nothing we hold is intended to undermine the general applicability of the State's compulsory school-attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion.23
51
Affirmed.
52
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
53
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, concurring.
54
This case involves the constitutionality of imposing criminal punishment upon Amish parents for their religiously based refusal to compel their children to attend public high schools. Wisconsin has sought to brand these parents as criminals for following their religious beliefs, and the Court today rightly holds that Wisconsin cannot constitutionally do so.
55
This case in no way involves any questions regarding the right of the children of Amish parents to attend public high schools, or any other institutions of learning, if they wish to do so. As the Court points out, there is no suggestion whatever in the record that the religious beliefs of the children here concerned differ in any way from those of their parents. Only one of the children testified. The last two questions and answers on her cross-examination accurately sum up her testimony:
56
'Q. So I take it then, Frieda, the only reason you are not going to school, and did not go to school since last September, is because of your religion?
57
'A. Yes.
58
'Q. That is the only reason?
59
'A. Yes.' (Emphasis supplied.)
60
It is clear to me, therefore, that this record simply does not present the interesting and important issue discussed in Part II of the dissenting opinion of Mr. Justice DOUGLAS. With this observation, I join the opinion and the judgment of the Court.
61
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice STEWART join, concurring.
62
Cases such as this one inevitably call for a delicate balancing of important but conflicting interests. I join the opinion and judgment of the Court because I cannot say that the State's interest in requiring two more years of compulsory education in the ninth and tenth grades outweighs the importance of the concededly sincere Amish religious practice to the survival of that sect.
63
This would be a very different case for me if respondents' claim were that their religion forbade their children from attending any school at any time and from complying in any way with the educational standards set by the State. Since the Amish children are permitted to acquire the basic tools of literacy to survive in modern society by attending grades one through eight and since the deviation from the State's compulsory-education law is relatively slight, I conclude that respondents' claim must prevail, largely because 'religious freedom—the freedom to believe and to practice strange and, it may be, foreign creeds—has classically been one of the highest values of our society.' Braunfeld v. Brown, 366 U.S. 599, 612, 81 S.Ct. 1144, 1150, 6 L.Ed.2d 563 (1961) (Brennan, J., concurring and dissenting).
64
The importance of the state interest asserted here cannot be denigrated, however:
65
'Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.' Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954).
66
As recently as last Term, the Court reemphasized the legitimacy of the State's concern for enforcing minimal educational standards. Lemon v. Kurtzman, 403 U.S., 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).1 Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), lends no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society; in Pierce, both the parochial and military schools were in compliance with all the educational standards that the State had set, and the Court held simply that while a State may posit such standards, it may not pre-empt the educational process by requiring children to attend public schools.2 In the present case, the State is not concerned with the maintenance of an educational system as an end in itself, it is rather attempting to nurture and develop the human potential of its children, whether Amish or non-Amish: to expand their knowledge, broaden their sensibilities, kindle their imagination, foster a spirit of free inquiry, and increase their human understanding and tolerance. It is possible that most Amish children will wish to continue living the rural life of their parents, in which case their training at home will adequately equip them for their future role. Others, however, may wish to become nuclear physicists, ballet dancers, computer programmers, or historians, and for these occupations, formal training will be necessary. There is evidence in the record that many children desert the Amish faith when they come of age.3 A State has a legitimate interest not only in seeking to develop the latent talents of its children but also in seeking to prepare them for the life style that they may later choose, or at least to provide them with an option other than the life they have led in the past. In the circumstances of this case, although the question is close, I am unable to say that the State has demonstrated that Amish children who leave school in the eighth grade will be intellectually stultified or unable to acquire new academic skills later. The statutory minimum school attendance age set by the State is, after all, only 16.
67
Decision in cases such as this and the administration of an exemption for Old Order Amish from the State's compulsory school-attendance laws will inevitably involve the kind of close and perhaps repeated scrutiny of religious practices, as is exemplified in today's opinion, which the Court has heretofore been anxious to avoid. But such entanglement does not create a forbidden establishment of religion where it is essential to implement free exercise values threatened by an otherwise neutral program instituted to foster some permissible, nonreligious state objective. I join the Court because the sincerity of the Amish religious policy here is uncontested, because the potentially adverse impact of the state requirement is great, and because the State's valid interest in education has already been largely satisfied by the eight years the children have already spent in school.
68
Mr. Justice DOUGLAS, dissenting in part.
69
* I agree with the Court that the religious scruples of the Amish are opposed to the education of their children beyond the grade schools, yet I disagree with the Court's conclusion that the matter is within the dispensation of parents alone. The Court's analysis assumes that the only interests at stake in the case are those of the Amish parents on the one hand, and those of the State on the other. The difficulty with this approach is that, despite the Court's claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high-school-age children.
70
It is argued that the right of the Amish children to religious freedom is not presented by the facts of the case, as the issue before the Court involves only the Amish parents' religious freedom to defy a state criminal statute imposing upon them an affirmative duty to cause their children to attend high school.
71
First, respondents' motion to dismiss in the trial court expressly asserts, not only the religious liberty of the adults, but also that of the children, as a defense to the prosecutions. It is, of course, beyond question that the parents have standing as defendants in a criminal prosecution to assert the religious interests of their children as a defense.1 Although the lower courts and a majority of this Court assume an identity of interest between parent and child, it is clear that they have treated the religious interest of the child as a factor in the analysis.
72
Second, it is essential to reach the question to decide the case, not only because the question was squarely raised in the motion to dismiss, but also because no analysis of religious-liberty claims can take place in a vacuum. If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents' notions of religious duty upon their children. Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child's rights to permit such an imposition without canvassing his views. As in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, it is an imposition resulting from this very litigation. As the child has no other effective forum, it is in this litigation that his rights should be considered. And, if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents' religiously motivated objections.
73
Religion is an individual experience. It is not necessary, nor even appropriate, for every Amish child to express his views on the subject in a prosecution of a single adult. Crucial, however, are the views of the child whose parent is the subject of the suit. Frieda Yoder has in fact testified that her own religious views are opposed to high-school education. I therefore join the judgment of the Court as to respondent Jonas Yoder. But Frieda Yoder's views may not be those of Vernon Yutzy or Barbara Miller. I must dissent, therefore, as to respondents Adin Yutzy and Wallace Miller as their motion to dismiss also raised the question of their children's religious liberty.
II
74
This issue has never been squarely presented before today. Our opinions are full of talk about the power of the parents over the child's education. See Pierce v. Cociety of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. And we have in the past analyzed similar conflicts between parent and State with little regard for the views of the child. See Prince v. Massachusetts, supra. Recent cases, however, have clearly held that the children themselves have constitutionally protectible interests.
75
These children are 'persons' within the meaning of the Bill of Rights. We have so held over and over again. In Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, we extended the protection of the Fourteenth Amendment in a state trial of a 15-year-old boy. In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, we held that 'neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.' In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, we held that a 12-year-old boy, when charged with an act which would be a crime if committed by an adult, was entitled to procedural safeguards contained in the Sixth Amendment.
76
In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, we dealt with 13-year-old, 15-year-old, and 16-year-old students who wore armbands to public schools and were disciplined for doing so. We gave them reflief, saying that their First Amendment rights had been abridged.
77
'Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.' Id., at 511, 89 S.Ct., at 739.
78
In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, we held that school-children, whose religious beliefs collided with a school rule requiring them to salute the flag, could not be required to do so. While the sanction included expulsion of the students and prosecution of the parents, id., at 630, 63 S.Ct., at 1181, the vice of the regime was its interference with the child's free exercise of religion. We said: 'Here . . . we are dealing with a compulsion of students to declare a belief.' Id., at 631, 63 S.Ct., at 1182. In emphasizing the important and delicate task of boards of education we said:
79
'That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.' Id., at 637, 63 S.Ct., at 1185.
80
On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition.2
81
It is the future of the student, not the future of the parents, that is imperiled by today's decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student's judgment, not his parents', that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny.3 If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.
82
The views of the two children in question were not canvassed by the Wisconsin courts. The matter should be explicitly reserved so that new hearings can be held on remand of the case.4
III
83
I think the emphasis of the Court on the 'law and order' record of this Amish group of people is quite irrelevant. A religion is a religion irrespective of what the misdemeanor or felony records of its members might be. I am not at all sure how the Catholics, Episcopalians, the Baptists, Jehovah's Witnesses, the Unitarians, and my own Presbyterians would make out if subjected to such a test. It is, of course, true that if a group or society was organized to perpetuate crime and if that is its motive, we would have rather startling problems akin to those that were raised when some years back a particular sect was challenged here as operating on a fraudulent basis. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 822, 88 L.Ed. 1148. But no such factors are present here, and the Amish, whether with a high or low criminal record,5 certainly qualify by all historic standards as a religion within the meaning of the First Amendment.
84
The Court rightly rejects the notion that actions, even though religiously grounded, are always outside the protection of the Free Exercise Clause of the First Amendment. In so ruling, the Court departs from the teaching of Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244, where it was said concerning the reach of the Free Exercise Clause of the First Amendment, 'Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.' In that case it was conceded that polygamy was a part of the religion of the Mormons. Yet the Court said, 'It matters not that his belief (in polygamy) was a part of his professed religion: it was still belief and belief only.' Id., at 167, 25 L.Ed. 244.
85
Action, which the Court deemed to be antisocial, could be punished even though it was grounded on deeply held and sincere religious convictions. What we do today, at least in this respect, opens the way to give organized religion a broader base than it has ever enjoyed; and it even promises that in time Reynolds will be overruled.
86
In another way, however, the Court retreats when in reference to Henry Thoreau it says his 'choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.' That is contrary to what we held in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, where we were concerned with the meaning of the words 'religious training and belief' in the Selective Service Act, which were the basis of many conscientious objector claims. We said:
87
'Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.' Id., at 176, 85 S.Ct., at 859.
88
Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, was in the same vein, the Court saying:
89
'In this case, Welsh's conscientious objection to war was undeniably based in part on his perception of world politics. In a letter to his local board, he wrote:
90
"I can only act according to what I am and what I see. And I see that the military complex wastes both human and material resources, that it fosters disregard for (what I consider a paramount concern) human needs and ends; I see that the means we employ to 'defend' our 'way of life' profoundly change that way of life. I see that in our failure to recognize the political, social, and economic realities of the world, we, as a nation, fail our responsibility as a nation." id., at 342, 90 S.Ct., at 1797.
91
The essence of Welsh's philosophy, on the basis of which we held he was entitled to an exemption, was in these words:
92
"I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being. This belief (and the corresponding 'duty' to abstain from violence toward another person) is not 'superior to those arising from any human relation.' On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the Government's insistence that I assume duties which I feel are immoral and totally repugnant." Id., at 343, 90 S.Ct., at 1798.
93
I adhere to these exalted views of 'religion' and see no acceptable alternative to them now that we have become a Nation of many religions and sects, representing all of the diversities of the human race. United States v. Seeger, 380 U.S., at 192—193, 85 S.Ct., at 867—868 (concurring opinion).
1
The children, Frieda Yoder, aged 15, Barbara Miller, aged 15, and Vernon Yutzy, aged 14, were all graduates of the eighth grade of public school.
2
Wis.Stat. § 118.15 (1969) provides in pertinent part:
'118.15 Compulsory school attendance
'(1)(a) Unless the child has a legal excuse or has graduated from high school, any person having under his control a child who is between the ages of 7 and 16 years shall cause such child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which such child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which he becomes 16 years of age.
'(3) This section does not apply to any child who is not in proper physical or mental condition to attend school, to any child exempted for good cause by the school board of the district in which the child resides or to any child who has completed the full 4-year high school course. The certificate of a reputable physician in general practice shall be sufficient proof that a child is unable to attend school.
'(4) Instruction during the required period elsewhere than at school may be substituted for school attendance. Such instruction must be approved by the state superintendent as substantially equivalent to instruction given to children of like ages in the public or private schools where such children reside.
'(5) Whoever violates this section . . . may be fined not less than $5 nor more than $50 or imprisoned not more than 3 months or both.'
Section 118.15(1)(b) requires attendance to age 18 in a school district containing a 'vocational, technical and adult education school,' but this section is concedly inapplicable in this case, for there is no such school in the district involved.
3
Prior to trial, the attorney for respondents wrote the State Superintendent of Public Instruction in an effort to explore the possibilities for a compromise settlement. Among other possibilities, he suggested that perhaps the State Superintendent could administratively determine that the Amish could satisfy the compulsory-attendance law by establishing their own vocational training plan similar to one that has been established in Pennsylvania. Supp.App. 6. Under the Pennsylvania plan, Amish children of high school age are required to attend an Amish vocational school for three hours a week, during which time they are taught such subjects as English, mathematics, health, and social studies by an Amish teacher. For the balance of the week, the children perform farm and household duties under parental supervision, and keep a journal of their daily activities. The major portion of the curriculum is home projects in agriculture and homemaking. See generally J. Hostetler & G. Huntington, Children in Amish Society: Socialization and Community Education, c. 5 (1971). A similar program has been instituted in Indiana. Ibid. See also Iowa Code § 299.24 (1971); Kan.Stat.Ann. § 72—1111 (Supp. 1971).
The Superintendent rejected this proposal on the ground that it would not afford Amish children 'substantially equivalent education' to that offered in the schools of the area. Supp.App. 6.
4
The First Amendment provides: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ..'
5
See generally J. Hostetler, Amish Society (1968); J. Hostetler & G. Huntington, Children in Amish Society (1971); Littell, Sectarian Protestantism and the Pursuit of Wisdom: Must Technological Objectives Prevail?, in Public Controls for Nonpublic Schools 61 (G. Erickson ed. 1969).
6
See Welsh v. United States, 398 U.S. 333, 351—361, 90 S.Ct. 1792, 1802—1807, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring in result); United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).
7
See generally R. Butts & L. Cremin, A History of Education in American Culture (1953); L. Cremin, The Transformation of the School (1961).
8
Hostetler, supra, n. 5, c. 9; Hostetler & Huntington, supra, n. 5.
9
Some States have developed working arrangements with the Amish regarding high school attendance. See n. 3, supra. However, the danger to the continued existence of an ancient religious faith cannot be ignored simply because of the assumption that its adherents will continue to be able, at considerable sacrifice, to relocate in some more tolerant State or country or work out accommodations under threat of criminal prosecution. Forced migration of religious minorities was an evil that lay at the heart of the Religion Clauses. See, e.g., Everson v. Board of Education, 330 U.S. 1, 9—10, 67 S.Ct. 504, 508—509, 91 L.Ed. 711 (1947); Madison, Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183 (G. Hunt ed. 1901).
10
That has been the apparent ground for decision in several previous state cases rejecting claims for exemption similar to that here. See, e.g., State v. Garber, 197 Kan. 567, 419 P.2d 896 (1966), cert. denied, 389 U.S. 51, 88 S.Ct. 236, 19 L.Ed.2d 50 (1967); State v. Hershberger, 103 Ohio App. 188, 144 N.E.2d 693 (1955); Commonwealth v. Beiler, 168 Pa.Super. 462, 79 A.2d 134 (1951).
11
Title 26 U.S.C. § 1402(h) authorizes the Secretary of Health, Education, and Welfare to exempt members of 'a recognized religious sect' existing at all times since December 31, 1950, from the obligation to pay social security taxes if they are, by reason of the tenets of their sect, opposed to receipt of such benefits and agree to waive them, provided the Secretary finds that the sect makes reasonable provision for its dependent members. The history of the exemption shows it was enacted with the situation of the Old Order Amish specifically in view. H.R.Rep.No.213, 89th Cong., 1st Sess., 101—102 (1965).
The record in this case establishes without contradiction that the Green County Amish had never been known to commit crimes, that none had been known to receive public assistance, and that none were unemployed.
12
Dr. Erickson had previously written: 'Many public educators would be elated if their programs were as successful in preparing students for productive community life as the Amish system seems to be. In fact, while some public schoolmen strive to outlaw the Amish approach, others are being forced to emulate many of its features.' Erickson, Showdown at an Amish Schoolhouse: A Description and Analysis of the Iowa Controversy, in Public Controls for Nonpublic Schools 15, 53 (D. Erickson ed. 1969). And see Littell, supra, n. 5, at 61.
13
All of the children involved in this case are graduates of the eighth grade. In the county court, the defense introduced a study by Dr. Hostetler indicating that Amish children in the eighth grade achieved comparably to non-Amish children in the basic skills. Supp.App. 9—11. See generally Hostetler & Huntington, supra, n. 5, at 88—96.
14
While Jefferson recognized that education was essential to the welfare and liberty of the people, he was reluctant to directly force instruction of children 'in opposition to the will of the parent.' Instead he proposed that state citizenship be conditioned on the ability to 'read readily in some tongue, native or acquired.' Letter from Thomas Jefferson to Joseph Cabell, Sept. 9, 1817, in 17 Writings of Thomas Jefferson 417, 423—424 (Mem. ed. 1904). And it is clear that, so far as the mass of the people were concerned, he envisaged that a basic education in the 'three R's' would sufficiently meet the interests of the State. He suggested that after completion of elementary school, 'those destined for labor will engage in the business of agriculture, or enter into apprenticeships to such handicraft art as may be their choice.' Letter from Thomas Jefferson to Peter Carr, Sept. 7, 1814, in Thomas Jefferson and Education in a Republic 93—106 (Arrowood ed. 1930). See also id., at 60—64, 70, 83, 136—137.
15
See Dept. of Interior, Bureau of Education, Bulletin No. 47, Digest of State Laws Relating to Public Education 527—559 (1916); Joint Hearings on S. 2475 and H.R. 7200 before the Senate Committee on Education and Labor and the House Committee on Labor, 75th Cong., 1st Sess., pt. 2, p. 416.
Even today, an eighth grade education fully satisfies the educational requirements of at least six States. See Ariz.Rev.Stat.Ann. § 15—321, subsec. B, par. 4 (1956); Ark.Stat.Ann. § 80—1504 (1947); Iowa Code § 299.2 (1971); S.D.Comp.Laws Ann. § 13—27—1 (1967); Wyo.Stat.Ann. § 21.1—48 (Supp.1971). (Mississippi has no compulsory education law.) A number of other States have flexible provisions permitting children aged 14 or having completed the eighth grade to be excused from school in order to engage in lawful employment. E.g., Colo.Rev.Stat.Ann. §§ 123—20—5, 80—6—1 to 80—6—12 (1963); Conn.Gen.Stat.Rev. §§ 10—184, 10—189 (1964); D.C.Code Ann. §§ 31 202, 36—201 to 36—228 (1967); Ind.Ann.Stat. §§ 28—505 to 28—506, 28—519 (1948); Mass.Gen.Laws Ann., c. 76, § 1 (Supp.1972) and c. 149, § 86 (1971); Mo.Rev.Stat. §§ 167.031, 294.051 (1969); Nev.Rev.Stat. § 392.110 (1968); N.M.Stat.Ann. § 77—10—6 (1968).
An eighth grade education satisfied Wisconsin's formal education requirements until 1933. See Wis.Laws 1927, c. 425, § 97; Laws 1933, c. 143. (Prior to 1933, provision was made for attendance at continuation or vocational schools by working children past the eighth grade, but only if one was maintained by the community in question.) For a general discussion of the early development of Wisconsin's compulsory education and child labor laws, see F. Ensign, Compulsory School Attendance and Child Labor 203—230 (1921).
16
See, e.g., Joint Hearings, supra, n. 15, pt. 1, at 185 187 (statement of Frances Perkins, Secretary of Labor), pt. 2, at 381—387 (statement of Katherine Lenroot, Chief, Children's Bureau, Department of Labor); National Child Labor Committee, 40th Anniversary Report, The Long Road (1944); 1 G. Abbott, The Child and the State 259—269, 566 (Greenwood reprint 1968); L. Cremin, The Transformation of the School, c. 3 (1961); A. Steinhilber & C. Sokolowski, State Law on Compulsory Attendance 3—4 (Dept. of Health, Education, and Welfare 1966).
17
52 Stat. 1060, as amended, 29 U.S.C. §§ 201—219.
18
See materials cited n. 16, supra; Casad, Compulsory Education and Individual Rights, in 5 Religion and the Public Order 51, 82 (D. Giannella ed. (1969).
19
See, e.g., Abbott, supra, n. 16 at 266. The Federal Fair Labor Standards Act of 1938 excludes from its definition of '(o)ppressive child labor' employment of a child under age 16 by 'a parent . . . employing his own child . . . in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being.' 29 U.S.C. § 203(l).
20
Cf. e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905); Wright v. DeWitt School District, 238 Ark. 906, 385 S.W.2d 644 (1965); Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 87—90, 331 F.2d 1000, 1007—1010 (1964) (in-chambers opinion), cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964).
21
The only relevant testimony in the record is to the effect that the wishes of the one child who testified corresponded with those of her parents. Testimony of Frieda Yoder, Tr. 92—94, to the effect that her personal religious beliefs guided her decision to discontinue school attendance after the eighth grade. The other children were not called by either side.
22
What we have said should meet the suggestion that the decision of the Wisconsin Supreme Court recognizing an exemption for the Amish from the State's system of compulsory education constituted an impermissible establishment of religion. In Walz v. Tax Commission, the Court saw the three main concerns against which the Establishment Clause sought to protect as 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). Accommodating the religious beliefs of the Amish can hardly be characterized as sponsorship or active involvement. The purpose and effect of such an exemption are not to support, favor, advance, or assist the Amish, but to allow their centuries-old religious society, here long before the advent of any compulsory education, to survive free from the heavy impediment compliance with the Wisconsin compulsory-education law would impose. Such an accommodation 'reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.' Sherbert v. Verner, 374 U.S. 398, 409, 83 S.Ct. 1790, 1797, 10 L.Ed.2d 965 (1963).
23
Several States have now adopted plans to accommodate, Amish religious beliefs through the establishment of an 'Amish vocational school.' See n. 3, supra. These are not schools in the traditional sense of the word. As previously noted, respondents attempted to reach a compromise with the State of Wisconsin patterned after the Pennsylvania plan, but those efforts were not productive. There is no basis to assume that Wisconsin will be unable to reach a satisfactory accommodation with the Amish in light of what we now hold, so as to serve its interests without impinging on respondents' protected free exercise of their religion.
1
The challenged Amish religious practice here does not pose a substantial threat to public safety, peace, or order; if it did, analysis under the Free Exercise Clause would be substantially different. See Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12 (1946); Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000, cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964).
2
'No question is raised concerning the power of the State reasonably to regulate all schools, the inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.' Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925).
3
Dr. Hostetler testified that though there was a gradual increase in the total number of Old Order Amish in the United States over the past 50 years, 'at the same time the Amish have also lost members (of) their church' and that the turnover rate was such that 'probably two-thirds (of the present Amish) have been assimilated non-Amish people.' App. 110. Justice Heffernan, dissenting below, opined that '(l)arge numbers of young people voluntarily leave the Amish community each year and are thereafter forced to make their way in the world.' 49 Wis.2d 430, 451, 182 N.W.2d 539, 549 (1971).
1
Thus, in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, a Jehovah's Witness was convicted for having violated a state child labor law by allowing her nine-year-old niece and ward to circulate religious literature on the public streets. There, as here, the narrow question was the religious liberty of the adult. There, as here, the Court analyzed the problem from the point of view of the State's conflicting interest in the welfare of the child. But, as Mr. Justice Brennan, speaking for the Court, has so recently pointed out, 'The Court (in Prince) implicitly held that the custodian had standing to assert alleged freedom of religion . . . rights of the child that were threatened in the very litigation before the Court and that the child had no effective way of asserting herself.' Eisenstadt v. Baird, 405 U.S. 438, 446 n. 6, 92 S.Ct. 1029, 1034, 31 L.Ed.2d 349. Here, as in Prince, the children have no effective alternate means to vindicate their rights. The question, therefore, is squarely before us.
2
A significant number of Amish children do leave the Old Order. Professor Hostetler notes that '(t)he loss of members is very limited in some Amish districts and considerable in others.' J. Hostetler, Amish Society 226 (1968). In one Pennsylvania church, he observed a defection rate of 30%. Ibid. Rates up to 50% have been reported by others. Casad, Compulsory High School Attendance and the Old Order Amish: A Commentary on State v. Garber, 16 Kan.L.Rev. 423, 434 n. 51 (1968).
3
The court below brushed aside the students' interests with the offhand comment that '(w)hen a child reaches the age of judgment, he can choose for himself his religion.' 49 Wis.2d 430, 440, 182 N.W.2d 539, 543. But there is nothing in this record to indicate that the moral and intellectual judgment demanded of the student by the question in this case is beyond his capacity. Children far younger than the 14- and 15-year-olds involved here are regularly permitted to testify in custody and other proceedings. Indeed, the failure to call the affected child in a custody hearing is often reversible error. See, e.g., Callicott v. Callicott, 364 S.W.2d 455 (Tex.Civ.App.) (reversible error for trial judge to refuse to hear testimony of eight-year-old in custody battle). Moreover, there is substantial agreement among child psychologists and sociologists that the moral and intellectual maturity of the 14-year-old approaches that of the adult. See, e.g., J. Piaget, The Moral Judgment of the Child (1948); D. Elkind, Children and Adolescents 75—80 (1970); Kohlberg, Moral Education in the Schools: A Development View, in R. Muuss, Adolescent Behavior and Society 193, 199—200 (1971); W. Kay, Moral Development 172—183 (1968); A. Gesell & F. Ilg, Youth: The Years From Ten to Sixteen 175—182 (1956). The maturity of Amish youth, who identify with and assume adult roles from early childhood, see M. Goodman, The Culture of Childhood 92—94 (1970), is certainly not less than that of children in the general population.
4
Canvassing the views of all school-age Amish children in the State of Wisconsin would not present insurmountable difficulties. A 1968 survey indicated that there were at that time only 256 such children in the entire State. Comment, 1971 Wis.L.Rev. 832, 852 n. 132.
5
The observation of Justice Heffernan, dissenting below, that the principal opinion in his court portrayed the Amish as leading a life of 'idyllic agrarianism,' is equally applicable to the majority opinion in this Court. So, too, is his observation that such a portrayal rests on a 'mythological basis.' Professor Hostetler has noted that '(d)rinking among the youth is common in all the large Amish settlements.' Amish Society 283. Moreover, '(i)t would appear that among the Amish the rate of suicide is just as high, if not higher, than for the nation.' Id., at 300. He also notes an unfortunate Amish 'preoccupation with filthy stories,' id., at 282, as well as significant 'rowdyism and stress.' Id., at 281. These are not traits peculiar to the Amish, of course. The point is that the Amish are not people set apart and different.
| 23
|
406 U.S. 320
92 S.Ct. 1562
32 L.Ed.2d 95
Thomas L. ANDREWS, Petitioner,v.LOUISVILLE & NASHVILLE RAILROAD COMPANY et al.
No. 71—300.
Argued March 22, 1972.
Decided May 15, 1972.
Syllabus
Petitioner, claiming that he was wrongfully discharged from his employment by respondent railroad, filed a state-court action based on state law for breach of contract. The suit was removed to Federal District Court which dismissed the complaint for failure to exhaust the remedies provided by the Railway Labor Act, and the Court of Appeals affirmed. Held: Since the source of petitioner's right not to be discharged and of his employer's obligation to restore him to his regular employment following an injury is the collective-bargaining agreement, petitioner must follow the grievance and arbitration procedures set forth in the Railway Labor Act. Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, overruled. Pp. 321—326.
441 F.2d 1222, affirmed.
Andrew W. Estes, Atlanta, Ga., for petitioner.
William H. Major, Atlanta, Ga., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner brought suit in the state trial court of Georgia seeking damages for alleged 'wrongful discharge' by the respondent.1 He alleged that prior to an auto accident in 1967, he had been an employee in good standing of the respondent, employed 'under specified conditions and with a stipulated schedule of benefits.' He alleged that following the accident, he had fully recovered and was physically able to resume his work for respondent, but that respondent had refused to allow him to return to work, and that respondent's actions amounted to a wrongful discharge. He prayed for damages consisting of loss of past and future earnings and for attorneys' fees. Respondent removed the case to the United States District Court and there moved to dismiss the complaint for failure to exhaust the remedies provided by the § 3 First (i) of the Railway Labor Act, 44 Stat. 579, as amended, 48 Stat. 1191, 45 U.S.C. § 153 First (i). See also 1966 amendments to § 3 Second, 80 Stat. 208. The District Court granted the motion, and the Court of Appeals for the Fifth Circuit affirmed. We granted certiorari, 404 U.S. 955, 92 S.Ct. 309, 30 L.Ed.2d 271, and are once more confronted with the question of whether Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), should be overred.
2
Moore held that a railroad employee who elected to treat his employer's breach of the employment contract as a discharge was not required to resort to the remedies afforded under the Railway Labor Act for adjustment and arbitration of grievances, but was free to commence in state court an action based on state law for breach of contract. The result was supported by the Court's conclusion that the procedures for adjustment of 'minor disputes' under the Railway Labor Act had been intended by Congress to be optional, not compulsory, and that therefore a State was free to accord an alternative remedy to a discharged railroad employees under its law of contracts. The basic holding of Moore was reaffirmed and its state law aspects amplified in Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325 (1953). There it was held that if state law required the employee to exhaust administrative remedies provided for in his contract of employment before resorting to court, a federal diversity court should enforce that requirement.
3
Later cases from this Court have repudiated the reasoning advanced in support of the result reached in Moore v. Illinois Central, supra. Fifteen years ago, in Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 39, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957), this Court canvassed the relevant legislative history and said:
4
'This record is convincing that there was general understanding between both the supporters and the opponents of the 1934 amendment that the provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field.'
5
When the issue was again before the Court in Walker v. Southern R. Co., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294 (1966), it was observed:
6
'Provision for arbitration of a discharge grievance, a minor dispute, is not a matter of voluntary agreement under the Railway Labor Act; the Act compels the parties to arbitrate minor disputes before the National Railroad Adjustment Board established under the Act.' 385 U.S., at 198, 87 S.Ct., at 366.
7
Thus, the notion that the grievance and arbitration procedures provided for minor disputes in the Railway Labor Act are optional, to be availed of as the employee or the carrier chooses, was never good history and is no longer good law.
8
The related doctrine expressed in Moore and Koppal, that a railroad employee's action for breach of an employment contract is created and governed by state law, has been likewise undercut by later decisions. In International Association of Machinists v. Central Airlines, 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963), an agreement required under § 204 of the Railway Labor Act was said to be 'like the Labor Management Relations Act § 301 contract . . . a federal contract and . . . therefore governed and enforceable by federal law, in the federal courts.' 372 U.S., at 692, 83 S.Ct., at 692. A similar result was reached under § 301(a) of the Labor Management Relations Act in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).
9
In Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), the Court deduced from the Labor Management Relations Act a preference for the settlement of disputes in accordance with contractually agreed-upon arbitration procedures. It accordingly held that before a state court action could be maintained for breach of such a contract, the employee must first 'attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.' 379 U.S., at 652, 85 S.Ct., at 616. In Maddox, the Court not only refused to extend Moore to save state court actions for breach of contract under § 301 of the Labor Management Relations Act, but intimated that its rule might well not survive even in Railway Labor Act cases. Indeed, since the compulsory character of the administrative remedy provided by the Railway Labor Act for disputes such as that between petitioner and respondent stems not from any contractual undertaking between the parties but from the Act itself, the case for insisting on resort to those remedies is if anything stronger in cases arising under that Act than it is in cases arising under § 301 of the LMRA.
10
The fact that petitioner characterizes his claim as one for 'wrongful discharge' does not save it from the Act's mandatory provisions for the processing of grievances. Petitioner argues that his election to sever his connection with the employer and treat the latter's alleged breach of the employment contract as a 'discharge' renders his claim sufficiently different from the normal disputes over the interpretation of a collective-bargaining agreement to warrant carving out an exception to the otherwise mandatory rule for the submission of disputes to the Board. But the very concept of 'wrongful discharge' implies some sort of statutory or contractual standard that modifies the traditional common-law rule that a contract of employment is terminable by either party at will. Here it is conceded by all that the only source of petitioner's right not to be discharged, and therefore to treat an alleged discharge as a 'wrongful' one that entitles him to damages, is the collective-bargaining agreement between the employer and the union. Respondent in this case vigorously disputes any intent on its part to discharge petitioner, and the pleadings indicate that the disagreement turns on the extent of respondent's obligation to restore petitioner to his regular duties following injury in an automobile accident. The existence and extent of such an obligation in a case such as this will depend on the interpretation of the collective-bargaining agreement. Thus petitioner's claim, and respondent's disallowance of it, stem from differing interpretations of the collective-bargaining agreement. The fact that petitioner intends to hereafter seek employment elsewhere does not make his present claim against his employer any the less a dispute as to the interpretation of a collective-bargaining agreement. His claim is therefore subject to the Act's requirement that it be submitted to the Board for adjustment.
11
The constitutional issue discussed in the dissent was not set forth as a 'question presented for review' in the petition for certiorari, and therefore our Rule 23(1)(c) precludes our consideration of it. 'We do not reach for constitutional questions not raised by the parties.' Mazer v. Stein, 347 U.S. 201, 206 n. 5, 74 S.Ct. 460, 464, 98 L.Ed. 630 (1954).
12
The term 'exhaustion of administrative remedies' in its broader sense may be an entirely appropriate description of the obligation of both the employee and carrier under the Railway Labor Act to resort to dispute settlement procedures provided by that Act. It is clear, however, that in at least some situations the Act makes the federal administrative remedy exclusive, rather than merely requiring exhaustion of remedies in one forum before resorting to another. A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959). He is limited to the judicial review of the Board's proceedings that the Act itself provides, Gunther v. San Diego & A.E.R. Co., 382 U.S. 257, 86 S.Ct. 368, 15 L.Ed.2d 308 (1965). In such a case the proceedings afforded by 45 U.S.C. § 153 First (i), will be the only remedy available to the aggrieved party.
13
In Walker v. Southern R. Co., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294 (1966), the Court noted that there had been complaints not only about the long delay in processing of grievances on the part of the Adjustment Boards, but also about the fact that a more extensive right of judicial review of Board action was accorded to carriers than to employees. The Court noted that Congress, by Public Law 89—456, 80 Stat. 208, effective June 20, 1966, had legislated to correct these difficulties, but observed that the employee in Walker had not had the benefit of these new procedures. It therefore declined, 'in his case,' 385 U.S., at 199, 87 S.Ct., at 367, to overrule Moore. Petitioner Andrews, however, would in the prosecution of his claim before the Adjustment Board have the benefit of these improved procedures. We now hold that he must avail himself of them, and in so doing we necessarily overrule Moore v. Illinois Central R. Co., supra.
14
Affirmed.
15
Mr. Justice POWELL took no part in the consideration or decision of this case.
16
Mr. Justice DOUGLAS, dissenting.
17
* If this employee wanted reinstatement and back pay, there would be merit in remitting him to the remedies under the Railway Labor Act. But he does not want that relief. Rather, he desires to quit the railroad, to have no further jobs with it, and to be compensated in dollars for his wrongful discharge.
18
The cases on which the Court relies to overrule Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, are quite different. Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, involved claims of existing employees, not for damages for wrongful discharge, but for 'additional compensation' and for 'reinstatement,' and involved a 'minor' dispute, that is, a controversy 'over the meaning of an existing collective bargaining agreement.' Id., at 32—33, 77 S.Ct., at 637; International Association of Machinists v. Central Airlines, 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67, also involved reinstatement 'without loss of seniority and with back pay.' Id., at 683, 83 S.Ct., at 657. In Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580, the aggrieved employee wanted 'serverance pay' allegedly owed under the collective-bargaining agreement. Id., at 650—651, 85 S.Ct., at 614—615. In Walker v. Southern R. Co., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294, the dispute basically involved an issue of seniority, though the opinion does not disclose it.1
19
The complaint in this case alleges that following an automobile accident, in which the petitioner-employee was involved, the company refused to allow him to go to work on the ground he had not recovered sufficiently to perform his former duties. No issue involving the collective-bargaining agreement was tendered. Petitioner—rightly or wrongly—claimed this was a discharge and that under Georgia law, governing the place where he worked, he had been deprived of wages from the time he recovered from the accident, and that he was deprived 'of the expectancy of future earnings * * * until the date of his scheduled retirement.'
20
In other words, he asks for no relief under the collective agreement, he does not ask for reinstatement or severance pay, he does not ask for continued employment. He is finished with this railroad, and turns to other activities; he seeks no readmission to the collective group that works for the railroad. He leaves it completely and seeks damages for having been forced out.2
21
To remit him to the National Railroad Adjustment Board is to remit him to an agency that has no power to act on this claim. We said as much in Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. That case involved a grievance that 'concerned interpretation of an existing bargaining agreement.' Id., at 242, 70 S.Ct., at 579. We therefore held that the employee first had to exhaust his remedies before the Adjustment Board. We distinguished the case from Moore as follows:
22
'Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board.' 339 U.S., at 244, 70 S.Ct., at 580. (Emphasis added.)
23
The Adjustment Board has considerable expertise in construing and applying collective-bargaining agreements, as respects severance pay, seniority, disciplinary actions by management, and the various aspects of reinstatement. But the body of law governing the discharge of employees who do not want or seek reinstatement is not found in customs of the shop or in the collective agreement but in the law of the place where the employee works. The Adjustment Board is not competent to apply that law. In the first place the members of the four divisions of the Adjustment Board authorized by 45 U.S.C. § 153 First (b) presumably do not know the local law governing the employee-employer relationships in all of the States where railroads run. In the second place, the personnel of these divisions of the Adjustment Board may occasionally have lawyers on them but law-trained members are the exception, not the rule. In the third place, an employee seeking damages for reinstatement is normally entitled to a jury trial; and no division of the Adjustment Board ever pretends to serve in that role.
24
The Board, we now know, is made up of laymen; those laymen have no insight into the nuances of Georgia law on the question of damages, and they obviously cannot even purport to give the remedy in damages which a 'court suit' entails.
25
The regime of mediation and arbitration under collective-bargaining agreements, such as the one we upheld in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, and those we have cited under the Railway Labor Act, are important in stabilizing relations between unions and employers. See U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 355—356, 91 S.Ct. 409, 411—412, 27 L.Ed.2d 456. But where the collective-bargaining agreement is not directly involved, and certainly where the individual employee, who tenders his grievance, wants to quit the railroad scene and go elsewhere and sever his communal relation with union and railroad, the case falls out of the ambit of authority given to the mediation or arbitration agencies.
26
The courthouse is the forum for that litigant and I would never close its door to him, unless the mandate of Congress were clear. Even then I do not see how the Seventh Amendment could be circumvented: 'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.'
27
Though the case is in the federal courts, this employee sues to enforce a common-law right recognized by the State of Georgia. The only place he can get a trial by jury is in a court. If he sues under a collective-bargaining agreement, he does not sue at common law but under a statutory federal regime. Yet that is not this case.
28
Everyone who joins a union does not give up his civil rights. If he wants to leave the commune and assert his common-law rights, I had supposed that no one could stop him. I think it important under our constitutional regime to leave as much initiative as possible to the individual. What the Court does today is ruthlessly to regiment a worker and force him to sacrifice his constitutional rights in favor of a union. I would give him a choice to pursue such rights as he has under the collective agreement and stay with the union,3 or to quit it and the railroad and free himself from a regime which he finds oppressive. I would construe the federal law as giving the employee that choice. The choice imposed by the Court today raises serious constitutional questions4 on which we have not had the benefit of any argument.
29
This is a plain, ordinary, common-law suit not dependent on any term or provision of a collective-bargaining agreement. I cannot, therefore, join those who would close the courthouse door to him. Under the First Amendment, as applied to the States by the Fourteenth, he is petitioning the Government 'for a redress of grievances' in the traditional manner of suitors at common law; and by the Seventh Amendment is entitled to a jury trial.
II
30
As noted, my basic disagreements with the majority concern the validity of the two assumptions implicit in its holding: (a) that the collective agreement will be sufficiently implicated in this dispute to warrant the application of federal substantive law, and (b) that Congress has vested the Board with jurisdiction to entertain nonreinstatement grievances such as Andrews' complaint. But, even taking these assumptions as correct for purposes of argument, I believe the Court has erred.
31
The majority does not hold that Congress has mandated that the statutory procedure be the exclusive route for adjusting Andrews' grievance. Indeed, that path was foreclosed by our decision in Walker v. Southern R. Co., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294, holding that prior to the 1966 amendments Congress had evinced no such purpose, and by the fact that nothing in the 1966 amendments themselves evidences an intention to render the statutory channel exclusive for nonreinstatement claims.5 Rather, today's result is grounded in the authority of the federal courts to fashion the substantive law to be applied to collective agreements. International Association of Machinists v. Central Airlines, 372 U.S. 682, 695, 83 S.Ct. 956, 963, 10 L.Ed.2d 67; see also Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. Even under that assumption, I would not impose the exhaustion requirement upon this narrow and readily identifiable group of dischargees.
32
There is no equation of the substantive law to govern agreements under § 301 of the Labor Management Relations Act, into which exclusive arbitration clauses may voluntarily be inserted by the parties and the substantive law to govern railroad contracts, onto which the statutory grievance procedure is superimposed by law. One would not suppose that every doctrine developed under the Labor Management Relations Act, 61 Stat. 136, should be carried over into the apparatus created by the Railway Labor Act. A salutary doctrine under one measure may serve no worthwhile purpose under the other. Yet today the majority transplants the Maddox rule in the foreign soil of the railroad world without any discussion of the ends to be served. Even Maddox cautioned against that result, stating that any overruling of Moore should come only after 'the various distinctive features of the administrative remedies provided by (the Railway Labor) Act can be appraised in context, e.g., the make-up of the Adjustment Board, the scope of review from monetary awards, and the ability of the Board to give the same remedies as could be obtained by court suit.' 379 U.S., at 657 n. 14, 85 S.Ct., at 619.
33
It is said that the fact that Congress (rather than private parties as in Maddox) fashioned the instant adjustment procedure somehow reinforces a presumption of exclusivity. Yet it is difficult to perceive how that can be when it is also conceded, as mentioned earlier, that Congress itself has never designed its prescription to be the sole avenue of redress for this limited class of claimants. Rather, the significance of the statutory source of this procedure lies in its inflexibility and immunity from modification through collective bargaining. Unlike the Maddox rule, what is done today cannot be undone tomorrow through contract negotiation.6 That difference would seem to warrant caution to ensure that more is to be gained than lost by closing the courthouse door.
34
One clear disadvantage counsels against today's holding. Given the nature of permanent dischargees' weak positions vis-a -vis their former unions, the personnel manning the adjustment mechanism, its haphazard decisional process, and the absence of judicial review of Board decisions, the risk is substantial that valid complaints of permanent dischargees such as Andrews will be unfairly treated.
35
The machinery erected by the Railway Labor Act was not meant to be judicial in nature. Rather, it was designed as an arbitration process in which the union and the carrier occupy opposite sides of a bargaining table. As a substitute for the economic battleground, the process envisions decisionmaking on the basis of strength and accountability to the interests represented. Unions will often press one grievance at the expense of another. If Andrews were a continuing union member perhaps he would receive equal representation. But because the union will not have to answer to him if his claim is lost the union may yield its merit in the logrolling process carried on with management. I now have doubt that the reasoning of Maddox was sound insofar as we opined that a union agent will have sufficient interest in faithfully prosecuting the complaint of a former member who 'has lost his job and is most likely outside the union door looking in instead of on hand to push for his claim.' 379 U.S., at 653, 85 S.Ct., at 616 (majority opinion), and id., at 668, 85 S.Ct., at 624 (Black, J., dissenting). Indeed, only this Term in Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass, 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341, we refused to permit a union to represent nonvoting pensioners, holding that under the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq., the company was not required to bargain with respect to pension plans affecting inactive retirees. We reasoned that '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.'7 Id., at 173, 92 S.Ct., at 394.
36
Beyond the inherent risk of compromise of a dischargee's claim there lie still further obstacles to fair treatment. First, the internal procedures used by the Board are far afield from those normally associated with impartial adjudication. The Board is exempt from the Administrative Procedure Act, § 2(a)(1), 5 U.S.C. § 551(1). One account of its ad hoc procedures leaves little doubt that before that forum Andrews will have no means of proving his allegations:
37
'As the Board has operated in practice, the procedures followed in holding hearings have been quite informal and have differed from the trial-type hearings conducted by other agencies established and maintained by the Federal Government. Disputes are referred to the Adjustment Board by the filing of written submissions. Each submission contains a statement of claim, accompanied by a statement of facts. If the parties can agree, a joint statement of facts is filed; if they cannot agree, separate submissions are filed, stating the facts separately. All submissions are in writing. Parties may be heard in person, by counsel, or by other representatives as they elect. . . . It would be most extraordinary for live testimony to be given by witnesses. There is not requirement that a factual submission or other written statement be sworn. There is no cross-examination of witnesses and no record or transcript of the proceedings. There is no provision for issuance of subpenas or compulsory attendance of witnesses.' Hearing on H.R. 706 (1966 Railway Labor Act amendments) before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 89th Cong., 2d Sess., 49 (1966).
38
All of this might be made tolerable if at some point in his journey Andrews could look forward to a judge's inquiry into the affair. But the fact is that whatever order by whatever process the Board may enter will be virtually immune from any judicial review because an award, either of the Adjustment Board or of a special board, is reviewable only for fraud or for lack of jurisdiction. 45 U.S.C. § 153 First (p) (proviso).
39
On the other side of the balance, it could not be claimed that permitting a judicial remedy (in addition to an administrative one) would risk economic warfare, especially in light of the estranged relationship of permanent dischargees to their former unions. Nor could it be claimed that a judicial remedy would risk nonuniformity in interpretation of collective agreements inasmuch as courts as well as the Board would be obliged to apply a single body of federal common law. See Maddox, supra, 379 U.S. at 658 n. 15, 85 S.Ct., at 619.
40
In summary, the danger of unfair treatment of the clearly identifiable class of dischargees represented by Andrews is so great, without any compensating advantages, that I would not confine these claimants to the administrative remedy.
1
References throughout the opinion to respondent are to the Georgia Railroad Co., which consisted of properties leased by Louisville & Nashville Railroad Co. and Seaboard Coastline Railroad Co. The petitioner alleged in his complaint that the Georgia Railroad Co. had refused to allow him to return to work.
1
The opinion of the Court of Appeals in the Walker case makes clear that the seniority dispute was based on the collective agreement. 4 Cir., 354 F.2d 950.
2
The Georgia law of 'wrongful discharge' seems to amount to a set of common-law axioms of construction to fill in the ambiguities in employment contracts and employment relationships. If there is a contract, however, which expressly addresses the issue, the contract, and not the construction axioms, controls. For example, unless a contract provides otherwise, disobedience is a ground for discharge, Georgia Coast & Piedmont R. Co. v. McFarland, 132 Ga. 639, 64 S.E. 897, as is disrespectful language, Wade v. Hefner, 16 Ga.App. 106, 84 S.E. 598. If the employment contract, whether oral or written, provides that the worker may be fired only if his performance is unsatisfactory, he may not be discharged only for economic necessity, Lummus Cotton Gin v. Baugh, 29 Ga.App. 498, 116 S.E. 51, although 'mitigating factors' may generally be a defense. Walker v. Jenkins, 32 Ga.App. 238, 123 S.E. 161.
But where the language of the agreement is clear, that language controls and not the rules of construction. Thus, if the parties provide that the employer may fire at will, no discharge can be wrongful, Webb v. Warren Co., 113 Ga.App. 850, 149 S.E.2d 867.
The general presumption is that hiring is terminable at will, unless some definite period of employment is provided or inferable from the relationship. Ga.Code Ann. § 66—101 (master and servant). The intent of the parties is the guide to determine if the courts may look to custom or the pay interval, if the contract is otherwise ambiguous. Odom v. Bush, 125 Ga. 184, 53 S.E. 1013. Thus, if the worker is paid monthly, he must be given 30 days' notice.
As to damages, once it is shown that the discharge was wrongful, the measure of damages is the difference between the rate of pay and what the dischargee might have been able to earn in other employment. Ga.Code Ann. § 4—216. The fact that the employer prevented the employee from performing the remainder of the service is not a bar to recover on that portion of the term. Irwin v. Young, 91 Ga.App. 773, 87 S.E.2d 322.
For Andrews to recover on a damages theory, it appears that it would be necessary for him to show first that he was not dischargeable at will. We do not know from the pleadings what proof Andrews will tender. So far as we can now tell the collective agreement is not in issue. His complaint does not state the source of the employer's duty; and respondents allege that the collective agreement creates no such duty. As to damages it is also impossible to say that any terms of the collective agreement will be relevant to this dispute.
3
The Board is currently disposing of petitions at the rate of about 1,500 annually. At that rate the Board will eliminate its present backlog of slightly more than 3,000 cases in two years. Thirty-Seventh Annual Report of the National Mediation Board 95 (Table 9) (1971).
4
Constitutional issues not raised by the parties are at times passed upon by the Court. For a notorious example, see Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Butler, J.'s comments, id., at 88—89, 58 S.Ct., at 827. See also Mapp v. Ohio, 367 U.S. 643, 673—677, 81 S.Ct. 1684, 1701—1704, 6 L.Ed.2d 1081 (Harlan, J., dissenting); Redrup v. New York, 386 U.S. 767, 771—772, 87 S.Ct. 1414, 1416—1417, 18 L.Ed.2d 515 (Harlan, J., dissenting).
5
Nothing in the 1966 amendments nor their related legislative history even suggests or hints at a design to overrule Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. See H.R.Rep.No.1114, 89th Cong., 1st Sess. (1965); S.Rep.No.1201, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin.News 1966, p. 2285.
6
It was expressly observed by the majority in Republic Steel Corp. v. Maddox, 379 U.S. 650, 657—658, 85 S.Ct. 614, 618 619, 13 L.Ed.2d 580, that bargaining parties could avoid the force of that opinion simply by agreeing that arbitration was not the exclusive remedy.
7
One commentator on the Act has warned that representation by a union may be a critical factor in obtaining a favorable award: '(A)n individual's efforts will presumably be less effective than that of a union, particularly since the grievance will ultimately be resolved by a board composed in part of representatives of affected unions.' Risher, The Railway Labor Act, 12 B.C.Ind. & Com.L.Rev. 51, 72 (1970). The plight of the unionless grievant is more alarming when viewed in light of the unsatisfactory record under the Act: 'The Railway Labor Act is special privilege legislation, the product of the once great political power of the railroad unions. It has been administered as such. This accounts for the dismal administrative records of the National Mediation Board and the National Railroad Adjustment Board in . . . protection of individual rights, and grievance adjustments.' Northrup, Foreword to Risher, The Railway Labor Act, supra, at 52.
| 78
|
406 U.S. 272
92 S.Ct. 1571
32 L.Ed.2d 61
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.BURNS INTERNATIONAL SECURITY SERVICES, INC., et al. BURNS INTERNATIONAL SECURITY SERVICES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD et al.
Nos. 71—123, 71—198.
Argued Jan. 13, 1972.
Decided May 15, 1972.
Syllabus
Wackenhut Corp., a company that had provided plant protection service for a Lockheed Aircraft Service Co. factory, had entered into a collective-bargaining agreement with the United Plant Guard Workers (UPG), the union certified by the National Labor Relations Board (NLRB) as the representative of a majority of Wackenhut guards at the plant after an NLRB election. A few months later, Wackenhut's service contract expired, and it was succeeded by Burns International Security Services, which knew of the collective-bargaining agreement. Burns employed 27 of the 42 Wackenhut guards but refused to recognize UPG or to honor the agreement, and denied any obligation to bargain with UPG. The NLRB found that Burns violated §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act by failing to recognize and bargain with UPG and by refusing to honor the collective-bargaining agreement, and ordered Burns to abide by the terms of the agreement and to 'give retroactive effect to all the clauses of said (Wackenhut) contract and, with interest of 6 percent, make whole its employees for any losses suffered by reason of Respondent's (Burns') refusal to honor, adopt and enforce said contract.' The Court of Appeals held that the NLRB had exceeded its powers in ordering Burns to honor the contract executed by Wackenhut. Held:
1. Where the bargaining unit remained unchanged and a majority of the employees hired by the new employer were represented by a recently certified bargaining agent, the NLRB correctly implemented the express mandates of §§ 8(a)(5) and 9(a) of the Act by ordering the new employer, Burns, to bargain with the incumbent union, UPG. Pp. 277—281.
2. While successor employers may be bound to recognize and bargain with the incumbent union, they are not bound by the substantive provisions of a collective-bargaining agreement negotiated by their predecessors but not agreed to or assumed by them. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898, distinguished. Pp. 281—291.
3. The NLRB's order for monetary restitution to Burns' employees cannot be sustained on the ground that Burns committed an unfair labor practice by inilaterally changing existing terms and conditions of employment. Burns had no previous relationship to the unit and no outstanding terms and conditions of employment, so that Burns did not change its terms and conditions of employment when it specified the initial basis on which it would hire employees when it inaugurated its protection service at the plant. Pp. 292—296.
441 F.2d 911, affirmed.
Norton J. Come, Washington, D.C., for National Labor Relations Board.
Gordon A. Gregory, Detroit, Mich., for International Union, United Plant Guard Workers of America.
Charles G. Bakaly, Jr., Los Angeles, Cal., for Burns International Security Services, Inc.
Mr. Justice WHITE delivered the opinion of the Court.
1
Burns International Security Services, Inc. (Burns), replaced another employer, the Wackenhut Corp. (Wackenhut), which had previously provided plant protection services for the Lockheed Aircraft Service Co. (Lockheed) located at the Ontario International Airport in California. When Burns began providing security service, it employed 42 guards; 27 of them had been employed by Wackenhut. Burns refused, however, to bargain with the United Plant Guard Workers of America (UPG) which had been certified after a National Labor Relations Board (Board) election as the exclusive bargaining representative of Wackenhut's employees less than four months earlier. The issues presented in this case are whether Burns refused to bargain with a union representing a majority of employees in an appropriate unit and whether the National Labor Relations Board could order Burns to observe the terms of a collective-bargaining contract signed by the union and Wackenhut that Burns had not voluntarily assumed. Resolution turns to a great extent on the precise facts involved here.
2
* The Wackenhut Corp. provided protection services at the Lockheed plant for five years before Burns took over this task. On February 28, 1967, a few months before the changeover of guard employers, a majority of the Wackenhut guards selected the union as their exclusive bargaining representative in a Board election after Wackenhut and the union had agreed that the Lockheed plant was the appropriate bargaining unit. On March 8, the Regional Director certified the union as the exclusive bargaining representative for these employees, and, on April 29, Wackenhut and the union entered into a three-year collective-bargaining contract.
3
Meanwhile, since Wackenhut's one-year service agreement to provide security protection was due to expire on June 30, Lockheed had called for bids from various companies supplying these services, and both Burns and Wackenhut submitted estimates. At a pre-bid conference attended by Burns of May 15, a representative of Lockheed informed the bidders that Wachenhut's guards were represented by the union, that the union had recently won a Board election and been certified, and that there was in existence a collective-bargaining contract between Wackenhut and the union. App. 4—5, 126.1 Lockheed then accepted Burns' bid, and on May 31 Wackenhut was notified that Burns would assume responsibility for protection services on July 1. Burns chose to retain 27 of the Wackenhut guards, and it brought in 15 of its own guards from other Burns locations.
4
During June, when Burns hired the 27 Wackenhut guards, it supplied them with membership cards of the American Federation of Guards (AFG), another union with which Burns had collective-bargaining contracts at other locations, and informed them that they had to become AFG members to work for Burns, that they would not receive uniforms otherwise, and that Burns 'could not live with' the existing contract between Wackenhut and the union. On June 29, Burns recognized the AFG on the theory that it had obtained a card majority. On July 12, however, the UPG demanded that Burns recognize it as the bargaining representative of Burns' employees at Lockheed and that Burns honor the collective-bargaining agreement between it and Wackenhut. When Burns refused, the UPG filed unfair labor practice charges, and Burns responded by challenging the appropriateness of the unit and by denying its obligation to bargain.
5
The Board, adopting the trial examiner's findings and conclusions, found the Lockheed plant an appropriate unit and held that Burns had violated §§ 8(a)(2) and 8(a)(1) of the National Labor Relations Act, 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. §§ 158(a)(2), 158(a)(1), by unlawfully recognizing and assisting the AFG, a rival of the UPG; and that it had violated §§ 8(a)(5) and 8(a)(1), 29 U.S.C. §§ 158(a)(5), 158(a)(1), by filing to recognize and bargain with the UPG and by refusing to honor the collective-bargaining agreement that had been negotiated between Wackenhut and UPG.2
6
Burns did not challenge the § 8(a)(2) unlawful assistance finding in the Court of Appeals but sought review of the unit determination and the order to bargain and observed the pre-existing collective-bargaining contract. The Court of Appeals accepted the Board's unit determination and enforced the Board's order insofar as it related to the finding of unlawful assistance of a rival union and the refusal to bargain, but it held that the Board had exceeded its powers in ordering Burns to honor the contract executed by Wackenhut. Both Burns and the Board petitioned for certiorari, Burns challenging the unit determination and the bargaining order and the Board maintaining its position that Burns was bound by the Wackenhut contract, and we granted both petitions, though we declined to review the propriety of the bargaining unit, a question which was presented in No. 71—198. 404 U.S. 822, 92 S.Ct. 99, 30 L.Ed.2d 49 (1971).
II
7
We address first Burns' alleged duty to bargain with the union, and in doing so it is well to return to the specific provisions of the Act, which courts and the Board alike are bound to observe. Section 8(a)(5) as amended by the Labor Management Relations Act, 1947, 29 U.S.C. § 158(a)(5), makes it an unfair labor practice for an employer 'to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.' Section 159(a) provides that '(r)epresentatives 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 . . ..' Because the Act itself imposes a duty to bargain with the representative of a majority of the employees in an appropriate unit, the initial issue before the Board was whether the charging union was such a bargaining representative.
8
The trial examiner first found that the unit designated by the regional director was an appropriate unit for bargaining. The unit found appropriate was defined as '(a)ll full-time and regular part-time employees of (Burns) performing plant protection duties as determined in Section 9(b)(3) of the (National Labor Relations) Act at Lockheed, Ontario International Airport; excluding office clerical employees, professional employees, supervisors, and all other employees as defined in the Act.' This determination was affirmed by the Board, accepted by the Court of Appeals, and is not at issue here because pretermitted by our limited grant of certiorari.
9
The trial examiner then found, inter alia, that Burns 'had in its employ a majority of Wackenhut's former employees,' and that these employees had already expressed their choice of a bargaining representative in an election held a short time before. Burns was therefore held to have a duty to bargain, which arose when it selected as its work force the employees of the previous employer to perform the same tasks at the same place they had worked in the past.
10
The Board, without revision, accepted the trial examiner's findings and conclusions with respect to the duty to bargain, and we see no basis for setting them aside. In an election held but a few months before, the union had been designated bargaining agent for the employees in the unit and a majority of these employees had been hired by Burns for work in the identical unit. It is undisputed that Burns knew all the relevant facts in this regard and was aware of the certification and of the existence of a collective-bargaining contract. In these circumstances, it was not unreasonable for the Board to conclude that the union certified to represent all employees in the unit still represented a majority of the employees and that Burns could not reasonably have entertained a good-faith doubt about that fact. Burns' obligation to bargain with the union over terms and conditions of employment stemmed from its hiring of Wackenhut's employees and from the recent election and Board certification. It has been consistently held that a mere change of employers or of ownership in the employing industry is not such an 'unusual circumstance' as to affect the force of the Board's certification within the normal operative period if a majority of employees after the change of ownership or management were employed by the preceding employer. NLRB v. Downtown Bakery Corp., 330 F.2d 921, 925 (CA6 1964); NLRB v. McFarland, 306 F.2d 219, 221 (CA10 1962); NLRB v, Auto Ventshade, Inc., 276 F.2d 303, 307 (CA5 1960); NLRB v. Lunder Shoe Corp., 211 F.2d 284, 286 (CA1 1954); NLRB v. Armato, 199 F.2d 800, 803 (CA 7 1952); South Carolina Granite Co., 58 N.L.R.B. 1448, 1463—1464 (1944), enforced sub nom. NLRB v. Blair Quarries, Inc., 152 F.2d 25 (CA4 1945); Northwest Glove Co., 74 N.L.R.B. 1697, 1700 (1947); Johnson Ready Mix Co., 142 N.L.R.B. 437, 442 (1963).3
11
It goes without saying, of course, that Burns was not entitled to upset what it should have accepted as an established union majority by soliciting representation cards for another union and thereby committing the unfair labor practice of which it was found guilty by the Board. That holding was not challenged here and makes it imperative that the situation be viewed as it was when Burns shired its employees for the guard unit, a majority of whom were represented by a Board-certified union. See NLRB v. Gissel Packing Co., 395 U.S. 575, 609, 610—616, 89 S.Ct. 1918, 1937, 1938—1941, 23 L.Ed.2d 547 (1969).
12
It would be a wholly different case if the Board had determined that because Burns' operational structure and practices differed from those of Wackenhut, the Lockheed bargaining unit was no longer an appropriate one.4 Likewise, it would be different if Burns had not hired employees already represented by a union certified as a bargaining agent,5 and the Board recognized as much at oral argument.6 But where the bargaining unit remains unchanged and a majority of the employees hired by the new employer are represented by a recently certified bargaining agent there is little basis for faulting the Board's implementation of the express mandates of § 8(a)(5) and § 9(a) by ordering the employer to bargain with the incumbent union. This is the view of several courts of appeals, and we agree with those courts. NLRB v. Zayre Corp., 424 F.2d 1159, 1162 (CA5 1970); Tom-A-Hawk Transit, Inc. v. NLRB, 419 F.2d 1025, 1026—1027 (CA7 1969); S. S. Kresge Co. v. NLRB, 416 F.2d 1225, 1234 (CA6 1969); NLRB v. McFarland, 306 F.2d at 220.
III
13
It does not follow, however, from Burns' duty to bargain that it was bound to observe the substantive terms of the collective-bargaining contract the union had negotiated with Wackenhut and to which Burns had in no way agreed. Section 8(d) of the Act expressly provides that the existence of such bargaining obligation 'does not compel either party to agree to a proposal or require the making of a concession.' Congress has consistently declined to interfere with free collective bargaining7 and has preferred that device, or voluntary arbitration, to the imposition of compulsory terms as a means of avoiding or terminating labor disputes. In its report accompanying the 1935 Act, the Senate Committee on Education and Labor stated:
14
'The committee wishes to dispel any possible false impression that this bill is designed to compel the making of agreements or to permit governmental supervision of their terms. It must be stressed that the duty to bargain collectively does not carry with it the duty to reach an agreement, because the essence of collective bargaining is that either party shall be free to decide whether proposals made to it are satisfactory.' S.Rep.No.573, 74th Cong., 1st Sess., 12 (1935).
15
This Court immediately noted this fundamental theme of the legislation: '(The Act) does not compel any agreement whatever. . .. The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel.' NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893 (1937). See also NLRB v. American National Insurance Co., 343 U.S. 395, 401—402, 72 S.Ct. 824, 828, 96 L.Ed. 1027 (1952); Local 357, Intern. Broth. of Teamsters, etc. v. NLRB, 365 U.S. 667, 676—677, 81 S.Ct. 835, 840—841, 6 L.Ed.2d 11 (1961).
16
Section 8(d), 29 U.S.C. § 158(d), made this policy an express statutory mandate, and was enacted in 1947 because Congress feared that 'the present Board has gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make. . . . (U)nless Congress writes into the law guides for the Board to follow, the Board may attempt to carry this process still further and seek to control more and more the terms of collective bargaining agreements.' H.R.Rep.No.245, 80th Cong., 1st Sess., 19—20 (1947).
17
This history was reviewed in detail and given controlling effect in H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). There this Court, while agreeing that the employer violated § 8(a)(5) by adamantly refusing to agree to a dues checkoff, intending thereby to frustrate the consummation of any bargaining agreement, held that the Board had erred in ordering the employer to agree to such a provision:
18
'(W)hile the Board does have power . . . to require employers and employees to negotiate, it is without power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement.
19
'It would be anomalous indeed to hold that while § 8(d) prohibits the Board from relying on a refusal to agree as the sole evidence of bad-faith bargaining, the Act permits the Board to compel agreement in that same dispute. The Board's remedial powers under § 10 of the Act are broad, but they are limited to carrying out the policies of the Act itself. One of these fundamental policies is freedom of contract.' 397 U.S., at 102, 108, 90 S.Ct., at 823, 826 (citations omitted).
20
These considerations, evident from the explicit language and legislative history of the labor laws, underlay the Board's prior decisions, which until now have consistently held that, although successor employers may be bound to recognize and bargain with the union, they are not bound by the substantive provisions of a collective-bargaining contract negotiated by their predecessors but not agreed to or assumed by them. Rohlik, Inc., 145 N.L.R.B. 1236, 1242 n. 15 (1964); General Extrusion Co. 121 N.L.R.B. 1165, 1168 (1958); Jolly Giant Lumber Co., 114 N.L.R.B. 413, 414 (1955); Slater System Maryland, Inc., 134 N.L.R.B. 865, 866 (1961); Matter of ILWU (Juneau Spruce), 82 N.L.R.B. 650, 658—659 (1949), enforced, 189 F.2d 177, 13 Alaska 291 (CA9 1951), aff'd on other grounds, 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275 (1952). As the Court of Appeals said in this case, 'In none of the previous successorship cases has the Board ever reached that result. The successor has always been held merely to have the duty of bargaining with his predecessor's union.'8 441 F.2d, at 915.
21
The Board, however, has now departed from this view and argues that the same policies which mandate a continuity of bargaining obligation also require that successor employers be bound to the terms of a predecessor's collective-bargaining contract. It asserts that the stability of labor relations will be jeopardized and that employees will face uncertainty and a gap in the bargained-for terms and conditions of employment, as well as the possible loss of advantages gained by prior negotiations, unless the new employer is held to have assumed, as a matter of federal labor law, the obligations under the contract entered into by the former employer. Recognizing that under normal contract principles a party would not be bound to a contract in the absence of consent, the Board notes that in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964), the Court declared that 'a collective bargaining agreement is not an ordinary contract' but is, rather, an outline of the common law of a particular plant or industry. The Court held in Wiley that although the predecessor employer which had signed a collective-bargaining contract with the union had disappeared by merger with the successor, the union could compel the successor to arbitrate the extent to which the successor was obligated under the collective-bargaining agreement. The Board contends that the same factors that the Court emphasized in Wiley, the peaceful settlement of industrial conflicts and 'protection (of) the employees (against) a sudden change in the employment relationship,' id., at 549, 84 S.Ct., at 914, require that Burns be treated under the collective-bargaining contract exactly as Wackenhut would have been if it had continued protecting the Lockheed plant.
22
We do not find Wiley controlling in the circumstances here. Wiley arose in the context of a § 301 suit to compel arbitration, not in the context of an unfair labor practice proceeding where the Board is expressly limited by the provisions of § 8(d). That decision emphasized '(t)he preference of national labor policy for arbitration as a substitute for tests of strength before contending forces' and held only that the agreement to arbitrate, 'construed in the context of a national labor policy,' survived the merger and left to the arbitrator, subject to judicial review, the ultimate question of the extent to which, if any, the surviving company was bound by other provisions of the contract. Id., at 549, 551, 84 S.Ct., at 914, 915.
23
Wiley's limited accommodation between the legislative endorsement of freedom of contract and the judicial preference for peaceful arbitral settlement of labor disputes does not warrant the Board's holding that the employer commits an unfair labor practice unless he honors the substantive terms of the pre-existing contract. The present case does not involve a § 301 suit; nor does it involve the duty to arbitrate. Rather, the claim is that Burns must be held bound by the contract executed by Wackenhut, whether Burns has agreed to it or not and even though Burns made it perfectly clear that it had no intention of assuming that contract. Wiley suggests no such open-ended obligation. Its narrower holding dealt with a merger occurring against a background of state law that embodied the general rule that in merger situatins the surviving corporation is liable for the obligations of the disappearing corporation. See N.Y. Stock Corporation Law § 90 (1951); 15 W. Fletcher, Private Corporations, § 7121 (1961 rev. ed.). Here there was no merger or sale of assets, and there were no dealings whatsoever between Wackenhut and Burns. On the contrary, they were competitors for the same work, each bidding for the service contract at Lockheed. Burns purchased nothing from Wackenhut and became liable for none of its financial obligations. Burns merely hired enough of Wackenhut's employees to require it to bargain with the union as commanded by § 8(a)(5) and § 9(a). But this consideration is a wholly insufficient basis for implying either in fact or in law that Burns had agreed or must be held to have agreed to honor Wackenhut's collective-bargaining contract.
24
We agree with the Court of Appeals that the Board failed to heed the admonitions of the H. K. Porter case. Preventing industrial strife is an important aim of federal labor legislation, but Congress has not chosen to make the bargaining freedom of employers and unions totally subordinate to this goal. When a bargaining impasse is reached, strikes and lockouts may occur. This bargaining freedom means both that parties need not make any concessions as a result of Government compulsion and that they are free from having contract provisions imposed upon them against their will. Here, Burns had notice of the existence of the Wackenhut collective-bargaining contract, but it did not consent to be bound by it. The source of its duty to bargain with the union is not the collective-bargaining contract but the fact that it voluntarily took over a bargaining unit that was largely intact and that had been certified within the past year. Nothing in its actions, however, indicated that Burns was assuming the obligations of the contract, and 'allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based—private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract.' H. K. Porter Co. v. NLRB, 397 U.S., at 108, 90 S.Ct., at 826.
25
We also agree with the Court of Appeals that holding either the union or the new employer bound to the substantive terms of an old collective-bargaining contract may result in serious inequities. A potential employer may be willing to take over a moribund business only if he can make changes in corporate structure, composition of the labor force, work location, task assignment, and nature of supervision. Saddling such an employer with the terms and conditions of employment contained in the old collective-bargaining contract may make these changes impossible and may discourage and inhibit the transfer of capital. On the other hand, a union may have made concessions to a small or failing employer that it would be unwilling to make to a large or economically successful firm. The congressional policy manifest in the Act is to enable the parties to negotiate for any protection either deems appropriate, but to allow the balance of bargaining advantage to be set by economic power realities. Strife is bound to occur if the concessions that must be honored do not correspond to the relative economic strength of the parties.
26
The Board's position would also raise new problms, for the successor employer would be circumscribed in exactly the same way as the predecessor under the collective-bargaining contract. It would seemingly follow that employees of the predecessor would be deemed employees of the successor, dischargeable only in accordance with provisions of the contract and subject to the grievance and arbitration provisions thereof.9 Burns would not have been free to replace Wackenhut's guards with its own except as the contract permitted. Given the continuity of employment relationship, the pre-existing contract's provisions with respect to wages, seniority rights, vacation privileges, pension and retirement fund benefits, job security provisions, work assignments and the like would devolve on the successor. Nor would the union commit a § 8(b)(3) unfair labor practice if it refused to bargain for a modification of the agreement effective prior to the expiration date of the agreement.10 A successor employer might also be deemed to have inherited its predecessor's pre-existing contractual obligations to the union that had accrued under past contracts and that had not been discharged when the business was transferred. '(A) successor may well acquire more liabilities as a result of Burns than appear on the face of a contract.'11 Finally, a successor will be bound to observe the contract despite good-faith doubts about the union's majority during the time that the contract is a bar to another representation election, Ranch-Way, Inc., 183 N.L.R.B. No. 116 (1970).12 For the above reasons, the Board itself has expressed doubts as to the general applicability of its Burns rule.13
27
In many cases, of course, successor employers will find it advantageous not only to recognize and bargain with the union but also to observe the pre-existing contract rather than to face uncertainty and turmoil. Also, in a variety of circumstances involving a merger, stock acquisition, reorganization, or assets purchase, the Board might properly find as a matter of fact that the successor had assumed the obligations under the old contract. Cf. Oilfield Maintenance Co., 142 N.L.R.B. 1384 (1963). Such a duty does not, however, ensue as a matter of law from the mere fact that an employer is doing the same work in the same place with the same employees as his predecessor, as the Board had recognized until its decision in the instant case. See cases cited supra, at 284. We accordingly set aside the Board's finding of a § 8(a)(5) unfair labor practice insofar as it rested on a conclusion that Burns was required to but did not honor the collective-bargaining contract executed by Wackenhut.
IV
28
It therefore follows that the Board's order requiring Burns to 'give retroactive effect to all the clauses of said (Wackenhut) contract and, with interest of 6 percent, make whole its employees for any losses suffered by reason of Respondent's (Burns') refusal to honor, adopt and enforce said contract' must be set aside.14 We note that the regional director's charge instituting this case asserted that '(o)n or about July 1, 1967, Respondent (Burns) unilaterally changed existing wage rates, hours of employment, overtime wage rates, differentials for swing shift and graveyard shift, and other terms and conditions of employment of the employees in the appropriate unit . . .,' App. 113, and that the Board's opinion stated that '(t)he obligation to bargain imposed on a successor-employer includes the negative injunction to refrain from unilaterally changing wages and other benefits established by a prior collective-bargaining agreement even though that agreement had expired. In this respect, the successor-employer's obligations are the same as those imposed upon employers generally during the period between collective-bargaining agreements.' App. 8—9. This statement by the Board is consistent with its prior and subsequent cases that hold that whether or not a successor employer is bound by its predecessor's contract, it must not institute terms and conditions of employment different from those provided in its predecessor's contract, at least without first bargaining with the employees' representative. Overnite Transportation Co., 157 N.L.R.B. 1185 (1966), enforced sub nom. Overnite Transportation Co. v. NLRB, 372 F.2d 765 (CA 4), cert. denied, 389 U.S. 838, 88 S.Ct. 59, 19 L.Ed.2d 101 (1967); Valleydale Packers, Inc., 162 N.L.R.B. 1486 (1967), enforced sub nom. NLRB v. Valleydale Packers, Inc., 402 F.2d 768 (CA 5, 1968); Michaud Bus Lines, Inc., 171 N.L.R.B. 193 (1968); Emerald Maintenance, Inc., 188 N.L.R.B. No. 139 (1971). Thus, if Burns, without bargaining to impasse with the union, had paid its employees on and after July 1 at a rate lower than Wackenhut had paid under its contract, or otherwise provided terms and conditions of employment different from those provided in the Wackenhut collective-bargaining agreement, under the Board's view, Burns would have committed a § 8(a)(5) unfair labor practice and would have been subject to an order to restore to employees what they had lost by this so-called unilateral change. See Overnite Transportation Co., supra; Emerald Maintenance, Inc., supra.
29
Although Burns had an obligation to bargain with the union concerning wages and other conditions of employment when the union requested it to do so, this case is not like a § 8(a)(5) violation where an employer unilaterally changes a condition of employment without consulting a bargaining representative. It is difficult to understand how Burns could be said to have changed unilaterally any pre-existing term or condition of employment without bargaining when it had no previous relationship whatsoever to the bargaining unit and, prior to July 1, no outstanding terms and conditions of employment from which a change could be inferred. The terms on which Burns hired employees for service after July 1 may have differed from the terms extended by Wackenhut and required by the collective-bargaining contract, but it does not follow that Burns changed its terms and conditions of employment when it specified the initial basis on which employees were hired on July 1.
30
Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms. In other situations, however, it may not be clear until the successor employer has hired his full complement of employees that he has a duty to bargain with a union, since it will not be evident until then that the bargaining representative represents a majority of the employees in the unit as required by § 9(a) of the Act, 29 U.S.C. § 159(a). Here, for example, Burns' obligation to bargain with the union did not mature until it had selected its force of guards late in June. The Board quite properly found that Burns refused to bargain on July 12 when it rejected the overtures of the union. It is true that the wages it paid when it began protecting the Lockheed plant on July 1 differed from those specified in the Wackenhut collective-bargaining agreement, but there is no evidence that Burns ever unilaterally changed the terms and conditions of employment it had offered to potential employees in June after its obligation to bargain with the union became apparent. If the union had made a request to bargain after Burns had completed its hiring and if Burns had negotiated in good faith and had made offers to the union which the union rejected, Burns could have unilaterally initiated such proposals as the opening terms and conditions of employment on July 1 without committing an unfair labor practice. Cf. NLRB v. Katz, 369 U.S. 736, 745, n. 12, 82 S.Ct. 1107, 1113, 8 L.Ed.2d 230 (1962); NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 272—273 (CA2) cert. denied, 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64 (1963); NLRB v. Southern Coach & Body Co., 336 F.2d 214, 217 (CA5 1964). The Board's order requiring Burns to make whole its employees for any losses suffered by reason of Burns' refusal to honor and enforce the contract, cannot therefore be sustained on the ground that Burns unilaterally changed existing terms and conditions of employment, thereby committing an unfair labor practice which required monetary restitution in these circumstances.
31
Affirmed.
32
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice POWELL join, concurring in No. 71 123 and dissenting in No. 71—198.
33
Although the Court studiously avoids using the term 'successorship' in concluding that Burns did have a statutory obligation to bargain with the union, it affirms the conclusions of the Board and the Court of Appeals to that effect which were based entirely on the successorship doctrine. Because I believe that the Board and the Court of Appeals stretched that concept beyond the limits of its proper application, I would enforce neither the Board's bargaining order nor its order imposing upon Burns the terms of the contract between the union and Wackenhut. I therefore concur in No. 71—123 and dissent in No. 71—198.
34
The National Labor Relations Act imposes upon an employer the obligation 'to . . . bargain collectively with the representatives of his employees . . ..' 29 U.S.C. § 158(a)(5). It also defines those representatives, in § 159(a), as '(r)epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes .. ..' The union must establish its status as a majority representative either by one of the methods discussed in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), or because its certification as a representative of the employees of another employer binds Burns as a 'successor.' The Court concludes that because the trial examiner and the Board found the Lockheed facility to be an appropriate bargaining unit for Burns' employees, and because Burns hired a majority of Wackenhut's previous employees who had worked at that facility, Burns should have bargained with the union, even though the union never made any showing to Burns of majority representation. There is more than one difficulty with this analysis.
35
First, it is by no means mathematically demonstrable that the union was the choice of a majority of the 42 employees with which Burns began the performance of its contract with Lockheed. True, 27 of the 42 had been represented by the union when they were employees of Wackenhut, but there is nothing in the record before us to indicate that all 27 of these employees chose the union as their bargaining agent even at the time of negotiations with Wackenhut. There is obviously no evidence whatever that the remaining 15 employees of Burns, who had never been employed by Wackenhut, had ever expressed their views one way or the other about the union as a bargaining representative. It may be that, if asked, all would have designated the union. But they were never asked. Instead, the trial examiner concluded that because Burns was a 'successor' employer to Wackenhut, it was obligated by that fact alone to bargain with the union.
36
The second problem with the Court's reasoning is that it relies on the Board's approval of the Lockheed plant as an appropriate unit to support its conclusion that Burns must bargain with the union. While it is true, as the Court notes, that the trial examiner and the Board found the Lockheed facility to be an appropriate bargaining unit for Burns' employees, it is equally true that the trial examiner's finding to this effect was clearly dependent upon the previous stipulation between Wackenhut and the union.1 One of the reasons asserted by Burns for declining to recognize the union was its belief that the single Lockheed facility was not an appropriate bargaining unit. This was more than a colorable claim. Unlike Wackenhut, Burns had never bargained with a union consisting of its employees in a single job location. One of the reasons for this difference was that Burns made a practice of transferring employees from one job to another, on a temporary or permanent basis. Both Burns and Wackenhut had numerous security guard jobsites in Southern California; for administrative purposes, Wackenhut treated each jobsite as a separate unit, while Burns treated large numbers of them together.
37
The Court says in effect that the Burns employees at Lockheed were found by the Board to be an appropriate unit; that Burns has not expressly preserved that point for review here; and that Burns is therefore obligated to bargain with the previously certified union. But the major premise leading to this conclusion, the determination of the appropriate unit, was itself established by the Board and sustained by the Court of Appeals solely under the doctrine of successorship. Burns in neither required to expressly challenge the designation of the bargaining unit, nor to prevail in such a challenge in order to demonstrate the error in the bargaining order. Burns has expressly challenged the determination that underlay both the determination as to bargaining unit and the bargaining order—the finding of successorship.
38
Thus, in a situation where there was no evidence at the time as to the preference of a majority of the employees at the Lockheed facility as to a bargaining agent, and there was no independent finding that the employees at that facility were an appropriate unit as to Burns, the Board nonetheless imposed the duty to bargain. This result is sustainable, if at all, only on the theory that Burns was a 'successor' to Wackenhut.2 The imposition of successorship in this case is unusual because the successor instead of purchasing business or assets from or merging with Wackenhut was in direct competition with Wackenhut for the Lockheed contract. I believe that a careful analysis of the admittedly imprecise concept of successorship indicates that important rights of both the employee and the employer to independently order their own affairs are sacrificed needlessly by the application of that doctrine to this case.
39
It has been aptly observed that the doctrine of 'successor' employer in the field of labor law is 'shrouded in somewhat impressionist approaches.'3 In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), we employed a form of the 'successor' doctrine to impose upon an employer an obligation to arbitrate disputes under an arbitration clause in an agreement entered into between a predecessor employer and the bargaining representative of the latter's employees. The doctrine has been applied by the Board and by the courts of appeals to impose upon the successor employer a duty to bargain with representatives of the employees of his predecessor, NLRB v. Auto Ventshade, Inc., 276 F.2d 303, 304 (CA5 1960); Makela Welding, Inc. v. NLRB, 387 F.2d 40, 46 (CA6 1967), to support a finding of unfair labor practices from a course of conduct engaged in by both the predecessor and the successor, NLRB v. Blair Quarries, Inc., 152 F.2d 25 (CA4 1945), and to require the successor to remedy unfair labor practices committed by a predecessor employer, United States Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (CA5 1968). The consequences of the application of the 'successor' doctrine in each of these cases has been that the 'successor' employer has been subjected to certain burdens or obligations to which a similarly situated employer who is not a 'successor' would not be subject.
40
The various decisions that have applied the successor doctrine exhibit more than one train of reasoning in support of its application. There is authority for the proposition that it rests in part at least upon the need for continuity in industrial labor relations, and the concomitant avoidance of industrial strife that presumably follows from such continuity. NLRB v. Colten, 105 F.2d 179 (CA6 1939); Tom-A-Hawk Transit, Inc. v. NLRB, 419 F.2d 1025 (CA7 1969). On examination, however, this proposition may nore accurately be described as a statement of the result of a finding of successorship, rather than a reason for making that finding.
41
Other cases have stated the guiding principle to be whether the 'employing industry' remains essentially the same after the change in ownership. NLRB v. Tempest Shirt Mfg. Co., 285 F.2d 1 (CA5 1960); NLRB v. Alamo White Truck Service, Inc., 273 F.2d 238 (CA5 1959). Under this approach a variety of facts relating to the 'employing industry' have been examined to see whether a sufficient number remain unchanged to warrant the imposition of successorship. While it cannot be doubted that a determination as to successorship will vary with different fact situations, some general concept of the reason for the successorship doctrine is essential in order to determine the importance of the various factual combinations and permutations that may or may not call for its application.
42
This Court's opinion in Wiley makes it clear that one of the bases for a finding of successorship is the need to grant some protection to employees from a sudden transformation of their employer's business that results in the substitution of a new legal entity, not bound by the collective-bargaining contract under contract law, as the employer, but leaves intact significant elements of the employer's business. The Court said there:
43
'The objectives of national labor policy, reflected in established principles of federal law, require that the rightful prerogative of owners independently to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the employees from a sudden change in the employment relationship. The transition from one corporate organization to another will in most cases be eased and industrial strife avoided if employees' claims continue to be resolved by arbitration rather than by 'the relative strength . . . of the contending forces,' . . ..' 376 U.S., at 549, 84 S.Ct., at 914.
44
But other language in Wiley makes it clear that the considerations favoring the continuity of existing bargaining relationships are not without their limits:
45
'We do not hold that in every case in which the ownership or corporate structure of an enterprise is changed the duty to arbitrate survives. As indicated above, there may be cases in which the lack of any substantial continuity of identity in the business enterprise before and after a change would make a duty to arbitrate something imposed from without, not reasonably to be found in the particular bargaining agreement and the acts of the parties involved.' 376 U.S., at 551, 84 S.Ct., at 915.
46
The conflicting implications in these portions of the opinion in Wiley suggest that employees are indeed entitled to a measure of protection against change in the employing entity where the new employer continues to make use of tangible or intangible assets used in carrying on the business of the first employer. They also make clear that the successorship doctrine, carried to its ultimate limits, runs counter to other equally well-established principles of labor law. Industrial peace is an important goal of the Labor Management Relations Act. But Congress has time and again refused to sacrifice free collective bargaining between representatives of the employees and the employer for a system of compulsory arbitration.4 As the Court said in NLRB v. Insurance Agents, 361 U.S. 477, 488, 80 S.Ct. 419, 426, 4 L.Ed.2d 454 (1960):
47
'The mainstream of cases before the Board and in the courts reviewing its orders, under the provisions fixing the duty to bargain collectively, is concerned with insuring that the parties approach the bargaining table with this attitude (good faith). But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences.'
48
And this Court has recently held that the Board itself may not compel one of the parties in the collective-bargaining process to agree to any particular proposal of the other. H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). Conceivably the imposition of a system of compulsory arbitration, or the granting of authority to the Board to insist that the parties at some point agree on particular terms of a potential contract, would lessen the risk of industrial strife. But Congress has plainly been unwilling to purchase industrial peace at the price of substantial curtailment of free collective bargaining by the freely chosen representatives of the employees with their employer.
49
There is also a natural tension between the constraints imposed on employers by the Labor Management Relations Act, and the right of those employers in competition with one another 'independently to rearrange their businesses and even eliminate themselves as employers.' Wiley, 376 U.S., at 549, 84 S.Ct., at 914. An employer's ability to compete in his market is affected, of course, by the terms of whatever collective-bargaining agreement he negotiates with the representative of his employees. Aside from the direct influence on price brought about by the terms jof a collective-bargaining agreement, the collective-bargaining process itself presents a certain cost factor that may affect competition between employers in the market.5 The national commitment to collective bargaining embodied in the Labor Management Relations Act either requires or permits many of these constraints. But quite reasonable expectations of the employees in a particular collective-bargaining unit may be disappointed by a voluntary change in the condition of the employer that is quite incapable of being remedied by any rational application of the successorship doctrine. An employer is free to cease doing business, even though he chooses to do so wholly because of anti-union animus. Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). An employer may adamantly refuse, at the expiration of the period covered by a collective-bargaining agreement, to again consent to a particular term of the agreement that the employees regarded as significant. NLRB v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). These examples of permissible employer conduct for which the Labor Management Relations Act provides no remedy, notwithstanding that the conduct results in the disappointment of legitimate expectations of employees, suggest that the successorship principle, like every other principle of law, has limits beyond which it may not be expanded.
50
Wiley, supra, speaks in terms of a change in the 'ownership or corporate structure of an enterprise' as bringing into play the obligation of the successor employer to perform an obligation voluntarily undertaken by the predecessor employer. But while the principle enunciated in Wiley is by no means limited to the corporate merger situation present there, it cannot logically be extended to a mere naked shifting of a group of employees from one employer to another without totally disregarding the basis for the doctrine. The notion of a change in the 'ownership or corporate structure of an enterprise' connotes at the very least that there is continuity in the enterprise, as well as change; and that that continuity be at least in part on the employer's side of the equation, rather than only on that of the employees. If we deal with the legitimate expectations of employees that the employer who agreed to the collective-bargaining contract perform it, we can require another employing entity to perform the contract only when he has succeeded to some of the tangible or intangible assets by the use of which the employees might have expected the first employer to have performed his contract with them.
51
Phrased another way, the doctrine of successorship in the federal common law of labor relations accords to employees the same general protection against transfer of assets by an entity against which they have a claim as is accorded by other legal doctrines to nonlabor-related claimants against the same entity. Nonlabor-related claimants in such transfer situations may be protected not only by assumption agreements resulting from the self-interest of the contracting parties participating in a merger or sale of assets but also by state laws imposing upon the successor corporation of any merger the obligations of the merged corporation (see, e.g., § 90 of the New York Stock Corporation Law (1951), cited in Wiley, supra), and by bulk sales acts found in numerous States.6 These latter are designed to give the nonlaborrelated creditor of the predecessor entity some claim, either as a matter of contract right against the successor, or as a matter of property right to charge the assets that pass from the predecessor to the successor. The implication of Wiley is that the federal common law of labor relations accords the same general type and degree of protection to employees claiming under a collective-bargaining contract.
52
Cases from the courts of appeals have found successorship, consistently with these principles, where the new employer purchases a part or all of the assets of the predecessor employer, NLRB v. Interstate 65 Corp., 453 F.2d 269 (CA6 1971); where the entire business is purchased by the new employer, NLRB v. McFarland, 306 F.2d 219 (CA10 1962); and where there is merely a change in the ownership interest in a partnership that operates the employing entity, NLRB v. Colten, 105 F.2d 179 (CA6 1939). Other courts of appeals have, equally consistently with these principles, refused to find successorship where there have been no contractual dealings between the two employers, and all that has taken place is a shift in employees. Tri State Maintenance Corp. v. NLRB, 132 U.S.App.D.C. 368, 408 F.2d 171 (1968); International Assn. of Machinists, District Lodge 94 v. NLRB, 134 U.S.App.D.C. 239, 414 F.2d 1135 (1969).7
53
The rigid imposition of a prior-existing labor relations environment on a new employer whose only connection with the old employer is the hiring of some of the latter's employees and the performance of some of the work which was previously performed by the latter, might well tend to produce industrial peace of a sort. But industrial peace in such a case would be produced at a sacrifice of the determination by the Board of the appropriateness of bargaining agents and of the wishes of the majority of the employees which the Act was designed to preserve. These latter principles caution us against extending successorship, under the banner of industrial peace, step by step to a point where the only connection between the two employing entities is a naked transfer of employees. Justice Holmes in Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908), summarized the general problem this way:
54
'All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.'
55
Burns acquired not a single asset, tangible or intangible, by negotiation or transfer from Wackenhut. It succeeded to the contractual rights and duties of the plant protection service contract with Lockheed, not by reason of Wackenhut's assignment or consent, but over Wackenhut's vigorous opposition. I think the only permissible conclusion is that Burns is not a successor to Wackenhut. Following its decision in this case, the Board concluded in Lincoln Private Police, 189 N.L.R.B. No. 103 (1971), that an employer of guards was not a successor, saying:
56
'Respondent, moreover, has operated as an entirely new and independent business enterprise. It obtained its own operating capital, purchased new uniforms, vehicles, and equipment, and occupied different premises than Industrial. Additionally, there is no indication that there has been any carryover of supervisory personnel from Industrial to Respondent.'
57
See also Tri State Maintenance Corp. v. NLRB, supra.
58
To conclude that Burns was a successor to Wackenhut in this situation, with its attendant consequences under the Board's order imposing a duty to bargain with the bargaining representative of Wackenhut's employees, would import unwarranted rigidity into labor-management relations. The fortunes of competing employers inevitably ebb and flow, and an employer who has currently gained production orders at the expense of another may well wish to hire employees away from that other. There is no reason to think that the best interests of the employees, the employers, and ultimately of the free market are not served by such movement. Yet inherent in the expanded doctrine of successorship that the Board urges in this case is the notion that somehow the 'labor relations environment' comes with the new employees if the new employer has but obtained orders or business that previously belonged to the old employer. The fact that the employees in the instant case continued to perform their work at the same situs, while not irrelevant to the analysis, cannot be deemed controlling. For the rigidity that would follow from the Board's application of successorship to this case would not only affect competition between Wackenhut and Burns, but would also affect Lockheed's operations. In effect, it would be saddled, as against its competitors, with the disadvantageous consequences of a collective-bargaining contract unduly favorable to Wackenhut's employees, even though Lockheed's contract with Wackenhut was set to expire at a given time. By the same token, it would be benefited, at the expense of its competitors, as a result of a 'sweetheart' contract negotiated between Wackenhut and its employees. From the viewpoint of the recipient of the services, dissatisfaction with the labor relations environment may stimulate a desire for change of contractors. E.g., Tri State Maintenance Corp. v. NLRB, supra; 76 Lab.Rel.Rep. 230 (1971). Where the relation between the first employer and the second is as attenuated as it is here, and the reasonable expectations of the employees equally attenuated, the application of the successorship doctrine is not authorized by the Labor Management Relations Act.
59
This is not to say that Burns would be unilaterally free to mesh into its previously recognized Los Angeles County bargaining unit a group of employees such as were involved here who already have designated a collective-bargaining representative in their previous employment. Burns' actions in this regard would be subject to the commands of the Labor Management Relations Act, and to the regulation of the Board under proper application of governing principles. The situation resulting from the addition of a new element of the component work force of an employer has been dealt with by the Board in numerous cases, and various factors are weighed in order to determine whether the new workforce component should be itself a separate bargaining unit, or whether the employees in this component shall be 'accreted' to the bargaining unit already in existence. See, e.g., NLRB v. Food Employers Council, Inc., 399 F.2d 501 (CA9 1968); Northwest Galvanizing Co., 168 N.L.R.B. 26 (1967). Had the Board made the appropriate factual inquiry and determinations required by the Act, such inquiry might have justified the conclusion that Burns was obligated to recognize and bargain with the union as a representative of its employees at the Lockheed facility.
60
But the Board, instead of applying this type of analysis to the union's complaints here, concluded that because Burns was a 'successor' it was absolutely bound to the mold that had been fashioned by Wackenhut and its employees at Lockheed. Burns was thereby precluded from challenging the designation of Lockheed as an appropriate bargaining unit for a year after the original certification. 61 Stat. 144, 29 U.S.C. § 159(c)(3).
61
I am unwilling to follow the Board this far down the successorship road, since I believe to do so would substantially undercut the principle of free choice of bargaining representatives by the employees and designation of the appropriate bargaining unit by the Board that are guaranteed by the Act.
1
A Burns executive later admitted in the unfair-labor-practice proceeding that Burns was aware of the union's status, the unit certification, adn the collective-bargaining contract after the May 15 meeting. App. 105.
2
In regard to this latter finding, the Board stated:
'The question before us thus narrows to whether the national labor policy embodied in the Act requires the successor-employer to take over and honor a collective-bargaining agreement negotiated on behalf of the employing enterprise by the predecessor. We hold that, absent unusual circumstances, the Act imposes such an obligation.
'We find, therefore, that Burns is bound to that contract as if it were a signatory thereto, and that its failure to maintain the contract in effect is violative of Sections 8(d) and 8(a)(5) of the Act.'
3
Cf. § 9(c)(3) of the NLRA, 29 U.S.C. § 159(c)(3), which provides that '(n) o election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period a valid election shall have been held.' See NLRB v. Gissel Packing Co., 395 U.S. 595, 599 n. 14, 89 S.Ct. 1918, 1932, 23 L.Ed.2d 547 (1969).
Where an employer remains the same, a Board certification carries with it an almost conclusive presumption that the majority representative status of the union continues for a reasonable time, usually a year. See Brooks v. NLRB, 348 U.S. 96, 98—99, 75 S.Ct. 176, 178—179, 99 L.Ed. 125 (1954). After this period, there is a rebuttable presumption of majority representation. Celanese Corp. of America, 95 N.L.R.B. 664, 672 (1951). If there is a change of employers, however, and an almost complete turnover of employees, the certification may not bar a challenge if the successor employer is not bound by the collective-bargaining contract, particularly if the new employees are represented by another union or if the old unit is ruled an accretion to another unit. Cf. McGuire v. Humble Oil & Refining Co., 355 F.2d 352 (CA2), cert. denied, 384 U.S. 988, 86 S.Ct. 1889, 16 L.Ed.2d 1004 (1966). See n. 5, infra.
4
The Court of Appeals was unimpressed with the asserted differences between Burns' and Wackenhut's operations: 'All of the important factors which the Board has used and the courts have approved are present in the instant case: 'continuation of the same types of product lines, departmental organization, employee identity and job functions.' . . . Both Burns and Wackenhut are nationwide organizations; both performed the identical services at the same facility; although Burns used its own supervisors, their functions and responsibilities were similar to those performed by their predecessors; and finally, and perhaps most significantly, Burns commenced performance of the contract with 27 former Wackenhut employees out of its total complement of 42.' 441 F.2d 911, 915 (1971) (citation omitted). Although the labor policies of the two companies differed somewhat, the Board's determination that the bargaining unit remained appropriate after the changeover meant that Burns would face essentially the same labor relations environment as Wackenhut: it would confront the same union representing most of the same employees in the same unit.
5
The Board has never held that the National Labor Relations Act itself requires that an employer who submits the winning bid for a service contract or who purchases the assets of a business be obligated to hire all of the employees of the predecessor though it is possible that such an obligation might be assumed by the employer. But cf. Chemrock Corp., 151 N.L.R.B. 1074 (1965). However, an employer who declines to hire employees solely because they are members of a union commits a § 8(a)(3) unfair labor practice. See K.B. & J. Young's Super Markets, Inc. v. NLRB, 377 F.2d 463 (CA9), cert. denied, 389 U.S. 841, 88 S.Ct. 71, 19 L.Ed.2d 105 (1967); NLRB v. New England Tank Industries, Inc., 302 F.2d 273 (CA1), cert. denied, 371 U.S. 875, 83 S.Ct. 147, 9 L.Ed.2d 114 (1962); Piasecki Aircraft Corp. v. NLRB, 280 F.2d 575 (CA3 1960), cert. denied, 364 U.S. 933, 81 S.Ct. 380, 5 L.Ed.2d 365 (1961); Tri-State Maintenance Corp., 167 N.L.R.B. 933 (1967), enforced with mod. sub nom. Tri State Maintenance Corp. v. NLRB, 132 U.S.App.D.C. 368, 408 F.2d 171 (1968). Further restrictions on the successor employer's choice of employees would seem to follow from the Board's instant decision that the employer must honor the pre-existing collective-bargaining contract. See infra, at 1582 1583.
6
'Q. But (counsel for the Union), when he argued, said that even if (Burns) hadn't taken over any (employees of Wackenhut), even if they hadn't taken over a single employee, the legal situation would be the same.
'Mr. Come (for the NLRB). We do not go that far. We don't think that you have to go that far in—
'Q. Do you think it has to be a majority?
'Mr. Come. I wouldn't say that it has to be a majority, I think it has to be a substantial number. It has to be enough to give you a continuity of employment conditions in the bargaining unit.' Tr. of Oral Arg. 64—65.
7
Two exceptions to this general reluctance to interfere with free collective bargaining are the imposition of compulsory arbitration during wartime, Exec.Order No. 9017 (1942), and, on occasion, in the railroad industry, 77 Stat. 132, 81 Stat. 122. Congress has consistently rejected compulsory arbitration even as a remedy for 'national emergency' disputes, however. See Goldberg, The Labor Law Obligations of a Successor Employer, 63 Nw.U.L.Rev. 735, 742—743 (1969).
8
When the union that has signed a collective-bargaining contract is decertified, the succeeding union certified by the Board is not bound by the prior contract, need not administer it, and may demand negotiations for a new contract, even if the terms of the old contract have not yet expired. American Seating Co., 106 N.L.R.B. 250 (1953); Farmbest, Inc., 154 N.L.R.B. 1421, 1453 1454 (1965), enf. with mod. sub nom. Farmbest, Inc. v. NLRB, 370 F.2d 1015 (CA8 1967); see also Modine Mfg. Co. v. Grand Lodge International Association on Machinists, 216 F.2d 326 (CA6 1954). The board has declined to overturn its 'long standing' American Seating rule after Burns. General Dynamics Corp., 184 N.L.R.B. No. 71 (1970).
9
The vast majority of collective-bargaining agreements specify the procedures to be used in choosing employees for available jobs, and approximately 92% of all such contracts place some limitations on the right to discharge. Collective Bargaining Negotiations and Contracts §§ 40:1, 60:11 (BNA 1971). Under the Board's theory, if a successor refused to hire or fired any of the predecessor's employees without going through applicable grievance procedures, it might be guilty of a § 8(a)(5) refusal to bargain. See NLRB v,. Strong, 393 U.S. 357, 359, 89 S.Ct. 541, 544, 21 L.Ed.2d 546 (1969); NLRB v. Hutting Sash & Door Co., 377 F.2d 964, 968—969 (CA8 1967).
10
Section 8(d) of the Act provides, in part:
'(W)here 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 not be construed 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.' 29 U.S.C. § 158(d).
11
Doppelt, Successor Companies: The NLRB Limits the Options and Raises Some Problems, 20 DePaul L.Rev. 176, 191 (1971).
12
The Board imposes this contract-bar rule for the term of a collective bargaining of 'reasonable duration,' a period the Board now defines as three years. General Cable Corp., 139 N.L.R.B. 1123 (1962). Also during this time, an employer cannot use doubt about a union's majority as a defense to a refusal-to-bargain charge. Oilfield Maintenance Co., 142 N.L.R.B. 1384, 1387 (1963); Hexton Furniture Co., 111 N.L.R.B. 342 (1955). Prior to Burns, the Board had held that a successor was barred by the contract of the predecessor from requesting a representation election during the term of the contract only if it had assumed the contract. Jolly Giant Lumber Co., 114 N.L.R.B. 413 (1955); General Extrusion Co., 121 N.L.R.B. 1165 (1958); MV Dominator, 162 N.L.R.B. 1514 (1967). Moreover, such assumption had to be by an express written agreement. American Concrete Pipe of Hawaii, Inc., 128 N.L.R.B. 720 (1960). The Board had also permitted a non-assuming successor to raise a good-faith doubt as to the union's majority as a defense to a refusal-to-bargain charge during the term of the old contract. Randolph Rubber Co., 152 N.L.R.B. 496 (1965); Mitchell Standard Corp., 140 N.L.R.B. 496 (1963).
13
Emerald Maintenance, Inc., 188 N.L.R.B. No. 139 (1971). Emerald involved a civilian contractor who undertook to provide certain maintenance services at an Air Force base. During the preceding year, the same services had been performed by two other companies whose employees were represented by a union that had negotiated collective-bargaining agreements that had not yet expired. The employer performed the work with substantially the same employee complement as had its predecessors. The Board held that the employer had a duty to recognize and bargain with the union but could not agree with the trial examiner that the employer was bound by the provisions of the contract, emphasizing in this respect the impact of the Service Contract Act of 1965, 79 Stat. 1034. The case was considered as presenting unusual circumstances justifying an exception to the Burns rule; the Board noted that '(t)his case suggests the hazards of enforcing the contracts of one employer against a successor where annual rebidding normally produces annual changes in contractor identity. These circumstances might encourage less arms'-length collective bargaining whenever the employer had reason to expect that it would not be awarded the next succeeding annual service contract.' An amicus strongly contends that the Emerald rule is inconsistent with Burns and is based on a misreading of the legislative history of the Service Contract Act of 1965. Brief for AFL—CIO as Amicus Curiae 23 n. 2.
14
In its entirety, the Board's order required Burns to:
'1. Cease and desist from:
'(a) Refusing to bargain collectively, upon request, with the Union as the exclusive bargaining representative of its employees in the above-described unit.
'(b) Refusing to adopt, honor and enforce its contract with the Union, as successor of Wackenhut.
'(c) Assisting or recognizing AFG as the representative of its employees for the purposes of collective bargaining, unless and until said labor organization shall have been certified as the exclusive bargaining representative of said employees in an appropriate unit.
'(d) Interfering with representation of its employees through labor organizations of their own choosing.
'(e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to join or assist the Union or otherwise engage in activities protected by the Act.
'2. Take the following affirmative action which is necessary to effectuate the policies of the Act:
'(a) Withdraw and withhold recognition from AFG until or unless it is certified as bargaining representative of Respondent's employees in an appropriate unit.
'(b) Bargain collectively, upon request, with the Union and, if any understanding is reached, embody such understanding in a signed agreement.
'(c) Honor, adopt and enforce the contract between Respondent, as successor to Wackenhut, and the Union and give retroactive effect to all the clauses of said contract and, with interest of 6 percent, make whole its employees for any losses suffered by reason of Respondent's refusal to honor, adopt and enforce said contract.
'(d) Post at its Lockheed, Ontario, California, operations copies of the notice attached hereto as 'Appendix.' Copies of said notice, to be furnished by the Regional Director for Region 31, shall after being signed by Respondent's authorized representative, be posted by it immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced or covered by any other material.
'(e) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Recommended Order what steps Respondent has taken to comply herewith.'
1
'While a broader unit might have been appropriate, I find a unit of guards limited to a single facility as an appropriate unit. Here, the certification was pursuant to a consent election agreement.' Trial Examiner's decision, App. 22.
'Trial Examiner: I am not concerned with whether or not there was a hearing. The Regional Director approved of the consent election and stipulation, and the election having taken place, I would find that the Regional Director's action was properly conducted in due course. . . .' Proceedings before the NLRB, App. 68.
2
The Court's emphasis, ante, at 275—276, on the Board's determination that Burns committed unfair practices by aiding the AFG cannot be taken as any support for the bargaining order. It merely supports the cease-and-desist order directing Burns to stop such practices, which has not been challenged here by Burns.
3
International Assn. of Machinists, etc. v. NLRB, 134 U.S.App.D.C. 239, 243, 414 F.2d 1135, 1139 (1969) (Leventhal, J., concurring).
4
'Except in isolated instances, . . . Congress and the Supreme Court have refused to compel, or even to allow, that form of governmental compulsion of economic decisions which has come to be called 'compulsory arbitration." Jones, Compulsion and the Consensual in Labor Arbitration, 51 Va.L.Rev. 369 (1965).
'In dealing with the problem of the direct settlement of labor disputes the committee has considered a great variety of the proposals ranging from compulsory arbitration, the establishment of fact-finding boards, creation of an over-all mediation tribunal, and the imposition of specified waiting periods. . . . (W)e do not feel warranted in recommending that any such plans become permanent legislation.' S.Rep.No.105, 80th Cong., 1st Sess., 13 (1947).
See also the speech by Senator Taft, during debate on the Taft-Hartley Act, 90 Cong.Rec. 3835—3836, cited in Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 395 n. 21, 71 S.Ct. 359, 366, 95 L.Ed. 364 (1951).
5
The General Accounting Office has recognized that bidders for a cost-plus-fee subcontract to NASA, who dealt with different unions, could be evaluated by NASA on the basis of varying costs that collective bargaining itself might generate. 76 Lab.Rel.Rep. 230 (1971).
6
Uniform Commercial Code §§ 6—101 to 6—111.
7
A finding of successorship has been upheld, on the other hand, by one court of appeals where there were no contractual dealings between the two employers, and the successor employer merely replaced the predecessor as a successful bidder for a transit transchise. Tom-A-Hawk Transit, Inc. v. NLRB, 419 F.2d 1025 (CA7 1969).
| 67
|
406 U.S. 341
92 S.Ct. 1693
32 L.Ed.2d 141
John A. STRAIT, Petitioner,v.Melvin R. LAIRD, Secretary of Defense, et al.
No. 71—83.
Argued March 22, 1972.
Decided May 22, 1972.
Syllabus
District Court for the Northern District of California has jurisdiction under 28 U.S.C. § 2241(c)(1) to hear and determine the habeas corpus application of petitioner, who was on unattached, inactive Army reserve duty while domiciled in California, where military authorities processed his application for conscientious objector discharge, though he was under the nominal command of the commanding officer of the Reserve Officer Components Personnel Center in Indiana. Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251, distinguished. Pp. 342 346.
445 F.2d 843, reversed.
John T. Hansen, San Francisco, Cal., for petitioner.
Sol. Gen. Erwin N. Griswold, for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner is an Army Reserve officer not on active duty. His active-duty obligations were deferred while he went to law school after graduating from college. During the period of deferment and at the time this action was commenced, his military records were kept at Fort Benjamin Harrison, Indiana. His nominal commanding officer was the Commanding Officer of the Reserve Officer Components Personnel Center at Fort Benjamin Harrison. Petitioner was, however, at all times domiciled in California and was never in Indiana or assigned there. On finishing law school he took the California Bar examination and on March 5, 1970, he was ordered to report for active duty at Fort Gordon, Georgia, beginning April 13, 1970. Before that time, however, he had filed an application for discharge as a conscientious objector. That application was processed at Fort Ord, California, where hearings were held. Fort Ord recommended his discharge and review of that recommendation was had in Indiana. The result was disapproval of the application.
2
Petitioner thereupon filed a petition for writ of habeas corpus in California. The District Court denied a motion to dismiss, holding that it had jurisdiction (3 S.S.L.R. 3152), but ruled against petitioner on the merits. On appeal the Court of Appeals agreed with the District Court as to jurisdiction but disagreed with it on the merits and granted the writ. 3 S.S.L.R. 3784. Shortly thereafter our decision in Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251, was announced. Thereupon the Court of Appeals granted a petition for rehearing and dismissed the action, holding that the District Court had no jurisdiction under the habeas corpus statutes. 445 F.2d 843. The case is here on a petition for certiorari, which we granted. We reverse the judgment below.
3
In Schlanger the serviceman—on active duty in the Air Force was studying in Arizona on assignment from Ohio. There was no officer in Arizona who was his custodian or one in his chain of command, or one to whom he was to report. While the Habeas Corpus Act extends to those 'in custody under or by color of the authority of the United States,' 28 U.S.C. § 2241(c)(1), we held in Schlanger that the presence of the 'custodian' within the territorial jurisdiction of the District Court was a sine qua non. In Schlanger the only 'custodian' of the serviceman was in Moody AFB, Georgia. While there were army officers in Arizona, there were none to whom the serviceman was reporting and none who were supervising his work there, though he was on active duty. Moreover, the serviceman in that case was in Arizona only temporarily for an educational project.
4
In the present case California is Strait's home. He was commissioned in California. Up to the controversy in the present case he was on reserve duty, never on active duty, and while he had gone east for graduate work in law, California had always been his home. Fort Ord in California was where his application for conscientious objector discharge was processed and where hearings were held. It was in California where he had had his only meaningful contact with the Army; and his superiors there recommended his discharge as a conscientious objector.
5
Thus, the contention in the dissent that we 'abandon Schlanger' by the approach we take today is incorrect. Sergeant Schlanger was on permissive temporary duty. While his stay in Arizona was thus not charged to his leave time, it was primarily for his own benefit,1 he paid his own expenses, and he was as much on his own as any serviceman on leave. We held in Schlanger that, while an active-duty serviceman in such a status might be in military 'custody,' see Donigian v. Laird, 308 F.Supp. 449 (Md. 1969), his custodian may not be deemed present wherever the serviceman has persuaded the service to let him go. The jurisdictional defect in Schlanger, however, was not merely the physical absence of the Commander of Moody AFB from the District of Arizona, but the total lack of formal contacts between Schlanger and the military in that district.
6
Strait's situation is far different. His nominal custodian, unlike Schlanger's, has enlisted the aid and directed the activities of armed forces personnel in California in his dealings with Strait. Indeed, in the course of Strait's enlistment, virtually every face-to-face contact between him and the military has taken place in California. In the face of this record, to say that Strait's custodian is amenable to process only in Indiana—or wherever the Army chooses to locate its recordkeeping center, see n. 3, infra—would be to exalt fiction over reality.
7
In a closely parallel case the Court of Appeals for the Second Circuit held that an unattached reserve officer who lived in New York and whose application for discharge as a conscientious objector was processed in New York could properly file for habeas corpus in New York, even though the commanding officer of the reservists was in Fort Benjamin Harrison, Indiana. Arlen v. Laird, 2 Cir., 451 F.2d 684. The court held that the only contacts the serviceman had had with his commanding officer were through the officers he dealt with in New York. Those contacts, it concluded, were sufficient to give the commanding officer 'presence' in New York. It concluded:
8
'Quite unlike a commanding officer who is responsible for the day to day control of his subordinates, the commanding officer of the Center is the head of a basically administrative organization that merely keeps the records of unattached reservists. To give the commanding officer of the Center 'custody' of the thousands of reservists throughout the United States and to hold at the same time that the commanding officer is present for habeas corpus purposes only within one small geographical area is to ignore reality.' Id., at 687.
9
We agree with that view. Strait's commanding officer is 'present' in California through the officers in the hierarchy of the command who processed this serviceman's application for discharge.2 To require him to go to Indiana where he never has been or assigned to be would entail needless expense and inconvenience. It 'would result in a concentration of similar cases in the district in which the Reserve Officer Components Personnel Center is located.' Donigian v. Laird, 308 F.Supp., at 453.3 The concepts of 'custody' and 'custodian' are sufficiently broad to allow us to say that the commanding officer in Indiana, operating through officers in California in processing petitioner's claim, is in California for the limited purposes of habeas corpus jurisdiction.
10
We intimate no opinion on the merits of the controversy whether petitioner is entitled to a discharge or whether by denying that relief the Army has acted in accordance with the prescribed procedures. We hold only that there is jurisdiction under 28 U.S.C. § 2241(c)(1) for consideration of this habeas corpus petition and for decision on the merits.
11
Reversed.
12
Mr. Justice REHNQUIST, dissenting.
13
The Court today emasculates Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971), by permitting habeas corpus when the custodian against whom the writ must run is not within the forum judicial district. It stretches the concept of custody beyond anything contained in any of our previous decisions, and permits the federal courts through habeas corpus to exercise broader review of military administration than has ever been permitted. I therefore dissent.
14
* The facts of this case are indistinguishable in any material respect from Schlanger v. Seamans, supra. Petitioner was assigned to the Reserve Officer Components Personnel Center at Fort Benjamin Harrison, Indiana. His dealings with the Army consisted of several requests for delay in commencing active duty, all of which were addressed to and granted by his commanding officer at Fort Benjamin Harrison, and an application for discharge as a conscientious objector, which was also submitted to the Indiana command. Although petitioner was interviewed by a chaplain, psychiatrist, and another Army officer at Fort Ord, California, each of whom made recommendations about petitioner's application, petitioner was not subject to military orders from any command in California nor did any California command rule upon his application. The preliminary processing accomplished by the interviews was forwarded to petitioner's commanding officer at Fort Benjamin Harrison, who convened a review board to pass upon the application. Following the board's recommendation, petitioner's commanding officer denied the requested discharge. Nothing in the record before us indicates that petitioner has even been subject to the orders of any Army officer or command in California. What little control the Army imposed upon petitioner emanated from his commanding officer in Indiana.
15
Only last Term, this Court held in Schlanger, that a district court has jurisdiction to issue a writ of habeas corpus under 28 U.S.C. § 2241, to a military custodian, only where a commanding officer or other custodian in the chain of command is found within the judicial district. Because Schlanger had been assigned to a command in Georgia, and no official in Arizona controlled his activities, the District Court of Arizona had no habeas jurisdiction. Attempting to reconcile Schlanger with this case, the Court today says:
16
'In Schlanger the only 'custodian' of the serviceman was in Moody AFB, Georgia. While there were army officers in Arizona, there were none to whom the serviceman was reporting and none who were supervising his work there, though he was on active duty. Moreover, the serviceman in that case was in Arizona only temporarily for an educational project.
17
'In the present case California is Strait's home. He was commissioned in California. Up to the controversy in the present case he was on reserve duty, never on active duty, and while he had gone east for graduate work in law, California had always been his home. Fort Ord in California was where he processed his application for conscientious objector discharge and where hearings were held. It was in California where he had had his only meaningful contact with the Army; and his superiors there recommended his discharge as a conscientious objector.' Ante, at 343.
18
But there were no officers in California to whom this petitioner was reporting, and 'none who were supervising his work there.' His control by the Army has heretofore consisted only of requests for delayed commencement of active duty, and for discharge. All such requests were addressed to and decided by his commanding officer in Indiana. His 'meaningful contact' with the Army was not in California, but Indiana. His interviews with staff officers at Fort Ord neither constituted them 'superiors' nor did it bring them within petitioner's chain of command. No officer or command in California had authority to provide the relief requested by petitioner. Under the principle enunciated in Schlanger, the Northern District of California lacked jurisdiction to issue habeas corpus for want of a custodian within the district. Emphasizing that petitioner brought this habeas corpus suit in the district where his home is cannot cure that defect, cf. Rudick v. Laird, 412 F.2d 16 (CA,2 1969). We deal not with the provisions of a venue statute, but with the established requirement that the petitioner's custodian be within the district. Petitioner's presence in his home State to take the bar examination, after a three-year absence while attending law school, affords him no more support than did Schlanger's presence in Arizona.
19
The Court substitutes the approach of Arlen v. Laird, 451 F.2d 684 (CA2 1971), for its Schlanger rule. Arlen, incorrectly concluding that Schlanger reserved the question presented here,1 held that the type of contacts between the commanding officer and a reservist that have been found to support state jurisdiction over nonresidents under cases like McGee v. Int'l Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), and Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 50 (1945), would also suffice for habeas jurisdiction. To adopt Arlen is to abandon Schlanger. But the reasons given by the Second Circuit in Arlen do not support a result in that case different from Schlanger. Arlen noted that Government counsel were adequately available in any judicial district, and the records could be forwarded from petitioner's command to the forum district. The same could have been said of Schlanger. Moreover, the Government can assert that Indiana would be the appropriate forum, for the actions of which petitioner complains were taken by the commanding officer and his advisory board at Fort Benjamin Harrison and presumably the proper witnesses for this litigation were there. These factors would be appropriately considered in a determination as to venue or forum non conveniens but they are not a substitute for the actual presence of a custodian, which Schlanger held was required by statute.
II
20
While I am satisfied that the Ninth Circuit correctly applied Schlanger and ordered dismissal of the habeas corpus petition for want of a custodian within the district, the analysis of the Court in reaching the opposite conclusion highlights what is for me the more substantial issue of whether petitioner was in the custody of anyone.
21
The Court believes that petitioner's commanding officer was merely a record center, and says that the realistic approach is to rule that such a record center is present in all States where there are reservists over whom it has custody. I believe that where the control exercised over petitioner is so attenuated as to require the contacts between himself and his commanding officer to be weighed for a jurisdictional nexus, the problem is not where the custodian may be found, but whether the petitioner is in custody at all. The most realistic approach is to recognize that custody as a prerequisite for habeas corpus simply does not exist for an unattached reservist who is under virtually no restraints upon where he may live, work, or study, and whose only connection with the Army is a future obligation to enter active duty. This Court has recognized that a person on active duty with the armed forces is sufficiently 'in custody' to invoke habeas corpus. Eagles v. United States ex rel. Samuels, 329 U.S. 304, 67 S.Ct. 313, 91 L.Ed. 308 (1946); Schlanger v. Seamans, supra; Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972). Aside from ruling that release from active to inactive duty does not moot a habeas proceeding,2 however, the Court has never considered whether a future obligation to commence Army duty is a sufficiently severe restraint to support habeas jurisdiction.
22
Habeas corpus is a powerful remedy to be wielded promptly in cases where restrictions on individual liberty are substantial. The requirement of custody is a primary parameter for preserving the great writ for appropriate situations. It is undefined by statute, but depends upon the severity of restraint upon liberty that is involved. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1073 (1970).
23
Notions of custody have changed over the years. In 1885, this Court held that a military order restricting a serviceman to the confines of the District of Columbia did not place him in custody. Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277 (1885). Recent decisions dealing with nonmilitary petitioners have admittedly broadened the concept of custody. Jones v. Cunningham, supra; Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Jones held that a parolee was in custody because he was restricted to the community of his parole, needed special permission to undertake some activities such as driving an auto, and was subject to prompt reincarceration with only administrative proceedings if he violated parole conditions. In Carafas a convicted felon who was neither in prison nor on parole was held to be 'in custody' because the disabilities of his conviction prevented him from engaging in many types of businesses, voting at any state election, or serving as a labor official or juror.
24
But even if this nonmilitary standard were to be applied to petitioner, it is difficult to place him in that class of persons laboring under substantial restraints for whom habeas corpus is reserved. By his own admission, petitioner 'has not been subject to military orders, reserve meetings or summer active duty.' From all that appears in the record, petitioner is free to go anywhere he desires or to engage in any activity he chooses, and is not subject to any Army control until he commences active duty. His situation is indistinguishable from a prospective inductee, who is not considered to be in custody for habeas corpus purposes until after induction. DeRozario v. Commanding Officer, 390 F.2d 532 (CA9 1967). Neither precedent nor the raison de tre of the writ sanctions the result reached in this case. Petitioner would be in 'custody' only when he reported to Fort Gordon, Georgia, pursuant to his orders, and only then would he be entitled to bring habeas corpus.
III
25
There is yet another shortcoming in petitioner's claim to habeas corpus.
26
Unlike those who are covered by the Military Selective Service Act, 50 U.S.C.App. § 451 et seq., there is no statutory right afforded petitioner and other voluntary members of the armed services to be discharged as conscientious objectors. Under Department of Defense Directive 1300.6 the armed forces will approve administrative discharges on a discretionary basis. By assuming that habeas corpus review of the exercise of this discretion is proper, the Court and the courts of appeals applying the same standards of review called for under § 6(j) of the Military Selective Service Act 81 Stat. 104, as amended, 85 Stat. 351,3 have failed to recognize well-established limitations upon habeas corpus in military cases, and the also well-established restriction upon reviewing the administration of the armed services.
27
A district court has power to grant a writ of habeas corpus only where a prisoner 'is in custody in violation of the Constitution or laws or treaties of the United States'4 or 'is in custody under or by color of the authority of the United States.'5 Petitioner has voluntarily assumed a reserve officer's commission and there is no indication from the record that his present obligation violates either the Constitution or laws of the United States. Nor is he restrained under any color of authority of the United States that cannot be traced to legitimate statutory authorization. Our inquiry should go no further.
28
In Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), the Court reiterated the rule that the scope of habeas corpus has always been narrower in military cases than when a prisoner is in civil custody. That case permitted review of a court-martial conviction for claimed violations of constitutional due process where the military justice system had failed to fully consider such claims. Except for constitutional violations, however, relief is proper only if the military had no jurisdiction to take the action complained of.
29
Lack of jurisdiction to review requests for administrative discharge has similarly been well established. In Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953), the Court refused to review a military-duty assignment or to order a discharge on the ground that the petitioner there had been unlawfully treated, recognizing that military discretion is not subject to review in the courts. See also Noyd v. McNamara, 378 F.2d 538 (CA10 1967) (refusal to order assignment to non-objectionable duties or accept resignation of conscientious objector); United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (CA2 1968) (no habeas corpus or mandamus jurisdiction to review denial of hardship discharge request); Antonuk v. United States, 445 F.2d 592 (CA6 1971) (no jurisdiction to review promotions).
30
It is said that jurisdiction is established to review military exercise of administrative discretion where the promulgated procedures are not followed. Authority for this proposition is stated to be Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). Although the principles of those cases might not carry over undiminished to the military services,6 some lower courts have assumed that they do.7 Reviewing an administrative decision for conformity to regulations, however, would afford no relief to petitioner in this case. If his application for discharge was processed as required by DOD Directive 1300.6 the Army has fulfilled its responsibility regardless of whether its ultimate conclusion corresponds to the decision that a court of law would make. In this case the provisions of DOD Directive 1300.6 were applied to petitioner by Army Regulation 135—25. It requires submission of a form request by petitioner, subsequent interviews with a chaplain, medical officer, and an 'O—3' hearing officer, consideration of the application by a board of recommendation, and finally action by petitioner's commanding officer. All these procedures were followed in petitioner's case. The Army acted within its jurisdiction in denying the request.
31
Habeas corpus will issue where a person is held in custody under color of federal authority, or in violation of the Constitution or laws of the United States. 28 U.S.C. §§ 2241(c)(1) and (c)(3). There is no question that the Army had jurisdiction over petitioner at least to the limited extent discussed above in reference to the issue of custody. There is also no question that the Army is under no statutory command to discharge petitioner before the expiration of his contracted period of military service. Acting in accordance with its own procedures, it has chosen not to do so. For me, this ends the permissible scope of habeas corpus inquiry.
32
THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice POWELL join Part I of this dissent and on that ground would affirm the judgment of the Court of Appeals.
1
At the time Sergeant Schlanger received his assignment, Air Force Regulation 35—26 (Mar. 6, 1968) defined 'permissive temporary duty' as 'duty of a quasi-official nature performed at other than the permanent duty station, without costs to the Government for per diem and travel.' So defined, primary difference between 'leave' and 'permissive temporary duty' appears to be that the latter status requires the serviceman to convince the military that his proposed activity, while away from his permanent duty station, would be of some direct or indirect benefit to the service.
2
That such 'presence' may suffice for personal jurisdiction is well settled, McGee v. Int'l Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 50, and the concept is also not a novel one as regards habeas corpus jurisdiction. In Ex parte Endo, 323 U.S. 283, 307, 65 S.Ct. 208, 221, 8 L.Ed. 246, we said that habeas corpus may issue 'if a respondent who has custody of the prisoner is within reach of the court's process . . ..' Strait's commanding officer is 'present' in California through his contacts in that State; he is therefroe 'within reach' of the federal court in which Strait filed his petition. See Donigian v. Laird, D.C., 308 F.Supp. 449, 453; cf. United States ex rel. Armstrong v. Wheeler, D.C., 321 F.Supp. 471, 475.
3
This concentration would be exacerbated in the extreme by the fact that the Reserve Components Personnel Center at Fort Benjamin Harrison, Indiana, has now been moved to St. Louis, Missouri, and has been there merged into the United States Army Reserve Components Personnel and Administration Center (RCPAC). RCPAC has recordkeeping and nominal administrative responsibility for approximately 2,000,000 servicemen, all unattached, inactive reservists such as petitioner.
1
'The Supreme Court reserved decision on this precise question, 401 U.S., at 489, 491 n. 5, 91 S.Ct. 995 (28 L.Ed.2d 251) and cited, apparently with approval, Donigian v. Laird, 308 F.Supp. 449 (D.Md.1969),' 451 F.2d, at 686. But the cited portions of Schlanger dealt only with the question of custody, and not with the separate jurisdictional requirement that a custodian be present within the judicial district.
2
Gillettee v. United States, 401 U.S. 437, 440 n. 2, 91 S.Ct. 828, 831, 28 L.Ed.2d 168 (1971).
3
Most of the circuits have permitted habeas corpus review of an application for discharge under DOD 1300.6. E.g., United States ex rel. Sheldon v. O'Malley, 137 U.S.App.D.C. 141, 420 F.2d 1344 (1969); Bates v. Commander, 413 F.2d 475 (CA1 1969); Hammond v. Lenfest, 398 F.2d 705 (CA2 1968); Brown v. McNamara, 387 F.2d 150 (CA3 1967); United States ex rel. Brooks v. Clifford, 409 F.2d 700 (CA4 1969); Brown v. Resor, 407 F.2d 281 (CA5 1969); Packard v. Rollins, 422 F.2d 525 (CA8 1970); Sertic v. Laird, 418 F.2d 915 (CA9 1969).
This Court has considered petitions for habeas corpus under DOD 1300.6 in Craycroft v. Ferrall, 397 U.S. 335, 90 S.Ct. 1152, 25 L.Ed.2d 351 (1970), and Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971).
4
28 U.S.C. § 2241(c)(3).
5
28 U.S.C. § 2241(c)(1).
6
'(W)e cannot review the merits of appellant's present claim that the Air Force in the case at bar did not comply with its own regulations in regard to appellant. Such a claim must indeed be strained to contain an overtone of constitutional invalidity giving rise to immediate judicial review of its application.' Noyd v. McNamara, 378 F.2d 538, 540 (CA10 1967).
7
E.g., Antonuk v. United States, 445 F.2d 592 (CA6 1971); Smith v. Resor, 406 F.2d 141 (CA2 1969).
| 01
|
406 U.S. 416
92 S.Ct. 1678.
32 L.Ed.2d 195
Mortimer M. CAPLIN, etc., Petitioner,v.The MARINE MIDLAND GRACE TRUST COMPANY OF NEW YORK.
No. 70—220.
Argued March 28, 1972.
Decided May 22, 1972.
Syllabus
Petitioner, the trustee of Webb & Knapp, Inc., under Chapter X of the Bankruptcy Act, does not have standing to assert, on behalf of holders of debentures issued by Webb & Knapp, claims of misconduct by an indenture trustee. Pp. 417—435.
439 F.2d 118, affirmed.
Charles H. Miller, New York City, for petitioner.
David Ferber, Washington, D.C., for the Securities and Exchange Commission.
John W. Dickey, New York City, for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The sole issue in this case is whether petitioner, the trustee in reorganization of Webb & Knapp, Inc., has standing under Chapter X of the Bankruptcy Act, 52 Stat. 883, 11 U.S.C. § 501 et seq., to assert, on behalf of persons holding debentures issued by Webb & Knapp, claims of misconduct by an indenture trustee. The United States District Court for the Southern District of New York held that petitioner lacked the requisite standing, and the United States Court of Appeals for the Second Circuit affirmed en banc, with two judges dissenting, 439 F.2d 118 (1971).1 We granted certiorari, 404 U.S. 982, 92 S.Ct. 443, 30 L.Ed.2d 366 (1971), and we now affirm the decision of the Court of Appeals.
2
* Webb & Knapp and its numerous subsidiaries were engaged in various real estate activities in both the United States and Canada. In 1954, the corporation executed an indenture with respondent, the Marine Midland Trust Company of New York (Marine,) that provided for the issuance by Webb & Knapp of 5% debentures in the total amount of $8,607,600. A critical part of the indenture was the promise by Webb & Knapp that neither it nor any company affiliated with it2 would incur or assume 'any indebtedness resulting from money borrowed or from the purchase of real property or interests in real property . . . or purchase any real property or interests in real property' unless the company's consolidated tangible assets, as defined in the indenture, equaled 200% of certain liabilities, after giving effect to the contemplated indebtedness or purchase.3 By requiring the company to maintain an asset-liability ratio of 2:1, the indenture sought to protect debenture purchasers by providing a cushion against any losses that the company might suffer in the ordinary course of business. In order to demonstrate continuing compliance with the requirements of the indenture, Webb & Knapp covenanted to file an annual certificate with Marine stating whether the corporation (debtor) had defaulted on any of its responsibilities under the indenture during the preceding year.4
3
In its role as indenture trustee, Marine undertook 'in case of default . . . to exercise such of the rights and powers vested in it by (the) Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.'5 This undertaking was qualified by language in the indenture that permitted the trustee to rely on the accuracy of certificates or reports of Webb & Knapp, in the absence of bad faith.6
4
Commencing in 1959, Webb & Knapp sustained substantial financial losses in every year.7 Finally, on May 7, 1965, Marine filed a petition in district court seeking the involuntary reorganization of Webb & Knapp under Chapter X of the Bankruptcy Act, 11 U.S.C. § 501 et seq. Pursuant to § 208 of Chapter X, 11 U.S.C. § 608, the Securities and Exchange Commission intervened on May 10, 1965.8 Marine's petition was subsequently approved and petitioner was appointed trustee in reorganization on May 18, 1965.
5
With the approval of the District Court, petitioner exercised the powers conferred upon him by 11 U.S.C. § 567 and undertook an extensive investigation of the financial affairs of Webb & Knapp. His investigation showed that the company had total assets of $21,538,621 and total liabilities of $60,036,164, plus contingent tax liabilities of $29,400,000. Included among the liabilities were the 1954 debentures in the principal amount of $4,298,200 plus interest subsequent to the inception of the reorganization proceeding.9
6
The investigation led petitioner to conclude that Marine had either willfully or negligently failed to fulfill its obligations under the indenture. Petitioner supported his conclusion with the following allegations: that from 1954 to 1964, Webb & Knapp's yearly certificates of compliance with the 2:1 assetliability ratio mandated by the indenture were fraudulent, because they were based on grossly overvalued appraisals of real estate property; that from 1958 to 1964, Webb & Knapp did not have sufficient assets to comply with the terms of the indenture; that Marine should have known or did know of the inflated appraisals; and that because Marine permitted Webb & Knapp to violate the indenture by engaging in transactions that its impaired asset-liability ratio forbade, Webb & Knapp suffered great financial losses.10
7
Having obtained the approval of the District Court, petitioner filed an independent action on behalf of the debenture holders against Marine seeking to recover the principal amount of the out-standing debentures as damages for Marine's alleged bad-faith failure to compel compliance with the terms of the indenture by Webb & Knapp. Petitioner also filed a counterclaim in the same amount against Marine in the reorganization proceeding in which Marine had previously filed a claim for services rendered. In the reorganization proceeding, petitioner also filed an objection to the claim for services rendered, on the ground that even if petitioner could not obtain an affirmative recovery against Marine on behalf of the bondholders, he could at least raise Marine's improper conduct as a reason why the claim for services rendered should be denied.11 Finally, petitioner moved to compel an accounting by Marine.
8
Marine moved to dismiss the independent action and the counterclaim, moved to strike the objection to the claim for services rendered, and opposed the motion to compel an accounting. The District Court found that petitioner had no standing in his capacity as a trustee in reorganization under Chapter X of the Bankruptcy Act to raise claims of misconduct by an indenture trustee on behalf of debenture holders and granted both of Marine's motions to dismiss. Viewing the motion to compel an accounting as merely a third vehicle to raise the same claim on behalf of the debenture holders, the District Court denied that motion also. Only petitioner's objection to the claim for services rendered was left standing.12 Petitioner appealed the dismissal of his claims and the denial of his motion for an accounting to the Court of Appeals. Marine filed a cross-appeal from the denial of its motion to strike petitioner's objection to the claim for services rendered. The Court of Appeals affirmed the decision of the District Court in its entirety.
II
9
The issue confronting us has never before been presented to this Court. It is an issue that has only rarely been presented to other courts, and on those rare occasions, it has caused even the most able jurists to disagree. The first time the issue arose was in Clarke v. Chase National Bank, 137 F.2d 797 (CA2 1943). Judge Augustus Hand wrote the opinion of the court holding that a trustee in reorganization did not have standing to sue a third party on behalf of bondholders. Judge Learned Hand disagreed and dissented. It is this decision that the lower courts found controlling in the instant case. The Clarke case is, in fact, the only other case in which the issue that is raised here was squarely presented.13 The issue is a difficult one, and, as we point out later, it is one that is capable of resolution by explicit congressional action. Lacking a specific legislative statement on this issue, we must resolve it as best we can by examining the nature of Chapter X proceedings, the role of the trustee in reorganization, and the way in which standing to sue on behalf of debenture holders would affect or change that role.
10
Chapter X, enacted in 1938, stemmed from a comprehensive SEC study that disclosed widespread abuses under the then-existing provisions for business reorganizations. See Securities and Exchange Commission, Report on the Study and Investigation of the Work, Activities, Personnel and Functions of Protective and Reorganization Committees (1937—1940). This same study gave birth the following year to the Trust Indenture Act of 1939, 53 Stat. 1149, 15 U.S.C. § 77aaa et seq., which is discussed infra.
11
In enacting Chapter X, Congress had protection of public investors primarily in mind. SEC v. American Trailer Rentals Co., 379 U.S. 594, 85 S.Ct. 513, 13 L.Ed.2d 510 (1965). 'The aims of Chapter X . . . were to afford greater protection to creditors and stockholders by providing greater judicial control over the entire proceedings and impartial and expert administrative assistance in corporate reorganizations through appointment of a disinterested trustee and the active participation of the SEC.' Id., at 604, 85 S.Ct., at 519. In contradistinction to a bankruptcy proceeding where liquidation of a corporation and distribution of its assets is the goal, a Chapter X proceeding is for purposes of rehabilitating the corporation and reorganizing it. Ibid. Chapter X proceedings are not limited to insolvent corporations but are open to those corporations that are solvent in the bankruptcy (asset-liability) sense but are unable to meet their obligations as they mature. United States v. Key, 397 U.S. 322, 329, 90 S.Ct. 1049, 1053, 25 L.Ed.2d 340 (1970); 11 U.S.C. § 530(1).
12
The trustee in reorganization is the center of the statutory scheme. H.R.Rep.No.1409, 75th Cong., 1st Sess., 43, 44. Title 11 U.S.C. § 567 gives the trustee broad powers:
13
'The trustee upon his appointment and qualification—
14
'(1) shall, if the judge shall so direct, forthwith investigate the acts, conduct, property, liabilities, and financial condition of the debtor, the operation of its business and the desirability of the continuance thereof, and any other matter relevant to the proceeding or to the formulation of a plan, and report thereon to the judge;
15
'(2) may, if the judge shall so direct, examine the directors and officers of the debtor and any other witnesses concerning the foregoing matters or any of them;
16
'(3) shall report to the judge any facts ascertained by him pertaining to fraud, misconduct, mismanagement and irregularities, and to any causes of action available to the estate;
17
'(5) shall, at the earliest date practicable, prepare and submit a brief statement of his investigation of the property, liabilities, and financial condition of the debtor, the operation of its business and the desirability of the continuance thereof, in such form and manner as the judge may direct, to the creditors, stockholders, indenture trustees, the Securities and Exchange Commission, and such other persons as the judge may designate; and
18
'(6) shall give notice to the creditors and stockholders that they may submit to him suggestions for the formulation of a plan, or proposals in the form of plans, within a time therein named.'
19
Title 11 U.S.C. § 587 expands these powers:
20
'Where not inconsistent with the provisions of this chapter, a trustee, upon his appointment and qualification, shall be vested with the same rights, to be subject to the same duties, and exercise the same powers as a trustee appointed under section 72 of this title, and, if authorized by the judge, shall have and may exercise such additional rights and powers as a receiver in equity would have if appointed by a court of the United States for the property of the debtor.'
21
The powers given a trustee appointed under § 72 are set forth in a footnote.14
22
Petitioner argues that these powers are broad enough to encompass a suit on behalf of debenture holders against an indenture trustee who has acted in bad faith, and who has, therefore, violated the indenture and the Trust Indenture Act of 1939, 15 U.S.C. § 77aaa et seq.
23
As pointed out above, the trust Indenture Act was passed one year after Chapter X was enacted. Prior to its enactment, indenture trustees immunized themselves from any liability for either deliberate or negligent misconduct by writing exculpatory provisions into the indenture. Even in cases where misconduct by the indenture trustee was the proximate cause of injury to debenture holders, they found themselves impotent under the terms of most indentures to take action against the trustee. See generally 2 L. Loss, Securities Regulation 719—725 (2d ed. 1961). This problem and others are specifically mentioned in 15 U.S.C. § 77bbb as establishing a necessity for regulation.
24
The regulation provided by the Act takes many forms. 15 U.S.C. § 77eee requires that whenever securities covered by the Trust Indenture Act are also covered by the registration provisions of the Securities Act of 1933, 48 Stat. 74, 15 U.S.C. § 77a et seq., certain information about the indenture trustee and the terms of the indenture must be included in the registration statement. Title 15 U.S.C. § 77ggg provides that when securities are not registered under the 1933 Act but are covered by the Trust Indenture Act, the indenture must be 'qualified' by the SEC before it is legal to sell the securities. Standards for eligibility and disqualification of a trustee are established by 15 U.S.C. § 77jjj, and the duties and responsibilities of a trustee are enumerated in 15 U.S.C. § 77ooo.15
25
The indenture giving rise to this litigation was qualified by the SEC pursuant to the Trust Indenture Act of 1939. By alleging that the indenture trustee negligently or intentionally failed to prevent Webb & Knapp from violating the terms of the indenture, petitioner clearly alleges a violation of the 1939 legislation. 15 U.S.C. § 77ooo.16 But the question remains whether petitioner is a proper party to take corrective action.17
26
Petitioner urges that the reorganization trustee is in a far better position than debt investors to discover and to prosecute claims based on the alleged failure of an indenture trustee to live up to the provisions of the indenture. He points to 11 U.S.C. § 567, set forth supra, and emphasizes that not only does the reorganization trustee have possession of the records of the debtor, but he also has a statutory duty to investigate the debtor's affairs and to 'report to the judge any facts ascertained by him pertaining to fraud, misconduct, mismanagement and irregularities, and to any causes of action available to the estate.' Reference is made, too, to 15 U.S.C. § 77bbb(a)(1), which states that one of the problems Congress saw with respect to misconduct by indenture trustees was that '(A) individual action by . . . investors for the purpose of protecting and enforcing their rights is rendered impracticable by reason of the disproportionate expense of taking such action, and (B) concerted action by such investors in their common interest through representatives of their own selection is impeded by reason of the wide dispersion of such investors through many States, and by reason of the fact that information as to the names and addresses of such investors generally is not available to such investors.'18
27
Finally, petitioner asserts that to give him standing to sue on behalf of debenture holders will not encourage vexatious litigation or unduly deplete the resources of the debtor that he has been appointed to reorganize. He supports the first half of this proposition by noting that any action he takes is subject to the supervision of the District Court and to intervention by the SEC. The second half of the proposition finds support in the argument discussed above that petitioner already has a duty of investigation and that the minimal additional burden of prosecuting a lawsuit will not be great.
28
At first blush, petitioner's theory, adopted in the opinion of the dissenters in the Court of Appeals, seems reasonable. But, there are three problems with petitioner's argument and these problems require that his position be rejected.
29
First, Congress has established an elaborate system of controls with respect to indenture trustees and reorganization proceedings, and nowhere in the statutory scheme is there any suggestion that the trustee in reorganization is to assume the responsibility of suing third parties on behalf of debenture holders. The language, in fact, indicates that Congress had no such intent in mind. The statute, 11 U.S.C. § 567(3), gives the trustee the right, and indeed imposes the duty, to investigate fraud and misconduct and to report to the judge the potential causes of action 'available to the estate.' Even assuming that this section is read as if the quoted words were not present, and that it authorizes a trustee in reorganization to report whether he believes an indenture trustee has violated a duty to third-party debenture holders, there is nothing in the section that enables him to collect money not owed to the estate. Nor is there anything in 11 U.S.C. § 110, set forth in relevant part in footnote 14, supra, that gives him this authority. His task is simply to 'collect and reduce to money the property of the estates for which (he is trustee).' 11 U.S.C. § 75.
30
The only support petitioner finds in the relevant statutes is in that portion of 11 U.S.C. § 587 which gives reorganization trustees the additional rights that a 'receiver in equity would have if appointed by a court of the United States for the property of the debtor.' Petitioner relies on McCandless v. Furlaud, 296 U.S. 140, 56 S.Ct. 41, 80 L.Ed. 121 (1935), to support the proposition that a receiver in equity may sue third parties on behalf of bondholders. But, the opinion of the Court by Mr. Justice Cardozo clearly emphasizes that the receiver in that case was suing on behalf of the corporation, not third parties; he was simply stating the same claim that the corporation could have made had it brought suit prior to entering receivership.19 The debtor corporation makes no such claim in this case. See generally 2 R. Clark, Law and Practice of Receivers § 362, at 619 (3d ed. 1959).
31
This brings us to the second problem with petitioner's argument. Nowhere does petitioner argue that Webb & Knapp could make any claim against Marine. Indeed, the conspicuous silence on this point is a tacit admission that no such claim could be made.20 Assuming that the fact remains that in every reorganization there is going to be a question of how much the trustee in reorganization should be permitted to recover on behalf of the debenture holders. The answer is, of course, whatever he cannot recoup from the corporation. Once this is recognized, the wisdom of Judge Augustus Hand in Clarke v. Chase National Bank, 137 F.2d, at 800, becomes readily apparent:
32
'Each creditor, including the debenture-holders, can prove the full amount of his claim, and only to the extent that a debenture-holder fails to satisfy it from the bankruptcy estate will be suffer a loss which he can assert against the defendant through its failure to enforce the negative covenants.'
33
In other words, debenture holders will not be able to recover damages from the indenture trustee until the reorganization is far enough along so that a reasonable approximation can be made as to the extent of their losses, if any. It is difficult to see precisely why it is at that point that the trustee in reorganization should represent the interests of the debenture holders, who are capable of deciding for themselves whether or not it is worthwhile to seek to recoup whatever losses they may have suffered by an action against the indenture trustee. Petitioner appears to concede that any suit by debenture holders would not affect the interests of other parties to the reorganization, assuming that the Court of Appeals is correct on the subrogation point. It would seem, therefore, that the debenture holders, the persons truly affected by the suit against Marine, should make their own assessment of the respective advantages and disadvantages, not only of litigation, but of various theories of litigation.
34
This brings us to the third problem with petitioner's argument: i.e., a suit by him on behalf of debenture holders may be inconsistent with any independent actions that they might bring themselves. Petitioner and the SEC make very plain their position that a suit by the trustee in reorganization does not pre-empt suits by individual debenture holders. They maintain, however, that it would be unlikely that such suits would be brought since the debenture holders could reasonably expect that the trustee would vigorously prosecute the claims of all debt investors. But, independent actions are still likely because it is extremely doubtful that the trustee and all debenture holders would agree on the amount of damages to seek, or even on the theory on which to sue.21 Moreover, if the indenture trustee wins the suit brought by the trustee in reorganization, unless the debenture holders are bound by that victory, the proliferation of litigation that petitioner seeks to avoid would then ensue. Finally, a question would arise as to who was bound by any settlement.22
35
Rule 23 of the Federal Rules of Civil Procedure, which provides for class actions, avoids some of these difficulties. It is surely a powerful remedy and one that is available to all debenture holders.23 Some of the factors that formerly deterred such actions have been changed by the Trust Indenture Act of 1939. Title 15 U.S.C. § 77lll, for example, now requires that the debtor corporation maintain lists of debenture holders that it must turn over to the indenture trustees at regular intervals. Such lists are available to the individual debenture holders upon request. Debenture holders would also be able to take advantage of any information obtained by the trustee in reorganization as a result of the investigation which the statute requires that he make. In addition, petitioner himself maintains that counsel fees would be recoverable if the action was successful. Brief for Petitioner 20; cf. 15 U.S.C. § 77nnn.
36
Thus, there is no showing whatever that by giving petitioner standing to sue on behalf of the debenture holders we would reduce litigation. On the contrary, there is every indication that litigation would be increased, or at least complicated.
III
37
For the reasons discussed above we conclude that petitioner does not have standing to sue an indenture trustee on behalf of debenture holders. This does not mean that it would be unwise to confer such standing on trustees in reorganization. It simply signifies that Congress has not yet indicated even a scintilla of an intention to do so, and that such a policy decision must be left to Congress and not to the judiciary.
38
Congress might well decide that reorganizations have not fared badly in the 34 years since Chapter X was enacted and that the status quo is preferable to inviting new problems by making changes in the system. Or, Congress could determine that the trustee in a reorganization was so well situated for bringing suits against indenture trustees that he should be permitted to do so. In this event, Congress might also determine that the trustee's action was exclusive, or that it should be brought as a class action on behalf of all debenture holders, or perhaps even that the debenture holders should have the option of suing on their own or having the trustee sue on their behalf. Any number of alternatives are available. Congress would also be able to answer questions regarding subrogation or timing of law suits before these questions arise in the context of litigation. Whatever the decision, it is one that only Congress can make.
39
Accordingly, the judgment of the Court of Appeals is affirmed.
40
Judgment affirmed.
41
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice BLACKMUN concur, dissenting.
42
With all respect, today's decision reflects a misunderstanding of the important role which a reorganization trustee under Chapter X of the Bankruptcy Act, 11 U.S.C. § 567, is supposed to perform. Though prior to Chapter X the debtor had usually remained in possession, Chapter X effected a basic change by putting a disinterested trustee in charge. H.R.Rep.No.1409, 75th Cong., 1st Sess., 43—44. Working under the direction of the Court, the reorganization trustee was to make the necessary investigations concerning the debtor, the operation of its business, and the desirability of its continuance 'and any other matter relevant to the proceeding or to the formulation of a plan, and report thereon to the judge.' 11 U.S.C. § 567 (emphasis added). The reorganization trustee is, indeed, charged by 11 U.S.C. § 569 with the responsibility of formulating a plan.1
43
A Chapter X plan does not look forward to a discharge of the debtor as does ordinary bankruptcy, but rather to an overhaul of its capital structure, a simplification of it, if need be, and the determination of the fair share which each class of old creditors shall receive and what participation, if any, the old stockholders may be granted. The test which the court must ultimately apply under Chapter X is whether a plan is 'fair and equitable, and feasible.' 11 U.S.C. § 574. The test of 'fair and equitable' derives from the old equity receiverships and was adopted in former § 77B of the Bankruptcy Act and under Chapter X.2 As stated in the House Report 'the (reorganization) trustee is required to assemble the salient facts necessary for a determination of the fairness and equity of a plan of reorganization.' H.R.Rep.No.1409, 75th Cong., 1st Sess., 43.
44
The requirements of 'fair and equitable,' which the court must apply, entail the application of the absolute priority rule which we discussed at length in Case v. Los Angeles Lumber Products Co., 308 U.S., 106, 60 S.Ct. 1, 84 L.Ed. 110, and which was followed in Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982. It not only gives creditors full priority over stockholders, but protects senior classes of creditors against the claim that 'junior interests were improperly permitted to participate in a plan or were too liberally treated therein.' 308 U.S., at 118, 60 S.Ct., at 8. Unsecured creditors need not be paid in cash as a condition of stockholders retaining an interest in the reorganized company, for they may be protected by the issuance "on equitable terms, or income bonds or preferred stock," Id., at 117, 60 S.Ct., at 8.
And, as we said in the Du Bois case:
45
'If the creditors are adequately compensated for the loss of their prior claims, it is not material out of what assets they are paid. So long as they receive full compensatory treatment and so long as each group shares in the securities of the whole enterprise on an equitable basis, the requirements of 'fair and equitable' are satisfied.' 312 U.S., at 530, 61 S.Ct., at 687.
46
The face amount of the debentures in litigation here was $4,298,200. The damages sought against the indenture trustee are in the same amount. If we assume, arguendo, that there is merit in the cause of action and that the indenture trustee is fully responsible, one entire class of security holders is eliminated from any necessary consideration in the plan. Or if there is only partial recovery, there is a pro rata change in the relative positions of the various classes of creditors. A plan cannot be designed without a final determination of the status of the debenture holders vis-a-vis the indenture trustee, or at least an informed judgment concerning the value of that claim.
47
It is said that the assets of the debtor were some $21 million and the liabilities some $60 million. Whether conditions have changed so as to leave some equity for the old stockholders, we do not know. The rule announced by the Court today, however, is not for this case alone but is applicable to all reorganizations under Chapter X. In some cases the elimination of one entire class of creditors or a pro rata reduction in their claims would give stockholders a chance to participate in the plan. There is no opportunity to make that determination without investigation, without a pursuit of claims, and without their prosecution or settlement. The reorganization trustee has full authority to do just that under the direction of the court. And unless he can take those steps, he will not be able to formulate a plan of reorganization for submission to the court.
48
Of course, debenture holders or a protective committee representing them may in some cases take the lead. But Chapter X was written with the view that such matters should not be left to happenstance. That is why the reorganization trustee was made the 'focal point' for taking an inventory of assets available to the several claimants and providing what plan would be fair and equitable in light of the security of some claimants or the payment of claims rightfully due them.3
49
There is, with all respect, no merit in the argument that, if the reorganization trustee recovers against the indenture trustee on behalf of the debenture holders, the indenture trustee will be subrogated to the debenture holders, leaving the total claims affected by the plan wholly unchanged.
50
The complaint against the indenture trustee charged willful misconduct or gross negligence. What the merits may be we, of course, do not know and intimate no opinion. But, if true, the Trust Indenture Act of 1939, 15 U.S.C. § 77ooo gives no immunity.4
51
We said in Pepper v. Litton, 308 U.S. 295, 307, 60 S.Ct. 238, 245, 246, 84 L.Ed. 281, that 'the bankruptcy court in passing on allowance of claims sits as a court of equity' and we cited the cases showing that claimants in a fiduciary position may have their claims either wholly disallowed or subordinated. Id., at 311, 312, 60 S.Ct., at 247. As stated in American Surety Co. v. Bethlehem Nat. Bank, 314 U.S. 314, 317, 62 S.Ct. 226, 228, 86 L.Ed. 241, while the surety is 'a special kind of secured creditor' it has a right that 'can be availed of only by a surety alert in discharging its duty . . . and one not guilty of inequitable conduct.' The indenture trustee is not, of course, a surety. It would have to seek subrogation under the general equitable doctrine, stated as follows by the American Law Institute:5
52
'Where property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder.'
53
It is not imaginable that any court would ever hold that an indenture trustee, found culpably responsible for the default on debentures, would be subrogated with respect to funds which otherwise would go to innocent creditors or stockholders on the ground that paying money to them rather than to it would constitute unjust enrichment. A person 'who invokes the doctrine of subrogation must come into court with clean hands.' German Bank v. United States, 148 U.S. 573, 581, 13 S.Ct. 702, 705, 37 L.Ed. 564.
54
I agree with Judge Kaufman and Judge Hays, dissenting below, and would reverse this judgment.
1
The District Court delivered three separate opinions in this case. They are unreported, but are included in the appendix prepared by the parties at 58a—70a. The Court of Appeals heard the case en banc after a panel of three judges determined that it was inclined to overrule the case on which the District Court had placed almost exclusive reliance. 439 F.2d 118.
2
Those companies in the affiliated group include any corporation that was entitled to be included in a consolidated tax return of Webb & Knapp. See 26 U.S.C. § 1502. Section 1.1 of the Indenture gave Webb & Knapp authority to consider other companies as affiliates if it chose to do so.
3
Indenture of June 1, 1954, Webb & Knapp, Inc., to the Marine Midland Trust Company of New York § 3.6 (hereinafter referred to as Indenture).
4
Indenture § 3.11.
5
Indenture § 10.1(a). This was also a statutory duty. See 15 U.S.C. § 77ooo.
6
Indenture § 10.1(d).
7
Webb & Knapp showed a loss for tax purposes each year, although the company did show a gain on its books for 1961 attributable to a write-up of property owned by a wholly owned subsidiary of a company in which Webb & Knapp held 50% of the stock.
8
The SEC has supported petitioner throughout this litigation. The agency is 'an unnamed respondent before this Court.' See Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 420 n. 3, 88 S.Ct. 1157, 1161, 20 L.Ed.2d 1 (1968). When referring to arguments made by petitioner, this opinion assumes, unless otherwise stated, that the SEC had made the same arguments.
9
The difference between this amount and the amount of the debentures originally issued represents the amount of the principal that Webb & Knapp had repaid.
10
These are merely allegations of petitioner, not findings of the lower courts. Because the District Court and the Court of Appeals held that petitioner had no standing, they had no occasion to consider the validity of the allegations.
11
In its capacity as indenture trustee, Marine also filed a claim on behalf of all the debenture holders for the unpaid principal on the debentures.
12
This objection differs from the other claims in one respect: i.e., it is an attempt to preserve the remaining assets of the debtor for all creditors other than Marine, whereas the other caims represent an attempt by the petitioner to increase the assets of the debtor for the benefit of a specific class of creditors, the debenture holders. Although Marine appealed the ruling of the District Court denying its motion to strike the objection, it did not seek review here of the decision of the Court of Appeals affirming the District Court on this issue. This issue is, therefore, not before us, and we offer no opinion on the propriety of the lower courts' ruling.
13
Petitioner and the two dissenting judges in the Court of Appeals argue that the issue was presented in Prudence-Bonds Corp. v. State Street Trust Co., 202 F.2d 555 (CA2), cert. denied, 346 U.S. 835, 74 S.Ct. 47, 98 L.Ed. 357 (1953), and that the decision of the court in that case by Judge Learned Hand overruled Clarke v. Chase National Bank, 137 F.2d 797 (CA2 1943), sub silentio. They also argue that the issue was presented and decided contrary to Clarke in In re Solar Manufacturing Corp., 200 F.2d 327 (CA3 1952), cert. denied sub nom. Marine Midland Trust Co. v. McGirl, 345 U.S. 940, 73 S.Ct. 831, 97 L.Ed. 1366 (1953). But, the majority of the Court of Appeals found these cases to be distinguishable, and Marine urges that the majority was correct. We do not intend to become enmeshed in this controversy and merely indicate its existence.
14
Title 11 U.S.C. § 110 gives the trustee title to the following 'property':
'(a) The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title . . . to all of the following kinds of property wherever located (1) documents relating to his property; (2) interests in patents, patent rights, copyrights, and trade-marks, and in applications therefor . . . (3) powers which he might have exercised for his own benefit, but not those which he might have exercised solely for some other person; (4) property transferred by him in fraud of his creditors; (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred to which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered . . . (6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property; (7) contingent remainders, executory devises and limitations, rights of entry for condition broken, rights or possibilities of reverter, and like interests in real property, which were non-assignable prior to bankruptcy and which, within six months thereafter, become assignable interests or estates or give rise to powers in the bankrupt to acquire assignable interests or estates; and (8) property held by an assignee for the benefit of creditors appointed under an assignment which constituted an act of bankruptcy, which property shall, for the purposes of this title, be deemed to be held by the assignee as the agent of the bankrupt and shall be subject to the summary jurisdiction of the court.'
15
The SEC is given general supervisory powers over indentures in various sections of the Trust Indenture Act. See, e.g., 15 U.S.C. §§ 77ddd(c), (d), (e); 77eee (a), (c); 77ggg; 77sss; 77ttt; 77uuu. In addition, 15 U.S.C. § 77hhh provides that the SEC may order consolidation of reports or certificates filed under the Trust Indenture Act with information or documents filed under the Securities Act of 1933, 48 Stat. 74, 15 U.S.C. § 77a et seq., and the Securities Exchange Act of 1934, 48 Stat. 881, 15 U.S.C. § 78a et seq., the Public Utility Holding Company Act of 1935, 49 Stat. 838, 15 U.S.C. § 79 et seq.
16
The provisions of the indenture discussed previously comply with the requirements of 15 U.S.C. § 77ooo. While the indenture trustee is not permitted by the statute to exculpate himself from liability for noncompliance with the indenture, the indenture trustee may rely in good faith on certificates or reports filed pursuant to the indenture and in compliance with the provisions thereof.
17
We assume, arguendo, that violation of 15 U.S.C. § 77ooo would give rise to a cause of action against an indenture trustee by debenture holders. If there is a cause of action, 15 U.S.C. § 77vvv would seem to give federal courts jurisdiction. The Court of Appeals inferred that such suits would be proper, 439 F.2d, at 123 n. 5, but did not decide the point. Since we conclude that even if such suits may be brought, petitioner lacks standing to bring them, we do not decide the question.
18
It should be noted that the Trust Indenture Act of 1939 was enacted on August 3, 1939. The Federal Rules of Civil Procedure were not even one year old. They were adopted by this Court on December 20, 1937, and they became effective on September 16, 1938, 308 U.S. 647. The class action was a comparatively, recent phenomenon with respect to damage actions and it was not tremendously helpful in the early days. See, e.g., Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Geo.L.J. 551, 570—576 (1937); Kalven & Rosenfield, The Contemporary Function of the Class Suit, 8 U.Chi.L.Rev. 684 (1941). It could not be said that the class action was an efficacious remedy in 1939.
19
This point is especially clear in light of the fact that the Court split 5—4 on whether Old Dominion Copper Mining & Smelting Co. v. Lewisohn, 210 U.S. 206, 28 S.Ct. 634, 52 L.Ed. 1025 (1908) (Holmes, J.), was binding in McCandless v. Furlaud. The issue in the controversial Old Dominion case was whether a corporation had a cause of action against promoter-director-stockholders.
20
If petitioner could sue on behalf of Webb & Knapp, the statute that requires that he report possible causes of action to the court would require mention of this cause of action. Moreover, petitioner has brought every conceivable claim that is available to him as trustee. Not only has he brought this action against the indenture trustee, but he has also sued former officers of Webb & Kanpp charging them with waste. Brief for SEC 5—6. Certain settlements have apparently been made in some of these other actions. Brief for Respondent 45 n. 18.
[430]
petitioner's allegations of misconduct on the part of the indenture trustee are true, petitioner has at most described a situation where Webb & Knapp and Marine were in pari delicto. Whatever damage the debenture holders suffered, under petitioner's theory Webb & Knapp is as much at fault as Marine, if not more so. A question would arise, therefore, whether Marine would be entitled to be subrogated to the claims of the debenture holders. The Court of Appeals thought that subrogation would be required, 439 F.2d, at 122.
If the Court of Appeals is correct, it is then difficult to see what advantage there is in giving petitioner standing to sue, for as Chief Judge Friendly noted in his opinion for the court below:
'It is necessary in the first instance to consider what effect a recovery by the Chapter X Trustee would have on the reorganization. On a superficial view this might seem substantial—if, for example, the Chapter X Trustee were to achieve a complete recovery, the debenture holders would be paid off and it might seem there would be that much more for the other creditors and the stockholders. But this pleasant prospect speedily evaporates when the law of subrogation is brought into play. As a result of subrogation, Marine would simply be substituted for the debenture holders as the claimant. Cf. ALI, Restatement of Security § 141 (1941). If the Chapter X Trustee recovered judgment in a lesser amount, the claim of the debenture holders would still be provable in full, with the division of the proceeds between them and Marine dependent upon the results of the reorganization, and other creditors or stockholders would not be affected.' 439 F.2d, at 122.
Even if the Court of Appeals is incorrect in its view of the propriety of subrogation under the facts of this case,
21
Three private actions have been brought by debenture holders against Marine, one in federal court and two in state court. See Brief for Petitioner 21 n. 9. These suits make the same claims made by the petitioner in the instant case, as well as others which he has not made, including alleged violations of the securities laws.
The trustee may well have interests that differ from those of the bondholders. For example, petitioner has sued not only Marine, but also the former officers of Webb & Knapp. See n. 20, supra. In settling the suits brought against the officers, petitioner may well take positions that conflict with those he would take in a suit against Marine. The conflict may at times be unfavorable to the debenture holders. One answer obviously is that the District Court and the SEC can take action to prevent any such conflict from developing, e.g., by denying the trustee in reorganization the right to sue on behalf of debenture holders in selected cases. The problem with this answer is that the conflict may not appear until the suit is well under way. In such a case the debenture holders might regret placing their confidence in the trustee.
22
Chapter X, 11 U.S.C. § 616(2), provides that a plan for reorganization 'may deal with all or any part of the property of the debtor.' It also provides that the plan 'may include provisions for the settlement or adjustment of claims belonging to the debtor
or to the estate.' 11 U.S.C. § 616(13). Despite these provisions, petitioner urges, in effect, that he can settle a suit on behalf of bondholders without binding them to the settlement. Reply Brief for Petitioner 7—8. But, as pointed out in the text, supra, petitioner only has authority to pursue claims belonging to the estate. Petitioner is thus caught on the horns of a dilemma: either he is incorrect in asserting that the statutory definition of duties should be read so broadly as to allow a trustee in reorganization to treat claims by debenture holders against third parties as sufficiently related to the estate that the trustee may sue on behalf of the debenture holders; or he is correct, and § 616 would appear to permit him to bind the debenture holders to a settlement. Even if petitioner can have it both ways, his inability to bind the persons on whose behalf he sues undercuts the utility of his suing. Because the debenture holders could bring a class action and bind all members of the class, they can make a binding settlement and avoid lengthy and expensive litigation. Petitioner cannot make such a settlement. Moreover, if a reorganization trustee does settle a suit that he has brought on behalf of debenture holders, he may find that rather than serving as their representative, he is forced to oppose their interests when they bring independent actions to recover more than the settlement figure. In this event, the reorganization trustee would be forced to justify his settlement, and he would theoretically join the indenture trustee in opposing the action of the debenture holders. He would find himself on both sides of the same transaction.
23
Again we assume, arguendo, that the Trust Indenture Act gives a right of action to debenture holders under these circumstances. Obviously, if the debenture holders themselves have no cause of action, their surrogate is in no better position.
1
11 U.S.C. § 569 provides:
'Where a trustee has been appointed the judge shall fix a time within which the trustee shall prepare and file a plan, or a report of his reasons why a plan cannot be effected, and shall fix a subsequent time for a hearing on such plan or report and for the consideration of any objections which may be made or of such amendments or plans as may be proposed by the debtor or by any creditor or stockholder.'
2
The 'fixed principle' that senior interests must be made whole before junior interests may participate in a reorganization has its roots in Northern Pacific R. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931. In that case Boyd was a general and unpaid creditor of the old corporation. In a reorganization Boyd was not fully compensated althogh the old stockholders were allowed to participate in the new company. He proceeded against the assets of the new venture on the ground that since the old stockholders continued in the business the latter had received property which belonged to the creditors. This Court ruled for Boyd and said 'if purposely or unintentionally a single creditor was not paid, or provided for in the reorganization, he could assert his superior rights against the subordinate interests of the old stockholders in the property transferred to the new company.' Id., at 504, 33 S.Ct. at 560. This principle came to be known as the 'absolute priority rule.' See Bonbright & Bergerman, Two Rival Theories of Priority Rights of Security Holders in a Corporate Reorganization, 28 Col.L.Rev. 127 (1928). The rule was incorporated into equity receiverships. Kansas City Southern R. Co. v. Guardian Trust Co., 240 U.S. 166, 36 S.Ct. 334, 60 L.Ed. 579; Kansas City Terminal R. Co. v. Central Union Trust Co., 271 U.S. 445, 46 S.Ct. 549, 70 L.Ed. 1028. Later, in Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 116, 60 S.Ct. 1, 7, 84 L.Ed. 110, we held that the absolute-priority rule was part of the gloss which the case law had placed upon the phrase 'fair and equitable,' language which had been used in § 77B(f)(1) of the newly enacted § 77B bankruptcy reorganization statute. 48 Stat. 919. We concluded that Congress had intended that the Boyd rule be carried forward. Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 527, 61 S.Ct. 675, 685, 85 L.Ed. 982, reaffirmed this holding and further held that the requirement of absolute priority extended to cases where the debtor was solvent as well as those where the debtor was insolvent. Later, we made clear that the Boyd requirement obtained under Chapter X. Marine Harbor Properties, Inc. v. Manufacturers Trust Co., 317 U.S. 78, 85—87, 63 S.Ct. 93, 97—98, 87 L.Ed. 64. As recent cases reflect, the absolute-priority doctrine has been continued and is firmly entrenched in Chapter X law. E.g., Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 441, 88 S.Ct. 1157, 1171, 20 L.Ed.2d 1; United States v. Key, 397 U.S. 322, 327, 90 S.Ct. 1049, 1052, 25 L.Ed.2d 340 (see also concurring opinion, at 333). The reach of that doctrine however, has not been restricted to Chapter X proceedings but has also been applied to railroad reorganizations under § 77 of the Bankruptcy Act, Ecker v. Western Pacific R. Corp., 318 U.S. 448, 484, 63 S.Ct. 692, 712, 87 L.Ed. 892; Group of Institutional Investors v. Chicago, Milwaukee, St. P. & P.R. Co., 318 U.S. 523, 535, 571, 63 S.Ct. 727, 735, 752, 87 L.Ed. 959; Reconstruction Finance Corp. v. Denver & R.G.W.R. Co., 328 U.S. 495, 66 S.Ct. 1282, 90 L.Ed. 1400, to dissolutions under the Public Utility Holding Company Act of 1935, 49 Stat. 838, Otis & Co. v. SEC, 323 U.S. 624, 634, 65 S.Ct. 483, 488, 89 L.Ed. 511 (but see dissenting opinion concluding that the rule had not been faithfully followed, at 648—649, 65 S.Ct., at 494—495); SEC v. Central-Illinois Securities Corp., 338 U.S. 96, 130, 69 S.Ct. 1377, 1395, 93 L.Ed. 1836, to Chapter IX bankruptcy proceedings, Kelley v. Everglades Drainage District, 319 U.S. 415, 420—421, n. 1, 63 S.Ct. 1141, 1144—1145, 87 L.Ed. 1485 and to affirm a dismissal of a Chapter XI petition on the ground that a Chapter X reorganization would provide more protection for creditors than a Chapter XI arrangement, SEC v. U.S. Realty & Imp. Co., 310 U.S. 434, 452, 456—458, 60 S.Ct. 1044, 1051, 1053—1054, 84 L.Ed. 1293. And see General Stores Corp. v. Shlensky, 350 U.S. 462, 466, 76 S.Ct. 516, 100 L.Ed. 550.
3
See Hearings on H.R. 8406 before a Subcommittee of the Senate Committee on the Judiciary, 75th Cong., 2d Sess., 126.
4
While the indenture trustee may rely on certificates or opinions concerning the truth of statements and the correctness of opinions 'in the absence of bad faith' (15 U.S.C. § 77ooo(a)(1)), it is not exempt from liability 'for its own negligent action, its own negligent failure to act, or its own willful misconduct' (15 U.S.C. § 77ooo(d)), save for errors in judgment made in good faith. Ibid.
5
Restatement of Restitution § 162 (1937).
| 78
|
406 U.S. 472
92 S.Ct. 1670
32 L.Ed.2d 234
Joseph Arthur ZICARELLI, Appellant,v.The NEW JERSEY STATE COMMISSION OF INVESTIGATION.
No. 69—4.
Argued Jan. 11, 1972.
Decided May 22, 1972.
Syllabus
After appellant invoked the Fifth Amendment and refused to answer questions concerning organized crime, racketeering, and political corruption in Long Branch, New Jersey, appellee Commission granted him statutory immunity 'from having such responsive answer given by him or such responsive evidence produced by him or evidence derived therefrom used to expose him to criminal prosecution or penalty or to a forfeiture of his estate . . ..' Appellant still refused to answer, contending that full transactional immunity was required, that the statutory ban on the use and derivative use of 'responsive' answers is unconstitutionally vague, and that the immunity would not protect him from foreign prosecution, of which he has a real and substantial fear. Appellant was adjudged to be in contempt and the judgment was upheld on appeal. The New Jersey Supreme Court, construing the responsiveness limitation, held that 'the statute protects the witness against answers and evidence he in good faith believed were demanded.' Commission procedure provides for an advance statement of the subject matter of the questioning and permits a witness to have counsel present at the hearing. Held:
1. The New Jersey statutory immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and is sufficient to compel testimony. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212. p. 441. Pp. 474—476.
2. In light of the State Supreme Court's construction and the context in which the statute operates, the responsiveness limitation is not violative of due process. Pp. 476—478.
3. The self-incrimination privilege protects against real dangers, not remote and speculative possibilities, and here there was no showing that appellant was in real danger of being compelled to disclose information that might incriminate him under foreign law. Pp. 478—481.
55 N.J. 249, 261 A.2d 129, affirmed.
Michael A. Querques, Orange, N.J., for the appellant.
Andrew F. Phelan, Trenton, N.J., for appellee.
George F. Kugler, Jr., Trenton, N.J., for the State of New Jersey, amicus curiae.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case, like Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, raises questions concerning the conditions under which testimony can be compelled from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination.
2
The New Jersey State Commission of Investigation1 subpoenaed appellant to appear on July 8, 1969, to testify concerning organized crime, racketeering, and political corruption in Long Branch, New Jersey.2 In the course of several appearances before the Commission, he invoked his privilege against self-incrimination and refused to answer a series of 100 questions. The Commission granted him immunity pursuant to N.J.Rev.Stat. § 52:9M—17(a) (1970), and ordered him to answer the questions. Notwithstanding the grant of immunity, he persisted in his refusal to answer. The Commission then petitioned the Superior Court of Mercer County for an order directing appellant to show cause why he should not be adjudged in contempt of the Commission and committed to jail until such time as he purged himself of contempt by testifying as ordered. At the hearing on the order to show cause, appellant challenged the order to testify on several grounds, one of which was that the statutory immunity was insufficient in several respects to compel testimony over a claim of the privilege. The Superior Court rejected this contention, and ordered appellant incarcerated until such time as he testified as ordered. The Supreme Court of New Jersey certified appellant's appeal before argument in the Appellate Division, and affirmed the judgment of the Superior Court. In re Zicarelli, 55 N.J. 249, 261 A.2d 129 (1970). This Court noted probable jurisdiction and set the case for argument to consider appellant's challenges to the sufficiency of the immunity authorized by the statute. 401 U.S. 933, 91 S.Ct. 916, 28 L.Ed.2d 213 (1971).
3
* A majority of the members of the Commission have authority to confer immunity on a witness who invokes the privilege against self-incrimination.3 After the witness testifies under the grant of immunity, the statute provides that:
4
'he shall be immune from having such responsive answer given by him or such responsive evidence produced by him, or evidence derived therefrom used to expose him to criminal prosecution or penalty or to a forfeiture of his estate, except that such person may nevertheless be prosecuted for any perjury committed in such answer or in producing such evidence, or for contempt for failing to give an answer or produce evidence in accordance with the order of the commission . . .' N.J.Rev.Stat. § 52:9M—17(b) (1970).
5
This is a comprehensive prohibition on the use and derivative use of testimony compelled under a grant of immunity.4 Appellant contends that only full transactional immunity affords protection commensurate with that afforded by the privilege and suffices to compel testimony over a claim of the privilege. We rejected this argument today in Kastigar, where we held that immunity from use and derivative use is coextensive with the scope of the privilege, and is therefore sufficient to compel testimony. We perceive no difference between the degree of protection afforded by the New Jersey statute and that afforded by the federal statute sustained in Kastigar.
6
Appellant also contends that while immunity from use and derivative use may suffice to secure the protection of the privilege from invasion by jurisdictions other than the jurisdiction seeking to compel testimony, that jurisdiction must grant the greater protection afforded by transactional immunity. In Kastigar, we held that immunity from use and derivative use is commensurate with the protection afforded by the privilege, and rejected the notion that in our federal system a jurisdiction seeking to compel testimony must grant protection greater than that afforded by the privilege in order to supplant the privilege and compel testimony. Our holding in Kastigar is controlling here.
II
7
Appellant contends that the immunity provided by the New Jersey statute is unconstitutionally vague because it immunizes a witness only against the use and derivative use of 'responsive' answers and evidence, without providing statutory guidelines for determining what is a 'responsive' answer. The statute does not come to us devoid of interpretation, for the Supreme Court of New Jersey construed the responsiveness limitation as follows:
8
'The limitation is intended to prevent a witness from seeking undue protection by volunteering what the State already knows or will likely come upon without the witness's aid. The purpose is not to trap. Fairly construed, the statute protects the witness against answers and evidence he in good faith believed were demanded.' 55 N.J., at 270—271, 261 A.2d, at 140.
9
This is not the technical construction of 'responsive' in the legal evidentiary sense that appellant fears,5 but, rather, is a construction cast in terms of ordinary English usage6 and the good-faith understanding of the average man. The term 'responsive' in ordinary English usage has a well-recognized meaning. It is not, as appellant argues, 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).
10
Moreover, the contention that ambiguity in the term 'responsive' poses undue hazards for a witness testifying under a grant of immunity must be considered in the context in which the statute operates. This is not a penal statute that requires an uncounseled decision by a layman as to what course of action is lawful to pursue. A witness before the Commission is entitled to have in advance of his testimony a statement of the subject matter on which the Commission intends to examine him.7 This advance notice of the subject of the inquiry will provide a background and context that will aid a witness in determining what information the questions seek. The New Jersey statute further provides that a witness before the Commission is entitled to have counsel present during the course of the hearing,8 and counsel may secure clarification of vague or ambiguous questions in advance of a response by the witness.9 The responsiveness limitation is not a trap for the unwary; rather it is a barrier to those who would intentionally tender information not sought in an effort to frustrate and prevent criminal prosecution.10 The context in which the statute operates11 reaffirms our conclusion that the responsiveness limitation does not violate the Due Process Clause of the Fourteenth Amendment.
III
11
Appellant further asserts that he cannot be compelled to testify before the Commission because his testimony would expose him to danger of foreign prosecution. He argues that he has a real and substantial fear of foreign prosecution, and that he cannot be compelled to incriminate himself under foreign law. It follows, he insists, that he cannot be compelled to testify, irrespective of the scope of the immunity he receives, because neither the New Jersey statute nor the Fifth Amendment privilege can prevent either prosecution or use of his testimony by a foreign sovereign. This Court noted probable jurisdiction to consider appellant's claim that a grant of immunity cannot supplant the Fifth Amendment privilege with respect to an individual who has a real and substantial fear of foreign prosecution. We have concluded, however, that it is unnecessary to reach the constitutional question in this case.
12
It is well established that the privilege protects against real dangers, not remote and speculative possibilities.12 At the hearing before the Superior Court of Mercer County, appellant introduced numerous newspaper and magazine articles bearing upon his self-incrimination claim. He called a number of these articles to the court's attention in an effort to demonstrate the basis of a fear of foreign prosecution.13 These articles labeled appellant the 'foremost internationalist' in organized crime,14 and detailed his alleged participation in unlawful ventures growing out of alleged interests and activities in Canada15 and the Dominican Republic.16
13
While these articles would lend support to a claim of fear of foreign prosecution in the abstract, they do not support such a claim in the context of the questions asked by the Commission. Of the 100 questions he refused to answer, appellant cites only one specific question17 as posing a substantial risk of incrimination under foreign law. That question is: 'In what geographical area do you have Cosa Nostra responsibilities?'
14
We think it plain from the context in which the question was asked that it sought an answer concerning geographical areas in New Jersey. The subject of the hearing was law enforcement, organized crime, racketeering, and political corruption in the city of Long Branch, which is located in Monmouth County, New Jersey. Eleven of the 13 questions preceding the question under consideration related specifically to the city of Long Branch and Monmouth County.18 Of course, neither the fact that the Commission was not seeking information concerning appellant's activities outside the United States, nor the fact that the question was not designed to elicit such information, is dispositive of appellant's claim that an answer to the question would incriminate him under foreign law. When considering whether a claim of the privilege should be sustained, the court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner.19 But the context in which a question is asked imparts additional meaning to the question, and clarifies what information is sought. A question to which a claim of the privilege is interposed must be considered 'in the setting in which it is asked.' Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).
15
Considering this question in light of the circumstances in which it was asked, we agree with the conclusion of the Supreme Court of New Jersey that appellant was never in real danger of being compelled to disclose information that might incriminate him under foreign law. Even if appellant has international Cosa Nostra responsibilities, he could have answered this question truthfully without disclosing them. Should he have found it necessary to qualify his answer by confining it to domestic responsibilities in order to avoid incrimination under foreign law, he could have done so. To have divulged international responsibilities would have been to volunteer information not sought, and apparently not relevant to the Commission's investigation. We think that in the circumstances of the questioning this was clear to appellant and his counsel.
16
Appellant is of course free to purge himself of contempt by answering the Commission's questions. Should the Commission inquire into matters that might incriminate him under foreign law and pose a substantial risk of foreign prosecution, and should such inquiry be sustained over a relevancy objection,20 then a constitutional question will be squarely presented. We do not believe that the record in this case presents such a question.
17
The judgment of the Supreme Court of New Jersey accordingly is
18
Affirmed.
19
Mr. Justice BRENNAN and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
20
Mr. Justice DOUGLAS dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, 406 U.S. 462, 92 S.Ct. 1666, 32 L.Ed.2d 227.
21
Mr. Justice MARSHALL dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, 406 U.S. 467, 92 S.Ct. 1668, 32 L.Ed.2d 230.
1
The New Jersey legislature created the Commission primarily to investigate organized crime, racketeering, and political corruption in New Jersey. N.J.Rev.Stat. §§ 52:9M—1 and 52:9M—2 (1970 and Supp. 1971—1972).
2
The New Jersey Code of Fair Procedure requires that persons summoned to testify before the Commission be served prior to the time they are required to appear with a statement of the subject of the investigation. N.J.Rev.Stat. § 52:13E—2 (1970). The subpoena served on appellant contained this statement. App. 3a.
3
N.J.Rev.Stat. § 52:9M—17(a) (1970).
4
See In re Zicarelli, 55 N.J. 249, 270, 261 A.2d 129, 140 (1970).
5
See 3 J. Wigmore, Evidence § 785, pp. 200—202 (J. Chadbourn rev. 1970).
6
Cf. Malloy v. Hogan, 378 U.S. 1, 12, 84 S.Ct. 1489, 1496, 12 L.Ed.2d 653 (1964); Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).
7
N.J.Rev.Stat. § 52:13E—2 (1970).
8
N.J.Rev.Stat. § 52:13E—3 (1970).
9
Appellant does not contend that counsel, although present, is so limited in his role that he cannot obtain clarification of any questions that the witness does not understand fully. Counsel for the Commission states that a witness may even object to questions on the ground that they are not relevant to the subject matter of the inquiry, and obtain a court ruling on relevancy before being required to answer. Appellee's Brief 81—82.
10
In re Zicarelli, 55 N.J., at 270—271, 261 A.2d, at 140. See generally Comment, The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope, 72 Yale L.J. 1568, 1572 (1963).
11
Appellant refused to answer 100 questions. None of these questions is pointed to as an example of a question that is so vague that an ordinary man could not determine what information the question seeks.
12
E.g., Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198 (1917); Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 228, 57 L.Ed. 450 (1913); Brown v. Walker, 161 U.S. 591, 599—600, 16 S.Ct. 644, 647—648, 40 L.Ed. 819 (1896); Queen v. Boyes, 1 B. & S. 311, 329—331, 121 Eng.Rep. 730, 738 (Q.B.1861).
13
Cf. Hoffman v. United States, 341 U.S., at 489, 71 S.Ct., at 819.
14
Life, Sept. 8, 1967, p. 101.
15
Life, Aug. 9, 1968, p. 24.
16
Life, Sept. 8, 1967, p. 101. Appellant also alleges that these articles support his claim of a real and substantial danger of prosecution by Venezuela. The only reference to Venezuela, however, is a statement that appellant 'has holdings in Venezuela.' Life, Sept. 1, 1967, at 45.
17
Appellant also raises a vague objection on grounds of incrimination under foreign law to these five questions:
'Q. Are you a member of any secret organization that is dedicated to or whose principle is to pursue crime and protect those of its members who do commit crime?' App. 8a.
'Q. Do you know that organization by the name Cosa Nostra?' App. 17a.
'Q. Are you a member of the organization known as Cosa Nostra?' App. 18a.
'Q. In whose family of Cosa Nostra are you a member?
'Q. Do you know Joseph Bonanno?' App. at 20a.
These questions do not seek answers concerning foreign involvements or foreign criminal activity. Indeed, they do not relate to criminal acts. Nor is it even remotely likely that their answers could afford 'a link in the chain of evidence' needed to prosecute appellant in a foreign jurisdiction. Cf. Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170 (1950). For if appellant identified himself as a member of the Cosa Nostra in the 'family' of Joseph Bonanno, he would only confirm an assumption widely held by law enforcement authorities. See, e.g., S.Rep.No.91—617, p. 38 (1969). To confirm the operating assumption of law enforcement authorities hardly provides a new 'link' to evidence that could be used in a foreign prosecution.
18
The question under consideration was followed by the question: 'Is Monmouth County within that geographical area?'
19
See Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
20
See n. 9, supra.
| 01
|
406 U.S. 404
92 S.Ct. 1628
32 L.Ed.2d 184
Robert APODACA et al., Petitioners,v.OREGON.
No. 69—5046.
Argued March 1, 1971.
Reargued Jan. 10, 1972.
Decided May 22, 1972.
Syllabus
Petitioners, who were found guilty of committing felonies, by less-than-unanimous jury verdicts, which are permitted under Oregon law in noncapital cases, claim that their convictions, upheld on appeal, contravene their right to trial by jury under the Sixth and Fourteenth Amendments. Held: The judgment is affirmed. Pp. 410—414, 369—380.
1 Or.App. 483, 462 P.2d 691, affirmed. affirmed.
Mr. Justice WHITE, joined by THE CHIEF JUSTICE, Mr, Justice BLACKMUN and Mr. Justice REHNQUIST, concluded that:
1
1. The Sixth Amendment guarantee of a jury trial, made applicable to the States by the Fourteenth (Duncan v. Louisiana, 391 U.S. 145, 88 .s.Ct. 1444, 20 L.Ed.2d 491), does not require that the jury's vote be unanimous. Pp. 410—412.
2
(a) The Amendment's essential purpose of 'interpos(ing) between the accused and his accuser . . . the commonsense judgment of a group of laymen' representative of a cross section of the community, Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446, is served despite the absence of a unanimity requirement. Pp. 410—411.
3
(b) Petitioners' argument that the Sixth Amendment requires jury unanimity in order to effectuate the reasonable-doubt standard otherwise mandated by due process requirements is without merit since that Amendment does not require proof beyond a reasonable doubt at all. Pp. 411—412.
4
2. Jury unanimity is not mandated by the Fourteenth Amendment requirements that racial minorities not be systematically excluded from the jury-selection process; even when racial minority members are on the jury, it does not follow that their views will not be just as rationally considered by the other jury members as would be the case under a unanimity rule. Pp. 412—414.
Mr. Justice POWELL concluded that:
5
1. Although on the basis of history and precedent the Sixth Amendment mandates unanimity in a federal jury trial, the Due Process Clause of the Fourteenth Amendment, while requiring States to provide jury trials for serious crimes, does not incorporate all the elements of a jury trial within the meaning of the Sixth Amendment and does not require jury unanimity. Oregon's 'ten of twelve' rule is not violative of due process. Pp. 369—377.
6
2. Nor is the Oregon provision inconsistent with the due process requirement that a jury be drawn from a representative cross section of the community as the jury majority remains under the duty to consider the minority viewpoint in the course of deliberation, and the usual safeguards exist to minimize the possibility of jury irresponsibility. Pp. 378—380.
7
Richard B. Sobol, Washington D.C., for petitioners.
8
Jacob B. Tanzer, Salem, Or., for respondent.
9
Mr. Justice WHITE announced the judgment of the Court in an opinion in which THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST joined.
10
Robert Apodaca, Henry Morgan Cooper, Jr., and James Arnold Madden were convicted respectively of assault with a deadly weapon, burglary in a dwelling, and grand larceny before separate Oregon juries, all of which returned less-than-unanimous verdicts. The vote in the cases of Apodaca and Madden was 11—1, while the vote in the case of Cooper was 10—2, the minimum requisite vote under Oregon law for sustaining a conviction.1 After their convictions had been affirmed by the Oregon Court of Appeals, 1 Or.App. 483, 462 P.2d 691 (1969), and review had been denied by the Supreme Court of Oregon, all three sought review in this Court upon a claim that conviction of crime by a less-than-unanimous jury violates the right to trial by jury in criminal cases specified by the Sixth Amendment and made applicable to the States by the Fourteenth. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). We granted certiroari to consider this claim, 400 U.S. 901, 91 S.Ct. 145, 27 L.Ed.2d 138 (1970), which we now find to be without merit.
11
In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), we had occasion to consider a related issue: whether the Sixth Amendment's right to trial by jury requires that all juries consist of 12 men. After considering the history of the 12-man requirement and the functions it performs in contemporary society, we concluded that it was not of constitutional stature. We reach the same conclusion today with regard to the requirement of unanimity.
12
* Like the requirement that juries consist of 12 men, the requirement of unanimity arose during the Middle Ages2 and had become an accepted feature of the common-law jury by the 18th century.3 But, as we observed in Williams, 'the relevant constitutional history casts considerable doubt on the easy assumption4 . . . that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.' Id., at 92—93, 90 S.Ct., at 1902. The most salient fact in the scanty history of the Sixth Amendment, which we reviewed in full in Williams, is that, as it was introduced by James Madison in the House of Representatives, the proposed Amendment provided for trial
13
'by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites . . .' 1 Annals of Cong. 435 (1789).
14
Although it passed the House with little alteration, this proposal ran into considerable opposition in the Senate, particularly with regard to the vicinage requirement of the House version. The draft of the proposed Amendment was returned to the House in considerably altered form, and a conference committee was appointed. That committee refused to accept not only the original House language but also an alternate suggestion by the House conferees that juries be defined as possessing 'the accustomed requisites.' Letter from James Madison to Edmund Pendleton, Sept. 23, 1789, in 5 Writings of James Madison 424 (G. Hunt ed. 1904). Instead, the Amendment that ultimately emerged from the committee and then from Congress and the States provided only for trial
15
'by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . .'
16
As we observed in Williams, one can draw conflicting inferences from this legislative history. One possible inference is that Congress eliminated references to unanimity and to the other 'accustomed requisites' of the jury because those requisites were thought already to be implicit in the very concept of jury. A contrary explanation, which we found in Williams to be the more plausible, is that the deletion was intended to have some substantive effect. See 399 U.S., at 96—97, 90 S.Ct., at 1903—1904. Surely one fact that is absolutely clear from this history is that, after a proposal had been made to specify precisely which of the common-law requisites of the jury were to be preserved by the Constitution, the Framers explicitly rejected the proposal and instead left such specification to the future. As in Williams, we must accordingly consider what is meant by the concept 'jury' and determine whether a feature commonly associated with it is constitutionally required. And, as in Williams, our inability to divine 'the intent of the Framers' when they eliminated references to the 'accustomed requisites' requires that in determining what is meant by a jury we must turn to other than purely historical considerations.
II
17
Our inquiry must focus upon the function served by the jury in contemporary society. Cf. Williams v. Florida, supra, at 99 100, 90 S.Ct., at 1905. As we said in Duncan, the purpose of trial by jury is to prevent oppression by the Government by providing a 'safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge.' Duncan v. Louisiana, 391 U.S., at 156, 88 S.Ct., at 1451. 'Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . . .' Williams v. Florida, supra, 399 U.S., at 100, 90 S.Ct., at 1906. A requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment. As we said in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant's guilt. In terms of this function we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one. Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit.5 But in either case, the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served.
III
18
Petitioners nevertheless argue that unanimity serves other purposes constitutionally essential to the continued operation of the jury system. Their principal contention is that a Sixth Amendment 'jury trial' made mandatory on the States by virtue of the Due Process Clause of the Fourteenth Amendment, Duncan v. Louisiana, supra, should be held to require a unanimous jury verdict in order to give substance to the reasonable-doubt standard otherwise mandated by the Due Process Clause. See In re Winship, 397 U.S. 358, 363—364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).
19
We are quite sure, however, that the Sixth Amendment itself has never been held to require proof beyond a reasonable doubt in criminal cases. The reasonable-doubt standard developed separately from both the jury trial and the unanimous verdict. As the Court noted in the Winship case, the rule requiring proof of crime beyond a reasonable doubt did not crystallize in this country until after the Constitution was adopted. See id., at 361, 90 S.Ct., at 1070.6 And in that case, which held such a burden of proof to be constitutionally required, the Court purported to draw no support from the Sixth Amendment.
20
Petitioners' argument that the Sixth Amendment requires jury unanimity in order to give effect to the reasonable-doubt standard thus founders on the fact that the Sixth Amendment does not require proof beyond a reasonable doubt at all. The reasonable-doubt argument is rooted, in effect, in due process and has been rejected in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152.
IV
21
Petitioners also cite quite accurately a long line of decisions of this Court upholding the principle that the Fourteenth Amendment requires jury panels to reflect a cross section of the community. See, e.g., Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). They then contend that unanimity is a necessary precondition for effective application of the cross-section requirement, because a rule permitting less than unanimous verdicts will make it possible for convictions to occur without the acquiescence of minority elements within the community.
22
There are two flaws in this argument. One is petitioners' assumption that every distinct voice in the community has a right to be represented on every jury and a right to prevent conviction of a defendant in any case. All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. See Swain v. Alabama, 380 U.S. 202, 208—209, 85 S.Ct. 824, 829, 13 L.Ed.2d 759 (1965); Cassell v. Texas, 339 U.S. 282, 286—287, 70 S.Ct. 629, 631, 94 L.Ed. 839 (1950); Akins v. Texas, 325 U.S. 398, 403—404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945); Ruthenberg v. United States, 245 U.S. 480, 38 S.Ct. 168, 62 L.Ed. 414 (1918). No group, in short, has the right to block convictions; it has only the right to participate in the overall legal processes by which criminal guilt and innocence are determined.
23
We also cannot accept petitioners' second assumption—that minority groups, even when they are represented on a jury, will not adequately represent the viewpoint of those groups simply because they may be outvoted in the final result. They will be present during all deliberations, and their views will be heard. We cannot assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal. We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice rather than the evidence.
24
We accordingly affirm the judgment of the Court of Appeals of Oregon.
25
It is so ordered.
26
Judgment affirmed.
27
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
28
In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, the Court squarely held that the Sixth Amendment right to trial by jury in a federal criminal case is made wholly applicable to state criminal trials by the Fourteenth Amendment. Unless Duncan is to be overruled, therefore, the only relevant question here is whether the Sixth Amendment's guarantee of trial by jury embraces a guarantee that the verdict of the jury must be unanimous. The answer to that question is clearly 'yes,' as my Brother POWELL has cogently demonstrated in that part of his concurring opinion that reviews almost a century of Sixth Amendment adjudication.*
29
Until today, it has been universally understood that a unanimous verdict is an essential element of a Sixth Amendment jury trial. See Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055; Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854; Hawaii v. Mankichi, 190 U.S. 197, 211—212, 23 S.Ct. 787, 788, 47 L.Ed. 1016; Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597; Thompson v. Utah, 170 U.S. 343, 351, 353, 18 S.Ct. 620, 623, 42 L.Ed. 1061; cf. 2 J. Story, Commentaries on the Constitution § 1779 n. 2 (5th ed. 1891).
30
I would follow these settled Sixth Amendment precedents and reverse the judgment before us.
1
Ore.Const., Art. I, § 11, reads in relevant part:
'In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; . . . provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise . . ..'
2
The origins of the unanimity rule are shrouded in obscurity, although it was only in the latter half of the 14th century that it became settled that a verdict had to be unanimous. See 1 W. Holdsworth, A History of English Law 318 (1956); Thayer, The Jury and its Development, 5 Harv.L.Rev. (pts. 1 and 2) 249, 295, 296 (1892). At least four explanations might be given for the development of unanimity. One theory is that unanimity developed to compensate for the lack of other rules insuring that a defendant received a fair trial. See L. Orfield, Criminal Procedure from Arrest to Appeal 347—351 (1947); Haralson, Unanimous Jury Verdicts in Criminal Cases, 21 Miss.L.J. 185, 191 (1950). A second theory is that unanimity arose out of the practice in the ancient mode of trial by compurgation of adding to the original number of 12 compurgators until one party had 12 compurgators supporting his position; the argument is that when this technique of afforcement was abandoned, the requirement that one side obtain the votes of all 12 jurors remained. See P. Devlin, Trial by Jury 48—49 (1956); Ryan, Less than Unanimous Jury Verdicts in Criminal Trials, 58 J.Crim.L.C. & P.S. 211, 213 (1967). A third possibility is that unanimity developed because early juries, unlike juries today, personally had knowledge of the facts of a case; the medieval mind assumed there could be only one correct view of the facts, and, if either all the jurors or only a minority thereof declared the facts erroneously, they might be punished for perjury. See T. Plucknett, A Concise History of the Common Law 131 (5th ed. 1956); Thayer, supra, at 297. Given a view that minority jurors were guilty of criminal perjury, the development of a practice of unanimity would not be surprising. The final explanation is that jury unanimity arose out of the medieval concept of consent. Indeed, '(t)he word consent (consensus) carried with it the idea of concordia or unanimity. . . .' M. Clarke, Medieval Representation and Consent 251 (1964). Even in 14th century Parliaments there is evidence that a majority vote was deemed insufficient to bind the community or individual members of the community to a legal decision, see id., at 335—336; Plucknett, The Lancastrian Constitution, in Tudor Studies 161, 169 170 (R. Seton-Watson ed. 1924); a unanimous decision was preferred. It was only in the 15th century that the decision-making process in Parliament became avowedly majoritarian, see 1 K. Pickthorn, Early Tudor Government: Henry VII, p. 93 (1967), as the ideal of unanimity became increasingly difficult to attain. See Clarke, supra, at 266—267. For evidence in 18th century America of a similar concern that decisions binding on the community be taken unanimously, see Zuckerman, The Social Context of Democracy in Massachusetts, 25 Wm. & Mary Q. (3d ser.) 523, 526—527, 540—544 (1968).
3
See 3 W. Blackstone, Commentaries *375—376. Four 18th-century state constitutions provided explicitly for unanimous jury verdicts in criminal cases, see N.C.Const. of 1776, Art. IX; Pa.Const. of 1776, Art. IX; Vt.Const. of 1786, Art. XI; Va.Const. of 1776, § 8; while other 18th-century state constitutions provided for trial by jury according to the course of the common law, see Md.Const. of 1776, Art. III, or that trial by jury would remain 'inviolate,' see Ga.Const. of 1777, Art. LXI; Ky.Const. of 1792, Art. XII, § 6; N.Y.Const. of 1777, Art. XLI; Tenn.Const. of 1796, Art. XI, § 6; be 'confirmed,' see N.J.Const. of 1776, Art. XXII; or remain 'as heretofore.' See Del.Const. of 1792, Art. I, § 4; Ky.Const. of 1792, Art. XII, § 6; S.C.Const. of 1790, Art. IX, § 6. See also Apthorp v. Backus, 1 Kirby 407, 416—417 (Conn. 1788); Grinnell v. Phillips, 1 Mass. 530, 542 (1805). Although unanimity had not been the invariable practice in 17th-century America, where majority verdicts were permitted in the Carolinas, Connecticut, and Pennsylvania, see Williams v. Florida, 399 U.S. 78, 98 n. 45, 90 S.Ct. 1893, 1904, 26 L.Ed.2d 446 (1970), the explicit constitutional provisions, particularly of States such as North Carolina and Pennsylvania, the apparent change of practice in Connecticut, and the unquestioning acceptance of the unanimity rule by text writers such as St. George Tucker indicate that unanimity became the accepted rule during the 18th century, as Americans became more familiar with the details of English common law and adopted those details in their own colonial legal systems. See generally Murrin, The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts, in Colonial America: Essays in Politics and Social Development 415 (S. Katz ed. 1971). See also F. Heller, The Sixth Amendment 13—21 (1951).
4
See Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948); Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 449, 450, 44 L.Ed. 597 (1900) (dictum). Cf. Springville v. Thomas, 166 U.S. 707, 17 S.Ct. 717, 41 L.Ed. 1172 (1897); American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897).
5
The most complete statistical study of jury behavior has come to the conclusion that when juries are required to be unanimous, 'the probability that an acquittal minority will hang the jury is about as great as that a guilty minority will hang it.' H. Kalven & H. Zeisel, The American Jury 461 (1966).
6
For the history of the reasonable-doubt requirement, see generally C. McCormick, Evidence § 321 (1954); 9 J. Wigmore, Evidence § 2497 (3d ed. 1940); May, Some Rules of Evidence Reasonable Doubt in Civil and Criminal Cases, 10 Am.L.Rev. 642, 651—660 (1876). (See 69 U.S.L.Rev. 169, 172 (1935).) According to May and McCormick, the requirement or proof beyond a reasonable doubt first crystalized in the case of Rex v. Finny, a high treason case tried in Dublin in 1798 and reported in 1 L. MacNally, Rules of Evidence on Pleas of the Crown *4 (1811). Confusion about the rule persisted in the United States in the early 19th century, where it was applied in civil as well as criminal cases, see, e.g., Ropps v. Barker, 21 Mass. (4 Pick.) 239, 242 (1826); it was only in the latter half of the century that the reasonable-doubt standard ceased to be applied in civil cases, see Ellis v. Buzzell, 60 Me. 209 (1872), and that American courts began applying it in its modern form in criminal cases. See Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850). See generally May, supra.
*
See 406 U.S., at 369—371, 92 S.Ct., at 1637—1638 (POWELL, J., concurring in judgment).
| 01
|
406 U.S. 441
92 S.Ct. 1653
32 L.Ed.2d 212
Charles Joseph KASTIGAR and Michael Gorean Stewart, Petitioners,v.UNITED STATES.
No. 70—117.
Argued Jan. 11, 1972.
Decided May 22, 1972.
Rehearing Denied June 26, 1972.
See 408 U.S. 931, 92 S.Ct. 2478.
Syllabus
The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as provided by 18 U.S.C. § 6002, from use of the compelled testimony and evidence derived therefrom in subsequent criminal proceedings, as such immunity from use and derivative use is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege. Transactional immunity would afford broader protection than the Fifth Amendment privilege, and is not constitutionally required. In a subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony. Pp. 443—462.
440 F.2d 954, affirmed.
Hugh R. Manes, Los Angeles, Cal., for petitioners.
Sol. Gen. Erwin N. Griswold, for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the question whether the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against compulsory self-incrimination, by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony.
2
Petitioners were subpoenaed to appear before a United States grand jury in the Central District of California on February 4, 1971. The Government believed that petitioners were likely to assert their Fifth Amendment privilege. Prior to the scheduled appearances, the Government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U.S.C. §§ 6002, 6003. Petitioners opposed issuance of the order, contending primarily that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination, and therefore was not sufficient to supplant the privilege and compel their testimony. The District Court rejected this contention, and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity.
3
Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury's questions, notwithstanding the grant of immunity. The court found both in contempt, and committed them to the custody of the Attorney General until either they answered the grand jury's questions or the term of the grand jury expired.1 The Court of Appeals for the Ninth Circuit affirmed. Stewart v. United States, 440 F.2d 954 (CA9 1971). This Court granted certiorari to resolve the important question whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom ('use and derivative use' immunity), or whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates ('transactional' immunity). 402 U.S. 971, 91 S.Ct. 1668, 29 L.Ed.2d 135 (1971).
4
* The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence.2 The power with respect to courts was established by statute in England as early as 1562,3 and Lord Bacon observed in 1612 that all subjects owed the King their 'knowledge and discovery.'4 While it is not clear when grand juries first resorted to compulsory process to secure the attendance and testimony of witnesses, the general common-law principle that 'the public has a right to every man's evidence' was considered an 'indubitable certainty' that 'cannot be denied' by 1742.5 The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor. The first Congress recognized the testimonial duty in the Judiciary Act of 1789, which provided for compulsory attendance of witnesses in the federal courts.6 Mr. Justice White noted the importance of this essential power of government in his concurring opinion in Murphy v. Waterfront Comm'n, 378 U.S. 52, 93 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678 (1964):
5
'Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979. Such testimony constitutes one of the Government's primary sources of information.'
6
But the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty,7 the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations,8 and marks an important advance in the development of our liberty.9 It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory;10 and it
6
1 Stat. 73, 88—89.
7
See Blair v. United States, supra, 250 U.S., at 281, 39 S.Ct., at 471; 8 Wigmore, supra, n. 2, §§ 2192, 2197.
8
See Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964).
9
See Ullmann v. United States, 350 U.S., at 426, 76 S.Ct., at 500; E. Griswold, The Fifth Amendment Today 7 (1955).
10
Murphy v. Waterfront Comm'n, supra, 378 U.S., at 94, 84 S.Ct., at 1611 (White, J., concurring); McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924); United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69 (1828); cf. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.11 This Court has been zealous to safeguard the values which underlie the privilege.12
7
Immunity statutes, which have historical roots deep in Anglo-American jurisprudence,13 are not incompatible with these values. Rather, they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime. Indeed, their origins were in the
8
context of such offenses,14 and their primary use has been to investigate such offenses.15 Congress included immunity statutes in many of the regulatory measures adopted in the first half of this century.16 Indeed, prior to the enactment of the statute under consideration in this case, there were in force over 50 federal immunity statutes.17 In addition, every State in the Union, as well as the District of Columbia and Puerto Rico, has one or more such statutes.18 The commentators,19 and this Court on several occasions,20 have characterized immunity statutes as essential to the effective enforcement of various criminal statutes. As Mr. Justice Frankfurter observed, speaking for the Court in Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), such statutes have 'become part of our constitutional fabric.'21 Id., at 438, 76 S.Ct., at 506.
II
9
Petitioners contend, first, that the Fifth Amendment's privilege against compulsory self-incrimination, which is that '(n)o person .. . shall be compelled in any criminal case to be a witness against himself,' deprives Congress of power to enact laws that compel self-incrimination, even if complete immunity from prosecution is granted prior to the compulsion of the incriminatory testimony. In other words, petitioners assert that no immunity statute, however drawn, can afford a lawful basis for compelling incriminatory testimony. They ask us to reconsider and overrule Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), and Ullmann v. United States, supra, decisions that uphold the constitutionality of immunity statutes.22 We find no merit to this contention and reaffirm the decisions in Brown and Ullmann.
III
10
Petitioners' second contention is that the scope of immunity provided by the federal witness immunity statute, 18 U.S.C. § 6002, is not coextensive with the scope of the Fifth Amendment privilege against compulsory self-incrimination, and therefore is not sufficient to supplant the privilege and compel testimony over a claim of the privilege. The statute provides that when a witness is compelled by district court order to testify over a claim of the privilege:
11
'the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.'23 18 U.S.C. § 6002.
12
The constitutional inquiry, rooted in logic and history, as well as in the decisions of this Court, is whether the immunity granted under this statute is coextensive with the scope of the privilege.24 If so, petitioners' refusals to answer based on the privilege were unjustified, and the judgments of contempt were proper, for the grant of immunity has removed the dangers against which the privilege protects. Brown v. Walker, supra. If, on the other hand, the immunity granted is not as comprehensive as the protection afforded by the privilege, petitioners were justified in refusing to answer, and the judgments of contempt must be vacated. McCarthy v. Arndstein, 266 U.S. 34, 42, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924).
13
Petitioners draw a distinction between statutes that provide transactional immunity and those that provide, as does the statute before us, immunity from use and derivative use.25 They contend that a statute must at a minimum grant full transactional immunity in order to be coextensive with the scope of the privilege. In support of this contention, they rely on Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), the first case in which this Court considered a constitutional challenge to an immunity statute. The statute, a reenactment of the Immunity Act of 1868,26 provided that no 'evidence obtained from a party or witness by means of a judicial proceeding . . . shall be given in evidence, or in any manner used against him . .. in any court of the United States . . .'27 Notwithstanding a grant of immunity and order to testify under the revised 1868 Act, the witness, asserting his privilege against compulsory self-incrimination, refused to testify before a federal grand jury. He was consequently adjudged in contempt of court.28 On appeal, this Court construed the statute as affording a witness protection only against the use of the specific testimony compelled from him under the grant of immunity. This construction meant that the statute 'could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him.'29 Since the revised 1868 Act, as construed by the Court, would permit the use against the immunized witness of evidence derived from his compelled testimony, it did not protect the witness to the same extent that a claim of the privilege would protect him. Accordingly, under the principle that a grant of immunity cannot supplant the privilege, and is not sufficient to compel testimony over a claim of the privilege, unless the scope of the grant of immunity is coextensive with the scope of the privilege,30 the witness' refusal to testify was held proper. In the course of its opinion, the Court made the following statement, on which petitioners heavily rely:
14
'We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. (The immunity statute under consideration) does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates.' 142 U.S., at 585 586, 12 S.Ct., at 206.
15
Sixteen days after the Counselman decision, a new immunity bill was introduced by Senator Cullom,31 who urged that enforcement of the Interstate Commerce Act would be impossible in the absence of an effective immunity statute.32 The bill, which became the Compulsory Testimony Act of 1893,33 was drafted specifically to meet the broad language in Counselman set forth above.34 The new Act removed the privilege against self-incrimination in hearings before the Interstate Commerce Commission and provided that:
16
'no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise . . .' Act of Feb. 11, 1893, 27 Stat. 444.
17
This transactional immunity statute became the basic form for the numerous federal immunity statutes35 until 1970, when, after re-examining applicable constitutional principles and the adequacy of existing law, Congress enacted the statute here under consideration.36 The new statute, which does not 'afford (the) absolute immunity against future prosecution' referred to in Counselman, was drafted to meet what Congress judged to be the conceptual basis of Counselman, as elaborated in subsequent decisions of the Court, namely, that immunity from the use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege.37
18
The statute's explicit proscription of the use in any criminal case of 'testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)' is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of 'penalties affixed to . . . criminal acts."38 Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.
19
Our holding is consistent with the conceptual basis of Counselman. The Counselman statute, as construed by the Court, was plainly deficient in its failure to prohibit the use against the immunized witness of evidence derived from his compelled testimony. The Court repeatedly emphasized this deficiency, noting that the statute:
20
'could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding . . .' 142 U.S., at 564, 12 S.Ct., at 198—199;
21
that it:
22
'could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted,' ibid.;
23
and that it:
24
'affords no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.' 142 U.S., at 586, 12 S.Ct., at 206.
25
The basis of the Court's decision was recognized in Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), in which the Court reiterated that the Counselman statute was insufficient:
26
'because the immunity granted was incomplete, in that it merely forbade the use of the testimony given and failed to protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony.' Id., at 437, 76 S.Ct., at 506. (Emphasis supplied.)
27
See also Arndstein v. McCarthy, 254 U.S. 71, 73, 41 S.Ct. 26, 27, 65 L.Ed. 138 (1920). The broad language in Counselman relied upon by petitioners was unnecessary to the Court's decision, and cannot be considered binding authority.39
28
In Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the Court carefully considered immunity from use of compelled testimony and evidence derived therefrom. The Murphy petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor. After refusing to answer certain questions on the ground that the answers might tend to incriminate them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York.40 They continued to refuse to testify, however, on the ground that their answers might tend to incriminate them under federal law, to which the immunity did not purport to extend. They were adjudged in civil contempt, and that judgment was affirmed by the New Jersey Supreme Court.41
29
The issue before the Court in Murphy was whether New Jersey and New York could compel the witnesses, whom these States had immunized from prosecution under their laws, to give testimony that might then be used to convict them of a federal crime. Since New Jersey and New York had not purported to confer immunity from federal prosecution, the Court was faced with the question what limitations the Fifth Amendment privilege imposed on the prosecutorial powers of the Federal Government, a nonimmunizing sovereign. After undertaking an examination of the policies and purposes of the privilege, the Court overturned the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.42 The Court held that the privilege protects state witnesses against incrimination under federal as well as state law, and federal witnesses against incrimination under state as well as federal law. Applying this principle to the state immunity legislation before it, the Court held the constitutional rule to be that:
30
'(A) state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Government in investigating and prosecuting crime, the Federal Governments must be prohibited from making any such use of compelled testimony and its fruits.'43 378 U.S., at 79, 84 S.Ct., at 1609.
31
The Court emphasized that this rule left the state witness and the Federal Government, against which the witness had immunity only from the use of the compelled testimony and evidence derived therefrom, 'in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.' Id., at 79, 84 S.Ct., at 1610.
32
It is true that in Murphy the Court was not presented with the precise question presented by this case, whether a jurisdiction seeking to compel testimony may do so by granting only use and derivative-use immunity, for New Jersey and New York had granted petitioners transactional immunity. The Court heretofore has not squarely confronted this question,44 because post-Counselman immunity statutes reaching the Court either have followed the pattern of the 1893 Act in providing transactional immunity,45 or have been found deficient for failure to prohibit the use of all evidence derived from compelled testimony.46 But both the reasoning of the Court in Murphy and the result reached compel the conclusion that use and derivative-use immunity is constitutionally sufficient to compel testimony over a claim of the privilege. Since the privilege is fully applicable and its scope is the same whether invoked in a state or in a federal jurisdiction,47 the Murphy conclusion that a prohibition on use and derivative use secures a witness' Fifth Amendment privilege against infringement by the Federal Government demonstrates that immunity from use and derivative use is coextensive with the scope of the privilege. As the Murphy Court noted, immunity from use and derivative use 'leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege'48 in the absence of a grant of immunity. The Murphy Court was concerned solely with the danger of incrimination under federal law, and held that immunity from use and derivative use was sufficient to displace the danger. This protection coextensive with the privilege is the degree of protection that the Constitution requires, and is all that the Constitution requires even against the jurisdiction compelling testimony by granting immunity.49
IV
33
Although an analysis of prior decisions and the purpose of the Fifth Amendment privilege indicates that use and derivative-use immunity is coextensive with the privilege, we must consider additional arguments advanced by petitioners against the sufficiency of such immunity. We start from the premise, repeatedly affirmed by this Court, that an appropriately broad immunity grant is compatible with the Constitution.
34
Petitioners argue that use and derivative-use immunity will not adequately protect a witness from various possible incriminating uses of the compelled testimony: for example, the prosecutor or other law enforcement officials may obtain leads, names of witnesses, or other information not otherwise available that might result in a prosecution. It will be difficult and perhaps impossible, the argument goes, to identify, by testimony or cross-examination, the subtle ways in which the compelled testimony may disadvantage a witness, especially in the jurisdiction granting the immunity.
35
This argument presupposes that the statute's prohibition will prove impossible to enforce. The statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom:
36
'(N)o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case . . .' 18 U.S.C. § 6002.
37
This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an 'investigatory lead,'50 and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.
38
A person accorded this immunity under 18 U.S.C. § 6002, and subsequently prosecuted, is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities. As stated in Murphy:
39
'Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.' 378 U.S., at 79 n. 18, 84 S.Ct., at 1609.
40
This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.
41
This is very substantial protection,51 commensurate with that resulting from invoking the privilege itself. The privilege assures that a citizen is not compelled to incriminate himself by his own testimony. It usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer. This statute, which operates after a witness has given incriminatory testiony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties. The statute, like the Fifth Amendment, grants neither pardon nor amnesty. Both the statute and the Fifth Amendment allow the government to prosecute using evidence from legitimate independent sources.
42
The statutory proscription is analogous to the Fifth Amendment requirement in cases of coerced confessions.52 A coerced confession, as revealing of leads as testimony given in exchange for immunity,53 is inadmissible in a criminal trial, but it does not bar prosecution.54 Moreover, a defendant against whom incriminating evidence has been obtained through a grant of immunity may be in a stronger position at trial than a defendant who asserts a Fifth Amendment coerced-confession claim. One raising a claim under this statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.55 On the other hand, a defendant raising a coerced-confession claim under the Fifth Amendment must first prevail in a voluntariness hearing before his confession and evidence derived from it become inadmissible.56
43
There can be no justification in reason or policy for holding that the Constitution requires an amnesty grant where, acting pursuant to statute and accompanying safeguards, testimony is compelled in exchange for immunity from use and derivative use when no such amnesty is required where the government, acting without colorable right, coerces a defendant into incriminating himself.
44
We conclude that the immunity provided by 18 U.S.C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it. The judgment of the Court of Appeals for the Ninth Circuit accordingly is
45
Affirmed.
46
Mr. Justice BRENNAN and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
47
Mr. Justice DOUGLAS, dissenting.
48
The Self-Incrimination Clause says: 'No person . . . shall be compelled in any criminal case to be a witness against himself.' I see no answer to the proposition that he is such a witness when only 'use' immunity is granted.
49
My views on the question of the scope of immunity that is necessary to force a witness to give up his guarantee against self-incrimination contained in the Fifth Amendment are so well known, see Ullmann v. United States, 350 U.S. 422, 440, 76 S.Ct. 497, 507, 100 L.Ed. 51 (dissenting), and Piccirillo v. New York, 400 U.S. 548, 549, 91 S.Ct. 520, 521, 27 L.Ed.2d 596 (dissenting), that I need not write at length.
50
In Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S.Ct. 195, 206, 35 L.Ed. 1110, the Court adopted the transactional immunity test: 'In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.' Id., at 586, 12 S.Ct., at 206. In Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, a case involving another federal prosecution, the immunity statute provided that the witness would be protected 'on account of any transaction . . . concerning which he may testify.' Id., at 594, 16 S.Ct., at 645. The Court held that the immunity offered was coterminous with the privilege and that the witness could therefore be compelled to testify, a ruling that made 'transactional immunity' part of the fabric of our constitutional law. Ullmann v. United States, supra, 350 U.S., at 438, 76 S.Ct., at 50.
51
This Court, however, apparently believes that Counselman and its progeny were overruled sub silentio in Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, Murphy involved state witnesses, granted transactional immunity under state law, who refused to testify for fear of subsequent federal prosecution. We held that the testimony in question could be compelled, but that the Federal Government would be barred from using any of the testimony, or its fruits, in a subsequent federal prosecution.
52
Murphy overruled, not Counselman, but Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, which had held 'that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.' Murphy v. Waterfront Comm'n, supra, 378 U.S., at 77, 84 S.Ct., at 1608. But Counselman, as the Murphy Court recognized, 'said nothing about the problem of incrimination under the law of another sovereign.' Id., at 72, 84 S.Ct., at 1606. That problem is one of federalism, as to require transactional immunity between jurisdictions might
53
'deprive a state of the right to prosecute a violation of its criminal law on the basis of another state's grant of immunity (a result which) would be gravely in derogation of its sovereignty and obstructive of its administration of justice.' United States ex rel. Catena v. Elias, 449 F.2d 40, 44 (CA3 1971).
54
Moreover, as Mr. Justice Brennan has pointed out, the threat of future prosecution
55
'substantial when a single jurisdiction both compels incriminating testimony and brings a later prosecution, may fade when the jurisdiction bringing the prosecution differs from the jurisdiction that compelled the testimony. Concern over informal and undetected exchange of information is also correspondingly less when two different jurisdictions are involved.' Piccirillo v. New York, 400 U.S., at 568, 91 S.Ct., at 531 (dissenting).
56
None of these factors apply when the threat of prosecution is from the jurisdiction seeking to compel the testimony, which is the situation we faced in Counselman, and which we face today. The irrelevance of Murphy to such a situation was made clear in Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165, in which the Court struck down an immunity statute because it failed to measure up to the standards set forth in Counselman. Inasmuch as no interjurisdictional problems presented themselves, Murphy was not even cited. That is further proof that Murphy was not thought significantly to undercut Counselman.1 See Stevens v. Marks, 383 U.S. 234, 244—245, 86 S.Ct. 788, 793—794, 15 L.Ed.2d 724; id., at 249—250, 86 S.Ct., at 796—797 (Harlan, J., concurring and dissenting); Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup.Ct.Rev. 103, 164.
57
If, as some have thought, the Bill of Rights contained only 'counsels of moderation' from which courts and legislatures could deviate according to their conscience or discretion, then today's contraction of the Self-Incrimination Clause of the Fifth Amendment would be understandable. But that has not been true, starting with Chief Justice Marshall's opinion in United States v. Burr, 25 F.Cas. p. 38 (No. 14,692e) (CC Va.), where he ruled that the reach of the Fifth Amendment was so broad as to make the privilege applicable when there was a mere possibility of a criminal charge being made.
58
The Court said in Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 376, 50 L.Ed. 652 that 'if the criminality has already been taken away, the Amendment ceases to apply.' In other words, the immunity granted is adequate if it operates as a complete pardon for the offense. Brown v. Walker, 161 U.S., at 595, 16 S.Ct., at 646. That is the true measure of the Self-Incrimination Clause. As Mr. Justice Brennan has stated: '(U)se immunity literally misses half the point of the privilege, for it permits the compulsion without removing the criminality.' Piccirillo v. New York, supra, 400 U.S., at 567, 91 S.Ct., at 530 (dissenting).
As Mr. Justice Brennan has also said:
59
'Transactional immunity . . . provides the individual with an assurance that he is not testifying about matters for which he may later be prosecuted. No question arises of tracing the use or non-use of information gleaned from the witness' compelled testimony. The sole question presented to a court is whether the subsequent prosecution is related to the substance of the compelled testimony. Both witness and government know precisely where they stand. Respect for law is furthered when the individual knows his position and is not left suspicious that a later prosecution was actually the fruit of his compelled testimony.' 400 U.S., at 568—569, 91 S.Ct. at 531 (dissenting).
60
When we allow the prosecution to offer only 'use' immunity we allow it to grant far less than it has taken away. For while the precise testimony that is compelled may not be used, leads from that testimony may be pursued and used to convict the witness.2 My view is that the framers put it beyond the power of Congress to compel anyone to confess his crimes. The Self-Incrimination Clause creates, as I have said before, 'the federally protected right of silence,' making it unconstitutional to use a law 'to pry open one's lips and make him a witness against himself.' Ullmann v. United States, 350 U.S., at 446, 76 S.Ct., at 511 (dissenting). That is indeed one of the chief procedural guarantees in our accusatorial system. Government acts in an ignoble way when it stoops to the end which we authorize today.
61
I would adhere to Counselman v. Hitchcock and hold that this attempt to dilute the Self-Incrimination Clause is unconstitutional.
62
Mr. Justice MARSHALL, dissenting.
63
Today the Court holds that the United States may compel a witness to give incriminating testimony, and subsequently prosecute him for crimes to which that testimony relates. I cannot believe the Fifth Amendment permits that result. See Piccirillo v. New York, 400 U.S. 548, 552, 91 S.Ct. 520, 522, 27 L.Ed.2d 596 (1971) (Brennan, J., dissenting from dismissal of certiorari).
64
The Fifth Amendment gives a witness an absolute right to resist interrogation, if the testimony sought would tend to incriminate him. A grant of immunity may strip the witness of the right to refuse to testify, but only if it is broad enough to eliminate all possibility that the testimony will in fact operate to incriminate him. It must put him in precisely the same position, vis-a-vis the government that has compelled his testimony,* as he would have been in had he remained silent in reliance on the privilege. Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956); McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892).
65
The Court recognizes that an immunity statute must be tested by that standard, that the relevant inquiry is whether it 'leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege.' Ante, at 462. I assume, moreover, that in theory that test would be met by a complete ban on the use of the compelled testimony, including all derivative, use, however remote and indirect. But I cannot agree that a ban on use will in practice be total, if it remains open for the government to convict the witness on the basis of evidence derived from a legitimate independent source. The Court asserts that the witness is adequately protected by a rule imposing on the government a heavy burden of proof if it would establish the independent character of evidence to be used against the witness. But in light of the inevitable uncertainties of the fact-finding process, see Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958), a greater margin of protection is required in order to provide a reliable guarantee that the witness is in exactly the same position as if he had not testified. That margin can be provided only by immunity from prosecution for the offenses to which the testimony relates, i.e., transactional immunity.
66
I do not see how it can suffice merely to put the burden of proof on the government. First, contrary to the Court's assertion, the Court's rule does leave the witness 'dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities.' Ante, at 460. For the information relevant to the question of taint is iniquely within the knowledge of the prosecuting authorities. They alone are in a position to trace the chains of information and investigation that lead to the evidence to be used in a criminal prosecution. A witness who suspects that his compelled testimony was used to develop a lead will be hard pressed indeed to ferret out the evidence necessary to prove it. And of course it is no answer to say he need not prove it, for though the Court puts the burden of proof on the government, the government will have no difficulty in meeting its burden by mere assertion if the witness produces no contrary evidence. The good faith of the prosecuting authorities is thus the sole safeguard of the witness' rights. Second, even their good faith is not a sufficient safeguard. For the paths of information through the investigative bureaucracy may well be long and winding, and even a prosecutor acting in the best of faith cannot be certain that somewhere in the depths of his investigative apparatus, often including hundreds of employees, there was not some prohibited use of the compelled testimony. Cf. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The Court today sets out a loose net to trap tainted evidence and prevent its use against the witness, but it accepts an intolerably great risk that tainted evidence will in fact slip through that net.
67
In my view the Court turns reason on its head when it compares a statutory grant of immunity to the 'immunity' that is inadvertently conferred by an unconstitutional interrogation. The exclusionary rule of evidence that applies in that situation has nothing whatever to do with this case. Evidence obtained through a coercive interrogation, like evidence obtained through an illegal search, is excluded at trial because the Constitution prohibits such methods of gathering evidence. The exclusionary rules provide a partial and inadequate remedy to some victims of illegal police conduct, and a similarly partial and inadequate deterrent to police officers. An immunity statute, on the other hand, is much more ambitious than any exclusionary rule. It does not merely attempt to provide a remedy for past police misconduct, which never should have occurred. An immunity statute operates in advance of the event, and it authorizes—even encourages interrogation that would otherwise be prohibited by the Fifth Amendment. An immunity statute thus differs from an exclusionary rule of evidence in at least two critical respects.
68
First, because an immunity statute gives constitutional approval to the resulting interrogation, the government is under an obligation here to remove the danger of incrimination completely and absolutely, whereas in the case of the exclusionary rules it may be sufficient to shield the witness from the fruits of the illegal search or interrogation in a partial and reasonably adequate manner. For when illegal police conduct has occurred, the exclusion of evidence does not purport to purge the conduct of its unconstitutional character. The constitutional violation remains, and may provide the basis for other relief, such as a civil action for damages (see 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)), or a criminal prosecution of the responsible officers (see 18 U.S.C. §§ 241, 242). The Constitution does not authorize police officers to coerce confessions or to invade privacy without cause, so long as no use is made of the evidence they obtain. But this Court has held that the Constitution does authorize the government to compel a witness to give potentially incriminating testimony, so long as no incriminating use is made of the resulting evidence. Before the government puts its seal of approval on such an interrogation, it must provide an absolutely reliable guarantee that it will not use the testimony in any way at all in aid of prosecution of the witness. The only way to provide that guarantee is to give the witness immunity from prosecution for crimes to which his testimony relates.
69
Second, because an immunity statute operates in advance of the interrogation, there is room to require a broad grant of transactional immunity without imperiling large numbers of otherwise valid convictions. An exclusionary rule comes into play after the interrogation or search has occurred; and the decision to question or to search is often made in haste, under pressure, by an officer who is not a lawyer. If an unconstitutional interrogation or search were held to create transactional immunity, that might well be regarded as an excessively high price to pay for the 'constable's blunder.' An immunity statute, on the other hand, creates a framework in which the prosecuting attorney can make a calm and reasoned decision whether to compel testimony and suffer the resulting ban on prosecution, or to forgo the testimony.
70
For both these reasons it is clear to me that an immunity statute must be tested by a standard far more demanding than that appropriate for an exclusionary rule fashioned to deal with past constitutional violations. Measured by that standard, the statute approved today by the Court fails miserably. I respectfully dissent.
1
The contempt order was issued pursuant to 28 U.S.C. § 1826.
2
For a concise history of testimonial compulsion prior to the adoption of our Constitution, see 8 J. Wigmore, Evidence § 2190 (J. McNaughton rev. 1961). See Ullmann v. United States, 350 U.S. 422, 439 n. 15, 76 S.Ct. 497, 507, 100 L.Ed. 511 (1956); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919).
3
Statute of Elizabeth, 5 Eliz. 1, c. 9, § 12 (1562).
4
Countess of Shrewsbury's Case, 2 How.St.Tr. 769, 778 (1612).
5
See the parliamentary debate on the Bill to Indemnify Evidence, particularly the remarks of the Duke of Argyle and Lord Chancellor Hardwicke, reported in 12 T. Hansard, Parliamentary History of England 675, 693 (1812). See also Piemonte v. United States, 367 U.S. 556, 559 n. 2, 81 S.Ct. 1720, 1722, 6 L.Ed.2d 1028 (1961); Ullmann v. United States, supra, 350 U.S., at 439 n. 15, 76 S.Ct., at 507; Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 648, 40 L.Ed. 819 (1896).
11
Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951); Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950); Mason v. United States, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198 (1917).
12
See, e.g., Miranda v. Arizona, 384 U.S. 436, 443—444, 86 S.Ct. 1602, 1611—1612, 16 L.Ed.2d 694 (1966); Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886).
13
Soon after the privilege against compulsory self-incrimination became firmly established in law, it was recognized that the privilege did not apply when immunity, or 'indemnity,' in the English usage, had been granted. See L. Levy, Origins of the Fifth Amendment 328, 495 (1968). Parliament enacted in immunity statute in 1710 directed against illegal gambling, 9 Anne, c. 14, §§ 3—4, which became the model for an identical immunity statute enacted in 1774 by the Colonial Legislature of New York. Law of Mar. 9, 1774, c. 1651, 5 Colonial Laws of New York 621, 623 (1894). These statutes provided that the loser could sue the winner, who was compelled to answer the loser's charges. After the winner responded and returned his illgotten gains, he was 'acquitted, indemnified (immunized) and discharged from any further or other Punishment, Forfeiture or Penalty, which he . . . may have incurred by the playing for, and winning such Money . . ..' 9 Anne, c. 14, § 4 (1710); Law of Mar. 9, 1774, c. 1651, 5 Colonial Laws of New York, at 623.
Another notable instance of the early use of immunity legislation is the 1725 impeachment trial of Lord Chancellor Macclesfield. The Lord Chancellor was accused by the House of Commons of the sale of public offices and appointments. In order to compel the testimony of Masters in Chancery who had allegedly purchased their offices from the Lord Chancellor, and who could incriminate themselves by so testifying. Parliament enacted a statute granting immunity to persons then holding office as Masters in Chancery. Lord Chancellor Macclesfield's Trial, 16 How.St.Tr. 767, 1147 (1725). See 8 Wigmore, supra, n. 2, § 2281, at 492. See also Bishop Atterbury's Trial, 16 How.St.Tr. 323, 604 605 (1723). The legislatures in colonial Pennsylvania and New York enacted immunity legislation in the 18th century. See, e.g., Resolution of Jan. 6, 1758, in Votes and Proceedings of the House of Representatives of the Province of Pennsylvania (1682—1776), 6 Pennsylvania Archives (8th series) 4679 (C. Hoban ed. 1935); Law of Mar. 24, 1772, c. 1542, 5 Colonial Laws of New York 351, 353 354; Law of Mar. 9, 1774, c. 1651, id., at 621, 623; Law of Mar. 9, 1774, c. 1655, id., at 639, 641—642. See generally L. Levy, Origins of the Fifth Amendment 359, 384—385, 389, 402—403 (1968). Federal immunity statutes have existed since 1857. Act of Jan. 24, 1857, 11 Stat. 155. For a history of the various federal immunity statutes, see Comment, The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope, 72 Yale L.J. 1568 (1963); Wendel, Compulsory Immunity Legislation and the Fifth Amendment Privilege: New Developments and New Confusion, 10 St. louis U.L.Rev. 327 (1966); and National Commission on Reform of Federal Criminal Laws, Working Papers, 1406—1411 (1970).
14
See, e.g., Resolution of Jan. 6, 1758, n. 13, supra, 6 Pennsylvania Archives (8th series) 4679 (C. Hoban ed. 1935); Law of Mar. 24, 1772, c. 1542, 5 Colonial Laws of New York 351, 354; Law of Mar. 9, 1774, c. 1655, id., at 639, 642. Bishop Atterbury's Trial, supra, for which the House of Commons passed immunity legislation, was a prosecution for treasonable conspiracy. See id., at 604—605; 8 Wigmore, supra, n. 2, § 2281, at 492 n. 2. supra, n. 2, § 2281, at 492 n. 2. for which Parliament passed immunity legislation, was a prosecution for political bribery involving the sale of public offices and appointments. See id., at 1147. The first federal immunity statute was enacted to facilitate an investigation of charges of corruption and vote buying in the House of Representatives. See Comment, n. 13, supra, 72 Yale L.J., at 1571.
15
See 8 Wigmore, supra, n. 2, § 2281, at 492. Mr. Justice White noted in his concurring opinion in Murphy v. Waterfront Comm'n, 378 U.S., at 92, 84 S.Ct., at 1610, that immunity statutes 'have for more than a century been resorted to for the investigation of many offenses, chiefly those whose proof and punishment were otherwise impracticable, such as political bribery, extortion, gambling, consumer frauds, liquor violations, commercial larceny, and various forms of racketeering.' Id., at 94 95, 84 S.Ct., at 1611. See n. 14, supra.
16
See Comment, n. 13, supra, 72 Yale L.J., at 1576.
17
For a listing of these statutes, see National Commission on Reform of Federal Criminal Laws, Working Papers, 1444—1445 (1970).
18
For a listing of these statutes, see 8 Wigmore, supra, n. 2, § 2281, at 495 n. 11.
19
See, e.g., 8 J. Wigmore, Evidence § 2281, at 501 (3d ed. 1940); 8 Wigmore, supra, n. 2 § 2281, at 496.
20
See Hale v. Henkel, 201 U.S. 43, 70, 26 S.Ct. 370, 377, 50 L.Ed. 652 (1906); Brown v. Walker, 161 U.S., at 610, 16 S.Ct., at 652.
21
This statement was made with specific reference to the Compulsory Testimony Act of 1893, 27 Stat. 443, the model for almost all federal immunity statutes prior to the enactment of the statute under consideration in this case. See Murphy v. Waterfront Comm'n, 378 U.S., at 95, 84 S.Ct., at 1612 (White, J., concurring).
22
Accord, Gardner v. Broderick, 392 U.S., at 276, 88 S.Ct., at 1915; Murphy v. Waterfront Comm'n, supra; McCarthy v. Arndstein, 266 U.S., at 42, 45 S.Ct., at 17 (Brandeis, J.); Heike v. United States, 227 U.S. 131, 142, 33 S.Ct. 226, 228, 57 L.Ed. 450 (1913) (Holmes, J.).
23
For other provisions of the 1970 Act relative to immunity of witnesses, see 18 U.S.C. §§ 6001—6005.
24
See, e.g., Murphy v. Waterfront Comm'n, supra, 378 U.S. at 54, 78, 84 S.Ct., at 1596, 1609, 12 L.Ed.2d 678; Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892).
25
See Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971).
26
15 Stat. 37.
27
See Counselman v. Hitchcock, supra, 142 U.S., at 560, 12 S.Ct., at 197.
28
In re Counselman, 44 F. 268 (CCND Ill. 1890).
29
Counselman v. Hitchcock, supra, 142 U.S., at 564, 12 S.Ct., at 198—199.
30
Precisely, the Court held 'that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply (sic) one, at least unless it is so broad as to have the same extent in scope and effect.' Id., at 585, 12 S.Ct., at 206. See Murphy v. Waterfront Comm'n, supra, 378 U.S., at 54, 78, 81 S.Ct., at 1596, 1609.
31
Counselman was decided Jan. 11, 1892. Senator Cullom introduced the new bill on Jan. 27, 1892. 23 Cong.Rec. 573.
32
23 Cong.Rec. 6333.
33
Act of February 11, 1893, 27 Stat. 443, repealed by the Organized Crime Control Act of 1970, Pub.L.No. 91—452, § 245, 84 Stat. 931.
34
See the remarks of Senator Cullom, 23 Cong.Rec. 573, 6333, and Congressman Wise, who introduced the bill in the House. 24 Cong.Rec. 503. See Shapiro v. United States, 335 U.S. 1, 28—29 and n. 36, 68 S.Ct. 1375, 1389—1390, 92 L.Ed. 1787 (1948).
35
Ullmann v. United States, 350 U.S., at 438, 76 S.Ct., at 506; Shapiro v. United States, supra, 335 U.S., at 6, 68 S.Ct., at 1378. There was one minor exception. See Piccirillo v. New York, 400 U.S., at 571 and n. 11, 91 S.Ct., at 532 (Brennan, J., dissenting); Arndstein v. McCarthy, 254 U.S. 71, 73, 41 S.Ct. 26, 27, 65 L.Ed. 138 (1920).
36
The statute is a product of careful study and consideration by the National Commission on Reform of Federal Criminal Laws, as well as by Congress. The Commission recommended legislation to reform the federal immunity laws. The recommendation served as the model for this statute. In commenting on its proposal in a special report to the President, the Commission said:
'We are satisfied that our substitution of immunity from use for immunity from prosecution meets constitutional requirements for overcoming the claim of privilege. Immunity from use is the only consequence flowing from a violation of the individual's constitutional right to be protected from unreasonable searches and seizures, his constitutional right to counsel, and his constitutional right not to be coerced into confessing. The proposed immunity is thus of the same scope as that frequently, even though unintentionally, conferred as the result of constitutional violations by law enforcement officers.' Second Interim Report of the National Commission on Reform of Federal Criminal Laws, Mar. 17, 1969, Working Papers of the Commission, 1446 (1970).
The Commission's recommendation was based in large part on a comprehensive study of immunity and the relevant decisions of this Court prepared for the Commission by Prof. Robert G. Dixon, Jr., of the George Washington University Law Center, and transmitted to the President with the recommendations of the Commission. See National Commission on Reform of Federal Criminal Laws, Working Papers, 1405—1444 (1970).
37
. See S.Rep.No.91—617, pp. 51—56, 145 (1969); H.R.Rep.No.91 1549, p. 42 (1970).
38
Ullmann v. United States, 350 U.S., at 438—439, 76 S.Ct., at 507, quoting Boyd v. United States, 116 U.S., at 634, 6 S.Ct., at 534. See Knapp v. Schweitzer, 357 U.S. 371, 380, 78 S.Ct. 1302, 1308, 2 L.Ed.2d 1393 (1958).
39
Cf. The Supreme Court, 1963 Term, 78 Harv.L.Rev. 179, 230 (1964). Language similar to the Counselman dictum can be found in Brown v. Walker, 161 U.S., at 594—595, 16 S.Ct., at 645—646, and Hale v. Henkel, 201 U.S., at 67, 26 S.Ct., at 376. Brown and Hale, however, involved statutes that were clearly sufficient to supplant the privilege against self-incrimination, as they provided full immunity from prosecution 'for or on account of any transaction, matter or thing concerning which he may testify, or produce evidence . . .' 161 U.S., at 594, 16 S.Ct., at 645; 201 U.S., at 66, 26 S.Ct., at 375. The same is true of Smith v. United States, 337 U.S. 137, 141, 146, 69 S.Ct. 1000, 1002, 1005, 93 L.Ed. 1264 (1949), and United States v. Monia, 317 U.S. 424, 425, 428, 63 S.Ct. 409, 410, 411, 87 L.Ed. 376 (1943). In Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), some of the Counselman language urged upon us by petitioners was again quoted. But Albertson, like Counselman, involved an immunity statute that was held insufficient for failure to prohibit the use of evidence derived from compelled admissions and the use of compelled admissions as an 'investigatory lead.' Id., at 80, 86 S.Ct., at 199.
In Adams v. Maryland, 347 U.S. 179, 182, 74 S.Ct. 442, 445, 98 L.Ed. 608 (1954), and in United States v. Murdock, 284 U.S. 141, 149, 52 S.Ct. 63, 64, 76 L.Ed. 210 (1931), the Counselman dictum was referred to as the principle of Counselman. The references were in the context of ancillary points not essential to the decisions of the Court. The Adams Court did note, however, that the Fifth Amendment privilege prohibits the 'use' of compelled self-incriminatory testimony. 347 U.S., at 181, 74 S.Ct., at 445. In any event, the Court in Ullmann v. United States, 350 U.S., at 436—437, 76 S.Ct., at 505—506, recognized that the rationale of Counselman was that the Counselman statute was insufficient for failure to prohibit the use of evidence derived from compelled testimony. See also Arndstein v. McCarthy, 254 U.S., at 73, 41 S.Ct., at 27.
40
The Waterfront Commission of New York Harbor is a bistate body established under an interstate compact approved by Congress. 67 Stat. 541.
41
In re Application of Waterfront Comm'n of N. Y. Harbor, 39 N.J. 436, 189 A.2d 36 (1963).
42
Reconsideration of the rule that the Fifth Amendment privilege does not protect a witness in one jurisdiction against being compelled to give testimony that could be used to convict him in another jurisdiction was made necessary by the decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), in which the Court held the Fifth Amendment privilege applicable to the States through the Fourteenth Amendment. Murphy v. Waterfront Comm'n, 378 U.S., at 57, 84 S.Ct., at 1597.
43
At this point the Court added the following note: 'Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.' Id., at 79 n. 18, 84 S.Ct., at 1609. If transactional immunity had been deemed to be the 'constitutional rule' there could be no federal prosecution.'
44
See, e.g., California v. Byers, 402 U.S. 424, 442, n. 3, 91 S.Ct. 1535, 1545, 29 L.Ed.2d 9 (1971) (Harlan, J., concurring in judgment); United States v. Freed, 401 U.S. 601, 606 n. 11, 91 S.Ct. 1112, 1116, 28 L.Ed.2d 356 (1971); Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971); Stevens v. Marks, 383 U.S. 234, 244—245, 86 S.Ct. 788, 793—794 (1966).
45
E.g., Murphy v. Waterfront Comm'n, supra; Ullmann v. United States, supra; Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264 (1949); United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234 (1905); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896). See also n. 35, supra.
46
E.g., Albertson v. Subversive Activities Control Board, 382 U.S., at 80, 86 S.Ct., at 199; Arndstein v. McCarthy, 254 U.S., at 73, 41 S.Ct., at 27.
47
In Malloy v. Hogan, 378 U.S., at 10—11, 84 S.Ct., at 1494 1495 the Court held that the same standards would determine the extent or scope of the privilege in state and in federal proceedings, because the same substantive guarantee of the Bill of Rights is involved. The Murphy Court emphasized that the scope of the privilege is the same in state and in federal proceedings. Murphy v. Waterfront Comm'n, 378 U.S., at 79, 84 S.Ct., at 1609 1610.
48
Ibid.
49
As the Court noted in Gardner v. Broderick, 392 U.S., at 276, 88 S.Ct., at 1915, '(a)nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.'
50
See, e.g., Albertson v. Subversive Activities Control Board, 382 U.S., at 80, 86 S.Ct., at 199.
51
See Murphy v. Waterfront Comm'n, 378 U.S., at 102—104, 84 S.Ct., at 1615—1617 (White, J., concurring).
52
Adams v. Maryland, 347 U.S., at 181, 74 S.Ct., at 444; Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897).
53
As Mr. Justice White, concurring in Murphy, pointed out:
'A coerced confession is as revealing of leads as testimony given in exchange for immunity and indeed is excluded in part because it is compelled incrimination in violation of the privilege. Malloy v. Hogan (378 U.S. 1, 7—8, 84 S.Ct. 1489, at 1493—1494, 12 L.Ed.2d 653); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.' 378 U.S., at 103, 84 S.Ct., at 1616.
54
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
55
See supra, at 460; Brief the United States 37; Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
56
Jackson v. Denno, supra.
1
In Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165, the Court was faced with a Fifth Amendment challenge to the Communist registration provision of the Subversive Activities Control Act of 1950, 64 Stat. 987. We held that the provision violated the prospective registrant's privilege against self-incrimination, and that the registration provision was not saved by a so-called 'immunity statute' (§ 4(f)) which prohibited the introduction into evidence in any criminal prosecution of the fact of registration under the Act. The Court's analysis of this immunity provision rested solely on Counselman:
'In Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, decided in 1892, the Court held 'that no (immunity) statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege . . .,' and that such a statute is valid only if it supplies 'a complete protection from all the perils against which the constitutional prohibition was designed to guard . . .' by affording 'absolute immunity against future prosecution for the offence to which the question relates.' Id., at 585—586, 12 S.Ct., at 206. Measured by these standards, the immunity granted by § 4(f) is not complete.' 382 U.S., at 80, 86 S.Ct., at 199. (Emphasis added.)
Thus, the Albertson Court, which could have struck the statute by employing the test approved today, went well beyond, and measured the statute solely against the more restrictive standards of Counselman.
2
As Mr. Justice Marshall points out, post, at 269, it is futile to expect that a ban on use or derivative use of compelled testimony can be enforced.
It is also possible that use immunity might actually have an adverse impact on the administration of justice rather than promote law enforcement. A witness might believe, with good reason, that his 'immunized' testimony will inevitably lead to a felony conviction. Under such circumstances, rather than testify and aid the investigation, the witness might decide he would be better off remaining silent even if he is jailed for contempt.
*
This case does not, of course, involve the special considerations that come into play when the prosecuting government is different from the government that has compelled the testimony. See Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).
| 01
|
406 U.S. 482
92 S.Ct. 1677
32 L.Ed.2d 243
Albert SARNO and Chris Cardi, Petitioners,v.ILLINOIS CRIME INVESTIGATING COMMISSION.
No. 70—7.
Argued Jan. 11, 1972.
Decided May 22, 1972.
Frank G. Whalen, Chicago, Ill., for petitioners.
Joel M. Flaum, Chicago, Ill., for respondent.
PER CURIAM.
1
Petitioners were ordered to testify before the Illinois Crime Investigating Commission under a grant of immunity conferred pursuant to Ill.Rev.Stat., c. 38, § 203—14 (1969). The occasion for granting the writ in this case was to consider whether Illinois must demonstrate to petitioners, prior to an adjudication for contempt for refusal to answer the Commission's questions, that immunity as broad in scope as the protection of the privilege against self-incrimination is available and applicable to them. 401 U.S. 935, 91 S.Ct. 918, 28 L.Ed.2d 214 (1971). The writ was granted in light of petitioners' claim that the statute did not provide complete transactional immunity. On the same day that the writ was granted, probable jurisdiction was noted in Zicarelli v. New Jersey State Commission of Investigation, 401 U.S. 933, 91 S.Ct. 916, 28 L.Ed.2d 213 (1971), to resolve the question whether a State can compel testimony from an unwilling witness, who invokes the privilege against self-incrimination, by granting immunity from use and derivative use of the compelled testimony, or whether transactional immunity is required.
2
We held today in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, and in Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234, that testimony may be compelled from an unwilling witness over a claim of the privilege against self-incrimination by a grant of use and derivative use immunity. The premise of petitioners' arguments is that transactional immunity is required. They say that Illinois failed to demonstrate satisfactorily that transactional immunity was provided, but they do not contend that the Illinois immunity statute affords protection less comprehensive than use and derivative use immunity. Respondent asserts that the statute affords complete transactional immunity, reflecting a long-standing Illinois policy of providing immunity greater than that required by the United States Constitution. Since neither party contends that the scope of the immunity provided by the Illinois statute falls below the constitutional requirement set forth in Kastigar, we conclude that any uncertainty regarding the scope of protection in excess of the constitutional requirement should best be left to the courts of Illinois. Accordingly, the writ of certiorari is dismissed as improvidently granted.
3
Writ dismissed.
4
It is so ordered.
5
Mr. Justice BRENNAN and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
6
Mr. Justice DOUGLAS dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, 406 U.S. 462, 92 S.Ct. 1666.
7
Mr. Justice MARSHALL dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, 406 U.S. 467, 92 S.Ct. 1668.
| 01
|
406 U.S. 484
92 S.Ct. 1691
32 L.Ed.2d 246
State of UTAHv.UNITED STATES of America.
No. 31, Orig.
Supreme Court of the United States
May 22, 1972
DECREE
It is ordered, adjudged and decreed that:
1. The United States of America, its departments and agencies are enjoined, subject to any regulations which the Congress may impose, such as in the interest of navigation or pollution control, from asserting against the State of Utah any claim of right, title, and interest:
(a) to the bed of the Great Salt Lake lying below the water's edge of Great Salt Lake on June 15, 1967,* with the exception of any lands within the Bear River Migratory Bird Refuge and the Weber Basin federal reclamation project;
(b) to the natural resources and living organisms in or beneath the bed of the Great Salt Lake as delineated in (a) above; and
(c) to the natural resources and living organisms either within the waters of the Great Salt Lake, or extracted therefrom, as delineated in (a) above.
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, delineated in paragraph 1 above of this decree.
3. The basic question yet to be determined in this case is whether prior to June 15, 1967, the claimed doctrine of reliction applies and, if so, whether the doctrine of reliction vests in the United States, and thus divests the State of Utah, of any right, title, or interest to any or all of the exposed shorelands situated between the water's edge on June 15, 1967, and the meander line of the Great Salt Lake as duly surveyed prior to or in accordance with § 1 of the Act of June 3, 1966, 80 Stat. 192. A Special Master will be appointed by the Court to hold such hearings, take such evidence, and conduct such proceedings as he deems appropriate and, in due course, to report his recommendations to the Court.
4. There also remains the question whether the lands within the meander line of the Great Salt Lake (as duly surveyed prior to or in accordance with § 1 of the Act of June 3, 1966, 80 Stat. 192), and thus conveyed to the State of Utah, included any federally owned uplands above the bed of the Lake on the date of statehood (January 4, 1896) which the United States still owned prior to the conveyance to Utah. The Special Master appointed by the Court as provided in paragraph 3 above will also be directed to hold such hearings, take such evidence, and conduct such proceedings with respect to this question as he deems appropriate in light of his determinations with respect to the issues referred to him in paragraph 3 above and, in due course, to report his recommendations to the Court.
5. 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 of 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.
APPOINTMENT OF SPECIAL MASTER
It is ordered that Honorable Charles Fahy, Senior Judge of the United States Court of Appeals for the District of Columbia Circuit be, and he is hereby, appointed Special Master in this case in the place of Honorable J. Cullen Ganey, deceased. The Special Master shall have authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and have authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and as he may deem it necessary to call for. The Master is directed to submit such reports as he may deem appropriate.
The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court hereafter may direct.
It is further ordered that if the position of Special Master in this case becomes vacant during a recess of Court, THE CHIEF JUSTICE shall have authority to make a new designation which shall have the same effect as if originally made by the Court herein.
*
The date of the deed from the United States to Utah.
| 910
|
406 U.S. 356
92 S.Ct. 1620
32 L.Ed.2d 152
Frank JOHNSON, Appellant,v.LOUISIANA.
No. 69—5035.
Argued March 1, 1971.
Reargued Jan. 10, 1972.
Decided May 22, 1972.
Syllabus
A warrantless arrest for robbery was made of appellant at his home on the basis of identification from photographs, and he was committed by a magistrate. Thereafter he appeared in a lineup, at which he was represented by counsel, and was identified by the victim of another robbery. He was tried for the latter offense before a 12-man jury and convicted by a nine-to-three verdict, as authorized by Louisiana law in cases where the crime is necessarily punishable at hard labor. Other state law provisions require unanimity for five-man jury trials of offenses in which the punishment may be at hard labor and for 12-man jury trials and capital cases. The Louisiana Supreme Court affirmed the conviction, rejecting appellant's challenge to the jury-trial provisions as violative of due process and equal protection and his claim that the lineup identification was a forbidden fruit of an invasion of appellant's Fourth Amendment rights. Appellant conceded that under Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, which was decided after his trial began and which has no retroactive effect, the Sixth Amendment does not apply to his case. Held:
1. The provisions of Louisiana law requiring less-than-unanimous jury verdicts in criminal cases do not violate the Due Process Clause for failure to satisfy the reasonable-doubt standard. Pp. 358—363.
(a) The mere fact that three jurors vote to acquit does not mean that the nine who vote to convict have ignored their instructions concerning proof beyond a reasonable doubt or that they do not honestly believe that guilt has been thus proved. Pp. 360—362.
(b) Want of jury unanimity does not alone establish reasonable doubt. Pp. 362—363.
2. The Louisiana legal scheme providing for unanimous verdicts in capital and five-man jury cases but for less-than-unanimous verdicts otherwise, and which varies the difficulty of proving guilty with the gravity of the offense, was designed to serve the rational purposes of 'facilitat(ing), expedit(ing), and reduc(ing) expense in the administration of justice,' and does not constitute an invidious classification violative of equal protection. Pp. 363—365.
3. Since no evidence constituting the fruit of an illegal arrest was used at appellant's trial, the validity of his arrest is not at issue and the lineup was conducted, not by the 'exploitation' of the arrest, but under the authority of appellant's commitment by the magistrate, which purged the lineup procedure of any 'primary taint.' P. 365.
255 La. 314, 230 So.2d 825, affirmed.
Richard A. Buckley, New Orleans, La., for appellant.
Louise S. Korns, New Orleans, La., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
Under both the Louisiana Constitution and Code of Criminal Procedure, criminal cases in which the punishment is necessarily at hard labor are tried to a jury of 12, and the vote of nine jurors is sufficient to return either a guilty or not guilty verdict.1 The principal question in this case is whether these provisions allowing less-than-unanimous verdicts in certain cases are valid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
2
* Appellant Johnson was arrested at his home on January 20, 1968. There was no arrest warrant, but the victim of an armed robbery had identified Johnson from photographs as having committed the crime. He was then identified at a lineup, at which he had counsel, by the victim of still another robbery. The latter crime is involved in this case. Johnson pleaded not guilty, was tried on May 14, 1968, by a 12-man jury and was convicted by a nine-to-three virdict. His due process and equal protection challenges to the Louisiana constitutional and statutory provisions were rejected by the Louisiana courts, 255 La. 314, 230 So.2d 825 (1970), and he appealed here. We noted probable jurisdiction. 400 U.S. 900, 91 S.Ct. 144, 27 L.Ed.2d 137 (1970). Conceding that under Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Sixth Amendment is not applicable to his case, see DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), appellant presses his equal protection and due process claims, together with a Fourth Amendment claim also rejected by the Louisiana Supreme Court. We affirm.
II
3
Appellant argues that in order to give substance to the reasonable-doubt standard, which the State, by virtue of the Due Process Clause of the Fourteenth Amendment, must satisfy in criminal cases, see In re Winship, 397 U.S. 358, 363—364, 90 S.Ct. 1068, 1072—1073, 25 L.Ed.2d 368 (1970), that clause must be construed to require a unanimous-jury verdict in all criminal cases. In so contending, appellant does not challenge the instructions in this case. Concededly, the jurors were told to convict only if conviced of guilt beyond a reasonable doubt. Nor is there any claim that, if the verdict in this case had been unanimous, the evidence would have been insufficient to support it. Appellant focuses instead on the fact that less than all jurors voted to convict and argues that, because three voted to acquit, the reasonable-doubt standard has not been satisfied and his conviction is therefore infirm.
4
We note at the outset that this Court has never held jury unanimity to be a requisite of due process of law. Indeed, the Court has more than once expressly said that '(i)n criminal cases due process of law is not denied by a state law . . . which dispenses with the necessity of a jury of twelve, or unanimity in the verdict.' Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038 (1912) (dictum). Accord, Maxwell v. Dow, 176 U.S. 581, 602, 605, 20 S.Ct. 448, 456, 458, 44 L.Ed. 597 (1900) (dictum). These statements, moreover, co-existed with cases indicating that proof of guilt beyond a reasonable doubt is implicit in constitutions recognizing 'the fundamental principles that are deemed essential for the protection of life and liberty.' Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 358, 40 L.Ed. 499 (1895). See also Leland v. Oregon, 343 U.S. 790, 802 803, 72 S.Ct. 1002, 1009—1010, 96 L.Ed. 1302 (1952) (dissenting opinion); Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); Coffin v. United States, 156 U.S. 432, 450—460, 15 S.Ct. 394, 402—404, 39 L.Ed. 481 (1895).2
5
Entirely apart from these cases, however, it is our view that the fact of three dissenting votes to acquit raises no question of constitutional substance about either the integrity or the accuracy of the majority verdict of guilt. Appellant's contrary argument breaks down into two parts, each of which we shall consider separately: first, that nine individual jurors will be unable to vote conscientiously in favor of guilt beyond a reasonable doubt when three of their colleagues are arguing for acquittal, and second, that guilt cannot be said to have been proved beyond a reasonable doubt when one or more of a jury's members at the conclusion of deliberation still possess such a doubt. Neither argument is persuasive.
6
Numerous cases have defined a reasonable doubt as one "based on reason which arises from the evidence or lack of evidence." United States v. Johnson, 343 F.2d 5, 6 n. 1 (CA2 1965). Accord, e.g., Bishop v. United States, 71 App.D.C. 132, 138, 107 F.2d 297, 303 (1939); United States v. Schneiderman, 106 F.Supp. 906, 927 (S.D.Cal.1952); United States v. Haupt, 47 F.Supp. 836, 840 (N.D.Ill.1942), rev'd on other grounds, 136 F.2d 661 (CA7 1943). In Winship, supra, the Court recognized this evidentiary standard as "impress(ing) on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue." 397 U.S., at 364, 90 S.Ct., at 1072 (citation omitted). In considering the first branch of appellant's argument, we can find no basis for holding that the nine jurors who voted for his conviction failed to follow their instructions concerning the need for proof beyond such a doubt or that the vote of any one of the nine failed to reflect an honest belief that guilt had been so proved. Appellant, in effect, asks us to assume that, when minority jurors express sincere doubts about guilt, their fellow jurors will nevertheless ignore them and vote to convict even if deliberation has not been exhausted and minority jurors have grounds for acquittal which, if pursued, might persuade members of the majority to acquit. But the mere fact that three jurors voted to acquit does not in itself demonstrate that, had the nine jurors of the majority attended further to reason and the evidence, all or one of them would have developed a reasonable doubt about guilt. We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict. On the contrary it is far more likely that a juror presenting reasoned argument in favor of acquittal would either have his arguments answered or would carry enough other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose—when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position. At that juncture there is no basis for denigrating the vote of so large a majority of the jury or for refusing to accept their decision as being, at least in their minds, beyond a reasonable doubt. Indeed, at this point, a 'dissenting juror should consider whether his doubt was a reasonable one . . . (when it made) no impression upon the minds of so many men, equally honest, equally intelligent with himself.' Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896). Appellant offers no evidence that majority jurors simply ignore the reasonable doubts of their colleagues or otherwise act irresponsibly in casting their votes in favor of conviction, and before we alter our own longstanding perceptions about jury behavior and overturn a considered legislative judgment that unanimity is not essential to reasoned jury verdicts, we must have some basis for doing so other than unsupported assumptions.
7
We conclude, therefore, that, as to the nine jurors who voted to convict, the State satisfied its burden of proving guilt beyond any reasonable doubt. The remaining question under the Due Process Clause is whether the vote of three jurors for acquittal can be said to impeach the verdict of the other nine and to demonstrate that guilt was not in fact proved beyond such doubt. We hold that it cannot.
8
Of course, the State's proof could perhaps be regarded as more certain if it had convinced all 12 jurors instead of only nine; it would have been even more compelling if it had been required to convince and had, in fact, convinced 24 or 36 jurors. But the fact remains that nine jurors—a substantial majority of the jury—were convinced by the evidence. In our view disagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority of the jury, after having considered the dissenters' views, remains convinced of guilt. That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard. Jury verdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt, see United States v. Quarles, 387 F.2d 551, 554 (CA4 1967); Bell v. United States, 185 F.2d 302, 310 (CA4 1950); even though the trial judge might not have reached the same conclusion as the jury, see Takahashi v. United States, 143 F.2d 118, 122 (CA9 1944); and even though appellate judges are closely divided on the issue whether there was sufficient evidnece to support a conviction. See United States v. Johnson, 140 U.S.App.D.C. 54, 60, 433 F.2d 1160, 1166 (1970); United States v. Manuel-Baca, 421 F.2d 781, 783 (CA9 1970). That want of jury unanimity is not to be equated with the existence of a reasonable doubt emerges even more clearly from the fact that when a jury in a federal court, which operates under the unanimity rule and is instructed to acquit a defendant if it has a reasonable doubt about his guilt, see Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910); Agnew v. United States, 165 U.S. 36, 51, 17 S.Ct. 235, 241, 41 L.Ed. 624 (1897); W. Mathes & E. Devitt, Federal Jury Practice and Instructions § 8.01 (1965), cannot agree unanimously upon a verdict, the defendant is not acquitted, but is merely given a new trial. Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963); Dreyer v. Illinois, 187 U.S. 71, 85 86, 23 S.Ct. 28, 32—33, 47 L.Ed. 79 (1902); United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). If the doubt of a minority of jurors indicates the existence of a reasonable doubt, it would appear that a defendant should receive a directed verdict of acquittal rather than a retrial. We conclude, therefore, that verdicts rendered by nine out of 12 jurors are not automatically invalidated by the disagreement of the dissenting three. Appellant was not deprived of due process of law.
III
9
Appellant also attacks as violative of the Equal Protection Clause the provisions of Louisiana law requiring unanimous verdicts in capital and five-man jury cases, but permitting less-than-unanimous verdicts in cases such as his. We conclude, however, that the Louisiana statutory scheme serves a rational purpose and is not subject to constitutional challenge.
10
In order to 'facilitate, expedite, and reduce expense in the administration of criminal justice,' State v. Lewis, 129 La. 800, 804, 56 So. 893, 894 (1911), Louisiana has permitted less serious crimes to be tried by five jurors with unanimous verdicts, more serious crimes have required the assent of nine of 12 jurors, and for the most serious crimes a unanimous verdict of 12 jurors is stipulated. In appellant's case, nine jurors rather than five or 12 were required for a verdict. We discern nothing invidious in this classification. We have held that the States are free under the Federal Constitution to try defendants with juries of less than 12 men. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Three jurors here voted to acquit, but from what we have earlier said, this does not demonstrate that appellant was convicted on a lower standard of proof. To obtain a conviction in any of the categories under Louisiana law, the State must prove guilt beyond reasonable doubt, but the number of jurors who must be so convinced increases with the seriousness of the crime and the severity of the punishment that may be imposed. We perceive nothing unconstitutional or invidiously discriminatory, however, in a State's insisting that its burden of proof be carries with more jurors where more serious crimes or more severe punishments are at issue.
11
Appellant nevertheless insists that dispensing with unanimity in his case disadvantaged him as compared with those who commit less serious or capital crimes. With respect to the latter, he is correct; the State does make conviction more difficult by requiring the assent of all 12 jurors. Appellant might well have been ultimately acquitted had he committed a capital offense. But as we have indicated, this does not constitute a denial of equal protection of the law; the State may treat capital offenders differently without violating the constitutional rights of those charged with lesser crimes. As to the crimes triable by a five-man jury, if appellant's position is that it is easier to convince nine of 12 jurors than to convince all of five, he is simply challenging the judgment of the Louisiana Legislature. That body obviously intended to vary the difficulty of proving guilt with the gravity of the offense and the severity of the punishment. We remain unconvinced by anything appellant has presented that this legislative judgment was defective in any constitutional sense.
IV
12
Appellant also urges that his nighttime arrest without a warrant was unlawful in the absence of a valid excuse for failing to obtain a warrant and, further, that his subsequent lineup identification was a forbidden fruit of the claimed invasion of his Fourth Amendment rights. The validity of Johnson's arrest, however, is beside the point here, for it is clear that no evidence that might properly be characterized as the fruit of an illegal entry and arrest was used against him at his trial. Prior to the lineup, at which Johnson was represented by counsel, he was brought before a committing magistrate to advise him of his rights and set bail. At the time of the lineup, the detention of the appellant was under the authority of this commitment. Consequently, the lineup was conducted not by 'exploitation' of the challenged arrest but 'by means sufficiently distinguishable to be purged of the primary taint.' Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).
13
The judgment of the Supreme Court of Louisiana is therefore affirmed.
14
Affirmed.
15
Mr. Justice BLACKMUN, concurring.*
16
I join the Court's opinion and judgment in each of these cases. I add only the comment, which should be obvious and should not need saying, that in so doing I do not imply that I regard a State's split-verdict system as a wise one. My vote means only that I cannot conclude that the system is constitutionally offensive. Were I a legislator, I would disfavor it as a matter of policy. Our task here, however, is not to pursue and strike down what happens to impress us as undesirable legislative policy.
17
I do not hesitate to say, either, that a system employing a 7 5 standard, rather than a 9—3 or 75% minimum, would afford me great difficulty. As Mr. Justice WHITE points out, 406 U.S., at 362, 92 S.Ct., at 362, 'a substantial majority of the jury' are to be convinced. That is all that is before us in each of these cases.
18
Mr. Justice POWELL, concurring in No. 69—5035 and concurring in the judgment in No. 69—5046.
19
I concur in the judgment of the Court that convictions based on less-than-unanimous jury verdicts in these cases did not deprive criminal defendants of due process of law under the Fourteenth Amendment. As my reasons for reaching this conclusion in the Oregon case differ from those expressed in the plurality opinion of Mr. Justice WHITE, I will state my views separately.
20
* Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), stands for the proposition that criminal defendants in state courts are entitled to trial by jury.1 The source of that right is the Due Process Clause of the Fourteenth Amendment. Due process, as consistently interpreted by this Court, commands that citizens subjected to criminal process in state courts be accorded those rights that are fundamental to a fair trial in the context of our 'American scheme of justice.' Id., at 149, 88 S.Ct., at 1447. The right of an accused person to trial by a jury of his peers was a cherished element of the English common law long before the American Revolution. In this country, prior to Duncan, every State had adopted a criminal adjudicatory process calling for the extensive use of petit juries. Id., at 150 n. 14, 88 S.Ct., at 1448; Turner v. Louisiana, 379 U.S. 466, 471 n. 9, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965). Because it assures the interposition of an impartial assessment of one's peers between the defendant and his accusers, the right to trial by jury deservedly ranks as a fundamental of our system of jurisprudence. With this principle of due process, I am in full accord.
21
In DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), an Oregon petitioner sought to raise the question, left open in Duncan, whether the right to jury trial in a state court also contemplates the right to a unanimous verdict.2 Because the Court concluded that Duncan was not to have retroactive applicability, it found it unnecessary to decide whether the Fourteenth Amendment requires unanimity. The trial in the case before the Court at that time occurred several years prior to May 20, 1968, the date of decision in Duncan. In the Louisiana case now before us, the petitioner also was convicted by a less-than-unanimous verdict before Duncan was decided. Accordingly, I read DeStefano as foreclosing consideration in this case of the question whether jury trial as guaranteed by the Due Process Clause contemplates a corollary requirement that its judgment be unanimous.
22
Indeed, in Johnson v. Louisiana, appellant concedes that the nonretroactivity of Duncan prevents him from raising his due process argument in the classic 'fundamental fairness' language adopted there. Instead he claims that he is deprived of due process because a conviction in which only nine of 12 jurors joined is not one premised on a finding of guilt beyond a reasonable doubt, held to be a requisite element of due process in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). For the reasons stated in the majority opinion, I do not agree that Louisiana's less-than-unanimous verdict rule undercuts the applicable standard of proof in criminal prosecutions in that State.
23
Appellant also asks this Court to find a violation of the Equal Protection Clause in Louisiana's constitutional and statutory provisions establishing the contours of the jury trial right in that State. The challenged provisions divide those accused of crimes into three categories depending on the severity of the possible punishment: those charged with offenses for which the punishment might be at hard labor are entitled to a five-juror, unanimous verdict; those charged with offenses for which the punishment will necessarily be at hard labor are entitled to a verdict in which nine of 12 jurors must concur; and those charged with capital offenses are entitled to a 12-juror, unanimous verdict. La.Const., Art. VII, § 41; La.Code Crim.Proc., Art. 782. Such distinctions between classes of defendants do not constitute invidious discrimination against any one of the classes unless the State's classification can be said to lack a reasonable or rational basis. We have been shown no reason to question the rationality of Louisiana's tri-level system. I, therefore, join the Court's opinion in Johnson v. Louisiana affirming the decision below.3
II
69—5046
24
In the Oregon case decided today, Apodaca v. Oregon, the trials occurred after Duncan was decided. The question left unanswered in Duncan and DeStefano is therefore squarely presented. I concur in the plurality opinion in this case insofar as it concludes that a defendant in a state court may constitutionally be convicted by less than a unanimous verdict, but I am not in accord with a major premise upon which that judgment is based. Its premise is that the concept of jury trial, as applicable to the States under the Fourteenth Amendment, must be identical in every detail to the concept required in federal courts by the Sixth Amendment.4 I do not think that all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth Amendment. As Mr. Justice Fortas, concurring in Duncan v. Louisiana, 391 U.S., at 213, 88 S.Ct., at 1459, 1460, 20 L.Ed.2d 491, said:
25
'Neither logic nor history nor the intent of the draftsmen of the Fourteenth Amendment can possibly be said to require that the Sixth Amendment or its jury trial provision be applied to the States together with the total gloss that this Court's decisions have supplied.'
26
In an unbroken line of cases reaching back into the late 1800's, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial. Andres v. United States, 333 U.S. 740, 748—749, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948); Patton v. United States, 281 U.S. 276, 288—290, 50 S.Ct. 253, 254, 74 L.Ed. 854 (1930); Hawaii v. Mankichi, 190 U.S. 197, 211—212, 23 S.Ct. 787, 788, 47 L.Ed. 1016 (1903) (see also Mr. Justice Harlan's dissenting opinion); Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900) (see also Mr. Justice Harlan's dissenting opinion); Thompson v. Utah, 170 U.S. 343, 355, 18 S.Ct. 620, 624, 42 L.Ed. 1061 (1898).5 In these cases, the Court has presumed that unanimous verdicts are essential in federal jury trials, not because unanimity is necessarily fundamental to the function performed by the jury, but because that result is mandated by history.6 The reasoning that runs throughout this Court's Sixth Amendment precedents is that, in amending the Constitution to guarantee the right to jury trial, the framers desired to preserve the jury safeguard as it was known to them at common law.7 At the time the Bill of Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at common law.8 It therefore seems to me, in accord both with history and precedent, that the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.
27
But it is the Fourteenth Amendment, rather than the Sixth, that imposes upon the States the requirement that they provide jury trials to those accused of serious crimes. This Court has said, in cases decided when the intendment of that Amendment was not as clouded by the passage of time, that due process does not require that the States apply the federal jury-trial right with all its gloss. In Maxwell v. Dow, 176 U.S., at 605, 20 S.Ct., at 458, 44 L.Ed. 597, Mr. Justice Peckham, speaking for eight of the nine members of the Court, so stated:
28
'(W)hen providing in their constitution and legislation for the manner in which civil or criminal ac-
7
See, e.g., R. Perry, Sources of Our Liberties 270, 281 282, 288, 429 (1959); 3 J. Story, Commentaries on the Constitution 652—653 (1st ed. 1833).
8
See, e.g., 4 W. Blackstone, Commentaries *376; W. Forsyth, History of Trial By Jury 238—258 (1852); M. Hale, Analysis of the Law of England 119 (1716).
29
tions shall be tried, it is in entire conformity with the character of the Federal Government that (the States) should have the right to decide for themselves what shall be the form and character of the procedure in such trials, . . . whether there shall be a jury of twelve or a lesser number, and whether the verdict must be unanimous or not. . . .'
30
Again, in Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038 (1912), the Court concluded that '(i)n criminal cases due process of law is not denied by a state law which dispenses with . . . the necessity of a jury of twelve, or unanimity in the verdict.'
31
It is true, of course, that the Maxwell and Jordan Courts went further and concluded that the States might dispense with jury trial altogether. That conclusion, grounded on a more limited view of due process than has been accepted by this Court in recent years,9 was rejected by the Court in Duncan. But I find nothing in the constitutional principle upon which Duncan is based, or in other precedents, that requires repudiation of the views expressed in Maxwell and Jordan with respect to the size of a jury and the unanimity of its verdict. Mr. Justice Fortas, concurring in Duncan, commented on the distinction between the requirements of the Sixth Amendment and those of the Due Process Clause and suggested the appropriate framework for analysis of the issue in this case.
32
'I see no reason whatever . . . to assume that our decision today should require us to impose federal requirements such as unanimous verdicts or a jury of 12 upon the States. We may well conclude that these and other features of federal jury practice are by no means fundamental—that they are not essential to due process of law and that they are not obligatory on the States.' Duncan v. Louisiana, 391 U.S., at 213, 88 S.Ct., at 1459.
33
The question, therefore, that should be addressed in this case is whether unanimity is in fact so fundamental to the essentials of jury trial that this particular requirement of the Sixth Amendment is necessarily binding on the States under the Due Process Clause of the Fourteenth Amendment. An affirmative answer, ignoring the strong views previously expressed to the contrary by this Court in Maxwell and Jordan, would give unwarranted and unwise scope to the incorporation doctrine as it applies to the due process right of state criminal defendants to trial by jury.
34
The importance that our system attaches to trial by jury derives from the special confidence we repose in a 'body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement.' Williams v. Florida, 399 U.S. 78, 87, 90 S.Ct. 1893, 1899, 26 L.Ed.2d 446 (1970). It is this safeguarding function, preferring the commonsense judgment of a jury as a bulwark 'against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge,'10 that lies at the core of our dedication to the principles of jury determination of guilt or innocence.11 This is the fundamental of jury trial that brings it within the mandate of due process. It seems to me that this fundamental is adequately preserved by the jury-verdict provision of the Oregon Constitution. There is no reason to believe, on the basis of experience in Oregon or elsewhere, that a unanimous decision of 12 jurors is more likely to serve the high purpose of jury trial, or is entitled to greater respect in the community, than the same decision joined in by 10 members of a jury of 12. The standard of due process assured by the Oregon Constitution provides a sufficient guarantee that the government will not be permitted to impose its judgment on an accused without first meeting the full burden of its prosecutorial duty.12
35
Moreover, in holding that the Fourteenth Amendment has incorporated 'jot-for-jot and case-for-case'13 every element of the Sixth Amendment, the Court derogates principles of federalism that are basic to our system. In the name of uniform application of high standards of due process, the Court has embarked upon a course of constitutional interpretation that deprives the States of freedom to experiment with adjudicatory processes different from the federal model. At the same time, the Court's understandable unwillingness to impose requirements that it finds unnecessarily rigid (e.g., Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446), has culminated in the dilution of federal rights that were, until these decisions, never seriously questioned. The doubly undesirable consequence of this reasoning process, labeled by Mr. Justice Harlan as 'constitutional schizophrenia,' id., at 136, may well be detrimental both to the state and federal criminal justice systems. Although it is perhaps late in the day for an expression of my views, I would have been in accord with the opinions in similar cases by The Chief Justice and Justices Harlan, Stewart and Fortas14 that, at least in defining the elements of the right to jury trial, there is no sound basis for interpreting the Fourteenth Amendment to require blind adherence by the States to all details of the federal Sixth Amendment standards.15
36
While the Civil War Amendments altered substantially the balance of federalism, it strains credulity to believe that they were intended to deprive the States of all freedom to experiment with variations in jury trial procedure. In an age in which empirical study is increasingly relied upon as a foundation for decisionmaking, one of the more obvious merits of our federal system is the opportunity it affords each State, if its people so choose, to become a 'laboratory' and to experiment with a range of trial and procedural alternatives. Although the need for the innovations that grow out of diversity has always been great, imagination unimpeded by unwarranted demands for national uniformity is of special importance at a time when serious doubt exists as to the adequacy of our criminal justice system. The same diversity of local legislative responsiveness which marked the development of economic and social reforms in this country,16 if not barred by an unduly restrictive application of the Due Process Clause, might well lead to valuable innovations with respect to determining—fairly and more expeditiously—the guilt or innocence of the accused.
37
Viewing the unanimity controversy as one requiring a fresh look at the question of what is fundamental in jury trial, I see no constitutional infirmity in the provision adopted by the people of Oregon. It is the product of a constitutional amendment, approved by a vote of the people in the State, and appears to be patterned on a provision of the American Law Institute's Code of Criminal Procedure.17 A similar decision has been echoed more recently in England where the unanimity requirement was abandoned by statutory enactment.18 Less-than-unanimous verdict provisions also have been viewed with approval by the American Bar Association's Criminal Justice Project.19 Those who have studied the jury mechanism and recommended deviation from the historic rule of unanimity have found a number of considerations to be significant. Removal of the unanimity requirement could well minimize the potential for hung juries occasioned either by bribery or juror irrationality. Furthermore, the rule that juries must speak with a single voice often leads, not to full agreement among the 12 but to agreement by none and compromise by all, despite the frequent absence of a rational basis for such compromise.20 Quite apart from whether Justices sitting on this Court would have deemed advisable the adoption of any particular less-than-unanimous jury provision, I think that considerations of this kind reflect a legitimate basis for experimentation and deviation from the federal blueprint.21
III
38
Petitioners in Apodaca v. Oregon, in addition to their primary contention that unanimity is a requirement of state jury trials because the Fourteenth Amendment 'incorporates' the Sixth, also assert that Oregon's constitutional provision offends the federal constitutional guarantee against the systematic exclusion of any group within the citizenry from participating in the criminal trial process. While the systematic exclusion of identifiable minorities from jury service has long been recognized as a violation of the Equal Protection Clause (see, e.g., Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880)), in more recent years the Court has held that criminal defendants are entitled, as a matter of due process, to a jury drawn from a representative cross section of the community. This is an essential element of a fair and impartial jury trial. See Williams v. Florida, 399 U.S., at 100, 90 S.Ct., at 1905; Alexander v. Louisiana, 405 U.S. 625, 634, 92 S.Ct. 1221, 1227, 31 L.Ed.2d 536 (1972) (Douglas, J., concurring). Petitioners contend that less-than-unanimous jury verdict provisions undercut that right by implicitly permitting in the jury room that which is prohibited in the jury venire selection process—the exclusion of minority group viewpoints. They argue that unless unanimity is required even of a properly drawn jury, the result—whether conviction or acquittal may be the unjust product of racism, bigotry, or an emotionally inflamed trial.
39
Such fears materialize only when the jury's majority, responding to these extraneous pressures, ignores the evidence and the instructions of the court as well as the rational arguments of the minority. The risk, however, that a jury in a particular case will fail to meet its high responsibility is inherent in any system that commits decisions of guilt or innocence to untrained laymen drawn at random from the community. In part, at least, the majority-verdict rule must rely on the same principle that underlies our historic dedication to jury trial: both systems are premised on the conviction that each juror will faithfully perform his assigned duty. Mr. Justice DOUGLAS' dissent today appears to rest on the contrary assumption that the members of the jury constituting the majority have no duty to consider the minority's viewpoint in the course of deliberation. Characterizing the jury's consideration of minority views as mere 'polite and academic conversation,' or 'courtesy dialogue,' he concludes that a jury is under no obligation in Oregon to deliberate at all if 10 jurors vote together at the outset. 406 U.S. 356, 92 S.Ct. 1643, 32 L.Ed.2d 152. No such power freely to shut off competing views is implied in the record in this case and it is contrary to basic principles of jury participation in the criminal process. While there may be, of course, reasonable differences of opinion as to the merit of the speculative concerns expressed by these petitioners and reflected in the dissenting opinion, I find nothing in Oregon's experience to justify the apprehension that juries not bound by the unanimity rule will be more likely to ignore their historic responsibility.
40
Moreover, the States need not rely on the presumption of regularity in a vacuum since each has at its disposal protective devices to diminish significantly the prospect of jury irresponsibility. Even before the jury is sworn, substantial protection against the selection of a representative but wilfully irresponsible jury is assured by the wide availability of peremptory challenges and challenges for cause.22 The likelihood of miscarriage of justice is further diminished by the judge's use of full jury instructions, detailing the applicable burdens of proof, informing the jurors of their duty to weigh the views of fellow jurors,23 and reminding them of the solemn responsibility imposed by their oaths. Trial judges also retain the power to direct acquittals in cases in which the evidence of guilt is lacking, or to set aside verdicts once rendered when the evidence is insufficient to support a conviction. Furthermore, in cases in which public emotion runs high or pretrial publicity threatens a fair trial, judges possess broad power to grant changes of venue,24 and to impose restrictions on the extent of press coverage.25
41
In light of such protections it is unlikely that the Oregon 'ten-of-twelve' rule will account for an increase in the number of cases in which injustice will be occasioned by a biased or prejudiced jury. It may be wise to recall Mr. Justice White's admonition in Murphy v. Waterfront Comm'n, 378 U.S. 52, 102, 84 S.Ct. 1594, 1616, 12 L.Ed.2d 678 (1964), that the Constitution 'protects against real dangers, not remote and speculative possibilities.' Since I do not view Oregon's less-than-unanimous jury verdict requirement as violative of the due process guarantee of the Fourteenth Amendment, I concur in the Court's affirmance of these convictions.
42
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
43
Appellant in the Louisiana case and petitioners in the Oregon case were convicted by juries that were less than unanimous. This procedure is authorized by both the Louisiana and Oregon Constitutions. Their claim, rejected by the majority, is that this procedure is a violation of their federal constitutional rights. With due respect to the majority, I dissent from this radical departure from American traditions.
44
* The Constitution does not mention unanimous juries. Neither does it mention the presumption of innocence, nor does it say that guilt must be proved beyond a reasonable doubt in all criminal cases. Yet it is almost inconceivable that anyone would have questioned whether proof beyond a reasonable doubt was in fact the constitutional standard. And, indeed, when such a case finally arose we had little difficulty disposing of the issue. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368.
45
The Court, speaking through Mr. Justice Brennan, stated that:
46
'(The) use 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. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
47
'Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold 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.' Ibid.
48
I had similarly assumed that there was no dispute that the Federal Constitution required a unanimous jury in all criminal cases. After all, it has long been explicit constitutional doctrine that the Seventh Amendment civil jury must be unanimous. See American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079, where the Court said that 'unanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition.' Id., at 468, 17 S.Ct., at 619. Like proof beyond a reasonable doubt, the issue of unanimous juries in criminal cases simply never arose. Yet in cases dealing with juries it had always been assumed that a unanimous jury was required.1 See Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597; Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854; Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055. Today the bases of those cases are discarded and two centuries of American history are shunted aside.2
49
The result of today's decisions is anomalous: though unanimous jury decisions are not required in state trials, they are constitutionally required in federal prosecutions. How can that be possible when both decisions stem from the Sixth Amendment?
50
We held unanimously in 1948 that the Bill of Rights requires a unanimous jury verdict:
51
'Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury. A verdict embodies in a single finding the conclusions by the jury upon all the questions submitted to it.' Andres v. United States, 333 U.S., at 748, 68 S.Ct., at 884.
52
After today's decisions, a man's property may only be taken away by a unanimous jury vote, yet he can be stripped of his liberty by a lesser standard. How can that result be squared with the law of the land as expressed in the settled and traditional requirements of procedural due process?
53
Rule 31(a) of the Federal Rules of Criminal Procedure states, 'The verdict shall be unanimous.' That Rule was made by this Court with the concurrence of Congress pursuant to 18 U.S.C. § 3771. After today a unanimous verdict will be required in a federal prosecution but not in a state prosecution. Yet the source of the right in each case is the Sixth Amendment. I fail to see how with reason we can maintain those inconsistent dual positions.
54
There have, of course, been advocates of the view that the duties imposed on the States by reason of the Bill of Rights operating through the Fourteenth Amendment are a watered-down version of those guarantees. But we held to the contrary in Malloy v. Hogan, 378 U.S. 1, 10—11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653:
55
'We have held that the guarantees of the First Amendment, Gitlow v. New York (268 U.S. 652, 45 S.Ct. 625), supra; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301, the prohibition of unreasonable searches and seizures of the Fourth Amendment, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, and the right to counsel guaranteed by the Sixth Amendment, Gideon v. Wainwright (372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), supra, are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. In the coerced confession cases, involving the policies of the privilege itself, there has been no suggestion that a confession might be considered coerced if used in a federal but not a state tribunal. The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights."
56
Malloy, of course, not only applied the Self-Incrimination Clause to the States but also stands for the proposition, as mentioned, that 'the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.' Id., at 11, 84 S.Ct., at 1495. See also Murphy v. Waterfront Comm'n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678. The equation of federal and state standards for the Self-Incrimination Clause was expressly reaffirmed in Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, and in Miranda v. Arizona, 384 U.S. 436, 464, 86 S.Ct. 1602, 1622, 16 L.Ed.2d 694.
57
Similarly, when the Confrontation Clause was finally made obligatory on the States, Mr. Justice Black for the majority was careful to observe that its guarantee, 'like the right against compelled self-incrimination, is 'to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923. Cf. Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 215, 27 L.Ed.2d 213.
58
Likewise, when we applied the Double Jeopardy Clause against the States Mr. Justice Marshall wrote for the Court that '(o)nce it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice,' Duncan v. Louisiana (391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491) . . . the same constitutional standards apply against both the State and Federal Governments.' Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707. And, the doctrine of coextensive coverage was followed in holding the Speedy Trial Clause applicable to the States. Klopfer v. North Carolina, 386 U.S. 213, 222, 87 S.Ct. 988, 993, 18 L.Ed.2d 1.
59
And, in Duncan v. Louisiana, 391 U.S. 145, 158 n. 30, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491, in holding the jury trial guarantee binding in state trials, we noted that its prohibitions were to be identical against both the Federal and State Governments. See also id., at 213, 88 S.Ct., at 1459 (Fortas, J., concurring).
60
Only once has this Court diverged from the doctrine of coextensive coverage of guarantees brought within the Fourteenth Amendment, and that aberration was later rectified. In Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, it was held that the Fourth Amendment ban against unreasonable and warrantless searches was enforceable against the States but the Court declined to incorporate the Fourth Amendment exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Happily, however, that gap was partially closed in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 and then completely bridged in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. In Mapp we observed that '(t)his Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial . . .' We concluded that 'the same rule' should apply where the Fourth Amendment was concerned. Id., at 656, 81 S.Ct., at 1692. And, later, we made clear that 'the standard for obtaining a search warrant is . . . 'the same under the Fourth and Fourteenth Amendments," Aguilar v. Texas, 378 U.S. 108, 110, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723; and that the 'standard of reasonableness is the same under the Fourth and Fourteenth Amendments.' Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726.
61
It is said, however, that the Sixth Amendment, as applied to the States by reason of the Fourteenth, does not mean what it does in federal proceedings, that it has a 'due process' gloss on it, and that that gloss gives the States power to experiment with the explicit or implied guarantees in the Bill of Rights.
62
Mr. Justice Holmes, dissenting in Truax v. Corrigan, 257 U.S. 312, 344, 42 S.Ct. 124, 133, 66 L.Ed. 254, and Mr. Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747, thought that the States should be allowed to improvise remedies for social and economic ills. But in that area there are not many 'thou shalt nots' in the Constitution and Bill of Rights concerning property rights. The most conspicuous is the Just Compensation Clause of the Fifth Amendment. It has been held applicable with full vigor to the States by reason of the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979.
63
Do today's decisions mean that States may apply a 'watered down' version of the Just Compensation Clause? Or are today's decisions limited to a paring down of civil rights protected by the Bill of Rights and up until now as fully applicable to the States as to the Federal Government?
64
These civil rights—whether they concern speech, searches and seizures, self-incrimination, criminal prosecutions, bail, or cruel and unusual punishments extend, of course, to everyone, but in cold reality touch mostly the lower castes in our society. I refer, of course, to the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the off-beat students, the victims of the ghetto. Are we giving the States the power to experiment in diluting their civil rights? It has long been thought that the 'thou shalt nots' in the Constitution and Bill of Rights protect everyone against governmental intrusion or overreaching. The idea has been obnoxious that there are some who can be relegated to second-class citizenship. But if we construe the Bill of Rights and the Fourteenth Amendment to permit States to 'experiment' with the basic rights of people, we open a veritable Pandora's box. For hate and prejudice are versatile forces that can degrade the constitutional scheme.3
65
That, however, is only one of my concerns when we make the Bill of Rights, as applied to the States, a 'watered down' version of what that charter guarantees. My chief concern is one often expressed by the late Mr. Justice Black, who was alarmed at the prospect of nine men appointed for life sitting as a super-legislative body to determine whether government has gone too far. The balancing was done when the Constitution and Bill of Rights were written and adopted. For this Court to determine, say, whether one person but not another is entitled to free speech is a power never granted it. But that is the ultimate reach of decisions that let the States, subject to our veto, experiment with rights guaranteed by the Bill of Rights.
66
I would construe the Sixth Amendment, when applicable to the States, precisely as I would when applied to the Federal Government.
II
67
The plurality approves a procedure which diminishes the reliability of a jury. First, it eliminates the circumstances in which a minority of jurors (a) could have rationally persuaded the entire jury to acquit, or (b) while unable to persuade the majority to acquit, nonetheless could have convinced them to convict only on a lesser-included offense. Second, it permits prosecutors in Oregon and Louisiana to enjoy a conviction-acquittal ratio substantially greater than that ordinarily returned by unanimous juries.
68
The diminution of verdict reliability flows from the fact that nonunanimous juries need not debate and deliberate as fully as must unanimous juries. As soon as the requisite majority is attained, further consideration is not required either by Oregon or by Louisiana even though the dissident jurors might, if given the chance, be able to convince the majority. Such persuasion does in fact occasionally occur in States where the unanimous requirement applies: 'In roughly one case in ten, the minority eventually succeeds in reversing an initial majority, and these may be cases of special importance.'4 One explanation for this phenomenon is that because jurors are often not permitted to take notes and because they have imperfect memories, the forensic process of forcing jurors to defend their conflicting recollections and conclusions flushes out many nuances which otherwise would go overlooked. This collective effort to piece together the puzzle of historical truth, however, is cut short as soon as the requisite majority is reached in Oregon and Louisiana. Indeed, if a necessary majority is immediately obtained, then no deliberation at all is required in these States. (There is a suggestion that this may have happened in the 10—2 verdict rendered in only 41 minutes in Apodaca's case.) To be sure, in jurisdictions other than these two States, initial majorities normally prevail in the end, but about a tenth of the time the rough-and-tumble of the jury room operates to reverse completely their preliminary perception of guilt or innocence. The Court now extracts from the jury room this automatic check against hasty fact-finding by relieving jurors of the duty to hear out fully the dissenters.
69
It is said that there is no evidence that majority jurors will refuse to listen to dissenters whose votes are unneeded for conviction. Yet human experience teaches that polite and academic conversation is no substitute for the earnest and robust argument necessary to reach unanimity. As mentioned earlier, in Apodaca's case, whatever courtesy dialogue transpired could not have lasted more than 41 minutes. I fail to understand why the Court should lift from the States the burden of justifying so radical a departure from an accepted and applauded tradition and instead demand that these defendants document with empirical evidence what has always been thought to be too obvious for further study.
70
To be sure, in Williams v. Florida, 399 U.S. 78, 88, 90 S.Ct. 1893, 1899, 26 L.Ed.2d 446, we held that a State could provide a jury less than 12 in number in a criminal trial. We said: 'What few experiments have occurred—usually in the civil area—indicate that there is no discernible difference between the results reached by the two different-sized juries. In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.' Id., at 101—102, 90 S.Ct., at 1906.
71
That rational of Williams can have no application here. Williams requires that the change be neither more nor less advantageous to either the State or the defendant. It is said that such a showing is satisfied here since a 3:9 (Louisiana) or 2:10 (Oregon) verdict will result in acquittal. Yet experience shows that the less-than-unanimous jury overwhelmingly favors the States.
72
Moreover, even where an initial majority wins the dissent over to its side, the ultimate result in unanimous-jury States may nonetheless reflect the reservations of uncertain jurors. I refer to many compromise verdicts on lesser-included offenses and lesser sentences. Thus, even though a minority may not be forceful enough to carry the day, their doubts may nonetheless cause a majority to exercise caution. Obviously, however, in Oregon and Louisiana, dissident jurors will not have the opportunity through full deliberation to temper the opposing faction's degree of certainty of guilt.
73
The new rule also has an impact on cases in which a unanimous jury would have neither voted to acquit nor to convict, but would have deadlocked. In unanimous-jury States, this occurs about 5.6% of the time. Of these deadlocked juries, Kalven and Zeisel say that 56% contain either one, two, or three dissenters. In these latter cases, the majorities favor the prosecution 44% (of the 56%) but the defendant only 12% (of the 56%).5 Thus, by eliminating these deadlocks, Louisiana wins 44 cases for every 12 that it loses, obtaining in this band of outcomes a substantially more favorable conviction ratio (3.67 to 1) than the unanimous-jury ratio of slightly less than two guilty verdicts for every acquittal. H. Kalven & H. Zeisel, The American Jury 461, 488 (Table 139) (1966). By eliminating the one-and-two-dissenting-juror cases, Oregon does even better, gaining 4.25 convictions for every acquittal. While the statutes on their face deceptively appear to be neutral, the use of the nonunanimous jury stacks the truth-determining process against the accused. Thus, we take one step more away from the accusatorial system that has been our proud boast.
74
It is my belief that a unanimous jury is necessary if the great barricade known as proof beyond a reasonable doubt is to be maintained. This is not to equate proof beyond a reasonable doubt with the requirement of a unanimous jury. That would be analytically fallacious since a deadlocked jury does not bar, as double jeopardy, retrial for the same offense. See Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79. Nevertheless, one is necessary for a proper effectuation of the other. Compare Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, with Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.
75
Suppose a jury begins with a substantial minority but then in the process of deliberation a sufficient number changes to reach the required 9:3 or 10:2 for a verdict. Is not there still a lingering doubt about that verdict? Is it not clear that the safeguard of unanimity operates in this context to make it far more likely that guilt is established beyond a reasonable doubt?
76
The late Learned Hand said that 'as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.'6 At the criminal level that dread multiplies. Any person faced with the awesome power of government is in great jeopardy, even though innocent. Facts are always elusive and often two-faced. What may appear to one to imply guilt may carry no such overtones to another. Every criminal prosecution crosses treacherous ground, for guilt is common to all men. Yet the guilt of one may be irrelevant to the charge on which he is tried or indicate that if there is to be a penalty, it should be of an extremely light character.
77
The risk of loss of his liberty and the certainty that if found guilty he will be 'stigmatized by the conviction' were factors we emphasized in Winship in sustaining the requirement that no man should be condemned where there is reasonable doubt about his guilt. 397 U.S., at 363—364, 90 S.Ct., at 1072.
78
We therefore have always held that in criminal cases we would err on the side of letting the guilty go free rather than sending the innocent to jail. We have required proof beyond a reasonable doubt as 'concrete substance for the presumption of innocence.' Id., at 363, 90 S.Ct., at 1072.
79
That procedure has required a degree of patience on the part of the jurors, forcing them to deliberate in order to reach a unanimous verdict. Up until today the price has never seemed too high. Now a 'law and order' judicial mood causes these barricades to be lowered.
80
The requirements of a unanimous jury verdict in criminal cases and proof beyond a reasonable doubt are so embedded in our constitutional law and touch so directly all the citizens and are such important barricades of liberty that if they are to be changed they should be introduced by constitutional amendment.
81
Today the Court approves a nine-to-three verdict. Would the Court relax the standard of reasonable doubt still further by resorting to eight-to-four verdicts, or even a majority rule? Moreover, in light of today's holdings and that of Williams v. Florida, in the future would it invalidate three-to-two or even two-to-one convictions?
82
Is the next step the elimination of the presumption of innocence? Mr. Justice Frankfurter, writing in dissent in Leland v. Oregon, 343 U.S. 790, 802—803, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302, said:
83
'It is not unthinkable that failure to bring the guilty to book for a heinous crime which deeply stirs popular sentiment may lead the legislature of a State, in one of those emotional storms which on occasion sweep over our people, to enact that thereafter an indictment for murder, following attempted rape, should be presumptive proof of guilt and cast upon the defendant the burden of proving beyond a reasonable doubt that he did not do the killing. Can there be any doubt that such a statute would go beyond the freedom of the States, under the Due Process Clause of the Fourteenth Amendment, to fashion their own penal codes and their own procedures for enforcing them? Why is that so? Because from the time that the law which we have inherited has emerged from dark and barbaric times, the conception of justice which has dominated our criminal law has refused to put an accused at the hazard of punishment if he fails to remove every reasonable doubt of his innocence in the minds of jurors. It is the duty of the Government to establish his guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of 'due process.' Accordingly there can be no doubt, I repeat, that a State cannot cast upon an accused the duty of establishing beyond a reasonable doubt that his was not the act which caused the death of another.'
84
The vast restructuring of American law which is entailed in today's decisions is for political not for judicial action. Until the Constitution is rewritten, we have the present one to support and construe. It has served us well. We lifetime appointees, who sit here only by happenstance, are the last who should sit as a Committee of Revision on rights as basic as those involved in the present cases.
85
Proof beyond a reasonable doubt and unanimity of criminal verdicts and the presumption of innocence are basic features of the accusatorial system. What we do today is not in that tradition but more in the tradition of the inquisition. Until amendments are adopted setting new standards, I would let no man be fined or imprisoned in derogation of what up to today was indisputably the law of the land.
86
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.*
87
Readers of today's opinions may be understandably puzzled why convictions by 11—1 and 10—2 jury votes are affirmed in No. 69 5046, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184, when a majority of the Court agrees that the Sixth Amendment requires a unanimous verdict in federal criminal jury trials, and a majority also agrees that the right to jury trial guaranteed by the Sixth Amendment is to be enforced against the States according to the same standards that protect that right against federal encroachment. The reason is that while my Brother POWELL agrees that a unanimous verdict is required in federal criminal trials, he does not agree that the Sixth Amendment right to a jury trial is to be applied in the same way to State and Federal Governments. In that circumstance, it is arguable that the affirmance of the convictions of Apodaca, Madden, and Cooper is not inconsistent with a view that today's decision in No. 69-5046 is a holding that only a unanimous verdict will afford the accused in a state criminal prosecution the jury trial guaranteed him by the Sixth Amendment. In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment's jury trial guarantee, however it is to be construed, has identical application against both State and Federal Governments.
88
I can add only a few words to the opinions of my Brothers DOUGLAS, STEWART, and MARSHALL, which I have joined. Emotions may run high at criminal trials. Although we can fairly demand that jurors be neutral until they have begun to hear evidence, it would surpass our power to command that they remain unmoved by the evidence that unfolds before them. What this means is that jurors will often enter the jury deliberations with strong opinions on the merits of the case. If at that time a sufficient majority is available to reach a verdict, those jurors in the majority will have nothing but their own common sense to restrain them from returning a verdict before they have fairly considered the positions of jurors who would reach a different conclusion. Even giving all reasonable leeway to legislative judgment in such matters, I think it simply ignores reality to imagine that most jurors in these circumstances would or even could fairly weigh the arguments opposing their position.
89
It is in this context that we must view the constitutional requirement that all juries be drawn from an accurate cross section of the community. When verdicts must be unanimous, no member of the jury may be ignored by the others. When less than unanimity is sufficient, consideration of minority views may become nothing more than a matter of majority grace. In my opinion, the right of all groups in this Nation to participate in the criminal process means the right to have their voices heard. A unanimous verdict vindicates that right. Majority verdicts could destroy it.
90
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
91
This case was tried before the announcement of our decision in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Therefore, unlike Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184, the Sixth Amendment's guarantee of trial by jury is not applicable here. DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308. But I think the Fourteenth Amendment alone clearly requires that if a State purports to accord the right of trial by jury in a criminal case, then only a unanimous jury can return a constitutionally valid verdict.
92
The guarantee against systematic discrimination in the selection of criminal court juries is a fundamental of the Fourteenth Amendment. That has been the insistent message of this Court in a line of decisions extending over nearly a century. E.g., Carter v. Jury Comm., 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). The clear purpose of these decisions has been to ensure universal participation of the citizenry in the administration of criminal justice. Yet today's judgment approves the elimination of the one rule that can ensure that such participation will be meaningful—the rule requiring the assent of all jurors before a verdict of conviction or acquittal can be returned. Under today's judgment, nine jurors can simply ignore the views of their fellow panel members of a different race or class.*
93
The constitutional guarantee of an impartial system of jury selection in a state criminal trial rests on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See, e.g., Whitus v. Georgia, supra, 385 U.S., at 549—550, 87 S.Ct., at 646; Carter v. Texas, supra, 177 U.S., at 447, 20 S.Ct., at 689; Strauder v. West Virginia, supra, 100 U.S., at 310. Only a jury so selected can assure both a fair criminal trial. see id., at 308 309, and public confidence in its result, cf. Witherspoon v. Illinois, 391 U.S. 510, 519—520, 88 S.Ct. 1770, 1775—1776, 20 L.Ed.2d 776; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368. Today's decision grossly undermines those basic assurances. For only a unanimous jury so selected can serve to minimize the potential bigotry of those who might convict on inadequate evidence, or acquit when evidence of guilt was clear. See Strauder v. West Virginia, 100 U.S., at 309. And community confidence in the administration of criminal justice cannot but be corroded under a system in which a defendant who is conspicuously identified with a particular group can be acquitted or convicted by a jury split along group lines. The requirements of unanimity and impartial selection thus complement each other in ensuring the fair performance of the vital functions of a criminal court jury.
94
It does not denigrate the system of trial by jury to acknowledge that it is imperfect, nor does it enable that system to drape upon a jury majority the mantle of presumptive reasonableness in all circumstances. The Court has never before been so impervious to reality in this area. Its recognition of the serious risks of jury misbehavior is a theme unifying a series of constitutional decisions that may be in jeopardy if today's facile presumption of regularity becomes the new point of departure. Why, if juries do not sometimes act out of passion and prejudice, does the Constitution require the availability of a change of venue? Cf. Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Strauder v. West Virginia, supra, 100 U.S. at 309. Why, if juries do not sometimes act improperly, does the Constitution require protection from inflammatory press coverage and ex parte influence by court officers? Cf. e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct., 1507, 16 L.Ed.2d 600; Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420; Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. Why, if juries must be presumed to obey all instructions from the bench, does the Constitution require that certain information must not go to the jury no matter how strong a cautionary charge accompanies it. Cf., e.g., Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Why, indeed, should we insist that no man can be constitutionally convicted by a jury from which members of an identifiable group to which he belongs have been systematically excluded? Cf., e.g., Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866.
95
So deeply engrained is the law's tradition of refusal to engage in after-the-fact review of jury deliberations, however, that these and other safeguards provide no more than limited protection. The requirement that the verdict of the jury be unanimous, surely as important as these other constitutional requisites, preserves the jury's function in linking law with contemporary society. It provides the simple and effective method endorsed by centuries of experience and history to combat the injuries to the fair administration of justice that can be inflicted by community passion and prejudice.
96
I dissent.
97
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
98
Today the Court cuts the heart out of two of the most important and inseparable safeguards the Bill of Rights offers a criminal defendant: the right to submit his case to a jury, and the right to proof beyond a reasonable doubt. Together, these safeguards occupy a fundamental place in our constitutional scheme, protecting the individual defendant from the awesome power of the State. After today, the skeleton of these safeguards remains, but the Court strips them of life and of meaning. I cannot refrain from adding my protest to that of my Brothers DOUGLAS, BRENNAN, and STEWART, whom I join.
99
In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184, the question is too frighteningly simple to bear much discussion. We are asked to decide what is the nature of the 'jury' that is guaranteed by the Sixth Amendment. I would have thought that history provided the appropriate guide, and as Mr. Justice POWELL has demonstrated so convincingly, history compels the decision that unanimity is an essential feature of that jury. But the majority has embarked on a 'functional' analysis of the jury that allows it to strip away, one by one, virtually all the characteristic features of the jury as we know it. Two years ago, over my dissent, the Court discarded as an essential feature the traditional size of the jury. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Today the Court discards, at least in state trials, the traditional requirement of unanimity. It seems utterly and ominously clear that so long as the tribunal bears the label 'jury,' it will meet Sixth Amendment requirements as they are presently viewed by this Court. The Court seems to require only that jurors be laymen, drawn from the community without systematic exclusion of any group, who exercise commonsense judgment.
100
More distressing still than the Court's treatment of the right to jury trial is the cavalier treatment the Court gives to proof beyond a reasonable doubt. The Court asserts that when a jury votes nine to three for conviction, the doubts of the three do not impeach the verdict of the nine. The argument seems to be that since, under Williams, nine jurors are enough to convict, the three dissenters are mere surplusage. But there is all the difference in the world between three jurors who are not there, and three jurors who entertain doubts after hearing all the evidence. In the first case we can never know, and it is senseless to ask, whether the prosecutor might have persuaded additional jurors had they been present. But in the second case we know what has happened: the prosecutor has tried and failed to persuade those jurors of the defendant's guilt. In such circumstances, it does violence to language and to logic to say that the government has proved the defendant's guilt beyond a reasonable doubt.
101
It is said that this argument is fallacious because a deadlocked jury does not, under our law, bring about an acquittal or bar a retrial. The argument seems to be that if the doubt of a dissenting juror were the 'reasonable doubt' that constitutionally bars conviction, then it would necessarily result in an acquittal and bar retrial. But that argument rests on a complete non sequitur. The reasonable-doubt rule, properly viewed, simply establishes that, as a prerequisite to obtaining a valid conviction, the prosecutor must overcome all of the jury's reasonable doubts; it does not, of itself, determine what shall happen if he fails to do so. That is a question to be answered with reference to a wholly different constitutional provision, the Fifth Amendment ban on double jeopardy, made applicable to the States through the Due Process Clause of the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
102
Under prevailing notions of double jeopardy, if a jury has tried and failed to reach a unanimous verdict, a new trial may be held. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824). The State is free, consistent with the ban on double jeopardy, to treat the verdict of a nonunanimous jury as a nullity rather than as an acquittal. On retrial, the prosecutor may be given the opportunity to make a stronger case if he can: new evidence may be available, old evidence may have disappeared, and even the same evidence may appear in a different light if, for example, the demeanor of witnesses is different. Because the second trial may vary substantially from the first, the doubts of the dissenting jurors at the first trial do not necessarily impeach the verdict of a new jury on retrial. But that conclusion is wholly consistent with the view that the doubts of dissenting jurors create a constitutional bar to conviction at the trial that produced those doubts. Until today, I had thought that was the law.
103
I respectfully reject the suggestion of my Brother POWELL that the doubts of minority jurors may be attributable to 'irrationality' against which some protection is needed. For if the jury has been selected properly, and every juror is a competent and rational person, then the 'irrationality' that enters into the deliberation process is precisely the essence of the right to a jury trial. Each time this Court has approved a change in the familiar characteristics of the jury, we have reaffirmed the principle that its fundamental characteristic is its capacity to render a commonsense, laymen's judgment, as a representative body drawn from the community. To fence out a dissenting juror fences out a voice from the community, and undermines the principle on which our whole notion of the jury now rests. My dissenting Brothers have pointed to the danger, under a less-than-unanimous rule, of excluding from the process members of minority groups, whose participation we have elsewhere recognized as a constitutional requirement. It should be emphasized, however, that the fencing-out problem goes beyond the problem of identifiable minority groups. The juror whose dissenting voice is unheard may be a spokesman, not for any minority viewpoint, but simply for himself—and that, in my view, is enough. The doubts of a single juror are in my view evidence that the government has failed to carry its burden of proving guilt beyond a reasonable doubt. I dissent.
1
La.Const., Art. VII, § 41, provides:
'Section 41. The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases; provided, however, that no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service. All cases in which the punishment may not be at hard labor shall, until otherwise provided by law, be tried by the judge without a jury. Cases, in which the punishment may be at hard labor, shall be tried by a jury of five, all of whom must concur to render a verdict; cases, in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom must concur to render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.'
La.Code Crim.Proc., Art. 782, provides:
'Cases in which the punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which the punishment is necessarily at hard labor shall be tried by a jury composed of twelve jurors, nine of whom must concur to render a verdict. Cases in which the punishment may be imprisonment at hard labor, shall be tried by a jury composed of five jurors, all of whom must concur to render a verdict. Except as provided in Article 780, trial by jury may not be waived.'
2
Coffin contains a lengthy discussion on the requirement of proof beyond a reasonable doubt and other similar standards of proof in ancient Hebrew, Greek, and Roman law, as well as in the common law of England. This discussion suggests that the Court of the late 19th century would have held the States bound by the reasonable-doubt standard under the Due Process Clause of the Fourteenth Amendment on the assumption that the standard was essential to a civilized system of criminal procedure. See generally Duncan v. Louisiana, 391 U.S. 145, at 149—150, n. 14, 88 S.Ct. 1444, at 1447—1448, 20 L.Ed.2d 491 (1968).
*
[This opinion applies also to No. 69-5046, Apodaca et al. v. Oregon, post, p. 404.]
1
That right, of course, is reserved for those crimes that may be deemed 'serious.' See id., at 159—162, 88 S.Ct., at 1452; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).
2
This contention was raised in Carcerano v. Gladden, which was consolidated and disposed of along with the DeStefano opinion.
3
In addition to the jury trial issues in this case, I also join Part IV of the Court's opinion insofar as it concludes that the lineup identification was not the fruit of the prior warrantless arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Under the circumstances of this case, I find it unnecessary to reach the question whether appellant's warrantless arrest was constitutionally invalid.
4
Jury trial in federal cases is also assured by Art. III, § 2, of the Constitution: 'The Trial of all Crimes . . . shall be by Jury.'
5
See also Mr. Justice White's opinion for the Court in Swain v. Alabama, 380 U.S. 202, 211, 85 S.Ct. 824, 831, 13 L.Ed.2d 759 (1965), stating, in dictum, that 'Alabama adheres to the common-law system of trial by an impartial jury of 12 men who must unanimously agree on a verdict, the system followed in the federal courts by virtue of the Sixth Amendment.' (Emphasis supplied.)
The same result has been attained with respect to the right to jury trial in civil cases under the Seventh Amendment. See American Publishing Co. v. Fisher, 166 U.S. 464, 467—468, 17 S.Ct. 618, 619, 41 L.Ed. 1079 (1897); Springville v. Thomas, 166 U.S. 707, 17 S.Ct. 717, 41 L.Ed. 1172 (1897).
6
The process of determining the content of the Sixth Amendment right to jury trial has long been one of careful evaluation of, and strict adherence to the limitations on, that right as it was known in criminal trials at common law. See Williams v. Florida, 399 U.S. 78, 117, 122—129, 90 S.Ct. 1893, 1914, 26 L.Ed.2d 446 (1970) (separate opinion of Harlan, J.).
A recent example of that process of constitutional adjudication may be found in Part II of the Court's opinion in Duncan v. Louisiana, 391 U.S., at 159—162, 88 S.Ct., at 1452, 20 L.Ed.2d 491, in which 'petty' offenses were excluded from the rule requiring jury trial because such 'offenses were tried without juries both in England and in the Colonies.' The Court found 'no substantial evidence that the Framers intended to depart from this established common-law practice.' Id., at 160, 88 S.Ct., at 1453. To the same effect, see Mr. Justice Harlan's dissent in Baldwin v. New York (appearing in Williams v. Florida, 399 U.S., at 119—121, 90 S.Ct., at 1915, 26 L.Ed.2d 446).
Also representative of this historical approach to the Sixth Amendment are the exhaustive majority and dissenting opinions in Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), in which the Court ultimately concluded that federal criminal juries were empowered only to decide questions of 'fact.' Rather than attempting to determine whether the fact-law distinction was desirable or whether it might be essential to the function performed by juries, the decision was premised on the conclusion that English and Colonial juries had no right to decide questions of law.
The same historical approach accounts for the numerous Supreme Court opinions (see text accompanying n. 5), finding unanimity to be one of the attributes subsumed under the term 'jury trial.' No reason, other than the conference committee's revision of the House draft of the Sixth Amendment, has been offered to justify departure from this Court's prior precedents. The admitted ambiguity of that piece of legislative history is not sufficient, in my view, to override the unambiguous history of the common-law right. Williams v. Florida, 399 U.S., at 123 n. 9, 90 S.Ct., at 1918, 26 L.Ed.2d 446.
9
I agree with Mr. Justice White's analysis in Duncan that the departure from earlier decisions was, in large measure, a product of a change in focus in the Court's approach to due process. No longer are questions regarding the constitutionality of particular criminal procedures resolved by focusing alone on the element in question and ascertainment whether a system of criminal justice might be imagined in which a fair trial could be afforded in the absence of that particular element. Rather, the focus is, as it should be, on the fundamentality of that element viewed in the context of the basic Anglo-American jurisprudential system common to the States. Duncan v. Louisiana, supra, 391 U.S., at 149—150, n. 14, 88 S.Ct., at 1447. That approach to due process readily accounts both for the conclusion that jury trial is fundamental and that unanimity is not. See Part III, infra.
10
Duncan v. Louisiana, 391 U.S., at 156, 88 S.Ct., at 1451. See also Baldwin v. New York, 399 U.S., at 72, 90 S.Ct., at 1890.
11
Indeed, so strongly felt was the jury's role as the protector of 'innocence against the consequences of the partiality and undue bias of judges in favor of the prosecution,' that, at an earlier point in this country's history, some of the States deemed juries the final arbiters of all questions arising in criminal prosecutions, whether factual or legal. To allow judges to determine the law was considered by some States to pose too great a risk of judicial oppression, favoring the State above the accused. See, e.g., State v. Croteau, 23 Vt. 14, 21 (1849); Howe, Juries as Judges of Criminal Law, 52 Harv.L.Rev. 582 (1939). That historical preference for jury decisionmaking is still reflected in the criminal procedures of two States. Ind.Const., Art. I, § 19; Md. Const., Art. XV, § 5. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Wyley v. Warden, 372 F.2d 742, 746 (CA4), cert. denied, 389 U.S. 863, 88 S.Ct. 121, 19 L.Ed.2d 131 (1967); Beavers v. State, 236 Ind. 549, 141 N.E.2d 118 (1957).
12
The available empirical research indicates that the jury-trial protection is not substantially affected by less than unanimous verdict requirements. H. Kalven and H. Zeisel, in their frequently cited study of American juries (The American Jury (Phoenix ed. 1971)), note that where unanimity is demanded 5.6% of the cases result in hung juries. Id., at 461. Where unanimity is not required, available statistics indicate that juries will still be hung in over 3% of the cases. Thus, it may be estimated roughly that Oregon's practice may result in verdicts in some 2.5% more of the cases—cases in which no verdict would be returned if unanimity were demanded. Given the large number of causes to which this percentage disparity might be attributed, and given the possibility of conviction on retrial, it is impossible to conclude that this percentage represents convictions obtained under standards offensive to due process.
13
Duncan v. Louisiana, supra, at 181, 88 S.Ct., at 1465 (Harlan, J., dissenting).
14
Id., at 173—183, 88 S.Ct., at 1461—1467 (Harlan, J., dissenting); Bloom v. Illinois, 391 U.S., at 211, 88 S.Ct., at 1459 (Fortas, J., concurring); Baldwin v. New York, 399 U.S., at 76—77, 90 S.Ct., at 1892 (Burger, C.J., dissenting); Williams v. Florida, 399 U.S., at 117, 143, 90 S.Ct., at 1914, 1928 (separate opinion of Harlan, J., and Stewart, J.). Cf. Mr. Justice Douglas' concurring opinion in Alexander v. Louisiana, 405 U.S. 625, 637 n. 4, 92 S.Ct. 1221, 1228, 31 L.Ed.2d 536 (1972).
15
My unwillingness to accept the 'incorporationist' notion that jury trial must be applied with total uniformity does not require that I take issue with every precedent of this Court applying various criminal procedural rights to the States with the same force that they are applied in federal courts. See Mr. Justice Fortas' opinion in Bloom v. Illinois, 391 U.S., at 214, 88 S.Ct., at 1460, which also applied to Duncan.
16
See Mr. Justice Brandeis' oft-quoted dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 309—311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932), in which he details the stultifying potential of the substantive due process doctrine.
17
ALI, Code of Criminal Procedure § 335 (1930).
18
Criminal Justice Act 1967, c. 80, § 13 (Great Britain).
19
American Bar Association, Project on Standards for Criminal Justice, Trial By Jury § 1.1 (Approved Draft 1968) (see also commentary, at 25—28).
20
See, e.g., Kalven & Zeisel, The American Jury: Notes For an English Controversy, 48 Chi.B.Rec. 195 (1967); Samuels, Criminal Justice Act, 31 Mod.L.Rev. 16, 24—27 (1968); Comment, Waiver of Jury Unanimity—Some Doubts About Reasonable Doubt, 21 U.Chi.L.Rev. 438, 444—445 (1954); Comment, Should Jury Verdicts Be Unanimous in Criminal Cases?, 47 Ore.L.Rev. 417 (1968).
21
See State v. Gann, 254 Or. 549, 463 P.2d 570 (1969).
Approval of Oregon's 10—2 requirement does not compel acceptance of all other majority-verdict alternatives. Due process and its mandate of basic fairness often require the drawing of difficult lines. See Francis v. Resweber, 329 U.S. 459, 466, 471, 67 S.Ct. 374, 377, 91 L.Ed. 422 (1947) (Frankfurter, J., concurring). Full recognition of the function performed by jury trials, coupled with due respect for the presumptive validity of state laws based on rational considerations such as those mentioned above, will assist in finding the required balance when the question is presented in a different context.
22
See, e.g., Swain v. Alabama, 380 U.S. 202, 209—222, 85 S.Ct. 824, 829, 13 L.Ed.2d 759 (1965).
23
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
24
See, e.g., Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
25
See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).
1
See also 2 J. Story, Commentaries on the Constitution 559 n. 2 (5th ed. 1891): 'A trial by jury is generally understood to mean ex vi termini, a trial by a jury of twelve men, impartially selected, who must unanimously concur in the guilt of the accused before a legal conviction can be had. Any law, therefore, dispensing with any of these requisites, may be considered unconstitutional.' In the 1969 Term we held a jury of six was sufficient, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, but we noted that neither evidence nor theory suggested 12 was more favorable to the accused than six. The same cannot be said for unanimity and impartial selection of jurors. See infra, at 388—394.
Story's Commentaries cite no statutory authority for the requirement of unanimity in a criminal jury. That is because such authority has never been thought necessary. The unanimous jury has been so embedded in our legal history that no one would question its constitutional position and thus there was never any need to codify it. Indeed, no criminal case dealing with a unanimous jury has ever been decided by this Court before today, largely because of this unquestioned constitutional assumption. A similar assumption had, of course been made with respect to the Seventh Amendment civil jury, but that issue did reach the Court. And the Court had no difficulty at all in holding a unanimous jury was a constitutional requirement. American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079.
2
Of course, the unanimous jury's origin is long before the American Revolution. The first recorded case where there is a requirement of unanimity is Anonymous Case, 41 Lib. Assisarum 11 (1367), reprinted in English in R. Pound & T. Plucknett, Readings on the History and System of the Common Law 155—156 (3d ed. 1927).
3
What was said of the impact of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, on federalism bears repeating here:
'Mapp . . . 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 (364 U.S. 206, 80 S.Ct. 1437, 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 . . . will be promoted if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches." Ker v. California, 374 U.S. 23, 31, 83 S.Ct. 1623, 1629.
4
H. Kalven & H. Zeisel, The American Jury 490 (1966). See also The American Jury: Notes For an English Controversy, 48 Chi.B.Rec. 195 (1967).
5
The American Jury, supra, n. 3, at 460.
Last Vote of Deadlocked Juries
Vote for Conviction Per Cent
11:1............................................ 24
10:2............................................ 10
9:3............................................ 10
8:4............................................. 6
7:5............................................ 13
6:6............................................ 13
5:7............................................ 8
4:8............................................ 4
3:9............................................ 4
2:10........................................... 8
1:11........................................... -
_______
100%
Number of Juries in Sample—48.
6
3 Lectures on Legal Topics, Association of Bar of the City of New York 105 (1926).
*
This opinion applies also to No. 69-5046, Apodaca v. Oregon, post, p. 404.
See, for example, First Amendment, Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Fourth Amendment, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Fifth Amendment's privilege against self-incrimination, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Fifth Amendment's Double Jeopardy Clause, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Fifth Amendment Just Compensation Clause, Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897); Sixth Amendment's Speedy Trial Clause, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Sixth Amendment's guarantee of jury trial, Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491, 522 (1968); Sixth Amendment's Confrontation Clause, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
*
And, notwithstanding Mr. Justice BLACKMUN's disclaimer, 406 U.S. 365, 92 S.Ct. 1635, there is nothing in the reasoning of the Court's opinion that would stop it from approving verdicts by 8—4 or even 7—5.
| 01
|
406 U.S. 487
92 S.Ct. 1710
32 L.Ed.2d 248
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, AFL-CIO, Petitioner,v.FLAIR BUILDERS, INC.
No. 71—41.
Argued April 10, 1972.
Decided May 30, 1972.
Syllabus
Petitioner union brought an action in June 1968 seeking damages and injunctive relief for respondent's alleged breach of their collective-bargaining agreement, charging that respondent had 'continually violated' the contract since June 1966 by refusing to abide by any of its terms. The agreement provided for arbitration 'of any difference . . . which cannot be settled . . . within 48 hours of the occurrence.' The District Court held that respondent 'was bound by the memorandum agreement to arbitrate labor disputes within the limits of the arbitration clause,' but found the union guilty of laches and dismissed the action. The Court of Appeals affirmed. Held: As the District Court found, the parties did agree to arbitrate and, the existence and scope of an arbitration clause being matters for judicial decision, the phrase 'any difference' encompasses the issue of laches within the broad sweep of its arbitration coverage. Pp. 490—492.
7 Cir., 440 F.2d 557, reversed.
Bernard M. Baum, Chicago, Ill., for petitioner.
J. Robert Murphy, as amicus curiae, in support of the judgment below.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
In November 1968, petitioner brought an action in the United States District Court for the Northern District of Illinois, seeking damages and injunctive relief for an alleged breach by respondent of their collective-bargaining agreement. The complaint charged that since June 1, 1966, respondent had 'continually violated' the contract by refusing to abide by any of its terms, including wage, hiring hall, and fringe benefit provisions. The agreement, which incorporated the terms of master contracts between petitioner and a local contractors' association, provided for arbitration of 'any difference . . . between the parties hereto which cannot be settled by their representatives, within 48 hours of the occurrence.'
2
The District Court dismissed petitioner's action for failure to state a claim and noted, but did not pass upon, two additional contentions of the company—' that (1) no contract was ever created, and (2) . . . if consummated, the agreement was subsequently abandoned by the union.' No. 68—C—2091 (April 14, 1969) (unreported). The court suggested that the parties arbitrate the binding effect of their contract. When the company refused to arbitrate either that issue or 'the subsequent issues of possible violations,' petitioner filed an amended complaint to compel arbitration.
3
In moving to dismiss the amended complaint, respondent again denied the existence of a binding agreement and argued that the Union's delay in seeking arbitration constituted laches barring enforcement of the contract. The District Court initially denied the motion, holding that 'if the employer consented to the alleged collective bargaining agreement, the laches issue should be decided by the arbitrator rather than the federal courts.' Id. (Aug. 26, 1969) (unreported). But after conducting an evidentiary hearing on the scope of the arbitration clause, the court entered an order dismissing the complaint. Id. (Dec. 4, 1969) (unreported). Though agreeing that respondent 'was bound by the memorandum agreement to arbitrate labor disputes within the limits of the arbitration clause,' the court found that there had been no contact between the parties from the time of the signing in 1964 until the summer of 1968. It therefore concluded that the Union was guilty of laches in seeking enforcement:
4
'The master agreement contemplates initiation of arbitration proceedings if any dispute is not settled within 48 hours of its occurrence, and further provides that the Board of Arbitrators shall meet 'within six (6) days.' Yet demand for arbitration was not made in this case until April, 1969, almost five years from Flair's first alleged failure to comply with the contract and nearly three years from the inception of the alleged breach sought to be arbitrated.
5
'To require Flair to respond, through arbitration, to general charges of noncompliance with contract provisions allegedly beginning more than two years before this suit was filed would impose an extreme burden on its defense efforts. . . . (T)o compel arbitration would reward plaintiff for its own inaction and subject defendant to the risk of liability because of actions taken or not taken in reliance on plaintiff's apparent abandonment.'
6
The Court of Appeals affirmed the order by divided vote. 7 Cir., 440 F.2d 557 (1971). Its opinion read the memorandum of the District Court to hold that the collective-bargaining agreement was still in effect and that therefore the question for decision was 'whether a court may properly dismiss the complaint on the basis of laches resulting from dilatory notification of the existence of a dispute in a suit brought to compel arbitration with regard to the dispute.' Id., at 557—558. The court then addressed this Court's decision in John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). There an employer refused to arbitrate on the ground that the union, among other things, had failed to follow grievance procedures required by the collective-bargaining agreement. We ordered arbitration, holding that '(o)nce it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.' Id., at 557, 84 S.Ct., at 918. The Court of Appeals distinguished Wiley on the ground that the procedural question there concerned 'intrinsic' untimeliness, relating solely to the requirements of the contract. Here, on the other hand, the question was one of 'extrinsic' untimeliness, based not on a violation of contract procedures but on the failure to give timely notice under the equitable doctrine of laches. Therefore, according to the court, the matter was within its province to decide, for "we are not indulging in the judicially unwarranted task of interpreting the collective bargaining agreement." 440 F.2d, at 560, quoting Amalgamated Clothing Workers v. Ironall Factories Co., 386 F.2d 586, 591 (CA6 1967). We granted certiorari, 404 U.S. 982, 92 S.Ct. 445, 30 L.Ed.2d 366 (1971).
7
Petitioner contends that the Court of Appeals erred in limiting Wiley to cases of 'intrinsic' delay because the issue of delay, whether 'intrinsic' or not, 'necessarily involves a determination of the merits of the dispute and bears directly upon the outcome and is accordingly for an arbitrator and not the federal court to decide.' Brief for Petitioner 21. In other words, petitioner argues that even if the parties have not agreed to arbitrate the laches issue, Wiley requires that the arbitrator resolve the question as an integral part of the underlying contract dispute.
8
We need not reach the question posed by petitioner, for we find that the parties did in fact agree to arbitrate the issue of laches here. Although respondent denies that it ever signed a binding contract with petitioner, the District Court found to the contrary and held that the company 'was bound by the memorandum agreement to arbitrate labor disputes within the limits of the arbitration clause.' That clause applies to 'any difference,' whatever it may be, not settled by the parties within 48 hours of occurrence. There is nothing to limit the sweep of this language or to except any dispute or class of disputes from arbitration. In that circumstance, we must conclude that the parties meant what they said—that 'any difference,' which would include the issue of laches raised by respondent at trial, should be referred to the arbitrator for decision.* The District Court ignored the plain meaning of the clause in deciding that issue.
9
Of course, nothing we say here diminishes the responsibility of a court to determine whether a union and employer have agreed to arbitration. That issue, as well as the scope of the arbitration clause, remains a matter for judicial decision. See Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962). But once a court finds that, as here, the parties are subject to an agreement to arbitrate, and that agreement extends to 'any difference' between them, then a claim that particular grievances are barred by laches is an arbitrable question under the agreement. Compare Iowa Beef Packers, In. v. Thompson, 405 U.S. 228, 92 S.Ct. 859, 31 L.Ed.2d 165 (1972). Having agreed to the broad clause, the company is obliged to submit its laches defense, even if 'extrinsic,' to the arbitral process. The judgment of the Court of Appeals is reversed.
10
Judgment reversed.
11
Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, dissenting.
12
Through the exercise of formal logic the majority reaches a result that I believe is injust. A full statement of the facts is necessary to put this case in proper perspective. Flair Builders, Inc. (Flair), is a small independent construction firm. The International Union of Operating Engineers, Local 150, AFL—CIO (the Union), had a master collective-bargaining agreement in effect with many contractor associations in Flair's area. On May 12, 1964, the Union and Flair signed a memorandum agreement which adopted the terms of the then-existing master bargaining agreement. The memorandum provided that Flair would be bound by any future master agreement entered between the Union and the contractor associations. Flair had only one employee at the time it signed the memorandum agreement with the Union. This employee joined the Union, but left Flair's employment about two weeks later. His job was filled successively by employees who operated the only piece of equipment owned by Flair. None of these successor employees belonged to the Union.
13
In the ensuing years, Flair prospered and added a modest amount of additional equipment. By 1967 it owned four pieces. Throughout the period from May 1964 until the summer of 1968, Flair operated all of its equipment with nonunion employees. During this period of more than four years, Flair heard nothing whatever from the Union.
14
In 1966, without Flair's knowledge, the Union and the contractor associations entered into a new master agreement which contained a provision that: 'Should any difference arise between the parties hereto which cannot be settled by their representatives, within 48 hours of the occurrence, such difference shall be submitted to arbitration.' It further provided that the arbitrators should meet within six days after it was determined that the dispute could not be settled. Although Flair was not a party to the new 1966 master agreement, and received no notice of its execution from the Union, the District Court determined that Flair was 'bound' by virtue of the incorporation provision in the memorandum agreement signed in 1964.
15
It is apparent that the Union either forgot about its 1964 agreement with Flair or considered Flair's small operation to be of no consequence. For a long time everyone seemed happy, and things went well. Then in June 1968, four years after the agreement was entered, a Union business agent visited Flair. This was the first such visit since May 1964. The business agent found that Flair's four employees were nonunion, and he also complained about their wages. Flair refused to recognize any obligation to the Union.
16
After the lapse of another five months, on November 7, 1968, the Union filed a complaint against Flair in the District Court seeking specific performance of the alleged collective-bargaining agreement and monetary damages in the amount of $100,000. Flair's motion to dismiss for failure to state a cause of action was sustained by the District Court on April 14, 1969, in a memorandum opinion which suggested that the parties arbitrate their differences. Pursuant to leave of court, the Union filed an amended complaint on June 3, 1969, alleging that on April 18, 1969, the Union had demanded 'immediate arbitration' and that Flair had refused. In its answer to the amend complaint, Flair asserted various defenses, including abandonment of the contract and laches in asserting 'any purported rights or claims thereunder.'
17
After an evidentiary hearing, the District Court concluded that the union had been 'guilty of laches by its unjustified delay in the enforcement of its contract with defendant,' and dismissed the complaint. The Court of Appeals for the Seventh Circuit, with one judge dissenting, agreed that laches was a bar to the Union's belated assertion of the right to arbitrate, and affirmed the judgment of the District Court.
18
In its opinion today, the Court looks solely at the clause in the master collective-bargaining agreement which provided for arbitration of 'any difference' between the parties, and holds:
19
'(T)hat the parties meant what they said—that 'any difference,' which would include the issue of laches raised by respondent at trial, should be referred to the arbitrator for decision.'1
20
Yet the phrase 'any difference,' if given its normal meaning in a labor contract, refers to disputes relating to hours, wages, fringe benefits, seniority, grievances, and to other issues customarily arising within the terms of a collective-bargaining agreement. I cannot believe that this language was intended to include the arbitration of an equitable defense asserted against the enforceability of the entire contract. Indeed, the Union itself did not construe the language to cover arbitration of this issue, as it asserted no such claim until after the District Court suggested it.2
21
But my dissent does not turn solely on an interpretation of the arbitration clause or of any other provision of the agreement. The defense of laches is equitable in nature. The customary situation in which it is invoked is where a contract does exist and, but for laches of one of the parties, would be enforceable. In this case, Flair relied in substance on two defenses: (i) that the 1964 memorandum agreement (the only agreement Flair ever signed) had been abandoned by the Union; and (ii) that even if it had not been abandoned and the arbitration clause was as broad as this Court construes it to be, the defense of laches was available as an affirmative defense. The essence of the latter defense is that the Union, by virtue of its conduct and Flair's reliance thereon, was estopped and precluded from enforcing any and all provisions of the contract, including the arbitration clause. This position was sustained by the courts below. The Court of Appeals correctly held:
22
'The factual context of this appeal thus narrows the issue before us to the question of whether a party to a collective bargaining agreement which contains an arbitration clause may be so dilatory in making the existence of vaguely delineated disputes known to the other party that a court is justified in refusing to compel the submission of such disputes to arbitration.' 440 F.2d 557, 559 (1971).
23
The District Court, which heard the testimony of the parties, emphasized the burden imposed upon Flair by the Union's prolonged and unexplained delay and the ambiguity of its various positions:
24
'To require Flair to respond, through arbitration, to general charges of noncompliance with contract provisions allegedly beginning more than two years before this suit was filed would impose an extreme burden on its defense efforts. Especially is this so when, as demonstrated at the hearing, Flair understandably considered the contract to have been abandoned soon after its inception. Plaintiff has offered no explanation for its delay in enforcement; yet to compel arbitration would reward plaintiff for its own inaction and subject defendant to the risk of liability because of actions taken or not taken in reliance on plaintiff's apparent abandonment.'
25
I am aware of the strong policy considerations in favor of the arbitration of union-management disputes. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). But neither Wiley, nor any other case to my knowledge, has forced arbitration upon a party in circumstances such as these, where the equitable doctrine of laches was clearly applicable and was asserted. We would be well advised to recall Chief Justice Marshall's admonition:
26
'(I)t is desirable to terminate every cause upon its real merits, if those merits are fairly before the court, and to put an end to litigation where it is in the power of the court to do so.' Church v. Hubbart, 2 Cranch 187, 232, 2 L.Ed. 249 (1804).
27
The effect of today's decision on Flair seems fairly clear. The Court's opinion imposes on this small business the 'extreme burden' that the District Court found would result from requiring arbitration. Mr. Justice Cardozo once observed that litigation is a rare and catastrophic experience for the vast majority of men.3 If Flair survives the long excursion of this Court, the arbitration that the majority requires, and a possible return to the District Court which already has ruled in its favor, it surely possesses more tenacity and better financial resources than the average small business. One may doubt whether many small businessmen would believe today's result possible.
28
The effect of the Court's decision also could be far reaching in the law of labor-management relations. It appears that the long-accepted jurisdiction of the courts may now be displaced whenever a collective-bargaining agreement contains a general arbitration clause similar to that here involved. If in such circumstances the affirmative defense of laches can no longer be invoked in the courts, what of other affirmative defenses that go to the enforceability of a contract? Does the Court's opinion vest in arbitrators the historic jurisdiction of the courts to determine fraud or duress in the inception of a contract? It seems to me that the courts are far better qualified than any arbitrators to decide issues of this kind. These are not questions of 'labor law,' nor are they issues of fact that arbitrators are peculiarly well qualified to consider. They are issues within the traditional equity jurisdiction of courts of law and issues which the courts below appropriately resolved. I would affirm the judgment of the Court of Appeals.
*
Respondent's attorney admitted as much in the hearing before the District Court. Though contending that the binding effect of the contract was an issue for the court, and not the arbitrator, he agreed that 'laches is another thing. I can go along on this being an arbitrable question, I suppose, if you have got a contract . . ..' App. 93.
1
It should be noted that this language was added to the master contract in 1966 without the knowledge of Flair, at a time when it had every reason to believe that the Union—from which it had heard nothing for more than two years—had abondoned the initial memorandum agreement of May 12, 1964. Flair had no union employees, and had received no demands or notices of any kind from the Union. But whatever the situation may have been in 1966, the subsequent history of this remarkable performance corroborates the view that neither Flair nor the Union was conscious of the existence of a collective-bargaining agreement or of a right to arbitrate anything.
Even after a union business agent visited Flair's jobsite in 1968 and discovered 'a non-union employee operating a piece of equipment,' no action was taken by the Union until a suit for specific performance and damages was filed some five months later. No demand was made for arbitration, and no claim of any right to arbitration was made in the original complaint. The District Court, not the Union, first suggested the possibility of arbitration. In these circumstances, and with all respect, I find no support whatever in the record for the Court's holding 'that the parties did in fact agree to arbitrate.'
2
See n. 1, supra.
3
B. Cardozo, The Nature of the Judicial Process 128 (1921).
| 67
|
406 U.S. 535
92 S.Ct. 1724
32 L.Ed.2d 285
Ruth J. JEFFERSON et al., Appellants,v.Burton G. HACKNEY, Commissioner of Public Welfare, et al.
No. 70—5064.
Argued Feb. 22, 1972.
Decided May 30, 1972.
Rehearing Denied Oct. 10, 1972.
See 93 S.Ct. 178.
Syllabus
Appellants, recipients of Aid to Families With Dependent Children (AFDC), challenge the system whereby Texas, in order to allocate its fixed pool of welfare money among persons with acknowledged need, applies a percentage reduction factor to arrive at a reduced standard of need, the factor being lower for AFDC than for other categorical assistance programs. Appellants assert that the State's method of applying this factor to recipients with outside income contravenes § 402(a)(23) of the Social Security Act, which required adjustment, by July 1, 1969, of 'amounts used . . . to determine the needs of individuals' to reflect increases in living costs, because this method does not increase the welfare roles to the same extent as would an alternative procedure used by some other States. They also make an equal protection claim on the grounds that the distinction between the aid programs is not rational and that the Texas system racially discriminates against the proportionately larger number of minority groups in AFDC than in the other programs. Held:
1. The Texas scheme does not contravene § 402(a)(23) of the Social Security Act, which does not require use of a computation procedure that maximizes individual eligibility for subsidiary benefits. Pp. 539—545.
2. The challenged system does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 545—551.
(a) The fact that there are more members of minority groups in the AFDC program than in other categories does not indicate racial discrimination, absent any proof of racial motivation in the Texas scheme. There was no such proof here. Pp. 547—549.
(b) Texas' decision to provide somewhat lower welfare benefits for AFDC recipients than for the aged and infirm who are in other categories is not invidious or irrational, and there is no constitutional or statutory requirement that relief categories be treated exactly alike. Pp. 549—551.
Affirmed.
Steven J. Cole, New York City, for appellants.
Pat Bailey, Austin, Tex., for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellants in this case challenge certain computation procedures that the State of Texas uses in its federally assisted welfare program. Believing that neither the Constitution nor the federal welfare statute prohibits the State from adopting these policies, we affirm the judgment of the three-judge court below upholding the state procedures.
2
* Appellants are Texas recipients of Aid to Families With Dependent Children (AFDC). They brought two class actions, which were consolidated in the United States District Court for the Northern District of Texas, seeking injunctive and declaratory relief against state welfare officials. A three-judge court was convened pursuant to 28 U.S.C. § 2281.
3
The Texas State Constitution provides a ceiling on the amount the State can spend on welfare assistance grants.1 In order to allocate this fixed pool of welfare money among the numerous individuals with acknowledged need, the State has adopted a system of percentage grants. Under this system, the State first computes the monetary needs of individuals eligible for relief under each of the federally aided categorical assistance programs.2 Then, since the constitutional ceiling on welfare is insufficient to bring each recipient up to this full standard of need, the State applies a percentage reduction factor3 in order to arrive at a reduced standard of need in each category that the State can guarantee.
4
Appellants challenge the constitutionality of applying a lower percentage reduction factor to AFDC than to the other categorical assistance programs. They claim a violation of equal protection because the proportion of AFDC recipients who are black or Mexican-American is higher than the proportion of the aged, blind, or disabled welfare recipients who fall within these minority groups. Appellants claim that the distinction between the programs is not rationally related to the purposes of the Social Security Act, and violates the Fourteenth Amendment for that reason as well. In their original complaint, appellants also argued that any percentage-reduction reduction system violated § 402(a)(23) of the Social Security Act of 1935, as amended, 81 Stat. 898, 42 U.S.C. § 602(a)(23), which required each State to make certain cost-of-living adjustments to its standard of need.
5
The three-judge court rejected appellants' constitutional arguments, finding that the Texas system is neither racially discriminatory nor unconstitutionally arbitrary. The court did, however, accept the statutory claim that Texas' percentage reductions in the AFDC program violate the congressional command of § 402(a)(23). 304 F.Supp. 1332 (ND Tex.1969).
6
Subsequent to that judgment, this Court decided Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). Rosado held that, although § 402(a)(23) required States to make cost-of-living adjustments in their standard -of-need calculations, it did not prohibit use of percentage-reduction systems that limited the amount of welfare assistance actually paid. 397 U.S., at 413, 90 S.Ct., at 1218. This Court then vacated and remanded the first Jefferson judgment for further proceedings consistent with Rosado. 397 U.S. 821, 90 S.Ct. 1517, 25 L.Ed.2d 807 (1970).
7
On remand, the District Court entered a new judgment, denying all relief. Then, in a motion to amend the judgment, appellants raised a new statutory claim. They argued for the first time that although a percentage-reduction system may be consistent with the statute, the specific procedures that Texas uses for computing that reduction violate the congressional enactment. The District Court rejected this argument and denied without opinion appellants' motion to amend the judgment. This appeal under 28 U.S.C. § 1253 then followed, and we noted probable jurisdiction. 404 U.S. 820, 92 S.Ct. 115, 30 L.Ed.2d 47 (1971).
II
8
Appellants' statutory argument relates to the method that the State uses to compute the percentage reduction when the recipient also has some outside income. Texas, like many other States,4 first applies the percentage-reduction factor to the recipient's standard of need, thus arriving at a reduced standard of need that the State can guarantee for each recipient within the present budgetary restraints. After computing this reduced standard of need, the State then subtracts any nonexempt5 income in order to arrive at the level of benefits that the recipient needs in order to reach his reduced standard of need. This is the amount of welfare the recipient is given.
9
Under an alternative system used by other States, the order of computation is reversed. First, the outside income is subtracted from the standard of need, in order to determine the recipient's 'unmet need.' Then, the percentage-reduction factor is applied to the unmet need, in order to determine the welfare benefits payable.
10
The two systems of accounting for outside income yield different results.6 Under the Texas system all welfare recipients with the same needs have the same amount of money available each month, whether or not they have outside income. Since the outside income is applied dollar for dollar to the reduced standard of need, which the welfare department would otherwise pay in full, it does not result in a net improvement in the financial position of the recipient. Under the alternative system, on the other hand, any welfare recipient who also has outside income is in a better financial position because of it. The reason is that the percentage-reduction factor there is applied to the 'unmet need,' after the income has been subtracted. Thus, in effect, the income-earning recipient is able to 'keep' all his income, while he receives only a percentage of the remainder of his standard of need.7
11
Each of the two systems has certain advantages. Appellants note that under the alternative system there is a financial incentive for welfare recipients to obtain outside income. The Texas computation method eliminates any such financial incentive, so long as the outside income remains less than the recipient's reduced standard of need.8 However, since Texas' pool of available welfare funds is fixed, any increase in benefits paid to the working poor would have to be offset by reductions elsewhere. Thus, if Texas were to switch to the alternative system of recognizing outside income, it would be forced to lower its percentage-reduction factor, in order to keep down its welfare budget. Lowering the percentage would result in less money for those who need the welfare benefits the most—those with no outside income—and the State has been unwilling to do this.
12
Striking the proper balance between these competing policy considerations is, of course, not the function of this Court. 'There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.' King v. Smith, 392 U.S. 309, 318—319, 88 S.Ct. 2128, 2134, 20 L.Ed.2d 1118 (1968) (footnotes omitted).9 So long as the State's actions are not in violation of any specific provision of the Constitution or the Social Security Act, appellants' policy arguments must be addressed to a different forum.
13
Appellants assert, however, that the Texas computation procedures are contrary to § 402(a)(23):
14
'(a) A State plan for aid and services to needy families with children must
15
'(23) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.'
16
Recognizing that this statutory language, by its terms, hardly provides much support for their theory, appellants seek to rely on what they perceive to have been the broad congressional purpose in enacting the provision.
17
In Rosado v. Wyman, supra, the Court reviewed the history of this section and rejected the argument that it had worked any radical shift in the AFDC program. Id., 397 U.S., at 414 and n. 17, 90 S.Ct., at 1218. AFDC has long been referred to as a 'scheme of cooperative federalism,' King v. Smith, 392 U.S., at 316, 88 S.Ct., at 2133, and the Rosado Court dismissed as 'adventuresome' any interpretation of § 402(a)(23) that would deprive the States of their traditional discretion to set the levels of payments. 397 U.S., at 414—415 and n. 17, 90 S.Ct., at 1218—1219. Instead, the statute was meant to require the States to make cost-of-living adjustments to their standards of need, thereby serving 'two broad purposes':
18
'First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis.' Id., at 412—413, 90 S.Ct., at 1218.
19
Texas has complied with these two requirements. Effective May 1, 1969, the standard of need for AFDC recipients was raised 11% to reflect the rise in the cost of living, and the State shifted from a maximum-grant system to its present percentage-reduction system. In this way, the State has fairly recognized and exposed the precise level of unmet need, and by using a percentage-reduction system it has attempted to apportion the State's limited benefits more equitably.
20
Although Texas has thus responded to the 'two broad purposes' of § 402(a)(23), appellants argue that Congress also intended that statute to increase the total number of recipients of AFDC, so that more people would qualify for the subsidiary benefits that are dependent on receipt of AFDC cash assistance.10 The Texas computation procedures are thought objectionable since they do not increase the welfare rolls to quite the same extent as would the alternative method of recognizing outside income.
21
We do not agree that Congress intended § 402(a)(23) to invalidate any state computation procedures that do not absolutely maximize individual eligibility for subsidiary benefits. The cost-of-living increase that Congress mandated would, of course, generally tend to increase eligibility,11 but there is nothing in the legislative history indicating that this was part of the statutory purpose. Indeed, at the same time Congress enacted § 402(a)(23) it included another section designed to induce States to reduce the number of individuals eligible for the AFDC program.12 Thus, what little legislative history there is on the point, see Rosado v. Wyman, 397 U.S., at 409—412, 90 S.Ct., at 1216—1218, tends to undercut appellants' theory. See Lampton v. Bonin, 304 F.Supp. 1384, 1391 1392 (E.D.La.1969) (Cassibry, J., dissenting). See generally Note, 58 Geo.L.J. 591 (1970).
22
Appellants also argue that the Texas system should be held invalid because the alternative computation method results in greater work incentives for welfare recipients.13 The history and purpose of the Social Security Act do indicate Congress' desire to help those on welfare become self-sustaining. Indeed, Congress has specifically mandated certain work incentives in § 402(a) (8). There is no dispute here, however, about Texas' compliance with these very detailed provisions for work incentives. Neither their inclusion in the Act nor the language used by Congress in other sections of the Act supports the inference that Congress mandated the States to change their income-computation procedures in other, completely unmentioned areas.
23
Nor are appellants aided by their reference to Social Security Act § 402(a) (10), 42 U.S.C. § 602(a)(10), which provides that AFDC benefits must 'be furnished with reasonable promptness to all eligible individuals.' That section was enacted at a time when persons whom the State had determined to be eligible for the payment of benefits were placed on waiting lists, because of the shortage of state funds. The statute was intended to prevent the States from denying benefits even temporarily, to a person who has been found fully qualified for aid. See H.R.Rep.No.1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong.Rec. 13934 (remarks of Rep. Forand). Section 402(a)(10) also prohibits a State from creating certain exceptions to standards specifically enunciated in the federal Act. See, e.g., Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971). It does not, however, enact by implication a generalized federal criterion to which States must adhere in their computation of standards of need, income, and benefits.14 Such an interpretation would be an intrusion into an area in which Congress has given the States broad discretion, and we cannot accept appellants' invitation to change this longstanding statutory scheme simply for policy consideration reasons of which we are not the arbiter.
III
24
We turn, then, to appellants' claim that the Texas system of percentage reductions violates the Fourteenth Amendment. Appellants believe that once the State has computed a standard of need for each recipient, it is arbitrary and discriminatory to provide only 75% of that standard to AFDC recipients, while paying 100% of recognized need to the aged, and 95% to the disabled and the blind. They argue that if the State adopts a percentage-reduction system, it must apply the same percentage to each of its welfare programs.
25
This claim was properly rejected by the court below. It is clear from the statutory framework that, although the four categories of public assistance found in the Social Security Act have certain common elements, the States were intended by Congress to keep their AFDC plans separate from plans under the other titles of the Act.15 A State is free to participate in one, several, or all of the categorical assistance programs, as it chooses. It is true that each of the programs is intended to assist the needy, but it does not follow that there is only one constitutionally permissible way for the State to approach this important goal.
26
This Court emphasized only recently, in Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), that in 'the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.' A legislature may address a problem 'one step at a time,' or even 'select one phase of one field and apply a remedy there, neglecting the others.' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket. The very complexity of the problems suggests that there will be more than one constitutionally permissible method of solving them.
27
The standard of judicial review is not altered because of appellants' unproved allegations of racial discrimination. The three-judge court found that the 'payment by Texas of a lesser percentage of unmet needs to the recipients of the AFDC than to the recipients of other welfare programs is not the result of racial or ethnic prejudice and is not violative of the federal Civil Rights Act or the Equal Protection Clause of the 14th Amendment.' The District Court obviously gave careful consideration to this issue, and we are cited by its opinion to a number of subsidiary facts to support its principal finding quoted above. There has never been a reduction in the amount of money appropriated by the legislature to the AFDC program, and between 1943 and the date of the opinion below there had been five increases in the amount of money appropriated by the legislature for the program, two of them having occurred since 1959.16 The overall percentage increase in appropriation for the programs between 1943 and the time of the District Court's hearing in this case was 410% for AFDC, as opposed to 211% for OAA and 200% for AB. The court further concluded:
28
'The depositions of Welfare officials conclusively establish that the defendants did not know the racial make-up of the various welfare assistance categories prior to or at the time when the orders here under attack were issued.'
29
Appellants in their brief in effect abandon any effort to show that these findings of fact were clearly erroneous, and we hold they were not.
30
Appellants are thus left with their naked statistical argument: that there is a larger percentage of Negroes and Mexican-Americans in AFDC than in the other programs,17 and that the AFDC is funded at 75% whereas the other programs are funded at 95% and 100% of recognized need. As the statistics cited in the footnote demonstrate, the number of minority members in all categories is substantial. The basic outlines of eligibility for the various categorical grants are established by Congress, not by the States; given the heterogeneity of the Nation's population, it would be only an infrequent coincidence that the racial composition of each grant class was identical to that of the others. The acceptance of appellants' constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be. Few legislative efforts to deal with the difficult problems posed by current welfare programs could survive such scrutiny, and we do not find it required by the Fourteenth Amendment.18
31
Applying the traditional standard of review under that amendment, we cannot say that Texas' decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it.19
32
Similarly, we cannot accept the argument in Mr. Justice MARSHALL'S dissent that the Social Security Act itself requires equal percentages for each categorical assistance program. The dissent concedes that a State might simply refuse to participate in the AFDC program, while continuing to receive federal money for the other categorical programs. See post, at 577. Nevertheless, it is argued that Congress intended to prohibit any middle ground—once the State does participate in a program it must do so on the same basis as it participates in every other program. Such an all-or-nothing policy judgment may well be defensible, and the dissenters may be correct that nothing in the statute expressly rejects it. But neither does anything in the statute approve or require it.20
33
In conclusion, we re-emphasize what the Court said in Dandridge v. Williams, 397 U.S., at 487, 90 S.Ct., at 1162—1163:
34
'We do not decide today that the (state law) is wise, that it best fulfills the relevant social and economic objectives that (the State) might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. . . . (T)he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.'
35
Affirmed.
36
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
37
I would read the Act more generously than does the Court. It is stipulated that 87% of those receiving AFDC aid are blacks or Chicanos. I would therefore read the Act against the background of rank discrimination against the blacks and the Chicanos and in light of the fact that Chicanos in Texas fare even more poorly than the blacks. See L. Grebler, J. Moore, & R. Guzman, The Mexican-American People, pts. 2 and 3 (1970); J. Burma, Mexican-Americans in the United States 143—199 (1970); Schwartz, State Discrimination Against Mexican Aliens, 38 Geo.Wash.L.Rev.1091 (1970); U.S. Commission on Civil Rights, The Mexican American (1968); U.S. Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest (1970). In Rosado v. Wyman, 397 U.S. 397, 413, 90 S.Ct. 1207, 1218, 25 L.Ed.2d 442, we said that in administering such a program a State 'may not obscure the actual standard of need.' Texas does precisely that by manipulating a mathematical formula.
38
In Rosado, we described how some States establish upper limits or maximums of aid, while others, like Texas, 'curtail the payments of benefits by a system of 'ratable reductions' whereby all recipients will receive a fixed percentage of the standard of need.' Id., at 409, 90 S.Ct., at 1216. Then in footnote 13 we described what that meant: 'A 'ratable reduction' represents a fixed percentage of the standard of need that will be paid to all recipients. In the event that there is some income that is first deducted, the ratable reduction is applied to the amount by which the individual or family income falls short of need.' Id., at 409 n. 13, 90 S.Ct., at 1216 (emphasis added).
39
If Texas first deducted outside income and then made its ratable reduction, the welfare recipient would receive a somewhat more generous payment, as the opinion of the Court illustrates in footnote 6 of its opinion. Not only does the Texas system avoid this generous approach, but it also impermissibly constricts the standard of need in conflict with Rosado, Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, and Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448. Under Texas' method of computation, a family—otherwise eligible for AFDC benefits but with nonexempt income greater than the level of benefits and less than the standard of need—is denied both AFDC cash benefits and other noncash benefits such as medicaid.1 It seems inconceivable that Congress could have intended that noncash benefits be denied those with incomes less than the standard of need solely because that income was earned rather than from categorical assistance. Yet this is precisely the result sanctioned by the Court today because eligibility for these programs is tied to the receipt of cash benefits.2
40
One of the stated purposes of the AFDC program is 'to help such parents or relatives (of needy dependent children) to attain or retain capability for the maximum self-support and personal independence.' 42 U.S.C. § 601 (emphasis added). The Senate Finance Committee has stated, 'A key element in any program for work and training for assistance recipients is an incentive for people to take employment.' S.Rep.No.744, 90th Cong., 1st Sess., 157 (1967), U.S.Code Cong. & Admin.News 1967, p. 2994 (emphasis added). The majority acknowledges that '(t)he history and purpose of the Social Security Act . . . indicate Congress' desire to help those on welfare become self-sustaining.' Ante, at 544. But it nonetheless ignores the explicit congressional policy in favor of work incentives and upholds a system which provides penalties and disincentives for those who seek employment.3
41
The California Supreme Court in Villa v. Hall, 6 Cal.3d 227, 98 Cal.Rptr. 460, 490 P.2d 1148 struck down the system this Court approves today, where California used a statutory maximum of payments rather than a ratable reduction. The California Supreme Court quite properly said that what the State was attempting was inconsistent with Rosado. Moreover, it had an additional reason:
42
'The conclusion that the Social Security Act requires outside income to be subtracted from standards of need rather than from statutory maximums or ratable reductions is also founded on a strong public policy of encouraging welfare recipients to become constantly more self-supporting. Yet deducting income from statutory maximums makes gainful employment significantly less attractive to the recipient. This follows because all nonexempt income will be offset directly against the amount of the grant and not against the standard of need to determine actual need; for every nonexempt dollar earned, the amount of aid will therefore be decreased one dollar. Since the grant is always less than the standard of need, in many instances the system adopted by the Welfare Reform Act will result in an individual's need not being met even after adding both exempt and nonexempt income to the AFDC payment. Such recipients will be forced to exist below the bare minimum necessary for adequate care, even though they have commenced, by obtaining employment, to break free from the debilitating 'welfare syndrome.' The practice thus conflicts with the stated federal policy to provide incentives to obtain and maintain an employment status.' Id., at 235—236, 98 Cal.Rptr., at 465—466, 490 P.2d, at 1153—1154.
43
Moreover, Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448, calls for a reversal in the present case. It is conceded that plaintiff Maria T. Davilla and 2,470 other families are denied aid in Texas by reason of its new formula, see 304 F.Supp. 1332, at 1343, despite the fact that their income is below the standard of need and that of those receiving AFDC aid only 75% of their needs is met.4
44
When this action was instituted, Texas' AFDC percentage level of benefits was only 50% of the standard of need. During the course of this litigation, Texas increased the AFDC level of benefits to 75% of need.
45
Under § 402(a)(10) of the Social Security Act (which governs AFDC) 'aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.' 42 U.S.C. § 602(a)(10). In Townsend children 18 through 20 years of age who attended high school or vocational training were eligible for AFDC benefits but such children in college were not eligible. We held that '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.'5 404 U.S., at 286, 92 S.Ct., at 505.
46
What Texas does here is to exclude large numbers of AFDC beneficiaries by application of a state eligibility test that is narrower than the one we approved in Rosado. While a State has some discretion in its use of federal funds, it may not manipulate by its own formula groups of 'needy' claimants. The decision to participate or not in the federal program is left to the States. Townsend v. Swank, supra, at 290—291, 92 S.Ct., at 507—508. When, as here, federal and state funds are in short supply, the problem is not to lop off some categories of those in 'need' but to design a way of managing the system of 'need' so as not to raise equal protection questions.6 Id., at 291, 92 S.Ct., at 508.
47
Section 402(a)(10) of the Social Security Act provides that AFDC shall be furnished with reasonable promptness to all eligible individuals. The House Report in commenting on it said:
48
'Shortage of funds in aid to dependent children has sometimes, as in old-age assistance, resulted in a decision not to take more applications or to keep eligible families on waiting lists until enough recipients could be removed from the assistance rolls to make a place for them. . . . (T)his difference in treatment accorded to eligible people results in undue hardship on needy persons and is inappropriate in a program financed from Federal funds.' H.R.Rep.No.1300, 81st Cong., 1st Sess., 48 (1949).
49
As the Court said in Dandridge v. Williams, 397 U.S., at 481, 90 S.Ct., at 1159, 'So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated.' It is violated here because nearly 2,500 families that satisfy the requirements of 'need' are denied any relief.7
50
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, and with whom Mr. Justice STEWART joins as to Part I only, dissenting.
51
Appellants, recipients of Aid to Families With Dependent Children (AFDC) in Texas, brought this action to challenge two distinct aspects of the Texas AFDC program. First, appellants challenge the manner in which Texas arrives at the amount it will pay to persons who are needy. Second, they urge that Texas acts illegally in providing more money for persons receiving aid under other social welfare legislation than for persons receiving AFDC aid. The Court rejects both claims. I dissent.
52
Before proceeding to explain why I disagree with the Court, I would like to illustrate what the disputes in this case are all about. If a State is unable or unwilling to establish a level of AFDC payments to meet all the needs of all recipients, federal law permits the State to use a percentage-reduction factor as a method of reducing payments in a somewhat equitable manner. Texas has adopted a system in which the percentage-reduction factor is applied against the standard of need before outside income is deducted. Appellants contend that federal law requires the State to deduct outside income before the percentage-reduction factor is applied. While describing the differences between the two alternatives is a Herculean task, the figures themselves are not difficult to comprehend. Footnote 6 of the Court's opinion, for example, demonstrates that the Texas system provides less aid to a family with outside income than the alternative system. It is also immediately obvious that under the Texas system, as soon as the family's income reaches $150, it no longer receives anything from the State, whereas under the alternative, a family earning the same $150 would continue to receive some state funds. Hence, the Texas method of computation contracts the class of families eligible to receive state aid. Appellants contend that the characteristics of the Texas system are inconsistent with federal legislation and that only the alternative system comports with the intent of Congress. I agree.
53
Appellants also claim that the percentage-reduction factor employed by Texas is illegal, irrespective of the method of computing payments, because it is lower than the factor used in other social welfare programs that have participants with identical standards of need. I also agree with appellants on this point, but for slightly different reasons from those they have urged.
54
* A. In considering the question whether Texas' method of computing eligibility for AFDC payments comports with the federal statute, 42 U.S.C. § 601 et seq., it is important to keep in mind the words of Mr. Justice Cardozo: 'When (federal) money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states.' Helvering v. Davis, 301 U.S. 619, 645, 57 S.Ct. 904, 910, 81 L.Ed. 1307 (1937). Mr. Justice Harlan reiterated this point in Rosado v. Wyman, 397 U.S. 397, 422—423, 90 S.Ct. 1207, 1222—1223, 25 L.Ed.2d 442 (1970), when he stated that irrespective of the policies that a State might wish to pursue by utilizing AFDC money in one way or another, the ultimate question to be answered in each case is whether the action of the State comports with the requirements of federal law.
55
The Court concludes in the instant case that there is no general congressional policy violated by Texas' choice between the alternative methods of applying a percentage-reduction factor to its determined standard of need, and also that no specific statutory provision prohibits Texas from choosing one alternative rather than the other. In concluding that the legislative history is inconclusive and that 'what little legislative history there is on the point, . . . tends to undercut appellants' theory,' the Court has, in my opinion, taken only a superficial look into the history of the statute and has ignored the intent of Congress in various sections of the AFDC legislation as interpreted by this Court in prior cases.
56
B. I begin by considering the impact of § 402(a)(23) of the Social Security Act of 1935, as amended, 81 Stat. 898, 42 U.S.C. § 602(a)(23), on appellants' argument. That section provides that
57
'(a) A State plan for aid and services to needy families with children must
58
'(23) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.'
59
Consideration of this section must, of course, begin with Rosado v. Wyman, supra, where we examined the derivation of this section in great detail.
60
The relevant facts in Rosado are concisely stated in 397 U.S., at 416, 90 S.Ct., at 1220. New York State had changed its AFDC program so that it no longer determined need on an individualized basis, but instead substituted a system fixing maximum family allowances based on the number of individuals per family. The result was a drastic reduction in overall payments. New York State welfare recipients brought the suit in Rosado, claiming that by changing its AFDC system from an individualized-grant program to a maximum-grant program, New York had violated § 402(a)(23).
61
Despite our recognition that '(t)he background of § 402(a)(23) reveals little except that we have before us a child born of the silent union of legislative compromise,' 397 U.S., at 412, 90 S.Ct., at 1218, we determined to discover what Congress had in mind in adding the section to the pre-existing AFDC legislation. We concluded that two general purposes could be ascribed to the section:
62
'First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis.' 397 U.S., at 412—413, 90 S.Ct., at 1218.
63
These conclusions led us to reject the holding of the District Court, 304 F.Supp. 1354, 1377, that Congress intended to prevent any reduction whatever in AFDC payments, and to reject the argument of the welfare recipients that if payments could be reduced § 402(a)(23) would be meaningless. We decided that 'a State may, after recomputing its standard of need, pare down payments to accommodate budgetary realities by reducing the percent of benefits paid or switching to a percent reduction system, but it may not obscure the actual standard of need.' 397 U.S., at 413, 90 S.Ct., at 1218 (emphasis in original). Far from emasculating the statute, our reading recognized that the statute had at least three specific salutary effects, and that these were the effects that Congress intended in enacting the legislation:
64
'It has the effect of requiring the States to recognize and accept the responsibility for those additional individuals whose income falls short of the standard of need as computed in light of economic realities and to place them among those eligible for the care and training provisions. Secondly, while it leaves the States free to effect downward adjustments in the level of benefits paid, it accomplishes within that framework the goal, however modest, of forcing a State to accept the political consequence of such a cutback and bringing to light the true extent to which actual assistance falls short of the minimum acceptable. Lastly, by imposing on those States that desire to maintain 'maximums' the requirement of an appropriate adjustment, Congress has introduced an incentive to abandon a flat 'maximum' system, thereby encouraging those States desirous of containing their welfare budget to shift to a percentage system that will more equitably apportion those funds in fact allocated for welfare and also more accurately reflect the real measure of public assistance being given.' Id., at 413—414, 90 S.Ct., at 1218.
65
Thus, it is clear that we based our decision in Rosado, a decision that interpreted § 402(a)(23) to permit a decrease in actual AFDC payments, largely on the conclusion that Congress wanted, not to bar decreases, but to accomplish other objectives. The fact is that the Court today undermines each of those objectives and destroys the premise on Which Rosado was decided.
66
One specific congressional goal we saw in § 402(a)(23) was that '(r) ecalculation of need may serve to render eligible for benefits families which may appear under unadjusted standards marginally to have attained self-sufficiency, but which in fact are unable to subsist at the present cost of living.' Memorandum for the United States as Amicus Curiae in Rosado v. Wyman, No. 540, O.T.1969, p. 8. In other words, we read the section as expressing Congress' willingness to permit reductions in actual payments in return for the addition of more families to the rolls of AFDC recipients. Accord, Lampton v. Bonin, 304 F.Supp. 1384 (ED La.1969), vacated and remanded for reconsideration in light of Rosado, 397 U.S. 663, 90 S.Ct. 1408, 25 L.Ed.2d 644 (1970); Alvarado v. Schmidt, 317 F.Supp. 1027 (WD Wis.1970). As I have pointed out above, the Texas sysem limits the number of AFDC recipients and eliminates marginal cases. This is directly contrary to the intent of Congress as we saw it in Rosado.
67
A second legislative aim that we saw in the section was to force States to realize the political consequences of reducing welfare payments. It must be clear that the Texas system of administering AFDC payments effectively undermines this aim by enabling the State to maintain a constant percentage reduction factor so that the system on its face appears to contain no reductions in payments. Welfare reductions are surreptitiously accomplished by eliminating those persons who have marginal income from eligibility for AFDC payments. While the congressional intent may not be totally emasculated by this system, it is certainly not well served.
68
The third and final purpose that we found that Congress had specifically in mind in enacting § 402(a)(23) was to provide an incentive to States to abandon a flat 'maximum' system. Even though Texas does not now use such a system, the Court's approval of the system that Texas does use will effectively remove the incentive from the statute. A State that uses a flat maximum system was required by § 402(a)(23) to adjust the maximums upward to reflect a rise in the cost of living. Since a State that uses a percentage-reduction system may avoid the strains cost-of-living adjustments place on the budget simply by lowering the percentage that it chooses to pay, the statute encouraged abandonment of flat maximums in favor of the more equitable percentage reductions. The Court undermines the incentive by offering States a way to circumvent the cost-of-living adjustments under the flat maximum system. In order to maintain the maximums without increasing expenditures, States could, under the Court's opinion, begin to use the maximum to determine AFDC eligibility rather than the standard of need. The result of this approach would be to reduce the number of persons eligible for assistance and to reduce the grants of anyone with any outside income. Rather than serve as an incentive to States to change to a percentage-reduction system, as Congress intended, § 402(a)(23) may now be a powerful incentive to States to maintain or revert to maximum grants.
69
The manner in which the incentive that Rosado saw in § 402(a)(23) is stifled can be illustrated by another look at the family having an income of $100 and a need of $200. Footnote 6 of the Court's opinion demonstrates that under the Texas percentage-reduction system, even if the family had no income, the maximum amount of aid that the family could obtain would be $150. Let us assume that Texas maintained a maximum grant system and that prior to the enactment of § 402(a)(23), the maximum grant for a family with $200 need was $100. We assumed in Rosado that the following computation would be made.
70
Need......................... $200
Income....................... $100
---------
Unmet Need................... $100
Maximum Grant................ $100
---------
Total Family Funds........... $200
71
Section 402(a)(23) required an increase in the standard of need and the level of maximum grants to reflect the rise in the cost of living. Assuming that a 20% increase was mandated by the rise in living costs, it is obvious that if the number of families remained stable and if income were stable, the costs of AFDC to the State would increase by 20%. There was an incentive to change to a percentage-reduction system to avoid this. Until recently, no one thought that the State could change to the following system in order to reflect the rise in the cost of living:
72
New Need.................. $240
---------
New Maximum Grant......... $120
Family Income............. $100
---------
State Aid..................$ 20
73
To state it more simply, the maximum grant is similar to, and designed to serve the same purposes as, the percentage reduction factor. If the percentage-reduction factor can be applied to need before income is subtracted, it is impossible to see why income could not be set off against maximum grants. True, Texas did not choose this alternative, but it is available under today's decision. A State can, by changing the manner in which it sets off income, absorb an increase in maximums and end up paying less. Where is the incentive now to adopt percentage-reduction systems?
74
This illustration is much more than mere speculation as to what might happen under today's decision. The illustration represents what at least one State—California—has already done, or tried to do. Only very recently, the California Supreme Court struck down the State's AFDC scheme for noncompliance with the federal statute. Villa v. Hall, 6 Cal.3d 227, 98 Cal.Rptr. 460, 490 P.2d 1148 (1971).
75
The California Supreme Court, having been referred to the District Court opinion in the instant case as support for California's system, took the position that neither the California nor the Texas system could stand in light of Rosado. I agree. Indeed, the United States in its Memorandum as Amicus Curiae in this case (p. 5) concedes that if Rosado represents 'a binding construction of the Act, appellants are thus entitled to prevail.' The Government proceeds to argue that the question presented here was not before us in Rosado. Ibid. I must agree with appellants that the Government's argument is disingenuous, at best. See Brief for Appellants 80. The question of what § 402(a)(23) means was most certainly before us in Rosado. It was, in fact, all that was before us. In that case we rejected the broad construction that the District Court had given the section, but we endeavored as best we could to extract some meaning from its muddled history. The United States seeks here to have us do what we explicitly said we would not do in Rosado, i.e., interpret the section in such a way that it is nothing more than a 'meaningless exercise in 'bookkeeping." 397 U.S., at 413, 90 S.Ct., at 1218. If we were not making a 'binding construction' of the statute in Rosado, it is impossible for me to ascertain what we were doing. Hence, I agree with the Government that appellants are entitled to prevail.
76
Surprisingly enough, the Court makes even shorter shrift of Rosado than does the Government. In a footnote, the Court states that widened eligibility and the other effects that Rosado said were intended by Congress when it enacted § 402(a)(23) were merely possible effects of the statute, not necessary ones. I submit that this cavalier treatment of Rosado is completely unwarranted. Rosado was not an easy case. The absence of a clear legislative history forced us to examine the 'muted strains' of the congressional voice and to struggle to 'discern the theme in the cacophony of political understanding.' 397 U.S., at 412, 90 S.Ct., at 1218. Unlike the Court in this case, which simply looks to see if the legislative history is distorted enough to be ignored, the Court in Rosado carefully scrutinized every aspect of the history in order to perceive the congressional intent. That was a difficult task, but not an impossible one. The balance that we saw Congress striking in reducing payments while increasing eligibility has already been described. We relied on this balance to decide Rosado. We were not merely speculating as to the intent of Congress; we were holding that there was a specific intent that was binding in that case. That decision, in my view, is also binding here. This is my first disagreement with the majority.
77
C. The second provision in the AFDC legislation that I believe is relevant is § 402(a)(8) of the Social Security Act, as amended, 81 Stat. 881, 42 U.S.C. § 602(a)(8), which was added to the AFDC statute along with § 402(a)(23) in 1968. The purpose of this section is to encourage AFDC recipients to seek private employment and to end their need for public assistance. H.R.Rep.No.544, 90th Cong., 1st Sess. (1967); S.Rep.No.744, 90th Cong., 1st Sess. (1967); U.S.Code Cong. & Admin.News, p. 2834. To accomplish this objective the statute provides that all of the earned income of each dependent child receiving AFDC aid who is a full- or part-time student, and a portion of the earned income of certain other relatives, will be disregarded in the State's determination of need. We only recently had occasion to consider the effect of this provision in Engelman v. Amos, 404 U.S. 23, 92 S.Ct. 181, 30 L.Ed.2d 143 (1971).
78
In Engelman we considered a New Jersey scheme for administering AFDC funds that established income ceilings for families. When the families' incomes exceeded the ceilings they no longer were eligible for AFDC aid. The District Court analogized Engelman to Rosado v. Wyman, supra, and determined that the State's system was inconsistent with the federal Act. 333 F.Supp. 1109. The District Court recognized that the 1968 amendments to the AFDC legislation were designed to increase eligibility for AFDC aid, not to decrease it. Because the District Court viewed § 402(a)(8) as requiring a State to disregard certain kinds of in come in determining eligibility for aid, the District Court struck down the New Jersey scheme, in effect holding that New Jersey could not evade the income disregard by imposing an income ceiling not contemplated by Congress. Families that exceeded the State's income ceilings were still entitled to AFDC aid so long as their income, excluding income covered by § 402(a)(8), did not exceed the State's standard of need. The effect of the decision was to increase the class of persons eligible for AFDC aid. We affirmed the decision without even hearing argument.
79
Both 'the New Jersey and the Texas provisions . . . appear to have been animated by the same desire . . ..' Memorandum for the United States as Amicus Curiae 11. Both seek to limit the number of AFDC recipients, and both violate the federal statute. Indeed, the very purpose of § 402(a)(8)—to encourage people to work by permitting them to continue to draw AFDC funds—shows that Congress wanted as many needy people as possible to be part of the program.
80
The Texas scheme certainly does not violate § 402(a)(8) in the way that the New Jersey scheme did, for as far as we know, Texas excludes income as required by the statute when computing eligibility. But, as the opinion of the Court indicates, the Texas system has a fault not found in New Jersey: i.e., Texas discourages recipients from earning outside income. This is why I believe that Texas violates the spirit of the federal statute.
81
It might be argued that Congress only sought to encourage certain AFDC recipients to earn income and only in a certain amount—the persons and amounts specified in § 402(a)(8). This argument might be persuasive but for one fact—Congress never had any idea that a State would attempt to employ a system such as that used by Texas. Nowhere in the legislative history is there any mention of such a system. See, e.g., House Committee on Ways and Means, Section-By-Section Analysis of H.R. 5710, 90th Cong., 1st Sess. (Comm. Print 1967). Congress was, in fact, informed by HEW that a different standard from that used by Texas was required. See Hearings on H.R. 12080 before the Senate Committee on Finance, 90th Cong., 1st Sess., pt. 1, pp. 255—265 (Testimony of Wilbur Cohen). Until very recently, every indication by HEW was that the Texas system would be unlawful. In light of the state of ignorance in which Congress found itself, it is not surprising that there is no specific rejection of the Texas system in the 1968 amendments. But § 402(a)(8) and everything in the legislative history certainly indicate that Congress had a strong desire to encourage AFDC recipients to work. Because the Texas program is inconsistent with this desire, I believe it is illegal.
82
This is the second reason for my disagreement with the Court.
83
D. Another section of the statute that must be examined is § 402(a)(10) of the Social Security Act, 64 Stat. 550, as amended, 42 U.S.C. § 602(a)(10), which requires that a state AFDC plan shall
84
'provide . . . that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.'
85
The Court states that the primary purpose of this section was to outlaw the use of waiting lists as a means of minimizing a State's welfare expenditures. There is clearly support for this view, as the Court noted in Dandridge v. Williams, 397 U.S. 471, 481 n. 12, 90 S.Ct. 1153, 1159, 25 L.Ed.2d 491 (1970). Before the Court in Dandridge was the question whether maximum-grant limitations were inconsistent with the federal statute. The Court upheld the maximums, but said in the course of so doing: 'So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated.' Id., at 481, 90 S.Ct., at 1159. This is plainly dictum, but I believe that it is well-considered dictum that should be followed in this case.
86
It must be remembered that Dandridge and Rosado were decided on the same day. Thus, the Court assumed in Dandridge that the 1968 amendments to the AFDC legislation expanded the list of eligible recipients in the manner suggested in Rosado The Court was also aware in Dandridge that § 402(a)(7) of the Social Security Act, as amended, 53 Stat. 1379, 42 U.S.C. § 602(a)(7), had been part of the AFDC statute since 1939. That section provides that
87
'except as may be otherwise provided (in § 402(a)(8), discussed, supra) . . . the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children . . ..'
88
The Court assumed, therefore, that in offering aid a State would first set a standard of need and then examine the income levels of applicants for aid. Anyone whose income was less than the standard of need would be eligible for assistance, or so the Court assumed. Dandridge, of course, established that the aid that might be forthcoming did not have to equal need and that large families could get proportionately less aid than small families. Just as in Rosado, the Court in Dandridge viewed the intent of Congress to be to aid as many needy people as possible, rather than to offer as much aid as possible to a lesser number of people. In light of this, I believe that today's decision violates the spirit of Dandridge, as well as the holding of Rosado.
89
Moreover, in my view, § 402(a)(7) tells the States how to compute eligibility, and that section does not allow for the Texas scheme. Despite the position of the Government in this case, I find support for my reading of § 402(a)(7) in HEW's own regulations, expecially 45 CFR §§ 233.20(a)(2), 233.20(a)(3)(ii), which indicate to me that income is to be subtracted from the standard of need before any determination is made as to how much aid the State will give.
90
Because I believe the Texas system violates § 402(a)(7), it seems to me that eligible persons are being denied aid in violation of § 402(a)(10), which requires that aid be furnished to all eligible persons promptly. For me, this case is no different from King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968) (striking down substitute-father regulation) or Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) (striking down restriction on receipt of aid by college students). The State procedure denies eligible persons aid and, regardless of the State's purposes, the procedure cannot stand in conflict with the federal statute.
91
I disagree with the Court a third time.
92
E. The last portion of the federal statute that I believe should be considered is that portion dealing with the social services that are available to AFDC recipients. See, e.g., 42 U.S.C. §§ 602(a)(14), (15) (assistance in family planning and child-welfare services; assistance in entering the work force and reducing the incidence of births out of wedlock); 42 U.S.C. §§ 602(a)(19), 632 (employment training programs); 42 U.S.C. § 1396a(10) (medical assistance). Congress keyed all of these provisions to persons or families that were receiving aid. By limiting the number of such persons and families receiving aid, Texas has also limited the availability of these social services. At least one other court has concluded that
93
'. . . Congress's major concern was the provision of family counseling and rehabilitation services, work incentives, and family planning programs to reduce out-of-wedlock births, for all persons in the family, in order to promote self-support and child development and to strengthen family life. . . . By making those with marginal incomes eligible for AFDC by raising the standard of need, more persons would be eligible for such services, which Congress considered vital to cut down in the long run the numbers dependent on welfare.' (Citation omitted.) Lampton v. Bonin, 304 F.Supp., at 1389.
94
We suggested the same thing in Rosado, 397 U.S., at 413, 90 S.Ct., at 1218. While the Court recognizes that the Texas system deprives persons with an 'unmet need' of an opportunity to utilize these services (n. 10) and thus relegates these persons to perpetual dependence on welfare, the realization is apparently a source of no concern. But it was a source of tremendous concern to Congress. The value of medical assistance alone to an average Texas AFDC family is in the range of $50—$60 per month. Memorandum for the United States as Amicus Curiae 7 n. 5. Since needy families are rendered more needy by Texas' system, their ability to escape the confines of the welfare rolls is substantially impaired. At the same time, the goals of Congress as described in the preceding quotation are also impaired. There is no reason, nor any justification, for reading the statute this way.
95
Since I believe that Congress intended that as many needy persons as possible be permitted to avail themselves of the various services provided or improved in the 1968 amendments, I again disagree with the conclusions of the Court.
96
F. In concluding my analysis of this aspect of Texas' percentage-reduction system, I add one final note. Thus far I have confined myself to examining the specific provisions of the AFDC legislation. In attempting to focus on each section individually in order to determine its role in the statutory scheme, something of the general flavor of the overall legislation is undoubtedly lost. That flavor, it seems to me, is to assist needy families to maintain strong family bonds and to assist needy individuals to realize their potential as unique human beings by providing them with the basic necessities of life, along with incentives and training to encourage them to work to help themselves. The Texas system negates the salutary aspects of the legislation by deterring the needy from working, by depriving the needy of social services, and by excluding some needy from any AFDC aid whatsoever. There is no conceivable reason to permit Texas to subvert the aims of Congress in this way.
II
97
Appellants also challenge the percentage-reduction figure itself. It is agreed that Texas has established an identical standard of need for the four social welfare programs that it administers—Old Age Assistance (OAA), Aid to the Blind (AB), Aid for the Permenently and Totally Disabled (APTD), and AFDC. But Texas provides 100% of recognized need to the aged and 95% to the disabled and the blind, while it provides only 75% to AFDC recipients. It is this disparity to which appellants also object.
98
A. Appellants base their primary attack on the Fourteenth Amendment; they argue that the percentage distinctions between the other welfare programs and AFDC reflect a racially discriminatory motive on the part of Texas officials. Thus, they argue that there is a violation of the Equal Protection Clause. I believe that it is unnecessary to reach the constitutional issue that appellants raise, and, therefore, I offer no opinion on its ultimate merits. I do wish to make it clear, however, that I do not subscribe in any way to the manner in which the Court treats the issue.
99
If I were to face this question, I would certainly have more difficulty with it than either the District Court had or than this Court seems to have. The record contains numerous statements by state officials to the effect that AFDC is funded at a lower level than the other programs because it is not a politically popular program. There is also evidence of a stigma that seemingly attaches to AFDC recipients and no others. This Court noted in King v. Smith, 392 U.S., at 322, 88 S.Ct., at 2136, that AFDC recipients were often frowned upon by the community. The evidence also shows that 87% of the AFDC recipients in Texas are either Negro or Mexican-American. Yet, both the District Court and this Court have little difficulty in concluding that the fact that AFDC is politically unpopular and the fact that AFDC recipients are disfavored by the State and its citizens, have nothing whatsoever to do with the racial makeup of the program. This conclusion is neither so apparent, nor so correct in my view.
100
Moreover, because I find that each one of the State's reasons for treating AFDC differently from the other programs dissolves under close scrutiny, as is demonstrated, infra, I am not at all certain who should bear the burden of proof on the question of racial discrimination. Nor am I sure that the 'traditional' standard of review would govern the case as the Court holds. In Dandridge v. Williams, supra, on which the Court relies for the proposition that strict scrutiny of the State's action is not required, the Court never faced a question of possible racial discrimination. Percentages themselves are certainly not conclusive, but at some point a showing that state action has a devastating impact on the lives of minority racial groups must be relevant.
101
The Court reasons backwards to conclude that because appellants have not proved racial discrimination, a less strict standard of review is necessarily tolerated. In my view, the first question that must be asked is what is the standard of review and the second question is whether racial discrimination has been proved under the standard. It seems almost too plain for argument that the standard of review determines in large measure whether or not something has been proved. Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).
102
These are all complex problems, and I do not propose to resolve any of them here. It is sufficient for me to note that I believe that the constitutional issue raised by appellants need not be reached, and that in choosing to reach it, the Court has so greatly oversimplified the issue as to distort it.
103
B. Appellants also challenge the distinction between programs under Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d:
104
'No person in the United States shall, on the ground of race, color, or national origin, . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.'
105
Only last Term in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), we had occasion to strike down under Title VII of the 1964 Act, 42 U.S.C. § 2000e, employment practices that had a particularly harsh impact on one minority racial group and that could not be justified by business necessity. We indicated in that case that 'good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups.' Id., at 432, 91 S.Ct., at 854. We said, in fact, that 'Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.' Ibid. (emphasis in original). That decision even placed the burden on the employer 'of showing that any given requirement must have a manifest relationship to the employment in question.' Ibid.
106
There has been a paucity of litigation under Title VI, and I am not prepared at this point to say whether or not a similar analysis to that used in Griggs should be used in Title VI cases. This is a question of first impression in this Court, and I do not think we have to reach it in this case. I include this section only to make plain that I do not necessarily reject the argument made by appellants; I simply do not reach it.
107
C. This brings me to what I believe disposes of the question presented: the disparity between the various social welfare programs is not permissible under the federal statutory framework.
108
The four social welfare programs offered by Texas are funded in part by the Federal Government. Each program is governed by a separate statute: OAA, 42 U.S.C. § 301 et seq.; AFDC, 42 U.S.C. § 601 et seq.; AB, 42 U.S.C. § 1201 et seq.; APTD, 42 U.S.C. § 1351 et seq. No State is compelled to participate in any program, and any State that wants to participate can choose to do so in one, several, or all of the programs.
109
There is no doubt that States are free to choose whether or not to participate in these programs, and it is also clear that each State has considerable freedom to allocate what it wants to one or more programs by establishing different standards of need to compute eligibility for aid. King v. Smith, 392 U.S., at 318 319, 88 S.Ct., at 2133—2134. It is also true, however, that the basic aims of the four programs are identical. Indeed, when Congress first enacted the programs in 1935, it viewed them all as necessary to provide aid to families unable to obtain income from private employment. The beneficiaries of the various programs shared the basic characteristics of need and dependence. H.R.Rep.No. 615, 74th Cong., 1st Sess., 3. While the programs as they now exist go well beyond merely furnishing financial assistance as they did originally they still maintain similar goals.
110
Moreover, all four programs were simultaneously amended in 1956 to provide for social and rehabilitative services to enable all needy individuals to attain the maximum economic and personal independence of which they were capable. Each program now requires a State to describe, in its plan for each social welfare program it administers, the services it offers to accomplish this objective. See 42 U.S.C. §§ 302(a)(11); 602(a)(14); 1202(a)(12); 1352(a)(11).
111
Congress has given the States authority to set different standards of need for different programs. But where, as here, the State concludes that the standard of need is the same for recipients of aid under the four distinct statutes, it is my opinion that Congress required that the State treat all recipients equally with respect to actual aid. In other words, as I read the federal statutes, they are designed to accomplish the same objectives, albeit for persons disadvantaged by different circumstances.
112
States clearly have the freedom to make a bona fide determination that blind persons have a greater need than dependent children, that adults have a higher standard of need than children, that the aged have more need than the blind, and so forth.
113
But, in this case, Texas made an independent determination of need, and it determined that the need of all recipients was equal. In this circumstance, I find nothing in the federal statute to enable a State to favor one group of recipients by satisfying more of its need, while at the same time denying an equally great need of another group. The purposes and objectives of the statutes are the same, those eligible for aid are suffering equally, and Congress intended that once a State chose to participate in the programs similarly situated persons would be treated similarly.
114
Everything in this record indicates that the recipients of the various forms of aid are identically situated. Although the District Court accepted the State's contentions that there are differences between AFDC children and other recipients which warranted different treatment under the federal statutes, I find each of the reasons offered totally unpersuasive.
115
First, Texas argues that AFDC children can be employed, whereas recipients of other benefits cannot be. Assuming arguendo that this is true, it is an argument that falls of its own weight. Whatever income the children earn is subtracted from need, or it is excluded from consideration under § 402(a)(8) to encourage self-help. Thus, income is already reflected in the computation of payments, or it is excluded in order that a specific legislative goal may be furthered. Thus, income is irrelevant in any explanation of the differences between the percentage reductions applied to the various programs. It should also be noted that a recipient's income is also taken into consideration in programs other than AFDC. See 42 U.S.C. §§ 302(a)(10)(A); 1202(a)(8); 1352(a) (8).
116
Second, the State maintains that AFDC families can secure help from legally responsible relatives more easily than recipients under other programs. Assuming again for purposes of discussion that this is true, it should be plain that any support from any relatives is subtracted from the State's grant. Moreover, appellants properly point out that recipients of aid in non-AFDC programs often have a source of aid unavailable to AFDC recipients—the federal old age insurance, 42 U.S.C. § 201 et seq. Thus, there is no substance to this argument.
117
Third, Texas points to the likelihood of future employment for AFDC recipients, a likelihood that it says is non-existent for older persons and others who receive aid. Federal law provides that a State may only consider income that is currently available in allocating funds. 45 CFR § 233.20(a)(3) (ii). This contention is therefore irrelevant.
118
The State makes only two other arguments. One has already been rejected. Texas urges that the purposes of the federal programs differ, but the history belies this contention. The other is that the numbers of AFDC recipients is rising and this program should therefore bear the burden of monetary limitations. The obvious problem with this argument is that one fundamental purpose of AFDC aid is to enable people to escape the welfare rolls. But, under the Texas system, the aid is presently insufficient, people are unable to escape from dependency, and the rolls become larger. Had Texas not funded AFDC at a lower level than other programs, it is possible that the number of recipients would not have grown so large. The State's argument is a self-fulfilling prophecy on which it cannot rely to penalize AFDC recipients. Furthermore, there is nothing in the federal legislation to indicate that aid is to be reduced in a program merely because the number of beneficiaries of that program increases at a more rapid rate than in other programs. On the contrary, Congress has indicated that increased eligibility for AFDC is desirable, see 42 U.S.C. § 602(a)(23); Rosado v. Wyman, supra. It would be extreme irony if AFDC recipients were penalized by a State because their numbers grew in accordance with congressional intent.
119
The conclusion that I draw from the statutes is that Congress intended equal treatment for all persons similarly situated. Congress left to the States the determination of who was similarly situated by permitting States to determine levels of need. Since Texas has decided that AFDC recipients have precisely the same need as recipients of other social welfare benefits, it is my opinion that the federal legislation requires equal treatment for all.
120
This conclusion finds support in the legislative history of the 1950 amendments to the social welfare legislation. In those amendments Congress made clear its intent to put AFDC recipients on a par with recipients of other welfare aid.
121
'Today more than 1.1 million children under 18 years of age are receiving aid to dependent children through the State-Federal program because one or both of their parents are dead, absent from the home, or incapacitated. These children, regardless of the State in which they now live, will someday find their place in the productive activities of the Nation and, should the necessity arise, will take part in defending our Nation. Many of these children will be seriously handicapped as adults because in childhood they are not receiving proper and sufficient food, clothing, medical attention, and the other bare necessities of life. The national interest requires that the Federal Government provide for dependent children at least on a par with its contributions toward the support of the needy aged and blind.' S.Doc.No. 208, 80th Cong., 2d Sess., 105 (emphasis added).
122
Congress recognized that 'families with dependent children need as much in assistance payments as do aged and blind persons.' Id., at 106. It concluded that sound national policy was 'for the States to provide payments for aid to dependent children comparable to those for the needy aged and blind.' Ibid. It is evident that Congress rejected the notion that where AFDC recipients had the same need as other welfare beneficiaries, they should get less money. As Senator Benton said on the floor of the Senate:
123
'There seems no reasonable basis for such inequitable treatment of mothers and of children by the Federal Government.
124
'All of us with children know that it costs as much if not more to rear children in health, decency, and self-respect than to maintain an adult. It is surely no less important to make this investment in our future citizens than it is to provide decently for those who have retired. . . .' 96 Cong.Rec. 8813—8814.
125
In the 1950 amendments, Congress increased the federal funding of AFDC so that its beneficiaries would receive treatment equivalent to that received by beneficiaries of the other federal-state social welfare legislation. Where the needs of the people receiving aid under the various programs differed, Congress recognized that the amount of aid forth-coming should also differ. But where need was determined by the State to be equal for all recipients, Congress intended that all should receive an equal amount of aid. S.Doc. No. 208, 80th Cong., 2d Sess., 108. There is absolutely no indication in any subsequent congressional action that the intent of Congress has changed.
126
Accordingly, I would reverse the judgment of the District Court and remand the case for formulation of relief consistent with this opinion.
1
Originally, the Texas Constitution prohibited all welfare programs. Section 51 of Art. III of the Constitution, Vernon's Ann.St., provided that the legislature 'shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever . . ..' However, beginning in 1933, exceptions to this rule were added to the state constitution in § 51—a, which now allows participation in the federal welfare programs, but limits state financing to the sum of $80,000,000. The legislature cannot exceed this welfare budget without a state constitutional amendment.
2
Old Age Assistance (OAA), 42 U.S.C. § 301 et seq.; Aid to Families with Dependent Children (AFDC), 42 U.S.C. § 601 et seq.; Aid to the Blind (AB), 42 U.S.C. § 1201 et seq.; Aid for the Permanently and Totally Disabled (APTD), 42 U.S.C. § 1351 et seq.
3
At the present time these factors are: OAA—100%; AB—95%; APTD—95%; and AFDC—75%. At the time this suit was instituted the AFDC percentage was 50%, but it was raised to 75% following a recent amendment of § 51—a. See n. 1, supra.
4
Nineteen of the 26 States that use a percentage-reduction system follow the Texas procedure of accounting for outside income. See Memorandum for the United States as Amicus Curiae 8, 15—16.
5
A certain portion of earned income must be exempted as a work incentive. See 42 U.S.C. § 602(a)(8).
6
Assuming two identical families, each with a standard of need of $200, and outside, nonexempt income of $100, the two systems would produce these results:
Texas System Alternative System
$ 200 (need) $ 200 (need)
X .75 (% reduction factor) —100 (outside income)
150 (reduced need) $ 100 (unmet need)
—100 (outside income) X .75 (% reduction
factor)
$ 50 (benefits payable) $ 75 (benefits payable)
7
Assuming two families with identical standards of need, but only one with outside income, the alternative system leaves more money in the hands of the family with outside income:
Outside Income No Outside Income
$ 200 (need) $ 200 (need)
—100 (outside income) —0 (outside income)
$ 100 (unmet need) $ 200 (unmet need)
x .75 (% reduction factor) x .75 (% reduction factor)
$ 75 (benefits payable) $ 150 (benefits payable)
TOTAL INCOME (outside TOTAL INCOME (outside
income plus benefits income plus benefits
payable) =$175 payable) = $150
8
Under the Texas system, once the income rises above the reduced standard of need the individual no longer receives any cash assistance. He then would have a financial incentive, since his income would be rising above the maximum he could expect from the welfare system.
9
For a general review of the statutory scheme, see Rosado v. Wyman, 397 U.S. 397, 407—412, 90 S.Ct. 1207, 1215—1218, 25 L.Ed.2d 442 (1970).
10
Certain care-and-training provisions of the Social Security Act are available only to those who receive money payments under the categorical assistance programs. See 42 U.S.C. § 602(a)(14), (15); 42 U.S.C. §§ 602(a) (19), 632; 42 U.S.C. § 1396a(a)(10). Under the Texas computation procedures, those whose income exceeds their reduced standard of need receive no cash benefits and thus do not qualify for these subsidiary benefits, although they do have 'unmet need' qualifying them for aid under the alternative computation procedure.
11
The Court in Rosado recognized this as one of several effects attributable to § 402(a)(23). 397 U.S., at 413, 90 S.Ct., at 1218. See also id., at 409 n. 13, 90 S.Ct., at 1216. The Court did not, however, hold that each one of these effects was intended by Congress. In fact, the Rosado holding as to the 'two broad purposes' of Congress was stated above, and the Texas system is perfectly consistent with it. The Court mentioned widened eligibility simply as one of several possible effects that might follow from the statute as so construed.
12
Act of Jan. 2, 1968, Pub.L.No. 90—248, Tit. II, § 208, 81 Stat. 894, repealed, 83 Stat. 45.
13
See n. 7, supra.
14
Appellants' reliance on language from Dandridge v. Williams, 397 U.S. 471, 480—481, 90 S.Ct. 1153, 1159—1160, 25 L.Ed.2d 491 (1970), is misplaced. The Court there explicitly failed to reach the State's argument that the purpose of § 402(a)(10) was primarily to prevent the use of waiting lists. Id., at 481 n. 12, 90 S.Ct., at 1159.
15
Each categorical assistance program is embodied in a separate title of the Social Security Act, see n. 2, supra, and requires a state plan independent of the plans under the other titles. In 1962, however, Congress enacted 42 U.S.C. §§ 1381—1385, which for the first time enabled States to combine their plans, but only for the non-AFDC programs. Thus, while Congress has now enabled States to adopt a common plan for the other programs, it considered AFDC sufficiently different so as to require an independent plan.
16
Since the original opinion below, there has been an additional increase. Following a constitutional amendment, see n. 3, supra, the appropriation has risen from $6,150,000 to $23,100,000.
17
Percentage of Negroes Percentage of Number of
Program Year and Mexican-Americans White-Anglos Recipients
OAA 1969 39.8 60.2
1968 38.7 61.3 230,000
1967 37.0 63.0
APTD 1969 46.9 53.1
1968 45.6 54.4 4,213
1967 46.2 53.8
AB 1969 55.7 44.3
1968 54.9 45.1 14,043
AFDC 1969 87.0 13.0
1968 84.9 15.1 136,000
1967 86.0 14.0
18
In James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971), it was contended that a California referendum requirement violated the Fourteenth Amendment because it imposed a mandatory referendum in the case of an ordinance authorizing low income housing, while referenda with respect to other types of ordinances had to be initiated by the action of private individuals. The Court responded:
'But of course a lawmaking procedure that 'disadvantages' a particular group does not always deny equal protection. Under any such holding, presumably a State would not be able to require referendums on any subject unless referendums were required on all, because they would always disadvantage some group. And this Court would be required to analyze governmental structures to determine whether a gubernatorial veto provision or a filibuster rule is likely to 'disadvantage' any of the diverse and shifting groups that make up the American people.' Id., at 142, 91 S.Ct., at 1334.
19
Just as the State's actions here do not violate the Fourteenth Amendment, we conclude that they do not violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The Civil Rights Act prohibits discrimination in federally financed programs. We have, however, upheld the findings of nondiscriminatory purpose in the percentage reductions used by Texas, and have concluded that the variation in percentages is rationally related to the purposes of the separate welfare programs. The Court's decision in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), is therefore inapposite. In Griggs, the employment tests having racially discriminatory effects were found not to be job-related, and for that reason were impermissible under the specific language of Title VII of the Civil Rights Act. Since the Texas procedure challenged here is related to the purposes of the welfare programs, it is not proscribed by Title VI simply because of variances in the racial composition of the different categorical programs.
20
Mr. Justice MARSHALL's dissent cites the 1950 amendments to the Social Security Act as support for its novel statutory theory that States must provide equal aid levels in each welfare category. The 1950 amendments included 'a revised method of determining the Federal share of assistance costs,' 95 Cong.Rec. 13932, so that the Federal Government would pay a substantially equal percentage of matching funds to state plans in each of the categorical assistance programs. See S.Doc. No. 208, 80th Cong., 2d Sess., 101. But this revision of the grant-in-aid formula in § 403 of the Act was not accompanied by any corresponding amendment of § 402, the section of the Act dealing with congressional limitations on state AFDC programs. Indeed, proponents of the 1950 amendments explicitly recognized and endorsed the longstanding policy that the Federal Government sets only minimum AFDC standards, while leaving the States 'wide discretion both in determining policies and in setting standards of need.' S.Doc. No. 208, supra, at 101. The enactment of a modified grant-in-aid formula hardly suggests Congress' intent to engage in 'extensive alteration of the basic underlying structure of an established program.' Rosado v. Wyman, 397 U.S., at 414 n. 17, 90 S.Ct., at 1219.
1
The Court's acknowledgment that '(t)he Texas computation method eliminates any . . . financial incentive (for welfare recipients to obtain outside income), so long as the(ir) outside income remains less than the(ir) . . . reduced standard of need,' ante, at 541, understates the effect of the Texas system on the recipients. The Texas system not only fails to provide an incentive for those on the welfare rolls to break the cycle of poverty by obtaining employment, but—in certain cases—it also penalizes those who seek employment. The family with nonexempt income equal to Texas' level of benefits stands in much the same cash position as the AFDC recipient, but solely because that family has earned that last marginal dollar that makes it no longer eligible for categorical assistance it also is denied medical assistance, social services, and training. The Solicitor General tells us that the value of the medical services alone is worth $50—$60 per month to the average Texas AFDC family. Memorandum for the United States as Amicus Curiae 7 n. 5.
2
Eligibility for family development services is keyed to the 'recei(pt) (of) aid to families with dependent children,' 42 U.S.C. § 602(a)(14); so too, with employment assistance, id., at § 602(a)(15)(A) ('receiving aid under the plan'); protection against child's neglect or abuse, id., at § 602(a)(16) ('receiving aid'); plans to establish paternity and secure support, id., at 602(a)(17)(A)(i) and (ii) ('receiving aid,' 'receiving such aid'); work incentive programs, id., at § 602(a)(19)(A)(i) ('receiving aid to families with dependent children'); and medical assistance plans, id., at § 1396a(a)(10) ('individuals receiving aid or assistance').
Would Congress have tied needy families' eligibility for these programs to the receipt of cash benefits had it foreseen that this Court would disregard the statutory mandate 'that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals'? 42 U.S.C. § 602(a)(10).
3
The rationale which the Court uses to reach this result is at odds with timehonored rules of statutory interpretation. First, the Court gives but a grudging interpretation to the recital in § 401 of the Act, 42 U.S.C. § 601, that one of Congress' purposes was to encourage welfare recipients to become self-supporting. The Court in effect disregards the rule that recitals embody 'the general purposes which . . . Congress undertook to achieve.' Carter v. Carter Coal Co., 298 U.S. 238, 297, 56 S.Ct. 855, 866 867, 80 L.Ed. 1160. And see Coosaw Mining Co. v. South Carolina, 144 U.S. 550, 563, 12 S.Ct. 689, 692, 36 L.Ed. 537; United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304. Second, the Court attributes to Congress the purpose of providing work incentives, e.g., 42 U.S.C. § 602(a)(8), while at the same time allowing the imposition of penalties and disincentives for obtaining employment. The Court departs from the principle that '(i)n the exposition of statutes,' various sections of the same act 'are supposed to have the same object,' Kohlsaat v. Murphy, 96 U.S. 153, 159—160, 24 L.Ed. 844, and holds instead that Congress was working at cross-purposes in different subsections of § 402, 42 U.S.C. § 602. Finally, by giving the Social Security Act a miserly interpretation, the Court disregards the canon that remedial legislation, such as the Social Security Act, is to be interpreted liberally to effectuate its purposes. E.g., Peyton v. Rowe, 391 U.S. 54, 65, 88 S.Ct. 1549, 1555, 20 L.Ed.2d 426.
4
The percentages of need that will be met by Texas under the various heads are as follows:
Old Age Assistance.......... 100%
Aid to the Blind............. 95%
Aid to the Permanently and
Totally Disabled............ 95%
Aid to Families with Dependent
Children.................... 75%
5
To the same effect is our recent decision in Engelman v. Amos, 404 U.S. 23, 92 S.Ct. 181, 30 L.Ed.2d 143 (1971), aff'g sub nom. X v. McCorkle, 333 F.Supp. 1109 (D.C.N.J.1970). There, relying on Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442, the District Court held inconsistent with the Social Security Act—and thus unconstitutional under the Supremacy Clause a state provision which denied AFDC cash payments and ancillary benefits to those whose nonexempt income was less than the standard of need established by the State. We unanimously affirmed that decision. To be sure, Engelman dealt with federal provisions different from those presently in issue (42 U.S.C. § 602(a) (8)(A)(ii); 45 CFR § 233.20(a)(3)(ii)), but that does not distinguish the case. Rather, it merely emphasizes that which until today—was the broad scheme of the Social Security Act: those whose nonexempt income was below the standard of need established by the State and who met the other nonfinancial criteria for eligibility were to receive benefits. See 42 U.S.C. § 602(a)(10).
6
To be sure, '(t)here is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.' King v. Smith, 392 U.S. 309, 318—319, 88 S.Ct. 2128, 2134, 20 L.Ed.2d 1118 (footnotes omitted). Accommodation of a State's limited financial resources, however, is to be made in setting the level of benefits and not by gerrymandering the standard of need. Rosado v. Wyman, supra, 397 U.S., at 413, 90 S.Ct., at 1218. Here, the 'reduced standard of need' which the majority recognizes to be the consequence of the Texas computation procedures, ante, at 543 n. 10, violates § 402(a)(23) of the Social Security Act, 42 U.S.C. § 602(a)(23), and our decision in Rosado. Section 402(a)(23) mandated an upward revision of the standard of need, and the 'reduced standard of need' Texas applies to certain of its needy violates this requirement.
7
45 CFR § 233.10(a)(1)(ii) provides:
'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.'
| 12
|
406 U.S. 583
92 S.Ct. 1716
32 L.Ed.2d 317
SOCIALIST LABOR PARTY et al., Appellants,v.John J. GILLIGAN, Governor of the State of Ohio, et al.
No. 70—21.
May 30, 1972.
Syllabus
Appellant political party, its officers, and members, attacked the constitutionality of revisions of the Ohio election code made following this Court's decision in Socialist Labor Party v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, and a provision that a political party execute a loyalty affidavit under oath in order to obtain a ballot position. The District Court, deciding the case on cross-motions for summary judgment on the basis of the pleadings and supporting affidavits, upheld all appellants' challenges except that involving the oath provision. All parties appealed. A revision of the election code made after this Court noted probable jurisdiction mooted all but the oath issue. Appellants, who did not attack the oath provision in Rhodes and who have been on the ballot and presumably have complied with that provision since its adoption in 1941, contend that it violates the First Amendment, is impermissibly vague, does not comport with due process, and, since it applies to them and not the two major political parties, violates equal protection. Held: The record and pleadings on the one issue not mooted by the supervening legislation (an issue that received scant attention in appellants' complaint and none in the affidavits supporting the cross-motions for summary judgment) are inadequate for resolution of the constitutional questions presented, and in view of the abstract and speculative posture of the case the appeal must therefore be dismissed. Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666. Pp. 585—589.
D.C., 318 F.Supp. 1262, appeal dismissed.
Sanford Jay Rosen, New York City, for appellants.
Donald J. Guittar, Asst. Atty. Gen., Columbus, Ohio, for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellant Socialist Labor Party has engaged in a prolonged legal battle to invalidate various Ohio laws restricting minority party access to the ballot. Concluding that 'the totality of the Ohio restrictive laws taken as a whole' violated the Equal Protection Clause of the Fourteenth Amendment, this Court struck down those laws in Socialist Labor Party v. Rhodes, 393 U.S. 23, 34, 89 S.Ct. 5, 12, 21 L.Ed.2d 24 (1968).1 Following that decision the Ohio Legislature revised the state election code, but the Party was dissatisfied with the revisions and instituted the present suit in 1970.
2
The Socialist Labor Party, its officers, and members joined as plaintiffs in requesting a three-judge District Court to invalidate on constitutional grounds various sections of the revised election laws of Ohio. The plaintiffs specifically challenged provisions of the Ohio election laws requiring that a party either receive a certain percentage of the vote cast in the last preceding election or else file petitions of qualified electors corresponding to the same percentage; provisions relating to the organizational structure of a party; provisions requiring that a political party elect a specified number of delegates and alternates to a state convention; and provisions requiring a party to be part of a national political party that holds national conventions at which delegates elected in state primaries nominate presidential and vicepresidential candidates. In addition, they challenged that part of the Ohio election code requiring a political party to file an affidavit under oath stating in substance that the party is not engaged in an attempt to overthrow the government by force or violence, is not associated with a group making such an attempt, and does not carry on a program of sedition or treason as defined by the criminal law.
3
The case was decided on cross-motions for summary judgment, the three-judge District Court having before it the complaint and answer of the respective parties, and affidavits filed pursuant to Fed.Rule Civ.Proc. 56. The court ruled on the merits in favor of all of appellants' constitutional challenges to the Ohio election laws except that involving the oath requirement, with respect to which it ruled in favor of the appellees. Both sides appealed to this Court, and we noted probable jurisdiction. 401 U.S. 991, 91 S.Ct. 1223, 28 L.Ed.2d 529 (1971).
4
Since then, the posture of this litigation has undergone a significant change. On December 23, 1971, the Ohio Legislature enacted Senate Bill No. 460, which embodied an extensive revision of the state election code. Both sides now agree that the passage of this Act renders moot all but one of the issues decided below. The one challenged provision that remains unamended is the State's requirement that a political party execute the above-described affidavit under oath in order to obtain a position on the ballot.
5
Appellants' 1970 complaint represented a broadside attack against interrelated and allegedly overly restrictive provisions of the Ohio election laws. The three-judge District Court, in its ruling for the appellants on the issues that have now become moot, stated:
6
'The 1969 amendments to the election laws merely perpetuate the restrictive laws enacted between 1948 and 1952. The overall effect of these laws is still to deny to plaintiffs their constitutional right of political associations.' 318 F.Supp. 1262, 1269—1270 (footnote omitted).
7
Thus appellants, at the time they filed their 1970 action, were fenced out of the political process by a series of restrictive provisions that prevented them from making any progress toward a position on the ballot as a designated political party. Their challenge was necessarily of a somewhat abstract character, since under their allegations they were able to comply with very few of the provisions regulating access to the ballot. Now, however, with the enactment of a revised election code, the abstract character of the single remaining challenge to the Ohio election procedures stands out all the more.
8
Appellants did not in their action that came here in 1968 challenge the loyalty oath. Their 1970 complaint respecting the loyalty oath is singularly sparse in its factual allegations. There is no suggestion in it that the Socialist Labor Party has ever refused in the past, or will now refuse, to sign the required oath. There is no allegation of injury that the party has suffered or will suffer because of the existence of the oath requirement.
9
It is fairly inferable that the absence of such allegations is not merely an oversight in the drafting of a pleading. The requirement of the affidavit under oath was enacted in 1941, 119 Ohio Laws 586, and has remained continuously in force since that date. The Socialist Labor Party has appeared on the state ballot since the law's passage, and, unless the state officials have ignored what appear to be mandatory oath provisions, it is reasonable to conclude that the party has in the past executed the required affidavit.
10
It is axiomatic that the federal courts do not decide abstract questions posed by parties who lack 'a personal stake in the outcome of the controversy.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). Appellants argue that the affidavit requirement violates the First and Fourteenth Amendments, but their pleadings fail to allege that the requirement has in any way affected their speech or conduct, or that executing the oath would impair the exercise of any right that they have as a political party or as members of a political party. They contend that to require it of them but not of the two major political parties denies them equal protection, but they do not allege any particulars that make the requirement other than a hypothetical burden. Finally, they claim that the required affidavit is impermissibly vague and that its enforcement procedures do not comport with due process. But the record before the three-judge District Court, and now before this Court, is extraordinarily skimpy in the sort of proved or admitted facts that would enable us to adjudicate this claim. Since appellants have previously secured a position on the ballot with no untoward consequences, the gravamen of their claim that it injures them remains quite unclear.
11
In the usual case in which this Court has passed on the validity of similar oath provisions, the party challenging constitutionality was either unable or unwilling to execute the required oath and, in the circumstances of the particular case, sustained, or faced the immediate prospect of sustaining, some direct injury as a result of the penalty provisions associated with the oath. See, e.g., Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952).
12
In Cramp v. Board of Public Instruction, 368 U.S. 278, 283 285, 82 S.Ct. 275, 278—280, 7 L.Ed.2d 285 (1961), the appellants were public school teachers who had been threatened with discharge for their refusal to execute the required oath. The Court held that even though appellants might be able to sign the required oath in good conscience, the record there indicated that they would still be subject to possible hazards of a perjury conviction by reason of the vagueness of the oath's language. In the present case, however, appellants have apparently signed the oath at previous times, and so far as this record shows they have suffered no injury as a result. The State has never questioned the truth of the affidavit, and appellants' conduct and associations have not been constricted as a result of their having executed the affidavit.
13
The long and the short of the matter is that we know very little more about the operation of the Ohio affidavit procedure as a result of this lawsuit than we would if a prospective plaintiff who had never set foot in Ohio had simply picked this section of the Ohio election laws out of the statute books and filed a complaint in the District Court setting forth the allegedly offending provisions and requesting an injunction against their enforcement. These plaintiffs may well meet the technical requirement of standing, and they may be parties to a case or controversy, but their case has not given any particularity to the effect on them of Ohio's affidavit requirement.
14
This Court has recognized in the past that even when jurisdiction exists it should no be exercised unless the case 'tenders the underlying constitutional issues in clean-cut and concrete form.' Rescue Army v. Municipal Court, 331 U.S. 549, 584, 67 S.Ct. 1409, 1427, 91 L.Ed. 1666 (1947). Problems of prematurity and abstractness may well present 'insuperable obstacles' to the exercise of the Court's jurisdiction, even though that jurisdiction is technically present. Id., at 574, 67 S.Ct., at 1422.2
15
We find that the present posture of this case raises just such an obstacle. All issues litigated below have become moot except for one that received scant attention in appellants' complaint and was treated not at all in the affidavits filed in support of the cross-motions for summary judgment. Nothing in the record shows that appellants have suffered any injury thus far, and the law's future effect remains wholly speculative. Notwithstanding the indications that appellants have in the past executed the required affidavit without injury, it is, of course, possible that at some future time they may be able to demonstrate some injury as a result of the application of the provision challenged here. Our adjudication of the merits of such a challenge will await that time. This appeal must be dismissed. Rescue Army v. Municipal Court, supra, 331 U.S., at 585, 67 S.Ct., at 1427.
16
It is so ordered.
17
Appeal dismissed.
18
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
19
The oath required of appellants for political recognition in Ohio is plainly unconstitutional as a denial of equal protection. Because I believe this a proper case for declaratory relief, I would therefore reverse the judgment below.
20
In order to 'be recognized or be given a place on the ballot in any primary or general election,' Ohio requires that members of political parties file a loyalty oath with the Secretary of State. Ohio Rev. Code Ann. § 3517.07 (1960) (see appendix to this opinion). I need not consider the vagueness or overbreadth of the Ohio oath, for my views on that subject have been stated over and over again.1 For the present case, it is sufficient for my decision that Ohio requires the oath based upon the invidious classification of political allegiance.
21
An exception from the oath requirement is made for 'any political party or group which has had a place on the ballot in each national and gubernatorial election since the year 1900.' Ibid. It is conceded that this exemption applies only to the Democratic and Republican Parties (see Plaintiffs' Motion for Summary Judgment), and we may properly treat it as if it were written in precisely those terms. See Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915). This exception is thus part of the broader pattern of Ohio's discriminatory preference for the two established political parties. We considered this discrimination before in Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), and said:
22
'No extended discussion is required to establish that the Ohio laws before us give the two old, established parties a decided advantage over any new parties struggling for existence and thus place substantially unequal burdens on both the right to vote and the right to associate. The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that 'only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms."
23
In a separate opinion, I noted, 'The Equal Protection Clause of the Fourteenth Amendment permits the States to make classifications and does not require them to treat different groups uniformly. Nevertheless, it bans any 'invidious discrimination." Id., at 39, 89 S.Ct., at 15. Classifications based upon political or religious associations, beliefs, or philosophy are such 'invidious' classifications. As Mr. Justice Black said in Cox v. Louisiana, 379 U.S. 559, 581, 85 S.Ct. 466, 470, 476, 13 L.Ed.2d 487:
24
'(B)y specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and mat not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their reviews against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment.'
25
'While I doubt that any state interest can be so compelling as to justify an impairment of associational freedoms in the area of philosophy—political or otherwise,' Lippitt v. Cipollone, 404 U.S. 1032, 1033—1034, 92 S.Ct. 729, 730, 30 L.Ed.2d 725 (Douglas, J., dissenting); see also Williams v. Rhodes, supra, 393 U.S., at 39—40, 89 S.Ct., at 14—15 (separate opinion of Douglas, J.), the appellees have not even offered a colorable explanation for the disparate treatment of the separate political parties. I conclude, therefore, that the unequal burden placed upon appellants is unconstitutional.2
26
The Court does not reach appellants' challenge to the loyalty oath, however, because it concludes that 'they do not allege any particulars that make the (oath) requirement other than a hypothetical burden.' Ante, at 587. In sharp contrast to the decision in Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947), the only case upon which it relies,3 the Court does not explain what additional facts it feels are necessary to reach the merits. In basing its decision on this ground, I fear that the Court has taken an unduly narrow view of declaratory relief.
27
Appellants argue that the oath is facially invalid for the indivious classification it creates, for its overbreadth and its vagueness. Certainly such challenges to the facial validity of a statute are ideally suited for declaratory judgment. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1. There can be no question of appellants' stake in the controversy, for if they refuse to subscribe to the oath they will be denied political recognition, cf. Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); while, in order to obtain such recognition, they must subscribe to an unconstitutional oath or subject themselves to an invidious classification.4 Cf. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961).5 Under either alternative, appellants have 'such a personal stake in the outcome . . . as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Nor is this a case where appellants' injury is only speculative, cf. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), for they allege that they 'will continue to nominate candidates for political office in Ohio in the future.'
28
Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958), is relevant here. The appellant in that case was a black who sought a declaratory judgment that a state statute requiring the segregation of the races on municipal buses was unconstitutional. In dismissing the complaint, the District Court took the approach this Court takes today and reasoned that appellant 'ha(d) not been injured at all' because 'he was not a regular or even an occasional user of bus transportation.' We summarily reversed that decision, saying that an individual 'subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability.' 358 U.S., at 204, 79 S.Ct., at 179. And see Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408.
29
In Evers, we did not base our decision on any consideration of whether the seats blacks were required to take were better or worse than those available to whites. Rather, we held that members of a disfavored minority could challenge unconstitutional statutory classifications which set them apart. That was the 'disability' to which we referred. Appellants are members of an unfavored political minority in Ohio and they too should be able to challenge invidious classifications which set them apart from the favored majority.
30
Since 1946, appellants and other minority political parties in Ohio have been repressed by legislation enacted by the two dominant parties. In the last four years, they have sought relief from these shackles so that their voices could be heard in the political arena.6 But Ohio has erected innumerable roadblocks to their participation. Under the majority's decision, each obstacle will require a separate lawsuit because it will only be after they have been frustrated at a particular turn that they will be able to satisfy this new test for declaratory relief.
31
The modern remedy of declaratory, judgments should be used to simplify, not multiply, litigation.
32
I would reverse the judgment below.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
Ohio Rev.Code Ann. § 3517.07 (1960):
33
'No political party or group which advocates, either directly or indirectly, the overthrow, by force or violence, of our local, state, or national government or which carries on a program of sedition or treason by radio, speech, or press or which has in any manner any connection with any foreign government or power or which in any manner has any connection with any group or organization so connected or so advocating the overthrow, by force or violence, of our local, state, or national government or so carrying on a program of sedition or treason by radio, speech, or press shall be recognized or be given a place on the ballot in any primary or generaly election held in the state or in any political subdivision thereof.
34
'Any party or group desiring to have a place on the ballot shall file with the secretary of state and with the board of elections in each county in which it desires to have a place on the ballot an affidavit made by not less than ten members of such party, not less than three of whom shall be executive officers thereof, under oath stating that it does not advocate, either directly or indirectly, the overthrow, by force or violence, of our local, state or national government; that it does not carry on any program of sedition or treason by radio, speech, or press; that it has no connection with any foreign government or power; that it has no connection with any group or organization so connected or so advocating, either directly or indirectly, the overthrow, by force or violence, of our local, state, or national government or so carrying on a program of sedition or treason by radio, speech, or press.
35
'Said affidavit shall be filed not less than six nor more than nine months prior to the primary or general election in which the party or group desires to have a place on the ballot. The secretary of state shall investigate the facts appearing in the affidavit and shall within sixty days after the filing thereof find and certify whether or not this party or group is entitled under this section to have a place on the ballot.
36
'Any qualified member of such party or group or any elector of this state may appeal from the finding of the secretary of state to the supreme court of Ohio.
37
'This section does not apply to any political party or group which has had a place on the ballot in each national and gubernatorial election since the year 1900.'
1
That case was decided together with Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).
2
Despite the contrary implication in the dissent, see post, at 592—593 n. 3, the holding of Rescue Army has been applied by this Court to numerous appeals in which no statutory or constitutional impediment to jurisdiction was present. See, e.g., Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (Harlan, J., concurring); Atlanta Newspapers, Inc. v. Grimes, 364 U.S. 290, 81 S.Ct. 63, 5 L.Ed.2d 39 (1960); International Brotherhood of Teamsters v. Denver Milk Producers, Inc., 334 U.S. 809, 68 S.Ct. 1015, 92 L.Ed. 1741 (1948). Nor has there ever been any suggestion that Rescue Army should apply only to appeals from state, rather than federal, courts. See United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 553, 5 L.Ed.2d 476 (1961); United States v. CIO, 335 U.S. 106, 125—126, 68 S.Ct. 1349, 1358—1359, 92 L.Ed. 1849 (1948) (Frankfurter, J., concurring). See also Albertson v. Millard, 345 U.S. 242, 245, 73 S.Ct. 600, 602, 97 L.Ed. 983 (1953). Despite this lack of case support, the dissent argues that the Rescue Army doctrine should not apply to the present case, since it is an appeal from a federal court judgment pursuant to 28 U.S.C. § 1253, whereas Rescue Army was an appeal from a state court judgment pursuant to 28 U.S.C. § 1257. This distinction is evanescent. Under both grants of jurisdiction this Court is obligated to rule upon those properly presented questions that are necessary for decision of the case. But when the issues are not presented with the clarity needed for effective adjudication, appellate review of a federal court judgment is every bit as inappropriate as was review of a state court judgment in Rescue Army.
1
E.g., Cole v. Richardson, 405 U.S. 676, 687, 92 S.Ct. 1332, 1338, 31 L.Ed.2d 593 (1972) (dissenting opinion); DuBois Clubs v. Clark, 389 U.S. 309, 313, 88 S.Ct. 450, 453, 19 L.Ed.2d 546 (1967) (dissenting opinion); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Nostrand v. Little, 362 U.S. 474, 476, 80 S.Ct. 840, 842, 4 L.Ed.2d 892 (1960) (dissenting opinion); First Unitarian Church v. Los Angeles, 357 U.S. 545, 547, 78 S.Ct. 1350, 1351, 2 L.Ed.2d 1484 (1958) (concurring opinion); Speiser v. Randall, 357 U.S. 513, 532, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460 (1958) (concurring opinion).
2
While the District Court acknowledged that one of appellants' challenges to the oath was that it 'violates that Equal Protection Clause by excepting the Democratic and Republican Parties from its ambit,' 318 F.Supp. 1262, 1270, the court inexplicably did not address this argument.
3
Rescue Army came on appeal from the Supreme Court of California and involved a complex state statutory scheme.
The present case, by contrast, comes from a United States District Court where our appellate jurisdiction is founded upon 28 U.S.C. § 1253. It is, I think, an undue extension of Rescue Army to apply it to an appeal from a federal court which properly heard
and considered a federal constitutional question. See H. Hart & H. Wechsler, The Federal Courts and the Federal System 149 (1953). Our differing treatment of appeals from federal and state courts relates to the difference between the courts from which the appeals are taken. If an appeal from a state court does not fall within Art. III, it would in nowise affect the jurisdiction of the court from which the appeal was taken. Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L,.ed. 475 (1952). The same cannot be said, however, of appeals from federal courts, e.g., Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246. Thus '(t)he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.' United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950); see R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court § 273, p. 501 (1951). 'If the proceeding is one to review the decision of a state court,' however, our practice is to 'remand the cause to the state court in order that that court may take such further proceedings as may be deemed appropriate.'
The cases cited by the majority, ante, at 588—589 n. 2, do not support today's treatment of an appeal from an Art. III court. In United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961), the District Court dismissed an indictment and we reversed and remanded holding that the provable facts might bring the case within the statute. In United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, 62 L.Ed. 1849 (1948), we affirmed the judgment of the District Court which had dismissed an indictment, because the facts alleged did not state an offense; and we did not therefore reach the constitutional issue relied upon by the District Court. Finally, Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983 (1953), was an abstention case in which we vacated the judgment of the District Court and remanded with directions to hold the case until the state law questions had been resolved. None of these cases, therefore, stands for the proposition that we may dismiss a perfected appeal from a properly entered judgment of an Art. III court.
4
The suggestion that 'appellants have apparently signed the oath at previous times,' ante, at 588, and thus somehow have waived their right to object to the oath, is unsupported by the record. Appellants include not only the Socialist Labor Party but also its named officers and members who would be required to execute the oath. Whatever relevance there may be to the fact that the Socialist Labor Party was on the ballot in Ohio in 1946, that fact has no bearing with regard to the individual appellants.
5
As to Cramp, it is suggested that 'the record there indicated that (Cramp) would still be subject to possible hazards of a perjury conviction by reason of the vagueness of the oath's language.' Ante, at 588. In our opinion in Cramp, however, we noted that Cramp alleged in his complaint 'that he 'is a loyal American and does not decline to execute or subscribe to the aforesaid oath for fear of the penalties provided by law for a false oath," 368 U.S., at 281, 82 S.Ct., at 277. In any event, Ohio also subjects oath takers to the 'possible hazards of a perjury conviction,' see Ohio Rev.Code Ann. §§ 3599.36, 2917.25 (1960), so Cramp is not distinguishable.
6
See, e.g., Lippitt v. Cipollone, 404 U.S. 1032, 92 S.Ct. 729, 30 L.Ed.2d 725 (1972), aff'g 337 F.Supp. 1405 (N.D.Ohio 1971); Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 L.Ed.2d 209 (1969); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), aff'g sub nom. Socialist Labor Party v. Rhodes, 290 F.Supp. 983 (Ohio 1968); State ex rel. Bible v. Board of Elections, 22 Ohio St.2d 57, 258 N.E.2d 227; see also State ex rel. Beck v. Hummel, 150 Ohio St. 127, 80 N.E.2d 899.
| 23
|
406 U.S. 518
92 S.Ct. 1700
32 L.Ed.2d 273
DEEPSOUTH PACKING CO., Inc., Petitioner,v.The LAITRAM CORPORATION.
No. 71—315.
Argued April 11, 1972.
Decided May 30, 1972.
Syllabus
Petitioner is not foreclosed by 35 U.S.C. § 271(a), which proscribes the unauthorized making of any patented invention within the United States, from making the parts of shrimp deveining machines (for which respondent was adjudged to have valid combination patents) to sell to foreign buyers for assembly by the buyers for use abroad. The word 'makes' as used in § 271(a) does not extend to the manufacture of the constituent parts of a combination machine, and the unassembled export of the elements of an invention does not infringe the patent. Radio Corp. of America v. Andrea, 79 F.2d 626. Pp. 519—532.
443 F.2d 936, reversed and remanded.
Harold J. Birch, Washington, D.C., for petitioner.
Guy W. Shoup, New York City, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The United States District Court for the Eastern District of Louisiana has written:
2
'Shrimp, whether boiled, broiled, barbecued or fried, are a gustatory delight, but they did not evolve to satisfy man's palate. Like other crustaceans, they wear their skeletons outside their bodies in order to shield their savory pink and white flesh against predators, including man. They also carry their intestines, commonly called veins, in bags (or sand bags) that run the length of their bodies. For shrimp to be edible, it is necessary to remove their shells. In addition, if the vein is removed, shrimp become more pleasing to the fastidious as well as more palatable.'1
3
favored federal courts blissfully situated on the Nation's Gulf Coast, but they are properly recited in this case. Petitioner and respondent both hold patents on machines that devein shrimp more cheaply and efficiently than competing machinery or hand labor can do the job. Extensive litigation below has established that respondent, the Laitram Corp., has the superior claim and that the distribution and use of petitioner Deepsouth's machinery in this country should be enjoined to prevent infringement of Laitram's patents. Laitram Corp. v. Deepsouth Packing Co., 443 F.2d 928 (C.A.5 1971). We granted certiorari, 404 U.S. 1037, 92 S.Ct. 702, 30 L.Ed.2d 728 (1972), to consider a related question: Is Deepsouth, barred from the American market by Laitram's patents, also foreclosed by the patent laws from exporting its deveiners, in less than fully assembled form, for use abroad?
4
* A rudimentary understanding of the patents in dispute is a prerequisite to comprehending the legal issue presented. The District Court determined that the Laitram Corp. held two valid patents for machinery used in the process of deveining shrimp. One, granted in 1954,2 accorded Laitram rights over a 'slitter' which exposed the veins of shrimp by using water pressure and gravity to force the shrimp down an inclined through studded with razor blades. As the shrimp descend through the trough their backs are slit by the blades or other knife-like objects arranged in a zig-zag pattern. The second patent, granted in 1958, covers a 'tumbler,' 'a device to mechanically remove substantially all veins from shrimp whose backs have previously been slit,' App. 127, by the machines described in the 1954 patent. This invention uses streams of water to carry slit shrimp into and then out of a revolving drum fabricated from commercial sheet metal. As shrimp pass through the drum the hooked 'lips' of the punched metal, 'projecting at an acute angle from the supporting member and having a smooth rounded free edge for engaging beneath the vein of a shrimp and for wedging the vein between the lip and the supporting member,' App. 131, engage the veins and remove them.
5
Both the slitter and the tumbler are combination patents; that is,
6
'(n)one of the parts referred to are new, and none are claimed as new; nor is any portion of the combination less than the whole claimed as new, or stated to produce any given result. The end in view is proposed to be accomplished by the union of all, arranged and combined together in the manner described. And this combination, composed of all the parts mentioned in the specification, and arranged with reference to each other, and to other parts of the (machine) in the manner therein described, is stated to be the improvement, and is the thing patented.' Prouty v. Ruggles, 16 Pet. 336, 341, 10 L.Ed. 985 (1842).
7
The slitter's elements as recited in Laitram's patent claim were: an inclined trough, a 'knife' (actually, knives) positioned in the trough, and a means (water sprayed from jets) to move the shrimp down the trough. The tumbler's elements include a 'lip,' a 'support member,' and a 'means' (water thrust from jets). As is usual in combination patents, none of the elements in either of these patents were themselves patentable at the time of the patent, nor are they now. The means in both inventions, moving water, was and is, of course, commonplace. (It is not suggested that Deepsouth infringed Laitram's patents by its use of water jets.) The cutting instruments and inclined troughs used in slitters were and are commodities available for general use. The structure of the lip and support member in the tumbler were hardly novel: Laitram concedes that the inventors merely adapted punched metal sheets ordered from a commercial catalog in order to perfect their invention. The patents were warranted not by the novelty of their elements but by the novelty of the combination they represented. Invention was recognized because Laitram's assignors3 combined ordinary elements in an extraordinary way—a novel union of old means was designed to achieve new ends.4 Thus, for both inventions 'the whole in some way exceed(ed) the sum of its parts.' Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950).
II
8
The lower court's decision that Laitram held valid combination patents entitled the corporation to the privileges bestowed by 35 U.S.C. § 154, the keystone provision of the patent code. '(F)or the term of seventeen years' from the date of the patent, Laitram had 'the right to exclude others from making, using, or selling the invention throughout the United States . . ..' The § 154 right in turn provides the basis for affording the patentee an injunction against direct, induced, and contributory infringement, 35 U.S.C. § 283, or an award of damages when such infringement has already occurred, 35 U.S.C. § 284. Infringement is defined by 35 U.S.C. § 271 in terms that follow those of § 154:
9
'(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, (directly) infringes the patent.
10
'(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
11
'(c) Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.'
12
As a result of these provisions the judgment of Laitram's patent superiority forecloses Deepsouth and its customers from any future use (other than a use approved by Laitram or occurring after the Laitram patent has expired) of its deveiners 'throughout the United States.' The patent provisions taken in conjunction with the judgment below also entitle Laitram to the injunction it has received prohibiting Deepsouth from continuing to 'make' or, once made, to 'sell' deveiners 'throughout the United States.' Further, Laitram may recover damages for any past unauthorized use, sale, or making 'throughout the United States.' This much is not disputed.
13
But Deepsouth argues that it is not liable for every type of past sale and that a portion of its future business is salvageable. Section 154 and related provisions obviously are intended to grant a patentee a monopoly only over the United States market; they are not intended to grant a patentee the bonus of a favored position as a flagship company free of American competition in international commerce. Deepsouth, itself barred from using its deveining machines, or from inducing others to use them 'throughout the United States,' barred also from making and selling the machines in the United States, seeks to make the parts of deveining machines, to sell them to foreign buyers, and to have the buyers assemble the parts and use the machines abroad.5 Accordingly, Deepsouth seeks judicial approval, expressed through a modification or interpretation of the injunction against it, for continuing its practice of shipping deveining equipment to foreign customers in three separate boxes, each containing only parts of the 1 3/4-ton machines, yet the whole assemblable in less than one hour.6 The company contends that by this means both the 'making' and the 'use' of the machines occur abroad and Laitram's lawful monopoly over the making and use of the machines throughout the United States is not infringed.
14
Laitram counters that this course of conduct is based upon a hypertechnical reading of the patent code that, if tolerated, will deprive it of its right to the fruits of the inventive genius of its assignors. 'The right to make can scarcely be made plainer by definition . . .,' Bauer v. O'Donnell, 229 U.S. 1, 10, 33 S.Ct. 616, 617, 57 L.Ed. 1041 (1913). Deepsouth in all respects save final assembly of the parts 'makes' the invention. It does so with the intent of having the foreign user effect the combination without Laitram's permission. Deepsouth sells these components as though they were the machines themselves; the act of assembly is regarded, indeed advertised, as of no importance.
15
The District Court, faced with this dispute, noted that three prior circuit courts had considered the meaning of 'making' in this context and that all three had resolved the question favorably to Deepsouth's position. See Hewitt-Robins, Inc. v. Link-Belt Co., 371 F.2d 225 (CA7 1966); Cold Metal Process Co. v. United Engineering & Foundry Co., 235 F.2d 224 (CA3 1956); and Radio Corp. of America v. Andrea, 79 F.2d 626 (CA2 1935). The District Court held that its injunction should not be read as prohibiting export of the elements of a combination patent even when those elements could and predictably would be combined to form the whole.
16
'It may be urged that . . . (this) result is not logical . . . But it is founded on twin notions that underlie the patent laws. One is that a combination patent protects only the combination. The other is that monopolies—even those conferred by patents—are not viewed with favor. These are logic enough.' 310 F.Supp. 926, 929 (1970).
17
The Court of Appeals for the Fifth Circuit reversed, thus departing from the established rules of the Second, Third, and Seventh Circuits. In the Fifth Circuit panel's opinion, those courts that previously considered the question 'worked themselves into . . . a conceptual box' by adopting 'an artificial, technical construction' of the patent laws, a construction, moreover, which in the opinion of the panel, '(subverted) the Constitutional scheme of promoting 'the Progress of Science and useful Arts" by allowing an intrusion on a patentee's rights, 443 F.2d, at 938 939, citing U.S. Const., Art. I, § 8.
III
18
We disagree with the Court of Appeals for the Fifth Circuit.7 Under the common law the inventor had no right to exclude others from making and using his invention. If Laitram has a right to suppress Deepsouth's export trade it must be derived from its patent grant, and thus from the patent statute.8 We find that 35 U.S.C. § 271, the provision of the patent laws on which Laitram relies, does not support its claim.
19
Certainly if Deepsouth's conduct were intended to lead to use of patented deveiners inside the United States its production and sales activity would be subject to injunction as an induced or contributory infringement. But it is established that there can be no contributory infringement without the fact or intention of a direct infringement. 'In a word, if there is no (direct) infringement of a patent there can be no contributory infringer.' Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 677, 64 S.Ct. 268, 276, 88 L.Ed. 376 (1944) (Frankfurter, J., dissenting on other grounds). Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 341—342, 81 S.Ct. 599, 602, 5 L.Ed.2d 592 (1961), succinctly articulates the law:
20
'It is plain that § 271(c)—a part of the Patent Code enacted in 1952—made no change in the fundamental precept that there can be no contributory infringement in the absence of a direct infringement. That section defines contributory infringement in terms of direct infringement—namely the sale of a component of a patented combination or machine for use 'in an infringement of such patent." The statute makes it clear that it is not an infringement to make or use a patented product outside of the United States. 35 U.S.C. § 271. See also Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., 235 U.S. 641, 650, 35 S.Ct. 221, 224, 59 L.Ed. 398 (1915), Brown v. Duchesne, 19 How. 183, 15 L.Ed. 595 (1857). Thus, in order to secure the injunction it seeks, Laitram must show a § 271(a) direct infringement by Deepsouth in the United States, that is, that Deepsouth 'makes,' 'uses,' or 'sells' the patented product within the bounds of this country.
21
Laitram does not suggest that Deepsouth 'uses' the machines. Its argument that Deepsouth sells the machines—based primarily on Deepsouth's sales rhetoric and related indicia such as price9 cannot carry the day unless it can be shown that Deepsouth is selling the 'patented invention.' The sales question thus resolves itself into the question of manufacture: did Deepsouth 'make' (and then sell) something cognizable under the patent law as the patented invention, or did it 'make' (and then sell) something that fell short of infringement?
22
The Court of Appeals, believing that the word 'makes' should be accorded 'a construction in keeping with the ordinary meaning of that term,' 443 F.2d, at 938, held against Deepsouth on the theory that 'makes' 'means what it ordinarily connotes—the substantial manufacture of the constituent parts of the machine.' Id., at 939. Passing the question of whether this definition more closely corresponds to the ordinary meaning of the term than that offered by Judge Swan in Andrea 35 years earlier (something is made when it reaches the state of final 'operable' assembly), we find the Fifth Circuit's definition unacceptable because it collides head on with a line of decisions so firmly embedded in our patent law as to be unassailable absent a congressional recasting of the statute.
23
We cannot endorse the view that the 'substantial manufacture of the constituent parts of (a) machine' constitutes direct infringement when we have so often held that a combination patent protects only against the operable assembly of the whole and not the manufacture of its parts. 'For as we pointed out in Mercoid v. Mid-Continent Investment Co. (320 U.S. 661, 676, 64 S.Ct. 268, 276) a patent on a combination is a patent on the assembled or functioning whole, not on the separate parts.' Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 684, 64 S.Ct. 278, 280 (1944). See also Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 301, 29 S.Ct. 495, 53 L.Ed. 805:
24
'A combination is a union of elements, which may be partly old and partly new, or wholly old or wholly new. But whether new or old, the combination is a means—an invention—distinct from them.' Id., at 318, 29 S.Ct., at 500.
25
'(O)ne element is not the combination. Indeed, all of the elements are not. To be that—to be identical with the invention of the combination—they must be united by the same operative law.' Id., at 320, 29 S.Ct., at 501.
26
And see Brown v. Guild, 23 Wall. 181, 23 L.Ed. 161 (1874). In sum,
27
'if anything is settled in the patent law, it is that the combination patent covers only the totality of the elements in the claim and that no element, separately viewed, is within the grant.' Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S., at 344, 81 S.Ct., at 604.
28
It was this basic tenet of the patent system that led Judge Swan to hold in the leading case, Radio Corp. of America v. Andrea, 79 F.2d 626 (CA2 1935), that unassembled export of the elements of an invention did not infringe the patent.
29
'(The) relationship is the essence of the patent.
30
'. . . No wrong is done the patentee until the combination is formed. His monopoly does not cover the manufacture or sale of separate elements capable of being, but never actually, associated to form the invention. Only when such association is made is there a direct infringement of his monopoly, and not even then if it is done outside the territory for which the monopoly was granted.' Id., at 628.
31
See also Cold Metal Process Co. v. United Engineering & Foundry Co., 235 F.2d, at 230 ('We are in full accord with the rule thus laid down in the Andrea case and we think that the master and the district court were right in applying it here'); Hewitt-Robins, Inc. v. Link Belt Co., 371 F.2d, at 229 (to the same effect).
32
We reaffirm this conclusion today.
IV
33
It is said that this conclusion is derived from too narrow and technical an interpretation of the statute, and that this Court should focus on the constitutional mandate
34
'(t)o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . .,' Art. I, § 8.
35
and construe the statute in a manner that would, allegedly, better reflect the policy of the Framers.
36
We cannot accept this argument. The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress. We are here construing the provisions of a statute passed in 1952. The prevailing law in this and other courts as to what is necessary to show a patentable invention when a combination of old elements is claimed was clearly evident from the cases when the Act was passed; and at that time Andrea, representing a specific application of the law of infringement with respect to the export of elements of a combination patent, was 17 years old. When Congress drafted § 271, it gave no indication that it desired to change either the law of combination patents as relevant here or the ruling of Andrea.10 Nor has it on any more recent occasion indicated that it wanted the patent privilege to run farther than it was understood to run for 35 years prior to the action of the Court of Appeals for the Fifth Circuit.
37
Moreover, we must consider petitioner's claim in light of this Nation's historical antipathy to monopoly11 and of repeated congressional efforts to preserve and foster competition. As this Court recently said without dissent:
38
'(I)n rewarding useful invention, the 'rights and welfare of the community must be fairly dealt with and effectually guarded.' Kendall v. Winsor, 62 U.S. 322, 21 How. 322, 329, 16 L.Ed. 165 (1859). To that end the prerequisites to obtaining a patent are strictly observed, and when the patent has issued the limitations on its exercise are equally strictly enforced.' Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230, 84 S.Ct., 784, 788, 11 L.Ed.2d 661 (1964).
39
It follows that we should not expand patent rights by overruling or modifying our prior cases construing the patent statutes, unless the argument for expansion of privilege is based on more than mere inference from ambiguous statutory language. We would require a clear and certain signal from Congress before approving the position of a litigant who, as respondent here, argues that the beachhead of privilege is wider, and the area of public use narrower, than courts had previously thought. No such signal legitimizes respondent's position in this litigation.
40
In conclusion, we note that what is at stake here is the right of American companies to compete with an American patent holder in foreign markets. Our patent system makes no claim to extraterritorial effect; 'these acts of Congress do not, and were not intended to, operate beyond the limits of the United States,' Brown v. Duchesne, 19 How., at 195, 15 L.Ed. 595 (1856), and we correspondingly reject the claims of others to such control over our markets. Cf. Boesch v. Graff, 133 U.S. 697, 703, 10 S.Ct. 378, 380, 33 L.Ed. 787 (1890). To the degree that the inventor needs protection in markets other than those of this country, the wording of 35 U.S.C. §§ 154 and 271 reveals a congressional intent to have him seek it abroad through patents secured in countries where his goods are being used. Respondent holds foreign patents; it does not adequately explain why it does not avail itself of them.
V
41
In sum: the case and statutory law resolves this case against the respondent. When so many courts have so often held what appears so evident—a combination patent can be infringed only by combination—we are not prepared to break the mold and begin anew. And were the matter not so resolved, we would still insist on a clear congressional indication of intent to extend the patent privilege before we could recognize the monopoly here claimed. Such an indication is lacking. Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is reversed and the case is remanded for proceedings consistent with this opinion.
42
It is so ordered.
43
Reversed and remanded.
44
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST join, dissenting.
45
Because our grant of certiorari was limited, 404 U.S. 1037, 92 S.Ct. 702, 30 L.Ed.2d 728 (1972), the customarily presented issues of patent validity and infringement are not before us in this case. I necessarily accept, therefore, the conclusion that the Laitram patents are valid and that the Deepsouth deveining machine, when manufactured and assembled in the United States, is an infringement. The Court so concedes. The Court, however, denies Laitram patent law protection against Deepsouth's manufacture and assembly when the mere assembly is effected abroad. It does so on the theory that there then is no 'making' of the patented invention in the United States even though every part is made here and Deepsouth ships all the parts in response to an order from abroad.
46
With all respect, this seems to me to to too narrow a reading of 35 U.S.C. §§ 154 and 271(a). In addition, the result is unduly to reward the artful competitor who uses another's invention in its entirety and who seeks to profit thereby. Deepsouth may be admissive and candid or, as the Court describes it, ante, at 523 n. 5, 'straightforward,' in its 'sales rhetoric,' ante, at 527, but for me that rhetoric reveals the very iniquitous and evasive nature of Deepsouth's operations. I do not see how one can escape the conclusion that the Deepsouth machine was made in the United States, within the meaning of the protective language of §§ 154 and 271(a). The situation, perhaps, would be different were parts, or even only one vital part, manufactured abroad. Here everything was accomplished in this country except putting the pieces together as directed (an operation that, as Deepsouth represented to its Brazilian prospect, would take 'less than one hour'), all much as the fond father does with his little daughter's doll house on Christmas Eve. To say that such assembly, accomplished abroad, is not the prohibited combination and that it avoids the restrictions of our patent law, is a bit too much for me. The Court has opened the way to deny the holder of the United States combination patent the benefits of his invention with respect to sales to foreign purchasers.
47
I also suspect the Court substantially overstates when it describes Radio Corp. of America v. Andrea, 79 F.2d 626 (CA2 1935), as a 'leading case,' ante, at 529, and when it imputes to Congress, in drafting the 1952 statute, an awareness of Andrea's 'prevailing law,' ante, at 530. Andrea was seriously undermined only two years after its promulgation, when the Court of Appeals modified its decree on a second review. Radio Corp. of America v. Andrea, 90 F.2d 612 (CA2 1937). Its author, Judge Swan himself, dissenting in part from the 1937 decision, somewhat ruefully allowed that his court was overruling the earlier decision. Id., at 615. I therefore would follow the Fifth Circuit's opinion in the present case, 443 F.2d 936 (1971), and would reject the reasoning in the older and weakened Andrea opinion and in the Third and Seventh Circuit opinions that merely follow it.
48
By a process of only the most rigid construction, the Court, by its decision today, fulfills what Judge Clark, in his able opinion for the Fifth Circuit, distressingly forecast:
49
'To hold otherwise (as the Court does today) would subvert the Constitutional scheme of promoting 'the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' U.S.Const., art. I § 8 Cl. 8. It would allow an infringer to set up shop next door to a patent-protected inventor whose product enjoys a substantial foreign market and deprive him of this valuable business. If this Constitutional protection is to be fully effectuated, it must extend to an infringer who manufactures in the United States and then captures the foreign markets from the patentee. The Constitutional mandate cannot be limited to just manufacturing and selling within the United States. The infringer would then be allowed to reap the fruits of the American economy—technology, labor, materials, etc.—but would not be subject to the responsibilities of the American patent laws. We cannot permit an infringer to enjoy these benefits and then be allowed to strip away a portion of the patentee's protection.' 443 F.2d, at 939.
50
I share the Fifth Circuit's concern and I therefore dissent.
1
Laitram Corp. v. Deepsouth Packing Co., 301 F.Supp. 1037, 1040 (1969).
2
This patent expired shortly before argument in this court and is therefore not relevant to Laitram's claim for injunctive relief. It is described, however, because Laitram claims damages for Deepsouth's asserted past exportation of the parts of this machine.
3
The machines were developed by two brothers who are now president and vice-president of the Laitram Corp. The patents are in their names, but have been assigned to the corporation.
4
The District Court wrote:
'Defendant urges that the (1958) patent is invalid as aggregative, anticipated by the prior art, obvious, described in functional language, overbroad, and indefinite. While it is clear that the elements in the . . . patent, especially the punch lip material, had been available for a considerable period of time, when combined they co-act in such a manner to perform a new function and produce new results.' 301 F.Supp., at 1063.
5
Deepsouth is entirely straightforward in indicating that its course of conduct is motivated by a desire to avoid patent infringement. Its president wrote a Brazilian customer:
'We are handicapped by a decision against us in the United States. This was a very technical decision and we can manufacture the entire machine without any complication in the United States, with the exception that there are two parts that must not be assembled in the United States, but assembled after the machine arrives in Brazil.'
Quoted in Laitram Corp. v. Deepsouth Packing Co., 443 F.2d 928, 938 (CA5 1971).
6
As shipped, Deepsouth's tumbler contains a deveining belt different from Laitram's support member and lip. But the Laitram elements are included in a separate box and the Deepsouth tumbler is made to accommodate the Laitram elements. The record shows that many customers will use the machine with the Laitram parts.
7
For simplicity's sake, we, like the lower courts, will discuss only Deepsouth's claim as to permissible future conduct. It is obvious, however, that what we say as to the scope of the injunction in Laitram's favor applies also to the calculation of damages that Laitram may recover.
8
'But the right of property which a patentee has in his invention, and his right to its exclusive use, is derived altogether from these statutory provisions; and this court (has) always held that an inventor has no right of property in his invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the acts of Congress; and that his rights are to be regulated and measured by these laws, and cannot go beyond them.' Brown v. Duchesne, 19 How. 183, 195, 15 L.Ed. 595 (1857).
9
Deepsouth sold the less than completely assembled machine for the same price as it had sold fully assembled machines. Its advertisements, correspondence, and invoices frequently referred to a 'machine,' rather than to a kit or unassembled parts. See Brief for Respondent 8—11.
10
When § 271 was drafted and submitted to the Senate in 1952, Senator Saltonstall asked: 'Does the bill change the law in any way or only codify the present patent laws?' Senator McCarran, Chairman of the Judiciary Committee, responded: 'It codifies the present patent laws.' 98 Cong.Rec. 9323.
11
See the discussion in Graham v. John Deere Co., 383 U.S. 1, 7 et seq., 86 S.Ct. 684, 688, 15 L.Ed.2d 545 (1966).
| 78
|
406 U.S. 498
92 S.Ct. 1749
32 L.Ed.2d 257
LAKE CARRIERS' ASSOCIATION et al., Appellants,v.Ralph A. MacMULLAN et al.
No. 71-422.
Argued March 22 and 23, 1972.
Decided May 30, 1972.
Although Michigan authorities indicated that they would not prosecute under Michigan Watercraft Pollution Control Act of 1970 until adequate land-based pump-out facilities were available to service vessels equipped with sewage storage devices, where the authorities had sought to obtain compliance as soon as possible, and, to avoid prosecution, owners and operators of Great Lakes bulk cargo vessels would be required to install sewage storage devices to retain sewage on board as soon as pump-out facilities were available, there was an "actual controversy" as to validity of Act, within Declaratory Judgment Act, that was ripe for decision and complaint challenging Act should not have been dismissed on theory that an advisory opinion was sought. 28 U.S.C.A. § 2201; M.C.L.A. §§ 323.331 et seq., 323.333.
Syllabus
Michigan's Watercraft Pollution Control Act of 1970, appellees maintain, prohibits the discharge of sewage, whether treated or untreated, in Michigan waters and requires vessels with marine toilets to have sewage storage devices. Appellants, the Lake Carriers' Association and members owning or operating Great Lakes bulk cargo vessels, filed a complaint for declaratory and injunctive relief, contending that the Act unduly burdens interstate and foreign commerce; contravenes uniform maritime law; violates due process and equal protection requirements; and is invalid under the Supremacy Clause primarily because of conflict with or pre-emption by the Federal Water Pollution Control Act, as amended by the Water Quality Improvement Act of 1970. That law appears to contemplate sewage control after appropriate federal standards have been issued through on-board treatment before disposal in navigable waters, unless the Administrator of the Environmental Protection Agency provides on special application for a complete prohibition on discharge in designated areas. A three-judge District Court dismissed the complaint for lack of a justiciable controversy. The court also found 'compelling reasons to abstain from consideration of the matter in its present posture'—the attitude of the Michigan authorities, who are not threatening criminal prosecution but are seeking industry cooperation; the availability of declaratory relief in the Michigan courts; the possibility of a complete prohibition on the discharge of sewage in Michigan's navigable waters under federal law; the absence of existing conflict between the Michigan requirements and other state laws; and the publication of proposed federal standards that Michigan might consider in interpreting and enforcing its law. Held:
1. The complaint presents an 'actual controversy' within the meaning of the Declaratory Judgment Act because the obligation to install sewage storage devices under the Michigan statute is presently effective in fact. Pp. 506-508.
2. Abstention is permissible "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), justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Louisiana State Board Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964). Those circumstances do not include the majority of grounds given by the District Court. Pp. 509-510.
(a) The absence of an immediate threat of prosecution is not a reason for abstention. In the absence of a pending state proceeding, exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), distinguished. Pp. 509—510.
(b) The availability of declaratory relief in state courts on federal claims is not a reason for abstention. Zwickler v. Koota, supra, 389 U.S., at 248, 88 S.Ct., at 395. P. 510.
(c) Just as the possibility of a complete prohibition on the discharge of sewage in Michigan's navigable waters under federal law and the asserted absence of existing conflict between the Michigan requirements and other state laws do not diminish the immediacy and reality of appellants' grievance, they do not call for abstention. P. 510.
3. The Michigan statute, however, is unclear in particulars that go to the foundation of appellants' grievance and has not yet been construed by any Michigan court. In this circumstance abstention was appropriate because authoritative resolution of those ambiguities in the state courts is sufficiently likely to "avoid or modify the (federal) constitutional (questions)," Zwickler v. Koota, supra, 389 U.S. at 249, 88 S.Ct. at 396, appellants raise to warrant abstention, particularly in view of the absence of countervailing considerations found compelling in prior decisions. Pp. 510-513.
336 F.Supp. 248, vacated and remanded.
Scott H. Elder, Cleveland, Ohio, for appellants.
Robert A. Derengoski, Lansing, Mich., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This is an appeal from the judgment of a three-judge District Court, convened under 28 U.S.C. §§ 2281, 2284, dismissing a complaint to have the Michigan Watercraft Pollution Control Act of 1970, Mich.Comp.Laws Ann. § 323.331 et seq. (Supp.1971), declared invalid and its enforcement enjoined. 336 F.Supp. 248 (1971). We noted probable jurisdiction, 404 U.S. 982, 92 S.Ct. 450, 30 L.Ed.2d 366 (1971), and affirmed the District Court's determination to abstain from decision pending state court proceedings.
2
The Michigan statute, effective January 1, 1971, provides in pertinent part:
3
"Sec. 3. (1) A person (defined in § 2(i) to mean "an individual, partnership, firm, corporation, association or other entity") shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any . . . sewage (defined in § 2(d) to mean 'all human body wastes, treated or untreated") . . . or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.
4
"(2) It is unlawful to discharge, dump, throw or deposit . . . sewage . . . from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state.
5
"Sec. 4. (1) Any pleasure or recreational watercraft operated on the waters of this state which is moored or registered in another state or jurisdiction, if equipped with a pollution control device approved by that jurisdiction, may be approved by the (State Water Resources Commission of the Department of Natural Resources) to operate on the waters of this state.
6
"(2) A person owning, operating or otherwise concerned in the operation, navigation or management of a watercraft (defined in § 2(g) to include "foreign and domestic vessels engaged in commerce upon the waters of this state" as well as "privately owned recreational watercraft" having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices:
7
"(a) A holding tank or self-contained marine toilet which will retain all sewage produced on the watercraft for subsequent disposal at approved dockside or onshore collection and treatment facilities.
8
"(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution.
9
"Sec. 8. . . . Commercial docks and wharfs designed for receiving and loading cargo and/or freight from commercial watercraft must furnish facilities, if determined necessary, as prescribed by the commission, to accommodate discharge of sewage from heads and galleys . . . (of) the watercraft which utilize the docks or wharfs.
10
"Sec. 10. The commission may promulgate all rules necessary or convenient for the carrying out of duties and powers conferred by this act.
11
"Sec. 11. Any person who violates any provision of this act is guilty of a misdemeanor and shall be fined not more than $500.00. To be enforceable, the provision or the rule shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations."
12
Appellees—the State Attorney General, the Department of Natural Resources and its Director, and the Water Resources Commission and its Executive Secretary—read these provisions as prohibiting the discharge of sewage, whether treated or untreated, in Michigan waters and as requiring vessels with marine toilets to have sewage storage devices.
13
Appellants—the Lake Carriers' Association and individual members who own or operate federally enrolled and licensed Great Lakes bulk cargo vessels—challenge the Michigan law on a variety of grounds. They urge that the Michigan law is beyond the State's police power law places an undue burden on interstate and foreign commerce, impermissibly interferes with uniform maritime law, denies them due process and equal protection of the laws, and is unconstitutionally vague. They also contend that the Michigan statute conflicts with or is pre-empted by federal law, primarily1 the Federal Water Pollution Control Act, as amended by the Water Quality Improvement Act of 1970, and is therefore invalid under the Supremacy Clause. Under the Water Quality Improvement Act, the Administrator of the Environmental Protection Agency2 is directed "(a)s soon as possible, after April 3, 1970, . . . (to) promulgate Federal standards of performance for marine sanitation devices . . . which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters of the United States from new vessels and existing vessels, except vessels not equipped with installed toilet facilities." 84 Stat. 100, 33 U.S.C. § 1163(b)(1).3 These standards, which as of now are not issued,4 are to become effective for new vessels two years after promulgation and for existing vessels five years after promulgation. 84 Stat. 101, 33 U.S.C. § 1163(c)(1). Thereafter, "no State . . . shall adopt or enforce any statute or regulation . . . with respect to the design, manufacture, or installation or use of any marine sanitation device on any vessel subject to the provisions of this section." Id., § 1163(f). However, "(u)pon application by a State, and where the Secretary determines that any applicable water quality standards require such a prohibition, he shall by regulation completely prohibit the discharge from a vessel of any sewage (whether treated or not) into those waters of such State which are the subject of the application and to which such standards apply." Ibid. Thus, the federal law appears to contemplate sewage control through onboard treatment before disposal in navigable waters, unless the Administrator provides on special application for a complete prohibition on discharge in designated areas.
14
The District Court below did not reach the merits of appellants' complaint on the ground that "the lack of a justiciable controversy precludes entry of this Court into the matter." 336 F.Supp., at 253.5 "An overview of the factual situation presented by the evidence in this case," said the District Court, "compels but one conclusion: that the plaintiffs here are seeking an advisory opinion. . . ." Ibid. The District Court also found "compelling reasons to abstain from consideration of the matter in its present posture," ibid.—namely, "the attitude of Michigan authorities who seek the cooperation of the industry in the implementation of its program and have not instigated, nor does it appear, threatened criminal prosecutions," id., at 252;6 the availability of declaratory relief in Michigan courts; the possibility of a complete prohibition on the discharge of sewage in Michigan's navigable waters under federal law;7 the absence of existing conflict between the Michigan requirements and other state laws;8 and the publication of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute.9
15
Appellants now urge that their complaint does present an "actual controversy" within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201, that is ripe for decision. We agree. The test to be applied, of course, is the familiar one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941): "Basically, the question in each case is whether . . . there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Compare, e.g., ibid., with, e.g., Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Since, as appellees concede,10 the Michigan requirements on the discharge of sewage will be preempted when the federal standards become effective, the gist of appellants' grievance is that, according to Michigan authorities, they are required under Michigan law to install sewage storage devices that (1) may become unnecessary once federal standards, authorizing discharge of treated sewage, become applicable or (3) may, in any event, conflict with other state regulations pending the promulgation and effective date of the federal standards. The immediacy and reality of appellants' concerns do not depend, contrary to what the District Court may have considered, on the probability that federal standards will authorize discharge of treated sewage in Michigan waters or that other States will implement sewage control requirements inconsistent with those of Michigan. They depend instead only on the present effectiveness in fact of the obligation under the Michigan statute to install sewage storage devices. For if appellants are now under such an obligation, that in and of itself makes their attack on the validity of the law a live controversy, and not an attempt to obtain an advisory opinion. See, e.g., Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945) (existing burden on interstate commerce justiciable controversy in absence of federal pre-emption or other conflicting state laws).
16
Regarding the present effectiveness in fact of a statutory obligation, the plurality opinion in Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961), stated that a justiciable controversy does not exist where "compliance with (challenged) statutes is uncoerced by the risk of their enforcement." That, however, is not this case. Although appellees have indicated that they will not prosecute under the Michigan act until adequate landbased pump-out facilities are available to service vessels equipped with sewage storage devices, they have sought on the basis of the act and the threat of future enforcement to obtain compliance as soon as possible. The following colloquy that occurred on oral argument here is instructive, Tr. or Oral Arg. 34-35:
17
"(Appellees): . . . We urge that the leadtime for the construction or erection of pump-out facilities is necessary, and there would be no enforcement until pump-out facilities were available.
18
"Q. But you're insisting that the carriers get ready to comply and—
19
"(Appellees): Yes, sir.
20
"Q.—because if you wait until pump-out stations are ready to begin (servicing) tanks, then there will be another great delay?
21
"(Appellees): Oh, yes, sir.
22
"Q. So you have a rather concrete confrontation with these carriers now, don't you?
23
"(Appellees): Yes, sir, we do. . . ."
24
Thus, if appellants are to avoid prosecution, they must be prepared, according to Michigan authorities, to retain all sewage on board as soon as pump-out facilities are available, which, in turn, means that they must promptly install sewage storage devices.11 In this circumstance, compliance is coerced by the threat of enforcement, and the controversy is both immediate and real. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); City of Altus, Oklahoma v. Carr, 255 F.Supp. 828, aff'd per curiam, 385 U.S. 35, 87 S.Ct. 240, 17 L.Ed.2d 34 (1966). See generally, e.g., Comment, 62 Col.L.Rev. 106 (1962).12
25
Appellants next argue that the District Court erred in abstaining from deciding the merits of their complaint.13 We agree that abstention was not proper on the majority of grounds given by the District Court, but hold that abstention was, nevertheless, appropriate for another reason suggested but not fully articulated in its opinion. Abstention is a "judge-made doctrine . . ., first fashioned in 1941 in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (that) sanctions . . . excape (from immediate decision) only in narrowly limited "special circumstances," Propper v. Clark, 337 U.S. 472, 492, 93 L.Ed. 1480, 69 S.Ct. 1333, 1344." Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967), justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Louisiana State Board Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964). The majority of circumstances relied on by the District Court in this case do not fall within that category. First, the absence of an immediate threat of prosecution does not argue against reaching the merits of appellants' complaint. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), this Court held that, apart from "extraordinary circumstance," a federal court may not enjoin a pending state prosecution or declare invalid the statute under which the prosecution was brought. The decisions there were premised on considerations of equity practice and comity in our federal system that have little force in the absence of a pending state proceeding. In that circumstances, exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met. See generally Perez v. Ledesma, 401 U.S. 82, 93, 91 S.Ct. 674, 681, 27 L.Ed.2d 701 (1971) (separate opinion).
26
Similarly, the availability of declaratory relief in Michigan courts on appellants' federal claims is wholly beside the point. In Zwickler v. Koota, supra, 389 U.S., at 248, 88 S.Ct., at 395, we said:
27
"In thus (establishing jurisdiction for the exercise of) federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, ". . . to guard, enforce, and protect every right granted or secured by the constitution of the United States . . .," Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542, 551.'
28
Compare, e.g., Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). The possibility that the Administrator of the Environmental Protection Agency may upon Michigan's application forbid the discharge of even treated sewage in state waters and the asserted absence of present conflict between the Michigan requirements and other state laws are equally immaterial. Just as they do not diminish the immediacy and reality of appellants' grievance, they do not call for abstention.
29
The last factor relied on by the District Court—the publication of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute does, however, point toward considerations that fall within the 'special circumstances' permitting abstention. The paradigm case for abstention arises when the challenged state statute is susceptible of 'a construction by the state courts that would avoid or modify the (federal) constitutional question. Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. Compare Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377.' Zwickler v. Koota, supra, 389 U.S., at 249, 88 S.Ct., at 396. More fully, we have explained:
30
"Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication. . . . The doctrine . . . contemplates that deference to state court adjudication only be made 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).
31
That is precisely the circumstance presented here. The Michigan Watercraft Pollution Control Act of 1970 has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars that go to the foundation of their grievance. It is indeed only an assertion by appellees that the Michigan law proscribes the discharge of even treated sewage in state waters. Section 3(2) of the Act does state that "(i)t is unlawful to discharge . . . sewage . . . from a recreational, domestic or foreign watercraft used for pleasure or for (commerce) . . .," and § 4(2) does require vessels equipped with toilet facilities to have sewage storage devices.14 Yet § 3(1) seemingly contemplates the discharge of treated sewage by merely prohibiting any person from emitting sewage "which (renders) the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes." Moreover, § 11 provides that "(t)o be enforceable, the provision (of the Act) or the rule (presumably promulgated thereunder) shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations." Michigan has thus demonstrated concern that its pollution control requirements be sufficiently flexible to accord with federal law. We do not know, of course, how far Michigan courts will go in interpreting the requirements of the state Watercraft Pollution Control Act in light of the federal Water Quality Improvement Act15 and the constraints of the United States Constitution.16 But we are satisfied that authoritative resolution of the ambiguities in the Michigan law is sufficiently likely to avoid or significantly modify the federal questions appellants raise to warrant abstention, particularly in view of the absence of countervailing considerations that we have found compelling in prior decisions. See, e.g., Harman v. Forssenius, supra, at 537, 85 S.Ct., at 1183; Baggett v. Bullitt, 377 U.S. 360, 378—379, 84 S.Ct. 1316, 1326 1327, 12 L.Ed.2d 377 (1964).
32
In affirming the decision of the District Court to abstain, we, of course, intimate no view on the merits of appellants' claims. We do, however, vacate the judgment below and remand the case to the District Court with directions to retain jurisdiction pending institution by appellants of appropriate proceedings in Michigan courts. See Zwickler v. Koota, 389 U.S., at 244 n. 4, 88 S.Ct., at 393.
33
It is so ordered.
34
Vacated and remanded.
35
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, concurring in the result.
36
I agree that the complaint presents an actual controversy and that the District Court properly abstained. I therefore concur in the result and join the judgment of the Court.
37
Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, dissenting.
38
The three-judge court below assigned two grounds for dismissing appellants' complaint: (i) there was no justiciable controversy warranting a declaratory judgment; and (ii) this was an appropriate case for abstention by the federal courts until the Michigan Act is construed by its courts. 336 F.Supp. 248 (1971). This Court today affirms the decision of the court below to abstain, despite rejecting virtually all of the premises upon which it was based.
39
The opinion of this Court concludes, contrary to the holding below, that the controversy is justiciable and that a case for declaratory judgment relief was stated. The Court also concluded that 'abstention was not proper on the majority of grounds given by the District Court.' Nevertheless, and despite general disagreement with the trial court on the major issues, its decision to abstain is now affirmed.
40
As it seems to me that the central thrust of the Court's reasoning (with which I agree) requires reversal rather than affirmance of this decision, I file this dissent.
41
There is indeed a serious present controversy, involving important federal issues, and posing for the Lake Carriers an immediate choice between the possibility of criminal prosecution or the expenditure of substantial sums of money for antipollution devices and equipment which may not be compatible with the federal regulations which admittedly in due time will be pre-emptive. This presents a classic case for declaratory relief, 28 U.S.C. § 2201, Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). As the opinion of the Court states, 'compliance (with the Michigan law) is coerced by the threat of enforcement, and the controversy is both immediate and real.'
42
On the second question, that of abstention, the Court finally finds a ground in the possibility that the state courts of Michigan may construe the statute in a way that will avoid the federal questions. But this is a slender reed on which to rest a judgment. The Michigan statute is not ambiguous on the issue which appellants deem the most critical, namely, whether they are required under Michigan law to install at considerable expense sewage storage devices that may become unnecessary when federal standards become applicable. Section 4(2) of the Michigan Act is unequivocal, providing that vessels may not use marine toilets in Michigan waters unless equipped with:
43
"(a) A holding tank or self-contained marine toilet which will retain all sewage produced on the watercraft for subsequent disposal at approved dockside or onshore collection and treatment facilities.
44
"(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution." Section 3(2) flatly prohibits the discharge of sewage into Michigan waters.1 These two sections unmistakably express Michigan's decision in favor of retention or incineration of sewage aboard ships rather than its treatment and discharged into state waters.2
45
The majority opinion of the Court views § 3(1) as affording some flexibility and room for interpretation.3 Yet, it seems clear from the context of the entire statute that § 3(1) is a general statement of environmental purpose applicable to all persons (as defined), expressing the overall statutory objective of prohibiting pollution of Michigan waters. This section can hardly be construed to contradict the specific provisions of § 4(2) which relate to the owners and operators of foreign and domestic vessels engaged in commerce upon Michigan waters. Indeed, the Michigan State Attorney General, the Department of Natural Resources and its Director, and the Water Resources Commission and its Executive Secretary all read the statute as "designed to prevent appellants and others in their class from pouring their filth, no matter how well treated, into Michigan waters of the Great Lakes." (Emphasis supplied.) Brief for Appellees 16.4
46
Appellants have raised federal questions (as to the merits of which no opinion is expressed) which are important to the public as well as to the litigants. They have sought relief in a federal court, relying on "the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims." Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967). It seems probable that these federal questions will remain in their present posture, whatever interpretation may be placed upon the Michigan statute by a state court. The questions of congressional intent to preempt the regulation of marine sanitation devices and of multiple state regulatory schemes which may unduly burden interstate commerce are, in large measure, independent of the particular construction given the Michigan Act.
47
We have spoken previously of "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Louisiana State Board Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964). The relegation to state courts of this important litigation, involving major federal issues and affecting every ship operating in Michigan waters, is likely to result in serious delay, substantial expense to the parties (including the State), and a prolonging of the uncertainty which now exists.
48
I would reverse the judgment below and direct the District Court to proceed on the merits.
1
Appellants also contend that the Michigan law is pre-empted by the Steamboat Inspection Acts of Feb. 28, 1871, 16 Stat. 440, and of May 27, 1936, 49 Stat. 1380, as amended, 46 U.S.C. § 361 et seq. An amicus curiae, moreover, presses the contention, suggested in appellants' complaint, that the Michigan law conflicts with the United States-Canadian Boundary Waters Treaty of 1909, 36 Stat. 2448, as well as enters into the domain of foreign affairs constitutionally reserved to the National Government. See Brief of Dominion Marine Association amicus curiae.
2
The authority to administer the Water Quality Improvement Act, originally lodged in the Secretary of the Interior, was transferred to the Administrator of the Environmental Protection Agency by Reorganization Plan No. 3 of 1970, set out in the Appendix to Title 5 of the United States Code.
3
"Sewage" is defined under the Act to mean "human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes." 84 Stat. 100, 33 U.S.C. § 1163(a)(6).
4
A notice of proposed standards was, however, published on May 12, 1971. See 36 Fed.Reg. 8739.
5
The District Court also noted that "(w)ith regard to pre-emption, the Supreme Court in Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), held that Supremacy Clause cases are not within the purview of a three judge court." 336 F.Supp., at 253. Appellants correctly point out that in reinstating that rule, Wickham made clear that a three-judge court is the proper forum for all claims against the challenged statute so long as there is a nonfrivolous constitutional claim that constitutes a justiciable controversy and warrants, on allegations of irreparable harm, consideration for injunctive relief. See 382 U.S., at 122 n. 17, 125, 86 S.Ct., at 264, 266. Indeed, that was the explicit holding in Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80-81, 80 S.Ct. 568, 573-574, 4 L.Ed.2d 568 (1960), reaffirming prior cases. It is clear that appellants' complaint satisfies this test if the constitutional issues raised are justiciable controversies. Since we hold, infra, that they are, three-judge court jurisdiction exists over all of appellants' claims, including the Supremacy Clause issues.
6
The Michigan authorities have so far generally refrained from prosecution because adequate land-based pump-out facilities are not yet available to service vessels equipped with sewage storage devices. See infra, at 507—508. After oral argument here, the Solicitor General of Michigan informed us "that local officials in Cheboygan County, Michigan, have 'ticketed' a Coast Guard Captain for discharging sewage into the waters of the Great Lakes." However, "to assure the Court that Michigan will not depart from the representations it has made to the Court," the Solicitor General stated that he is "taking immediate steps to quash the charge or have the local court stay its hand until" the decision here.
7
Michigan has filed an application with the Administrator of the Environmental Protection Agency for a prohibition under 33 U.S.C. § 1163(f) on the discharge of any sewage, treated or untreated, into all of the State's waters subject to the Water Quality Improvement Act. The Administrator has indicated that any no-discharge regulation issued will not become effective before the effective date of the initial standards promulgated under § 1163(b) (1). See 36 Fed.Reg. 8739-8740. Appellants argue that the Administrator's authority to issue no-discharge regulations is narrow and could not encompass a complete prohibition on discharge throughout Michigan's navigable waters. Since we find, infra, that the possibility of such a prohibition is immaterial to the issues answered here, we need not now decide this question.
8
Appellants contend in this regard that the laws of other States dealing with the discharge of sewage are critically different from the Michigan statute in various respects. This question, too, we need not address, since we find, infra, that the presence or absence of conflicting state requirements is irrelevant.
9
See n. 4, supra.
10
Although appellees took an equivocal position on this question in oral argument here, see Tr. of Oral Arg. 36-39, the District Court below expressly found such a concession, see 336 F.Supp., at 255, and appellees repeated the concession in opposing appellants' jurisdictional statement. See Brief in Support of Motion to Dismiss or Affirm 11. In any event, the terms of the Water Quality Improvement Act are clear that pre-emption occurs at least when the initial federal standards promulgated under the Act become effective. See 33 U.S.C. § 1163(f), quoted in part supra, at 503—504. See also 36 Fed.Reg. 8739-8740.
11
Appellees stressed in oral argument here that '(t)he provision for pump-out facilities is no great mechanical accomplishment.' Tr. of Oral Arg. 35. This only reinforces the conclusion that appellants must, according to Michigan authorities, quickly get into a position to comply with the Michigan statute.
12
In coming to a contrary conclusion, the District Court relied heavily on Public Serv. Comm. v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952), where we held that declaratory relief was inappropriate in behalf of a carrier seeking a determination that its intrastate transportation constituted interstate commerce. The District Court's reliance on that decision was misplaced. As the Court said in Public Utilities Comm. of California v. United States, 355 U.S. 534, 538-539, 78 S.Ct. 446, 450, 2 L.Ed.2d 470 (1958), Wycoff Co. was a case 'where a carrier sought relief in a federal court against a state commission in order "to guard against the possibility", (344 U.S.), at 244, 73 S.Ct. 236 that the Commission would assume jurisdiction." Here, as in Public Utilities Comm. of California, the confrontation between the parties has already arisen, and "(t)he controversy is present and concrete . . .." 355 U.S., at 539, 78 S.Ct., at 450.
13
The question of abstention, of course, is entirely separate from the question of granting declaratory or injunctive relief. See generally Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).
14
We assume that these provisions apply to commercial watercraft, though even this is not textually clear. Section 3(2) in terms applies only to 'recreational' vessels, while § 4(2) despite the expansive definition of 'watercraft' in § 2(g)—could be similarly limited in
light of § 4(1), which governs only 'pleasure or recreational watercraft.'
15
The Michigan courts may also see fit to interpret the Michigan statute in light of the other Supremacy Clause arguments that have been made in this case. See n. 1, supra.
16
In the latter regard, see, e.g., Government and Civic Employees, etc. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957).
1
"It is unlawful to discharge, dump, throw or deposit garbage, litter, sewage or oil from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state." State of Michigan Act 167, Public Acts of 1970, § 3(2).
2
By defining "sewage" in § 2(d) of the Act to mean all human body wastes, treated or untreated (emphasis supplied), Michigan further precludes any possibility that discharge of treated sewage would be permitted.
3
"A person shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any litter, sewage, oil or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes." State of Michigan Act 167, Public Acts of 1970, § 3(1).
4
Nor do I agree with the majority that § 11 of the Michigan Act affords a reason for abstention. Section 11 provides that any provision or rule under the Act "shall be of such flexibility that a watercraft owner . . . is able to maintain maritime safety requirements and comply with the federal marine, and navigation laws and regulations." This language appears to relate only to federal safety, marine and navigation laws and regulations. It does not refer to the Federal Water Pollution Control Act or to federal laws relating to pollution. It is difficult to believe that this single sentence in § 11 of the Michigan Act could be construed to nullify the other affirmative provisions prohibiting altogether the discharge of sewage.
| 78
|
406 U.S. 605
92 S.Ct. 1891
32 L.Ed.2d 358
Donald L. BROOKS, Petitioner,v.State of TENNESSEE.
No. 71—5313.
Argued March 21, 22, 1972.
Decided June 7, 1972.
Syllabus
1. Tennessee's statutory requirement that a defendant in a criminal proceeding 'desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case' violates the defendant's privilege against self-incrimination. A defendant may not be penalized for remaining silent at the close of the State's case by being excluded from the stand later in the trial. Pp. 1892—1895.
2. The Tennessee rule also infringes the defendant's constitutional rights by depriving him of the 'guiding hand of counsel,' in deciding not only whether the defendant will testify but, if so, at what stage. P. 1895.
Jerry H. Summers, for petitioner.
Robert E. Kendrick, Nashville, Tenn., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner was tried and convicted in the Circuit Court of Hamilton County, Tennessee, on charges of armed robbery and unlawful possession of a pistol. During the trial, at the close of the State's case, defense counsel moved to delay petitioner's testimony until after other defense witnesses had testified. The trial court denied this motion on the basis of Tenn.Code Ann. § 40—2403 (1955), which requires that a criminal defendant 'desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case.'1 Although the prosecutor agreed to waive the statute, the trial court refused, stating that 'the law is, as you know it to be, that if a defendant testifies he has to testify first.' The defense called two witnesses, but petitioner himself did not take the stand.
2
Following the denial of his motion for new trial, petitioner appealed his conviction to the Tennessee Court of Criminal Appeals, which overruled his assignments of error, including his claim that § 40—2403 violated the State and Federal Constitutions. The Supreme Court of Tennessee denied review, and we granted certiorari to consider whether the requirement that a defendant testify first violates the Federal Constitution. 404 U.S. 955, 92 S.Ct. 328, 30 L.Ed.2d 271 (1971). We reverse.
3
* The rule that a defendant must testify first is related to the ancient practice of sequestering prospective witnesses in order to prevent their being influenced by other testimony in the case. See 6 J. Wigmore, Evidence § 1837 (3d ed. 1940). Because the criminal defendant is entitled to be present during trial, and thus cannot be sequestered, the requirement that he precede other defense witnesses was developed by court decision and statute as an alternative means of minimizing this influence as to him. According to Professor Wigmore, '(t)he reason for this rule is the occasional readiness of the interested person to adapt his testimony, when offered later, to victory rather than to veracity, so as to meet the necessities as laid open by prior witnesses . . .' Id., at § 1869.
4
Despite this traditional justification, the validity of the requirement has been questioned in a number of jurisdictions as a limitation upon the defendant's freedom to decide whether to take the stand. Two federal courts have rejected the contention, holding that a trial court does not abuse its discretion by requiring the defendant to testify first. United States v. Shipp, 359 F.2d 185, 189—190 (CA6 1966); Spaulding v. United States, 279 F.2d 65, 66—67 (CA9 1960). In Shipp, however, the dissenting judge strongly objected to the rule, stating:
5
'If the man charged with crime takes the witness stand in his own behalf, any and every arrest and conviction, even for lesser felonies, can be brought before the jury by the prosecutor, and such evidence may have devastating and deadly effect, although unrelated to the offense charged. The decision as to whether the defendant in a criminal case shall take the stand is, therefore, often of utmost importance, and counsel must, in many cases, meticulously balance the advantages and disadvantages of the prisoner's becoming a witness in his own behalf. Why, then, should a court insist that the accused must testify before any other evidence is introduced in his behalf, or be completely foreclosed from testifying thereafter? . . . This savors of judicial whim, even though sanctioned by some authorities; and the cause of justice and a fair trial cannot be subjected to such a whimsicality of criminal procedure.' 359 F.2d, at 190—191.
6
Other courts have followed this line of reasoning in striking down the rule as an impermissible restriction on the defendant's freedom of choice. In the leading case of Bell v. State, 66 Miss. 192, 5 So. 389 (1889), the court held the requirement to be reversible error, saying:
7
'It must often be a very serious question with the accused and his counsel whether he shall be placed upon the stand as a witness, and subjected to the hazard of cross-examination, and one which cannot be a question that he is not required to decide until upon a full survey of all the case, as developed by the state, and met by witnesses on his own behalf. He may intelligently weigh the advantages and disadvantages of his situation, and, thus advised, determine how to act. Whether he shall testify or not; if so, at what stage in the progress of his defense,—are equally submitted to the free and unrestricted choice of one accused of crime, and are in the very nature of things beyond the control or direction of the presiding judge. Control as to either is coercion, and coercion is denial of freedom of action.' Id., at 194, 5 So., at 389.
8
In Nassif v. District of Columbia, 201 A.2d 519 (DC Ct.App.1964), the court adopted the language and reasoning of Bell in concluding that the trial court had erred in applying the rule.
9
Although Bell, Nassif, and the Shipp dissent were not based on constitutional grounds, we are persuaded that the rule embodied in § 40—2403 is an impermissible restriction on the defendant's right against self-incrimination, 'to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.' Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). As these opinions demonstrate, a defendant's choice to take the stand carries with it serious risks of impeachment and cross-examination; it 'may open the door to otherwise inadmissible evidence which is damaging to his case,' McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971), including, now, the use of some confessions for impeachment purposes that would be excluded from the State's case in chief because of constitutional defects. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Although 'it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify,' McGautha v. California, supra, 402 U.S., at 215, 91 S.Ct., at 1471, none would deny that the choice itself may pose serious dangers to the success of an accused's defense.
10
Although a defendant will usually have some idea of the strength of his evidence, he cannot be absolutely certain that his witnesses will testify as expected or that they will be effective on the stand. They may collapse under skillful and persistent cross-examination, and through no fault of their own they may fail to impress the jury as honest and reliable witnesses. In addition, a defendant is sometimes compelled to call a hostile prosecution witness as his own.2 Unless the State provides for discovery depositions of prosecution witnesses, which Tennessee apparently does not,3 the defendant is unlikely to know whether this testimony will prove entirely favorable.
11
Because of these uncertainties, a defendant may not know at the close of the State's case whether his own testimony will be necessary or even helpful to his cause. Rather than risk the dangers of taking the stand, he might prefer to remain silent at that point, putting off his testimony until its value can be realistically assessed. Yet, under the Tennessee rule, he cannot make that choice 'in the unfettered exercise of his own will.' Section 40—2403 exacts a price for his silence by keeping him off the stand entirely unless he chooses to testify first.4 This, we think, casts a heavy burden on a defendant's otherwise unconditional right not to take the stand.5 The rule, in other words, 'cuts down on the privilege (to remain silent) by making its assertion costly.' Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965).6
12
Although the Tennessee statute does reflect a state interest in preventing testimonial influence, we do not regard that interest as sufficient to override the defendant's right to remain silent at trial.7 This is not to imply that there may be no risk of a defendant's coloring his testimony to conform to what has gone before. But our adversary system reposes judgment of the credibility of all witnesses in the jury. Pressuring the defendant to take the stand, by foreclosing later testimony if he refuses, is not a constitutionally permissible means of ensuring his honesty. It fails to take into account the very real and legitimate concerns that might motivate a defendant to exercise his right of silence. And it may compel even a wholly truthful defendant, who might otherwise decline to testify for legitimate reasons, to subject himself to impeachment and cross-examination at a time when the strength of his other evidence is not yet clear. For these reasons we hold that § 40 2403 violates an accused's constitutional right to remain silent insofar as it requires him to testify first for the defense or not at all.
II
13
For closely related reasons we also regard the Tennessee rule as an infringement on the defendant's right of due process as defined in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). There the Court reviewed a Georgia statute providing that a criminal defendant, though not competent to testify under oath, could make an unsworn statement at trial. The statute did not permit defense counsel to aid the accused by eliciting his statement through questions. The Court held that this limitation deprived the accused of "the guiding hand of counsel at every step in the proceedings against him,' Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, within the requirement of due process in that regard as imposed upon the States by the Fourteenth Amendment.' Id., at 572, 81 S.Ct., at 758. The same may be said of § 40—2403. Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right. By requiring the accused and his lawyer to make that choice without an opportunity to evaluate the actual worth of their evidence, the statute restricts the defense particularly counsel—in the planning of its case. Furthermore, the penalty for not testifying first is to keep the defendant off the stand entirely, even though as a matter of professional judgment his lawyer might want to call him later in the trial. The accused is thereby deprived of the 'guiding hand of counsel' in the timing of this critical element of his defense. While nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the order of proof, the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand.
14
Petitioner, then, was deprived of his constitutional rights when the trial court excluded him from the stand for failing to testify first. The State makes no claim that this was harmless error, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and petitioner is entitled to a new trial.
15
The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
16
Judgment reversed and case remanded.
17
Mr. Justice STEWART joins Part II of the opinion, and concurs in the judgment of the Court.
18
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.
19
This case is an example of the Court's confusing what it does not approve with the demands of the Constitution. As a matter of choice and policy—if I were a legislator, for example—I would not vote for a statute like that the Court strikes down today. But I cannot accept the idea that the Constitution forbids the States to have such a statute.
20
Of course, it is more convenient for a lawyer to defer the decision to have the accused take the stand until he knows how his other witnesses fare. By the same token, it is helpful for an accused to be able to adjust his testimony to what his witnesses have had to say on the matter. No one has seriously challenged the absolute discretion of a trial judge to exclude witnesses, other than the accused, from the courtroom until they are called to the stand. The obvious purpose is to get honest testimony and minimize the prospect that a witness will adjust and 'tailor' his version to fit what others have said; it seems somewhat odd to say the Constitution forbids all States to require the accused to give his version before his other witnesses speak, since it is not possible to exclude him from the courtroom, as is the common rule for witnesses who are not parties.
21
The Court's holding under the Fifth Amendment is admittedly unsupported by any authority and cannot withstand analysis. The Constitution provides only that no person shall 'be compelled in any criminal case to be a witness against himself.' It is undisputed that petitioner was not in fact compelled to be a witness against himself, as he did not take the stand. Nor was the jury authorized or encouraged to draw perhaps unwarranted inferences from his silence, as in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Petitioner was clearly not subjected to the obvious compulsion of being held in contempt for his silence, as in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), nor did the Tennessee procedure subject him to any other significant compulsion to testify other than the compulsion faced by every defendant who chooses not to take the stand—the knowledge that in the absence of his testimony the force of the State's evidence may lead the jury to convict. Cases such as Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), and Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), involving loss of employment or disbarment are therefore clearly inapposite. That should end the matter.
22
However, the Court distorts both the context and content of Malloy v. Hogan, supra, 378 U.S., at 8, 84 S.Ct., at 1493, by intimating that the Fifth Amendment may be violated if the defendant is forced to make a difficult choice as to whether to take the stand at some point in time prior to the conclusion of a criminal trial. But, as the Court pointed out only last Term in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), '(a)lthough a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.' Id., at 213, 91 S.Ct., at 1470. Indeed, the 'choice' we sustained in McGautha was far more difficult than that here, as the procedure there clearly exerted considerable force to compel the defendant to waive the privilege and take the stand in order to avoid the possibile imposition of the death penalty. See also Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). There is no such pressure here. The majority's rationale would lead to the absurd result that the State could not even require the defendant to finally decide whether he wishes to take the stand prior to the time the jury retires for deliberations, for, even at that point, he 'may not know . . . whether his own testimony will be necessary or even helpful to his cause.' Even then, he might 'prefer to remain silent . . . putting off his testimony until its value can be realistically assessed.' In short, even at the close of the defense case, his decision to take the stand is not unfettered by the difficulty to make the hard choice to waive the privilege. Perhaps the defendant's decision will be easier at the close of all the evidence. Perhaps not. The only 'burden' cast on the defendant's choice to take the stand by the Tennessee procedure is the burden to make the choice at a given point in time. That the choice might in some cases be easier if made later is hardly a matter of constitutional dimension.
23
The Court's holding that the Tennessee rule deprives the defendant of the 'guiding hand of counsel' at every stage of the proceedings fares no better, as Mr. Justice REHNQUIST clearly demonstrates. It amounts to nothing more than the assertion that counsel may not be restricted by ordinary rules of evidence and procedure in presenting an accused's defense if it might be more advantageous to present it in some other way. A rule forbidding defense counsel to ask leading questions of the defendant when he takes the stand may restrict defense counsel in his options and may in many cases bear only remote relationship to the goal of truthful testimony. Yet no one would seriously contend that such a universal rule of procedure is prohibited by the Constitution. The rule that the defendant waives the Fifth Amendment privilege as to any and all relevant matters when he decides to take the stand certainly inhibits the choices and options of counsel, yet this Court has never questioned such a rule and reaffirmed its validity only last Term. See McGautha v. California, 402 U.S., at 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711. Countless other rules of evidence and procedure of every State may interfere with the 'guiding hand of counsel.' The Court does not explain why the rule here differs from those other rules.
24
Perhaps this reflects what is the true, if unspoken, basis for the Court's decision; that is, that in the majority's view the Tennessee rule is invalid because it is followed presently by only two States in our federal system. But differences in criminal procedures among our States do not provide an occasion for judicial condemnation by this Court.
25
This is not a case or an issue of great importance, except as it erodes the important policy of allowing diversity of method and procedure to the States to the end that they can experiment and innovate, and retreat if they find they have taken a wrong path. Long ago, Justice Brandeis spoke of the need to let 'a single courageous State' try what others have not tried or will not try. New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (dissenting opinion); see Fay v. New York, 332 U.S. 261, 296, 67 S.Ct. 1613, 1631, 91 L.Ed. 2043 (1947) (Jackson, J.). In the faltering condition of our machinery of justice this is a singularly inappropriate time to throttle the diversity so essential in the search for improvement.
26
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
27
The Court's invalidation of the Tennessee statute challenged here is based upon both its stated repugnance to the privilege against self-incrimination and its infringement of counsel's right to plan the presentation of his case.
28
While it is possible that this statute regulating the order of proof in criminal trials might in another case raise issues bearing on the privilege against self-incrimination, its application in this case certainly has not done so. Petitioner Brooks never took the stand, and it is therefore difficult to see how his right to remain silent was in any way infringed by the State. Whatever may be the operation of the statute in other situations, petitioner cannot assert that it infringed his privilege against self-incrimination—a privilege which he retained inviolate throughout the trial.
29
The Court's alternative holding that the Tennessee statute infringes the right of petitioner's counsel to plan the presentation of his case creates a far more dominant role for defense counsel than that indicated by the language of the Constitution. While cases such as Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), establish the fundamental nature of the constitutional right to the assistance of counsel, no case previously decided by this Court elevates defense counsel to the role of impresario with respect to decisions as to the order in which witnesses shall testify at the trial.
30
This Court and other courts have repeatedly held that the control of the order of proof at trial is a matter primarily entrusted to the discretion of the trial court. See, e.g., Thiede v. Utah Territory, 159 U.S. 510, 519, 16 S.Ct. 62, 65, 40 L.Ed. 237 (1895); Nelson v. United States, 415 F.2d 483, 487 (CA5 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970); Horowitz v. Bokron, 337 Mass. 739, 151 N.E.2d 480 (1958); Small v. State, 165 Neb. 381, 85 N.W.2d 712 (1957). The notion that the Sixth Amendment allows defense counsel to overrule the trial judge as to the order in which witnesses shall be called stands on its head the traditional understanding of the defendant's right to counsel. Defense counsel sits at the side of the accused, not to take over the conduct of the trial, but to advise the accused as to various choices available to him within the limits of existing state practice and procedure.
31
I could understand, though I would not agree with, a holding that under these circumstances the Fourteenth Amendment conferred a right upon the defendant, counseled or not, to decide at what point during the presentation of his case to take the stand. But to cast the constitutional issue in terms of violation of the defendant's right to counsel suggests that defense counsel has an authority of constitutional dimension to determine the order of proof at trial. It is inconceivable to me that the Court would permit every preference of defense counsel as to the order in which defense witnesses were to be called to prevail over a contrary ruling of the trial judge in the exercise of his traditional discretion to control the order of proof at trial. The crucial fact here is not that counsel wishes to have a witness take the stand at a particular time, but that the defendant whether advised by counsel or otherwise—wishes to determine at what point during the presentation of his case he desires to take the stand. Logically the benefit of today's ruling should be available to a defendant conducting his own defense who has waived the right of counsel, but since the Court insists on putting the issue in terms of the advice of counsel, rather than in terms of defense control over the timing of defendant's appearance, the application of today's holding to that situation is by no means clear.
32
The Tennessee statute in question is, as the Court notes in its opinion, based upon an accommodation between the traditional policy of sequestering prospective witnesses before they testify and the right of the criminal defendant to be present during his trial. Since the defendant may not be sequestered against his will while other witnesses are testifying, the State has placed a more limited restriction on the presentation of his testimony. The defendant is required to testify, if he chooses to do so, as the first witness for the defense. The State applies the same rule evenhandedly to the prosecuting witness, if there be one; he, too, must testify first. While it is perfectly true that the prosecution is given no constitutional right to remain silent, this fact does not detract from the evident fairness of Tennessee's effort to accommodate the two conflicting policies.
33
The state rule responds to the fear that interested parties, if allowed to present their own testimony after other disinterested witnesses have testified, may well shape their version of events in a way inconsistent with their oath as witnesses. This fear is not groundless, nor is its importance denigrated by vague generalities such as the statement that 'our adversary system reposes judgment of the credibility of all witnesses in the jury.' Ante, at 611. Assuredly the traditional common-law charge to the jury confides to that body the determination as to the truth or falsity of the testimony of each witness. But the fact that the jury is instructed to make such a determination in reaching its verdict has never been thought to militate against the desirability, to say nothing of the constitutionality, of additional inhibitions against perjury during the course of a trial. The traditional policy of sequestering nonparty witnesses, the requirement of an oath on the part of all witnesses, and the opportunity afforded for cross-examination of witnesses are but examples of such inhibitions. As a matter of constitutional judgment it may be said that the effectuation of this interest has been accomplished by Tennessee at too high a price, but the importance of the interest itself cannot rationally be dispelled by loose assertions about the role of the jury.
34
In view of the strong sanction in history and precedent for control of the order of proof by the trial court, I think that Tennessee's effort here to restrict the choice of the defendant as to when he shall testify, in the interest of minimizing the temptation to perjury, does not violate the Fourteenth Amendment. I would therefore affirm the judgment below.
1
Section 40—2403 was first enacted in 1887 as part of a Tennessee statute that provided that criminal defendants were competent to testify on their own behalf. That statute appears in the Tennessee Code Annotated as follows:
'§ 40—2402. Competency of defendant.—In the trial of all indictments, presentments, and other criminal proceedings, the party defendant thereto may, at his own request, but not otherwise, be a competent witness to testify therein.
'§ 40—2403. Failure of defendant to testify—Order of testimony.—The failure of the party defendant to make such request and to testify in his own behalf, shall not create any presumption against him. But the defendant desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case.'
2
The instant case is an apt illustration. After the State had rested, defense counsel requested permission to call the local chief of police as a hostile witness, and to cross-examine him about the circumstances surrounding petitioner's lineup. Because the police chief had not testified, though he was subpoenaed by the State, the trial court denied the motion, ruling that the chief will 'be your witness if you call him.'
3
Tenn.Code Ann. § 40—2428 provides:
'The accused may, by order of the court, have the depositions of witnesses taken in the manner prescribed for taking depositions in civil cases, on notice to the district attorney.'
However, a recent decision by the Tennessee Court of Criminal Appeals holds that this statute does not give the defendant in a criminal case the right to take a discovery deposition. Craig v. State, Tenn.Cr.App., 455 S.W.2d 190 (1970).
4
The failure to testify first not only precludes any later testimony by defendant concerning new matters, but may also preclude testimony offered in rebuttal of State's witnesses. Arnold v. State, 139 Tenn. 674, 202 S.W. 935 (1918), holds that a defendant may testify in rebuttal if he has testified first on direct. According to the parties, there is no Tennessee case holding that a defendant who does not testify first may later take the stand in rebuttal.
5
That burden is not lightened by the fact that Tennessee courts also require the chief prosecuting witness to testify first for the State if he chooses to remain in the courtroom after other witnesses are sequestered. Smartt v. State, 112 Tenn. 539, 80 S.W. 586 (1904). Despite its apparent attempt at symmetry, this rule does not restrict the prosecution in the same way as the defense, for the State has a certain latitude in designating its prosecuting witness, choosing for example between the victim of the crime and the investigating officer. A more fundamental distinction, of course, is that the State, through its prosecuting witness, does not share the defendant's constitutional right not to take the stand. Thus, the choice to present the prosecuting witness first or not at all does not raise a constitutional claim secured to the State, as it does in the situation of the defendant.
6
The dissenting opinions suggest that there can be no violation of the right against self-incrimination in this case because Brooks never took the stand. But the Tennessee rule imposed a penalty for petitioner's initial silence, and that penalty constitutes the infringement of the right.
7
It is not altogether clear that the State itself regards the interest as more than minimally important. It has long been the rule in Tennessee that the statute may be waived, see Martin v. State, 157 Tenn. 383, 8 S.W.2d 479 (1928), and an offer of waiver was made by the prosecutor in this case, though not accepted by the trial court.
| 01
|
406 U.S. 682
92 S.Ct. 1877
32 L.Ed.2d 411
Thomas KIRBY, etc., Petitioner,v.State of ILLINOIS.
No. 70—5061.
Argued Nov. 11, 1971.
Reargued March 20 and 21, 1972.
Decided June 7, 1972.
Syllabus
Petitioner and a companion were stopped for interrogation. When each produced, in the course of demonstrating identification, items bearing the name 'Shard,' they were arrested and taken to the police station. There, the arresting officers learned of a robbery of one 'Shard' two days before. The officers sent for Shard, who immediately identified petitioner and his companion as the robbers. At the time of the confrontation petitioner and his companion were not advised of the right to counsel, nor did either ask for or receive legal assistance. Six weeks later, petitioner and his companion were indicted for the Shard robbery. At the trial, after a pre-trial motion to suppress his testimony had been overruled, Shard testified as to his previous identification of petitioner and his companion, and again identified them as the robbers. The defendants were found guilty and petitioner's conviction was upheld on appeal, the appellate court holding that the per se exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 did not apply to pre-indictment confrontations. Held: The judgment is affirmed. Pp. 687—691.
121 Ill.App.2d 323, 257 N.E.2d 589, affirmed.
Mr. Justice STEWART, joined by THE CHIEF JUSTICE Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST, concluded that a showup after arrest, but before the initiation of any adversary criminal proceeding (whether by way of formal charge, preliminary hearing, indictment, information, or arraignment), unlike the post-indictment confrontations involved in Gilbert and Wade, is not a criminal prosecution at which the accused, as a matter of absolute right, is entitled to counsel. Pp. 687—691.
Mr. Justice POWELL concurred in the result. P. 691.
Michael P. Seng and Jerold S. Solovy, Chicago, Ill., for petitioner.
James B. Zagel, Chicago, Ill., for respondent.
Ronald M. George, Los Angeles, Cal., for the State of Cal., as amicus curiae, by special leave of Court.
Mr. Justice STEWART announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join.
1
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 this Court held 'that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth (and Fourteenth) Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.' Gilbert v. California, supra, at 272, 87 S.Ct. at 1956. Those cases further held that no 'in-court identifications' are admissible in evidence if their 'source' is a lineup conducted in violation of this constitutional standard. 'Only a per se exclusionary rule as to such testimony can be an effective sanction,' the Court said, 'to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup.' Id., at 273, 87 S.Ct., at 1957. In the present case we are asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense.
2
On February 21, 1968, a man named Willie Shard reported to the Chicago police that the previous day two men had robbed him on a Chicago street of a wallet containing, among other things, traveler's checks and a Social Security card. On February 22, two police officers stopped the petitioner and a companion, Ralph Bean, on West Madison Street in Chicago.1 When asked for identification, the petitioner produced a wallet that contained three traveler's checks and a Social Security card, all bearing the name of Willie Shard. Papers with Shard's name on them were also found in Bean's possession. When asked to explain his possession of Shard's property, the petitioner first said that the traveler's checks were 'play money,' and then told the officers that he had won them in a crap game. The officers then arrested the petitioner and Bean and took them to a police station.
3
Only after arriving at the police station, and checking the records there, did the arresting officers learn of the Shard robbery. A police car was then dispatched to Shard's place of employment, where it picked up Shard and brought him to the police station. Immediately upon entering the room in the police station where the petitioner and Bean were seated at a table, Shard positively identified them as the men who had robbed him two days earlier. No lawyer was present in the room, and neither the petitioner nor Bean had asked for legal assistance, or been advised of any right to the presence of counsel.
4
More than six weeks later, the petitioner and Bean were indicted for the robbery of Willie Shard. Upon arraignment, counsel was appointed to represent them, and they pleaded not guilty. A pretrial motion to suppress Shard's identification testimony was denied, and at the trial Shard testified as a witness for the prosecution. In his testimony he described his identification of the two men at the police station on February 22,2 and identified them again in the courtroom as the men who had robbed him on February 20.3 He was cross-examined at length regarding the circumstances of his identification of the two defendants. Cf. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. The jury found both defendants guilty, and the petitioner's conviction was affirmed on appeal. People v. Kirby, 121 Ill.App.2d 323, 257 N.E.2d 589.4 The Illinois appellate court held that the admission of Shard's testimony was not error, relying upon an earlier decision of the Illinois Supreme Court, People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173, holding that the Wade-Gilbert per se exclusionary rule is not applicable to preindictment confrontations. We granted certiorari, limited to this question. 402 U.S. 995, 91 S.Ct. 2178, 29 L.Ed.2d 160.5
5
* We note at the outset that the constitutional privilege against compulsory self-incrimination is in no way implicated here. The Court emphatically rejected the claimed applicability of that constitutional guarantee in Wade itself:
6
'Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege 'protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . .' Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908. . . .' 388 U.S., at 221, 87 S.Ct. at 1929.
7
'We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose to any knowledge he might have. . . .' Id., at 222, 87 S.Ct. at 1930.
8
It follows that the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, has no applicability whatever to the issue before us; for the Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory that custodial interrogation is inherently coercive.
9
The Wade-Gilbert exclusionary rule, by contrast, stems from a quite different constitutional guarantee—the guarantee of the right to counsel contained in the Sixth and Fourteenth Amendments. Unless all semblance of principled constitutional adjudication is to be abandoned, therefore, it is to the decisions construing that guarantee that we must look in determining the present controversy.
10
In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.
11
This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment,6 and the Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
12
The only seeming deviation from this long line of constitutional decisions was Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. But Escobedo is not apposite here for two distinct reasons. First, the Court in retrospect perceived that the 'prime purpose' of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, 'to guarantee full effectuation of the privilege against self-incrimination . . .' Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882. Secondly, and perhaps even more important for purely practical purposes, the Court has limited the holding of Escobedo to its own facts, Johnson v. New Jersey, supra, at 733—734, 86 S.Ct. at 1780, and those facts are not remotely akin to the facts of the case before us.
13
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable.7 See Powell v. Alabama, 287 U.S., at 66—71, 53 S.Ct., at 63; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (Douglas, J., concurring).
14
In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: 'The rationale of those cases was that an accused is entitled to counsel at any 'critical stage of the prosecution,' and that a post-indictment lineup is such a 'critical stage." (Emphasis supplied.) Simmons v. United States, 390 U.S. 377, 382—383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247. We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.
II
15
What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always necessary to 'scrutinize any pretrial confrontation . . .' 388 U.S., at 227, 87 S.Ct. at 1932. The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402.8 When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.
16
The judgment is affirmed.
17
Mr. Chief Justice BURGER, concurring.
18
I agree that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a 'criminal prosecution.' Therefore, I join in the plurality opinion and in the judgment. Cf. Coleman v. Alabama, 399 U.S. 1, 21, 90 S.Ct. 1999, 2009, 26 L.Ed.2d 387 (dissenting opinion).
19
Mr. Justice POWELL, concurring in the result.
20
As I would not extend the Wade-Gilbert per se exclusionary rule, I concur in the result reached by the Court.
21
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
22
After petitioner and Ralph Bean were arrested, police officers brought Willie Shard, the robbery victim, to a room in a police station where petitioner and Bean were seated at a table with two other police officers. Shard testified at trial that the officers who brought him to the room asked him if petitioner and Bean were the robbers and that he indicated they were. The prosecutor asked him, 'And you positively identified them at the police station, is that correct?' Shard answered, 'Yes.' Consequently, the question in this case is whether, under Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), it was constitutional error to admit Shard's testimony that he identified petitioner at the pretrial station-house showup when that showup was conducted by the police without advising petitioner that he might have counsel present. Gilbert held, in the context of a post-indictment lineup, that '(o)nly a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup.' Id., at 273, 87 S.Ct. at 1957. I would apply Gilbert and the principles of its companion case, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and reverse.1
23
In Wade, after concluding that the lineup conducted in that case did not violate the accused's right against self-incrimination, id., at 221—223, 87 S.Ct., at 1929,2 the Court addressed the argument 'that the assistance of counsel at the lineup was indispensable to protect Wade's most basis right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined,' id., at 223—224, 87 S.Ct., at 1930. The Court began by emphasizing that the Sixth Amendment guarantee 'encompasses counsel's assistance whenever necessary to assure a meaningful 'defence." Id., at 225, 87 S.Ct., at 1931. After reviewing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Court, 388 U.S., at 225, 87 S.Ct., at 1931, focused upon two cases that involved the right against self-incrimination:
24
'In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel's presence if the accused was to have fair opportunity to present a defense at the trial itself . . ..' United States v. Wade, 388 U.S., at 225—226, 87 S.Ct., at 1931.3
25
'(I)n Miranda v. State of Arizona, 384, U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation.' Id., at 226, 87 S.Ct., at 1932.
26
The Court then pointed out that 'nothing decided or said in the opinions in (Escobedo and Miranda) links the right to counsel only to protection of Fifth Amendment rights.' Ibid. To the contrary, the Court said, those decisions simply reflected the constitutional
27
'principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment . . ..' Id., at 226—227, 87 S.Ct., at 1932.
28
This analysis led to the Court's formulation of the controlling principle for pretrial confrontations:
29
'In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pre trial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.' Id., at 227, 87 S.Ct., at 1932 (emphasis in original).
30
It was that constitutional principle that the Court applied in Wade to pretrial confrontations for identification purposes. The Court first met the Government's contention that a confrontation for identification is 'a mere preparatory step in the gathering of the prosecution's evidence,' much like the scientific examination of fingerprints and blood samples. The Court responded that in the latter instances 'the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts.' The accused thus has no right to have counsel present at such examinations: 'they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial.' Id., at 227—228, 87 S.Ct., at 1933.
31
In contrast, the Court said, 'the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.' Id., at 228, 87 S.Ct., at 1932. Most importantly, 'the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification.' Id., at 231—232, 87 S.Ct., at 1934. The Court's analysis of pretrial confrontations for identification purposes produced the following conclusion:
32
'Insofar as the accused's conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness—'that's the man." Id., at 235—236, 87 S.Ct., at 1936.
33
The Court then applied that conclusion to the specific facts of the case. 'Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) . . . as at the trial itself." Id., at 236—237, 87 S.Ct., at 1937.
34
While it should go without saying, it appears necessary, in view of the plurality opinion today, to re-emphasize that Wade did not require the presence of counsel at pretrial confrontations for identification purposes simply on the basis of an abstract consideration of the words 'criminal prosecutions' in the Sixth Amendment. Counsel is required at those confrontations because 'the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification,' Id., at 235, 87 S.Ct., at 1936,4 mean that protection must be afforded to the 'most basic right (of) a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined,' id., at 224, 87 S.Ct., at 1930. Indeed, the Court expressly stated that '(L)egislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as 'critical." Id., at 239, 87 S.Ct., at 1938; see Id., at 239 n. 30, 87 S.Ct., at 1938; Gilbert v. California, 388 U.S., at 273, 87 S.Ct. at 1957, 18 L.Ed.2d 1178. Hence, 'the initiation of adversary judicial criminal proceedings,' ante, at 689, is completely irrelevant to whether counsel is necessary at a pretrial confrontation for identification in order to safeguard the accused's constitutional rights to confrontation and the effective assistance of counsel at his trial.
35
In view of Wade, it is plain, and the plurality today does not attempt to dispute it, that there inhere in a confrontation for identification conducted after arrest5 the identical hazards to a fair trial that inhere in such a confrontation conducted 'after the onset of formal prosecutional proceedings.' Id., at 227. The plurality apparently considers an arrest, which for present purposes we must assume to be based upon probable cause, to be nothing more than part of 'a routine police investigation,' ibid., and thus not 'the starting point of our whole system of adversary criminal justice,' id., at 689.6 An arrest, according to the plurality, does not face the accused 'with the prosecutiorial forces of organized society,' nor immerse him 'in the intricacies of substantive and procedural criminal law.' Those consequences ensue, says the plurality, only with '(t)he initiation of judicial criminal proceedings,' '(f)or it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.' Ibid.7 If these propositions do not amount to 'mere formalism,' ibid., it is difficult to know how to characterize them.8 An arrest evidences the belief of the police that the perpetrator of a crime has been caught. A post-arrest confrontation for identification is not 'a mere preparatory step in the gathering of the prosecution's evidence.' Wade, supra, at 227, 87 S.Ct. at 1932. A primary, and frequently sole, purpose of the confrontation for identification at that stage is to accumulate proof to buttress the conclusion of the police that they have the offender in hand. The plurality offers no reason, and I can think of none, for concluding that a post-arrest confrontation for identification, unlike a post-charge confrontation, is not among those 'critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality.' Id., at 224, 87 S.Ct. at 1930.
36
The highly suggestive form of confrontation employed in this case underscores the point. This showup was particularly fraught with the peril of mistaken identification. In the setting of a police station squad room where all present except petitioner and Bean were police officers, the danger was quite real that Shard's understandable resentment might lead him too readily to agree with the police that the pair under arrest, and the only persons exhibited to him, were indeed the robbers. 'It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police.' Id., at 234, 87 S.Ct. at 1936. The State had no case without Shard's identification testimony,9 and safeguards against that consequences were therefore of critical importance. Shard's testimony itself demonstrates the necessity for such safeguards. On direct examination, Shard identified petitioner and Bean not as the alleged robbers on trial in the courtroom, but as the pair he saw at the police station. His testimony thus lends strong support to the observation, quoted by the Court in Wade, 388 U.S., at 229, 87 S.Ct. at 1933, 18 L.Ed.2d 1149, that '(i)t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.' Williams & Hammelmann, Identification Parades, Part I, (1963) Crim.L.Rev. 479, 482.
37
The plurality today 'decline(s) to depart from (the) rationale' of Wade and Gilbert. Ante, at 690. The plurality discovers that 'rationale' not by consulting those decisions themselves, which would seem to be the appropriate course, but by reading one sentence in Simmons v. United States, 390 U.S. 377, 382—383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968), where no right-to-counsel claim was either asserted or considered. The 'rationale' the plurality discovers is, apparently, that a post-indictment confrontation for identification is part of the prosecution. The plurity might have discovered a different 'rationale' by reading one sentence in Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402 (1969), a case decided after Simmons, where the Court explained that in Wade and Gilbert 'this Court held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a 'critical stage' in the prosecution, at which the accused must be given the opportunity to be represented by counsel.' In Foster, moreover, although the Court mentioned that the lineups took place after the accused's arrest, it did not say whether they were also after the information was filed against him.10 Instead, the Court simply pointed out that under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), Wade and Gilbert were 'applicable only to lineups conducted after those cases were decided.' 394 U.S., at 442, 89 S.Ct. at 1128. Similarly, in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), another case involving a pre-Wade lineup, no member of the Court saw any significance in whether the accused had been formally charged with a crime before the lineup was held.11
38
The plurality might also have discovered a different 'rationale' for Wade and Gilbert had it examined Stovall v. Denno, supra, decided the same day. In Stovall, the confrontation for identification took place one day after the accused's arrest. Although the accused was first brought to an arraignment, it 'was postponed until (he) could retain counsel.' 388 U.S., at 295, 87 S.Ct., at 1969. Hence, in the plurality's terms today, the confrontation was held 'before the commencement of any prosecution.' Ante, at 690.12 Yet in that circumstance the Court in Stovall stated that the accused raised 'the same alleged constitutional errors in the admission of allegedly tainted identification evidence that were before us' in Wade and Gilbert. The Court therefore found that the case 'provide(d) a vehicle for deciding the extent to which the rules announced in Wade and Gilbert requiring the exclusion of identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of his counsel—are to be applied retroactively.' 388 U.S., at 294, 87 S.Ct., at 1968. Indeed, the Court's explicit holding was 'that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date. The rulings of Wade and Gilbert are therefore inapplicable in the present case.' Id., at 296, 87 S.Ct., at 1969. Hence, the accused in Stovall did not receive the benefit of the new exclusionary rules because they were not applied retroactively; he was not denied their benefit because his confrontation took place before he had 'been formally charged with a criminal offense.' Ante, at 691. Moreover, in the course of its retroactivity discussion, 388 U.S., at 296—301, 87 S.Ct., at 1969 1972, the Court repeated the phrase 'pre-trial confrontations for identification' or its equivalent no less than 10 times. Not once did the Court so much as hint that Wade and Gilbert applied only to confrontations after the accused 'had been indicted or otherwise formally charged with (a) criminal offense.' Ante, at 684. In fact, at one point the Court summarized Wade as holding 'that the confrontation (for identification) is a 'critical stage,' and that counsel is required at all confrontations.' 388 U.S., at 298, 87 S.Ct. at 1971 (emphasis added).
39
Wade and Gilbert, of course, happened to involve post-indictment confrontations. Yet even a cursory perusal of the opinions in those cases reveals that nothing at all turned upon that particular circumstance.13 In short, it is fair to conclude that rather than 'declin(ing) to depart from (the) rationale' of Wade and Gilbert, ante, at 690, the plurality today, albeit purporting to be engaged in 'principled constitutional adjudication,' id., at 688, refuses even to recognize that 'rationale.' For my part, I do not agree that we 'extend' Wade and Gilbert, id., at 688, by holding that the principles of those cases apply to confrontations for identification conducted after arrest.14 Because Shard testified at trial about his identification of petitioner at the police station showup, the exclusionary rule of Gilbert, 388 U.S., at 272—274, 87 S.Ct. at 1956, 18 L.Ed.2d 1178, requires reversal.
40
Mr. Justice WHITE, dissenting.
41
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), govern this case and compel reversal of the judgment below.
1
The officers stopped the petitioner and his companion because they thought the petitioner was a man named Hampton, who was 'wanted' in connection with an unrelated criminal offense. The legitimacy of this stop and the subsequent arrest is not before us.
2
'Q. All right. Now, Willie, calling your attention to February 22, 1968, did you receive a call from the police asking you to come down to the station?
'A. Yes, I did.
'Q. When you went down there, what if anything, happened, Willie?
'A. Well, I seen the two men was down there who robbed me.
'Q. Who took you to the police station?
'A. The policeman picked me up.
'MR. POMARO: Q. When you went to the police station did you see the two defendants?
'A. Yes, I did.
'Q. Do you see them in Court today?
'A. Yes, sir.
'Q. Point them out, please?
'A. Yes, that one there and the other one. (Indicating.)
'MR. POMARO: Indicating for the record the defendants Bean and Kirby.
'Q. And you positively identified them at the police station, is that correct?
'A. Yes.
'Q. Did any police officer make any suggestion to you whatsoever?
'THE WITNESS: No, they didn't.'
3
'Q. Willie, when you looked back, when you were walking down the street and first saw the defendants, when you looked back, did you see them then?
'A. Yes, I seen them.
'Q. Did you get a good look at them then?
'A. Yes, I did.
'Q. All right. Now, when they grabbed you and took your money, did you see them then?
'A. Yes, I did.
'Q. Did you get a good look at them then?
'A. Yes.
'Q. Both of them?
'A. Correct.
'Q. When they walked away did you see them then?
'A. Yes.
'Q. Did you look at them, Willie?
'A. Yes.
'Q. Did you get a good look at them?
'A. Yes.
'Q. Are those the same two fellows? Look at them, Willie.
'A. Correct.
'Q. Are those the same two that robbed you?
'A. Yes.
'Q. You are sure, Willie?
'A. Yes.'
4
Bean's conviction was reversed. People v. Bean, 121 Ill.App.2d 332, 257 N.E.2d 562.
5
The issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely divided the courts. Compare State v. Fields, 104 Ariz. 486, 455 P.2d 964; Perkins v. State, 228 So.2d 382 (Fla.); Buchanan v. Commonwealth, 210 Va. 664, 173 S.E.2d 792; State v. Walters, 457 S.W.2d 817 (Mo.), with United States v. Greene, 139 U.S.App.D.C. 9, 429 F.2d 193; Rivers v. United States, 400 F.2d 935 (CA5); United States v. Phillips, 427 F.2d 1035 (CA9); Commonwealth v. Guillory, 356 Mass. 591, 254 N.E.2d 427; People v. Fowler, 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643; Palmer v. State, 5 Md.App. 691, 249 A.2d 482; People v. Hutton, 21 Mich.App. 312, 175 N.W.2d 860; Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738; In re Holley, 107 R.I. 615, 268 A.2d 723; Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625.
6
'(D)uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.' Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158.
7
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.' U.S.Const., Amdt. VI.
8
In view of our limited grant of certiorari, we do not consider whether there might have been a deprivation of due process in the particularized circumstances of this case. That question remains open for inquiry in a federal habeas corpus proceeding.
1
There is no room here for the application of the harmless-error doctrine. Because the admission of Shard's testimony about his showup identification thus requires reversal, there is no need for me to consider whether a remand would otherwise by necessary to afford the State an oportunity to demonstrate that Shard's in-court identifiation of petitioner, if that is what it was, see ante, at 686 n. 3, had an independent source. See United States v. Wade, 388 U.S. 218, 239—242, 87 S.Ct. 1926, 1938, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967).
2
The plurality asserts that in view of that holding in Wade, 'the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, has no applicability whatever to the issue before us.' Ante, at 688. That assertion is necessary for the plurality because Miranda requires the presence of counsel before 'the time that adversary judicial proceedings have been initiated against' the accused. Ibid. The assertion is nonetheless erroneous, for Wade specifically relied upon Miranda in establishing the constitutional principle that controls the applicability of the Sixth Amendment guarantee of the right to counsel at pretrial confrontations. See 388 U.S., at 226—227, 87 S.Ct., at 1931.
3
The plurality asserts that 'Excobedo is not apposite here.' Ante, at 689. It was, of course, 'apposite' in Wade. Hence, to say that Johnson v. New Jersey, 384 U.S. 719, 733—734, 86 S.Ct. 1772, 1780, 16 L.Ed.2d 882 (1966), a case decided before Wade, 'limited the holding of Escobedo to its own facts,' ante, at 689, even if true, is to say nothing at all that is relevant to the present case. The plurality also utilizes Johnson for the proposition 'that the 'prime purpose' of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, 'to guarantee full effectuation of the privilege against self-incrimination . . ." Ibid. In view of Wade's specific reliance upon Escobedo and Miranda, that, obviously, is no distinction either. Moreover, it implies that the purpose of Wade was 'to vindicate the constitutional right to counsel as such.' That was not the purpose of Wade, as my extended summary of the opinion demonstrates.
4
The plurality refers to 'occasions during the course of a criminal investigation when the police do abuse identification procedures' and asserts that '(s)uch abuses are not beyond the reach of the Constitution.' Ante, at 690. The constitutional principles established in Wade, however, are not addressed solely to police 'abuses,' as Wade explicitly pointed out:
'The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification.' 388 U.S., at 234—235, 87 S.Ct., at 1936.
5
This case does not require me to consider confrontations that take place before custody, see, e.g., Bratten v. Delaware, 307 F.Supp. 643 (Del.1969); People v. Cesarz, 44 Ill.2d 180, 255 N.E.2d 1 (1969); State v. Moore, 111 N.J.Super. 528, 269 A.2d 534 (1970), nor accidental confrontations not arranged by the police, see, e.g., United States v. Pollack, 427 F.2d 1168 (CA5 1970); State v. Bibbs, 461 S.W.2d 755 (Mo.1970), nor on-the-scene encounters shortly after the crime, see, e.g., Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969); United States v. Davis, 399 F.2d 948 (CA2 1968).
6
Cf. Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966) (emphasis added):
'The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries.'
7
The plurality concludes that '(i)t is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable.' Ante, at 690. This Court has taken the contrary position with respect to the speedy-trial guarantee of the Sixth Amendment: 'Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest.' 'In the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, which transformed the appellees into 'accused' defendants who are subject to the speedy trial protections of the Sixth Amendment.' United States v. Marion, 404 U.S. 307, 321, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971).
8
As the California Supreme Court pointed out, with an eye toward the real world, 'the establishment of the date of formal accusation as the time wherein the right to counsel at lineup attaches could only lead to a situation wherein substantially all lineups would be conducted prior to indictment or information.' People v. Fowler, 1 Cal.3d 335, 344, 82 Cal.Rptr. 363, 370, 461 P.2d 643, 650 (1969).
9
Bean took the stand and testified that he and petitioner found Shard's traveler's checks and Social Security card two hours before their arrest strewn upon the ground in an alley.
10
In fact, the lineups in Foster took place before the information was filed. The crime occurred on January 25, 1966. After the accused was arrested, he was exhibited to the witness in two lineups, both conducted within two weeks of January 25. The information was not filed until March 17. Foster v. California, No. 47, O.T.1968, Brief for Respondent 3—8.
11
In fact, the lineup in Coleman took place before the accused were formally charged. The crime occurred on July 24, 1966. The accused were arrested on September 29, and the lineup was held on October 1. The preliminary hearing was not until October 14, and the indictments were no returned until November 11. Coleman v. Alabama, No. 72, O.T.1969, Brief for Petitioners 5 7; App. 84; see 399 U.S. at 26, 90 S.Ct., at 2012 (Stewart, J., joined by Burger, C.J., dissenting).
On those facts, the plurality opinion adverted to the timing of the lineup only to the extent of pointing out that it was held 'about two months after the assault and seven months before petitioners' trial.' Id., at 3, 90 S.Ct., at 2000. (Brennan, J., joined by Douglas, White, and Marshall, JJ.). The plurality opinion then simply noted that '(p)etitioners concede that since the lineup occurred before (Wade and Gilbert) were decided . . ., they cannot invoke the holding of those cases requiring the exclusion of in-court identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of counsel.' Id., at 3—4, 90 S.Ct., at 2000.
Mr. Justice Black in his concurring opinion took no notice at all of when the lineup was conducted. Instead, reiterating his view that Wade 'should be held fully retroactive,' he insisted 'that petitioners in this pre-Wade case were entitled to court-appointed counsel at the time of the lineup in which they participated and that Alabama's failure to provide such counsel violated petitioners' rights under the Sixth and Fourteenth Amendments.' Id., at 13, 90 S.Ct., at 2005. Nor did Mr. Justice Harlan refer to the timing of the lineup in expressing his 'dissent from the refusal to accord petitioners the benefit of the Wade holding, neither petitioner having been afforded counsel at the police 'lineup' identification.' Mr. Justice Harlan's summary of Wade, like that of the prevailing opinion, did not limit its 'rationale' to post-charge confrontations: 'The Wade rule requires the exclusion of any in-court identification preceded by a pretrial lineup where the accused was not represented by counsel, unless the in-court identification is found to be derived from a source 'independent' of the tainted pretrial viewing.' Id., at 21, 90 S.Ct., at 2009.
12
The chain of events in Stovall was as follows: The crime occurred on the night of August 23, 1961. The accused was arrested on the afternoon of August 24 and appeared for arraignment on the morning of August 25. The arraignment was postponed until August 31 so that he could retain counsel. The confrontation with the witness took place about noon on August 25. At the arraignment on August 31, the committing magistrate appointed counsel for the accused and set the felony examination for September 1. That examination was never held, for on August 31 the indictment was returned. Stovall v. Denno, No. 254, O.T.1966, Brief for Respondent 34.
13
The Wade dissenters found no such limitation: 'The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information.' United States v. Wade, 388 U.S., at 251, 87 S.Ct., at 1944 (White, J., joined by Harlan and Stewart, JJ., dissenting in part and concurring in part).
14
The plurality rather surprisingly asserts that '(t)he issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely divided the courts.' Ante, at 1881 n. 5 (emphasis added). As the plurality's citations reveal, there are decisions from five States, including Illinois, that have refused to apply Wade and Gilbert to pre-indictment confrontations for identification. Ranged against those five, however, are decisions from at least 13 States. See People v. Fowler, 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643 (1969); State v. Singleton, 253 La. 18, 215 So.2d 838 (1968); Commonwealth v. Guillory, 356 Mass. 591, 254 N.E.2d 427 (1970); Palmer v. State, 5 Md.App. 691, 249 A.2d 482 (1969); People v. Hutton, 21 Mich.App. 312, 175 N.W.2d 860 (1970); Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969); State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968); State v. Isaacs, 24 Ohio App.2d 115, 265 N.E.2d 327 (1970); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970); In re Holley, 107 R.I. 615, 268 A.2d 723 (1970); Martinez v. State, 437 S.W.2d 842 (Tex.Ct.Crim.App.1969); State v. Hicks, 76 Wash.2d 80, 455 P.2d 943 (1969); Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625 (1970).
In addition, every United States Court of Appeals that has confronted the question has applied Wade and Gilbert to pre-indictment confrontations. See United States v. Greene, 139 U.S.App.D.C. 9, 429 F.2d 193 (1970); Cooper v. Picard, 428 F.2d 1351 (CA1 1970); United States v. Ayers, 426 F.2d 524 (CA2 1970); Government of Virgin Islands v. Callwood, 440 F.2d 1206 (CA3 1971); Rivers v. United States, 400 F.2d 935 (CA5 1968); United States v. Broadhead, 413 F.2d 1351 (CA7 1969); United States v. Phillips, 427 F.2d 1035 (CA9 1970); Wilson v. Gaffney, 454 F.2d 142 (CA10 1972). As Chief Judge Lewis, speaking for the Court of Appeals for the Tenth Circuit, put it in the last-cited case:
'In both Wade and Gilbert the lineups were conducted after indictments had been returned; in the case at bar, the lineup occurred before petitioner had been formally charged. But surely the asstance of counsel, now established as an absolute post-indictment right does not arise or attach because of the return of an indictment. The confrontation of a lineup . . . cannot have a constitutional distinction based upon the lodging of a formal charge. Every reason set forth by the Supreme Court in Wade . . . for the assistance of counsel post-indictment has equal or more impact when projected against a pre-indictment atmosphere. We hold that petitioner had a right to counsel at the lineup here considered.' Id., at 144.
| 01
|
406 U.S. 715
92 S.Ct. 1845
32 L.Ed.2d 435
Theon JACKSON, Petitioner,v.State of INDIANA.
No. 70—5009.
Argued Nov. 18, 1971.
Decided June 7, 1972.
Syllabus
The Indiana procedure for pretrial commitment of incompetent criminal defendants set forth in Ind.Ann.Stat. § 9—1706a provides that a trial judge with 'reasonable ground' to believe the defendant to be incompetent to stand trial must appoint two examining physicians and schedule a competency hearing, at which the defendant may introduce evidence. If the court, on the basis of the physicians' report and 'other evidence,' finds that the defendant lacks 'comprehension sufficient to understand the proceedings and make his defense,' the trial is delayed and the defendant is remanded to the state department of mental health for commitment to an 'appropriate psychiatric institution' until defendant shall become 'sane.' Other statutory provisions apply to commitment of citizens who are 'feeble-minded, and are therefore unable properly to care for themselves.' The procedures for committing such persons are substantially similar to those for determining a criminal defendant's pretrial competency, but a person committed as 'feeble-minded' may be released 'at any time' his condition warrants it in the judgment of the superintendent of the institution. Indians also has a comprehensive commitment scheme for the 'mentally ill, i.e., those with a 'psychiatric disorder' as defined by the statute, who can be committed on a showing of mental illness and need for 'care, treatment, training or detention.' A person so committed may be released when the superintendent of the institution shall discharge him, or when he is cured.
Petitioner in this case, a mentally defective deaf mute, who cannot read, write, or virtually otherwise communicate, was charged with two criminal offenses and committed under the § 9 1706a procedure. The doctors' report showed that petitioner's condition precluded his understanding the nature of the charges against him or participating in his defense and their testimony showed that the prognosis was 'rather dim'; that even if petitioner were not a deaf must he would be incompetent to stand trial; and that petitioner's intelligence was not sufficient to enable him ever to develop the necessary communication skills. According to a deaf-school interpreter's testimony, the State had no facilities that could help petitioner learn minimal communication skills. After finding that petitioner 'lack(ed) comprehension sufficient to make his defense,' the court ordered petitioner committed until such time as the health department could certify petitioner's sanity to the court. Petitioner's counsel filed a motion for a new trial, which was denied. The State Supreme Court affirmed. Contending that his commitment was tantamount to a 'life sentence' without his having been convicted of a crime, petitioner claims that commitment under § 9—1706a deprived him of equal protection because, absent the criminal charges against him, the State would have had to proceed under the other statutory procedures for the feeble-minded or those for the mentally ill, under either of which petitioner would have been entitled to substantially greater rights. Petitioner also asserts that indefinite commitment under the section deprived him of due process and subjected him to cruel and unusual punishment. Held:
1. By subjecting petitioner to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all other persons not charged with offenses, thus condemning petitioner to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by ordinary civil commitment procedures, Indiana deprived petitioner of equal protection. Cf. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620. Pp. 723—731.
2. Indiana's indefinite commitment of a criminal defendant solely on account of his lack of capacity to stand trial violates due process. Such a defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future. If it is determined that he will not, the State must either institute civil proceedings applicable to indefinite commitment of those not charged with crime, or release the defendant. Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 distinguished. Pp. 739—741.
3. Since the issue of petitioner's criminal responsibility at the time of the alleged offenses (as distinguished from the issue of his competency to stand trial) has not been determined and other matters of defense may remain to be resolved, it would be premature for this Court to dismiss the charges against petitioner. Pp. 739—741.
253 Ind. 487, 255 N.E.2d 515, reversed and remanded.
Frank E. Spencer, Indianapolis, Ind., for petitioner.
Sheldon A. Breskow, Indianapolis, Ind., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
We are here concerned with the constitutionality of certain aspects of Indiana's system for pretrial commitment of one accused of crime.
2
Petitioner, Theon Jackson, is a mentally defective deaf mute with a mental level of a pre-school child. He cannot read, write, or otherwise communicate except through limited sign language. In May 1968, at age 27, he was charged in the Criminal Court of Marion County, Indiana, with separate robberies of two women. The offenses were alleged to have occurred the preceding July. The first involved property (a purse and its contents) of the value of four dollars. The second concerned five dollars in money. The record sheds no light on these charges since, upon receipt of notguilty pleas from Jackson, the trial court set in motion the Indiana procedures for determining his competency to stand trial. Ind.Ann.Stat. § 9—1706a (Supp. 1971),1 now Ind.Code 35—5—3—2 (1971).
3
As the statute requires, the court appointed two psychiatrists to examine Jackson. A competency hearing was subsequently held at which petitioner was represented by counsel. The court received the examining doctors' joint written report and oral testimony from them and from a deaf-school interpreter through whom they had attempted to communicate with petitioner. The report concluded that Jackson's almost non-existent communication skill, together with his lack of hearing and his mental deficiency, left him unable to understand the nature of the charges against him or to participate in his defense. One doctor testified that it was extremely unlikely that petitioner could ever learn to read or write and questioned whether petitioner even had the ability to develop any proficiency in sign language. He believed that the interpreter had not been able to communicate with petitioner to any great extent and testified that petitioner's 'prognosis appears rather dim.' The other doctor testified that even if Jackson were not a deaf mute, he would be incompetent to stand trial, and doubted whether petitioner had sufficient intelligence ever to develop the necessary communication skills. The interpreter testified that Indiana had no facilities that could help someone as badly off as Jackson to learn minimal communication skills.
4
On this evidence, the trial court found that Jackson 'lack(ed) comprehension sufficient to make his defense,' § 9 1706a, and ordered him committed to the Indiana Department of Mental Health until such time as that Department should certify to the court that 'the defendant is sane.'
5
Petitioner's counsel then filed a motion for a new trial, contending that there was no evidence that Jackson was 'insane,' or that he would ever attain a status which the court might regard as 'sane' in the sense of competency to stand trial. Counsel argued that Jackson's commitment under these circumstances amounted to a 'life sentence' without his ever having been convicted of a crime, and that the commitment therefore deprived Jackson of his Fourteenth Amendment rights to due process and equal protection, and constituted cruel and unusual punishment under the Eighth Amendment made applicable to the States through the Fourteenth. The trial court denied the motion. On appeal the Supreme Court of Indiana affirmed, with one judge dissenting, 253 Ind. 487, 255 N.E.2d 515 (1970). Rehearing was denied with two judges dissenting. We granted certiorari, 401 U.S. 973, 91 S.Ct. 1203, 28 L.Ed.2d 322 (1971).
6
For the reasons set forth below, we conclude that, on the record before us, Indiana cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him. Accordingly, we reverse.
7
* INDIANA COMMITMENT PROCEDURES
8
Section 9—1706a contains both the procedural and substantive requirements for pretrial commitment of incompetent criminal defendants in Indiana. If at any time before submission of the case to the court or jury the trial judge has 'reasonable ground' to believe the defendant 'to be insane,'2 he must appoint two examining physicians and schedule a competency hearing. The hearing is to the court alone, without a jury. The examining physicians' testimony and 'other evidence' may be adduced on the issue of incompetency. If the court finds the defendant 'has not comprehension sufficient to understand the proceedings and make his defense,' trial is delayed or continued and the defendant is remanded to the state department of mental health to be confined in an 'appropriate psychiatric institution.' The section further provides that '(w)henever the defendant shall become sane' the superintendent of the institution shall certify that fact to the court, and the court shall order him brought on to trial. The court may also make such an order sua sponte. There is no statutory provision for periodic review of the defendant's condition by either the court or mental health authorities. Section 9—1706a by its terms does not accord the defendant any right to counsel at the competency hearing or otherwise describe the nature of the hearing; but Jackson was represented by counsel who cross-examined the testifying doctors carefully and called witnesses on behalf of the petitioner-defendant.
9
Petitioner's central contention is that the State, in seeking in effect to commit him to a mental institution indefinitely, should have been required to invoke the standards and procedures of Ind.Ann.Stat. § 22—1907, now Ind.Code 16—15—1—3 (1971), governing commitment of 'feeble-minded' persons. That section provides that upon application of a 'reputable citizen of the county' and accompanying certificate of a reputable physician that a person is 'feeble-minded and is not insane or epileptic' (emphasis supplied), a circuit court judge shall appoint two physicians to examine such person. After notice, a hearing is held at which the patient is entitled to be represented by counsel. If the judge determines that the individual is indeed 'feeble-minded,' he enters an order of commitment and directs the clerk of the court to apply for the person's admission 'to the superintendent of the institution for feebleminded persons located in the district in which said county is situated.' A person committed under this section may be released 'at any time,' provided that 'in the judgment of the superintendent, the mental and physical condition of the patient justifies it.' § 22—1814, now Ind.Code 16—15—4—12 (1971). The statutes do not define either 'feeble-mindedness' or 'insanity' as used in § 22—1907. But a statute establishing a special institution for care of such persons, § 22—1801, IC 1971, 16—15—4—1, refers to the duty of the State to provide care for its citizens who are 'feeble-minded, and are therefore unable properly to care for themselves.'3 These provisions evidently afford the State a vehicle for commitment of persons in need of custodial care who are 'not insane' and therefore do not qualify as 'mentally ill' under the State's general involuntary civil commitment scheme. See §§ 22 1201 to 22—1256, now Ind.Code 16—14—9—1 to 16—14—9—31, 16—13—2—9 to 16—13—2—10, 35—5—3—4, 16—14—14—1 to 16—14—14—19, and 16—14—15 5, 16—14—15—1, and 16—14—19—1 (1971).
10
Scant attention was paid this general civil commitment law by the Indiana courts in the present case. An understanding of it, however, is essential to a full airing of the equal protection claims raised by petitioner. Section 22—1201(1) defines a 'mentally ill person' as one who
11
'is afflicted with a psychiatric disorder which substantially impairs his mental health; and, because of such psychiatric disorder, requires care, treatment, training or detention in the interest of the welfare of such person or the welfare of others of the community in which such person resides.'
12
Section 22—1201(2) defines a 'psychiatric disorder' to be any mental illness or disease, including any mental deficiency, epilepsy, alcoholism, or drug addiction. Other sections specify procedures for involuntary commitment of 'mentally ill' persons that are substantially similar to those for commitment of the feeble-minded. For example, a citizen's sworn statement and the statement of a physician are required. § 22—1212. The circuit court judge, the applicant, and the physician then consult to formulate a treatment plan. § 22—1213. Notice to the individual is required, § 22—1216, and he is examined by two physicians, § 22 1215. There are provisions for temporary commitment. A hearing is held before a judge on the issue of mental illness. §§ 22—1209, 22 1216, 22—1217. The individual has a right of appeal. § 22—1210. An individual adjudged mentally ill under these sections is remanded to the department of mental health for assignment to an appropriate institution. § 22—1209. Discharge is in the discretion of the superintendent of the particular institution to which the person is assigned, § 22—1223; Official Opinion No. 54, Opinions of the Attorney General of Indiana, Dec. 30, 1966. The individual, however, remains within the court's custody, and release can therefore be revoked upon a hearing. Ibid.
II
EQUAL PROTECTION
13
Because the evidence established little likelihood of improvement in petitioner's condition, he argues that commitment under § 9—1706a in his case amounted to a commitment for life. This deprived him of equal protection, he contends, because, absent the criminal charges pending against him, the State would have had to proceed under other statutes generally applicable to all other citizens: either the commitment procedures for feeble-minded persons, or those for mentally ill persons. He argues that under these other statutes (1) the decision whether to commit would have been made according to a different standard, (2) if commitment were warranted, applicable standards for release would have been more lenient, (3) if committed under § 22—1907, he could have been assigned to a special institution affording appropriate care, and (4) he would then have been entitled to certain privileges not now available to him.
14
In Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), the Court held that a state prisoner civilly committed at the end of his prison sentence on the finding of a surrogate was denied equal protection when he was deprived of a jury trial that the State made generally available to all other persons civilly committed. Rejecting the State's argument that Baxtrom's conviction and sentence constituted adequate justification for the difference in procedures, the Court said that 'there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.' 383 U.S., at 111—112, 86 S.Ct., at 763; see United States ex rel. Schuster v. Herold, 410 F.2d 1071 (CA2), cert. denied, 396 U.S. 847, 90 S.Ct. 81, 24 L.Ed.2d 96 (1969). The Court also held that Baxstrom was denied equal protection by commitment to an institution maintained by the state corrections department for 'dangerously mentally ill' persons, without a judicial determination of his 'dangerous propensities' afforded all others so committed.
15
If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others, the mere filing of criminal charges surely cannot suffice. This was the precise holding of the Massachusetts Court in Commonwealth v. Druken, 356 Mass. 503, 507, 254 N.E.2d 779, 781 (1969).4 The Baxstrom principle also has been extended to commitment following an insanity acquittal, Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968); Cameron v. Mullen, 128 U.S.App.D.C. 235, 387 F.2d 193 (1967); People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966), and to commitment in lieu of sentence following conviction as a sex offender. Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972).
16
Respondent argues, however, that because the record fails to establish affirmatively that Jackson will never improve, his commitment 'until sane' is not really an indeterminate one. It is only temporary, pending possible change in his condition. Thus, presumably, it cannot be judged against commitments under other state statutes that are truly indeterminate. The State relies on the lack of 'exactitude' with which psychiatry can predict the future course of mental illness, and on the Court's decision in what is claimed to be 'a fact situation similar to the case at hand' in Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 (1956).
17
Were the State's factual premise that Jackson's commitment is only temporary a valid one, this might well be a different case. But the record does not support that premise. One of the doctors testified that in his view Jackson would be unable to acquire the substantially improved communication skills that would be necessary for him to participate in any defense. The prognosis for petitioner's developing such skills, he testified, appeared 'rather dim.' In answer to a question whether Jackson would ever be able to comprehend the charges or participate in his defense, even after commitment and treatment, the doctor said, 'I doubt it, I don't believe so.' The other psychiatrist testified that even if Jackson were able to develop such skills, he would still be unable to comprehend the proceedings or aid counsel due to his mental deficiency. The interpreter, a supervising teacher at the state school for the deaf, said that he would not be able to serve as an interpreter for Jackson or aid him in participating in a trial, and that the State had no facilities that could, 'after a length of time,' aid Jackson in so participating. The court also heard petitioner's mother testify that Jackson already had undergone rudimentary out-patient training communications skills from the deaf and dumb School in Indianapolis over a period of three years without noticeable success. There is nothing in the record that even points to any possibility that Jackson's present condition can be remedied at any future time.
18
Nor does Greenwood,5 which concerned the constitutional validity of 18 U.S.C. §§ 4244 to 4248, lend support to respondent's position. That decision, addressing the 'narrow constitutional issue raised by the order of commitment in the circumstances of this case,' 350 U.S., at 375, 76 S.Ct., at 415, upheld the Federal Government's constitutional authority to commit an individual found by the District Court to be 'insane,' incompetent to stand trial on outstanding criminal charges, and probably dangerous to the safety of the officers, property, or other interests of the United States. The Greenwood Court construed the federal statutes to deal 'comprehensively' with defendants 'who are insane or mentally incompetent to stand trial,' and not merely with 'the problem of temporary mental disorder.' 350 U.S., at 373, 76 S.Ct., at 414. Though Greenwood's prospects for improvement were slim, the Court held that 'in the situation before us,' where the District Court had made an explicit finding of dangerousness, that fact alone 'does not defeat federal power to make this initial commitment.' 350 U.S., at 375, 76 S.Ct., at 415. No issue of equal protection was raised or decided. See Petitioner's Brief, No. 460, O.T.1955, pp. 2, 7—9. It is clear that the Government's substantive power to commit on the particular findings made in that case was the sole question there decided. 350 U.S., at 376, 76 S.Ct., at 415.
19
We note also that neither the Indiana statute nor state practice makes the likelihood of the defendant's improvement a relevant factor. The State did not seek to make any such showing, and the record clearly establishes that the chances of Jackson's ever meeting the competency standards of § 9—1706a are at best minimal, if not nonexistent. The record also rebuts any contention that the commitment could contribute to Jackson's improvement. Jackson's § 9—1706a commitment is permanent in practical effect.
20
We therefore must turn to the question whether, because of the pendency of the criminal charges that triggered the State's invocation of § 9—1706a, Jackson was deprived of substantial rights to which he would have been entitled under either of the other two state commitment statutes. Baxstrom held that the State cannot withhold from a few the procedural protections or the substantive requirements for commitment that are available to all others. In this case commitment procedures under all three statutes appear substantially similar: notice, examination by two doctors, and a full judicial hearing at which the individual is represented by counsel and can cross-examine witnesses and introduce evidence. Under each of the three statutes, the commitment determination is made by the court alone, and appellate review is available.
21
In contrast, however, what the State must show to commit a defendant under § 9—1706a, and the circumstances under which an individual so committed may be released, are substantially different from the standards under the other two statutes.
22
Under § 9—1706a, the State needed to show only Jackson's inability to stand trial. We are unable to say that, on the record before us, Indiana could have civilly committed him as mentally ill under § 22—1209 or committed him as feeble-minded under § 22 1907. The former requires at least (1) a showing of mental illness and (2) a showing that the individual is in need of 'care, treatment, training or detention.' § 22—1201(1). Whether Jackson's mental deficiency would meet the first test is unclear; neither examining physician addressed himself to this. Furthermore, it is problematical whether commitment for 'treatment' or 'training' would be appropriate since the record establishes that none is available for Jackson's condition at any state institution. The record also fails to establish that Jackson is in need of custodial care or 'detention.' He has been employed at times, and there is no evidence that the care he long received at home has become inadequate. The statute appears to require an independent showing of dangerousness ('requires . . . detention in the interest of the welfare of such person or . . . others . . .'). Insofar as it may require such a showing, the pending criminal charges are insufficient to establish it, and no other supporting evidence was introduced. For the same reasons, we cannot say that this record would support a feeble-mindedness commitment under § 22—1907 on the ground that Jackon is 'unable properly to care for (himself).'6 § 22—1801.
23
More important, an individual committed as feeble-minded is eligible for release when his condition 'justifies it,' § 22—1814, and an individual civilly committed as mentally ill when the 'superintendent or administrator shall discharge such person or (when) cured of such illness.' § 22—1223 (emphasis supplied). Thus, in either case release is appropriate when the individual no longer requires the custodial care or treatment or detention that occasioned the commitment, or when the department of mental health believes release would be in his best interests. The evidence available concerning Jackson's past employment and home care strongly suggests that under these standards he might be eligible for release at almost any time, even if he did not improve.7 On the other hand, by the terms of his present § 9—1706a commitment, he will not be entitled to release at all, absent an unlikely substantial change for the better in his condition.8
24
Baxstrom did not deal with the standard for release, but its rationale is applicable here. The harm to the individual is just as great if the State, without reasonable justification, can apply standards making his commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release.
25
As we noted above, we cannot conclude that pending criminal charges provide a greater justification for different treatment than conviction and sentence. Consequently, we hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by § 22—1209 or § 22—1907, Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment.9
III
DUE PROCESS
26
For reasons closely related to those discussed in Part II above, we also hold that Indiana's indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the Fourteenth Amendment's guarantee of due process.
27
A. The Federal System. In the federal criminal system, the constitutional issue posed here has not been encountered precisely because the federal statutes have been construed to require that a mentally incompetent defendant must also be found 'dangerous' before he can be committed indefinitely. But the decisions have uniformly articulated the constitutional problems compelling this statutory interpretation.
28
The federal statute, 18 U.S.C. §§ 4244 to 4246, is not dissimilar to the Indiana law. It provides that a defendant found incompetent to stand trial may be committed 'until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law.' § 4246. Section 4247, applicable on its face only to convicted criminals whose federal sentences are about to expire, permits commitment if the prisoner is (1) 'insane or mentally incompetent' and (2) 'will probably endanger the safety of the officers, the property, or other interests of the United States, and . . . suitable arrangements for the custody and care of the prisoner are not otherwise available,' that is, in a state facility. See Greenwood v. United States, 350 U.S., at 373—374, 76 S.Ct., at 414—415. One committed under this section, however, is entitled to release when any of the three conditions no longer obtains, 'whichever event shall first occur.' § 4248. Thus, a person committed under § 4247 must be released when he no longer is 'dangerous.'
29
In Greenwood, the Court upheld the pretrial commitment of a defendant who met all three conditions of § 4247, even though there was little likelihood that he would ever become competent to stand trial. Since Greenwood had not yet stood trial, his commitment was ostensibly under § 4244. By the related release provision, § 4246, he could not have been released until he became competent. But the District Court had in fact applied § 4247, and found specifically that Greenwood would be dangerous if not committed. This Court approved that approach, holding § 4247 applicable before trial as well as to those about to be released from sentence. 350 U.S., at 374, 76 S.Ct., at 414. Accordingly, Greenwood was entitled to release when no longer dangerous, § 4248, even if he did not become competent to stand trial and thus did not meet the requirement of § 4246. Under these circumstances, the Court found the commitment constitutional.
30
Since Greenwood, federal courts without exception have found improper any straightforward application of §§ 4244 and 4246 to a defendant whose chance of attaining competency to stand trial is slim, thus effecting an indefinite commitment on the ground of incompetency alone. United States v. Curry, 410 F.2d 1372 (CA4 1969); United States v. Walker, 335 F.Supp. 705 (ND Cal.1971); Cook v. Ciccone, 312 F.Supp. 822 (WD Mo.1970); United States v. Jackson, 306 F.Supp. 4 (ND Cal.1969); Maurietta v. Ciccone, 305 F.Supp. 775 (WD Mo.1969). See In re Harmon, 425 F.2d 916 (CA1 1970); United States v. Klein, 325 F.2d 283 (CA2 1963); Martin v. Settle, 192 F.Supp. 156 (WD Mo.1961); Royal v. Settle, 192 F.Supp. 176 (WD Mo.1959). The holding in each of these cases was grounded in an expressed substantial doubt that §§ 4244 and 4246 could survive constitutional scrutiny if interpreted to authorize indefinite commitment.
31
These decisions have imposed a 'rule of reasonableness' upon §§ 4244 and 4246. Without a finding of dangerousness, one committed thereunder can be held only for a 'reasonable period of time' necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future. If the chances are slight, or if the defendant does not in fact improve, then he must be released or granted a §§ 4247—4248 hearing.
32
B. The States. Some States10 appear to commit indefinitely a defendant found incompetent to stand trial until he recovers competency. Other States require a finding of dangerousness to support such a commitment11 or provide forms of parole.12 New York has recently enacted legislation mandating release of incompetent defendants charged with misdemeanors after 90 days of commitment, and release and dismissal of charges against those accused of felonies after they have been committed for two-thirds of the maximum potential prison sentence.13 The practice of automatic commitment with release conditioned solely upon attainment of competence has been decried on both policy and constitutional grounds.14 Recommendations for changes made by commentators and study committees have included incorporation into pretrial commitment procedures of the equivalent of the federal 'rule of reason,' a requirement of a finding of dangerousness or of full-scale civil commitment, periodic review by court or mental health administrative personnel of the defendant's condition and progress, and provisions for ultimately dropping charges if the defendant does not improve.15 One source of this criticism is undoubtedly the empirical data available which tend to show that many defendants committed before trial are never tried, and that those defendants committed pursuant to ordinary civil proceedings are, on the average, released sooner than defendants automatically committed solely on account of their incapacity to stand trial.16 Related to these statistics are substantial doubts about whether the rationale for pretrial commitment—that care or treatment will aid the accused in attaining competency—is empirically valid given the state of most of our mental institutions.17 However, very few courts appear to have addressed the problem directly in the state context.
33
In United States ex rel. Wolfersdorf v. Johnston, 317 F.Supp. 66 (S.D.N.Y.1970), an 86-year-old defendant committed for nearly 20 years as incompetent to stand trial on state murder and kidnapping charges applied for federal habeas corpus. He had been found 'not dangerous,' and suitable for civil commitment. The District Court granted relief. It held that petitioner's incarceration in an institution for the criminally insane constituted cruel and unusual punishment, and that the 'shocking circumstances' of his commitment violated the Due Process Clause. The court quoted approvingly the language of Cook v. Ciccone, 312 F.Supp., at 824, concerning the 'substantial injustice in keeping an unconvicted person in . . . custody to await trial where it is plainly evident his mental condition will not permit trial within a reasonable period of time.'
34
In a 1970 case virtually indistinguishable from the one before us, the Illinois Supreme Court granted relief to an illiterate deaf mute who had been indicted for murder four years previously but found incompetent to stand trial on account of his inability to communicate, and committed. People ex rel. Myers v. Briggs, 46 Ill. 2d 281, 263 N.E.2d 109 (1970). The institution where petitioner was confined had determined, '(I)t now appears that (petitioner) will never acquire the necessary communication skills needed to participate and cooperate in his trial.' Petitioner, however, was found to be functioning at a 'nearly normal level of performance in areas other than communication.' The State contended petitioner should not be released until his competency was restored. The Illinois Supreme Court disagreed. It held:
35
'This court is of the opinion that this defendant, handicapped as he is and facing an indefinite commitment because of the pending indictment against him, should be given an opportunity to obtain a trial to determine whether or not he is guilty as charged or should be released.' Id., at 288, 263 N.E.2d, at 113.
36
C. This Case. Respondent relies heavily on Greenwood to support Jackson's commitment. That decision is distinguishable. It upheld only the initial commitment without considering directly its duration or the standards for release. It justified the commitment by treating it as if accomplished under allied statutory provisions relating directly to the individual's 'insanity' and society's interest in his indefinite commitment, factors not considered in Jackson's case. And it sustained commitment only upon the finding of dangerousness. As Part A, supra, shows, all these elements subsequently have been held not simply sufficient, but necessary, to sustain a commitment like the one involved here.
37
The States have traditionally exercised broad power to commit persons found to be mentally ill.18 The substantive limitations on the exercise of this power and the procedures for invoking it vary drastically among the States.19 The particular fashion in which the power is exercised—for instance, through various forms of civil commitment, defective delinquency laws, sexual psychopath laws, commitment of persons acquitted by reason of insanity—reflects different combinations of distinct bases for commitment sought to be vindicated.20 The bases that have been articulated include dangerousness to self, dangerousness to others, and the need for care or treatment or training.21 Considering the number of persons affected,22 it is perhaps remarkable that the substantive constitutional limitations on this power have not been more frequently litigated.23
38
We need not address these broad questions here. It is clear that Jackson's commitment rests on proceedings that did not purport to bring into play, indeed did not even consider relevant, any of the articulated bases for exercise of Indiana's power of indefinite commitment. The state statutes contain at least two alternative methods for invoking this power. But Jackson was not afforded any 'formal commitment proceedings addressed to (his) ability to function in society,'24 or to society's interest in his restraint, or to the State's ability to aid him in attaining competency through custodial care or compulsory treatment, the ostensible purpose of the commitment. At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.
39
We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.25 Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. In light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial.
40
These conclusions make it unnecessary for us to reach petitioner's Eighth-Fourteenth Amendment claim.
IV
DISPOSITION OF THE CHARGES
41
Petitioner also urges that fundamental fairness requires that the charges against him now be dismissed. The thrust of his argument is that the record amply establishes his lack of criminal responsibility at the time the crimes are alleged to have been committed. The Indiana court did not discuss this question. Apparently it believed that by reason of Jackson's incompetency commitment the State was entitled to hold the charges pending indefinitely. On this record, Jackson's claim is a substantial one. For a number of reasons, however, we believe the issue is not sufficiently ripe for ultimate decision by us at this time.
42
A. Petitioner argues that he has already made out a complete insanity defense. Jackson's criminal responsibility at the time of the alleged offenses, however, is a distinct issue from his competency to stand trial. The competency hearing below was not directed to criminal responsibility, and evidence relevant to it was presented only incidentally.26 Thus, in any event, we would have to remand for further consideration of Jackson's condition in the light of Indiana's law of criminal responsibility.
43
B. Dismissal of charges against an incompetent accused has usually been thought to be justified on grounds not squarely presented here: particularly, the Sixth-Fourteenth Amendment right to a speedy trial,27 or the denial of due process inherent in holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence.28 Jackson did not present the Sixth-Fourteenth Amendment issue to the state courts. Nor did the highest state court rule on the due process issue, if indeed it was presented to that court in precisely the above-described form. We think, in light of our holdings in Parts II and III, that the Indiana courts should have the first opportunity to determine these issues.
44
C. Both courts and commentators have noted the desirability of permitting some proceedings to go forward despite the defendant's incompetency.29 For instance, § 4.06(3) of the Model Penal Code would permit an incompetent accused's attorney to contest any issue 'susceptible of fair determination prior to trial and without the personal participation of the defendant.' An alternative draft of § 4.06(4) of the Model Penal Code would also permit an evidentiary hearing at which certain defenses, not including lack of criminal responsibility, could be raised by defense counsel on the basis of which the court might quash the indictment. Some States have statutory provisions permitting pretrial motions to be made or even allowing the incompetent defendant a trial at which to establish his innocence, without permitting a conviction.30 We do not read this Court's previous decisions31 to preclude the States from allowing at a minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment, or make certain pretrial motions through counsel. Of course, if the Indiana courts conclude that Jackson was almost certainly not capable of criminal responsibility when the offenses were committed, dismissal of the charges might be warranted. But even if this is not the case, Jackson may have other good defenses that could sustain dismissal or acquittal and that might now be asserted. We do not know if Indiana would approve procedures such as those mentioned here, but these possibilities will be open on remand.
45
Reversed and remanded.
46
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
'9—1706a. Commitment before trial—Subsequent actions.—When at any time before the trial of any criminal cause or during the progress thereof and before the final submission of the cause to the court or jury trying the same, the court, either from his own knowledge
or upon the suggestion of any person, has reasonable ground for believing the defendant to be insane, he shall immediately fix a time for a hearing to determine the question of the defendant's sanity and shall appoint two (2) competent disinterested physicians who shall examine the defendant upon the question of his sanity and testify concerning the same at the hearing. At the hearing, other evidence may be introduced to prove the defendant's sanity or insanity. If the court shall find that the defendant has comprehension sufficient to understand the nature of the criminal action against him and the proceedings thereon and to make his defense, the trial shall not be delayed or continued on he ground of the alleged insanity of the defendant. If the court shall find that the defendant has not comprehension sufficient to understand the proceedings and make his defense, the trial shall be delayed or continued on the ground of the alleged insanity of the defendant. If the court shall find that the defendant has not comprehension sufficient to understand the proceedings and make his defense, the court shall order the defendant committed to the department of mental health, to be confined by the department in an appropriate psychiatric institution. Whenever the defendant shall become sane the superintendent of the state psychiatric hospital shall certify the fact to the proper court, who shall enter an order on his record directing the sheriff to return the defendant, or the court may enter such order in the first instance whenever he shall be sufficiently advised of the defendant's restoration to sanity. Upon the return to court of any defendant so committed he or she shall then be placed upon trial for the criminal offense the same as if no delay or postponement had occurred by reason of defendant's insanity.'
2
The section refers at several points to the defendant's 'sanity.' This term is nowhere defined. In context, and in the absence of a contrary statutory construction by the state courts, it appears that the term is intended to be synonymous with competence to stand trial.
3
Sections 22—1801 and 22—1907 would appear to be interdependent. See Official Opinion No. 49, Opinions of the Attorney General of Indiana, Sept. 26, 1958.
4
See also Association of the Bar, City of New York, Special Committee on the Study of Commitment Procedures and the Law Relating to Incompetents, Second Report, Mental Illness, Due Process and the Criminal Defendant 1 (1968) (hereafter N.Y. Report):
'The basic and unifying thread which runs throughout our recommendations is a rejection of the notion that the mere fact of a criminal charge or conviction is a proper basis upon which to build other unnecessary, unprofitable, and essentially unfair distinctions among the mentally ill.'
5
This case is further discussed in connection with the due process claim. See Part III.
6
Perhaps some confusion on this point is engendered by the fact that Jackson's counsel, far from asserting that the State could not commit him as feeble-minded under § 22—1907, actively sought such a commitment in the hope that Jackson would be assured assignment to a special institution. The Indiana Supreme Court thought this concern unnecessary. In any event, we do not suggest that a feeble-mindedness commitment would be inappropriate. We note only that there is nothing in this record to establish the need for custodial care that such a commitment seems to require under §§ 22—1907 and 22—1801.
7
See President's Committee on Mental Retardation, Changing Patterns in Residential Services for the Mentally Retarded (1969).
8
Respondent argues that Jackson would not in fact be eligible for release under § 22—1907 or § 22—1223 if he did not improve since, if the authorities could not communicate with him, they could not decide whether his condition 'justified' release. Respondent further argues that because no state court has ever construed the release provisions of any of the statutes, we are barred from relying upon any differences between them. This line of reasoning is unpersuasive. The plain language of the provisions, when applied to Jackson's particular history and condition, dictates different results. No state court has held that an Indiana defendant committed as incompetent is eligible for release when he no longer needs custodial care or treatment. The commitment order here clearly makes release dependent upon Jackson's regaining competency to stand trial.
9
Petitioner also argues that the incompetency commitment deprived him of the right to be assigned to a special 'institution for feeble-minded persons' to which he would have been statutorily directed by a § 22—1907 commitment. The State maintains two such institutions. The Indiana Supreme Court thought petitioner 'failed to understand the statutory mechanisms' for assignment following commitment under the two procedures. 253 Ind., at 490, 255 N.E.2d, at 517. It observed that since the mental health department now administers, in consolidated fashion, all the State's mental facilities including the two special institutions, see § 22—5001 to § 22—5036, now Ind. Code 16—13—1—1 to 16—13—1—31, 16—13—2—1, 16 13—2—7 to 6—13—2—8, 16—14—18—3 to 16—14—18—4 (1971), and since the special institutions are 'appropriate psychiatric institutions' under § 9—1706a, considering Jackson's condition, his incompetency commitment can still culminate in assignment to a special facility. The State, in argument, went one step further. It contended that in practice the assignment process under all three statutes is identical: the individual is remanded to the central state authority, which assigns him to an appropriate institution regardless of how he was committed.
If true, such practice appears at first blush contrary to the mandate of § 22—1907, requiring the court clerk to seek assignment at one of the two special institutions. However, the relevant statutes, including that effecting consolidation of all mental health facilities under one department, have been enacted piecemeal, and older laws often not formally revised. Since the department of mental health has sole discretionary authority to transfer patients between any of the institutions it administers at any time, § 22—5032(6) and § 22—301, there is evidently adequate statutory authority for consolidating the initial assignment decision.
Moreover, nothing in the record demonstrates that different or better treatment is available at a special institution than at the general facilities for the mentally ill. We are not faced here, as we were in Baxstrom, with commitment to a distinctly penal or maximum-security in stitution designed for dangerous inmates and not administered by the general state mental health authorities. Therefore, we cannot say that by virtue of his incompetency commitment Jackson has been denied an assignment or appropriate treatment to which those not charged with crimes would generally be entitled.
Similarly, Jackson's incompetency commitment did not deprive him of privileges such as furloughs to which he claims a feeble-mindedness commitment would entitle him. The statutes relate such privileges to particular institutions, not to the method of commitment. Thus patients assigned to the Muscatatuck institution are entitled to furloughs regardless of the statute under which they were committed; and persons committed as feeble-minded would not be entitled to furloughs if assigned to a general mental institution.
10
Cal.Penal Code §§ 1370, 1371 (1970); Conn.Gen.Stat.Rev. § 54—40(c) (1958); Minn.Stat.Ann. § 631.18 (Supp.1972—1973); N.J.Rev.Stat. § 2A:163—2 (1971); Ohio Rev.Code Ann. §§ 2945.37 and 2945.38 (1954); Wis.Stat.Ann. § 971.14 (1971). See Note, Incompetency to Stand Trial 81 Harv.L.Rev. 454 (1967).
11
Iowa Code, Ann. § 783.3 (Supp.1972); Okla.Stat.Ann., Tit. 22, § 1167 (1958); S.D.Comp.Laws Ann. § 23—38—6 (1967).
12
Mich.Comp. Laws Ann. § 767.27a(8) (1967); Ore.Rev.Stat. § 426.300(1) (1971); Wis.Stat.Ann. § 51.21(6) (Supp.1972).
13
N.Y.Crim.Proc. Law § 730.50 (1971); see also Ill.Rev.Stat., c. 38, § 104—3(c) (1971).
14
Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U.Pa.L.Rev. 832 (1960); Note, Incompetency to Stand Trial, 81 Harv.L.Rev. 454—456, 471—472 (1967); N.Y. Report 91—107.
15
Judicial Conference of the District of Columbia Circuit, Report of the Committee on Problems Connected with Mental Examination of the Accused in Criminal Cases, Before Trial 49—52, 54—58, 133—146 (1965) (hereafter D.C. Report); N.Y. Report 73—124; Note supra, 81 Harv.L.Rev., at 471—473.
16
See Matthews, Mental Disability and the Criminal Law 138 140 (American Bar Foundation 1970); Morris, The Confusion of Confinement Syndrome: An Analysis of the Confinement of Mentally Ill Criminals and Ex-Criminals by the Department of Correction of the State of New York, 17 Buffalo L.Rev. 651 (1968); McGarry & Bendt, Criminal vs. Civil Commitment of Psychotic Offenders: A Seven-Year Follow-Up, 125 Am. J. Psychiatry 1387, 1391 (1969); D.C. Report 50—52.
17
Note, supra, 81 Harv.L.Rev., at 472—473; American Bar Foundation, The Mentally Disabled and the Law 415—418 (rev. ed. 1971) (hereafter ABF Study); N.Y.Report 72—77, 102—105, 186—190.
18
See generally ABF Study 34—59.
19
Id., at 36—49. The ABF Study shows that in nine States the sole criterion for involuntary commitment is dangerousness to self or others; in 18 other States the patient's need for care or treatment was an alternative basis; the latter was the sole basis in six additional States; a few States had no statutory criteria at all, presumably leaving the determination to judicial discretion.
20
See Note, Civil Restraint, Mental Illness, and the Right to Treatment, 77 Yale L.J. 87 (1967).
21
See Note, Civil Commitment of the Mentally Ill: Theories and Procedures, 79 Harv.L.Rev. 1288, 1289—1297 (1966).
22
In 1961, it was estimated that 90% of the approximately 800,000 patients in mental hospitals in this country had been involuntarily committed. Hearings on Constitutional Rights of the Mentally Ill before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 1st Sess., pt. 1, pp. 11, 43 (1961). Although later U.S. Census Bureau data for 1969 show a resident patient population almost 50% lower, other data from the U.S. Department of Health, Education, and Welfare estimate annual admissions to institutions to be almost equal to the patient population at any one time, about 380,000 persons per annum. See ABF Study xv.
23
Cf. Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
24
In re Harmon, 425 F.2d 916, 918 (CA1 1970).
25
In this case, of course, Jackson or the State may seek his commitment under either the general civil commitment statutes or under those for the commitment of the feebleminded.
26
One doctor testified that Jackson 'probably knows in a general way the basic differences between right and wrong.' The other doctor agreed, but also testified that Jackson probably had no grasp whatsoever of abstract concepts such as time, 'like simple things of yesterday and tomorrow.'
27
People ex rel. Myers v. Briggs, 46 Ill.2d 281, 287—288, 263 N.E.2d 109, 112—113 (1970); United States ex rel. Wolfersdorf v. Johnston, 317 F.Supp. 66, 68 (S.D.N.Y.1970); United States v. Jackson, 306 F.Supp. 4, 6 (N.D.Cal.1969); see Foote, supra, n. 14 at 838—839; D.C. Report 145—146 (Recommendation No. 16).
28
See cases cited in n. 27; N.Y. Report 119—121 (Recommendation No. 15); D.C. Report 52—53; Model Penal Code § 4.06(2) (Proposed Official Draft 1962).
29
People ex rel. Myers v. Briggs, supra, 46 Ill.2d, at 288, 263 N.E.2d, at 113; Neely v. Hogan, 62 Misc.2d 1056, 310 N.Y.S.2d 63 (1970); N.Y. Report 115—123 (Recommendation No. 13); D.C. Report 143—144 (Recommendation No. 15); Foote, supra, n. 14, at 841—845; Model Penal Code § 4.06 (alternative subsections 3, 4) (Proposed Official Draft 1962); ABF Study 423.
30
Wis.Stat.Ann. § 971.14(6) (1971); N.Y.Crim.Proc.Law § 730.60(5) (1971); Mass.Gen.Laws, c. 123, § 17 (Supp.1972); Mont.Rev.Code Ann. § 95—506(c) (1969); Md.Ann.Code, Art. 59, § 24(a) (1972). See Reg. v. Roberts, (1953) 3 W.L.R. 178, (1953) 2 All.E.R. 340 (Devlin, J.).
31
See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).
| 34
|
406 U.S. 813
92 S.Ct. 1931
32 L.Ed.2d 511
Earnest James AIKENS, Jr., Petitioner,v.State of CALIFORNIA.
No. 68—5027.
Argued Jan. 17, 1972.
Decided June 7, 1972.
Anthony G. Amsterdam, Stanford, Cal., for petitioner.
Ronald M. George, Los Angeles, Cal., for respondent.
PER CURIAM.
1
Petitioner in this case, which has been orally argued and is now sub judice, has filed a Suggestion of Mootness and Motion for Remand based on the intervening decision of the California Supreme Court in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972). That decision declared capital punishment in California unconstitutional under Art. 1, § 6, of the state constitution. The decision rested on an adequate state ground and the State's petition for writ of certiorari was denied. 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344. The California Supreme Court declared in the Anderson case that its decision was fully retroactive and stated that any prisoner currently under sentence of death could petition a superior court to modify its judgment. Petitioner thus no longer faces a realistic threat of execution, and the issue on which certiorari was granted—the constitutionality of the death penalty under the Federal Constitution—is now moot in his case. Accordingly the writ of certiorari is dismissed.
2
Certiorari dismissed.
| 89
|
406 U.S. 759
92 S.Ct. 1808
32 L.Ed.2d 466
FIRST NATIONAL CITY BANK, Petitioner,v.BANCO NACIONAL de CUBA.
No. 70—295.
Argued Feb. 22, 1972.
Decided June 7, 1972.
Rehearing Denied Oct. 10, 1972.
See 93 S.Ct. 92.
Syllabus
This case involves a claim by respondent for excess collateral it had pledged with petitioner to secure a loan, and a counterclaim by petitioner for that excess as an offset against the value of petitioner's property in Cuba expropriated by Cuba without compensation. The District Court recognized that this Court's decision in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804, holding that generally the courts of one nation will not sit in judgment on the acts of another nation within the latter's territory (act of state doctrine) would bar assertion of the counterclaim but concluded that post-Sabbatino congressional enactments had in effect overruled that decision. The court issued summary judgment for petitioner on all issues except the amount available for possible setoff. The Court of Appeals reversed, holding that Sabbatino barred assertion of the counterclaim. Held: The judgment is reversed. Pp. 762—776.
Mr. Justice REHNQUIST, joined by THE CHIEF JUSTICE and Mr. Justice WHITE, concluded that since the Executive Branch, which is charged with the primary responsibility for the conduct of foreign affairs, has (contrary to the position it took in Sabbatino) expressly represented to the Court that the application of the act of state doctrine in this case would not advance the interests of American foreign policy, the decision in Bernstein v. N.V. Nederlandsche-Amerikaansche, etc., 2 Cir., 210 F.2d 375, should be adopted and approved, thus permitting judicial examination of the legal issues raised by the act of a foreign sovereign within its own territory. Pp. 762—770.
Mr. Justice DOUGLAS concluded that the central issue in this case is governed by National City Bank v. Republic of China, 348 U.S. 356, 75 S.Ct. 423, 99 L.Ed. 389 (holding that a sovereign's claim may be offset by a counterclaim or setoff), rather than by the Bernstein exception to Sabbatino, and accordingly would allow the setoff up to the amount of respondent's claim. Pp. 770—773.
Mr. Justice POWELL, believing that Sabbatino's broad holding was not compelled by the principles underlying the act of said doctrine, concluded that federal courts have an obligation to hear cases such as this one and to apply applicable international law. Pp. 773—776.
442 F.2d 530, reversed and remanded.
Henry Harfield, New York City, for petitioner.
Victor Rabinowitz, New York City, for respondent.
Mr. Justice REHNQUIST announced the judgment of the Court, and delivered an opinion in which THE CHIEF JUSTICE and Mr. Justice WHITE join.
1
In July 1958, petitioner loaned the sum of $15 million to a predecessor of respondent. The loan was secured by a pledge of United States Government bonds. The loan was renewed the following year, and in 1960 $5 million was repaid, the $10 million balance was renewed for one year, and collateral equal to the value of the portion repaid was released by petitioner.
2
Meanwhile, on January 1, 1959, the Castro government came to power in Cuba. On September 16, 1960, the Cuban militia, allegedly pursuant to decrees of the Castro government, seized all of the branches of petitioner located in Cuba. A week later the bank retaliated by selling the collateral securing the loan, and applying the proceeds of the sale to repayment of the principal and unpaid interest. Petitioner concedes than an excess of at least.$1.8 million over and above principal and unpaid interest was realized from the sale of the collateral. Respondent sued petitioner in the Federal District Court to recover this excess, and petitioner, by way of setoff and counterclaim, asserted the right to recover damages as a result of the expropriation of its property in Cuba.
3
The District Court recognized that our decision in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964), holding that generally the courts of one nation will not sit in judgment on the acts of another nation within its own territory would bar the assertion of the counterclaim, but it further held that congressional enactments since the decision in Sabbatino had 'for all practical purposes' overruled that case. Following summary judgment in favor of the petitioner in the District Court on all issues except the amount by which the proceeds of the sale of collateral exceeded the amount that could properly be applied to the loan by petitioner, the parties stipulated that in any event this difference was less than the damages that petitioner could prove in support of its expropriation claim if that claim were allowed. Petitioner then waived any recovery on its counterclaim over and above the amount recoverable by respondent on its complaint, and the District Court then rendered judgment dismissing respondent's complaint on the merits.
4
On appeal, the Court of Appeals for the Second Circuit held that the congressional enactments relied upon by the District Court did not govern this case, and that our decision in Sabbatino barred the assertion of petitioner's counterclaim. We granted certiorari and vacated the judgment of the Court of Appeals for consideration of the views of the Department of State which had been furnished to us following the filing of the petition for certiorari. 400 U.S. 1019, 19 S.Ct. 581, 27 L.Ed.2d 630 (1971). Upon reconsideration, the Court of Appeals by a divided vote adhered to its earlier decision. We again granted certiorari, First National City Bank v. Banco Nacional de Cuba, 404 U.S. 820, 92 S.Ct. 79, 30 L.Ed.2d 48 (1971).
5
We must here decide whether, in view of the substantial difference between the position taken in this case by the Executive Branch and that which it took in Sabbatino, the act of state doctrine prevents petitioner from litigating its counterclaim on the merits. We hold that it does not.
6
The separate lines of cases enunciating both the act of state and sovereign immunity doctrines have a common source in the case of The Schooner Exchange v. M'Faddon, 7 Cranch 116, 146, 3 L.Ed. 287 (1812). There Chief Justice Marshall stated the general principle of sovereign immunity: sovereigns are not presumed without explicit declaration to have opened their tribunals to suits against other sovereigns. Yet the policy considerations at the root of this fundamental principle are in large part also the underpinnings of the act of state doctrine. The Chief Justice observed:
7
'The arguments in favor of this opinion which have been drawn from the general inability of the judicial power to enforce its decisions in cases of this description, from the consideration, that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious attention.' (Emphasis added.)
8
Thus, both the act of state and sovereign immunity doctrines are judicially created to effectuate general notions of comity among nations and among the respective branches of the Federal Government. The history and the legal basis of the act of state doctrine are treated comprehensively in the Court's opinion in Sabbatino, supra. The Court there cited Chief Justice Fuller's 'classic American statement' of the doctrine, found in Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84, 42 L.Ed. 456 (1897):
9
'Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.'
10
The act of state doctrine represents an exception to the general rule that a court of the United States, where appropriate jurisdictional standards are met, will decide cases before it by choosing the rules appropriate for decision from among various sources of law including international law. The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900). The doctrine precludes any review whatever of the acts of the government of one sovereign State done within its own territory by the courts of another sovereign State. It is clear, however, from both history and the ipinions of this Court that the doctrine is not an inflexible one. Specifically, the Court in Sabbatino described the act of state doctrine as 'a principle of decision binding on federal and state courts alike but compelled by neither international law nor the Constitution,' 376 U.S., at 427, 84 S.Ct., at 940, and then continued:
11
'(I)ts continuing vitality depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs.' Id., at 427—428, 84 S.Ct., at 940.
12
In Sabbatino, the Executive Branch of this Government, speaking through the Department of State, advised attorneys for amici in a vein which the Court described as being 'intended to reflect no more than the Department's then wish not to make any statement bearing on this litigation.' Id., at 420, 84 S.Ct., at 936. The United States argued before this Court in Sabbatino that the Court should not 'hold, for the first time, that executive silence regarding the act of state doctrine is equivalent to executive approval of judicial inquiry into the foreign act.'
13
In the case now before us, the Executive Branch has taken a quite different position. The Legal Adviser of the Department of State advised this Court on November 17, 1970, that as a matter of principle where the Executive publicly advises the Court that the act of state doctrine need not be applied, the Court should proceed to examine the legal issues raised by the act of a foreign sovereign within its own territory as it would any other legal question before it. His letter refers to the decision of the court below in Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., 210 F.2d 375 (CA2 1954), as representing a judicial recognition of such a principle, and suggests that the applicability of the principle was not limited to the Bernstein case. The Legal Adviser's letter then goes on to state:
14
'The Department of State believes that the act of state doctrine should not be applied to bar consideration of a defendant's counterclaim or setoff against the Government of Cuba in this or like cases.'
15
The question that we must now decide is whether the so-called Bernstein exception to the act of state doctrine should be recognized in the context of the facts before the Court. In Sabbatino, the Court said:
16
'This Court has never had occasion to pass upon the so-called Bernstein exception, nor need it do so now.' 276 U.S., at 420, 84 S.Ct., at 936.
17
The act of state doctrine, like the doctrine of immunity for foreign sovereigns, has its roots, not in the Constitution, but in the notion of comity between independent sovereigns. Sabbatino, supra, at 438, 84 S.Ct. 923; National City Bank v. Republic of China, 348 U.S. 356, 72 S.Ct. 423, 99 L.Ed. 389 (1955); The Schooner Exchange v. M'Faddon, 7 Cranch 116, 3 L.Ed. 287 (1812).1
18
It is also buttressed by judicial deference to the exclusive power of the Executive over conduct of relations with other sovereign powers and the power of the Senate to advise and consent on the making of treaties. The issues presented by its invocation are therefore quite dissimilar to those raised in Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968), where the Court struck down an Oregon statute that was held to be 'an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress.' Id., at 432, 88 S.Ct., at 666.
19
The line of cases from this Court establishing the act of state doctrine justifies its existence primarily on the basis that juridical review of acts of state of a foreign power could embarrass the conduct of foreign relations by the political branches of the government. The Court's opinion in Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897), stressed the fact that the revolutionary government of Venezuela had been recognized by the United States. In Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 311, 62 L.Ed. 726 (1918), the Court was explicit:
20
'The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—'the political'—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision. . . . It has been specifically decided that: 'Who is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government . . .."
21
United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937), is another case that emphasized the exclusive competence of the Executive Branch in the field of foreign affairs.2 A year earlier, the Court in United States v. Curtiss-Wright Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 220, 81 L.Ed. 255 (1936), had quoted with approval the statement of John Marshall when he was a member of the House of Representatives dealing with this same subject:
22
"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."
23
The opinion of Scrutton, L.J., in Luther v. James Sagor & Co., (1921) 3 K.B. 532, described in Sabbatino as a 'classic case' articulating the act of state doctrine 'in terms not unlike those of the United States cases,' strongly suggests that under the English doctrine the Executive by representation to the courts may waive the application of the doctrine:
24
'But it appears a serious breach of international comity, if a state is recognized as a sovereign independent state, to postulate that its legislation is 'contrary to essential principles of justice and morality.' Such an allegation might well with a susceptible foreign government become a casus belli; and should in my view be the action of the Sovereign through his ministers, and not of the judges in reference to a state which their Sovereign has recognized. . . . The responsibility for recognition or non-recognition with the consequences of each rests on the political advisers of the Sovereign and not on the judges.' Id., at 559.
25
We think that the examination of the foregoing cases indicates that this Court has recognized the primacy of the Executive in the conduct of foreign relations quite as emphatically as it has recognized the act of state doctrine. The Court in Sabbatino throughout its opinion emphasized the lead role of the Executive in foreign policy, particularly in seeking redress for American nationals who had been the victims of foreign expropriation, and concluded that any exception to the act of state doctrine based on a mere silence or neutrality on the part of the Executive might well lead to a conflict between the Executive and Judicial Branches. Here, however, the Executive Branch has expressly stated that an inflexible application of the act of state doctrine by this Court would not serve the interests of American foreign policy.
26
The act of state doctrine is grounded on judicial concern that application of customary principles of law to judge the acts of a foreign sovereign might frustrate the conduct of foreign relations by the political branches of the government. We conclude that where the Executive Branch, charged as it is with primary responsibility for the conduct of foreign affairs, expressly represents to the Court that application of the act of state doctrine would not advance the interests of American foreign policy, that doctrine should not be applied by the courts. In so doing, we of course adopt and approve the so-called Bernstein exception to the act of state doctrine. We believe this to be no more than an application of the classical common-law maxim that '(t)he reason of the law ceasing, the law itself also ceases' (Black's Law Dictionary 288 (4th ed. 1951)).
27
Our holding is in no sense an abdication of the judicial function to the Executive Branch. The judicial power of the United States extends to this case, and the jurisdictional standards established by Congress for adjudication by the federal courts have been met by the parties. The only reason for not deciding the case by use of otherwise applicable legal principles would be the fear that legal interpretation by the judiciary of the act of a foreign sovereign within its own territory might frustrate the conduct of this country's foreign relations. But the branch of the government responsible for the conduct of those foreign relations has advised us that such a consequence need not be feared in this case. The judiciary is therefore free to decide the case without the limitations that would otherwise be imposed upon it by the judicially created act of state doctrine.
28
It bears noting that the result we reach is consonant with the principles of equity set forth by the Court in National City Bank v. Republic of China, 348 U.S. 356, 75 S.Ct. 423, 99 L.Ed. 389 (1955). Here respondent, claimed by petitioner to be an instrument of the government of Cuba, has sought to come into our courts and secure an adjudication in its favor, without submitting to decision on the merits of the counterclaim which petitioner asserts against it. Speaking of a closely analogous situation in Republic of China, supra, the Court said:
29
'We have a foreign government invoking our law but resisting a claim against it which fairly would curtail its recovery. It wants our law, like any other litigant, but it wants our law free from the claims of justice. It becomes vital, therefore, to examine the extent to which the considerations which led this Court to bar a suit against a sovereign in The Schooner Exchange are applicable here to foreclose a court from determining, according to prevailing law, whether the Republic of China's claim against the National City Bank would be unjustly enforced by disregarding legitimate claims against the Republic of China. As expounded in The Schooner Exchange, the doctrine is one of implied consent by the territorial sovereign to exempt the foreign sovereign from its 'exclusive and absolute' jurisdiction, the implication deriving from standards of public morality, fair dealing, reciprocal self-interest, and respect for the 'power and dignity' of the foreign sovereign.' Id., at 361—362, 75 S.Ct., at 427.
30
The act of state doctrine, as reflected in the cases culminating in Sabbatino, is a judicially accepted limitation on the normal adjudicative processes of the courts, springing from the thoroughly sound principle that on occasion individual litigants may have to forgo decision on the merits of their claims because the involvement of the courts in such a decision might frustrate the conduct of the Nation's foreign policy. It would be wholly illogical to insist that such a rule, fashioned because of fear that adjudication would interfere with the conduct of foreign relations, be applied in the face of an assurance from that branch of the Federal Government that conducts foreign relations that such a result would not obtain. Our holding confines the courts to adjudication of the case before them, and leaves to the Executive Branch the conduct of foreign relations. In so doing, it is both faithful to the principle of separation of powers and consistent with earlier cases applying the act of state doctrine where we lacked the sort of representation from the Executive Branch that we have in this case.
31
We therefore reverse the judgment of the Court of Appeals, and remand the case to it for consideration of respondent's alternative bases of attack on the judgment of the District Court.
32
Reversed and remanded.
33
Mr. Justice DOUGLAS, concurring in the result.
34
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804, does not control the central issue in the presen2{J8
| 89
|
406 U.S. 742
92 S.Ct. 1941
32 L.Ed.2d 453
UNITED STATES et al., Appellants,v.ALLEGHENY-LUDLUM STEEL CORPORATION et al.
No. 71—227.
Argued March 27, 1972.
Decided June 7, 1972.
Syllabus
1. Two 'car service rules' promulgated by the Interstate Commerce Commission (ICC), requiring generally that unloaded freight cars be returned in the direction of the owning railroad, are 'reasonable' under the Esch Car Service Act of 1917, in view of the ICC's finding, for which there is substantial record support, of a national freight car shortage, and its conclusion that the shortage could be alleviated by mandatory observance of the rules, which would give the railroads greater use of their cars and provide an incentive for the purchase of new equipment. Pp. 744—755.
2. The ICC proceeding in this case was governed by, and fully complied with, § 553 of the Administrative Procedure Act. Pp. 756 758.
D.C., 325 F.Supp. 352, reversed.
Samuel Huntington, Washington, D.C., for appellants.
Max O. Truitt, Jr., and William M. Moloney, Washington, D.C., for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In 1969 the Interstate Commerce Commission promulgated two 'car service rules' that would have the general effect of requiring that freight cars, after being unloaded, be returned in the direction of the lines of the road owning the cars. Several railroads and shippers instituted two separate suits under 28 U.S.C. §§ 2321—2325 to enjoin enforcement of these rules. In Florida East Coast R. Co. v. United States, 327 F.Supp. 1076 (MD Fla.1971), the action of the Commission was sustained by a three-judge court, but in the case now before us a similar court for the Western District of Pennsylvania held the Commission's order invalid. 325 F.Supp. 352 (WD Pa.1971). We noted probable jurisdiction, 404 U.S. 937, 92 S.Ct. 275, 30 L.Ed.2d 249, and for the reasons hereinafter stated we conclude that the Commission's action here challenged was within the scope of the authority conferred upon it by Congress and conformed to procedural requirements.
2
The country's railroads long ago abandoned the custom of shifting freight between the cars of connecting roads, and adopted the practice of shipping the same loaded car over connecting lines to its ultimate destination. The freight cars of the Nation thus became in essence a single common pool, used by all roads. This practice necessarily required some arrangements for eventual return of a freight car to the lines of the road which owned it, and in 1902 the railroads through their trade association dealt with this and related problems in a code of car-service rules with which the roads agreed among themselves to comply. The effect of the Commission's order now under review is to promulgate two of these rules1 as the Commission's own, with the result that sanctions attach to their violation by the railroads.
3
Because of critical freight-car shortages experienced during World War I, Congress enacted the Esch Car Service Act of 1917, which empowered the Commission to establish reasonable rules and practices with respect to car service by railroads. 40 Stat. 101, 49 U.S.C. § 1(14)(a). The pertinent language of that Act provides:
4
'The Commission may . . . establish reasonable rules, regulations, and practices with respect to car service by common carriers by railroad subject to this chapter . . ..'
5
No party to this proceeding has questioned that the rules promulgated by the Commission are 'rules, regulations, and practices with respect to car service,' and therefore the issue before us is whether these rules are 'reasonable' as that term is used in the Esch Act. The court below concluded, and the appellees here contend, that for a number of reasons the rules in question do not meet the statutory requirement of reasonableness. Appellees also contend that the findings jof the Commission are insufficient findings of the Commission are insufficient Act, 5 U.S.C. § 551 et seq.
6
The record of proceedings before the Commission establishes that the Commission has been increasingly concerned with recurring shortages of freight cars available to serve the Nation's shippers. It found that shortages of varying duration and severity occur both as an annual phenomenon at peak loading periods and also during times of national emergency. The result of these shortages has been that roads were unable to promptly supply freight cars to shippers who had need of them.
7
Underlying these chronic shortages of available freight cars, the Commission found, was an inadequate supply of freight cars owned by the Nation's railroads. The Commission concluded that one of the principal factors causing this inadequate supply of freight cars was the operation of the national car-pool system. In practice this system resulted in freight cars being on lines other than those of the owning road for long periods of time, since the rules providing for the return of unloaded freight cars in the direction of the lines of the owning road were observed more often than not in the breach. Since the owning road was deprived of the use of its own freight cars for extended periods of time, the Commission found, there was very little incentive for it to acquire new freight cars. In addition, since a road which owned a supply of freight cars inadequate to serve its own on-line shippers could generally, by hook or by crook, arrange to utilize cars owned by other roads, the national car-pool system significantly reduced the normal incentive for a railroad to acquire sufficient equipment to serve its customers. The rules promulgated by the Commission are intended to make those railroads whose undersupply of freight cars contributes to the national shortage more directly feel the pinch resulting from the shortage that they have helped to cause. By thus requiring each road to face up to any inadequacies in its ownership of freight cars, the rules are intended in the long run to correct the nationwide short supply of freight cars that the Commission has found to exist.
8
Central to the justification for the Commission's promulgation of these rules is its finding that there was a nationwide shortage of freight car ownership. The court below assumed the correctness of that finding, and we conclude that it was supported by substantial evidence.
9
Shortly after the Second World War, the Commission conducted an investigation into the adequacy of freight car supply and utilization by the Nation's railroads. The Commission in that proceeding concluded that there was 'an inadequacy in freight car ownership by rail carriers as a group.' Recognizing that this inadequacy was caused at least in part by the inability of the railroads to acquire new equipment, first during an era of wartime demand and then during an era of post-war boom, the Commission at that time imposed no obligation on the railroads except to require them to file with it their rules and regulations with respect to car service.
10
In 1963 the Commission began this investigation into the adequacy of car ownership, distribution, and utilization. At the conclusion of the investigatory phase of the proceeding in 1964, the Commission determined that there was a shortage of freight cars in general service. 323 I.C.C. 48 (1964). Formal notification of proposed rulemaking was then issued, and a questionnaire was submitted to the various railroads for the purpose of compiling data on car ownership and use. After these data were gathered, railroads, shippers, and other interested parties were permitted to file verified statements providing further factual material and to adduce legal arguments. The Commission, through its Bureau of Operations, presented to the Hearing Examiner tabular collations of the freight car ownership and use data, and suggested a formula by which a railroad might compute the sufficiency of its freight car ownership. The Bureau also proposed that the entire Code of Car Service Rules adopted by the Association of American Railroads be promulgated by the Commission for mandatory observance.
11
Many railroads and shippers opposed mandatory enforcement of the rules. Some roads and shippers appeared in favor of at least some mandatory enforcement of the rules, arguing that unless some compulsion were used in enforcing them, cars purchased by a railroad for use by its shippers would continue to be detained for inordinately long periods of time by other roads.
12
After 50 days of hearings, the Trial Examiner issued his report, recommending against mandatory enforcement of the car-service rules. Although the Commission, prior to referring the matter to him, had previously made a definitive finding that a shortage of freight cars existed, the Examiner's report stated that there was no competent evidence in the record developed before him upon which such a determination could be made. The Examiner assigned several reasons for recommending against mandatory enforcement of the rules.
13
The Commission issued a comprehensive opinion disagreeing with the trial examiner in many respects, and ordering that two of the car-service rules be promulgated as rules of the Commission with sanctions attaching to noncompliance. Finding that '(t)he continuing relocation of cars on owner's lines is of major importance to the maintenance of an adequate car supply,'2 the Commission concluded that the inconveniences feared by the shippers were outweighed by the long term benefit that would accrue from the mandatory enforcement of the two car service rules.
14
After its first order adopting the two rules was issued, the Commission considered claims that there was need for some procedure for exceptions to the mandatory enforcement of the rules. A supplemental order then established another rule that permitted the railroads to seek exception from the Commission's Bureau of Operations, in order to alleviate inequities and hardships.3
15
The court below held that the rules were not 'reasonable,' as that term is used in the Esch Act, for three reasons. First, although there was a general finding of a nationwide freight car shortage, the court said that a specific shortage on owner lines should have been found in order to justify the promulgation of these rules. Second, it said there should have been a finding as to the financial effects upon the railroads and shippers who would be affected by the rules. Finally, it supported its conclusion that the rules were not 'reasonable' by the fact that even though violation of the rules could be enforced by monetary penalties, the Commission nonetheless conceded that obtaining complete compliance with them would be impossible.
16
The standard of judicial review for actions of the Interstate Commerce Commission in general, Western Paper Makers' Chemical Co. v. United States, 271 U.S. 268, 46 S.Ct. 500, 70 L.Ed. 941 (1926), and for actions taken by the Commission under the authority of the Esch Act in particular, Assigned Car Cases, 274 U.S. 564, 47 S.Ct. 727, 71 L.Ed. 1204 (1927), is well established by prior decisions of this Court. We do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. In judicially reviewing these particular rules promulgated by the Commission, we must be alert to the differing standard governing review of the Commission's exercise of its rulemaking authority, on the one hand, and that governing its adjudicatory function, on the other:
17
'In the cases cited, the Commission was determining the relative rights of the several carriers in a joint rate. It was making a partition; and it performed a function quasi-judicial in its nature. In the case at bar, the function exercised by the Commission is wholly legislative. Its authority to legislate is limited to establishing a reasonable rule. But in establishing a rule of general application, it is not a condition of its validity that there be adduced evidence of its appropriateness in respect to every railroad to which it will be applicable. In this connection, the Commission, like other legislators, may reason from the particular to the general.' Assigned Car Cases, supra, at 583, 47 S.Ct., at 734.
18
The finding of the Commission as to a nationwide shortage of freight cars was based primarily on data submitted by the railroads themselves covering the years 1955 through 1964. Over this 10-year period total freight car ownership of Class I railroads dropped 12.4%, and aggregate carrying capacity of those railroads dropped 5%. Over the same period revenue tons originated dropped 2.9%. The decline in ownership of plain box cars, as opposed to more sophisticated types of cars, was even more dramatic; ownership of cars over the 10-year period in question dropped 22.1%, while aggregate carrying capacity of such cars dropped 18.9%. Testimony of witnesses for the National Industrial Traffic League, the Western Wood Products Association, the American Plywood Association, and the Vulcan Materials Association also supported the finding of a car shortage. These statistics, taken together with the Commission's post-war determination of a car shortage, portray a gradually worsening ratio of carrying capacity to revenue tons originated.
19
The Commission further found that freight car shortages, in the sense that a particular road was unable to promptly supply freight cars to particular shippers who needed them, have occurred chronically, both during peak loading seasons each year and during times of national emergency. It is quite true, as appellees suggest, that inability of the roads to supply cars to shippers at particular times is not conclusive evidence that there is a national shortage of freight car ownership. Conceivably, freight car ownership could be adequate, yet poor utilization of the supply could result in shortages. Nonetheless, the Commission may fairly rely on these chronic shortages in availability of freight cars as one factor upon which to base its conclusion that there was an overall shortage of ownership of freight cars.
20
The Commission also found that a surprisingly low percentage of freight cars was actually on the tracks of the roads owning the cars at any given time, and that this percentage had been decreasing during the period in question. In March 1966, less than 30% of the railroads' plain box cars were on the line of their owner, and during the preceding year that percentage remained mostly in the low thirties. The Commission summarized the factual situation it found in these words:
21
'From the evidence adduced and the data collected, it is obvious that an adequate freight car supply is as much a problem today as it was during the period considered in our last proceeding in 1947. Car service which involves a shortage of approximately one out of every ten cars ordered or even one out of every fifteen cars ordered demands that every available means be marshalled to eliminate such deficiencies.' 335 I.C.C., at 285.
22
One of the means marshaled by the Commission to eliminate such deficiencies was the promulgation of the two rules under attack here. The thrust of these rules is to require that freight cars after unloading be dispatched in the direction of the lines of the owning road.
23
Thus, the Commission concluded after investigation that the railroads were frequently unable to supply shippers with freight cars. It reasoned from this fact, and from statistics showing a significantly more rapid decline in aggregate carrying capacity than in revenue tons originated, that an underlying and important cause of the unavailability of box cars to shippers was that the Nation's railroads simply did not jointly own a sufficient number of freight cars to adequately serve shippers of goods over their lines. Because of the existence of the national pool of freight cars, whereby roads may service on-line shippers with foreign cars, it was difficult, if not impossible, to relate inadequate ownership statistically to any particular road or roads. The Commission therefore chose to make mandatory two of the car-service rules that would have the effect of aligning more closely than at present the ownership of freight cars on the part of the road with the availability of those freight cars to the owning road for use of its on-line shippers. The result of these rules, over the long term, the Commission reasoned, would be to bring home to those roads which themselves had an inadequate supply of cars to serve their on-line shippers that fact, and also without doubt to supply incentive to such roads to augment their supply of freight cars in order to adequately serve their on-line shippers. The national supply of freight cars would thereby be augmented, and the railroads as a result would be better able to supply the needs of shippers.
24
Appellees' fundamental substantive contention is that the short-term consequences of the enforcement of these rules will so seriously disrupt established industry practices as to outweigh any possible long-term benefits in service that might accrue from them, and that therefore the rules are not 'reasonable' as that term is used in the Esch Act.4 While, of course, conceding that the railroads themselves originally promulgated the rules for voluntary compliance, appellees argue that because the rules have been observed largely in the breach, usages and practices have grown up that permit far more efficient utilization of the existing fleet of freight cars than would be permitted if the two rules in question were enforced by the Commission. Appellees state that in reliance on the existence of a national pool of freight cars, and on the consequent availability to shippers of cars not owned by the line originating the shipment, manufacturing plants have been located and enlarged. They claim that enforcement of the rules now would seriously hamper the movement of freight traffic from these and other shipping points.
25
It may be conceded that the immediate effect of the Commission's order will be to disrupt some established practices with respect to the handling and routing of freight cars, and on occasion to cause serious inconvenience to shippers and railroads alike. If the Commission were thrusting these regulations upon an admittedly smoothly functioning transportation industry, well supplied with necessary rolling stock and adequately serving all shippers, the rationality of its action might well be open to question.
26
But such is not the case. The Commission's finding that there are recurring periods of significant length when there is not an adequate freight car supply to service shippers is supported by substantial evidence. While the flexible system of routing freight cars presently in existence may well have shortterm advantages both for some shippers and some roads, the Commission could quite reasonably conclude that it has long-term drawbacks as well. The otherwise adverse effect on a road's ability to serve shippers that would result from its owning too few cars is cushioned; the beneficial effect on a road's ability to serve shippers that would result from its owning a sufficient supply of cars is dissipated. The Commission undoubtedly felt that rules designed only to most efficiently utilize the existing inadequate fleet of freight cars would have little or no effect on the nationwide shortage of such cars. Indeed, the appellees stress the concession by the Commission that these rules 'are designed to improve the utilization of freight cars, except insofar as return loading is compatible with the primary objective of increasing availability of cars to the owner.' 335 I.C.C., at 294.
27
But only if we were to hold that Congress, in enacting the Esch Car Service Act, intended that the only criterion that the Commission might consider in establishing 'reasonable rules, regulations, and practices with respect to car service' was the optimum utilization of an existing fleet of freight cars, however numerically inadequate that fleet might be, could this argument be sustained. Neither the language that Congress used nor the legislative history of the Act supports such a narrow reading of its grant of authority to the Commission. On the record before it, the Commission was justified in deciding that the railroads and the shippers were afflicted with an economic illness that might have to get worse before it got better. Existing practices respecting car service tended to destroy any incentive on the part of railroads to acquire new cars, and the resulting failure to acquire new equipment contributed to an overall nationwide shortage of freight cars that provented the railroad industry from adequately serving shippers. Carservice rules that would tend to restore incentive to the various roads to augment their supply of freight cars, even at the temporary expense of optimum utilization of the existing fleet of freight cars, conform under these circumstances to the statutory requirement of reasonableness.
28
Appellees support their claim that the Commission's promulgation of these rules is not 'reasonable' under the Esch Act on two grounds not directly related to the rules' claimed adverse effect on the ability of the roads to serve shippers. They attack the absence of a Commission finding as to the financial ability of roads inadequately supplied with freight cars to purchase new ones, and they cite the conceded impossibility of obtaining complete compliance with the rules as additional evidence of their unreasonableness.
29
The Commission's order does not require any road to purchase any freight cars. It abridges to some extent the existing practice among railroads of treating the freight cars that they own as a pool, and for that reason may ultimately cause roads that do not have an adequate supply of freight cars to serve online shippers to be less able to serve such shippers than they are now. If, as a result of this fact, such roads are placed under economic and competitive pressure to acquire additional freight cars, there is certainly no principle of law we know of that would require the Commission to permit them to avoid this economic pressure by continuing to borrow freight cars acquired and owned by other lines.
30
The Commission, acceding to the arguments of shippers and railroads on rehearing, agreed that mandatory total compliance with the rules promulgated would be impossible in view of the tremendous number of units involved, and, accordingly a procedure by which exceptions might be applied for was established. How the provision for exceptions will be administered in practice is a matter about which we could only speculate at present. It is well established that an agency's authority to proceed in a complex area such as car-service regulation by means of rules of general application entails a concomitant authority to provide exemption procedures in order to allow for special circumstances. Permian Basin Area Rate Cases, 390 U.S. 747, 784—786, 88 S.Ct. 1344, 1368 1370, 20 L.Ed.2d 312 (1968). What bearing any of these factors might have on an action under the provisions of 49 U.S.C. § 1(17) for the collection of penalties for a violation of the rules in question is a question best decided in such a proceeding. The fact that violation of a rule promulgated under the Esch Car Service Act may be the basis for a proceeding to collect a penalty does not either expand or contract the statutory definition of 'reasonable' found in that Act.
31
What we have said thus far is enough to indicate our view that there is sufficient relationship between the Commission's conclusions and the factual bases in the record upon which it relied to substantively support this exercise of its authority under the Esch Act. Appellees press on us an additional claim that the Commission failed to comply with the provisions of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., citing Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), and Secretary of Agriculture v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954). Burlington Truck Lines is clearly inapposite, however, since in that case the Court was dealing with adjudication, not rule-making. In criticizing the Commission's action there, the Court said that 'the Administrative Procedure Act will not permit us to accept such adjudicatory practice,' 371 U.S., at 167, 83 S.Ct., at 245. In Secretary of Agriculture v. United States, supra, the Court reviewed the Commission's action, not under the Administrative Procedure Act, but on the basis of its prior cases establishing the standard for judicial review of agency action. Commenting that '(i)n dealing with technical and complex matters like these, the Commission must necessarily have wide discretion in formulating appropriate solutions,' the Court went on to conclude that the Commission 'has not adequately explained its departure from prior norms and has not sufficiently spelled out the legal basis of its decision.' 347 U.S., at 652—653, 74 S.Ct., at 831. For the reasons previously stated, we find no such infirmaties here.
32
This Court has held that the Administrative Procedure Act applies to proceedings before the Interstate Commerce Commission. Minneapolis & St. Louis R. Co. v. United States, 361 U.S. 173, 192, 80 S.Ct. 229, 240, 4 L.Ed.2d 223 (1959). Appellees claim that the Commission's procedure here departed from the provisions of 5 U.S.C. §§ 556 and 557 of the Act. Those sections, however, govern a rule-marking proceeding only when 5 U.S.C. § 553 so requires. The latter section, dealing generally with rulemaking, makes applicable the provisions of §§ 556 and 557 only '(w)hen rules are required by statute to be made on the record after opportunity for an agency hearing . . ..' The Esch Act, authorizing the Commission 'after hearing, on a complaint or upon its own initiative without complaint, (to) establish reasonable rules, regulations, and practices with respect to car service . . .,' 49 U.S.C. § 1(14)(a), does not require that such rules 'be made on the record.' 5 U.S.C. § 553. That distinction is determinative for this case. 'A good deal of significance lies in the fact that some statutes do expressly require determinations on the record.' 2 K. Davis. Administrative Law Treatise § 13.08, p. 225 (1958). Sections 556 and 557 need be applied 'only where the agency statute, in addition to providing a hearing, prescribes explicitly that it be 'on the record." Siegel v. Atomic Energy Comm'n, 130 U.S.App.D.C. 307, 314, 400 F.2d 778, 785 (1968); Joseph E. Seagram & Sons Inc. v. Dillon, 120 U.S.App.D.C. 112, 115 n. 9, 344 F.2d 497, 500 n. 9 (1965). Cf. First National Bank of McKeesport v. First Federal Savings & Loan Assn., 96 U.S.App.D.C. 194, 225 F.2d 33 (1955). We do not suggest that only the precise words 'on the record' in the applicable statute will suffice to make §§ 556 and 557 applicable to rule-making proceedings, but we do hold that the language of the Esch Car Service Act is insufficient to invoke these sections.
33
Because the proceedings under review were an exercise of legislative rulemaking power rather than adjudicatory hearings as in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), and Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937), and because 49 U.S.C. § 1(14)(a) does not require a determination 'on the record,' the provisions of 5 U.S.C. §§ 556 and 557 were inapplicable.
34
This proceeding, therefore, was governed by the provisions of 5 U.S.C. § 553 of the Administrative Procedure Act, requiring basically that notice of proposed rulemaking shall be published in the Federal Register, that after notice the agency give interested persons an opportunity to participate in the rulemaking through appropriate submissions, and that after consideration of the record so made the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.5 The 'Findings' and 'Conclusions' embodied in the Commission's report fully comply with these requirements, and nothing more was required by the Administrative Procedure Act.
35
We conclude that the Commission's action in promulgating these rules was substantively authorized by the Esch Act And procedurally acceptable under the Administrative Procedure Act. The judgment of the District Court must therefore be reversed.
36
Judgment reversed.
1
'Rule 1. Foreign cars, empty at a junction with the home road, must be:
'(a) Loaded at that junction to or via home rails, or,
'(b) Delivered empty at that junction to home road, except in instances where Rule 6 has been invoked, or unless otherwise agreed by roads involved.
'Rule 2. Foreign empty cars other than those covered in Rule 1 shall be:
'(a) Loaded to or via owner's rails.
'(b) Loaded to a destination closer to owner's rails than is the loading station or delivered empty to a short line or switch loading road for such loading. (Car Selection Chart is designed to aid in so selecting cars for loading.)
'(c) Delivered empty to the home road at any junction subject to Rule 6.
'(d) Delivered empty to the road from which originally received under load, at the junction where received, Except that when handled in road haul service, cars of direct connection ownership may not be delivered empty to a road which does not have a direct connection with the car owner.
'(e) Returned empty to the delivering road when handled only in switching service.' Jurisdictional Statement 64.
2
335 I.C.C. 264, 293 (1969).
3
'Rule 19—Exceptions
'Exceptions to the rules (prescribed by the Interstate Commerce Commission for mandatory observance) for the purpose of further improving car supply and utilization, increasing availability of cars to their owners, improving the efficiency of railroad operations, or alleviating inequities or hardships, may be authorized by the Director or Assistant Director of the Bureau of Operations, Interstate Commerce Commission, Washington, D.C.' Jurisdictional Statement 172.
4
Three separate briefs have been filed here in support of appellees, each of which understandably presents the case for affirmance in slightly differing form, and no one of which completely adopts the reasoning of the District Court. We have not found it necessary in deciding the case to deal with each separate argument in support of affirmance, since we believe all of them to be generally subsumed under those claims with which we deal.
5
49 U.S.C. § 1(14)(a) likewise requires the Commission to conduct a hearing before promulgating rules.
| 78
|
406 U.S. 797
92 S.Ct. 1899
32 L.Ed.2d 499
Melvin LAIRD, Secretary of Defense, et al., Petitioners,v.Jim Nick NELMS et al.
No. 71—573.
Argued April 17, 1972.
Decided June 7, 1972.
Rehearing Denied Oct. 10, 1972.
See 93 S.Ct. 95.
Syllabus
Damage from sonic boom caused by military planes, where no negligence was shown either in the planning or operation of the flight, is not actionable under the Federal Tort Claims Act, which does not authorize suit against the Government on claims based on strict or absolute liability for ultrahazadous activity. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427. Pp. 798—803.
442 F.2d 1163, reversed.
Richard B. Stone, Washington, D.C., for petitioners.
George E. Allen, Sr., Washington, D.C., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondents brought this action in the United States District Court under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671—2680. They sought recovery for property damage allegedly resulting from a sonic boom caused by California-based United States military planes flying over North Carolina on a training mission. The District Court entered summary judgment for petitioners, but on respondents' appeal the United States Court of Appeals for the Fourth Circuit reversed. That court held that, although respondents had been unable to show negligence 'either in the planning or operation of the flight,' they were nonetheless entitled to proceed on a theory of strict or absolute liability for ultrahazardous activities conducted by petitioners in their official capacities. That court relied on its earlier opinion in United States v. Praylou, 4 Cir., 208 F.2d 291 (1953), which in turn had distinguished this Court's holding in Dalehite v. United States, 346 U.S. 15, 45, 73 S.Ct. 956, 972, 97 L.Ed. 1427 (1953). We granted certiorari. 404 U.S. 1037, 92 S.Ct. 711, 30 L.Ed.2d 728.
2
Dalehite held that the Government was not liable for the extensive damage resulting from the explosion of two cargo vessels in the harbor of Texas City, Texas, in 1947. The Court's opinion rejected various specifications of negligence on the part of Government employees that had been found by the District Court in that case, and then went on to treat petitioners' claim that the Government was absolutely or strictly liable because of its having engaged in a dangerous activity. The Court said with respect to this aspect of the plaintiffs' claim:
3
'(T)he Act does not extend to such situations, though of course well known in tort law generally. It is to be invoked only on a 'negligent or wrongful act or omission' of an employee. Absolute liability, of course, arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity.' 346 U.S., at 44, 73 S.Ct., at 972.
4
This Court's resolution of the strict-liability issue in Dalehite did not turn on the question of whether the law of Texas or of some other State did or did not recognize strict liability for the conduct of ultrahazardous activities. It turned instead on the question of whether the language of the Federal Tort Claims Act permitted under any circumstances the imposition of liability upon the Government where there had been neither negligence nor wrongful act. The necessary consequence of the Court's holding in Dalehite is that the statutory language 'negligent or wrongful act or omission of any employee of the Government,' is a uniform federal limitation on the types of acts committed by its employees for which the United States has consented to be sued. Regardless of state law characterization, the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of 'misfeasance or nonfeasance,' 346 U.S., at 45, 73 S.Ct. at 972, on the part of the Government.
5
It is at least theoretically possible to argue that since Dalehite in discussing the legislative history of the Act said that 'wrongful' acts could include some kind of trespass, and since courts imposed liability in some of the early blasting cases on the theory that the plaintiff's action sounded in trespass, liability could be imposed on the Government in this case on a theory of trespass which would be within the Act's waiver of immunity. We believe, however, that there is more than one reason for rejecting such an alternate basis of governmental liability here.
6
The notion that a military plane on a high-altitude training flight itself intrudes upon any property interest of an owner of the land over which it flies was rejected in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). There this Court, construing the Air Commerce Act of 1926, 44 Stat. 568, as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. § 401, said:
7
'It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe—Cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared.
8
Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just Claim.' 328 U.S., at 260—261, 66 S.Ct., at 1065.
9
Thus, quite apart from what would very likely be insuperable problems of proof in connecting the passage of the plane over the owner's air space with any ensuing damage from a sonic boom, this version of the trespass theory is ruled out by established federal law. Perhaps the precise holding of United States v. Causby, supra, could be skirted by analogizing the pressure wave of air characterizing a sonic boom to the concussion that on occasion accompanies blasting, and treating the air wave striking the actual land of the property owner as a direct intrusion caused by the pilot of the plane in the mold of the classical common-law theory of trespass.
10
It is quite clear, however, that the presently prevailing view as to the theory of liability for blasting damage is frankly conceded to be strict liability for undertaking an ultrahazardous activity, rather than any attenuated notion of common law trespass. See Restatement of Torts §§ 519, 520(e); W. Prosser, Law of Torts § 75 (4th ed. 1971). While a leading North Carolina case on the subject of strict liability discusses the distinction between actions on the case and actions sounding in trespass that the earlier decisions made, it, too, actually grounds liability on the basis that he who engages in ultrahazardous activity must pay his way regardless of what precautions he may have taken. Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N.C. 69, 131 S.E.2d 900 (1963).
11
More importantly, however, Congress in considering the Federal Tort Claims Act cannot realistically be said to have dealt in terms of either the jurisprudential distinctions peculiar to the forms of action at common law or the metaphysical subtleties that crop up in even contemporary discussions of tort theory. See Prosser, supra, at 492—496. The legislative history discussed in Dalehite indicates that Congress intended to permit liability essentially based on the intentionally wrongful or careless conduct of Government employees, for which the Government was to be made liable according to state law under the doctrine of respondeat superior, but to exclude liability based solely on the ultrahazardous nature of an activity undertaken by the Government.
12
A House Judiciary Committee memorandum explaining the 'discretionary function' exemption from the bill when that exemption first appeared in the draft legislation in 1942 made the comment that 'the cases covered by that subsection would probably have been exempted . . . by judicial construction' in any event, but that the exemption was intended to preclude any possibility
13
'that the act would be construed to authorize suit for damages against the Government growing out of a legally authorized activity, such as a floodcontrol or irrigation project, where no wrongful act or omission on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious . . ..' Hearings on H.R. 5373 and H.R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, pp. 65—66 (1942).
14
The same memorandum, after noting the erosion of the doctrine of sovereign immunity over the years, observed with respect to the bill generally:
15
'Yet a large and highly important area remains in which no satisfactory remedy has been provided for the wrongs of Government officers or employees, the ordinary 'commonlaw' type of tort, such as personal injury or property damage caused by the negligent operation of an automobile.' Id., at 39.
16
The type of trespass subsumed under the Act's language making the Government liable for 'wrongful' acts of its employees is exemplified by the conduct of the Government agents in Hatahley v. United States, 351 U.S. 173, 181, 76 S.Ct. 745, 751, 100 L.Ed. 1065. Liability of this type under the Act is not to be broadened beyond the intent of Congress by dressing up the substance of strict liability for ultrahazardous activities in the garments of common-law trespass. To permit respondent to proceed on a trespass theory here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe the Act permits such a result.
17
Shortly after the decision of this Court in Dalehite, the facts of the Texas City catastrophe were presented to Congress in an effort to obtain legislative relief from that body. Congress, after conducting hearings and receiving reports, ultimately enacted a bill granting compensation to the victims in question. 69 Stat. 707; H.R.Rep.No.2024, 83d Cong., 2d Sess. (1954); S.Rep.No.2363, 83d Cong., 2d Sess. (1954); H.R.Rep.No.1305, 84th Cong., 1st Sess. (1955); H.R.Rep.No.1623, 84th Cong., 1st Sess. (1955); S.Rep.No.684, 84th Cong., 1st Sess. (1955). At no time during these hearings was there any effort made to modify this Court's construction of the Tort Claims Act in Dalehite. Both by reason of stare decisis and by reason of Congress' failure to make any statutory change upon again reviewing the subject, we regard the principle enunciated in Dalehite as controlling here.
18
Since Dalehite held that the Federal Tort Claims Act did not authorize suit against the Government on claims based on strict liability for ultrahazardous activity, the Court of Appeals in the instant case erred in reaching a contrary conclusion. While as a matter of practice within the Circuit it may have been proper to rely upon United States v. Praylou, 208 F.2d 291, it is clear that the holding of the latter case permitting imposition of strict liability on the Government where state law permits it is likewise inconsistent with Dalehite. Dalehite did not depend on the factual question of whether the Government was handling dangerous property, as opposed to operating a dangerous instrument but, rather, on the Court's determination that the Act did not authorize the imposition of strict liability of any sort upon the Government. Indeed, even the dissenting opinion in Dalehite did not disagree with the conclusion of the majority on that point.
19
Our reaffirmation of the construction put on the Federal Tort Claims Act in Dalehite, makes it unnecessary to treat the scope of the discretionary-function exemption contained in the Act, or the other matters dealt with by the Court of Appeals.
20
Reversed.
21
Mr. Justice DOUGLAS, having heard the argument, withdrew from participation in the consideration or decision of this case.
22
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting.
23
Under the Federal Tort Claims Act, the United States is liable for injuries to persons or property
24
'caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. § 1346(b).
25
The Court of Appeals in this case found that the law of North Carolina renders a person who creates a sonic boom absolutely liable for any injuries caused thereby, and that finding is not challenged here.1 And while the petitioners argue that the conduct involved falls within one of the numerous express exceptions to the coverage of the Act contained in § 2680,2 the Court today does not reach that issue. Rather, the Court holds that the words 'negligent or wrongful act or omission' preclude the application to the United States of any state law under which persons may be held absolutely liable for injuries caused by certain kinds of conduct. In my view, this conclusion is not justified by the language or the history of the Act, and is plainly contrary to the statutory purpose. I therefore dissent.
26
In the vast majority of cases in the law of torts, liability is predicated on a breach of some legal duty owed by the defendant to the plaintiff, whether that duty involves exercising reasonable care in one's activities or refraining from certain activities altogether. The law of most jurisdictions, however, imposes liability for harm caused by certain narrowly limited kinds of activities even though those activities are not prohibited and even though the actor may have exercised the utmost care. Such conduct is 'tortious,' not because the actor is necessarily blameworthy, but because society has made a judgment that while the conduct is so socially valuable that it should not be prohibited, it nevertheless carries such a high risk or harm to others, even in the absence of negligence, that one who engages in it should make good any harm caused to others thereby. See generally 2 F. Harper & F. James, Law of Torts 785—795, 815 816 (1956); W. Prosser, Law of Torts 442—496 (4th ed. 1971).
27
While the doctrine of absolute liability is not encountered in many situations even under modern tort law, it was nevertheless well established at the time the Tort Claims Act was enacted, and there is nothing in the language or the history of the Act to support the notion that this doctrine alone, among all the rules governing tort liability in the various States, was considered inapplicable in cases arising under the Act. The legislative history quoted by the Court relates solely to the 'discretionary function' exception contained in § 2680, an exception upon which the Court specifically declines to rely.3 As I read the Act and the legislative history, the phrase 'negligent or wrongful act or omission' was intended to include the entire range of conduct classified as tortious under state law.4 The only intended exceptions to this sweeping waiver of governmental immunity were those expressly set forth and now collected in § 2680.5 This interpretation was put upon the Act by the legislative committees that recommended its passage in 1946: 'The present bill would establish a uniform system . . . permitting suit to be brought on any tort claim . . . with the exception of certain classes of torts expressly exempted from the operation of the act.' (Emphasis supplied.) H.R.Rep. No. 1287, 79th Cong., 1st Sess., 3; S.Rep.No.1400, 79th Cong., 2d Sess., 31. See Peck, Absolute Liability and the Federal Tort Claims Act, 9 Stan.L.Rev. 433, 441—450 (1957).
28
The Court rests its conclusion on language from Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, where a four-man majority of the Court, in an opinion dealing primarily with the 'discretionary function' exception, held the doctrine of absolute liability inapplicable in that extremely unusual case arising under the Federal Tort Claims Act. That language has been severely criticized;6 it has not since been relied upon in any decision of this Court; and it was rejected as a general principle by at least one Court of Appeals less than a year after Dalehite was decided. United States v. Praylou, 4 Cir., 208 F.2d 291, 295. Moreover, Dalehite represented an approach to interpretation of the Act that was abruptly changed only two years later in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48. That decision rejected the proposition that the United States was immune from liability where the activity involved was 'governmental' rather than 'proprietary'—a proposition that seemingly had been established in Dalehite.7 And while the Dalehite opinion explicitly created a presumption in favor of sovereign immunity, to be overcome only where relinquishment by Congress was 'clear,' 346 U.S., at 30—31, 73 S.Ct. at 965, the Court in Indian Towing recognized that the Tort Claims Act 'cuts the ground from under' the doctrine of sovereign immunity, and cautioned that a court should not 'as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.' 350 U.S., at 65, 69, 76 S.Ct., at 126. See also Rayonier, Inc. v. United States, 352 U.S. 315, 319—320, 77 S.Ct. 374, 376—377, 1 L.Ed.2d 354. These developments, together with an approving citation of the Praylou case in Rayonier, supra, at 319 n. 2, 77 S.Ct., at 377 n. 2, have until today been generally understood to mean that the language in Dalehite rejecting the absolute-liability doctrine had been implicitly abandoned.8
29
The rule announced by the Court today seems to me contrary to the whole policy of the Tort Claims Act. For the doctrine of absolute liability is applicable not only to sonic booms, but to other activities that the Government carries on in common with many private citizens. Absolute liability for injury caused by the concussion or debris from dynamite blasting, for example, is recognized by an overwhelming majority of state courts.9 A private person who detonates an explosion in the process of building a road is liable for injuries to others caused thereby under the law of most States even though he took all practicable precautions to prevent such injuries, on the sound principle that he who creates such a hazard should make good the harm that results. Yet if employees of the United States engage in exactly the same conduct with an identical result, the United States will not, under the principle announced by the Court today, be liable to the injured party. Nothing in the language or the legislative history of the Act compels such a result, and we should not lightly conclude that Congress intended to create a situation so much at odds with common sense and the basic rationale of the Act. We recognized that rationale in Rayonier, supra, a case involving negligence by employees of the United States in controlling a forest fire: payer is relatively slight. But when the entire burden falls on the injured party it may leave him destitute or grievously harmed. Congress could, and apparently did, decide that this would be unfair when the public as a whole benefits from the services performed by Government employees.' 352 U.S., at 320, 77 S.Ct., at 377.
30
For the reasons stated, I would hold that the doctrine of absolute liability is applicable to conduct of employees of the United States under the same circumstances as those in which it is applied to the conduct of private persons under the law of the State where the conduct occurs. That holding would not by itself be dispositive of this case, however, for the petitioners argue that liability is precluded by the 'discretionary function' exception in the Act. While the Court does not reach this issue, I shall state briefly the reasons for my conclusion that the exception is inapplicable in this case.
31
No right of action lies under the Tort Claims Act for any claim
32
'based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 28 U.S.C. § 2680(a).
33
The Assistant Attorney General who testified on the bill before the House committee indicated that this provision was intended to create no exceptions beyond those that courts would probably create without it:
34
'(I)t is likely that the cases embraced within that subsection would have been exempted from (a bill that did not include the exception) by judicial construction. It is not probable that the courts would extend a Tort Claims Act into the realm of the validity of legislation or discretionary administrative action, but (the recommended bill) makes this specific.' Hearings on H.R. 5373 and H.R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 29.
35
The Dalehite opinion seemed to say that no action of a Government employee could be made the basis for liability under the Act if the action involved 'policy judgment and decision.' 346 U.S., at 36, 73 S.Ct., at 968. Decisions in the courts of appeals following Dalehite have interpreted this language as drawing a distinction between 'policy' and 'operational' decisions, with the latter falling outside the exception.10 That distinction has bedeviled the courts that have attempted to apply it to torts outside routine categories such as automobile accidents, but there is no need in the present case to explore the limits of the discretionary function exception.
36
The legislative history indicates that the purpose of this statutory exception was to avoid any possibility that policy decisions of Congress, of the Executive, or of administrative agencies would be second-guessed by courts in the context of tort actions.11 There is no such danger in this case, for liability does not depend upon a judgment as to whether Government officials acted irresponsibly or illegally. Rather, once the creation of sonic booms is determined to be an activity as to which the doctrine of absolute liability applies, the only questions for the court relate to causation and damages. Whether or not the decision to fly a military aircraft over the respondents' property, at a given altitude and at a speed three times the speed of sound, was a decision at the 'policy' or the 'operational' level, the propriety of that decision is irrelevant to the question of liability in this case, and thus the discretionary function exception does not apply.
1
The question whether damage caused by sonic booms is recoverable on a theory of absolute liability has received considerable attention from commentators, most of whom have concluded that there should be such recovery, at least under certain conditions. See, e.g., Note, 32 J.Air Law & Commerce 596, 602—605 (1966); Note, 39 Tulane L.Rev. 145 (1964); Comment, 31 So.Cal.L.Rev. 259, 266—274 (1958); W. Prosser, Law of Torts 516 (4th ed. 1971).
2
See n. 5, infra.
3
The Court's opinion refers to language in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, which in turn relied on a fragment of legislative history, for the proposition that the words 'wrongful act' as used in § 1346(b) refer only to trespasses. The legislative history cited by the Court in Dalehite, consisting of a statement by a Special Assistant to the Attorney General at a committee hearing, merely suggested trespass as one example of the kinds of conduct that would not be embraced by the word 'negligence' but which the Act was intended to reach. As the Court today observes, many of the state cases applying what is essentially the doctrine of absolute liability for ultrahazardous activities speak in terms of 'trespass.' See, e.g., Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N.C. 69, 131 S.E.2d 900 (1963); Enos Coal Mining Co. v. Schuchart, 243 Ind. 692, 188 N.E.2d 406 (1963); Whitney v. Ralph Myers Contracting Corp., 146 W.Va. 130, 118 S.E.2d 622 (1961). The similarity between the theories of trespass and absolute liability in the blasting cases leads the Court to conclude that the Act does not permit recovery on a 'trespass' theory in this case because the Act does not permit recovery on an absolute liability theory. But if Congress intended, as the Court assumes, that 'trespasses' be covered by the Act, I should think the similarity between the two theories would more logically lead to a conclusion that absolute-liability situations are likewise covered.
4
A bill passed by the Senate in 1942 covered only actions based on the 'negligence' of Government employees. S.2221, 77th Cong., 2d Sess. The House committee substituted the phrase 'negligent or wrongful act or omission,' saying that the 'committee prefers its language as it would afford relief for certain acts or omissions which may be wrongful but not necessarily negligent.' H.R.Rep. No. 2245, 77th Cong., 2d Sess., 11. The language used by the House committee was carried over into the bill finally enacted in 1946, without further mention in the committee reports of the intended scope of the words 'wrongful act.'
5
'The provisions of this chapter and section 1346(b) of this title shall not apply to—
'(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
'(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.
'(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other lawenforcement officer.
'(d) Any claim for which a remedy is provided by sections 741 752, 781—790 of Title 46, relating to claims or suits in admiralty against the United States.
'(e) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of sections 1—31 of Title 50, Appendix.
'(f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States.
'(g) Repealed.
'(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.
'(i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system.
'(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.
'(k) Any claim arising in a foreign country.
'(l) Any claim arising from the activities of the Tennessee Valley Authority.
'(m) Any claim arising from the activities of the Panama Canal Company.
'(n) Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives.'
6
See, e.g., Peck, Absolute Liability and the Federal Tort Claims Act, 9 Stan.L.Rev. 433 (1957); Jacoby, Absolute Liability under the Federal Tort Claims Act, 24 Fed.Bar.J. 139 (1964); 2 F. Harper & F. James, Law of Torts 860 (1956).
7
Four members of the Court dissented, saying that the failure of Congress to amend the Act after Dalehite should have been taken as indicating approval by Congress of the interpretation given to the Act in that case. 350 U.S., at 74, 76 S.Ct., at 129.
8
See Peck, supra, n. 6, at 435; Jacoby, supra, n. 6, at 140; Comment, 31 So.Cal.L.Rev. 259, 266 n. 56; Dostal, Aviation Law under the Federal Tort Claims Act, 24 Fed.Bar J. 165, 177 (1964).
9
See, e.g., Whitman Hotel Corp. v. Elliott & Watrous Eng. Co., 137 Conn. 562, 79 A.2d 591 (1951); Louden v. City of Cincinnati, 90 Ohio St. 144, 106 N.E. 970 (1914); Thigpen v. Skousen & Hise, 64 N.M. 290, 327 P.2d 802 (1958); Wallace v. A. H. Guion & Co., 237 S.C. 349, 117 S.E.2d 359 (1960); and cases cited in n. 3, supra. See generally W. Prosser, Law of Torts 514 (4th ed. 1971).
'Congress was aware that when losses caused by such negligence are charged against the public treasury they are in effect spread among all those who contribute financially to the support of the Government and the resulting burden on each tax-
10
See, e.g., Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, aff'd, 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796; Fair v. United States, 5 Cir., 234 F.2d 288; Hendry v. United States, 2 Cir., 418 F.2d 774. For a thorough discussion of the 'policy/operational' distinction that has developed, see Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Geo.L.J. 81 (1968).
11
The policy behind the exception is explained by one leading commentator as follows: '(A)lmost no one contends that there should be compensation for all the ills that result from governmental operations. No one, for instance, suggests that there should be liability for the injurious consequence of political blunders such as the unwise imposition of tariff duties or the premature lifting of OPA controls. . . . The separation of powers in our form of government and a decent regard by the judiciary for its co-ordinate branches should make courts reluctant to sit in judgment on the wisdom or reasonableness of legislative or executive political action. Moreover, courts are not particularly well suited to pursue the examinations that would be necessary to make this kind of judgment.' James, The Federal Tort Claims Act and the 'Discretionary Function' Exception: The Sluggish Retreat of an Ancient Immunity, 10 U.Fla.L.Rev. 184 (1957).
| 78
|
406 U.S. 649
92 S.Ct. 1860
32 L.Ed.2d 390
UNITED STATES et al., Petitioners,v.MIDWEST VIDEO CORPORATION.
No. 71—506.
Argued April 19, 1972.
Decided June 7, 1972.
Rehearing Denied Oct. 10, 1972.
See 93 S.Ct. 95.
Syllabus
The Federal Communications Commission (FCC) promulgated a rule that 'no CATV system having 3,500 or more subscribers shall carry the signal of any television broadcast station unless the system also operates to a significant extent as a local outlet by cablecasting (i.e., originating programs) and has available facilities for local production and presentation of programs other than automated services.' Upon challenge of respondent, an operator of CATV systems subject to the new requirement, the Court of Appeals set aside the regulation on the ground that the FCC had no authority to issue it. Held: The judgment is reversed. Pp. 659 675.
441 F.2d 1322, reversed.
Mr. Justice BRENNAN, joined by Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, concluded that:
1. The rule is within the FCC's statutory authority to regulate CATV at least to the extent 'reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting,' United States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct. 1994, 2005, 20 L.Ed.2d 1001. Pp. 659—670.
2. In the light of the record in this case, there is substantial evidence that the rule, with its 3,500 standard and as it is applied under FCC guidelines for waiver on a showing of financial hardship, will promote the public interest within the meaning of the Communications Act of 1934. Pp. 671—675.
THE CHIEF JUSTICE concluded that until Congress acts to deal with the problems brought about by the emergence of CATV, the FCC should be allowed wide latitude. Pp. 675—676.
Lawrence G. Wallace, Washington, D.C., for petitioners.
Harry M. Plotkin, Washington, D.C., for respondent.
Mr. Justice BRENNAN announced the judgment of the Court, and an opinion in which Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join.
1
Community antenna television (CATV) was developed long after the enactment of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq., as an auxiliary to broadcasting through the retransmission by wire of intercepted television signals to viewers otherwise unable to receive them because of distance or local terrain.1 In United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968), where we sustained the jurisdiction of the Federal Communications Commission to regulate the new industry, at least to the extent 'reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting,' id., at 178, 88 S.Ct., at 2005, we observed that the growth of CATV since the establishment of the first commercial system in 1950 has been nothing less than "explosive." Id., at 163, 88 S.Ct., at 1998.2 The potential of the new industry to augment communication services now available is equally phenomenal.3 As we said in Southwestern, id., at 164, 88 S.Ct., at 1998, CATV '(promises) for the future to provide a national communications system, in which signals from selected broadcasting centers would be transmitted to metropolitan areas throughout the country.' Moreover, as the Commission has noted, 'the expanding multichannel capacity of cable systems could be utilized to provide a variety of new communications services to homes and businesses within a community,' such as facsimile reproduction of documents, electronic mail delivery, and information retrieval. Notice of Proposed Rulemaking and Notice of Inquiry, 15 F.C.C.2d 417, 419 420 (1968). Perhaps more important, CATV systems can themselves originate programs, or 'cablecast'—which means, the Commission has found, that CATV can '(increase) the number of local outlets for community self-expression and (augment) the public's choice of programs and types of services without use of broadcast spectrum . . ..' Id., at 421.
2
Recognizing this potential, the Commission, shortly after our decision in Southwestern, initiated a general inquiry 'to explore the broad question of how best to obtain, consistent with the public interest standard of the Communications Act, the full benefits of developing communications technology for the public, with particular immediate reference to CATV technology . . ..' Id., at 417. In particular, the Commission tentatively concluded, as part of a more expansive program for the regulation of CATV,4 'that, for now and in general, CATV program origination is in the public interest,' Id., at 421, and sought comments on a proposal 'to condition the carriage of television broadcast signals (local or distant) upon a requirement that the CATV system also operate to a significant extent as a local outlet by originating.' Id., at 422. As for its authority to impose such a requirement, the Commission stated that its 'concern with CATV carriage of broadcast signals is not just a matter of avoidance of adverse effects, but extends also to requiring CATV affirmatively to further statutory policies.' Ibid.
3
On the basis of comments received, the Commission on October 24, 1969, adopted a rule providing that 'no CATV system having 3,500 or more subscribers shall carry the signal of any television broadcast station unless the system also operates to a significant extent5 as a local outlet by cablecasting6 and has available facilities for local production and presentation of programs other than automated services.' 47 CFR § 74.1111(a).7 In a report accompanying this regulation, the Commission stated that the tentative conclusions of its earlier notice of proposed rulemaking.
4
'recognize the great potential of the cable technology to further the achievement of long-established regulatory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services . . . They also reflect our view that a multipurpose CATV operation combining carriage of broadcast signals with program origination and common carrier services,8 might best exploit cable channel capacity to the advantage of the public and promote the basic purpose for which this Commission was created: 'regulating interstate and foreign commerce in com-
7
This requirement, applicable to both microwave and non-microwave CATV systems without any 'grandfathering' provision, was originally scheduled to go into effect on January 1, 1971. See First Report and Order 223. On petitions for reconsideration, however, the effective date was delayed until April 1, 1971, see Memorandum Opinion and Order 827, 830, and then, after the Court of Appeals decision below, suspended pending final judgment here. See 36 Fed.Reg. 10876 (1971). Meanwhile, the regulation has been revised and now appears at 47 CFR § 76.201(a). The revision has no significance for this case. See Memorandum Opinion and Order 827, 830 (revision effective Aug. 14, 1970); Report and Order on Cable Television Service, 3271, 3277, 3287 (revision effective Mar. 31, 1972).
8
Although the Commission did not impose common-carrier obligations on CATV systems in its 1969 report, it did note that 'the origination requirement will help ensure that origination facilities are available for use by others originating on leased channels.' First Report and Order 209. Public access requirements were introduced in the Commission's Report and Order on Cable Television Service, although not directly under the heading of common-carrier service. See id., at 3277.
5
munication by wire and radio so as to make available, so far as possible, to all people of the United States a rapid, efficient, nation-wide, and worldwide wire and radio communication service with adequate facilities at reasonable charges . . .' (sec. 1 of the Communications Act).9 After full consideration of the comments filed by the parties, we adhere to the view that program origination on CATV is in the public interest.'10 First Report and Order, 20 F.C.C.2d 201, 202 (1969).
6
The Commission further stated, id., at 208—209:
7
'The use of broadcast signals has enabled CATV to finance the construction of high capacity cable facilities. In requiring in return for these uses of radio that CATV devote a portion of the facilities to providing needed origination service, we are furthering our statutory responsibility to 'encourage the larger and more effective use of radio in the public interest' (sec. 303(g)).11 The requirement will also facilitate the more effective performance of the Commission's duty to provide a fair, efficient, and equitable distribution of television service to each of the several States and communities (sec. 307(b)),12 in areas where we have been unable to accomplish this through broadcast media.'13
8
Upon the challenge of respondent Midwest Video Corp., an operator of CATV systems subject to the new cablecasting requirement, the United States Court of Appeals for the Eighth Circuit set aside the regulation on the ground that the Commission 'is without authority to impose' it. 441 F.2d 1322, 1328 (1971).14 'The Commission's power (over CATV) . . .,' the court explained, 'must be based on the Commission's right to adopt rules that are reasonably ancillary to its responsibilities in the broadcasting field,' id., at 1326—a standard that the court thought the Commission's regulation 'goes far beyond.' Id., at 1327.15 The court's opinion may also be understood to hold the regulation invalid as not supported by substantial evidence that it would serve the public interest. 'The Commission report itself shows,' the court said, 'that upon the basis of the record made, it is highly speculative whether there is sufficient expertise or information available to support a finding that the origination rule will further the public interest.' Id., at 1328. 'Entering into the program origination field involves very substantial expenditures,' id., at 1327, and '(a) high probability exists that cablecasting will not be self-supporting,' that there will be a 'substantial increase' in CATV subscription fees, and that 'in some instances' CATV operators will be driven out of business. Ibid.16 We granted certiorari. 404 U.S. 1014, 92 S.Ct. 676, 30 L.Ed.2d 661 (1972). We reverse.
9
* In 1966 the Commission promulgated regulations that, in general, required CATV systems (1) to carry, upon request and in a specified order of priority within the limits of their channel capacity, the signals of broadcast stations into whose service area they brought competing signals; (2) to avoid, upon request, the duplication on the same day of local station programing; and (3) to refrain from bringing new distant signals into the 100 largest television markets except upon a prior showing that that service would be consistent with the public interest. See Second Report and Order, 2 F.C.C.2d 725 (1966). In assessing the Commission's jurisdiction over CATV against the backdrop of these regulations,17 we focused in Southwestern chiefly on § 2(a) of the Communications Act, 48 Stat. 1064, as amended, 47 U.S.C. § 152(a), which provides in pertinent part: 'The provisions of this (Act) shall apply to all interstate and foreign communication by wire or radio . . ., which originates and/or is received within the United States, and to all persons engaged within the United States in such communication . . ..' In view of the Act's definitions of 'communication by wire' and 'communication by radio,'18 the interstate character of CATV services,19 and the evidence of congressional intent that '(t)he Commission was expected to serve as the 'single Government agency' with 'unified jurisdiction' and 'regulatory powre over all forms of electrical communication, whether by telephone, telegraph, cable, or radio." 392 U.S., at 167—168, 88 S.Ct., at 2000 (footnotes omitted), we held that § 2(a) amply covers CATV systems and operations. We also held that § 2(a) is itself a grant of regulatory power and not merely a prescription of the forms of communication to which the Act's other provisions governing common carriers and broadcasters apply:
10
'We cannot (we said) construe the Act so restrictively. Nothing in the language of § (2(a)), in the surrounding language, or in the Act's history or purposes limits the Commission's authority to those activities and forms of communication that are specifically described by the Act's other provisions. . . . Certainly Congress could not in 1934 have foreseen the development of community antenna television systems, but it seems to us that it was precisely because Congress wished 'to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission,' F.C.C. v. Pottsville Broadcasting Co., supra, 309 U.S., at 138, 60 S.Ct., at 439 (84 L.Ed. 656) that it conferred upon the Commission a 'unified jurisdiction' and 'broad authority.' Thus, '(u)nderlying the whole (Communications Act) is recognition of the rapidly fluctuating factors characteristic of the evolution of broadcasting and of the corresponding requirement that the administrative process possess sufficient flexibility to adjust itself to these factors.' (Ibid.) Congress in 1934 acted in a field that was demonstrably 'both new and dynamic,' and it therefore gave the Commission 'a comprehensive mandate,' with 'not niggardly but expansive powers.' National Broadcasting Co. v. United States, 319 U.S. 190, 219, 63 S.Ct. 997, 1010, 87 L.Ed. 1344. We have found no reason to believe that § (2) does not, as its terms suggest, confer regulatory authority over 'all interstate . . . communication by wire or radio." Id., at 172 173, 88 S.Ct., at 2002 (footnotes omitted).
11
This conclusion, however, did not end the analysis, for § 2(a) does not in and of itself prescribe any objectives for which the Commission's regulatory power over CATV might properly be exercised. We accordingly went on to evaluate the reasons for which the Commission had asserted jurisdiction and found that 'the Commission has reasonably concluded that regulatory authority over CATV is imperative if it is to perform with appropriate effectiveness certain of its other responsibilities.' Id., at 173, 88 S.Ct., at 2003. In particular, we found that the Commission had reasonably determined that "the unregulated explosive growth of CATV," especially through 'its importation of distant signals into the service areas of local stations' and the resulting division of audiences and revenues, threatened to 'deprive the public of the various benefits of (the) system of local broadcasting stations' that the Commission was charged with developing and overseeing under § 307(b) of the Act.20 Id., at 175, 88 S.Ct., at 2004. We therefore concluded, without expressing any view 'as to the Commission's authority, if any, to regulate CATV under any other circumstances or for any other purposes,' that the Commission does have jurisdiction over CATV 'reasonably ancillary to the effective performance of (its) various responsibilities for the regulation of television broadcasting . . . (and) may, for these purposes, issue 'such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law,' as 'public convenience, interest, or necessity requires." Id., at 178, 88 S.Ct., at 2005 (quoting § 303(r) of the Act, 50 Stat. 191, 47 U.S.C. § 303(r)).
12
The parties now before us do not dispute that in light of Southwestern CATV transmissions are subject to the Commission's jurisdiction as 'interstate . . . communication by wire or radio' within the meaning of § 2(a) even insofar as they are local cablecasts.21 The controversy, instead, centers on whether the Commission's program-origination rule is 'reasonably ancillary to the effective performance of (its) various responsibilities for the regulation of television broadcasting.'22 We hold that it is.
13
At the outset we must note that the Commission's legitimate concern in the regulation of CATV is not limited to controlling the competitive impact CATV may have on broadcast services. Southwestern refers to the Commission's 'various responsibilities for the regulation of television broadcasting.' These are considerably more numerous than simply assuring that broadcast stations operating in the public interest do not go out of business. Moreover, we must agree with the Commission that its 'concern with CATV carriage of broadcast signals is not just a matter of avoidance of adverse effects, but extends also to requiring CATV affirmatively to further statutory policies.' Supra, at 653. Since the avoidance of adverse effects is itself the furtherance of statutory policies, no sensible distinction even in theory can be drawn along those lines. More important, CATV systems, no less than broadcast stations, see, e.g., Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166 (1933) (deletion of a station), may enhance as well as impair the appropriate provision of broadcast services. Consequently, to define the Commission's power in terms of the protection, as opposed to the advancement, of broadcasting objectives would artificially constrict the Commission in the achievement of its statutory purposes and be inconsistent with our recognition in Southwestern 'that it was precisely because Congress wished 'to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission,' . . . that it conferred upon the Commission a 'unified jurisdiction' and 'broad authority." Supra, at 660—661.23
14
The very regulations that formed the backdrop for our decision in Southwestern demonstrate this point. Those regulations were, of course, avowedly designed to guard broadcast services from being undermined by unregulated CATV growth. At the same time, the Commission recognized that 'CATV systems . . . have arisen in response to public need and demand for improved television service and perform valuable public services in this respect.' Second Report and Order, 2 F.C.C.2d 725, 745 (1966).24 Accordingly, the Commission's express purpose was not
15
'to deprive the public of these important benefits or to restrict the enriched programing selection which CATV makes available. Rather, our goal here is to integrate the CATV service into the national television structure in such a way as to promote maximum television service to all people of the United States (secs. 1 and 303(g) of the act (nn. 9 and 11, supra)), both those who are cable viewers and those dependent on off-the-air service. The new rules . . . are the minimum measures we believe to be essential to insure that CATV continues to perform its valuable supplementary role without unduly damaging or impeding the growth of television broadcast service.' Id., at 745—746.25
16
In implementation of this approach CATV systems were required to carry local broadcast station signals to encourage diversified programing suitable to the community's needs as well as to prevent a diversion of audiences and advertising revenues.26 The duplication of local station programing was also forbidden for the latter purpose, but only on the same day as the local broadcast so as 'to preserve, to the extent practicable, the valuable public contribution of CATV in providing wider access to nationwide programing and a wider selection of programs on any particular day.' Id., at 747. Finally, the distant-importation rule was adopted to enable the Commission to reach a public-interest determination weighing the advantages and disadvantages of the proposed service on the facts of each individual case. See id., at 776, 781—782. In short, the regulatory authority asserted by the Commission in 1966 and generally sustained by this Court in Southwestern was authority to regulate CATV with a view not merely to protect but to promote the objectives for which the Commission had been assigned jurisdiction over broadcasting.
17
In this light the critical question in this case is whether the Commission has reasonably determined that its origination rule will 'further the achievement of long-established regulatory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services . . ..' Supra, at 654. We find that it has.
18
The goals specified are plainly within the Commission's mandate for the regulation of television broadcasting.27 In National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943), for example, we sustain Commission regulations governing relations between broadcast stations and network organizations for the purpose of preserving the stations' ability to serve the public interest through their programing. Noting that '(t)he facilities of radio are not large enough to accommodate all who wish to use them,' id., at 216, 63 S.Ct., at 1009, we held that the Communications 'Act does not restrict the Commission merely to supervision of (radio) traffic. It puts upon the Commission the burden of determining the composition of that traffic.' Id., at 215—216, 63 S.Ct., at 1009. We then upheld the Commission's judgment that able, and willing to serve the needs of the local community by broadcasting such outstanding local events as community concerts, civic meetings, local sports events, and other programs of local consumer and social interest." Id., at 203, 63 S.Ct., at 1003.
19
Equally plainly the broadcasting policies the Commission has specified are served by the program-origination rule under review. To be sure, the cablecasts required may be transmitted without use of the broadcast spectrum. But the regulation is not the less, for that reason, reasonably ancillary to the Commission's jurisdiction over broadcast services. The effect of the regulation, after all, is to assure that in the retransmission of broadcast signals viewers are provided suitably diversified programing the same objective underlying regulations sustained in National Broadcasting Co. v. United States, supra, as well as the local-carriage rule reviewed in Southwestern and subsequently upheld. See supra, at 666 and nn. 17 and 26, supra. In essence the regulation is no different from Commission rules governing the technological quality of CATV broadcast carriage. In the one case, of course, the concern is with the strength of the picture and voice received by the subscriber, while in the other it is with the content of the programing offered. But in both cases the rules serve the policies of §§ 1 and 303(g) of the Communications Act on which the cablecasting regulation is specifically premised, see supra, at 654—656,28 and also, in the Commission's words, 'facilitate the more effective performance of (its) duty to provide a fair, efficient, and equitable distribution of television service to each of the several States and communities' under § 307(b). Supra, at 1864.29 In sum, the regulation preserves and enhances the integrity of broadcast signals and therefore is 'reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting.'
20
Respondent, nevertheless, maintains that just as the Commission is powerless to require the provision of television broadcast services where there are no applicants for station licenses no matter how important or desirable those services may be, so, too, it cannot require CATV operators unwillingly to engage in cablecasting. In our view, the analogy respondent thus draws between entry into broadcasting and entry into cablecasting is misconceived. The Commission is not attempting to compel wire service where there has been no commitment to undertake it. CATV operators to whom the cablecasting rule applies have voluntarily engaged themselves in providing that service, and the Commission seeks only to ensure that it satisfactorily meets community needs within the context of their undertaking.
21
For these reasons we conclude that the program-origination rule is within the Commission's authority recognized in Southwestern.
II
22
The question remains whether the regulation is supported by substantial evidence that it will promote the public interest. We read the opinion of the Court of Appeals as holding that substantial evidence to that effect is lacking because the regulation creates the risk that the added burden of cablecasting will result in increased subscription rates and even the termination of CATV services. That holding is patently incorrect in light of the record.
23
In first proposing the cablecasting requirement, the Commission noted that '(t)here may . . . be practical limitations (for compliance) stemming from the size of some CATV systems' and accordingly sought comments 'as to a reasonable cutoff point (for application of the regulation) in light of the cost of the equipment and personnel minimally necessary for local originations.' Notice of Proposed Rulemaking and Notice of Inquiry, 15 F.C.C.2d 417, 422 (1968). The comments filed in response to this request included detailed data indicating, for example, that a basic monochrome system for cablecasting could be obtained and operated for less than an annual cost of $21,000 and a color system, for less than $56,000. See First Report and Order, 210. This information, however, provided only a sampling of the experience of the CATV systems already engaged in program origination. Consequently, the Commission
24
'decided not to prescribe a permanent minimum cutoff point for required origination on the basis of the record now before us. The Commission intends to obtain more information from originating systems about their experience, equipment, and the nature of the origination effort. . . . In the meantime, we will prescribe a very liberal standard for required origination, with a view toward lowering this floor in . . . further proceedings, should the data obtained in such proceedings establish the appropriateness and desirability of such action.' Id., at 213.
25
On this basis the Commission chose to apply the regulation to systems with 3,500 or more subscribers, effective January 1, 1971.
26
'This standard (the Commission explained) appears more than reasonable in light of the (data filed), our decision to permit advertising at natural breaks . . ., and the 1-year grace period. Moreover, it appears that approximately 70 percent of the systems now originating have fewer than 3,500 subscribers; indeed, about half of the systems now originating have fewer than 2,000 subscribers. . . . (T)he 3,500 standard will encompass only a very small percentage of existing systems at present subscriber levels, less than 10 percent.' Ibid.
27
On petitions for reconsideration the Commission observed that it had 'been given no data tending to demonstrate that systems with 3,500 subscribers cannot cablecast without impairing their financial stability, raising rates or reducing the quality of service.' Memorandum Opinion and Order, 826. The Commission repeated that '(t)he rule adopted is minimal in the light of the potentials of cablecasting,'30 but, nonetheless, on its own motion postponed the effective date of the regulation to April 1, 1971, 'to afford additional preparation time.' Id., at 827.
28
This was still not the Commission's final effort to tailor the regulation to the financial capacity of CATV operators. In denying respondent's motion for a stay of the effective date of the rule, the Commission reiterated that 'there has been no showing made to support the view that compliance . . . would be an unsustainable burden.' Memorandum Opinion and Order, 27 F.C.C.2d 778, 779 (1971). On the other hand, the Commission recognized that new information suggested that CATV systems of 10,000 ultimate subscribers would operate at a loss for at least four years if required to cablecast. That information, however, was based on capital expenditure and annual operating cost figures 'appreciably higher' than those first projected by the Commission. Ibid. The Commission concluded:
29
'While we do not consider that an adequate showing has been made to justify general change, we see no public benefit in risking injury to CATV systems in providing local origination. Accordingly, if CATV operators with fewer than 10,000 subscribers request ad hoc waiver of (the regulation), they will not be required to originate pending action on their waiver requests. . . . Systems of more than 10,000 subscribers may also request waivers, but they will not be excused from compliance unless the Commission grants a requested waiver . . .. (The) benefit (of cablecasting) to the public would be delayed if the . . . stay (requested by respondent) is granted, and the stay would, therefore, do injury to the public's interest.' Ibid.
30
This history speaks for itself. The cablecasting requirement thus applied is plainly supported by substantial evidence that it will promote the public interest.31 Indeed, respondent does not appear to argue to the contrary. See Tr. of Oral Arg. 43—44. It was, of course, beyond the competence of the Court of Appeals itself to assess the relative risks and benefits of cablecasting. As we said in National Broadcasting Co. v. United States, 319 U.S., at 224, 63 S.Ct., at 1013:
31
'Our duty is at an end when we find that the action of the Commission was based upon findings supported by evidence, and was made pursuant to authority granted by Congress. It is not for us to say that the 'public interest' will (in fact) be furthered or retarded by the . . . (regulation).'
32
See also, e.g., United States v. Storer Broadcasting Co., 351 U.S. 192, 203, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); General Telephone Co. of Southwest v. United States, 449 F.2d 846, 858 859, 862—863 (CA5 1971).
33
Reversed.
34
Mr. Chief Justice BURGER, concurring in the result.
35
This case presents questions of extraordinary difficulty and sensitivity in the communications field, as the opinions of the divided Court of Appeals and our own divisions reflect. As Mr. Justice BRENNAN has noted, Congress could not anticipate the advent of CATV when it enacted the regulatory scheme nearly 40 years ago. Yet that statutory scheme plainly anticipated the need for comprehensive regulation as pervasive as the reach of the instrumentalities of broadcasting.
36
In the four decades spanning the life of the Communications Act, the courts have consistently construed the Act as granting pervasive jurisdiction to the Commission to meet the expansion and development of broadcasting. That approach was broad enough to embrace the advent of CATV, as indicated in the plurality opinion. CATV is dependent totally on broadcast signals and is a significant link in the system as a whole and therefore must be seen as within the jurisdiction of the Act.
37
Concededly, the Communications Act did not explicitly contemplate either CATV or the jurisdiction the Commission has now asserted. However, Congress was well aware in the 1930's that broadcasting was a dynamic instrumentality, that its future could not be predicted, that scientific developments would inevitably enlarge the role and scope of broadcasting, and that, in consequence, regulatory schemes must be flexible and virtually open-ended.
38
Candor requires acknowledgment, for me at least, that the Commission's position strains the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts. The almost explosive development of CATV suggests the need of a comprehensive re-examination of the statutory scheme as it relates to this new development, so that the basic policies are considered by Congress and not left entirely to the Commission and the courts.
39
I agree with the plurality's rejection of any meaningful analogy between requiring CATV operators to develop programing and the concept of commandeering someone to engage in broadcasting. Those who exploit the existing broadcast signals for private commercial surface transmission by CATV—to which they make no contribution—are not exactly strangers to the stream of broadcasting. The essence of the matter is that when they interrupt the signal and put it to their own use for profit, they take on burdens, one of which is regulation by the Commission.
40
I am not fully persuaded that the Commission has made the correct decision in this case and the thoughtful opinions in the Court of Appeals and the dissenting opinion here reflect some of my reservations. But the scope of our review is limited and does not permit me to resolve this issue as perhaps I would were I a member of the Federal Communications Commission. That I might take a different position as a member of the Commission gives me no license to do so here. Congress has created its instrumentality to regulate broadcasting, has given it pervasive powers, and the Commission has generations of experience and 'feel' for the problem. I therefore conclude that until Congress acts, the Commission should be allowed wide latitude and I therefore concur in the result reached by this Court.
41
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice REHNQUIST concur, dissenting.
42
The policies reflected in the plurality opinion may be wise ones. But whether CATV systems should be required to originate programs is a decision that we certainly are not competent to make and in my judgment the Commission is not authorized to make. Congress is the agency to make the decision and Congress has not acted.
43
CATV captures TV and radio signals, converts the signals, and carries them by microwave relay transmission or by coaxial cables into communities unable to receive the signals directly. In United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001, we upheld the power of the Commission to regulate the transmission or signals. As we said in that case:
44
'CATV systems perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae. As the number and size of CATV systems hav increased, their principal function has more frequently become the importation of distant signals.' Id., at 163, 88 S.Ct., at 1998.
45
CATV evolved after the Communications Act of 1934, 48 Stat. 1064, was passed. But we held that the reach of the Act, which extends 'to all interstate and foreign communication by wire or radio,' 47 U.S.C. § 152(a), was not limited to the precise methods of communication then known. 392 U.S., at 173, 88 S.Ct., at 2003.
46
Compulsory origination of programs is, however, a far cry from the regulation of communications approved in Southwestern Cable. Origination requires new investment and new and different equipment, and an entirely different cast of personnel.1 See 20 F.C.C.2d 201, 210—211. We marked the difference between communication and origination in Fortnightly Corp. v. United Artists Television, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176, and made clear how foreign the origination of programs is to CATV's traditional transmission of signals. In that case, CATV was sought to be held liable for infringement of copyrights of movies licensed to broadcasters and carried by CATV. We held CATV not liable, saying: 'The function of CATV systems has little in common with the function of broadcasters. CATV systems do not in fact broadcast or rebroadcast. Broadcasters select the programs to be viewed; CATV systems simply carry, without editing, whatever programs they receive. Broadcasters procure programs and propagate them to the public; CATV systems receive programs that have been released to the public and carry them by private channels to additional viewers. We hold that CATV operators, like viewers and unlike broadcasters, do not perform the programs that they receive and carry.' Id., at 399—401, 88 S.Ct., at 2089.
47
The Act forbids any person from operating a broadcast station without first obtaining a license from the Commission. 47 U.S.C. § 301. Only qualified persons may obtain licenses and they must operate in the public interest. 47 U.S.C. §§ 308—309. But nowhere in the Act is there the slightest suggestion that a person may be compelled to enter the broadcasting or cablecasting field. Rather, the Act extends 'to all interstate and foreign communication by wire or radio . . . which originates and/or is received within the United States.' 47 U.S.C. § 152(a) (emphasis added). When the Commission jurisdiction is so limited, it strains logic to hold that this jurisdiction may be expanded by requiring someone to 'originate' or 'receive.'
48
The Act, when dealing with broadcasters, speaks of 'applicants,' 'applications for licenses,' see 47 U.S.C. §§ 307 308, and 'whether the public interest, convenience, and necessity will be served by the granting of such application.' 47 U.S.C. § 309(a). The emphasis in the Committee Reports was on 'original applications' and 'application for the renewal of a license.' H.R.Rep.No.1918, 73d Cong., 2d Sess., 48; S.Rep.No.781, 73d Cong., 2d Sess., 7, 9. The idea that a carrier or any other person can be drafted against his will to become a broadcaster is completely foreign to the history of the Act, as I read it.
49
CATV is simply a carrier having no more control over the message content than does a telephone company. A carrier may, of course, seek a broadcaster's license; but there is not the slightest suggestion in the Act or in its history that a carrier can be bludgeoned into becoming a broadcaster while all other broadcasters live under more lenient rules. There is not the slightest clue in the Act that CATV carriers can be compulsorily converted into broadcasters.
50
The plurality opinion performs the legerdemain by saying that the requirement of CATV origination is 'reasonably ancillary' to the Commission's power to regulate television broadcasting.2 That requires a brand-new amendment to the broadcasting provisions of the Act, which only the Congress can effect. The Commission is not given carte blanche to initiate broadcasting stations; it cannot force people into the business. It cannot say to one who applies for a broadcast outlet in city A that the need is greater in city B and he will be licensed there. The fact that the Commission has authority to regulate origination of programs if CATV decides to enter the field does not mean that it can compel CATV to originate programs. The fact that the Act directs the Commission to encourage the larger and more effective use of radio in the public interest, 47 U.S.C. § 303(g), relates to the objectives of the Act and does not grant power to compel people to become broadcasters any more than it grants the power to compel broadcasters to become CATV operators.
51
The upshot of today's decision is to make the Commission's authority over activities 'ancillary' to its responsibilities greater than its authority over any broadcast licensee. Of course, the Commission can regulate a CATV that transmits broadcast signals. But to entrust the Commission with the power to force some, a few, or all CATV operators into the broadcast business is to give it a forbidding authority. Congress may decide to do so. But the step is a legislative measure so extreme that we should not find it interstitially authorized in the vague language of the Act.
52
I would affirm the Court of Appeals.
1
'CATV systems receive the signals of television broadcasting stations, amplify them, transmit them by cable or microwave, and ultimately distribute them by wire to the receivers of their subscribers.' United States v. Southwestern Cable Co., 392 U.S. 157, 161, 88 S.Ct. 1994, 1997, 20 L.Ed.2d 1001 (1968). They 'perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae.' Id., at 163, 88 S.Ct., at 1998.
2
There are now 2,678 CATV systems in operation, 1,916 CATV franchises outstanding for systems not yet in current operation, and 2,804 franchise applications pending. Weekly CATV Activity Addenda, 12 Television Digest 9 (Feb. 28, 1972).
3
For this reason the Commission has recently adopted the term 'cable television' in place of CATV. See Report and Order on Cable Television Service; Cable Television Relay Service, 37 Fed.Reg. 3252 n. 9 (1972) (hereinafter cited as Report and Order on Cable Television Service).
4
The early regulatory history of CATV, canvassed in Southwestern, need not be repeated here, other than to note that in 1966 the Commission adopted rules, applicable to both microwave and non-microwave CATV systems, to regulate the carriage of local signals, the duplication of local programing, and the importation of distant signals into the 100 largest television markets. See infra, at 659. The Commission's 1968 notice of proposed rulemaking addressed, in addition to the program origination requirement at issue here, whether advertising should be permitted on cablecasts and whether the broadcast doctrines of 'equal time,' 'fairness,' and sponsorship identification should aply to them. Other areas of inquiry included the use of CATV facilities to provide common carrier service; federal licensing and local regulation of CATV; cross-ownership of television stations and CATV system; reporting and technical standards; and importation of distant signals into major markets. The notice offered concrete proposals in some of these areas, which were acted on in the Commission's First Report and Order, 20 F.C.C.2d 201 (1969) (hereinafter cited as First Report and Order), and Report and Order on Cable Television Service. See also Memorandum Opinion and Order, 23 F.C.C.2d 825 (1970) (hereinafter cited as Memorandum Opinion and Order). None of these regulations, aside from the cablecasting requirement, is now before us, see n. 14, infra, and we, of course, intimate no view on their validity.
5
'By significant extent (the Commission indicated) we mean something more than the origination of automated services (such as time and weather, news ticker, stock ticker, etc.) and aural services (such as music and announcements). Since one of the purposes of the origination requirement is to insure that cablecasting equipment will be available for use by others originating on common carrier channels, 'operation to a significant extent as a local outlet' in essence necessitates that the CATV operator have some kind of video cablecasting system for the production of local live and delayed programing (e.g., a camera and a video tape recorder, etc.).' First Report and Order 214.
6
'Cablecasting' was defined as 'programing distributed on a CATV system which has been originated by the CATV operator or by another entity, exclusive of broadcast signals carried on the system.' 47 CFR § 74.1101(j). As this definition makes clear, cablecasting may include not only programs produced by the CATV operator, but 'films and tapes produced by others, and the CATV network programing.' First Report and Order 214. See also id., at 203. The definition has been altered to conform to changes in the regulation, see n. 7, infra, and now appears at 47 CFR § 76.5(w). See Report and Order on Cable Television Service 3279. Although the definition now refers to programing 'subject to the exclusive control of the cable operator,' this is apparently not meant to effect a change in substance or to preclude the operator from cablecasting programs produced by others. See id., at 3271.
9
Section 1 of the Act, 48 Stat. 1064, as amended, 47 U.S.C. § 151, states:
'For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service, with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the 'Federal Communications Commission', which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.'
10
In so concluding, the Commission rejected the contention that a prohibition on CATV originations was 'necessary to prevent potential fractionalization of the audience for broadcast services and a siphoning off of program material and advertising revenue now available to the broadcast service.' First Report and Order 202. '(B)roadcasters and CATV originators . . .,' the Commission reasoned, 'stand on the same footing in acquiring the program material with which they compete.' Id., at 203. Moreover, 'a loss of audience or advertising revenue to a television station is not in itself a matter of moment to the public interest unless the result is a net loss of television service,' ibid.—an impact that the Commission found had no support in the record and that, in any event, it would undertake to prevent should the need arise. See id., at 203—204. See also Memorandum Opinion and Order 826 n. 3, 828—829.
11
Section 303(g), 48 Stat. 1082, 47 U.S.C. § 303, states that '(e)xcept as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall' '(g) (s)tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest . . ..'
12
Section 307(b), 48 Stat. 1084, as amended, 47 U.S.C. § 307(b), states:
'In considering applications for licenses (for the transmission of energy, communications, or signals by radio), and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.'
13
The Commission added: '(I)n authorizing the receipt, forwarding, and delivery of broadcast signals, the Commission is in effect authorizing CATV to engage in radio communication, and may condition this authorization upon reasonable requirements governing activities which are closely related to such radio communication and facilities.' First Report and Order 209 (citing, inter alia, § 301 of the Communications Act, 48 Stat. 1081, 47 U.S.C. § 301 (generally requiring licenses for the use or operation of any apparatus for the interstate or foreign transmission of energy, communications, or signals by radio)). Since, as we hold, infra, the authority of the Commission recognized in Southwestern is sufficient to sustain the cablecasting requirement at issue here, we need not, and do not, pass upon the extent of the Commission's jurisdiction over CATV under § 301. See, e.g., FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 84 L.Ed. 656 (1940); General Telephone Co. of Cal. v. FCC, 134 U.S.App.D.C. 116, 130—131, 413 F.2d 390, 404—405 (1969); Philadelphia Television Broadcasting Co. v. FCC, 123 U.S.App.D.C. 298, 300, 359 F.2d 282, 284 (1966): 'In a statutory scheme in which Congress has given an agency various bases of jurisdiction and various tools with which to protect the public interest, the agency is entitled to some leeway in choosing which jurisdictional base and which regulatory tools will be most effective in advancing the Congressional objective.'
14
Although this holding was specifically limited to 'existing cable television operators,' the court's reasoning extended more broadly to all CATV systems, and, indeed, its judgment set aside the regulation in all its applications. See 441 F.2d, at 1328.
Respondent also challenged other regulations, promulgated in the Commission's First Report and Order and Memorandum Opinion and Order, dealing with advertising, 'equal time,' 'fairness,' sponsorship identification, and per-program or per-channel charges on cablecasts. The Court of Appeals, however, did not '(pass) on the power of the FCC . . . to prescribe reasonable rules for such CATV operators who voluntarily choose to originate programs,' id., at 1326, since respondent acknowledged that it did not want to cabelcast and hence lacked standing to attack those rules. See id., at 1328.
15
The court held, in addition, that the Commission may not require CATV operators 'as a condition to (their) right to use . . . captured (broadcast) signals in their existing franchise operation to engage in the entirely new and different business of originating programs.' Id., at 1327. This holding presents no separate question from the 'reasonably ancillary' issue that need be considered here. See n. 22, infra.
16
Concurring in the result in a similar vein, Judge Gibson concluded that although 'the FCC has authority over CATV systems,' 'the order under review is confiscatory and hence arbitrary,' 441 F.2d, at 1328, for the regulation 'would be extremely burdensome and perhaps remove from the CATV field many entrepreneurs who do not have the resources, talent and ability to enter the broadcasting field.' Id., at 1329. If this is to suggest that the regulation is invalid merely because it burdens CATV operators or may even force some of them out of business, the argument is plainly incorrect. See n. 31, infra. The question would still remain whether the Commission reasonably found on substantial evidence that the regulation on balance would promote policy objectives committed to its jurisdiction under the Communications Act, which, for the reasons given infra, we hold that it did.
17
Southwestern reviewed, but did not specifically pass upon the validity of, the regulations. See 392 U.S., at 167, 88 S.Ct., at 2000. Their validity was, however, subsequently and correctly upheld by courts of appeals as within the guidelines of that decision. See, e.g., Black Hills Video Corp. v. FCC, 399 F.2d 65 (CA8 1968).
18
Sections 3(a), (b), 48 Stat. 1065, 47 U.S.C. §§ 153(a), (b), define these terms to mean 'the transmission' 'of writing, signs, signals, pictures, and sounds of all kinds,' whether by cable or radio, 'including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.'
19
'Nor can we doubt that CATV systems are engaged in interstate communication, even where . . . the intercepted signals emanate from stations located within the same State in which the CATV system operates. We may take notice that television broadcasting consists in very large part of programming devised for, and distributed to, national audiences; (CATV operators) thus are ordinarily employed in the simultaneous retransmission of communications that have very often originated in other States. The stream of communication is essentially uninterrupted and property indivisible. To categorize (CATV) activities as intrastate would disregard the character of the television industry, and serve merely to prevent the national regulation that 'is not only appropriate but essential to the efficient use of radio facilities.' Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 279, 53 S.Ct. 627, 77 L.Ed. 1166.' 392 U.S., at 168—169, 88 S.Ct., at 2001.
20
See n. 12, supra. See also §§ 303(f), (h), 48 Stat. 1082, 47 U.S.C. §§ 303(f), (h) (authorizing the Commission to prevent interference among stations and to establish areas to be served by them respectively). 'In particular, the Commission feared that CATV might . . . significantly magnify the characteristically serious financial difficulties of UHF and educational television broadcasters.' 392 U.S., at 175—176, 88 S.Ct., at 2004.
21
This, however, is contested by the State of Illinois as amicus curiae. It is, nevertheless, clear that cablecasts constitute communication by wire (or radio if microwave transmission is involved), as well as interstate communication if the transmission itself has moved interstate, as the Commission has authorized and encouraged. See First Report and Order 207—208 (regional and national interconnections) and n. 6, supra. The capacity for interstate nonbroadcast programing may in itself be sufficient to bring cablecasts within the compass of § 2(a). In Southwestern we declined to carve CATV broadcast transmissions, for the purpose of determining the extent of the Commission's regulatory authority, into interstate and intrastate components. See n. 19, supra. This result was justified by the extent of interstate broadcast programing, the interdependencies between the two components, and the need to preserve the "unified and comprehensive regulatory system for the (broadcasting) industry." 392 U.S., at 168, 88 S.Ct., at 2000 (quoting FCC v. Pottsville Broadcasting Co., n. 13, supra, 309 U.S., at 137, 60 S.Ct., at 439). A similar rationale may apply here, despite the lesser 'interstate content' of cablecasts at present.
But we need not now decide that question because, in any event, CATV operators have, by virtue of their carriage of broadcast signals, necessarily subjected themselves to the Commission's comprehensive jurisdiction. As Mr. Chief Justice (then Judge) Burger has stated in a related context:
'The Petitioners (telephone companies providing CATV channel distribution facilities) have, by choice, inserted themselves as links in this indivisible stream and have become an integral part of interstate broadcast transmission. They cannot have the economic benefits of such carriage as they perform and be free of the necessarily pervasive jurisdiction of the Commission.' General Telephone Co. of Cal. v. FCC, n. 13, supra, 134 U.S.App.D.C. at 127, 413 F.2d, at 401.
The devotion of CATV systems to broadcast transmission together with the interdependencies between that service and cablecasts, and the necessity for unified regulation—plainly suffices to bring cablecasts within the Commission's § 2(a) jurisdiction. See generally Barnett, State, Federal, and Local Regulation of Cable Television, 47 Notre Dame Law. 685, 721—723, 726—734 (1972).
22
Since '(t)he function of CATV systems has little in common with the function of broadcasters,' Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 400, 88 S.Ct. 2084, 2089, 20 L.Ed.2d 1176 (1968), and since '(t)he fact that . . . property is devoted to a public use on certain terms does not justify . . . the imposition of restrictions that are not reasonably concerned with the proper conduct of the business according to the undertaking which the (owner) has expressly or impliedly assumed,' Northern Pacific R. Co. v. North Dakota, 236 U.S. 585, 595, 35 S.Ct. 429, 433, 59 L.Ed. 735 (1915), respondent also argues that CATV operators may not be required to cablecast as a condition for their customary service of carrying broadcast signals. This conclusion might follow only if the program-origination requirement is not reasonably ancillary to the Commission's jurisdiction over broadcasting. For, as we held in Southwestern, CATV operators are, at least to that extent, engaged in a business subject to the Commission's regulation. Our holding on the 'reasonably ancillary' issue is therefore dispositive of respondent's additional claim. See infra, at 669—670.
It should be added that Fortnightly Corp. v. United Artists Television, Inc., supra, has no bearing on the 'reasonably ancillary' question. That case merely held that CATV operators who retransmit, but do not themselves originate copyrighted works do not 'perform' them within the meaning of the Copyright Act, 61 Stat. 652, as amended, 17 U.S.C. § 1, since '(e)ssentially, (that kind of) a CATV system no more than enhances the viewer's capacity to receive the broadcaster's signals . . ..' 392 U.S., at 399, 88 S.Ct., at 2089. The analogy thus drawn between CATV operations and broadcast viewing for copyright purposes obviously does not dictate the extent of the Commission's authority to regulate CATV under the Communications Act. Indeed, Southwestern, handed down only a week before Fortnightly, expressly held that CATV systems are not merely receivers, but transmitters of interstate communication subject to the Commission's jurisdiction under that Act. See 392 U.S., at 168, 88 S.Ct., at 2000.
23
See also General Telephone Co. of Cal. v. FCC, n. 13, supra, 134 U.S.App.D.C., at 124, 413 F.2d, at 398:
'Over the years, the Commission has been required to meet new problems concerning CATV and as cases have reached the courts the scope of the Act has been defined, as Congress contemplated would be done, so as to avoid a continuing process of statutory revision. To do otherwise in regulating a dynamic public service function such as broadcasting would place an intolerable regulatory burden on the Congress—one which it sought to escape by delegating administrative functions to the Commission.'
24
The Commission elaborated:
'CATV . . . has made a significant contribution to meeting the public demand for television service in areas too small in population to support a local station or too remote in distance or isolated by terrain to receive regular or good off-the-air reception. It has also contributed to meeting the public's demand for good reception of multiple program choices, particularly the three full network services. In thus contributing to the realization of some of the most important goals which have governed our allocations planning, CATV has clearly served the public interest 'in the larger and more effective use of radio.' And, even in the major market, where there may be no dearth of service . . ., CATV and . . . increase viewing opportunities, either by bringing in programing not otherwise available or, what is more likely, bringing in programing locally available but at times different from those presented by the local stations.' Second Report and Order, 2 F.C.C.2d 725, 781 (1966). See also id., at 745.
25
This statement, made with reference only to the local carriage and non-duplication requirements, was no less true of the distant importation rule. See id., at 781—782.
26
The regulation, for example, retained the provision of the Commission's earlier rule governing CATV microwave systems under which a local signal was not required to be carried 'if (1) it substantially duplicates the network programing of a signal of a higher grade, and (2) carrying it would—because of limited channel capacity—prevent the system from carrying a nonnetwork signal, which would contribute to the diversity of its service.' First Report and Order, 38 F.C.C. 683, 717 (1965). See Second Report and Order, n. 24, supra, at 752—753. Moreover, CATV operators were warned that, in reviewing their discretionary choice of stations to carry among those of equal priority in certain circumstances, the Commission would 'give particular consideration to any allegation that the station not carried is one with closer community ties.' Id., at 755. In addition, operators were required to carry the signals of local satellite stations even if they also carried the signals of the satellites' parents; otherwise, 'the satellite (might) lose audience for which it may be originating some local programing and (find) its incentive to originate programs (reduced).' Id., at 755—756. Finally, the Commission indicated that, in considering waivers of the regulation, it would '(accord) substantial weight' to such considerations as whether 'the programing of stations located within the State would be of greater interest than those of nearer, but out-of-State stations (otherwise required to be given priority in carriage)—e.g., coverage of political elections and other public affairs of state-wide concern.' Id., at 753.
27
As the Commission stated, 'it has long been a basic tenet of national communications policy that 'the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.' Associated Press v. United States, 326 U.S. 1, 20 (65 S.Ct. 1416, 1424, 89 L.Ed. 2013); Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 (89 S.Ct. 1794, 23 L.Ed.2d 371) . . ..' First Report and Order 205.
"(w)ith the number of radio channels limited by natural factos, the public interest demands that those who are entrusted with the available channels shall make the fullest and most effective use of them." Id., at 218, 63 S.Ct., at 1010.
"A station licensee must retain sufficient freedom of action to supply the program . . . needs of the local community. Local program service is a vital part of community life. A station should be ready,
28
Respondent aparently does not dispute this, but contends instead that §§ 1 and 303(g) merely state objectives without granting power for their implementation. See Brief for Midwest Video Corp. 24. The cablecasting requirement, however, is founded on those provisions for the policies they state and not for any regulatory power they might confer. The regulatory power itself may be found, as in Southwestern, see supra, at 660, 662 in 47 U.S.C. §§ 152(a), 303(r).
29
Respondent asserts that 'it is difficult to see how a mandatory (origination) requirement . . . can be said to aid the Commission in preserving the availability of broadcast stations to the several states and communities.' Brief for Midwest Video Corp. 24. Respondent ignores that the provision of additional programing outlets by CATV necessarily affects the fairness, efficiency, and equity of the distribution of television services. We have no basis, it may be added, for overturning the Commission's judgment that the effect in this regard will be favorable. See supra, at 654—655 and n. 10.
30
Commissioner Bartley, however, dissented on the ground that the regulation should apply only to systems with over 7,500 subscribers. Memorandum Opinion and Order 831.
31
Nor is the regulation infirm for its failure to grant 'grandfather' rights, see n. 7, supra, as the Commission warned would be the case in its Notice of Proposed Rulemaking and Notice of
Inquiry, 15 F.C.C.2d 417, 424 (1968). See, e.g., Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 282, 53 S.Ct. 627, 635, 77 L.Ed. 1166 (1933) ('the power of Congress in the regulation of interstate commerce is not fettered by the necessity of maintaining existing arrangements which would conflict with the execution of its policy'). Judge Tuttle has elaborated, General Telephone Co. of Southwest v. United States, 449 F.2d 846, 863—864 (CA5 1971):
'In a complex and dynamic industry such as the communications field, it cannot be expected that the agency charged with its regulation will have perfect clairvoyance. Indeed as Justice Cardozo once said, 'Hardship must at times result from postponement of the rule of action till a time when action is complete. It is one of the consequences of the limitations of the human intellect and of the denial to legislators and judges of infinite prevision.' Cardozo, The Nature of the Judicial Process 145 (1921). The Commission, thus, must be afforded some leeway in developing policies and rules to fit the exigencies of the burgeoning CATV industry. Where the on-rushing course of events (has) outpaced the regulatory process, the Commission should be enabled to remedy the (problem) . . . by retroactive adjustments, provided they are reasonable. . . .
'Admittedly the rule here at issue has an effect on activities embarked upon prior to the issuance of the Commission's Final Order and Report. Nonetheless the announcement of a new policy will inevitably have retroactive consequences. . . . The property of regulated industries is held subject to such limitations as may reasonably be imposed upon it in the public interest and the courts have frequently recognized that new rules may abolish or modify pre-existing interests.' With regard to federal infringement of franchise rights, see generally Barnett, n. 21, supra, at 703—705 and n. 116.
1
In light of the striking difference between origination and communication, the suggestion that 'the regulation is no different from Commission rules governing the technological quality of CATV broadcast carriage,' ante, at 669, appears misconceived.
'Essentially a CATV system no more than enhances the viewer's capacity to receive the broadcaster's signals; it provides a well-located antenna with an efficient connection to the viewer's television set. It is true that a CATV system plays an 'active' role in making reception possible in a given area, but so do ordinary television sets and antennas. CATV equipment is powerful and sophisticated, but the basic function the equipment serves is little different from that served by the the equipment generally furnished by a television viewer. If an individual erected an antenna on a hill, strung a cable to his house, and installed the necessary amplifying equipment, he would not be 'performing' the programs he received on his television set. The result would be no different if several people combined to erect a cooperative antenna for the same purpose. The only difference in the case of CATV is that the antenna system is erected and owned not by its users but by an entrepreneur.
2
The separate opinion of THE CHIEF JUSTICE reaches the same result by saying 'CATV is dependent totally on broadcast signals and is a significant link in the system as a whole and therefore must be seen as within the jurisdiction of the Act.' Ante, at 675. The difficulty is that this analysis knows no limits short of complete domination of the field of communications by the Commission. This reasoning—divorced as it is from any specific statutory basis—could as well apply to the manufacturers of radio and television broadcasting and receiving equipment.
| 78
|
406 U.S. 621
92 S.Ct. 1827
32 L.Ed.2d 369
FEDERAL POWER COMMISSION, Petitioner,v.LOUISIANA POWER & LIGHT COMPANY et al. UNITED GAS PIPE LINE COMPANY et al., Petitioners, v. LOUISIANA POWER & LIGHT CO. et al.
Nos. 71—1016, 71—1040.
Argued April 19, 1972.
Decided June 7, 1972.
Syllabus
When United Gas Pipe Line Co. (United), a jurisdictional pipeline, experienced temporary shortages of natural gas supply forcing it to reduce deliveries to its contract customers, the Federal Power Commission (FPC) asserted its jurisdiction to effect a reasonable curtailment plan covering deliveries to both direct sales customers and purchasers for resale. While curtailment proceedings were pending before the FPC, Louisiana Power & Light Co. (LP & L), a direct sales customer of United, brought this action in the District Court against United, seeking to enjoin curtailment of deliveries to LP & L's plants pursuant to any FPC-promulgated plans, including any under FPC Order No. 431. LP & L also sought to enjoin United from seeking FPC certification of United's previously intrastate deliveries through its Green System. The FPC intervened, asserting that both matters were pending before it and any decision by the District Court would therefore invade its primary jurisdiction. The District Court dismissed the action, holding that the FPC had jurisdiction of both proceedings and that LP & L had to exhaust its administrative remedies. The Court of Appeals reversed, holding that the FPC lacked jurisdiction to curtail deliveries to direct sales customers, since Section 1(b) of the Natural Gas Act makes the Act applicable only to sales for resale. The Court of Appeals also reversed the District Court's decision on the Green System, holding that the system was wholly intrastate. Held:
1. The FPC has power to regulate curtailment of direct interstate sales of natural gas under the head of its 'transportation' jurisdiction in § 1(b), and the prohibition in the proviso clause of that provision withheld from FPC only rate-setting authority with respect to such sales. Pp. 631—647.
2. The FPC had primary jurisdiction to determine whether the Green System was subject to its authority, and the Court of Appeals erred in deciding that question. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. Pp. 647—648.
456 F.2d 326, reversed.
Gordon Gooch, Washington, D.C., for the Federal Power Comm.
William C. Harvin, Houston, Tex., for United Gas Pipe Line Co. and Pennzoil United, Inc.
Andrew P. Carter, New Orleans, La., for La. Power and Light Co.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
In April 1971 the Federal Power Commission (FPC) promulgated its Order No. 431 requiring every jurisdictional pipeline to report to the FPC whether curtailment of its deliveries to customers would be necessary because of inadequate supply of natural gas. A pipeline anticipating the necessity for curtailment was required to file a revised tariff to control deliveries to all customers—industrial 'direct sales' customers, purchasing gas for their own consumption, and 'resale' customers, purchasing gas for distribution to ultimate consumers.
2
The principal question here is whether the proviso to § 1(b) of the Natural Gas Act, 52 Stat. 821, 15 U.S.C. § 717, prohibits the FPC from applying its Order No. 431 to curtail direct-sales deliveries in times of natural gas shortage. Section 1(b) provides:
3
'The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.' (Emphasis supplied.)
4
A subsidiary question presented is whether the doctrine of primary jurisdiction obliged the federal courts in this case to refer to the FPC for an initial determination of FPC jurisdiction to certificate a particular pipeline delivery when a certification proceeding to determine that question was pending before the Commission.
5
The Court of Appeals for the Fifth Circuit held that the proviso of § 1(b) prohibited application of FPC curtailment regulations to direct sales deliveries, and held, further, that neither that court nor the District Court was obliged to defer to the FPC's pending certification proceeding. 456 F.2d 326 (CA5 1972). We granted certiorari, 405 U.S. 973, 92 S.Ct. 1198, 31 L.Ed.2d 247 (1972). We reverse.
6
* Respondent Louisiana Power & Light Co. (LP & L generates electricity at Sterlington-Electric Generating Station in Ouachita Parish, Louisiana, and at Nine-Mile Point Generating Station in Jefferson Parish, Louisiana. The natural gas burned under LP & L's boilers at both stations is purchased from United Gas Pipe Line Company (United), a petitioner in No. 71—1040, under direct-sales contracts of long standing. The sales to Sterlington Station are sales of interstate gas, initially certificated by the FPC. Sales to Nine-Mile Point Station had been wholly intrastate gas delivered from United's intrastate 'Green System' when, in 1970, United diverted 2.6% of the gas from its interstate 'Black System' into the intrastate 'Green System,' after which United sought FPC certification of the 'Green System.' In 1970 also, United, from concern that its gas supply during the 1970—1971 heating season would fall short of demand, sought a declaratory order from the FPC to approve a proposed program of curtailment of natural gas deliveries to both its direct and resale customers. This proceeding culminated in agreement among affected customers under which FPC allowed United to carry out its program for the 1970—1971 winter.
7
When, however, United made a supplemental filing in February 1971, for a proposed curtailment program for the 1971 summer season, LP & L, in March 1971, filed this diversity action in the District Court for the Western District of Louisiana, alleging that the program was a breach of its contracts with United and asking injunctive relief against its implementation. LP & L also asked for a judgment declaring that the 'Green System' was an intrastate system, deliveries from which did not require FPC certification. The FPC and United sought dismissal of the action on the ground that a prior decision by the District Court would be destructive of the FPC's primary jurisdiction since the FPC was, in fact, asserting its jurisdiction over both issues at that time and was promulgating its Order No. 431, and United, in response to Order No. 431, was filing its third curtailment plan.
8
In opposition to the motions to dismiss in the District Court, LP & L argued that the FPC was without jurisdiction to authorize or approve curtailment programs affecting direct-sales deliveries and was also without jurisdiction to curtail deliveries to Nine-Mile Point Station because they were local and not interstate deliveries. On June 30, 1971, the District Court dismissed the action, holding that the FPC had jurisdiction of both curtailment and certification proceedings and that LP & L had to exhaust its administrative remedies in both, 332 F.Supp. 692 (1971). The Court of Appeals decision reversed this dismissal.
II
9
United is a 'jurisdictional' pipeline1 purchasing gas from producers in Texas and Louisiana and supplying wholesalers, direct sales customers, and other pipelines. United supplies ultimate consumers throughout the eastern half of the United States from Texas to Massachusetts with a peak-day commitment in the winter heating months totaling about 6,000,000 thousand cubic feet (Mcf).
10
In 1970, as part of a pattern of temporary and chronic natural gas shortages throughout the Nation,2 United found itself unable to meet all of its contract commitments during peake demand periods.3 Indeed, on days of greatest use, United expected to fall short by as much as 20% or more.4 In October 1970 United first promulgated a proposed delivery curtailment plan and sought a declaratory order from the FPC that the plan was consistent with United's obligations under its tariff and direct-sales contracts.5 Many of United's contracts with its customers made some provision for curtailment in times of temporary shortage, but these terms were complex and were not identical in all contracts or in United's tariff filings with the Commission.6 United's proposed curtailment plan established a priority system of three groups, curtailed on the basis of end use. These three groups were, in order of the lowest priority and curtailed first, gas used for industrial purposes, including gas to generate electricity for industrial purposes; gas used to generate electricity consumed by domestic consumers; and gas used by domestic consumers. See United Gas Pipe Line Co., F.P.C. Op. No. 606 Oct. 5, 1971. The plan made no distinction between direct-sales customers and resale customers.
11
This plan was opposed by LP & L and others, primarily on the ground that the FPC had no jurisdiction to curtail deliveries under direct-sales contracts. While preserving their objections, all but one of United's customers7 agreed to a modified plan to go into effect for the 1970—1971 winter season while the proceedings continued.
12
During this same season, many other pipelines reported serious shortages and applied to the FPC for assistance in effecting curtailment plans. In response, the FPC promulgated several emergency provisions for temporary measures to avoid major disruptions of power supplies. Orders Nos. 402, 35 Fed.Reg. 7511, and 402A, 35 Fed.Reg. 8927, authorized short-term purchases by pipelines facing shortages from other jurisdictional pipelines to ensure that storage fields were filled. Order No. 418, 35 Fed.Reg. 19173, authorized similar emergency purchases from producers without following usual procedures.
13
It was because these measures were found to be insufficient that the FPC promulgated Order No. 431, 36 Fed.Reg. 7505. The Order recommended that in filing the required tariff revisions, '(c)onsideration should be given to the curtailment of volumes equivalent to all interruptible sales and to the curtailment of large boiler fuel sales where alternate fuels are available.' Finally, Order No. 431 provided:
14
'Jurisdictional pipelines have the responsibility in the first instance to adopt a curtailment program by filing appropriate tariffs. Such tariffs, if approved by the Commission, will control in all respects notwithstanding inconsistent provisions in sales contracts, jurisdictional and nonjurisdictional, entered into prior to the date of the approval of the tariff.' United's revised tariff program filed in compliance with this order immediately became subject to the pending hearing for a declaratory order. On October 5, 1971, the FPC announced its interim decision, Op. No. 606, finding jurisdiction to effect a curtailment program for all customers, revising United's latest filing slightly, and remanding other issues in the plan to a hearing examiner. On November 2, 1971, United's plan, as modified, went into full effect. The appeal of LP & L and others from the FPC decision, Op. No. 606, is pending in the Court of Appeals for the Fifth Circuit.8
15
Also, in October 1970, based on the introduction of the interstate gas from its Black System, United sought certification under § 7(c)9 for the continued operation of the portion of its pipeline facilities in Louisiana (the Green System) used to supply LP & L's Nine-Mile Point generating station. LP & L opposed the application, alleging that the pipeline was constructed and operated to be wholly intrastate, and that United's 'illegal' introduction of a very small quantity of interstate gas did not cause the whole system to come under Commission jurisdiction.
16
On February 9, 1972, the Commission found in Op. No. 610 that the Green System was within its jurisdiction and thus required certification; it remanded the proceedings to a trial examiner to determine if the certificate should be granted under the 'public convenience and necessity' standard of § 7.
17
The Court of Appeals' reversal of the District Court10 on the curtailment issue rested on its view that under the Natural Gas Act '. . . FPC has no form of continuing certificate jurisdiction over direct sales to customers of interstate pipeline companies. It has the initial right to issue or veto a certificate of public convenience and necessity and it must give its approval to the abandonment of the use of the certificated facilities, but between the two functions the express exemption (in the proviso of § 1(b)) of regulatory power over such consumptive sales bars agency intervention.' 456 F.2d, at 338.
18
The Court of Appeals' holding that United's injection of interstate gas from its Black System into the theretofore intrastate Green System did not establish FPC jurisdiction to certificate the Green System, rested on its finding that the record showed that 'the flow of gas from the Black system into the Green system in the case at bar is occasional and irregular, as well as minimal. The Green system, as an entire and separate unit, is physically located and functions entirely in Louisiana. Therefore, the undisputed facts show that the channel of constant flow is an intrastate and not an interstate channel. The regulation of the Green system is substantially and essentially a localized matter committed to Louisiana's jurisdiction.' 456 F.2d, at 339—340.
III
19
The Natural Gas Act of 1938 granted FPC broad powers 'to protect consumers against exploitation at the hands of natural gas companies.' FPC v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 291, 88 L.Ed. 333 (1944). See FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 19, 81 S.Ct. 435, 445, 5 L.Ed.2d 377 (1961); Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 147, 80 S.Ct. 1392, 1398, 4 L.Ed.2d 1623 (1960). To that end, Congress 'meant to create a comprehensive and effective regulatory scheme,' Panhandle Eastern Pipe Line Co. v. Public Service Comm'n, 332 U.S. 507, 520, 68 S.Ct. 190, 197, 92 L.Ed. 128 (1947), of dual state and federal authority. Although federal jurisdiction was not to be exclusive, FPC regulation was to be broadly complementary to that reserved to the States, so that there would be no 'gaps' for private interests to subvert the public welfare. This congressional blueprint has guided judicial interpretation of the broad language defining FPC jurisdiction, and
20
'when a dispute arises over whether a given transaction is within the scope of federal or state regulatory authority, we are not inclined to approach the problem negatively, thus raising the possibility that a 'no man's land' will be created. Compare Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 603, 1 L.Ed.2d 601. That is to say, in a borderline case where congressional authority is not explicit we must ask whether state authority can practicably regulate a given area and, if we find that it cannot, then we are impelled to decide that federal authority governs.' FPC v. Transcontinental Gas Pipe Line Corp., supra, 365 U.S., at 19 20, 81 S.Ct., at 445.
21
This litigation poses the question whether FPC has authority to effect orderly curtailment plans involving both direct sales and sales for resale. LP & L insists that the FPC has no power to include direct sales in these plans. Transcontinental counsels inquiry into the necessary consequences of that contention in terms of the scope of federal and state regulatory authority in the premises.
22
Thirty-seven percent of United's total sales in 1970 were direct industrial sales. Under LP & L's argument, this volume would be wholly exempt from any curtailment plan approved by the FPC and thus United's resale customers would be forced to accept the entire burden of sharply reduced volumes while directsales customers received full contract service. The ultimate consumers thus affected include schools, hospitals, and homes completely dependent on a continued natural gas supply for heating and other domestic uses. These resale consumers could be curtailed by as much as 560,000 Mcf on cold days without dire consequences, but burdening them with the full curtailment volume would deprive them of up to 1,500,000 Mcf.
23
From a practical point of view, LP & L's position may thus produce a seriously inequitable system of gas distribution. Many direct industrial users of gas require only 'interruptible services,' which by the terms of their contracts are recognized to be of such minimal importance to the user that, upon the happening of certain events, the supply can be shut off on little or no notice. Nevertheless, the need for curtailment may not be sufficient to trigger these provisions of the contract and interruptible service customers may be able to demand full contract gas while resale consumers are being drastically curtailed. Many other direct industrial sales customers have alternative means available at little or no additional cost, yet under LP & L's contention will be able to demand their contract volumes while homes, hospitals, and schools suffer from lack of adequate service.
24
Can state authority practicably regulate in this area to prevent this inequity and hardship? Insofar as state plans purport to curtail deliveries of interstate gas, Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923), is authority that such plans, when they operate to withdraw a large volume of gas from an established interstate current whereby it is supplied to customers in other States, would constitute a prohibited interference with interstate commerce. But even to the extent the States may constitutionally promulgate curtailment plans, the inevitable result would be varied regulatory programs of state courts and agencies, interpreting a countless number of different contracts and applying a variety of state agency rules. The conflicting results would necessarily produce allocations determined simply by the ability of each customer to pump its desired volume from a pipeline. Moreover, in some States, Louisiana for example, the state regulatory agency is forbidden to regulate direct-sales contracts.11 Besides, a state agency empowered to regulate these contracts would be obliged to regulate in the State, not the national interest.12 Cf. Pennsylvania v. West Virginia, supra. The unavoidable conflict between producing States and consuming States will create contradictory regulations that cannot possibly be equitably resolved by the courts. With these problems in mind, the desirability of uniform federal regulation is abundantly clear. Nevertheless, as the Court of Appeals emphasized, 456 F.2d, at 335, a need for federal regulation does not establish FPC jurisdiction that Congress has not granted. We turn then to analysis of the statute to determine whether Congress withheld, as LP & L argues, authority from the FPC to apply its curtailment regulations to direct sales.
IV
25
In § 1(b) of the Act, '(t)hree things and three only Congress drew within its own regulatory power, delegated by the Act to its agent, the Federal Power Commission. These were: (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale.' Panhandle Eastern Pipe Line Co. v. Public Service Comm'n of Indiana, 332 U.S., at 516, 68 S.Ct., at 195. Each of these is an independent grant of jurisdiction and, though the Act's application to 'sales' is limited to sales of interstate gas for resale, the Act applies to interstate 'transportation' regardless of whether the gas transported is ultimately sold retail or wholesale. FPC v. East Ohio Gas Co., 338 U.S. 464, 468, 70 S.Ct. 266, 268, 94 L.Ed. 268 (1950).13
26
LP & L argues that the proviso in § 1(b) creates a complete exemption of direct sales from curtailment regulations.14 The answer is that the prohibition of the proviso of § 1(b) withheld from FPC only rate-setting authority with respect to direct sales. Curtailment regulations are not rate-setting regulations but regulations of the 'transportation' of natural gas and thus within FPC jurisdiction under the opening sentence of § 1(b) that '(t) he provisions of this Act shall apply to the transportation of natural gas in interstate commerce . . ..' The Court of Appeals rejected that construction on the ground that under it the 'transportation' jurisdiction would swallow up the proviso's exemption for direct sales. We disagree.
27
The major impetus for the congressional grant of sales jurisdiction to the FPC was furnished by a Federal Power Commission study of the pipeline industry in 1935—1936.15 The study showed that increasing concentration in the industry was producing vast economic power for the pipelines and a serious threat of unreasonably high prices for consumers. This threat was most acute in the case of sales for resale because wholesale distributors and their customers had little economic clout with which to obtain equitable prices from the pipelines. State power to regulate rates charged for interstate service to a customer in another State for resale was also thought, within this Court's decisions, constitutionally to be outside the regulatory power of the States. Public Utilities Comm'n of Rhode Island v. Attleboro Steam & Elec. Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549 (1927); Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U.S. 298, 44 S.Ct. 544, 68 L.Ed. 1027 (1924).
28
In response to this report and pressures from state regulatory agencies, Congress enacted a federal 'sales' jurisdiction in the Natural Gas Act, by which Congress granted rate-setting authority to the Commission over all interstate sales for resale. But as this Court, in Pennsylvania Gas Co. v. Public Service Comm'n, 252 U.S. 23, 40 S.Ct. 279, 64 L.Ed. 434 (1920), had sustained state authority to regulate rates for 'direct' sales, and, moreover, the need for federal authority here was not deemed acute, Congress withheld rate-setting jurisdiction over direct sales. That rate setting was the only subject matter covered by 'sales' jurisdiction and the 'direct sales' exception is clear from the legislative history of the proviso. The original phrasing of the proviso was:
29
'Provided, That nothing in this Act shall be construed to authorize the Commission to fix rates or charges for the sale of natural gas distributed locally in low-pressure mains or for the sale of natural gas for industrial use only.' Hearing on H.R. 11662 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 74th Cong., 2d Sess., 1 (1936) (emphasis supplied).
30
The phrasing was changed and the words 'to fix rates or charges' were subsequently deleted, but the House committee report confirms that the proviso as finally phrased was nevertheless meant to be restricted to rate setting. H.R.Rep.No.709, 75th Cong., 1st Sess., 4 (1937), states:
31
'It was urged in connection with earlier bills that there should be inserted at the end of this subsection a proviso as follows:
32
"Provided, That nothing in this Act shall be construed to authorize the Commission to fix the rates or charges to the public for the sale of natural gas distributed locally.'
33
'In order to avoid misunderstanding the committee thought it necessary to omit this proviso from the present bill for the following reasons, even though there is entire agreement with the intended policy which would have prompted its inclusion: First, it would have been surplusage if interpreted as it was intended to be interpreted, and, second, it would have been, in all likelihood, a source of confusion if interpreted in any other way. For example, it was felt that in the effort to find a reason for its inclusion it might have been argued that it exempted sales to a publicly owned distributing company, and such an exemption is not, of course, intended. It is believed that the purposes of this proviso, assuming the need for any such provision, are fully covered in the present provision by the language—'but shall not apply to any other . . . sales of natural gas." (Emphasis supplied.)
34
The author of the changed version, the General Solicitor of the National Association of Railroad and Utilities Commissioners, confirmed this interpretation. Hearing on H.R. 4008, before the House Committee on Interstate and Foreign Commerce, 75th Cong., 1st Sess., 143.
35
Thus, Congress' grant of sales jurisdiction as to sales for resale and the prohibition as to direct sales were meant to apply exclusively to rate setting, and in no wise limited the broad base of 'transportation' jurisdiction granted the FPC. That head of jurisdiction plainly embraces regulation of the quantities of gas that pipelines may transport, for in that respect Congress created 'a comprehensive and effective regulatory scheme,' Panhandle Eastern Pipe Line Co. v. Public Service Comm'n, 332 U.S., at 520, 68 S.Ct., at 197, to 'afford consumers a complete, permanent and effective bond of protection . . ..' Atlantic Refining Co. v. Public Service Comm'n, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312 (1959).
36
'Therefore, when we are presented with an attempt by the federal authority to control a problem that is not, by its very nature, one with which state regulatory commissions can be expected to deal, the conclusion is irresistible that Congress desired regulation by federal authority rather than nonregulation.' FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S., at 28, 81 S.Ct., at 450.
37
Comprehensive and equitable curtailment plans for gas transported in interstate commerce, as already mentioned, are practically beyond the competence of state regulatory agencies. Congress was also aware that Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923), casts serious doubt upon the constitutionality of state regulation of such plans. That decision was considered in the deliberations on the Natural Gas Act and was cited to the House Committee as a reason for federal regulation. Hearing on H.R. 11662 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 74th Cong., 2d Sess., 14 (1936).
38
Finally, this Court has already stated its view that curtailment plans are aspects of FPC's 'transportation' and not its 'sales' jurisdiction. In Panhandle Eastern, 332 U.S., at 523, 68 S.Ct., at 199, we said:
39
'(T)he matter of interrupting service is one largely related . . . to transportation and thus within the jurisdiction of the Federal Power Commission to control, in accommodation of any conflicting interests among various states.'16
V
40
Since curtailment programs fall within the FPC's responsibilities under the head of its 'transportation' jurisdiction, the Commission must possess broad powers to devise effective means to meet these responsibilities. FPC and other agencies created to protect the public interest must be free, 'within the ambit of their statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances.' FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586, 62 S.Ct. 736, 743, 86 L.Ed. 1037 (1942). Section 16 of the Act assures the FPC the necessary degree of flexibility in providing that:
41
'The Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this Act. . . .' 15 U.S.C. § 717o.
42
In applying this section, we have held that 'the width of administrative authority must be measured in part by the purposes for which it was conferred. . . . Surely the Commission's broad responsibilities therefore demand a generous construction of its statutory authority.' Permian Basin Area Rate Cases, 390 U.S. 747, 776, 88 S.Ct. 1344, 1364, 20 L.Ed.2d 312 (1968); see United Gas Pipe Line Co. v. FPC, 385 U.S. 83, 89—90, 87 S.Ct. 265, 269, 17 L.Ed.2d 181 (1966).
43
The substantive standard governing FPC evaluation of curtailment plans is found in § 4(b) of the Act:
44
'No natural-gas company shall, with respect to any transportation or sale of natural gas subject to the jurisdiction of the Commission, (1) make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage, or (2) maintain any unreasonable difference in rates, charges, service, facilities, or in any other respect, either as between localities or as between classes of service.' 15 U.S.C. § 717c(b).
45
Two procedural mechanisms are available to enforce this antidiscriminatory provision of § 4(b). As to a tariff already on file and in effect, the FPC may proceed under § 5(a).17 The § 5(a) procedure has substantial disadvantages, however, rendering it unsuitable for the evaluation of curtailment plans. The FPC must afford interested parties a full hearing on the reasonableness of the tariff before taking any remedial action, and, as we have observed 'the delay incident to determination in § 5 proceedings through which initial certificated rates (as well as 'practices' and 'contracts') are reviewable appears nigh interminable.' Atlantic Refining Co. v. Public Service Comm'n, 360 U.S., at 389, 79 S.Ct., at 1254.18 In addition a prescribed remedial order can have only prospective application. FPC has therefore chosen to process curtailment plans under § 4(c), (d), and (e).19 Under these provisions, a pipeline's tariff amendments filed with the FPC go into effect in 30 days unless suspended by the Commission. If a filing is challenged or the FPC of its own motion deems it appropriate, it may suspend the amended tariff for up to five months, at the end of which time the amended tariff becomes effective pending the completion of hearings. In these hearings, the pipeline has the burden of proving that its plan is reasonable and fair.
46
Order No. 431 makes full use of the § 4 procedures. All pipelines facing shortages necessitating curtailment are required to file reasonable allocation schemes as amendments to their existing tariffs, or to state that the existing tariffs are adequate. When emergency or other conditions arise and it appears desirable in the public interest to place a plan into effect, the FPC may accept the filing, implement it immediately or suspend it, and employ the plan as a working guideline while hearings continue. In addition to the flexibility of this arrangement, the requirement that pipelines submit plans enables the FPC to utilize each pipeline's unique knowledge of its customers' needs, ability to substitute other fuel sources, and other relevant considerations.
47
The Court of Appeals held that, under our decision in FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S., at 17, 81 S.Ct., at 444, FPC authority over direct sales contracts is limited to a 'veto power' to be exercised only in certification proceedings under § 7(c) and abandonment proceedings under § 7(b). We reject this argument on two grounds. First, Transcontinental dealt with FPC's authority to consider direct-sales rates in certification proceedings. We there noted that under § 1(b) FPC jurisdiction over rates was limited. The litigation here, unlike Transcontinental, does not involve rates and therefore the provision of § 1(b) is wholly inapplicable. Secondly, Transcontinental dealt only with FPC 'veto power' under § 7, and in no way limited FPC authority under § 4(b) to prevent discrimination among a pipeline's customers. Since § 4(b) expressly deals with 'service,' the FPC may invoke it to deal with curtailment programs, whether or not it could also invoke § 7 for that purpose.
48
Amici have argued that permitting the pipeline's tariff amendments to take effect despite contrary terms in existing contracts is inconsistent with our decision in United Gas Pipe Line Co.v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956). In that case, however, we dealt with an attempt by a pipeline unilaterally to effect a change in its contract terms by making a filing under § 4. In the present cause, the issue is whether the FPC, acting under the head of its transportation jurisdiction and its broad mandate under § 16, may order pipelines facing shortages to develop and submit rational curtailment arrangements. Our holding in Mobile Gas Service Corp. does not govern the decision of this issue since, as we observed in that case:
49
'(D)enying the natural gas companies the power unilaterally to change their contracts in no way impairs the regulatory powers of the Commission, for the contracts remain fully subject to the paramount power of the Commission to modify them when necessary in the public interest.' 350 U.S., at 344, 76 S.Ct., at 381.
50
We conclude therefore that the FPC has the jurisdiction asserted here and that the Natural Gas Act fully authorizes the method chosen by the FPC for its exercise.
VI
51
In addition to holding that the proviso to § 1(b) prohibited curtailment of gas delivered to the Nine-Mile Point Station, the Court of Appeals held that those deliveries were not regulable by the FPC because 'the flow of gas from the Black system into the Green system . . . is occasional and irregular, as well as minimal,' and that '(t)he Green system, as an entire and separate unit, is physically located and functions entirely in Louisiana'; the court concluded that, for these reasons, '(t)he regulation of the Green system is substantially and essentially a localized matter committed to Louisiana's jurisdiction.' 456 F.2d, at 339 340. The Court of Appeals erred in deciding this question. The FPC had exercised its primary jurisdiction and was conducting proceedings to determine whether the Green System was subject to its jurisdiction. In that circumstance, the District Court and the Court of Appeals were obliged to defer to the FPC for the initial determination of its jurisdiction. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). The need to protect the primary authority of an agency to determine its own jurisdiction 'is obviously greatest when the precise issue brought before a court is in the process of litigation through procedures originating in the (agency). While the (agency's) decision is not the last word, it must assuredly be the first.' Marine Engineers Beneficial Assn. v. Interlake S.S. Co., 370 U.S. 173, 185, 82 S.Ct. 1237, 1243, 8 L.Ed.2d 418 (1962). Review of the FPC decision may proceed in due course pursuant to § 19(b) of the Act, 15 U.S.C. § 717r(b). We see no need to make the same disposition as to the curtailment question since the Court of Appeals had Op. No. 606 before it and acted upon the opinion in reaching its decision.
52
Reversed.
53
Mr. Justice STEWART took no part in the decision of these cases.
54
Mr. Justice POWELL took no part in the consideration or decision of these cases.
1
A 'jurisdictional' pipeline transports natural gas in interstate commerce and for that reason is subject to FPC certification jurisdiction. The 'jurisdictional' label is also sometimes used to apply to sales, in which case it refers to interstate sales for resale, which are subject to Commission rate regulation.
2
FPC Staff Report No. 2, National Gas Supply and Demand 1971—1990 (1972):
'The emergence of a natural gas shortage during the past two years marks a historic turning point—the end of natural gas industry growth uninhibited by supply considerations. Not only has the Nation's proven gas reserve inventory for the lower 48 states been shrinking for the past three years, but major pipeline companies and distributors in most parts of the country have been forced to refuse requests for additional gas service from large industrial customers and from many new customers. For practical short-term purposes we are confronted with the fact that current proven reserves in the lower 48 states, as reported by the American Gas Association, have dropped from 289.3 trillion cubic feet in 1967 to 259.6 in 1970, a 10.3 percent drop within a three-year period. Furthermore, approximatey 95 percent of this proven reserve inventory is already committed to gas sales contracts and is therefore unavailable for sales to new customers or for increased volumes to old customers.' Id., at xi.
3
Demand for natural gas fluctuates sharply from season to season and from day to day. Nationally, peak days occur in winter heating months. For LP & L, however, the need for gas is greatest in the summer months, when air conditioning increases electricity consumption.
4
Many of the facts are taken from the recitals in the petitions for certiorari, which draw upon evidence presented before the FPC in the curtailment proceedings. LP & L has not challenged their accuracy except to argue that no significant gas shortage actually exists. Our decision in this case in no way limits LP & L's freedom to argue its position as to the facts on the appeal pending in the Court of Appeals.
5
The Commission has authority to issue declaratory orders under the Administrative Procedure Act, 5 U.S.C. § 554(e).
6
The record in these cases does not contain all the contract terms dealing with curtainment of deliveries. United's two contracts with LP & L under consideration in this litigation, however, indicate that the terms vary from year to year and customer to customer since these two contracts themselves establish slightly different priority systems. Moreover, LP & L informs us that its contracts had terms slightly different from those in most other direct-sales contracts.
7
The objecting party appealed the decision of the FPC and that case is now pending in the District of Columbia.
8
The petitions of the Solicitor General and United for review here of the FPC decision prior to judgment of the Court of Appeals were denied. 405 U.S. 973, 92 S.Ct. 1198, 31 L.Ed.2d 247 (1972).
9
Section 7(c) provides:
'No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations . . .' 15 U.S.C. § 717f(c).
10
Argument was heard in the Fifth Circuit in November 1971, one month after the FPC decision in No. 606. The Court of Appeals decision was announced in January 1972, one month before the FPC decision in No. 610.
11
La.Const., Art. 6, § 4.
12
The conflict between producing and consuming States over state or federal regulatory authority is highlighted in the contrast between Louisiana's amicus brief in this litigation and the statement of the Chairman of the New York Public Service Commission in another case. Louisiana, a producing State, submits:
'Historically, gas producing states have certain advantages over states which do not have their own gas supply. Their very proximity to the source of production attracts industries which use gas as the raw material without which their plants could not operate. The lower transportation costs of delivering gas to other industrial and commercial users within the state makes its use particularly attractive for such applications. It is not surprising, therefore, that producing states have a higher proportion of industrial-commercial consumption of total gas consumed and of firm gas than consuming states. Louisiana utilizes 84% of the total quantity of firm gas sold
in the state for industrial and power plant generation purposes, in comparison to a national averae of only 37%.
'Louisiana's economy is heavily dependent upon the availability of a firm. reliable and uninterrupted supply of natural gas. State-wide investment by industrial category clearly reflects the predominance of petroleum, refineries and chemicals which represented $465,297,370 or 76% of a total industrial investment of $609,578,850 in 1970. Apart from these industries which use natural gas as process gas without which their plants cannot function, the state's electric utilities are completely dependent upon natural gas as fuel for electric generators.
'Thus, the economic welfare of the state hinges upon the continued delivery of the volumes of gas it received and used prior to United's curtailment and upon the ability to draw upon greater volumes. Otherwise, its economy will be frozen at or below its present level. This is not true of other states in which natural gas plays a subsidiary rather than a dominant role in the overall economy of the state and in which the electrical utilities have alternate power sources such as coal, imported liquefied natural gas and inexpensive hydroelectric power.' Brief of State of Louisiana Amicus Curiae 2—3. As observed in FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961), consuming States prefer federal regulation. The Chairman of the New York Public Service Commission summed up this position in In re Cabot Gas Corp., 16 P.U.R.(N.S.) 443 (1936):
'There can be but one opinion among those who believe in the conservation of natural resources. They should be developed not to benefit a few individuals but in the interests of public welfare present and future. Our natural gas resources ought to be conserved and there is probably no field where the Federal government acting in the interests of the entire country and to protect the welfare of the future could accomplish more than in the natural gas industry. From a conservation viewpoint. I thoroughly agree with Commissioner Burritt, and if I could see how a denial of the present petition would work to this end, I would vote to refuse the application; but will such denial produce the desired results?
'The field from which gas is to be taken by the petitioner is in
northern Pennsylvania and southern New York. Apparently, far more of the gas will come from Pennsylvania than from New York and over the extraction of gas in the state of Pennsylvania, this Commission has practically no control. It is possible for Pennsylvania companies to take all of the gas from this field unless the New York companies remove the gas before the field is exhausted.
'Further, the Public Service Commission has been given no adequate authority to determine how the natural gas resources of this state, to say nothing of the resources of Pennsylvania, shall be developed. We have no powers directly to control the amount of gas that is taken from any field and our indirect powers are so limited that it is doubtful if much could be accomplished. The state of New York receives far more gas from sources located beyond its boundaries than it exports to any adjoining state and the conservation of natural gas resources in the various states cannot be properly brought about except through voluntary action of the states or by the Federal government. Neither one is yet operative and while attention has been given to electric interstate commerce, no effective steps have been taken to conserve or regulate the distribution of natural gas, where it is so urgently needed.
'In view of the lack of authority conferred upon this Commission to conserve natural resources, the question becomes primarily what will be gained to consumers in the state of New York if the petition is denied. It is stated that about 80 or 90 per cent of the gas furnished by the petitioner will be used for industrial purposes and that only from 10 to 20 per cent will go to the general public, the inference being that the saving to the companies purchasing the gas will go to enrich a few stockholders. Let us assume such are the facts. Who will gain if those benefited by the petition are deprived of their profits or advantages by a denial of the petition? This Commission does not control the use that will be made of the gas from the field tapped by the petitioner. There are many other companies tapping the supply and we have no means of determining where, when, or to whom the gas will be sold. If restriction is imposed on the use of it in New York, it may go to Pennsylvania; and if the petitioner is not allowed to supply the areas which it is proposed to serve, the gas will go to other areas and there is no assurance that it
will be used any more beneficially from a public viewpoint than it will be if the petition is granted.
'As stated, I am heartily in favor of the conservation of natural gas as well as other natural resources; but in this specific case, will the granting or the denial of the petition work to the benefit of the people of New York? The benefit to the area to be supplied by the petitioner is definite, it is known, it is sure. But if the petition is denied, who will be benefited? There is no assurance upon this point. The answer is speculative and uncertain. There is nothing to assure us that the denial of the petition would conserve the gas supply. Is it not likely that the benefits would merely be diverted from one group or one locality to another?'
13
East Ohio dealt with the grant of FPC jurisdiction over natural gas companies engaged in interstate transportation or sale. What we said there has relevance to the issue in this case:
'Respondents contend, however, that the word 'transportation'
in § 1(b) must be construed as applying only to companies engaged in the business of transporting gas in interstate commerce for hire or for sales to be followed by resales, whereas East Ohio does neither. The short answer is that the Act's language did not express any such limitation. Despite the unqualified language of § 1(b) making the Act apply to 'transportation of natural gas in interstate commerce,' respondents ask us to qualify that language by applying it only to business which both transport and sell natural gas for resale. They rely on a sentence in the declaration of policy § 1(a), referring to 'the business of transporting and selling natural gas.' But their contention that the word 'and' in the policy provision creates an unseverable bond is completely refuted by the clearly disjunctive phrasing of § 1(b) itself. As we pointed out in Panhandle Eastern Pipe Line Co. v. Public Service Comm., 332 U.S. 507, 516, 68 S.Ct. 190, 195, 92 L.Ed. 128, § 1(b) made the Natural Gas Act applicable to three separate things: '(1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale.' And throughout the Act 'transportation' and 'sale' are viewed as separate subjects of regulation. They have independent and equally important places in the Act. Thus, to adopt respondents' construction would unduly restrict the Commission's power to carry out one of the major policies of the Act. Moreover, the initial interest of Congress in regulation of transportation facilities was reemphasized in 1942 by passage of an amendment to § 7(c) of the Act broadening the Commission's powers over the construction or extension of pipe lines. 56 Stat. 83. This amendment followed a report of the Commission to Congress pointing out that without amendment the Act vested the Commission with inadequate power to make 'any serious effort to control the unplanned construction of natural-gas pipe lines with a view to conserving one of the country's valuable but exhaustible energy resources.' We hold that the word 'transportation' like the phrase 'interstate commerce' aptly describes the movements of gas in East Ohio's high-pressure pipe lines.' 338 U.S. 464, 468—469, 70 S.Ct. 266, 268, 94 L.Ed. 268 (1950) (footnotes omitted).
14
It is well established that the proviso was added to the Act merely for clarification and was not intended to deprive FPC of any jurisdiction otherwise granted by § 1(b). FPC v. Transcontinental
Gas Pipe Line Co., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961); FPC v. East Ohio Gas Co., 338 U.S. 464, 70 S.Ct. 266, 94 L.Ed. 268 (1950). The House report on the bill described this second sentence of § 1(b) as follows:
'The quoted words are not actually necessary, as the matters specified therein could not be said fairly to be covered by the language affirmatively stating the jurisdiction of the Commission, but similar language was in previous bills, and, rather than invite the contention, however unfounded, that the elimination of the negative language would broaden the scope of the act, the committee has included it in this bill.' H.R.Rep. No. 709, 75th Cong., 1st Sess., 3 (1937).
15
S.Doc. No. 92, pt. 84—A, 70th Cong., 1st Sess., submitted Dec. 31, 1935.
16
In Panhandle, the Court was asked to hold that direct industrial sales customers receiving gas in interstate commerce could not be subjected to state regulatory control consistently with FPC jurisdiction in the area. In support of this position, the customers
argued that state control of certain matters affecting the sales could not practically be managed by state regulation. Not surprisingly, the problem of curtailment was used as a prime example of a matter presenting these difficulties.
17
Section 5(a) provides:
'Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order: Provided, however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discriminatory, preferential, otherwise unlawful, or are not the lowest reasonable rates.' 15 U.S.C. § 717d(a).
18
Of course, even when conducting a § 5 hearing, the Commission would have emergency authority to issue interim orders effecting a curtailment plan. FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942).
19
These sections provide,
'(c) Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time (not less than sixty days from June 21, 1938) and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.
'(d) Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days' notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.
'(e) Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, State commission or gas distributing company, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and
the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect.' 15 U.S.C. § 717c(c), (d), and (e).
| 78
|
406 U.S. 706
92 S.Ct. 1936
32 L.Ed.2d 428
BRUNETTE MACHINE WORKS, LTD., Petitioner,v.KOCKUM INDUSTRIES, INC.
No. 70—314.
Argued March 23, 1972.
Decided June 7, 1972.
Syllabus
Title 28 U.S.C. § 1391(d), providing that '(a)n alien may be sued in any district,' embodies the long-established rule that a suit against an alien is wholly outside the operation of all federal venue laws (whether general or special) and governs the venue of an action for patent infringement against an alien. The District Court therefore erred in holding that § 1400(b) (which provides that a patent infringement suit may be brought in the district of the defendant's residence, or where he has committed infringement acts and has a regular place of business) is the exclusive provision governing venue in patent infringement litigation. Pp. 708—714.
442 F.2d 420, affirmed.
J. Pierre Kolisch, Portland, Or., for petitioner.
Harry M. Cross, Jr., Seattle, Wash., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Section 1391(d) of the United States Judicial Code provides that '(a)n alien may be sued in any district.' Section 1400(b) provides that '(a)ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.' We are asked to decide which provision of Title 28 governs the venue of an action for patent infringement against an alien defendant.
2
Respondent Kockum Industries, Inc., an Alabama corporation doing business in Oregon, holds a United States patent on a machine that removes bark from logs. Kockum claims that petitioner Brunette Machine Works, Ltd., a Canadian corporation, has infringed that patent by assisting two American manufacturers to make and sell similar machines.1 Kockum obtained service of process on Brunette in Oregon, under that State's long-arm statute, Ore.Rev.Stat. § 14.035, and filed this action for patent infringement in the United States District Court for the District of Oregon. The District Court dismissed the complaint on the ground of improper venue, accepting Brunette's contention that § 1400(b) is the exclusive provision governing venue in patent infringement litigation, and that its requirements were not satisfied here.2 The Court of Appeals reversed, holding that § 1391(d) applies to patent infringement suits as to all others, and hence that Brunette is subject to suit as an alien in any district. 442 F.2d 420 (1971) We granted certiorari to resolve a conflict in the circuits on this question.3 404 U.S. 982, 92 S.Ct. 444, 30 L.Ed.2d 366 (1971). We affirm.
3
* Section 1391(d), providing that an alien may be sued in any district, appeared for the first time in the Judicial Code of 1948, but its roots go back to the beginning of the Republic. The first restrictions on venue in the federal courts were set forth in the Judiciary Act of 1789:
4
'(N)o civil suit shall be brought before either (district of circuit) courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. . . .' 1 Stat. 79.4
5
Because this limitation on the place where federal cases might be tried applied in terms only to suits against 'an inhabitant of the United States,' suits against aliens were left unrestricted, and could be tried in any district, subject only to the requirements of service of process.
6
The original venue provisions remained essentially unchanged until 1875 when Congress substantially revised the Judiciary Act and greatly expanded the scope of federal jurisdiction. 18 Stat. 470.5 In describing the class of cases subject to venue restrictions, the 1875 statute dropped the phrase 'suit . . . against an inhabitant of the United States' and substituted 'suit . . . against any person.' This Court held, however, that the change was stylistic and not substantive, and that Congress did not thereby bring suits against aliens within the scope of the venue laws. In re Hohorst, 150 U.S. 653, 14 S.Ct. 221, 37 L.Ed. 1211 (1893).
7
The Court offered two reasons in Hohorst for concluding that suits against aliens remained outside the scope of the venue laws. First, no contemporary significance appears to have attached to the relevant change in language in 1875.6 Second, and perhaps more important, to hold the venue statutes applicable to suits against aliens would be in effect to oust the federal courts of jurisdiction in most cases, because the general venue provisions were framed with reference to the defendant's place of residence or citizenship, and an alien defendant is by definition a citizen of no district.7 The Hohorst Court reasoned that it should not lightly be assumed that Congress intended that result, in light of the fact that the venue provisions are designed, not to keep suits out of the federal courts, but merely to allocate suits to the most appropriate or convenient federal forum.8
8
The reasoning of Hohorst with respect to suits against aliens continues to have force today. It remains true today that to hold the venue statutes applicable here would in effect oust the federal courts of a jurisdiction clearly conferred on them by Congress. Moreover, in the 79 years since Hohorst was decided, Congress has never given the slightest indication that it is dissatisfied with the longstanding judicial view that the 1789 language continues to color the venue statutes, with the result that suits against aliens are outside the scope of all the venue laws.
II
9
Petitioner argues that by enacting 28 U.S.C. § 1400(b), Congress indicated a legislative intent to reject that rule in patent cases, and regulate the venue of suits against aliens in that limited class of cases. There is support for petitioner's argument in the broad language of prior decisions of this Court. Twice before, the Court has refused to apply venue provisions of general applicability to patent infringement cases. In Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026 (1942), the Court declared that what is now § 1400(b) is 'the exclusive provision controlling venue in patent infringement proceedings.' Id., at 563, 62 S.Ct., at 781. Stonite held that venue in patent cases is not affected by what is now § 1392(a), which relaxes certain restrictive venue rules in cases involving multiple defendants.9 Similarly, in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), the Court asserted that '28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions,' emphasizing its character as 'a special venue statute applicable, specifically, to all defendants in a particular type of action,' id., at 228, 229, 77 S.Ct., at 792 (emphasis in original). Fourco held that venue in patent cases is not affected by § 1391(c), which expands for general venue purposes the definition of the residence of a corporation.10
10
The analysis in each case rested heavily on the legislative history of § 1400(b). Prior to 1893, patent infringement cases had been widely, though not universally, regarded as subject to the general federal venue statutes. Chaffee v. Hayward, 20 How. 208, 215—216, 15 L.Ed. 804, 851 (1858). This Court cast doubt on that proposition, however, in the Hohorst case, supra. We have already noted that Hohorst held the general venue limitations inapplicable to a suit against an alien defendant.11 In further support of the decision, however, the Court noted that the suit was based on a claim for patent infringement; the venue restrictions, said the Court, were intended to apply only to that part of the federal jurisdiction that was concurrent with state court jurisdiction, and not to patent suits, which are entrusted exclusively to the federal courts.
11
The apparent effect of the decision was to hold that patent infringement suits could be tried in any district, even when the defendant was not an alien. After Hohorst, there was great confusion on this point in the lower courts.12 Congress responded promptly, creating a special new venue statute for the occasion: patent infringement claims were to be heard only in the district where the defendant was an inhabitant, or the district where he committed acts of infringement and also maintained a regular and established place of business. 29 Stat. 695 (1897), now codified as 28 U.S.C. § 1400(b). The new provision was of course more restrictive than the law as it was left by Hohorst, but it was rather less restrictive than the general venue provision then applicable to claims arising under federal law.13 Over the objections of some legislators, who could see no reason for treating patent suits differently from any other federal-question litigation,14 Congress took the opportunity to establish for patent infringement suits a special and separate venue statute. Thus it is fair to say, as the Court did in Stonite and Fourco, that in 1897 Congress placed patent infringement cases in a class by themselves, outside the scope of general venue legislation.
12
But that analysis sheds no light on the present case. For it totally misconceives the origin and purpose of § 1391(d) to characterize that statute as an appendage to the general venue statutes, analogous to the provisions at issue in Stonite and Fourco. Section 1391(d) is not derived from the general venue statutes that § 1400(b) was intended to replace. Section 1391(d) reflects, rather, the longstanding rule that suits against alien defendants are outside those statutes. Since the general venue statutes did not reach suits against alien defendants, there is no reason to suppose the new substitute in patent cases was intended to do so. Indeed, the only glimmer of evidence of legislative intent points in the other direction. We have no reliable indication of what Congress thought about the matter in 1875, when it drop ped the language that expressly excluded suits against alien defendants from the general venue statutes, or in 1897, when it enacted the special patent venue statute. But in 1948, Congress was apparently quite content to leave suits against alien defendants exempt from the venue statutes, in patent cases as in all others. In that year, Congress codified as § 1391(d) the rule exempting suits against aliens from the federal venue statutes. The Reviser's Notes, which provide the principal guide to interpretation of the 1948 Judicial Code, explain the intent to codify a rule that commands the 'weight of authority,' citing a pair of district court cases. These cases hold that the general venue laws do not control in a suit against an alien defendant, nor does the special patent venue law. Sandusky Foundry & Machine Co. v. De Lavaud, 251 F. 631 (ND Ohio 1918); Keating v. Pennsylvania Co., 245 F. 155 (ND Ohio 1917).
III
13
We conclude that in § 1391(d) Congress was stating a principle of broad and overriding application, and not merely making an adjustment in the general venue statute, as this Court found Congress had done in Stonite and Fourco. The principle of § 1391(d) cannot be confined in its application to cases that would otherwise fall under the general venue statutes. For § 1391(d) is properly regarded, not as a venue restriction at all, but rather as a declaration of the long-established rule that suits against aliens are wholly outside the operation of all the federal venue laws, general and special.
14
That rule, which has prevailed throughout the history of the federal courts, controls this case. Since respondent Brunette is an alien corporation, it cannot rely on § 1400(d) as a shield against suit in the District of Oregon. The judgment of the Court of Appeals is affirmed.
15
Affirmed.
1
Respondent's suit against one of those manufacturers, an Oregon corporation, is now pending on appeal to the Court of Appeals for the Ninth Circuit. Kockum Industries, Inc. v. Salem Equipment, Inc., No. 25870.
2
Petitioner does not 'reside' in Oregon, because the residence of a corporation for purposes of § 1400(b) is its place of incorporation. Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), discussed infra, at 711 and n. 10. And while the alleged infringement occurred in Oregon, petitioner apparently has no regular place of business there.
3
Compare the decision of the Court of Appeals for the Ninth Circuit below with Coulter Electronics, Inc. v. A. B. Lars Ljungberg & Co., 376 F.2d 743 (CA7), cert. denied, 389 U.S. 859, 88 S.Ct. 103, 19 L.Ed.2d 124 (1967). Several district courts in other circuits have adopted the view taken by the Court of Appeals for the Ninth Circuit in this case, see Chas. Pfizer & Co. v. Laboratori Pro-Ter Prodotti Therapeutici, 278 F.Supp. 148 (SDNY 1967); Olin Mathieson Chemical Corp. v. Molins Organizations, Ltd., 261 F.Supp. 436 (ED Va. 1966).
4
The provision for venue wherever the defendant 'shall be found' is deceptively broad. The grant of federal jurisdiction at that time consisted almost exclusively of suits between parties of diverse citizenship. Unlike the present statute, however, which provides for jurisdiction over suits 'between . . . citizens of different States,' 28 U.S.C. § 1332(a)(1) the 1789 statute provided for jurisdiction over suits 'between a citizen of the State where the suit is brought, and a citizen of another State.' 1 Stat. 78. Thus the litigants were effectively confined to the district of residence of one of them, by the jurisdictional grant though not by the venue statutes. This restriction was eliminated in 1875, when a number of important changes were made in the Judiciary Act, see n. 5, infra, and the relevant clause of the grant of diversity jurisdiction was rephrased in its present form, 18 Stat. 470.
5
The jurisdiction of the federal courts was extended to include suits 'arising under the Constitution or laws of the United States,' i.e., the federal-question jurisdiction now found in 28 U.S.C. § 1331(a). And the diversity jurisdiction was rephrased, see n. 4, supra.
6
In re Hohorst, 150 U.S. 653, 661, 14 S.Ct. 221, 224, 37 L.Ed. 1211 (1893), citing In re Louisville Underwriters, 134 U.S. 488, 492, 10 S.Ct. 587, 588, 33 L.Ed. 991 (1890), and Shaw v. Quincy Mining Co., 145 U.S. 444, 448, 12 S.Ct. 935, 936, 36 L.Ed. 768 (1892), for the proposition that the substitution 'has been assumed to be an immaterial change.'
7
In 1875, the restrictions on venue in the federal courts were those imposed by the 1789 statute quoted in text: suit could be brought where the defendant was an inhabitant, or where he could be found. In 1887, however, Congress eliminated the provision authorizing suit wherever the defendant could be found: federal-question cases could be brought only where the defendant was an 'inhabitant,' and diversity cases only where either the plaintiff or the defendant resides. 24 Stat. 552. A suit against an alien was not regarded as a true diversity suit, and hence it was necessary to satisfy the requirements of federal-question venue, i.e., residence of the defendant. Hohorst, supra, 150 U.S., at 660, 14 S.Ct., at 223.
Today the general venue provisions for federal-question and diversity cases appear in 28 U.S.C. §§ 1391(a) and (b); they follow the 1887 statute, except that Congress has added a provision for venue where 'the claim arose,' see n. 8, infra.
8
There have been, and perhaps there still are, occasional gaps in the venue laws, i.e., cases in which the federal courts have jurisdiction but there is no district in which venue is proper. One such gap arose in connection with cases involving multiple plaintiffs and defendants. Venue was fixed at the residence of the defendant, or in diversity cases at the residence of the plaintiff as well. When there were multiple plaintiffs or defendants, the district of residence for venue purposes was the district where all plaintiffs or all defendants reside. Smith v. Lyon, 133 U.S. 315, 10 S.Ct. 303, 33 L.Ed. 635 (1890). If they resided in different districts then there was no proper venue. In 1966 Congress acted to close the gap with a provision authorizing suit where 'the claim arose,' 80 Stat. 1111, which in most cases provides a proper venue even in multiple-party situations. The development supports the view that Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other. Thus, in construing venue statutes it is reasonable to prefer the construction that avoids leaving such a gap.
9
Section 1392(a), originally 11 Stat. 272, affords some relief in a very small class of cases that fall in the gap described in n. 8, supra. When multiple defendants reside in different districts within the same State, the suit may be brought in any one of them.
10
Section 1391(c), enacted 62 Stat. 935 (1948), provides: 'A corporation may be sued in any judicial district in which it is incorporated or licensed to or business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.'
11
See supra, at 709—710.
12
See Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561, 564—565, 62 S.Ct. 780, 781—782, 86 L.Ed. 1026 (1942); conflicting decisions collected at 29 Cong.Rec. 1901 (1897).
13
Venue in a federal-question case was at that time proper only where the defendant was an inhabitant, 24 Stat. 552 (1887), as corrected, 25 Stat. 434 (1888). Thus the new statute gave patent claimants an advantage by authorizing as an additional venue alternative any district where the defendant maintained a regular place of business, and committed acts of infringement. Ironically, changes in the general venue law have left the patent venue statute far behind. Since 1948, the general venue law has authorized suit against a corporate defendant not only where he maintains a 'regular and established place of business,' as in § 1400(b), but also where he is 'doing business.' 62 Stat. 935, now § 1391(c). And since 1966, the general venue law has authorized suit where 'the claim arose,' see n. 8, supra.
14
See 29 Cong.Rec. 1901 (remarks of Cong. Payne).
| 78
|
406 U.S. 598
92 S.Ct. 1932
32 L.Ed.2d 352
Robert B. CARLESON et al., Appellants,v.Nancy REMILLARD, etc., et al.
No. 70—250.
Argued April 10, 1972.
Decided June 7, 1972.
Syllabus
This is a class action for injunctive and declaratory relief by a child and mother whose husband is away from home on military duty, challenging the validity of California's Department of Social Welfare Regulation EAS § 42—350.11, pursuant to which they had been denied Aid to Families With Dependent Children (AFDC) benefits. Though California incorporates in its AFDC eligibility provisions the 'continued absence' concept of the Social Security Act, under which a dependent child 'deprived of parental support . . . by reason of (a parent's) continued absence from the home,' is deemed eligible for AFDC benefits, EAS § 42—350.11 excludes absence because of military service from the definition of 'continued absence.' The District Court granted the relief sought. Held: Section 402(a)(10) of the Social Security Act imposes on each State participating in the AFDC program the requirement that benefits 'shall be furnished with reasonable promptness to all eligible individuals.' Under the Act the eligibility criterion of 'continued absence' of a parent from the home means that the parent may be absent for any reason. Consequently, that criterion applies to one who is absent by reason of military service, and California's definition is invalid under the Supremacy Clause. Pp. 600—604.
325 F.Supp. 1272, affirmed.
Jay S. Linderman, San Francisco, Cal., for appellants.
Carmen L. Massey, Richmond, Cal., for appellees, pro hac vice, by special leave of Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellees are mother and child. The husband enlisted in the United States Army and served in Vietnam. The mother applied for Aid to Families With Dependent Children (AFDC) benefits at a time when the amount of the monthly allotment she received by virtue of her husband's military service was less than her 'need' as computed by the California agency and less than the monthly AFDC grant an adult with one child receives in California. She was denied relief. Although the Social Security Act, 42 U.S.C. §§ 301 1394, grants aid to families with 'dependent children,' and includes in the term 'dependent child' one 'who has been deprived of parental support or care by reason of . . . continued absence from the home,' 42 U.S.C. § 606(a), California construed 'continued absence' as not including military absence. It is unquestioned that her child is in fact 'needy.'
2
When the husband's allotment check was stopped, appellee again applied for AFDC benefits. She again was denied the benefits, this time because California had adopted a regulation1 which specifically prohibited the payment of AFDC benefits to needy families where the absence of a parent was due to military service.
3
This action is a class action seeking a declaration of the invalidity of the regulation and an injunction restraining its enforcement on the ground that it conflicts with the Social Security Act and denies appellees the Fourteenth Amendment rights of due process and equal protection.
4
A three-judge District Court was convened and by a divided vote granted the relief sought. 325 F.Supp. 1272. The case is here by appeal. 28 U.S.C. §§ 1253, 2101(b). We noted prohable jurisdiction, 404 U.S. 1013, 92 S.Ct. 670, 30 L.Ed.2d 660.
5
Section 402(a)(10) of the Social Security Act, 42 U.S.C. § 602(a)(10), places on each State participating in the AFDC program the requirement that 'aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.' 'Eligibility,' so defined, must be measured by federal standards. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118. There, we were faced with an Alabama regulation which defined a mother's paramour as a 'parent' for § 606(a)(1) purposes, thus permitting the State to deny AFDC benefits to needy dependent children on the theory that there was no parent who was continually absent from the home. We held that Congress had defined 'parent' as a breadwinner who was legally obligated to support his children, and that Alabama was precluded from altering that federal standard. The importance of our holding was stressed in Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed. 448:
6
'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.' (Emphasis supplied.)
7
In Townsend, we also expressly disapproved the Department of Health, Education, and Welfare HEW policy which permitted States to vary eligibility requirements from the federal standards without express or clearly implied congressional authorization. Ibid.
8
Townsend involved § 406(a)(2)(B) of the Act, 42 U.S.C. § 606(a)(2)(B), which includes in the definition of 'dependent children' those 'under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary (of HEW)) 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.' Illinois had defined AFDC eligible dependent children to include 18—20-year-old high school or vocational school children but not children of the same age group attending college. We held that § 606(a)(2)(B) precluded that classification because it varied from the federal standard for needy dependent children. Involved in the present controversy is another eligibility criterion for federal matching funds set forth in the Act, namely the 'continued absence' of a parent from the home. If California's definition conflicts with the federal criterion then it, too, is invalid under the Supremacy Clause.
9
HEW's regulations for federal matching funds provide2 that:
10
'Continued absence of the parent from the home constitutes the reason for deprivation of parental support or care when the parent is out of the home, the nature of the absence is such as either to interrupt or to terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child, and the known or indefinite duration of the absence precludes counting on the parent's performance of his function in planning for the present support or care of the child. If these conditions exist, the parent may be absent for any reason, and he may have left only recently or some time previously.'
11
The Solicitor General advises us that although HEW reads the term 'continued absence' to permit the payment of federal matching funds to families where the parental absence is due to military service, it has approved state plans under which families in this category are not eligible for AFDC benefits.3 HEW has included 'service in the armed forces or other military service' as an example of a situation falling under the above definition of 'continued absence.' HEW Handbook of Public Assistance Administration, pt. IV, § 3422.2.
12
Our difficulty with that position is that 'continued absence from the home' accurately describes a parent on active military duty. The House Report speaks of children 'in families lacking a father's support,' H.R.Rep.No.615, 74th Cong., 1st Sess., 10, and the Senate Report refers to 'children in families which have been deprived of a father's support.' S.Rep.No.628, 74th Cong., 1st Sess., 17. While the Senate Report noted that '(t)hese are principally families with female heads who are widowed, divorced, or deserted,' ibid., it was not stated or implied that eligibility by virtue of a parent's 'continued absence' was limited to cases of divorce or desertion.
13
We agree that 'continued absence' connotes, as HEW says, that 'the parent may be absent for any reason.' We search the Act in vain, moreover, for any authority to make 'continued absence' into an accordion-like concept, applicable to some parents because of 'continued absence' but not to others.
14
The presence in the home of the parent who has the legal obligation to support is the key to the AFDC program, King v. Smith, 392 U.S., at 327, 88 S.Ct. at 2138; Lewis v. Martin, 397 U.S. 552, 559, 90 S.Ct. 1282, 1285, 25 L.Ed.2d 561. Congress looked to 'work relief' programs and 'the revival of private industry' to help the parent find the work needed to support the family. S.Rep.No.628, supra, at 17, and the AFDC program was designed to meet a need unmet by depression-era programs aimed at providing work for breadwinners. King v. Smith, supra, 392 U.S. at 328, 88 S.Ct. at 2139. That need was the protection of children in homes without such a breadwinner. Ibid. It is clear that 'military orphans' are in this category, for, as stated by the Supreme Court of Washington, a man in the military service.
15
'has little control over his family's economic destiny. He has no labor union or other agency to look to as a means of persuading his employer to pay him a living wage. He is without access to collective bargaining or any negotiating forum or other means of economic persuasion, or even the informal but concerted support of his fellow employees. He cannot quit his job and seek a better paying one . . . (T)here is no action he could lawfully take to make his earnings adequate while putting in full time on his job. His was a kind of involuntary employment where legally he could do virtually nothing to improve the economic welfare of his family.c Kennedy v. Dept. of Public Assistance, 79 Wash.2d 728, 732—733, 489 P.2d 154, 157.
16
Stoddard v. Fisher, D.C., 330 F.Supp. 566, held a Maine regulation invalid under the Supremacy Clause which denied AFDC aid where the father was continually absent because of his military service. Judge Coffin said:
17
'We cannot help but note the irony of a result which would deny assistance to the family of a man who finds that family disqualified from receiving AFDC on the ground that he has removed himself from the possibility of receiving public work relief by voluntarily undertaking, for inadequate compensation, the defense of his country.' Id., at 571 n. 8.
18
We cannot assume here, anymore than we could in King v. Smith, supra, that while Congress 'intended to provide programs for the economic security and protection of all children,' it also 'intended arbitrarily to leave one class of destitute children entirely without meaningful protection.' 392 U.S., at 330, 88 S.Ct. at 2140. We are especially confident Congress could not have designed an Act leaving uncared for an entire class who became 'needy children' because their fathers were in the Armed Services defending their country.
19
We hold that there is no congressional authorization for States to exclude these so-called military orphans from AFDC benefits. Accordingly we affirm the judgment of the three-judge court.
20
Affirmed.
21
Mr. Chief Justice BURGER, concurring.
22
I join in the opinion and judgment of the Court, but on the assumption, not expressly articulated in the opinion, that a State may administratively deduct from its total 'need payment' such amount as is being paid to the dependents under the military allotment system. It would be curious, indeed, if two 'pockets' of the same government would be required to make duplicating payments for welfare.
23
The administrative procedures to give effect to this process may be cumbersome, but the right of the State to avoid overlapping benefits for support should be clearly understood.
1
Calif.Dept.Soc.Welfare Reg. EAS § 42—350.11 provides that 'continued absence' does not exist:
'When one parent is physically absent from the home on a temporary basis. Examples are visits, trips made in connection with current or prospective employment, active duty in the Armed Services.'
2
45 CFR § 233.90(c)(1)(iii).
3
The present record reveals that 22 States and the District of Columbia do furnish AFDC benefits to needy families of servicemen, while 19 States and Puerto Rico do not.
| 12
|
407 U.S. 203
92 S.Ct. 1951
32 L.Ed.2d 659
Ivan V.v.CITY OF NEW YORK.
No. 71—6425.
Decided June 12, 1972.
PER CURIAM.
1
The Court held in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, decided March 31, 1970, that proof beyond a reasonable doubt is among the essentials of due process and fair treatment that must be afforded at the adjudicatory stage when a juvenile is charged with an act that would constitute a crime if committed by an adult. In this case, on January 6, 1970, before Winship was decided, petitioner was adjudged a delinquent in the Family Court of Bronx County, New York, on a finding, based on the preponderance-of-evidence standard, that, at knifepoint, he forcibly took a bicycle from another boy, an act that, if done by an adult, would constitute the crime of robbery in the first degree. On direct appeal, the Appellate Division, First Department, reversed on the ground that Winship should be retroactively applied to all cases still in the appellate process, 35 A.D.2d 806, 316 N.Y.S.2d 568 (1970). The New York Court of Appeals reversed the Appellate Division, holding that Winship was not to be applied retroactively, V. v. City of New York, 29 N.Y.2d 583, 324 N.Y.S.2d 313, 272 N.E.2d 895 (1971).* On remand, the Appellate Division thereupon affirmed the delinquency adjudication, 37 A.D.2d 822, 324 N.Y.S.2d 934 (1971), and the Court of Appeals denied leave to appeal from that affirmance, 29 N.Y.2d 489, 328 N.Y.S.2d 1026, 278 N.E.2d 655 (1972). We disagree with the holding of the Court of Appeals that Winship is not to be applied retroactively.
2
'Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.' Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971). See Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 918, 31 L.Ed.2d 202 (1972); Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968).
3
Winship expressly held that the reasonable-doubt standard 'is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law' . . . 'Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.' To this end, the reasonable-doubt standard is indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue." 397 U.S., at 363—364, 90 S.Ct., at 1072.
4
Plainly, then, the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Appellate Division of the Supreme Court of New York, First Judicial Department, is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
5
It is so ordered.
6
Judgment of the Appellate Division reversed and case remanded.
7
The CHIEF JUSTICE took no part in the consideration or decision of this case.
*
The Court of Appeals followed Matter of D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627 (1970), where Winship was said not to be retroactive but that even if it were, appellant there had waived the claim when he entered a guilty plea to the charges. In that circumstance this Court dismissed an appeal and denied certiorari in that case. D. v. County of Onandaga, 403 U.S. 926, 91 S.Ct. 2244, 29 L.Ed.2d 705 (1971).
| 01
|
407 U.S. 25
92 S.Ct. 2006
32 L.Ed.2d 530
Jon Richard ARGERSINGER, Petitioner,v.Raymond HAMLIN, Sheriff, Leon County, Florida.
No. 70—5015.
Argued Dec. 6, 1971.
Reargued Feb. 28, 1972.
Decided June 12, 1972.
Syllabus
The right of an indigent defendant in a criminal trial to the assistance of counsel, which is guaranteed by the Sixth Amendment as made applicable to the States by the Fourteenth, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, is not governed by the classification of the offense or by whether or not a jury trial is required. No accused may be deprived of his liberty as the result of any criminal prosecution, whether felony or misdemeanor, in which he was denied the assistance of counsel. In this case, the Supreme Court of Florida erred in holding that petitioner, an indigent who was tried for an offense punishable by imprisonment up to six months, a $1,000 fine, or both, and given a 90-day jail sentence, had no right to court-appointed counsel, on the ground that the right extends only to trials 'for non-petty offenses punishable by more than six months imprisonment.' Pp. 27 40.
236 So.2d 442, reversed.
J. Michael Shea, Tampa, Fla., for petitioner pro hac vice, by special leave of Court.
Bruce S. Rogow, Coral Gables, Fla., for the petitioner.
Sol. Gen. Erwin N. Griswold, for the United States, as amicus curiae, by special leave of Court.
George R. Georgieff, Tallahassee, Fla., for respondent.
[amici curiae information on Page 26 intentionally omitted]
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, and indigent, was charged in Florida with carrying a concealed weapon, an offense punishable by imprisonment up to six months, a $1,000 fine, or both. The trial was to a judge, and petitioner was unrepresented by counsel. He was sentenced to serve 90 days in jail, and brought this habeas corpus action in the Florida Supreme Court, alleging that, being deprived of his right to counsel, he was unable as an indigent layman properly to raise and present to the trial court good and sufficient defenses to the charge for which he stands convicted. The Florida Supreme Court by a four-to-three decision, in ruling on the right to counsel, followed the line we marked out in Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491, as respects the right to trial by jury and held that the right to court-appointed counsel extends only to trials 'for non-petty offenses punishable by more than six months imprisonment.' 236 So.2d 442, 443.1
2
The case is here on a petition for certiorari, which we granted. 401 U.S. 908, 91 S.Ct. 887, 27 L.Ed.2d 805. We reverse.
3
The Sixth Amendment, which in enumerated situations has been made applicable to the States by reason of the Fourteenth Amendment (see Duncan v. Louisiana, supra; Washington v. Texas, 388 U.s. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019; Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; and In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682), provides specified standards for 'all criminal prosecutions.' One is the requirement of a 'public trial.' In re Oliver, supra, held that the right to a 'public trial' was applicable to a state proceeding even though only a 60-day sentence was involved. 333 U.S., at 272, 68 S.Ct., at 507.
4
Another guarantee is the right to be informed of the nature and cause of the accusation. Still another, the right of confrontation. Pointer v. Texas, supra. And another, compulsory process for obtaining witnesses in one's favor. Washington v. Texas, supra. We have never limited these rights to felonies or to lesser but serious offenses.
5
In Washington v. Texas, supra, we said, 'We have held that due process requires that the accused have the assistance of counsel for his defense, that he be confronted with the witnesses against him, and that he have the right to a speedy and public trial.' 388 U.S., at 18, 87 S.Ct., at 1922. Respecting the right to a speedy and public trial, the right to be informed of the nature and cause of the accusation, the right to confront and cross-examine witnesses, the right to compulsory process for obtaining witnesses, it was recently stated, 'It is simply not arguable, nor has any court ever held, that the trial of a petty offense may be held in secret, or without notice to the accused of the charges, or that in such cases the defendant has no right to confront his accusers or to compel the attendance of witnesses in his own behalf.' Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash.L.Rev. 685, 705 (1968).
6
District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843, illustrates the point. There, the offense was engaging without a license in the business of dealing in second-hand property, an offense punishable by a fine of $300 or imprisonment for not more than 90 days. The Court held that the offense was a 'petty' one and could be tried without a jury. But the conviction was reversed and a new trial ordered, because the trial court had prejudicially restricted the right of cross-examination, a right guaranteed by the Sixth Amendment.
7
The right to trial by jury, also guaranteed by the Sixth Amendment by reason of the Fourteenth, was limited by Duncan v. Louisiana, supra, to trials where the potential punishment was imprisonment for six months or more. But, as the various opinions in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, make plain, the right to trial by jury has a different genealogy and is brigaded with a system of trial to a judge alone. As stated in Duncan:
8
'Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.' 391 U.S., at 156, 88 S.Ct., at 1451.
9
While there is historical support for limiting the 'deep commitment' to trial by jury to 'serious criminal cases,'2 there is no such support for a similar limitation on the right to assistance of counsel:
10
'Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest. At the same time parties in civil cases and persons accused of misdemeanors were entitled to the full assistance of counsel. . . .
11
'(It) appears that in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes . . ..' Powell v. Alabama, 287 U.S. 45, 60, 64—65, 53 S.Ct. 55, 61, 77 L.Ed. 158.
12
The Sixth Amendment thus extended the right to counsel beyond its common-law dimensions. But there is nothing in the language of the Amendment, its history, or in the decisions of this Court, to indicate that it was intended to embody a retraction of the right in petty offenses wherein the common law previously did require that counsel be provided. See James v. Headley, 5 Cir., 410 F.2d 325, 331—332 n. 9.
13
We reject, therefore, the premise that since prosecutions for crimes punishable by imprisonment for less than six months may be tried without a jury, they may also be tried without a lawyer.
14
The assistance of counsel is often a requisite to the very existence of a fair trial. The Court in Powell v. Alabama, supra, 287 U.S., at 68—69, 53 S.Ct., at 64—a capital case—said:
15
'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.'
16
In Gideon v. Wainwright, supra (overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595), we dealt with a felony trial. But we did not so limit the need of the accused for a lawyer. We said:
17
'(I)n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.' 372 U.S., at 344, 83 S.Ct., at 796.3
18
Both Powell and Gideon involved felonies. But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty. Powell and Gideon suggest that there are certain fundamental rights applicable to all such criminal prosecutions, even those, such as In re Oliver, supra, where the penalty is 60 days' imprisonment:
19
'A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.' 333 U.S., at 273, 68 S.Ct., at 507 (emphasis supplied).
20
The requirement of counsel may well be necessary for a fair trial even in a petty-offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more. See, e.g., Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254; Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176.
21
The trial of vagrancy cases is illustrative. While only brief sentences of imprisonment may be imposed, the cases often bristle with thorny constitutional questions. See Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110.
22
In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, dealt with juvenile delinquency and an offense which, if committed by an adult, would have carried a fine of $5 to $50 or imprisonment in jail for not more than two months (id., at 29, 87 S.Ct., at 1444), but which when committed by a juvenile might lead to his detention in a state institution until he reached the age of 21. Id., at 36 37, 87 S.Ct., at 1448—1449. We said (id., at 36, 87 S.Ct., at 1448) that '(t)he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child 'requires the guiding hand of counsel at every step in the proceedings against him," citing Powell v. Alabama, supra, 287 U.S., at 69, 53 S.Ct., at 64. The premise of Gault is that even in prosecutions for offenses less serious than felonies, a fair trial may require the presence of a lawyer.
23
Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.
24
In addition, the volume of misdemeanor cases,4 far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result. The Report by the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 128 (1967), states:
25
'For example, until legislation last year increased the number of judges, the District of Columbia Court of General Sessions had four judges to process the preliminary stages of more than 1,500 felony cases, 7,500 serious misdemeanor cases, and 38,000 petty offenses and an equal number of traffic offenses per year. An inevitable consequence of volume that large is the almost total preoccupation in such a court with the movement of cases. The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudiciation. Inadequate attention tends to be given to the individual defendant, whether in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction. The frequent result is futility and failure. As Dean Edward Barrett recently observed:
26
"Wherever the visitor looks at the system, he finds great numbers of defendants being processed by harassed and overworked officials. Police have more cases than they can investigate. Prosecutors walk into courtrooms to try simple cases as they take their initial looks at the files. Defense lawyers appear having had no more than time for hasty conversations with their clients. Judges face long calendars with the certain knowledge that their calendars tomorrow and the next day will be, if anything longer, and so there is no choice but to dispose of the cases.
27
"Suddenly it becomes clear that for most defendants in the criminal process, there is scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way. The gap between the theory and the reality is enormous.
28
"Very little such observation of the administration of criminal justice in operation is required to reach the conclusion that it suffers from basic ills."
29
That picture is seen in almost every report. 'The misdemeanor trial is characterized by insufficient and frequently irresponsible preparation on the part of the defense, the prosecution, and the court. Everything is rush, rush.' Hellerstein, The Importance of the Misdemeanor Case on Trial and Appeal, 28 The Legal Aid Brief Case 151, 152 (1970).
30
There is evidence of the prejudice which results to misdemeanor defendants from this 'assembly-line justice.' One study concluded that '(m)isdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel.' American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report 1 (1970).
31
We must conclude, therefore, that the problems associated with misdemeanor and petty5 offenses often require the presence of counsel to insure the accused a fair trial. Mr. Justice POWELL suggests that these problems are raised even in situations where there is no prospect of imprisonment. Post, at 48. We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail. And, as we said in Baldwin v. New York, 399 U.S., at 73, 90 S.Ct., at 1890, 'the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or 'petty' matter and may well result in quite serious repercussions affecting his career and his reputation.'6
32
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.7
33
That is the view of the Supreme Court of Oregon, with which we agree. It said in Stevenson v. Holzman, 254 Or. 94, 102, 458 P.2d 414, 418:
34
'We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances. The denial of the assistance of counsel will preclude the imposition of a jail sentence.'8
35
We do not sit as an ombudsman to direct state courts how to manage their affairs but only to make clear the federal constitutional requirement. How crimes should be classified is largely a state matter.9 The fact that traffic charges technically fall within the category of 'criminal prosecutions' does not necessarily mean that many of them will be brought into the class10 where imprisonment actually occurs.
36
The American Bar Association Project on Standards for Criminal Justice states:
37
'As a matter of sound judicial administration it is preferable to disregard the characterization of the offense as felony, misdemeanor or traffic offense. Nor is it adequate to require the provisionof defense services for all offenses which carry a sentence to jail or prison. Often, as a practical matter, such sentences are rarely if ever imposed for certain types of offenses, so that for all intents and purposes the punishment they carry is at most a fine. Thus, the standard seeks to distinguish those classes of cases in which there is real likelihood that incarceration may follow conviction from those types in which there is no such likelihood. It should be noted that the standard does not recommend a determination of the need for counsel in terms of the facts of each particular case; it draws a categorical line at those types of offenses for which incarceration as a punishment is a practical possibility.' Providing Defense Services 40 (Approved Draft 1968).
38
Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
39
The run of misdemeanors will not be affected by today's ruling. But in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit of 'the guiding hand of counsel' so necessary when one's liberty is in jeopardy.
40
Reversed.
41
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice STEWART join, concurring.
42
I join the opinion of the Court and add only an observation upon its discussion of legal resources, ante at 37 n. 7. Law students as well as practicing attorneys may provide an important source of legal representation for the indigent. The Council on Legal Education for Professional Responsibility (CLEPR) informs us that more than 125 of the country's 147 accredited law schools have established clinical programs in which facultysupervised students aid clients in a variety of civil and criminal matters.* CLEPR Newsletter, May 1972, p. 2. These programs supplement practice rules enacted in 38 States authorizing students to practice law under prescribed conditions. Ibid. Like the American Bar Association's Model Student Practice Rule (1969), most of these regulations permit students to make supervised court appearances as defense counsel in criminal cases. CLEPR, State Rules Permitting the Student Practice of Law: Comparisons and Comments 13 (1971). Given the huge increase in law school enrollments over the past few years, see Ruud, That Burgeoning Law School Enrollment, 58 A.B.A.J. 146 (1972), I think it plain that law students can be expected to make a significant contribution, quantitatively and qualitatively, to the representation of the poor in many areas, including cases reached by today's decision.
43
Mr. Chief Justice BURGER, concurring in the result.
44
I agree with much of the analysis in the opinion of the Court and with Mr. Justice POWELL's appraisal of the problems. Were I able to confine my focus solely to the burden that the States will have to bear in providing counsel, I would be inclined, at this stage of the development of the constitutional right to counsel, to conclude that there is much to commend drawing the line at penalties in excess of six months' confinement. Yet several cogent factors suggest the infirmities in any approach that allows confinement for any period without the aid of counsel at trial; any deprivation of liberty is a serious matter. The issues that must be dealt with in a trial for a petty offense or a misdemeanor may often be simpler than those involved in a felony trial and yet be beyond the capability of a layman, especially when he is opposed by a law-trained prosecutor. There is little ground, therefore, to assume that a defendant, unaided by counsel, will be any more able adequately to defend himself against the lesser charges that may involve confinement than more serious charges. Appeal from a conviction after an uncounseled trial is not likely to be of much help to a defendant since the die is usually case when judgment is entered on an uncounseled trial record.
45
Trial judges sitting in petty and misdemeanor cases—and prosecutors—should recognize exactly what will be required by today's decision. Because no individual can be imprisoned unless he is represented by counsel, the trial judge and the prosecutor will have to engage in a predictive evaluation of each case to determine whether there is a significant likelihood that, if the defendant is convicted, the trial judge will sentence him to a jail term. The judge can preserve the option of a jail sentence only by offering counsel to any defendant unable to retain counsel on his own. This need to predict will place a new load on courts already overburdened and already compelled to deal with far more cases in one day than is reasonable and proper. Yet the prediction is not one beyond the capacity of an experienced judge, aided as he should be by the prosecuting officer. As to jury cases, the latter should be prepared to inform the judge as to any prior record of the accused, the general nature of the case against the accused, including any use of violence, the severity of harm to the victim, the impact on the community, and the other factors relevant to the sentencing process. Since the judge ought to have some degree of such information after judgment of guilt is determined, ways can be found in the more serious misdemeanor cases when jury trial is not waived to make it available to the judge before trial.* This will not mean a full 'presentence' report on every defendant in every case before the jury passes on guilt, but a prosecutor should know before trial whether he intends to urge a jail sentence, and if he does he should be prepared to aid the court with the factual and legal basis for his view on that score.
46
This will mean not only that more defense counse must be provided, but also additional prosecutors and better facilities for securing information about the accused as it bears on the probability of a decision to confine.
47
The step we take today should cause no surprise to the legal profession. More than five years ago the profession, speaking through the American Bar Association in a Report on Standards Relating to Providing Defense Services, determined that society's goal should be 'that the system for providing counsel and facilities for the defense be as good as the system which society provides for the prosecution.' American Bar Association Project on Standards for Criminal Justice, Providing Defense Services 1 (Approved Draft 1968). The ABA was not addressing itself, as we must in this case, to the constitutional requirement but only to the broad policy issue. Elsewhere in the Report the ABA stated that:
48
'The fundamental premise of these standards is that representation by counsel is desirable in criminal cases both from the viewpoint of the defendant and of society.' Id., at 3.
49
After considering the same general factors involved in the issue we decide today, the ABA Report specifically concluded that:
50
'Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise.' Id., § 4.1, pp. 37—38.
51
In a companion ABA Report on Standards Relating to the Prosecution Function and the Defense Function the same basic theme appears in the positive standard cast in these terms:
52
'Counsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the accused.' Id., at 153 (Approved Draft 1968).
53
The right to counsel has historically been an evolving concept. The constitutional requirements with respect to the issue have dated in recent times from Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Part of this evolution has been expressed in the policy prescriptions of the legal profession itself, and the contributions of the organized bar and individual lawyers—such as those appointed to represent the indigent defendants in the Powell and Gideon cases—have been notable. The holding of the Court today may well add large new burdens on a profession already overtaxed, but the dynamics of the profession have a way of rising to the burdens placed on it.
54
Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins, concurring in the result.
55
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), held that the States were required by the Due Process Clause of the Fourteenth Amendment to furnish counsel to all indigent defendants charged with felonies.1 The question before us today is whether an indigent defendant convicted of an offense carrying a maximum punishment of six months' imprisonment, a fine of $1,000, or both, and sentenced to 90 days in jail, is entitled as a matter of constitutional right to the assistance of appointd counsel. The broader question is whether the Due Process Clause requires that an indigent charged with a state petty offense2 be afforded the right to appointed counsel.
56
In the case under review, the Supreme Court of Florida agreed that indigents charged with serious misdemeanors were entitled to appointed counsel, but, by a vote of four to three, it limited that right to offenses punishable by more than six months' imprisonment.3 The state court, in drawing a six-month line, followed the lead of this Court in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and in the subsequent case of Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), which was decided shortly after the opinion below, in which the Court held that the due process right to a trial by jury in state criminal cases was limited to cases in which the offense charged was punishable by more than six months' imprisonment. It is clear that whenever the right-to-counsel line is to be drawn, it must be drawn so that an indigent has a right to appointed counsel in all cases in which there is a due process right to a jury trial. An unskilled layman may be able to defend himself in a nonjury trial before a judge experienced in piecing together unassembled facts, but before a jury the guiding hand of counsel is needed to marshal the evidence into a coherent whole consistent with the best case on behalf of the defendant. If there is no accompanying right to counsel, the right to trial by jury becomes meaningless.
57
Limiting the right to jury trial to cases in which the offense charged is punishable by more than six months' imprisonment does not compel the conclusion that the indigent's right to appointed counsel must be similarly restricted. The Court's opinions in Duncan, Baldwin, and District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937), reveal that the jury-trial limitation has historic origins at common law. No such history exists to support a similar limitation of the right to counsel; to the contrary, at common law, the right to counsel was available in misdemeanor but not in felony cases.4 Only as recently as Gideon has an indigent in a state trial had a right to appointed counsel in felony cases. Moreover, the interest protected by the right to have guilt or innocence determined by a jury—tempering the possibly arbitrary and harsh exercise of prosecutorial and judicial power5—while important, is not as fundamental to the guarantee of a fair trial as is the right to counsel.6
58
I am unable to agree with the Supreme Court of Florida that an indigent defendant, charged with a petty offense, may in every case be afforded a fair trial without the assistance of counsel. Nor can I agree with the new rule of due process, today enunciated by the Court, that 'absent a knowing and intelligent waiver, no person may be imprisoned . . . unless he was represented by counsel at his trial.' Ante, at 37. It seems to me that the line should not be drawn with such rigidity.
59
There is a middle course, between the extremes of Florida's six-month rule and the Court's rule, which comports with the requirements of the Fourteenth Amendment. I would adhere to the principle of due process that requires fundamental fairness in criminal trials, a principle which I believe encompasses the right to counsel in petty cases whenever the assistance of counsel is necessary to assure a fair trial.
60
* I am in accord with the Court that an indigent accused's need for the assistance of counsel does not mysteriously evaporate when he is charged with an offense punishable by six months or less. In Powell v. Alabama7 and Gideon,8 both of which involved felony prosecutions, this Court noted that few laymen can present adequately their own cases, much less identify and argue relevant legal questions. Many petty offenses will also present complex legal and factual issues that may not be fairly tried if the defendant is not assisted by counsel. Even in relatively simple cases, some defendants, because of ignorance or some other handicap, will be incapable of defending themselves. The consequences of a misdemeanor conviction, whether they be a brief period served under the sometimes deplorable conditions found in local jails or the effect of a criminal record on employability, are frequently of sufficient magnitude not to be casually dismissed by the label 'petty.'9
61
Serious consequences also may result from convictions not punishable by imprisonment. Stigma may attach to a drunken-driving conviction or a hit-and-run escapade.10 Losing one's driver's license is more serious for some individuals than a brief stay in jail. In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), we said:
62
'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.' Id., at 539, 91 S.Ct., at 1589.
63
When the deprivation of property rights and interest is of sufficient consequence,11 denying the assistance of counsel to indigents who are incapable of defending themselves is a denial of due process.
64
This is not to say that due process requires the appointment of counsel in all petty cases, or that assessment of the possible consequences of conviction is the sole test for the need for assistance of counsel. The flat six-month rule of the Florida court and the equally inflexible rule of the majority opinion apply to all cases within their defined areas regardless of circumstances. It is precisely because of this mechanistic application that I find these alternatives unsatisfactory. Due process, perhaps the most fundamental concept in our law, embodies principles of fairness rather than immutable line drawing as to every aspect of a criminal trial. While counsel is often essential to a fair trial, this is by no means a universal fact. Some petty offense cases are complex; others are exceedingly simple. As a justification for furnishing counsel to indigents accused of felonies, this Court noted, '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.'12 Yet government often does not hire lawyers to prosecute petty offenses; instead the arresting police officer presents the case. Nor does every defendant who can afford to do so hire lawyers to defend petty charges. Where the possibility of a jail sentence is remote and the probable fine seems small, or where the evidence of guilt is overwhelming, the costs of assistance of counsel may exceed the benefits.13 It is anomalous that the Court's opinion today will extend the right of appointed counsel to indigent defendants in cases where the right to counsel would rarely be exercised by nonindigent defendants.
65
Indeed, one of the effects of this ruling will be to favor defendants classified as indigents over those not so classified, yet who are in low-income groups where engaging counsel in a minor petty-offense case would be a luxury the family could not afford. The line between indigency and assumed capacity to pay for counsel is necessarily somewhat arbitrary, drawn differently from State to State and often resulting in serious inequities to accused persons. The Court's new rule will accent the disadvantage of being barely self-sufficient economically.
66
A survey of state courts in which misdemeanors are tried showed that procedures were often informal, presided over by lay judges. Jury trials were rare, and the prosecution was not vigorous.14 It is as inaccurate to say that no defendant can obtain a fair trial without the assistance of counsel in such courts as it is to say that no defendant needs the assistance of counsel if the offense charged is only a petty one.15
67
Despite its overbreadth, the easiest solution would be a prophylactic rule that would require the appointment of counsel to indigents in all criminal cases. The simplicity of such a rule is appealing because it could be applied automatically in every case, but the price of pursuing this easy course could be high indeed in terms of its adverse impact on the administration of the criminal justice systems of 50 States. This is apparent when one reflects on the wide variety of petty or misdemeanor offenses, the varying definitions thereof, and the diversity of penalties prescribed. The potential impact on state court systems is also apparent in view of the variations in types of courts and their jurisdictions, ranging from justices of the peace and part-time judges in the small communities to the elaborately staffed police courts which operate 24 hours a day in the great metropolitan centers.
68
The rule adopted today does not go all the way. It is limited to petty-offense cases in which the sentence is some imprisonment. The thrust of the Court's position indicates, however, that when the decision must be made, the rule will be extended to all petty-offense cases except perhaps the most minor traffic violations. If the Court rejects on constitutional grounds, as it has today, the exercise of any judicial discretion as to need for counsel if a jail sentence is imposed, one must assume a similar rejection of discretion in other petty-offense cases. It would be illogical—and without discernible support in the Constitution—to hold that no discretion may ever be exercised where a nominal jail sentence is contemplated and at the same time endorse the legitimacy of discretion in 'non-jail' petty-offense cases which may result in far more serious consequences than a few hours or days of incarceration.
69
The Fifth and Fourteenth Amendments guarantee that property, as well as life and liberty, may not be taken from a person without affording him due process of law. The majority opinion suggests no constitutional basis for distinguishing between deprivations of liberty and property. In fact, the majority suggests no reason at all for drawing this distinction. The logic it advances for extending the right to counsel to all cases in which the penalty of any imprisonment is imposed applies equally well to cases in which other penalties may be imposed. Nor does the majority deny that some 'non-jail' penalties are more serious than brief jail sentences.
70
Thus, although the new rule is extended today only to the imprisonment category of cases, the Court's opinion foreshadows the adoption of a broad prophylactic rule applicable to all petty offenses. No one can foresee the consequences of such a drastic enlargement of the constitutional right to free counsel. But even today's decision could have a seriously adverse impact upon the day-to-day functioning of the criminal justice system. We should be slow to fashion a new constitutional rule with consequences of such unknown dimensions, especially since it is supported neither by history nor precedent.
II
71
The majority opinion concludes that, absent a valid waiver, a person may not be imprisoned even for lesser offenses unless he was represented by counsel at the trial. In simplest terms this means that under no circumstances, in any court in the land, may anyone be imprisoned—however briefly—unless he was represented by, or waived his right to, counsel. The opinion is disquietingly barren of details as to how this rule will be implemented.
72
There are thousands of statutes and ordinances which authorize imprisonment for six months or less, usually as an alternative to a fine. These offenses include some of the most trivial of misdemeanors, ranging from spitting on the sidewalk to certain traffic offenses. They also include a variety of more serious misdemeanors. This broad spectrum of petty-offense cases daily floods the lower criminal courts. The rule laid down today will confront the judges of each of these courts with an awkward dilemma. If counsel is not appointed or knowingly waived, no sentence of imprisonment for any duration may be imposed. The judge will therefore be forced to decide in advance of trial—and without hearing the evidence—whether he will forgo entirely his judicial discretion to impose some sentence of imprisonment and abandon his responsibility to consider the full range of punishments established by the legislature. His alternatives, assuming the availability of counsel, will be to appoint counsel and retain the discretion vested in him by law, or to abandon this discretion in advance and proceed without counsel.
73
If the latter course is followed, the first victim of the new rule is likely to be the concept that justice requires a personalized decision both as to guilt and the sentence. The notion that sentencing should be tailored to fit the crime and the individual would have to be abandoned in many categories of offenses. In resolving the dilemma as to how to administer the new rule, judges will be tempted arbitrarily to divide petty offenses into two categories—those for which sentences of imprisonment may be imposed and those in which no such sentence will be given regardless of the statutory authorization. In creating categories of offenses which by law are imprisonable but for which he would not impose jail sentences, a judge will be overruling de facto the legislative determination as to the appropriate range of punishment for the particular offense. It is true, as the majority notes, that there are some classes of imprisonable offenses for which imprisonment is rarely imposed. But even in these, the occasional imposition of such a sentence may serve a valuable deterrent purpose. At least the legislatures, and until today the courts, have viewed the threat of imprisonment—even when rarely carried out—as serving a legitimate social function.
74
In the brief for the United States as amicus curiae, the Solicitor General suggested that some flexibility could be preserved through the technique of trial de novo if the evidence contrary to pretrial assumptions—justified a jail sentence. Presumably a mistrial would be declared, counsel appointed, and a new trial ordered. But the Solicitor General also recognized that a second trial, even with counsel, might be unfair if the prosecutor could make use of evidence which came out at the first trial when the accused was uncounseled. If the second trial were held before the same judge, he might no longer be open-minded. Finally, a second trial held for no other reason than to afford the judge an opportunity to impose a harsher sentence might run afoul of the guarantee against being twice placed in jeopardy for the same offense.16 In all likelihood, there will be no second trial and certain offenses classified by legislatures as imprisonable, will be treated by judges as unimprisonable.
75
The new rule announced today also could result in equal protection problems. There may well be an unfair and unequal treatment of individual defendants, depending on whether the individual judge has determined in advance to leave open the option of imprisonment. Thus, an accused indigent would be entitled in some courts to counsel while in other courts in the same jurisdiction an indigent accused of the same offense would have no counsel. Since the services of counsel may be essential to a fair trial even in cases in which no jail sentence is imposed, the results of this type of pretrial judgment could be arbitrary and discriminatory.
76
A different type of discrimination could result in the typical petty-offense case where judgment in the alternative is prescribed: for example, 'five days in jail or $100 fine.' If a judge has predetermined that no imprisonment will be imposed with respect to a particular category of cases, the indigent who is convicted will often receive no meaningful sentence. The defendant who can pay a $100 fine, and does so, will have responded to the sentence in accordance with law, whereas the indigent who commits the identical offense may pay no penalty. Nor would there be any deterrent against the repetition of similar offenses by indigents.17
77
To avoid these equal protection problems and to preserve a range of sentencing options as prescribed by law, most judges are likely to appoint counsel for indigents in all but the most minor offenses where jail sentences are extremely rare. It is doubtful that the States possess the necessary resources to meet this sudden expansion of the right to counsel. The Solicitor General, who suggested on behalf of the United States the rule the Court today adopts, recognized that the consequences could be far reaching. In addition to the expense of compensating counsel, he noted that the mandatory requirement of defense counsel will 'require more pre-trial time of prosecutors, more courtroom time, and this will lead to bigger backlogs with present personnel. Court reporters will be needed as well as counsel, and they are one of our worst bottlenecks.'18
78
After emphasizing that the new constitutional rule should not be made retroactive, the Solicitor General commented on the 'chaos' which could result from any mandatory requirement of counsel in misdemeanor cases:
79
'(I)f . . . this Court's decision should become fully applicable on the day it is announced, there could be a massive pileup in the state courts which do not now meet this standard. This would involve delays and frustrations which would not be a real contribution to the administration of justice.'19
80
The degree of the Solicitor General's concern is reflected by his admittedly unique suggesion regarding the extraordinary demand for counsel which would result from the new rule. Recognizing implicitly that, in many sections of the country, there simply will not be enough lawyers available to meet this demand either in the short or long term, the Solicitor General speculated whether 'clergymen, social workers, probation officers, and other persons of that type' could be used 'as counsel in certain types of cases involving relatively small sentences.'20 Quite apart from the practical and political problem of amending the laws of each of the 50 States which require a license to practice law, it is difficult to square this suggestion with the meaning of the term 'assistance of counsel' long recognized in our law.
81
The majority's treatment of the consequences of the new rule which so concerned the Solicitor General is not reassuring. In a footnote, it is said that there are presently 355,200 attorneys and that the number will increase rapidly, doubling by 1985. This is asserted to be sufficient to provide the number of full-time counsel, estimated by one source at between 1,575 and 2,300, to represent all indigent misdemeanants, excluding traffic offenders. It is totally unrealistic to imply that 355,200 lawyers are potentially available. Thousands of these are not in practice, and many of those who do practice work for governments, corporate legal departments, or the Armed Services and are unavailable for criminal representation. Of those in general practice, we have no indication how many are qualified to defend criminal cases or willing to accept assignments which may prove less than lucrative for most.21
82
It is similarly unrealistic to suggest that implementation of the Court's new rule will require no more than 1,575 to 2,300 'full-time' lawyers. In few communities are there full-time public defenders available for, or private lawyers specializing in, petty cases. Thus, if it were possible at all, it would be necessary to coordinate the schedules of those lawyers who are willing to take an occasional misdemeanor oppointment with the crowded calendars of lower courts in which cases are not scheduled weeks in advance but instead are frequently tried the day after arrest. Finally, the majority's focus on aggregate figures ignores the heart of the problem, which is the distribution and availability of lawyers, especially in the hundreds of small localities across the country.
83
Perhaps the most serious potential impact of today's holding will be on our already overburdened local courts.22 The primary cause of 'assembly line' justice is a volume of cases far in excess of the capacity of the system to handle efficiently and fairly. The Court's rule may well exacerbate delay and congestion in these courts. We are familiar with the common tactic of counsel of exhausting every possible legal avenue, often without due regard to its probable payoff. In some cases this may be the lawyer's duty; in other cases it will be done for purposes of delay.23 The absence of direct economic impact on the client, plus the omnipresent ineffective-assistance-of-counsel claim, frequently produces a decision to litigate every issue. It is likely that young lawyers, fresh out of law school, will receive most of the appointments in petty-offense cases. The admirable zeal of these lawyers; their eagerness to make a reputation; the time their not yet crowded schedules permit them to devote to relatively minor legal problems; their desire for courtroom exposure; the availability in some cases of hourly fees, lucrative to the novice; and the recent constitutional explosion in procedural rights for the accused—all these factors are likely to result in the stretching out of the process with consequent increased costs to the public and added delay and congestion in the courts.24
84
There is an additional problem. The ability of various States and localities to furnish counsel varies widely. Even if there were adequate resources on a national basis, the uneven distribution of these resources—of lawyers, of facilities, and available funding—presents the most acute problem. A number of state courts have considered the question before the Court in this case, and have been compelled to confront these realities. Many have concluded that the indigent's right to appointed counsel does not extend to all misdemeanor cases. In reaching this conclusion, the state courts have drawn the right-to-counsel line in different places, and most have acknowledged that they were moved to do so, at least in part, by the impracticality of going further.25 In other States, legislatures and courts through the enactment of laws or rules have drawn the line short of that adopted by the majority.26 These cases and statutes reflect the judgment of the courts and legislatures of many States, which understand the problems of local judicial systems better than this Court, that the rule announced by the Court today may seriously overtax capabilities.27
85
The papers filed in a recent petition to this Court for a writ of certiorari serve as an example of what today's ruling will mean in some localities. In November 1971 the petition in Wright v. Town of Wood, No. 71—5722, was filed with this Court. The case, arising out of a South Dakota police magistrate court conviction for the municipal offense of public intoxication, raises the same issues before us in this case. The Court requested that the town of Wood file a response. On March 8, 1972, a lawyer occasionally employed by the town filed with the clerk an affidavit explaining why the town had not responded. He explained that Wood, South Dakota, has a population of 132, that it has no sewer or water system and is quite poor, that the office of the nearest lawyer is in a town 40 miles away, and that the town had decided that contesting this case would be an unwise allocation of its limited resources.
86
Though undoubtedly smaller than most, Wood is not dissimilar to hundreds of communities in the United States with no or very few lawyers, with meager financial resources, but with the need to have some sort of local court system to deal with minor offenses.28 It is quite common for the more numerous petty offenses in such towns to be tried by local courts or magistrates while the more serious offenses are tried in a county-wide court located in the county seat.29 It is undoubtedly true that some injustices result from the informal procedures of these local courts when counsel is not furnished; certainly counsel should be furnished to some indigents in some cases. But to require that counsel be furnished virtually every indigent charged with an imprisonable offense would be a practical impossibility for many small town courts. The community could simply not enforce its own laws.30
87
Perhaps it will be said that I give undue weight both to the likelihood of short-term 'chaos' and to the possibility of long-term adverse effects on the system. The answer may be given that if the Constitution requires the rule announced by the majority, the consequences are immaterial. If I were satisfied that the guarantee of due process required the assistance of counsel in every case in which a jail sentence is imposed or that the only workable method of insuring justice is to adopt the majority's rule, I would not hesitate to join the Court's opinion despite my misgivings as to its effect upon the administration of justice. But in addition to the resulting problems of availability of counsel, of costs, and especially of intolerable delay in an already overburdened system, the majority's drawing of a new inflexible rule may raise more Fourteenth Amendment problems than it resolves. Although the Court's opinion does not deal explicitly with any sentence other than deprivation of liberty however brief, the according of special constitutional status to cases where such a sentence is imposed may derogate from the need for counsel in other types of cases, unless the Court embraces an even broader prophylactic rule. Due process requires a fair trial in all cases. Neither the six-month rule approved below nor the rule today enunciated by the Court is likely to achieve this result.
III
88
I would hold that the right to counsel in petty-offense cases is not absolute but is one to be determined by the trial courts exercising a judicial discretion on a case-by-case basis.31 The determination should be made before the accused formally pleads; many petty cases are resolved by guilty pleas in which the assistance of counsel may be required.32 If the trial court should conclude that the assistance of counsel is not required in any case, it should state its reasons so that the issue could be preserved for review. The trial court would then become obligated to scrutinize carefully the subsequent proceedings for the protection of the defendant. If an unrepresented defendant sought to enter a plea of guilty, the Court should examine the case against him to insure that there is admissible evidence tending to support the elements of the offense. If a case went to trial without defense counsel, the court should intervene, when necessary, to insure that the defendant adequately brings out the facts in his favor and to prevent legal issues from being overlooked. Formal trial rules should not be applied strictly against unrepresented defendants. Finally, appellate courts should carefully scrutinize all decisions not to appoint counsel and the proceedings which follow.
89
It is impossible, as well as unwise, to create a precise and detailed set of guidelines for judges to follow in determining whether the appointment of counsel is necessary to assure a fair trial. Certainly three general factors should be weighed. First, the court should consider the complexity of the offense charged. For example, charges of traffic law infractions would rarely present complex legal or factual questions, but charges that contain difficult intent elements or which raise collateral legal questions, such as search-and-seizure problems, would usually be too complex for an unassisted layman. If the offense were one where the State is represented by counsel and where most defendants who can afford to do so obtain counsel there would be a strong indication that the indigent also needs the assistance of counsel.
90
Second, the court should consider the probable sentence that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed. As noted in Part I above, imprisonment is not the only serious consequence the court should consider.
91
Third, the court should consider the individual factors peculiar to each case. These, of course, would be the most difficult to anticipate. One relevant factor would be the competency of the individual defendant to present his own case. The attitude of the community toward a particular defendant or particular incident would be another consideration. But there might be other reasons why a defendant would have a peculiar need for a lawyer which would compel the appointment of counsel in a case where the court would normally think this unnecessary. Obviously, the sensitivity and diligence of individual judges would be crucial to the operation of a rule of fundamental fairness requiring the consideration of the varying factors in each case.
92
Such a rule is similar in certain respects to the special-circumstances rule applied to felony cases in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), and Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948), which this Court overruled in Gideon.33 One ofthe reasons for seeking a more definitive standard in felony cases was the failure of many state courts to live up to their responsibilities in determining on a case-by-case basis whether counsel should be appointed. See the concurring opinion of Mr. Justice Harlan in Gideon, 372 U.S., at 350—351, 83 S.Ct., at 800—801. But this Court should not assume that the past insensitivity of some state courts to the rights of defendants will continue. Certainly if the Court follows the course of reading rigid rules into the Constitution, so that the state courts will be unable to exercise judicial discretion within the limits of fundamental fairness, there is little reason to think that insensitivity will abate.
93
In concluding, I emphasize my longheld conviction that the adversary system functions best and most fairly only when all parties are represented by competent counsel. Before becoming a member of this Court, I participated in efforts to enlarge and extend the availability of counsel. The correct disposition of this case, therefore, has been a matter of considerable concern to me—as it has to the other members of the Court. We are all strongly drawn to the ideal of extending the right to counsel, but I differ as to two fundamentals: (i) what the Constitution requires, and (ii) the effect upon the criminal justice system, especially in the smaller cities and the thousands of police, municipal, and justice of the peace courts across the country.
94
The view I have expressed in this opinion would accord considerable discretion to the courts, and would allow the flexibility and opportunity for adjustment which seems so necessary when we are imposing new doctrine on the lowest level of courts of 50 States. Although this view would not precipitate the 'chaos' predicted by the Solicitor General as the probable result of the Court's absolutist rule, there would still remain serious practical problems resulting from the expansion of indigents' rights to counsel in petty-offense cases.34 But the according of reviewable discretion to the courts in determining when counsel is necessary for a fair trial, rather than mandating a completely inflexible rule, would facilitate an orderly transition to a far wider availability and use of defense counsel.
95
In this process, the courts of first instance which decide these cases would have to recognize a duty to consider the need for counsel in every case where the defendant faces a significant penalty. The factors mentioned above, and such standards or guidelines to assure fairness as might be prescribed in each jurisdiction by legislation or rule of court, should be considered where relevant. The goal should be, in accord with the essence of the adversary system, to expand as rapidly as practicable the availability of counsel so that no person accused of crime must stand alone if counsel is needed.
96
As the proceedings in the courts below were not in accord with the views expressed above, I concur in the result of the decision in this case.
1
For a survey of the opinions of judges, prosecutors, and defenders concerning the right to counsel of persons charged with misdemeanors, see 1 L. Silverstein, Defense of the Poor in Criminal Cases in American State Courts 127—135 (1965).
A review of federal and state decisions following Gideon is contained in Comment, Right to Counsel: The Impact of Gideon v. Wainwright in the Fifty States, 3 Creighton L.Rev. 103 (1970).
Twelve States provide counsel for indigents accused of 'serious crime' in the misdemeanor category. Id., at 119—124.
Nineteen States provide for the appointment of counsel in most misdemeanor cases. Id., at 124—133. One of these is Oregon, whose Supreme Court said in Stevenson v. Holzman, 254 Or. 94, 100 101, 458 P.2d 414, 418, 'If our objective is to insure a fair trial in every criminal prosecution the need for counsel is not determined by the seriousness of the crime. The assistance of counsel will best avoid conviction of the innocent—an objective as important in the municipal court as in a court of general jurisdiction.'
California's requirement extends to traffic violations. Blake v. Municipal Court, 242 Cal.App.2d 731, 51 Cal.Rptr. Court, 242 Cal.App.2d 731, 51 Cal.Rptr. 771.
Overall, 31 States have now extended the right to defendants charged with crimes less serious than felonies. Comment, Right to Counsel, supra, at 134.
2
See Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 980 982 (1926); James v. Headley, 5 Cir., 410 F.2d 325, 331. Cf. Kaye, Petty Offenders Have No Peers!, 26 U.Chi.L.Rev. 245 (1959).
3
See also Johnson v. Zerbst, 304 U.S. 458, 462—463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461:
'(The Sixth Amendment) embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is (re)presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer—to the untrained layman—may appear intricate, complex, and mysterious.'
4
In 1965, 314,000 defendants were charged with felonies in state courts, and 24,000 were charged with felonies in federal courts. President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 55 (1967). Exclusive of traffic offenses, however, it is estimated that there are annually between four and five million court cases involving misdemeanors. Ibid. And, while there are no authoritative figures, extrapolations indicate that there are probably between 40.8 and 50 million traffic offenses each year. Note, Dollars and Sense of an Expanded Right to Counsel, 55 Iowa L.Rev. 1249, 1261 (1970).
5
Title 18 U.S.C. § 1 defines a petty offense as one in which the penalty does not exceed imprisonment for six months, or a fine of not more than $500, or both. Title 18 U.S.C. § 3006A(b) provides for the appointment of counsel for indigents in all cases 'other than a petty offense.' But, as the Court of Appeals for the Fifth Circuit noted in James v. Headley, 410 F.2d, at 330—331; Title 18 U.S.C. § 3006A, which was enacted as the Criminal Justice Act of 1964, contains a congressional plan for furnishing legal representation at federal expense for certain indigents and does not purport to cover the full range of constitutional rights to counsel.
Indeed, the Conference Report on the Criminal Justice Act of 1964 made clear the conferees' belief that the right to counsel extends to all offenses, petty and serious alike. H.R.Conf.Rep. No. 1709, 88th Cong., 2d Sess. (1964); U.S.Code & Admin.News, pp. 3000, 3002—3003 (1964).
In that connection, the Federal Rules of Criminal Procedure, as amended in 1966, provide in Rule 44(a): '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.'
The Advisory Committee note on Rule 44 says: 'Like the original rule the amended rule provides a right to counsel which is broader in two respects than that for which compensation is provided in the Criminal Justice Act of 1964:
'(1) The right extends to petty offenses to be tried in the district courts, and
'(2) The right extends to defendants unable to obtain counsel for reasons other than financial.'
6
See Marston v. Oliver, 324 F.Supp. 691, 696 (ED Va.1971):
'Any incarceration of over thirty days, more or less, will usually result in loss of employment, with a consequent substantial detriment to the defendant and his family.'
7
We do not share Mr. Justice POWELL's doubt that the Nation's legal resources are sufficient to implement the rule we announce today. It has been estimated that between 1,575 and 2,300 fulltime counsel would be required to represent all indigent misdemeanants, excluding traffic offenders. Note, Dollars and Sense of an Expanded Right to Counsel, 55 Iowa L.Rev. 1249, 1260 1261 (1970). These figures are relatively insignificant when compared to the estimated 355,200 attorneys in the United States (Statistical Abstract of the United States 153 (1971)), a number which is projected to double by the year 1985. See Ruud, That Burgeoning Law School Enrollment, 58 A.B.A.J. 146, 147. Indeed, there are 18,000 new admissions to the bar each year—3,500 more lawyers than are required to fill the 'estimated 14,500 average annual openings.' Id., at 148.
8
Article I, § 9, of the proposed Revised Constitution of Oregon provides:
'Every person has the right to assistance of counsel in all official proceedings and dealings with public officers that may materially affect him. If he cannot afford counsel, he has the right to have counsel appointed for him in any case in which he may lose his liberty.'
9
One partial solution to the problem of minor offenses may well be to remove them from the court system. The American Bar Association Special Committee on Crime Prevention and Control recently recommended, inter alia, that:
'Regulation of various types of conduct which harm no one other than those involved (e.g., public drunkenness, narcotics addiction, vagrancy, and deviant sexual behavior) should be taken out of the courts. The handling of these matters should be transferred to nonjudicial entities, such as detoxification centers, narcotics treatment centers and social service agencies. The handling of other non-serious offenses, such as housing code and traffic violations, should be transferred to specialized administrative bodies.' ABA Report, New Perspectives on Urban Crime iv (1972). Such a solution, of course, is peculiarly within the province of state and local legislatures.
10
'Forty thousand traffic charges (arising out of 150,000 nonparking traffic citations) were disposed of by court action in Seattle during 1964. The study showed, however, that in only about 4,500 cases was there any possibility of imprisonment as the result of a
traffic conviction. In only three kinds of cases was the accused exposed to any danger of imprisonment: (1) where the offense charged was hit-and-run, reckless or drunken driving; or (2) where any additional traffic violation was charged against an individual subject to a suspended sentence for a previous violation; or (3) where, whatever the offense charged, the convicted individual was unable to pay the fine imposed.' Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash.L.Rev. 685, 711 (1968).
Of the 1,288,975 people convicted by the City of New York in 1970 for traffic infractions such as jaywalking and speeding, only 24 were fined and imprisoned, given suspended sentences, or jailed. Criminal Court of the City of New York Annual Report 11 (1970). Of the 19,187 convicted of more serious traffic offenses, such as driving under the influence, reckless driving, and leaving the scene of an accident, 404 (2.1%) were subject to some form of imprisonment. Ibid.
*
A total of 57 law schools have also established clinical programs in corrections, where law students, under faculty supervision, aid prisoners in the preparation of petitions for post-conviction relief. CLEPR Newsletter, May 1972, p. 3. See United States. v. Simpson, 141 U.S.App.D.C. 8, 15—16, 436 F.2d 162, 169—170 (1970).
*
In a nonjury case the prior record of the accused should not be made known to the trier of fact except by way of traditional impeachment.
1
While it is true that Mr. Justice Black's opinion for the Court in Gideon is not narrowly written, Mr. Justice Harlan was quick to suggest, in his concurring opinion, that the facts in Gideon did not require the Court to decide whether the indigent's right to appointed counsel should extend to all criminal cases. 372 U.S., at 351, 83 S.Ct., at 800. In opinions announced more recently, the Court has assumed
that the holding of Gideon has not yet been extended to misdemeanor cases. See In re Gault, 387 U.S. 1, 29, 87 S.Ct. 1428, 1444, 18 L.Ed.2d 527 (1967); Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256, 19 L.Ed.2d 336 (1967); Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319 (1967); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).
2
As used herein, the term 'petty offense' means any offense where the authorized imprisonment does not exceed six months, Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970). It also includes all offenses not punishable by imprisonment, regardless of the amount of any fine that might be authorized. To this extent, the definition used herein differs from the federal statutory definition of 'petty offense,' which includes offenses punishable by not more than six months' imprisonment or by a fine not exceeding $500. 18 U.S.C. § 1.
3
236 So.2d 442 (1970).
4
See Powell v. Alabama, 287 U.S. 45, 60—61, 53 S.Ct. 55, 60 61, 77 L.Ed. 158 (1932).
5
Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).
6
Although we have given retroactive effect to our ruling in Gideon, Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963), we have said that, '(t)he values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial.' De-Stefano v. Woods, 392 U.S. 631, 634, 88 S.Ct. 2093, 2095, 20 L.Ed.2d 1308 (1968).
7
Supra, n. 4, 287 U.S., at 68—69, 53 S.Ct., at 63—64.
8
372 U.S., at 343—345, 83 S.Ct., at 796—797.
9
See 1 L. Silverstein, Defense of the Poor in Criminal Cases in American State Courts 132 (1965).
10
See James v. Headley, 410 F.2d 325, 334—335 (CA5 1969).
11
A wide range of civil disabilities may result from misdemeanor convictions, such as forfeiture of public office (State ex rel. Stinger v. Kruger, 280 Mo. 293, 217 S.W. 310 (1919)), disqualification for a licensed profession (Cal.Bus. & Prof.Code § 3094 (1962) (optometrists); N.C.Gen.Stat. § 93A—4(b) (1965) (real estate brokers)), and loss of pension rights (Fla.Stat.Ann. § 185.18(3) (1966) (police disability pension denied when injury is result of participation in fights, riots, civil insurrections, or while committing crime); Ind.Ann.Stat. § 28—4616 (1948), IC 1971, 21—6—13—16 (teacher convicted of misdemeanor resulting in imprisonment); Pa. Stat.Ann., Tit. 53, § 39323 (Supp.1972—1973) and § 65599 (1957) (conviction of crime or misdemeanor)). See generally Project, The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929 (1970).
12
Gideon v. Wainwright, 372 U.S., at 344, 83 S.Ct., at 796.
13
In petty offenses, there is much less plea negotiation than in serious offenses. See Report by the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (hereinafter Challenge) 134 (1967). Thus, in cases where the evidence of guilt is overwhelming, the assistance of counsel is less essential to obtain a lighter sentence.
14
Silverstein, supra, n. 9, at 125—126.
15
Neither the Report by the President's Commission on Law Enforcement and Administration of Justice nor the American Bar Association went the route the Court takes today. The President's Commission recommended that counsel be provided for criminal defendants who face 'a significant penalty' and at least to those who are in danger of 'substantial loss of liberty.' Challenge, supra, n. 13, at 150. The American Bar Association standard would not extend the right to counsel to cases where 'loss of liberty' is not 'likely to be imposed.' American Bar Association Project on Standards for Criminal Justice, Providing Defense Services. 37—40 (Approved Draft 1968). Neither supports a new, inflexible constitutional rule.
16
See Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
17
The type of penalty discussed above (involving the discretionary alternative of 'jail or fine') presents serious problems of fairness—both to indigents and nonindigents and to the administration of justice. Cf. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). No adequate resolution of these inherently difficult problems has yet been found. The rule adopted by the Court today, depriving the lower courts of all discretion in such cases unless counsel is available and is appointed, could aggravate the problem.
18
Tr. of Oral Arg. 34—35.
19
Id., at 36—37.
20
Id., at 36—37.
21
The custom in many, if not most, localities is to appoint counsel on a case-by-case basis. Compensation is generally inadequate. Even in the federal courts under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A, which provides one of the most generous compensation plans, the rates for appointed counsel—$20 per hour spent out of court, $30 per hour of court time, subject to a maximum total fee of $400 for a misdemeanor case and $1,000 for a felony—are low by American standards. Consequently, the majority of persons willing to accept appointments are the young and inexperienced. See Cappelletti, Part One: The Emergence of a Modern Theme, in Cappelletti & Gordley, Legal Aid: Modern Themes and Variations, 24 Stan.L.Rev. 347, 377—378 (1972). Mr. Justice Brennan suggests, in his concurring opinion, that law students might provide an important source of legal representation. He presents no figures, however, as to how many students would be qualified and willing to undertake the responsibilities of defending indigent misdemeanants. Although welcome progress is being made with programs, supported by the American Bar Association, to enlist the involvement of law students in indigent representation, the problems of meeting state requirements and of assuring the requisite control and supervision, are far from insubstantial. Moreover, the impact of student participation would be limited primarily to the 140 or less communities where these law schools are located.
22
See generally H. James, Crisis in the Courts, c. 2 (1968); Challenge, supra, n. 13, at 145—156.
23
See, e.g., James, supra, n. 22, at 27—30; Schrag, On Her Majesty's Secret Service: Protecting the Consumer in New York City, 80 Yale L.J. 1529 (1971).
24
In Cook County, Illinois, a recent study revealed that the members of the Chicago Bar Association's Committee on the Defense of Prisoners who are appointed to represent indigent defendants elect a jury trial in 63% of their trial cases, while other appointed counsel and retained counsel do so in 33% and the public defender in only 15%. 'One possible explanation for this contrast is that committee counsel, who are sometimes serving in part to gain experience, are more willing to undertake a jury trial than is an assistant public defender, who is very busy and very conscious of the probable extra penalty accruing to a defendant who loses his case before a jury.' D. Oaks & W. Lehman, A Criminal Justice System and the Indigent 159 (1968) (footnote omitted).
25
See Irvin v. State, 44 Ala.App. 101, 203 So.2d 283 (1967); Burrage v. Superior Court, 105 Ariz. 53, 459 P.2d 313 (1969); Cableton v. State, 243 Ark. 351, 420 S.W.2d 534 (1967); State ex rel. Argersinger v. Hamlin, 236 So.2d 442 (Fla.1970); People v. Dupree, 42 Ill.2d 249, 246 N.E.2d 281 (1969); People v. Mallory, 378 Mich. 538, 147 N.W.2d 66 (1967); Hendrix v. City of Seattle, 76 Wash.2d 142, 456 P.2d 696 (1969), cert. denied, 397 U.S. 948, 90 S.Ct. 969, 25 L.Ed.2d 129 (1970); State ex rel. Plutshack v. Department of Health and Social Services, 37 Wis.2d 713, 155 N.W.2d 549 (1968).
26
See Hawaii Const., Art. I, § 11 (1968); Idaho Code §§ 19 851, 19—852 (Supp.1971); Kan.Stat.Ann. § 22—4503 (Supp.1971); Ky.Rule Crim.Proc. 8.04; La.Rev.Stat. § 15:141(F) (1967); Me.Rule Crim.Proc. 44; Md.Rule 719b2(a); Neb.Rev.Stat. § 29—1803 (1964); Nev.Rev.Stat. §§ 171.188, 193.140 (1969); N.Mex.Stat.Ann. § 41—22 3 (Supp.1971); Utah Code Ann. § 77—64—2 (Supp.1971); Vt.Stat.Ann., Tit. 13, § 6503 (Supp.1971); Va.Code Ann. § 19.1—241.1 (Supp.1971).
27
See Kamisar & Choper, The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations, 48 Minn.L.Rev. 1, 68 (1963). Local judges interviewed by the authors concluded that the right to counsel should not be extended to petty cases. 'If no such dividing line can be drawn, if the question of assigned counsel in misdemeanor cases resolves itself into an 'all or nothing' proposition, then, the thrust of their views was that limited funds and lawyer-manpower and the need for judicial economy dictate that it be 'nothing." (Footnote omitted.) But see State v. Borst, 278 Minn. 388, 154 N.W.2d 888 (1967).
28
See Cableton v. State, 243 Ark., at 358, 420 S.W.2d, at 538—539: '(T) here are more justices of the peace in Arkansas than there are resident practicing lawyers and . . . there are counties in which there are no practicing lawyers. The impact of (right to counsel in misdemeanor cases) would seriously impair the administration of justice in Arkansas and impose an intolerable burden upon the legal profession.' (Footnote omitted.)
29
See Silverstein, supra, n. 9, at 125—126.
30
The successful implementation of the majority's rule would require state and local governments to appropriate considerable funds, something they have not been willing to do. Three States with 21% of the Nation's population provide more than 50% of all state appropriations for indigent defense. Note, Dollars and Sense of an Expanded Right to Counsel, 55 Iowa L.Rev. 1249, 1265 (1970). For example, in 1971 the State of Kansas spent $570,000 defending indigents in felony cases—up from $376,000 in 1969. Although the budgetary request for 1972 was $612,000, the legislature has appropriated only $400,000. Brief for Appellant in James v. Strange, decided today, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600. 'In view of American resources the funds spent on the legal services program can only be regarded as trivial.' Cappelletti, supra, n. 21, at 379. 'Although the American economy is over 8 times the size of the British and the American population is almost 4 times as great, American legal aid expenditures are less than 2 times as high.' Id., at 379 n. 210.
31
It seems to me that such an individualized rule, unlike a six-month rule and the majority's rule, does not present equal protection problems under this Court's decisions in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); and Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971).
32
See, e.g., Katz, Municipal Courts—Another Urban Ill, 20 Case Western Reserve L.Rev. 87, 92—96 (1968). Cf. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Harvey v. Mississippi, 340 F.2d 263 (CA5 1965).
Although there is less plea negotiating in petty caes, see n. 13, supra, the assistance of counsel may still be needed so that the defendant who is not faced with overwhelming evidence of guilt can make an intelligent decision whether to go to trial.
33
I do not disagree with the overruling of Betts; I am in complete accord with Gideon. Betts, like Gideon, concerned the right to counsel in a felony case. See n. 1, supra. Neither case controls today's result.
34
Indeed, it is recognized that many of the problems identified in this opinion will result from any raising of the standards as to the requirement of counsel. It is my view that relying upon judicial discretion to assure fair trial of petty offenses not only comports with the Constitution but will minimize problems which otherwise could affect adversely the administration of criminal justice in the very courts which already are under the most severe strain.
| 01
|
407 U.S. 197
92 S.Ct. 1842
32 L.Ed.2d 653
John Thomas FLOWERv.UNITED STATES.
No. 71—1180.
June 12, 1972.
PER CURIAM.
1
Petition John Thomas Flower, a regional 'Peace Education Secretary' of the American Friends Service Committee and a civilian, was arrested by military police while quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas. In an ensuing prosecution before the United States District Court for the Western District of Texas on charges of violating 18 U.S.C. § 1382 ('Whoever reenters or is found (within a military post) after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof—Shall be fined not more than $500 or imprisoned not more than six months, or both'), it was established that petitioner had previously been barred from the post by order of the deputy commander because of alleged participation in an attempt to distribute 'unauthorized' leaflets. The District Court found that § 1382 'is a valid law' and was validly applied. It sentenced petitioner to six months in prison. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. 452 F.2d 80 (CA5 1972).
2
We reverse. Whatever power the authorities may have to restrict general access to a military facility, see Cafeteria & Restaurant Workers etc. v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), here the fort commander chose not to exclude the public from the street where petitioner was arrested. As Judge Simpson, dissenting, noted below:
3
'There is no sentry post or guard at either entrance or anywhere along the route. Traffic flows through the post on this and other streets 24 hours a day. A traffic count conducted on New Braunfels Avenue on January 22, 1968, by the Director of Transportation of the city of San Antonio, shows a daily (24-hour) vehicular count of 15,110 south of Grayson Street (the place where the street enters the post boundary) and 17,740 vehicles daily north of that point. The street is an important traffic artery used freely by buses, taxi cabs and other public transportation facilities as well as by private vehicles, and its sidewalks are used extensively at all hours of the day by civilians as well as by military personnel. Fort Sam Houston was an open post; the street, New Braunfels Avenue, was a completely open street.' 452 F.2d, at 90.
4
Under such circumstances the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue. The base commandant can no more order petitioner off this public street because he was distributing leaflets than could the city police order any leafleteer off any public street. Cf. Lovell v. City of Griffin, 303 U.S. 444, 58 s.Ct. 666, 82 L.Ed. 949 (1938), Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). '(S)treets are natural and proper places for the dissemination of information and opinion,' 308 U.S., at 163, 60 S.Ct. at 151. '(O)ne who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.' Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 672, 87 L.Ed. 869 (1943).
5
The First Amendment protects petitioner from the application of § 1382 under conditions like those of this case. Accordingly, without need to set the matter for further argument, we grant the petition for a writ of certiorari and reverse the conviction.
6
Reversed and remanded.
7
Mr. Justice BLACKMUN dissents, for he would grant the petition for certiorari and hear argument on the merits.
8
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
9
The result, if not the reasoning, of the Court's impressionistic summary reversal of the Court of Appeals in this case is clear: without benefit of briefs or oral argument the Court declares unconstitutional this application of 18 U.S.C. § 1382, a statute enacted to give commanders of military posts authority thought necessary by Congress to exclude civilians from the post area after proper notice.
10
Because the post commander of Fort Sam Houston may have permitted civilian vehicular and pedestrian traffic on New Braunfels Avenue within the limits of Fort Sam Houston,* the Court holds that he has 'abandoned' any claim of special interest in who walks, talks, or distributes leaflets on the avenue. Obviously the Court cannot be referring to the subjective intent of the base commander, since he gave petitioner due notice of his debarment from the base, and the bringing of this prosecution evinces a rather strong interest on the part of the commander in petitioner's 'leafleting' activities. If the Court means to say that once any portion of a military base is opened up to unregulated vehicular traffic it automatically follows that such portion of the base acquires the status of a public square in a city or town, the mere statement of that proposition—which is all that is contained in the Court's opinion is not self-demonstrating. Since the Court does not hold, and it does not appear on this record that it could hold, that petitioner Flower was treated differently from any other 'leafleteers,' the Court's holding does not deal with any possible denial of equal protection. The case thus concerns only the First Amendment claim of leafleteers to go anywhere on a military base to which civilian vehicles and pedestrians are granted free access.
11
Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), suggests that civilian authorities may draw reasonable distinctions, based on the purpose for which public buildings and grounds are used, in according the right to exercise First Amendment freedoms in such buildings and on such grounds. Simply because some activities and individuals are allowed on government property does not require the abandonment of otherwise allowable restrictions on its use. Indeed, it is generally recognized that demonstrations on courthouse grounds can be prohibited in order to protect the proper exercise of the judicial function. See Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487 (1965). See also 63 Stat. 617, § 6, 40 U.S.C. § 13k (prohibiting any demonstrations on the grounds surrounding this Court). Similarly, the unique requirements of military morale and security may well necessitate control over certain persons and activities on the base, even while normal traffic flow through the area can be tolerated.
12
The Court's opinion leaves the base commander with a Hobson's choice. He may close access to civilian traffic on New Braunfels Avenue and other traffic arteries traversing the post, thereby rendering the post once more subject to the authority that Congress intended him to have, but also causing substantial inconvenience to civilian residents of Bexar County who presently use these arteries. Or, he may continue to accommodate the convenience of the residents, but only at the cost of surrendering the authority Congress conferred upon him under 18 U.S.C. § 1382 to control access to the post he commands.
13
An additional problem, to which the Court's opinion devotes no attention whatever, is the question of whether this petitioner should be free to challenge the validity of the post commander's original debarment order in defending a criminal prosecution under 18 U.S.C. § 1382. The Solicitor General, in opposing the petition for a writ of certiorari, contends that petitioner would have been free to challenge the debarment order in a separate proceeding in the United States District Court, relying on Kiiskila v. Nichols, 433 F.2d 745 (CA7 1970), and Dash v. Commanding General, 429 F.2d 427 (CA4 1970). The Court, by determining sub silentio that exhaustion of such remedies is not required, substantially dilutes the effectiveness of the criminal sanction that Congress deliberately placed behind a post commander's order of debarment. It accomplishes this dilution in a way that may not be at all necessary to the vindication of petitioner's First Amendment rights. By requiring petitioner to proceed in an orderly manner to first litigate any alleged constitutional infirmity in the debarment order, the Court could assure him a forum for the assertion of such claims while preserving to the post commander the availability of a relatively summary criminal sanction against one who violated a debarment order whose validity has not been contested.
14
While full argument in this case on the merits might persuade me that the Court's result was required by the Constitution, its present opinion certainly has not done so. I therefore dissent from the summary reversal.
*
From a record consisting largely of rejected offers of proof, the Court concludes that Fort Sam Houston was an 'open' post. It also concludes that New Braunfels Avenue, a traffic artery within the post, was a 'completely open' street, presumably more 'open' than the post as a whole. While I have difficulty at this stage of the case in knowing how the Court reaches these factual conclusions, or indeed what exactly the varying degrees of 'openness' are meant to connote, my disagreement with the Court's summary reversal is not limited to this aspect of the case.
| 23
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407 U.S. 67
92 S.Ct. 1983
32 L.Ed.2d 556
Margarita FUENTES, Appellant,v.Robert L. SHEVIN, Attorney General of Florida, et al.* Paul PARHAM et al., Appellants, v. Americo V. CORTESE et al.
Nos. 70—5039, 70—5138.
Argued Nov. 9, 1971.
Decided June 12, 1972.
Rehearing Denied Oct. 10, 1972.
See 93 S.Ct. 177, 180.
Syllabus
Appellants, most of whom were purchasers of household goods under conditional sales contracts, challenge the constitutionality of prejudgment replevin provisions of Florida law (in No. 70—5039) and Pennsylvania law (in No. 70—5138). These provisions permit a private party, without a hearing or prior notice to the other party, to obtain a prejudgment writ of replevin through a summary process of ex parte application to a court clerk, upon the posting of a bond for double the value of the property to be seized. The sheriff is then required to execute the writ by seizing the property. Under the Florida statute the officer seizing the property must keep it for three days. During that period the defendant may reclaim possession by posting his own security bond for double the property's value, in default of which the property is transferred to the applicant for the writ, pending a final judgment in the underlying repossession action. In Pennsylvania the applicant need not initiate a repossession action or allege (as Florida requires) legal entitlement to the property, it being sufficient that he file an 'affidavit of the value of the property'; and to secure a post-seizure hearing the party losing the property through replevin must himself initiate a suit to recover the property. He may also post his own counterbond within three days of the seizure to regain possession. Included in the printed-form sales contracts that appellants signed were provisions for the sellers' repossession of the merchandise on the buyers' default. Three-judge District Courts in both cases upheld the constitutionality of the challenged replevin provisions. Held:
1. The Florida and Pennsylvania replevin provisions are invalid under the Fourteenth Amendment since they work a deprivation of property without due process of law by denying the right to a prior opportunity to be heard before chattels are taken from the possessor. Pp. 80—93.
(a) Procedural due process in the context of these cases requires an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another, and the minimal deterrent effect of the bond requirement against unfounded applications for a writ constitutes no substitute for a presiezure hearing. Pp. 80—84.
(b) From the standpoint of the application of the Due Process Clause it is immaterial that the deprivation may be temporary and nonfinal during the three-day post-seizure period. Pp. 84—86.
(c) The possessory interest of appellants, who had made substantial installment payments, was sufficient for them to invoke procedural due process safeguards notwithstanding their lack of full title to the replevied goods. Pp. 86—87.
(d) The District Courts erred in rejecting appellants' constitutional claim on the ground that the household goods seized were not items of 'necessity' and therefore did not require due process protection, as the Fourteenth Amendment imposes no such limitation. Pp. 88—90.
(e) The broadly drawn provisions here involved serve no such important a state interest as might justify summary seizure. Pp. 90—93.
2. The contract provisions for repossession by the seller on the buyer's default did not amount to a waiver of the appellants' procedural due process rights, those provisions neither dispensing with a prior hearing nor indicating the procedure by which repossession was to be achieved. D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124, distinguished. Pp. 94 96.
No. 70—5039, 317 F.Supp. 954, and No. 70—5138, 326 F.Supp. 127, vacated and remanded.
1
C. Michael Abbott, Atlanta, Ga., for appellants Margarita Fuentes and others, pro hac vice, by special leave of Court.
2
Herbert T. Schwartz, Deputy Atty. Gen., Tallahassee, Fla., for appellee Robert L. Shevin, Atty. Gen., of the State of Fla.
3
George W. Wright, Jr., Miami, Fla., for appellee Firestone Tire and Rubber Co.
4
David A. Scholl, Philadelphia, Pa., for the appellants Paul Parham and others, pro hac vice, by special leave of Court.
5
Robert F. Maxwell, Philadelphia, Pa., for appellees, Americo V. Cortese and others.
6
Mr. Justice STEWART delivered the opinion of the Court.
7
We here review the decisions of two three-judge federal District Courts that upheld the constitutionality of Florida and Pennsylvania laws authorizing the summary seizure of goods or chattels in a person's possession under a writ of replevin. Both statutes provide for the issuance of writs ordering state agents to seize a person's possessions, simply upon the ex parte application of any other person who claims a right to them and posts a security bond. Neither statute provides for notice to be given to the possessor of the property, and neither statute gives the possessor an opportunity to challenge the seizure at any kind of prior hearing. The question is whether these statutory procedures violate the Fourteenth Amendment's guarantee that no State shall deprive any person of property without due process of law.
8
* The appellant in No. 5039, Margarita Fuentes, is a resident of Florida. She purchased a gas stove and service policy from the Firestone Tire and Rubber Co. (Firestone) under a conditional sales contract calling for monthly payments over a period of time. A few months later, she purchased a stereophonic phonograph from the same company under the same sort of contract. The total cost of the stove and stereo was about $500, plus an additional financing charge of over $100. Under the contracts, Firestone retained title to the merchandise, but Mrs. Fuentes was entitled to possession unless and until she should default on her installment payments.
9
For more than a year, Mrs. Fuentes made her installment payments. But then, with only about $200 remaining to be paid, a dispute developed between her and Firestone over the servicing of the stove. Firestone instituted an action in a small-claims court for repossession of both the stove and the stero, claiming that Mrs. Fuentes had refused to make her remaining payments. Simultaneously with the filing of that action and before Mrs. Fuentes had even received a summons to answer its complaint, Firestone obtained a writ of replevin ordering a sheriff to seize the disputed goods at once.
10
In conformance with Florida procedure,1 Firestone had only to fill in the blanks on the appropriate form documents and submit them to the clerk of the small-claims court. The clerk signed and stamped the documents and issued a writ of replevin. Later the same day, a local deputy sheriff and an agent of Firestone went to Mrs. Fuentes' home and seized the stove and stereo.
11
Shortly thereafter, Mrs. Fuentes instituted the present action in a federal district court, challenging the constitutionality of the Florida prejudgment replevin procedures under the Due Process Clause of the Fourteenth Amendment.2 She sought declaratory and injunctive relief against continued enforcement of the procedural provisions of the state statutes that authorize prejudgment replevin.3
12
The appellants in No. 5138 filed a very similar action in a federal district court in Pennsylvania, challenging the constitutionality of that State's prejudgment replevin process. Like Mrs. Fuentes, they had had possessions seized under writs of replevin. Three of the appellants had purchased personal property a bed, a table, and other household goods—under installment sales contracts like the one signed by Mrs. Fuentes; and the sellers of the property had obtained and executed summary writs of replevin, claiming that the appellants had fallen behind in their installment payments. The experience of th fourth appellant, Rosa Washington, had been more bizarre. She had been divorced from a local deputy sheriff and was engaged in a dispute with him over the custody of their son. Her former husband, being familiar with the routine forms used in the replevin process, had obtained a writ that ordered the seizure of the boy's clothes, furniture, and toys.4
13
In both No. 5039 and No. 5138, three-judge District Courts were convened to consider the appellants' challenges to the constitutional validity of the Florida and Pennsylvania statutes. The courts in both cases upheld the constitutionality of the statutes. Fuentes v. Faircloth, 317 F.Supp. 954 (S.D.Fla.); Epps v. Cortese, 326 F.Supp. 127 (E.D.Pa.).5 We noted probable jurisdiction of both appeals. 401 U.S. 906, 91 S.Ct. 893, 27 L.Ed.2d 804; 402 U.S. 994, 91 S.Ct. 2185, 29 L.Ed.2d 159.
II
14
Under the Florida statute challenged here,6 '(a)ny person whose goods or chattels are wrongfully detained by any other person . . . may have a writ of replevin to recover them . . ..' Fla.Stat.Ann. § 78.01 (Supp.1972—1973). There is no requirement that the applicant make a convincing showing before the seizure that the goods are, in fact, 'wrongfully detained.' Rather, Florida law automatically relies on the bare assertion of the party seeking the writ that he is entitled to one and allows a court clerk to issue the writ summarily. It requires only that the applicant file a complaint, initiating a court action for repossession and reciting in conclusory fashion that he is 'lawfully entitled to the possession' of the property, and that he file a security bond
15
'in at least double the value of the property to be replevied conditioned that plaintiff will prosecute his action to effect and without delay and that if defendant recovers judgment against him in the action, he will return the property, if return thereof is adjudged, and will pay defendant all sums of money recovered against plaintiff by defendant in the action.' Fla.Stat.Ann. § 78.07 (Supp.1972 1973).
16
On the sole basis of the complaint and bond, a writ is issued 'command(ing) the officer to whom it may be directed to replevy the goods and chattels in possession of defendant . . . and to summon the defendant to answer the complaint.' Fla.Stat.Ann. § 78.08 (Supp.1972—1973). If the goods are 'in any dwelling house or other building or enclosure,' the officer is required to demand their delivery; but if they are not delivered, 'he shall cause such house, building or enclosure to be broken open and shall make replevin according to the writ . . ..' Fla.Stat.Ann. § 78.10 (Supp.1972—1973).
17
Thus, at the same moment that the defendant receives the complaint seeking repossession of property through court action, the property is seized from him. He is provided no prior notice and allowed no opportunity whatever to challenge the issuance of the writ. After the property has been seized, he will eventually have an opportunity for a hearing, as the defendant in the trial of the court action for repossession, which the plaintiff is required to pursue. And he is also not wholly without recourse in the meantime. For under the Florida statute, the officer who seizes the property must keep it for three days, and during that period the defendant may reclaim possession of the property by posting his own security bond in double its value. But if he does not post such a bond, the property is transferred to the party who sought the writ, pending a final judgment in the underlying action for repossession. Fla.Stat.Ann. § 78.13 (Supp.1972—1973).
18
The Pennsylvania law7 differs, though not in its essential nature, from that of Florida. As in Florida, a private party may obtain a prejudgment writ of replevin through a summary process of ex part application to a prothonotary. As in Florida, the party seeking the writ may simply post with his application a bond in double the value of the property to be seized. Pa.Rule Civ.Proc. 1073(a). There is no opportunity for a prior hearing and no prior notice to the other party. On this basis, a sheriff is requried to execute the writ by seizing the specified property. Unlike the Florida statute, however, the Pennsylvania law does not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied property. The party seeking the writ is not obliged to initiate a court action for repossession.8 Indeed, he need not even formally allege that he is lawfully entitled to the property. The most that is required is that he file an 'affidavit of the value of the property to be replevied.' Pa.Rule Civ.Proc. 1073(a). If the party who loses property through replevin seizure is to get even a post-seizure hearing, he must initiate a lawsuit himself.9 He may also, as under Florida law, post his own counterbond within three days after the seizure to regain possession. Pa.Rule Civ.Proc. 1076.
III
19
Although these prejudgment replevin statutes are descended from the common-law replevin action of six centureis ago, they bear very little resemblance to it. Replevin at common law was an action for the return of specific goods wrongfully taken or 'distrained.' Typically, it was used after a landlord (the 'distrainor') had seized possessions from a tenant (the 'distrainee') to satisfy a debt allegedly owed. If the tenant then instituted a replevin action and posted security, the landlord could be ordered to return the property at once, pending a final judgment in the underlying action.10 However, this prejudgment replevin of goods at common law did not follow from an entirely ex parte process of pleading by the distrainee. For '(t)he distrainor could always stop the action of replevin by claiming to be the owner of the goods; and as this claim was often made merely to delay the proceedings, the writ de proprietate probanda was devised early in the fourteenth century, which enabled the sheriff to determine summarily the question of ownership. If the question of ownership was determined against the distrainor the goods were delivered back to the distrainee (pending final judgment).' 3 W. Holdsworth, History of English Law 284 (1927).
20
Prejudgment replevin statutes like those of Florida and Pennsylvania are derived from this ancient possessory action in that they authorize the seizure of property before a final judgment. But the similarity ends there. As in the present cases, such statutes are most commonly used by creditors to seize goods allegedly wrongfully detained—not wrongfully taken—by debtors. At common law, if a creditor wished to invoke state power to recover goods wrongfully detained, he had to proceed through the action of debt or detinue.11 These actions, however, did not provide for a return of property before final judgment.12 And, more importantly, on the occasions when the common law did allow prejudgment seizure by state power, it provided some kind of notice and opportunity to be heard to the party then in possession of the property, and a state official made at least a summary determination of the relative rights of the disputing parties before stepping into the dispute and taking goods from one of them.
IV
21
For more than a century the centrla meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Baldwin v. Hale, 1 Wall. 223, 233, 17 L.Ed. 531. See Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; Grannis v. Oredean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363. It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62.
22
The primary question in the present cases is whether these state statutes are constitutionally defective in failing to provide for hearings 'at a meaningful time.' The Florida replevin process guarantees an opportunity for a hearing after the seizure of goods, and the Pennsylvania process allows a post-seizure hearing if the aggrieved party shoulders the burden of initiating one. But neither the Florida nor the Pennsylvania statute provides for notice or an opportunity to be heard before the seizure. The issue is whether procedural due process in the context of these cases requires an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another.
23
The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment—to minimize substantively unfair or mistaken deprivations of property, a danger that is especially great when the State seizes goods simply upon the application of and for the benefit of a private parkty. So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference. See Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 1122, 31 L.Ed.2d 424.
24
The requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person's possessions. But the fair process of decision making that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to sepak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. It has long been recognized that 'fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . (And n)o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170—172, 71 S.Ct. 624, 647, 95 L.Ed. 817 Frankfurter, J., concurring).
25
If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual's possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. 'This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone.' Stanley v. Illinois, 405 U.S. 645, 647, 92 S.Ct 1208, 1210, 31 L.Ed.2d 551.
26
This is no new principle of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing 'appropriate to the nature of the case,' Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865, and 'depending upon the importance of the interests involved and the nature of the subsequent proceedings (if any),' Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect. E.g., Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90; Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Armstrong v. Manzo, 380 U.S., at 551, 85 S.Ct., at 1191; Mullane v. Central Hanover Tr. Co., supra, 339 U.S. at 313, 70 S.Ct. at 656; Opp Cotton Mills v. Administrator, 312 U.S. 126, 152 153, 61 S.Ct. 524, 535—536, 85 L.Ed. 624; United States v. Illnois Central R. Co., 291 U.S. 457, 463, 54 S.Ct. 471, 473, 78 L.Ed. 909; Londoner v. City & County of Denver, 210 U.S. 373, 385—386, 28 S.Ct. 708, 713—714, 52 L.Ed. 1103. See In re Ruffalo, 390 U.S. 544, 550—551, 88 S.Ct. 1222, 1225—1226, 20 L.Ed.2d 117. 'That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.' Boddie v. Connecticut, supra, 401 U.S., at 378—379, 91 S.Ct., at 783 (emphasis in original).
27
The Florida and Pennsylvania prejudgment replevin statutes fly in the face of this principle. To be sure, the requirements that a party seeking a writ must first post a bond, allege conclusorily that he is entitled to specific goods, and open himself to possible liability in damages if he is wrong, serve to deter wholly unfounded applications for a writ. But those requirements are hardly a substitute for a prior hearing, for they test no more than the strength of the applicant's own belief in his rights.13 Since his private gain is at stake, the danger is all too great that his confidence in his cause will be misplaced. Lawyers and judges are familiar with the phenomenon of a party mistakenly but firmly convinced that his view of the facts and law will prevail, and therefore quite willing to risk the costs of litigation. Because of the understandable, self-interested fallibility of litigants, a court does not decide a dispute until it has had an opportunity to hear both sides—and does not generally take even tentative action until it has itself examined the support for the plaintiff's position. The Florida and Pennsylvania statutes do not even require the official issuing a writ of replevin to do that much.
28
The minimal deterrent effect of a bond requirement is, in a practical sense, no substitute for an informed evaluation by a neutral official. More specifically, as a matter of constitutional principle, it is no replacement for the right to a prior hearing that is the only truly effective safeguard against arbitrary deprivation of property. While the existence of these other, less effective, safeguards may be among the considerations that affect the form of hearing demanded by due process, they are far from enough by themselves to obviate the right to a prior hearing of some kind.
V
29
The right to a prior hearing, of course, attaches only to the deprivation of an interest encompassed within the Fourteenth Amendment's protection. In the present cases, the Florida and Pennsylvania statutes were applied to replevy chattels in the appellants' possession. The replevin was not cast as a final judgment; most, if not all, of the appellants lacked full title to the chattels; and their claim even to continued possession was a matter in dispute. Moreover, the chattels at stake were nothing more than an assortment of household goods. Nonetheless, it is clear that the appellants were deprived of possessory interests in those chattels that were within the protection of the Fourteenth Amendment.
A.
30
A deprivation of a person's possessions under a prejudgment writ of replevin, at least in theory, may be only temporary. The Florida and Pennsylvania statutes do not require a person to wait until a post-seizure hearing and final judgment to recover what has been replevied. Within three days after the seizure, the statutes allowing him to recover the goods if he, in return, surrenders other property—a payment necessary to secure a bond in double the value of the goods seized from him.14 But it is now well settled that a temporary, nonfinal deprivation of property is nonetheless a 'deprivation' in the terms of the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90. Both Sniadach and Bell involved takings of property pending a final judgment in an underlying dispute. In both cases, the challenged statutes included recovery provisions, allowing the defendants to post security to quickly regain the property taken from them.15 Yet the Court firmly held that these were deprivations of property that had to be preceded by a fair hearing.
31
The present cases are no different. When officials of Florida or Pennsylvania seize one piece of property from a person's possession and then agree to return it if he surrenders another, they deprive him of property whether or not he has the funds, the knowledge, and the time needed to take advantage of the recovery provision. The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause. While the length and consequent severity of a deprivation may be another factor to weigh in determining the appropriate form of hearing, it is not decisive of the basic right to a prior hearing of some kind.
B
32
The appellants who signed conditional sales contracts lacked full legal title to the replevied goods. The Fourteenth Amendment's protection of 'property,' however, has never been interpreted to safeguard only the rights of undisputed ownership. Rather, it has been read broadly to extend protection to 'any significant property interest,' Boddie v. Connecticut, 401 U.S., at 379, 91 S.Ct., at 786, including statutory entitlements. See Bell v. Burson, 402 U.S., at 539, 91 S.Ct., at 1589; Goldberg v. Kelly, 397 U.S., at 262, 90 S.Ct., at 1017.
33
The appellants were deprived of such an interest in the replevied goods—the interest in continued possession and use of the goods. See Sniadach v. Family Finance Corp., 395 U.S., at 342, 89 S.Ct., at 1823 (Harlan, J., concurring). They had acquired this interest under the conditional sales contracts that entitled them to possession and use of the chattels before transfer of title. In exchange for immediate possession, the appellants had agreed to pay a major financing charge beyond the basic price of the merchandise. Moreover, by the time the goods were summarily repossessed, they had made substantial installment payments. Clearly, their possessory interest in the goods, dearly bought and protected by contract,16 was sufficient to invoke the protection of the Due Process Clause.
34
Their ultimate right to continued possession was, of course, in dispute. If it were shown at a hearing that the appellants had defaulted on their contractual obligations, it might well be that the sellers of the goods would be entitled to repossession. But even assuming that the appellants had fallen behind in their installment payments, and that they had no other valid defenses,17 that is immaterial here. The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. 'To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merit.' Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027. It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing on the contractual right to continued possession and use of the goods.18
C
35
Nevertheless, the District Courts rejected the appellants' constitutional claim on the ground that the goods seized from them a stove, a stereo, a table, a bed, and so forth—were not deserving of due process protection, since they were not absolute necessities of life. The courts based this holding on a very narrow reading of Sniadach v. Family Finance Corp., supra, and Goldberg v. Kelly, supra, in which this Court held that the Constitution requires a hearing before prejudgment wage garnishment and before the termination of certain welfare benefits. They reasoned that Sniadach and Goldberg, as a matter of constitutional principle, established no more than that a prior hearing is required with respect to the deprivation of such basically 'necessary' items as wages and welfare benefits.
36
This reading of Sniadach and Goldberg reflects the premise that those cases marked a radical departure from established principles of procedural due process. They did not. Both decisions were in the mainstream of past cases, having little or nothing to do with the absolute 'necessities' of life but establishing that due process requires an opportunity for a hearing before a deprivation of property takes effect.19 E.g., Opp Cotton Mills v. Administrator, 312 U.S., at 152—153, 61 S.Ct., at 535—536; United States v. Illinois Central R. Co., 291 U.S., at 463, 54 S.Ct., at 473; Southern R. Co. v. Virginia ex rel. Shirley, 290 U.S. 190, 54 S.Ct. 148, 78 L.Ed. 260; Londoner v. City & County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103; Central of Georgia R. Co. v. Wright, 207 U.S. 127, 28 S.Ct. 47, 52 L.Ed. 134; Security Trust & Safety Vault Co. v. Lexington, 203 U.S. 323, 27 S.Ct. 87, 51 L.Ed. 204; Hibben v. Smith, 191 U.S. 310, 24 S.Ct. 88, 48 L.Ed. 195; Glidden v Harrington, 189 U.S. 255, 23 S.Ct. 574, 47 L.Ed. 798. In none of those cases did the court hold that this most basic due process requirement is limited to the protection of only a few types of property interests. While Sniadach and Goldberg emphasized the special importance of wages and welfare benefits, they did not convert that emphasis into a new and more limited constitutional doctrine.20
37
Nor did they carve out a rule of 'necessity' for the sort of nonfinal deprivations of property that they involved. That was made clear in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, holding that there must be an opportunity for a fair hearing before mere suspension of a driver's license. A driver's license clearly does not rise to the level of 'necessity' exemplified by wages and welfare benefits. Rather, as the Court accurately stated, it is an 'important interest,' id., at 539, 91 S.Ct., at 1589, entitled to the protection of procedural due process of law.
38
The household goods, for which the appellants contracted and paid substantial sums, are deserving of similar protection. While a driver's license, for example, 'may become (indirectly) essential in the pursuit of a livelihood,' ibid., a stove or a bed may be equally essential to provide a minimally decent environment for human beings in their day-to-day lives. It is, after all, such consumer goods that people work and earn a livelihood in order to acquire.
39
No doubt, there may be many gradations in the 'importance' or 'necessity' of various consumer goods. Stoves could be compared to television sets, or bedscould be compared to tables. But if the root principle of procedural due process is to be applied with objectivity, it cannot rest on such distinctions. The Fourteenth Amendment speaks of 'property' generally. And, under our free-enterprise system, an individual's choices in the marketplace are respected, however unwise they may seem to someone else. It is not the business of a court adjudicating due process rights to make its own critical evaluation of those choices and protect only the ones that, by its own lights, are 'necessary.'21
VI
40
There are 'extraordinary situations' that justify postponing notice and opportunity for a hearing. Boddie v. Connecticut, 401 U.S., at 379, 91 S.Ct., at 786. These situations, however, must be truly unusual.22 Only in a few limited situations has this Court allowed outright seizure23 without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force; the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property to collect the internal revenue of the United States,24 to meet the needs of a national war effort,25 to protect against the economic disaster of a bank failure,26 and to protect the public from misbranded drugs27 and contaminated food.28
41
The Florida and Pennsylvania prejudgment replevin statutes serve no such important governmental or general public interest. They allow summary seizure of a person's possessions when no more than private gain is directly at stake.29 The replevin of chattels, as in the present cases, may satisfy a debt or settle a score. But state intervention in a private dispute hardly compares to state action furthering a war effort or protecting the public health.
42
Nor do the broadly drawn Florida and Pennsylvania statutes limit the summary seizure of goods to special situations demanding prompt action. There may be cases in which a creditor could make a showing of immediate danger that a debtor will destroy or conceal disputed goods. But the statutes before us are not 'narrowly drawn to meet any such unusual condition.' Sniadach v. Family Finance Corp., supra, 395 U.S. at 339, 89 S.Ct. at 1821. And no such unusual situation is presented by the facts of these cases.
43
The statutes, moreover, abdicate effective state control over state power. Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another. No state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even a requirement that the plaintiff provide any information to the court on these matters. The State acts largely in the dark.30
VII
44
Finally, we must consider the contention that the appellants who signed conditional sales contracts thereby waived their basic procedural due process rights. The contract signed by Mrs. Fuentes provided that 'in the event of default of any payment or payments, Seller at its option may take back the merchandise . . ..' The contracts signed by the Pennsylvania appellants similarly provided that the seller 'may retake' or 'repossess' the merchandise in the event of a 'default in any payment.' These terms were parts of printed form contracts, appearing in relatively small type and unaccompanied by any explanations clarifying their meaning.
45
In D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124, the Court recently outlined the considerations relevant to determination of a contractual waiver of due process rights. Applying the standards governing waiver of constitutional rights in a criminal proceeding31—although not holding that such standards must necessarily apply—the Court held that, on the particular facts of that case, the contractual waiver of due process rights was 'voluntarily, intelligently, and knowingly' made. Id., at 187, 92 S.Ct., at 783. The contract in Overmyer was negotiated between two corporations; the waiver provision was specifically bargained for and drafted by their lawyers in the process of these negotiations. As the Court noted, it was 'not a case of unequal bargaining power or overreaching. The Overmyer-Frick agreement, from the start, was not a contract of adhesion.' Id., at 186, 92 S.Ct., at 782. Both parties were 'aware of the significance' of the waiver provision. Ibid.
46
The facts of the present cases are a far cry from those of Overmyer. There was no bargaining over contractual terms between the parties who, in any event, were far from equal in bargaining power. The purported waiver provision was a printed part of a form sales contract and a necessary condition of the sale. The appellees made no showing whatever that the appellants were actually aware or made aware of the significance of the fine print now relied upon as a waiver of constitutional rights.
47
The Court in Overmyer observed that 'where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the (waiver) provision, other legal consequences may ensue.' Id., at 188, 92 S.Ct., at 783. Yet, as in Overmyer, there is no need in the present cases to canvass those consequences fully. For a waiver of constitutional rights in any context must, at the very least, be clear. We need not concern ourselves with the involuntariness or unintelligence of a waiver when the contractual language relied upon does not, on its face, even amount to a waiver.
48
The conditional sales contracts here simply provided that upon a default the seller 'may take back,' 'may retake' or 'may repossess' merchandise. The contracts included nothing about the waiver of a prior hearing. They did not indicate how or through what process—a final judgment, self-help, prejudgment replevin with a prior hearing, or prejudgment replevin without a prior hearing—the seller could take back the goods. Rather, the purported waiver provisions here are no more than a statement of the seller's right to repossession upon occurrence of certain events. The appellees do not suggest that these provisions waived the appellants' right to a full post-seizure hearing to determine whether those events had, in fact, occurred and to consider any other available defenses. By the same token, the language of the purported waiver provisions did not waive the appellants' constitutional right to a preseizure hearing of some kind.
VIII
49
We hold that the Florida and Pennsylvania prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor.32 Our holding, however, is a narrow one. We do not question the power of a State to seize goods before a final judgment in order to protect the security interests of creditors so long as those creditors have tested their claim to the goods through the process of a fair prior hearing. The nature and form of such prior hearings, moreover, are legitimately open to many potential variations and are a subject, at this point, for legislation—not adjudication.33 Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, however, it is axiomatic that the hearing must provide a real test. '(D)ue process is afforded only by the kinds of 'notice' and 'hearing' that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property . . ..' Sniadach v. Family Finance Corp., supra, 395 U.S. at 343, 89 S.Ct. at 1823 (Harlan, J., concurring). See Bell v. Burson, supra, 402 U.S. at 540, 91 S.Ct. at 1589; Goldberg v. Kelly, supra, 397 U.S. at 267, 90 S.Ct. at 1020.
50
For the foregoing reasons, the judgments of the District Courts are vacated and these cases are remanded for further proceedings consistent with this opinion.
51
It is so ordered.
52
Vacated and remanded.
53
Mr. Justice POWELL and Mr. Justice REHNQUIST did not participate in the consideration or decision of these cases.
54
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
55
Because the Court's opinion and judgment improvidently, in my view, call into question important aspects of the statutes of almost all the States governing secured transactions and the procedure for repossessing personal property, I must dissent for the reasons that follow.
56
First: It is my view that when the federal actions were filed in these cases and the respective District Courts proceeded to judgment there were state court proceedings in progress. It seems apparent to me that the judgments should be vacated and the District Courts instructed to reconsider these cases in the light of the principles announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; and Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701.
57
In No. 70—5039, the Florida statutes provide for the commencement of an action of replevin, with bond, by serving a writ summoning the defendant to answer the complaint. Thereupon the sheriff may seize the property, subject to repossession by defendant within three days upon filing of a counterbond, failing which the property is delivered to plaintiff to await final judgment in the replevin action. Fla.Stat.Ann. § 78.01 et seq. (Supp.1972—1973). This procedure was attacked in a complaint filed by appellant Fuentes in the federal court, alleging that an affidavit in replevin had been filed by Firestone Tire & Rubber Co. in the Small Claims Court of Dade County; that a writ of replevin had been issued pursuant thereto and duly served, together with the affidavit and complaint; and that a trial date had been set in the Small Claims Court. Firestone's answer admitted that the replevin action was pending in the Small Claims Court and asserted that Mrs. Fuentes, plaintiff in the federal court and appellant here, had not denied her default or alleged that she had the right to possession of the property. Clearly, state court proceedings were pending, no bad faith or harassment was alleged, and no irreparable injury appeared that could not have been averted by raising constitutional objections in the pending state court proceeding. In this posture, it would appear that the case should be reconsidered under Younger v. Harris and companion cases, which were announced after the District Court's judgment.
58
In No. 70—5138, Pennsylvania Rule of Civil Procedure 1073 expressly provides that an '(a)ction of replevin with bond shall be commended by filing with the prothonotary a praecipe for a writ of replevin with bond . . ..' When the writ issues and is served, the defendant has three days to file a counterbond and should he care to have a hearing he may file his own praecipe, in which event the plaintiff must proceed further in the action by filing and serving his complaint.
59
In the cases before us, actions in replevin were commenced in accordance with the rules, and appellee Sears, Roebuck & Co. urged in the District Court that plaintiffs had 'adequate remedies at law which they could pursue in the state court proceedings which are still pending in accordance with the statutes and rules of Pennsylvania.' App. 60. Under Younger v. Harris and companion cases, the District Court's judgment should be vacated and the case reconsidered.
60
Second: It goes without saying that in the typical installment sale of personal property both seller and buyer have interests in the property until the purchase price is fully paid, the seller early in the transaction often having more at stake than the buyer. Nor is it disputed that the buyer's right to possession is conditioned upon his making the stipulated payments and that upon default the seller is entitled to possession. Finally, there is no question in these cases that if default is disputed by the buyer he has the opportunity for a full hearing, and that if he prevails he may have the property or its full value as damages.
61
The narrow issue, as the Court notes, is whether it comports with due process to permit the seller, pending final judgment, to take possession of the property through a writ of replevin served by the sheriff without affording the buyer opportunity to insist that the seller establish at a hearing that there is reasonable basis for his claim of default. The interests of the buyer and seller are obviously antagonistic during this interim period: the buyer wants the use of the property pending final judgment; the seller's interest is to prevent further use and deterioration of his security. By the Florida and Pennsylvania laws the property is to all intents and purposes placed in custody and immobilized during this time. The buyer loses use of the property temporarily but is protected against loss; the seller is protected against deterioration of the property but must undertake by bond to make the buyer whole in the event the latter prevails.
62
In considering whether this resolution of conflicting interests is unconstitutional, much depends on one's perceptions of the practical considerations involved. The Court holds it constitutionally essential to afford opportunity for a probable-cause hearing prior to repossession. Its stated purpose is 'to prevent unfair and mistaken deprivations of property.' But in these typical situations, the buyer-debtor has either defaulted or he has not. If there is a default, it would seem not only 'fair,' but essential, that the creditor be allowed to repossess; and I cannot say that the likelihood of a mistaken claim of default is sufficiently real or recurring to justify a broad constitutional requirement that a creditor do more than the typical state law requires and permits him to do. Sellers are normally in the business of selling and collecting the price for their merchandise. I could be quite wrong, but it would not seem in the creditor's interest for a default occasioning repossession to occur; as a practical matter it would much better serve his interests if the transaction goes forward and is completed as planned. Dollar-and-cents considerations weigh heavily against false claims of default as well as against precipitate action that would allow no opportunity for mistakes to surface and be corrected.* Nor does it seem to me that creditors would lightly undertake the expense of instituting replevin actions and putting up bonds.
63
The Court relies on prior cases, particularly Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); an Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). But these cases provide no automatic test for determining whether and when due process of law requires adversary proceedings. Indeed, '(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. . . .' '(W)hat procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). See also Stanley v. Illinois, supra, 405 U.S., at 650, 92 S.Ct., at 1212; Goldberg v. Kelly, supra, 397 U.S., at 263, 90 S.Ct., at 1018. Viewing the issue before us in this light, I would not construe the Due Process Clause to require the creditors to do more than they have done in these cases to secure possession pending final hearing. Certainly, I would not ignore, as the Court does, the creditor's interest in preventing further use and deterioration of the property in which he has substantial interest. Surely under the Court's own definition, the creditor has a 'property' interest as deserving of protection as that of the debtor. At least the debtor, who is very likely uninterested in a speedy resolution that could terminate his use of the property, should be rquired to make those payments, into court or otherwise, upon which his right to possession is conditioned. Cf. Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972).
64
Third: The Court's rhetoric is seductive, but in end analysis, the result it reaches will have little impact and represents no more than ideological tinkering with state law. It would appear that creditors could withstand attack under today's opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing, or, for that matter, without resort to judicial process at all. Alternatively, they need only give a few days' notice of a hearing, take possession if hearing is waived or if there is default; and if hearing is necessary merely establish probable cause for asserting that default has occurred. It is very doubtful in my mind that such a hearing would in fact result in protections for the debtor substantially different from those the present laws provide. On the contrary, the availability of credit may well be diminished or, in any event, the expense of securing it increased.
65
None of this seems worth the candle to me. The procedure that the Court strikes down is not some barbaric hangover from bygone days. The respective rights of the parties in secured transactions have undergone the most intensive analysis in recent years. The Uniform Commercial Code, which now so pervasively governs the subject matter with which it deals, provides in Art. 9, § 9—503, that:
66
'Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. . . .'
67
Recent studies have suggested no changes in Art. 9 in this respect. See Permanent Editorial Board for the Uniform Commercial Code, Review Committee for Article 9 of the Uniform Commercial Code, Final Report, § 9—503 (April 25, 1971). I am content to rest on the judgment of those who have wrestled with these problems so long and often and upon the judgment of the legislatures that have considered and so recently adopted provisions that contemplate precisely what has happened in these cases.
*
Together with No. 70-5138, Parham et al. v. Cortese et al., on appeal from the United States District Court for the Eastern District of Pennsylvania.
1
See Infra, at 73—75.
2
Both Mrs. Fuentes and the appellants in No. 5138 also challenged the prejudgment replevin procedures under the Fourth Amendment, made applicable to the States by the Fourteenth. We do not, however, reach that issue. See n. 32, infra.
3
Neither Mrs. Fuentes nor the appellants in No. 5138 sought an injunction against any pending or future court proceedings as such. Compare Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669. Rather, they challenged only the summary extra-judicial process of prejudgment seizure of property to which they had already been subjected. They invoked the jurisdiction of the federal district courts under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).
4
Unlike Mrs. Fuentes in No. 5039, none of the appellants in No. 5138 was ever sued in any court by the party who initiated seizure of the property. See infra, at 77—78.
5
Since the announcement of this Court's decision in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 summary prejudgment remedies have come under constitutional challenge throughout the country. The summary deprivation of property under statutes very similar to the Florida and Pennsylvania statutes at issue here has been held unconstitutional by at least two courts. Laprease v. Raymours Furniture Co., 315 F.Supp. 716 (N.D.N.Y.); Blair v. Pitchess, 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242. But see Brunswick Corp. v. J. & P., Inc., 424 F.2d 100 (CA10); Wheeler v. Adams Co., 322 F.Supp. 645 (D.Md.); Almor Furniture & Appliances, Inc. v. MacMillan, 116 N.J.Super. 65, 280 A.2d 862. Applying Sniadach to other closely related forms of summary prejudgment remedies, some courts have construed that decision as setting forth general principles of procedural due process and have struck down such remedies. E.g., Adams v. Egley, 338 F.Supp. 614 (S.D.Cal., 1972); Collins v. Viceroy Hotel Corp., 338 F.Supp. 390 (N.D.Ill.1972); Santiago v. McElroy, 319 F.Supp. 284 (E.D.Pa.); Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.); Randone v. Appellate Dept., 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13; Larson v. Fetherston, 44 Wis.2d 712, 172 N.W.2d 20; Jones Press, Inc. v. Motor Travel Services, Inc., 286 Minn. 205, 176 N.W.2d 87. See Lebowitz v. Forbes Leasing & Finance Corp., 326 F.Supp. 1335, 1341—1348 (E.D.Pa.). Other courts, however, have con-
strued Sniadach as closely confined to its own facts and have upheld such summary prejudgment remedies. E.g., Reeves v. Motor Contract Co., 324 F.Supp. 1011 (N.D.Ga.); Black Watch Farms v. Dick, 323 F.Supp. 100 (D.Conn.); Ameican Olean Tile Co. v. Zimmerman, 317 F.Supp. 150 (D.Hawaii); Young v. Ridley, 309 F.Supp. 1308 (D.C.); Termplan, Inc. v. Superior Court of Maricopa County, 105 Ariz. 270, 463 P.2d 68; 300 West 154th Street Realty Co. v. Department of Buildings, 26 N.Y.2d 538, 311 N.Y.S.2d 899, 260 N.E.2d 534.
6
The relevant Florida statutory provisions are the following:
Fla.Stat.Ann. § 78.01 (Supp.1972—1973):
'Right to replevin.—Any person whose goods or chattels are wrongfully detained by any other person or officer may have a writ of replevin to recover them and any damages sustained by reason of the wrongful caption or detention as herein provided. Or such person may seek like relief, but with summons to defendant instead of replevy writ in which event no bond is required and the property shall be seized only after judgment, such judgment to be in like form as that provided when defendant has retaken the property on a forthcoming bond.'
Fla.Stat.Ann. § 78.07 (Supp.1972—1973):
'Bond; requisites.—Before a replevy writ issues, plaintiff shall file a bond with surety payable to defendant to be approved by the clerk in at least double the value of the property to be replevied conditioned that plaintiff will prosecute his action to effect and without delay and that if defendant recovers judgment against him in the action, he will return the property, if return thereof is adjudged, and will pay defendant all sums of money recovered against plaintiff by defendant in the action.'
Fla.Stat.Ann. § 78.08 (Supp.1972—1973):
'Writ; form; return.—The writ shall command the officer to whom it may be directed to replevy the goods and chattels in pos-
session of defendant, describing them, and to summon the defendant to answer the complaint.'
Fla.Stat.Ann. § 78.10 (Supp.1972—1973):
'Writ; execution on property in buildings, ect.—In executing the writ of replevin, if the property or any part thereof is secreted or concealed in any dwelling house or other building or enclosure, the officer shall publicly demand delivery thereof and if it is not delivered by the defendant or some other person, he shall cause such house, building or enclosure to be broken open and shall make replevin according to the writ; and if necessary, he shall take to his assistance the power of the county.'
Fla.Stat.Ann. § 78.13 (Supp.1972—1973):
'Writ; disposition of property levied on.—The officer executing the writ shall deliver the property to plaintiff after the lapse of three (3) days from the time the property was taken unless within the three (3) days defendant gives bond with surety to be approved by the officer in double the value of the property as appraised by the officer, conditioned to have the property forthcoming to abide the result of the action, in which event the property shall be redelivered to defendant.'
7
The basic Pennsylvania statutory provision regarding the issuance of writs of replevin is the following:
Pa.Stat.Ann., Tit. 12, § 1821. Writs of replevin authorized
'It shall and may be lawfull for the justices of each county in this province to grant writs of replevin, in all cases whatsoever,
where replevins may be granted by the laws of England, taking security as the said law directs, and make them returnable to the respective courts of common pleas, in the proper county, there to be determined according to law.'
The procedural prerequisites to issuance of a prejudgment writ are, however, set forth in the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix. The relevant rules are the following:
'Rule 1073. Commencement of Action
'(a) An action of replevin with bond shall be commenced by filing with the prothonotary a praecipe for a writ of replevin with bond, together with
'(1) the plaintiff's affidavit of the value of the property to be replevied, and
'(2) the plaintiff's bond in double the value of the property, with security approved by the prothonotary, naming the Commonwealth of Pennsylvania as obligee, conditioned that if the plaintiff fails to maintain his right of possession of the property, he shall pay to the party entitled thereto the value of the property and all legal costs, fees and damages sustained by reason of the issuance of the writ.
'(b) An action of replevin without bond shall be commenced by filing with the prothonotary
'(1) a praecipe for a writ of replevin without bond or
'(2) a complaint.
'If the action is commenced without bond, the sheriff shall not replevy the property but at any time before the entry of judgment the plaintiff, upon filing the affidavit and bond prescribed by subsidivision (a) of this rule, may obtain a writ of replevin with bond, issued in the original action, and have the sheriff replevy the property.
'Rule 1076. Counterbond
'(a) A counterbond may be filed with the prothonotary by a defendant or intervenor claiming the right to the possession of the property, except a party claiming only a lien thereon, within seventy-two (72) hours after the property has been replevied, or within seventy-two (72) hours after service upon the defendant when the taking of possession of the property by the sheriff has been waived by the plaintiff as provided by Rule 1077(a), or within such extension of time as may be granted by the court upon cause shown.
'(b) The counterbond shall be in the same amount as the original
bond, with security approved by the prothonotary, naming the Commonwealth of Pennsylvania as obligee, conditioned that if the party filing it fails to maintain his right to possession of the property he shall pay to the party entitled thereto the value of the property, and all legal costs, fees and damages sustained by reason of the delivery of the replevied property to the party filing the counterbond.
'Rule 1077. Disposition of Replevied Property. Sheriff's Return
'(a) When a writ of replevin with bond is issued, the sheriff shall leave the property during the time allowed for the filing of a counterbond in the possession of the defendant or of any other person if the plaintiff so authorizes him in writing.
'(b) Property taken into possession by the sheriff shall be held by him until the expiration of the time for filing a counterbond. If the property is not ordered to be impounded and if no counterbond is filed, the sheriff shall deliver the property to the plaintiff.
'(c) If the property is not ordered to be impounded and the person in possession files a counterbond, the property shall be delivered to him, but if he does not file a counterbond, the property shall be delivered to the party first filing a counterbond.
'(d) When perishable property is replevied the court may make such order relating to its sale or disposition as shall be proper.
'(e) The return of the sheriff to the writ of replevin with bond shall state the disposition made by him of the property and the name and address of any person found in possession of the property.'
8
Pa.Rule Civ.Proc. 1073(b) does establish a procedure whereby an applicant may obtain a writ by filing a complaint, initiating a later court action. See n. 7, supra. In the case of every appellant in No. 70—5138, the applicant proceeded under Rule 1073(a) rather than 1073(b), seizing property under no more than a security bond and initiating no court action.
9
Pa.Rule Civ.Proc. 1037(a) establishes the procedure for initiating such a suit:
'If an action is not commenced by a complaint (under Rule 1073(b)), the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros.'
None of the appellants in No. 70—5138 attempted to initiate the process to require the filing of a post-seizure complaint under Rule 1037(a).
10
See T. Plucknett, A Concise History of the Common Law 367 369 (1956); 3 W. Holdsworth, History of English Law 284—285 (1927); 2 F. Pollock & F. Maitland, History of English Law 577 (1909); J. Cobbey, Replevin 19—29 (1890).
11
See Plucknett, supra, n. 10, at 362—365; Pollock & Maitland, supra, n. 10, at 173—175, 203—211.
12
The creditor could, of course, proceed without the use of state power, through self-help, by 'distraining' the property before a judgment. See n. 10, supra.
13
They may not even test that much. For if an applicant for the writ knows that he is dealing with an uneducated, uniformed consumer with little access to legal help and little familiarity with legal procedures, there may be a substantial possibility that a summary seizure of property—however unwarranted—may go unchallenged, and the applicant may feel that he can act with impunity.
14
The appellants argue that this opportunity for quick recovery exists only in theory. They allege that very few people in their position are able to obtain a recovery bond, even if they know of the possibility. Appellant Fuentes says that in her case she was never told that she could recover the stove and stereo and that the deputy sheriff seizing them gave them at once to the Firestone agent, rather than holding them for three days. She further asserts that of 442 cases of prejudgment replevin in small-claims courts in Dade County, Florida, in 1969, there was not one case in which the defendant took advantage of the recovery provision.
15
Bell v. Burson, 402 U.S. 535, 536, 91 S.Ct. 1586, 1587, 29 L.Ed.2d 90. Although not mentioned in the Sniadach opinion, there clearly was a quick recovery provision in the Wisconsin prejudgment garnishment statute at issue. Wis.Stat.Ann. § 267.21(1) (Supp.1970—1971). Family Finance Corp. v. Sniadach, 37 Wis.2d 163, 173—174, 154 N.W.2d 259, 265. Mr. Justice Harlan adverted to the recovery provision in his concurring opinion. 395 U.S. 337, at 343, 89 S.Ct. 1820, at 1823, 23 L.Ed.2d 349.
These sorts of provisions for recovery of property by posting security are, of course, entirely different from the security requirement upheld in Lindsey v. Normet, 405 U.S. 56, 65, 92 S.Ct. 862, 870, 31 L.Ed.2d 36. There, the Court upheld a requirement that a tenant wanting a continuance of an eviction hearing must post security for accruing rent during the continuance. The tenant did not have to post security in order to remain in possession before a hearing; rather, he had to post security only in order to obtain a continuance of the hearing. Moreover, the security requirement in Lindsey was not a recovery provision. For the tenant was not deprived of his possessory interest even for one day without opportunity for a hearing.
16
The possessory interest of Rosa Washington, an appellant in No. 5138, in her son's clothes, furniture, and toys was no less sufficient to invoke due process safeguards. Her interest was not protected by contract. Rather, it was protected by ordinary property law, there being a dispute between her and her estranged husband over which of them had a legal right not only to custody of the child but also to possession of the chattels.
17
Mrs. Fuentes argues that Florida law allows her to defend on the ground that Firestone breached its obligations under the sales contract by failing to repair serious defects in the stove it sold her. We need not consider this issue here. It is enough that the right to continued possession of the goods was open to some dispute at a hearing since the sellers of the goods had to show, at the least, that the appellants had defaulted in their payments.
18
The issues decisive of the ultimate right to continued possession, of course, may be quite simple. The simplicity of the issues might be relevant to the formality or scheduling of a prior hearing. See Lindsey v. Normet, 405 U.S. 56, 65, 92 S.Ct. 862, 869, 31 L.Ed.2d 36. But it certainly cannot undercut the right to a prior hearing of some kind.
19
The Supreme Court of California recently put the matter accurately: 'sniadach put the matter accurately: 'Sniadach in constitutional adjudication. It is not a rivulet of wage garnishment but part of the mainstream of the past procedural due process decisions of the United States Supreme Court.' Randone v. Appellate Dept., 5 Cal.3d 536, 550, 96 Cal.Rptr. 709, 718, 488 P.2d 13, 22.
20
Sniadach v. Family Finance Corp., supra, 395 U.S., at 340, 89 S.Ct., at 1822; Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287. Of course, the primary issue in Goldberg was the form of hearing demanded by due process before termination of welfare benefits; the importance of welfare was directly relevant to that question.
21
The relative weight of liberty or property interests is relevant, of course, to the form of notice and hearing required by due process. See, e.g., Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 and cases cited therein. But some form of notice and hearing—formal or informal—is required before deprivation of a property interest that 'cannot be characterized as de minimis.' Sniadach v. Family Finance Corp., supra, 395 U.S., at 342, 89 S.Ct., at 1823 (Harlan, J., concurring).
22
A prior hearing always imposes some costs in time, effort, and expense, and it is often more efficient to dispense with the opportunity for such a hearing. But these rather ordinary costs cannot outweigh the constitutional right. See Bell v. Burson, supra, 402 U.S., at 540—541, 91 S.Ct., at 1589—1590; Goldberg v. Kelly, supra, 397 U.S., at 261, 90 S.Ct., at 1016. Procedural due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions are about to be taken.
'The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.' Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551.
23
Of course, outright seizure of property is not the only kind of deprivation that must be preceded by a prior hearing. See, e.g., Sniadach v. Family Finance Corp., supra. In three cases, the Court has allowed the attachment of property without a prior hearing. In one, the attachment was necessary to protect the public against the same sort of immediate harm involved in the seizure cases—a bank failure. Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768. Another case involved attachment necessary to secure jurisdiction in state court—clearly a most basic and important public interest. Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837. It is much less clear what interests were involved in the third case, decided with an unexplicated per curiam opinion simply citing Coffin Bros. and Ownbey. McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975. As far as essential procedural due process doctrine goes, McKay cannot stand for any more than was established in the Coffin Bros. and Ownbey cases on which it relied completely. See Sniadach v. Family Finance Corp., supra, 395 U.S., at 340, 89 S.Ct., at 1822; id., at 344, 89 S.Ct. 1823 (Harlan, J., concurring).
In cases involving deprivation of other interests, such as government employment, the Court similarly has required an unusually important governmental need to outweigh to right to a prior hearing. See, e.g., Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 895—896, 81 S.Ct. 1743, 1748—1749, 6 L.Ed.2d 1230.
Seizure under a search warrant is quite a different matter, see n. 30, infra.
24
Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289. The Court stated that '(d)elay in the judicial determination of property rights is not uncommon where it is essential that governmental needs be immediately satisfied.' Id., at 597, 51 S.Ct., at 611 (emphasis supplied). The Court, then relied on 'the need of the government promptly to secure its revenues.' Id., at 596, 51 S.Ct., at 611.
25
Central Union Trust Co. v. Garvan, 254 U.S. 554, 566, 41 S.Ct. 214, 215, 65 L.Ed. 403; Stoehr v. Wallace, 255 U.S. 239, 245, 41 S.Ct. 293, 296, 65 L.Ed. 604; United States v. Pfitsch, 256 U.S. 547, 553, 41 S.Ct. 569, 571, 65 L.Ed. 1084.
26
Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030.
27
Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088.
28
North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195.
29
By allowing repossession without an opportunity for a prior hearing, the Florida and Pennsylvania statutes may be intended specifically to reduce the costs for the private party seeking to seize goods in another party's possession. Even if the private gain at stake in repossession actions were equal to the great public interests recognized in this Court's past decisions, see nn. 24—28, supra, the Court has made clear that the avoidance of the ordinary costs imposed by the opportunity for a hearing is not sufficient to override the constitutional right. See n. 22, supra. The appellees argue that the cost of holding hearings may be especially onerous in the context of the creditor-debtor relationship. But the Court's holding in Sniadach v. Family Finance Corp., supra, indisputably demonstrates that ordinary hearing costs are no more able to override due process rights in the creditordebtor context than in other contexts.
In any event, the aggregate cost of an opportunity to be heard before repossession should not be exaggerated. For we deal here only with the right to an opportunity to be heard. Since the issues and facts decisive of rights in repossession suits may very often be quite simple, there is a likelihood that many defendants would forgo their opportunity, sensing the futility of the exercise in the particular case. And, of course, no hearing need be held unless the defendant, having received notice of his opportunity, takes advantage of it.
30
The seizure of possessions under a writ of replevin is entirely different from the seizure of possessions under a search warrant. First, a search warrant is generally issued to serve a highly important governmental need—e.g., the apprehension and conviction of criminals—rather than the mere private advantage of a private party in an economic transaction. Second, a search warrant is generally issued in situations demanding prompt action. The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice. Third, the Fourth Amendment guarantees that the State will not issue search warrants merely upon the conclusory application of a private party. It guarantees that the State will not abdicate control over the issuance of warrants and that no warrant will be issued without a prior showing of probable cause. Thus, our decision today in no way implies that there must be opportunity for an adversary hearing before a search warrant is issued. But cf. Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809.
31
See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. In the civil area, the Court has said that '(w)e do not presume acquiescence in the loss of fundamental rights,' Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093. Indeed, in the civil no less than the criminal area, 'courts indulge every reasonable presumption against waiver.' Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177.
32
We do not reach the appellants' argument that the Florida and Pennsylvania statutory procedures violate the Fourth Amendment, made applicable to the States by the Fourteenth. See n. 2, supra. For once a prior hearing is required, at which the applicant for a writ must establish the probable validity of his claim for repossession, the Fourth Amendment problem may well be obviated. There is no need for us to decide that question at this point.
33
Leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing in preventing seizures of goods where the party seeking the writ has little probability of succeeding on the merits of the dispute.
*
Appellants Paul and Ellen Parham admitted in their complaints that they were delinquent in their payments. They stipulated to this effect as well as to receipt of notices of delinquency prior to institution of the replevin action, and the District Court so found.
Appellant Epps alleged in his complaint that he was not in default. The defendant, Government Employees Exchange Corp., answered that Epps was in default in the amount of $311.25 as of August 9, 1970, that the entire sum due had been demanded in accordance with the relevant documents, and that Epps had failed and refused to pay that sum. The District Court did not resolve this factual dispute. It did find that Epps earned in excess of $10,000 per year and that the agreements Epps and Parham entered into complied with the provisions of Pennsylvania's Uniform Commercial Code and its Services and Installment Sales Act.
As for appellant Rosa Washington, the District Court, based on the allegations of her complaint, entered a temporary restraining order requiring that the property seized from her be returned forthwith. At a subsequent hearing the order was dissolved, the court finding 'that the representations upon which the temporary restraining order of September 18, 1970, issued were incorrect, both as to allegations contained in the complaint and representations made by counsel.' (App. 29.)
It was stipulated between appellant Fuentes and defendants in the District Court that Mrs. Fuentes was in default at the time the replevin action was filed and that notices to this effect were sent to her over several months prior to institution of the suit. (App. 25—26.)
| 12
|
407 U.S. 1
92 S.Ct. 1907
32 L.Ed.2d 513
M/S BREMEN and Unterweser Reederei, GmBH, Petitioners,v.ZAPATA OFF-SHORE COMPANY.
No. 71—322.
Argued March 21, 1972.
Decided June 12, 1972.
Syllabus
Petitioner Unterweser made an agreement to tow respondent's drilling rig from Louisiana to Italy. The contract contained a forum-selection clause providing for the litigation of any dispute in the High Court of Justice in London. When the rig under tow was damaged in a storm, respondent instructed Unterweser to tow the rig to Tampa, the nearest port of refuge. There, respondent brought suit in admiralty against petitioners. Unterweser invoked the forum clause in moving for dismissal for want of jurisdiction and brought suit in the English court, which ruled that it had jurisdiction under the contractual forum provision. The District Court, relying on Carbon Black Export, Inc. v. The Monrosa, 5 Cir., 254 F.2d 297, held the forum-selection clause unenforceable, and refused to decline jurisdiction on the basis of forum non conveniens. The Court of Appeals affirmed. Held: The forum-selection clause, which was a vital part of the towing contract, is binding on the parties unless respondent can meet the heavy burden of showing that its enforcement would be unreasonable, unfair, or unjust. Pp. 8—20.
428 F.2d 888 and 446 F.2d 907, vacated and remanded.
David C. G. Kerr, Tampa, Fla., for petitioners.
James K. Nance, Houston, Tex., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to review a judgment of the United States Court of Appeals for the Fifth Circuit declining to enforce a forum-selection clause governing disputes arising under an international towage contract between petitioners and respondent. The circuits have differed in their approach to such clauses.1 For the reasons stated hereafter, we vacate the judgment of the Court of Appeals.
2
In November 1967, respondent Zapata, a Houston-based American corporation, contracted with petitioner Unterweser, a German corporation, to tow Zapata's ocean-going, self-elevating drilling rig Chaparral from Louisiana to a point off Ravenna, Italy, in the Adriatic Sea, where Zapata had agreed to drill certain wells.
3
Zapata had solicited bids for the towage, and several companies including Unterweser had responded. Unterweser was the low bidder and Zapata requested it to submit a contract, which it did. The contract submitted by Unterweser contained the following provision, which is at issue in this case:
4
'Any dispute arising must be treated before the London Court of Justice.' In addition the contract contained two clauses purporting to exculpate Unterweser from liability for damages to the towed barge.2
5
After reviewing the contract and making several changes, but without any alteration in the forum-selection or exculpatory clauses, a Zapata vice president executed the contract and forwarded it to Unterweser in Germany, where Unterweser accepted the changes, and the contract became effective.
6
On January 5, 1968, Unterweser's deep sea tug Bremen departed Venice, Louisiana, with the Chaparral in tow bound for Italy. On January 9, while the flotilla was in international waters in the middle of the Gulf of Mexico, a severe storm arose. The sharp roll of the Chaparral in Gulf waters caused its elevator legs, which had been raised for the voyage, to break off and fall into the sea, seriously damaging the Chaparral. In this emergency situation Zapata instructed the Bramen to tow its damaged rig to Tampa, Florida, the nearest port of refuge.
7
On January 12, Zapata, ignoring its contract promise to litigate 'any dispute arising' in the English courts, commenced a suit in admiralty in the United States District Court at Tampa, seeking $3,500,000 damages against Unterweser in personam and the Bremen in rem, alleging negligent towage and breach of contract.3 Unterweser responded by invoking the forum clause of the towage contract, and moved to dismiss for lack of jurisdiction or on forum non conveniens grounds, or in the alternative to stay the action pending submission of the dispute to the 'London Court of Justice'. Shortly thereafter, in February, before the District Court had ruled on its motion to stay or dismiss the United States action, Unterweser commenced an action against Zapata seeking damages for breach of the towage contract in the High Court of Justice in London, as the contract provided. Zapata appeared in that court to contest jurisdiction, but its challenge was rejected, the English courts holding that the contractual forum provision conferred juisdiction.4
8
In the meantime, Unterweser was faced with a dilemma in the pending action in the United States court at Tampa. The six-month period for filing action to limit its liability to Zapata and other potential claimants was about to expire,5 but the United States District Court in Tampa had not yet ruled on Unterweser's motion to dismiss or stay Zapata's action. On July 2, 1968, confronted with difficult alternatives, Unterweser filed an action to limit its liability in the District Court in Tampa. That court entered the customary injunction against proceedings outside the limitation court, and Zapata refiled its initial claim in the limitation action.6
9
It was only at this juncture, on July 29, after the six-month period for filing the limitation action had run, that the District Court denied Unterweser's January motion to dismiss or stay Zapata's initial action. In denying the motion, that court relied on the prior decision of the Court of Appeals in Carbon Black Export, Inc. v. The Monrosa, 254 F.2d 297 (CA5 1958), cert. dismissed, 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959). In that case the Court of Appeals had held a forum-selection clause unenforceable, reiterating the traditional view of many American courts that 'agreements in advance of controversy whose object is to oust the jurisdiction of the courts are contrary to public policy and will not be enforced.' 254 F.2d, at 300—301.7 Apparently concluding that it was bound by the Carbon Black case, the District Court gave the forum-selection clause little, if any, weight. Instead, the court treated the motion to dismiss under normal forum non conveniens doctrine applicable in the absence of such a clause, citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Under that doctrine 'unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.' Id., at 508, 67 S.Ct., at 843. The District Court concluded: 'the balance of conveniences here is not strongly in favor of (Unterweser) and (Zapata's) choice of forum should not be disturbed.'
10
Thereafter, on January 21, 1969, the District Court denied another motion by Unterweser to stay the limitation action pending determination of the controversy in the High Court of Justice in London and granted Zapata's motion to restrain Unterweser from litigating further in the London court. The District Judge ruled that, having taken jurisdiction in the limitation proceeding, he had jurisdiction to determine all matters relating to the controversy. He ruled that Unterweser should be required to 'do equity' by refraining from also litigating the controversy in the London court, not only for the reasons he had previously stated for denying Unterweser's first motion to stay Zapata's action, but also because Unterweser had invoked the United States court's jurisdiction to obtain the benefit of the Limitation Act.
11
On appeal, a divided panel of the Court of Appeals affirmed, and on rehearing en banc the panel opinion was adopted, with six of the 4 en banc judges dissenting. As had the District Court, the majority rested on the Carbon Black decision, concluding that "at the very least" that case stood for the proposition that a forum-selection clause "will not be enforced unless the selected state would provide a more convenient forum than the state in which suit is brought." From that premise the Court of Appeals proceeded to conclude that, apart from the forum-selection clause, the District Court did not abuse its discretion in refusing to decline jurisdiction on the basis of forum non conveniens. It noted that (1) the flotilla never 'escaped the Fifth Circuit's mare nostrum, and the casualty occurred in close proximity to the district court'; (2) a considerable number of potential witnesses, including Zapata crewmen, resided in the Gulf Coast area; (3) preparation for the voyage and inspection and repair work had been performed in the Gulf area; (4) the testimony of the Bremen crew was available by way of deposition; (5) England had no interest in or contact with the controversy other than the forum-selection clause. The Court of Appeals majority further noted that Zapata was a United States citizen and '(t)he discretion of the district court to remand the case to a foreign forum was consequently limited'—especially since it appeared likely that the English courts would enforce the exculpatory clauses.8 In the Court of Appeals' view, enforcement of such clauses would be contrary to public policy in American courts under Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), and Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963). Therefore, '(t)he district court was entitled to consider that remanding Zapata to a foreign forum, with no practical contact with the controversy, could raise a bar to recovery by a United States citizen which its own convenient courts would not countenance.'9
12
We hold, with the six dissenting members of the Court of Appeals, that far too little weight and effect were given to the forum clause in resolving this controversy. For at least two decades we have witnessed an expansion of overseas commercial activities by business enterprises based in the United States. The barrier of distance that once tended to confine a business concern to a modest territory no longer does so. Here we see an American company with special expertise contracting with a foreign company to tow a complex machine thousands of miles across seas and oceans. The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts. Absent a contract forum, the considerations relied on by the Court of Appeals would be persuasive reasons for holding an American forum convenient in the traditional sense, but in an era of expanding world trade and commerce, the absolute aspects of the doctrine of the Carbon Black case have little place and would be a heavy hand indeed on the future development of international commercial dealings by Americans. We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.
13
Forum-selection clauses have historically not been favored by American courts. Many courts, federal and state, have declined to enforce such clauses on the ground that they were 'contrary to public policy,' or that their effect was to 'oust the jurisdiction' of the court.10 Although this view apparently still has considerable acceptance, other courts are tending to adopt a more hospitable attitude toward forum-selection clauses. This view, advanced in the well-reasoned dissenting opinion in the instant case, is that such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances.11 We believe this is the correct doctrine to be followed by federal district courts sitting in admiralty. It is merely the other side of the proposition recognized by this Court in National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), holding that in federal courts a party may validly consent to be sued in a jurisdiction where he cannot be found for service of process through contractual designation of an 'agent' for receipt of process in that jurisdiction. In so holding, the Court stated:
14
'(I)t is settled . . . that parties to a contract may agree in advance to submit to the jurisdiction of a given court to permit notice to be served by the opposing party, or even to waive notice altogether.' Id., at 315—316, 84 S.Ct., at 414.
15
This approach is substantially that followed in other common-law countries including England.12 It is the view advanced by noted scholars and that adopted by the Restatement of the Conflict of Laws.13 It accords with ancient concepts of freedom of contract and reflects an appreciation of the expanding horizons of American contractors who seek business in all parts of the world. Not surprisingly, foreign businessmen prefer, as do we, to have disputes resolved in their own courts, but if that choice is not available, then in a neutral forum with expertise in the subject matter. Plainly, the courts of England meet the standards of neutrality and long experience in admiralty litigation. The choice of that forum was made in an arm's-length negotiation by experienced and sophisticated businessmen, and absent some compelling and countervailing reason it should be honored by the parties and enforced by the courts.
16
The argument that such clauses are improper because they tend to 'oust' a court of jurisdiction is hardly more than a vestigial legal fiction. It appears to rest at core on historical judicial resistance to any attempt to reduce the power and business of a particular court and has little place in an era when all courts are overloaded and when businesses once essentially local now operate in world markets. It reflects something of a provincial attitude regarding the fairness of other tribunals. No one seriously contends in this case that the forumselection clause 'ousted' the District Court of jurisdiction over Zapata's action. The threshold question is whether that court should have exercised its jurisdiction to do more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement, by specifically enforcing the forum clause.
17
There are compelling reasons why a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power,14 such as that involved here, should be given full effect. In this case, for example, we are concerned with a far from routine transaction between companies of two different nations contemplating the tow of a extremely costly piece of equipment from Louisiana across the Gulf of Mexico and the Atlantic Ocean, through the Mediterranean Sea to its final destination in the Adriatic Sea. In the course of its voyage, it was to traverse the waters of many jurisdictions. The Chaparral could have been damaged at any point along the route, and there were countless possible ports of refuge. That the accident occurred in the Gulf of Mexico and the barge was towed to Tampa in an emergency were mere fortuities. It cannot be doubted for a moment that the parties sought to provide for a neutral forum for the resolution of any disputes arising during the tow. Manifestly much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place where the Bremen or Unterweser might happen to be found.15 The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting. There is strong evidence that the forum clause was a vital part of the agreement,16 and it would be unrealistic to think that the parties did not conduct their negotiations, including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations. Under these circumstances, as Justice Karminski reasoned in sustaining jurisdiction over Zapata in the High Court of Justice, '(t)he force of an agreement for litigation in this country, freely entered into between two competent parties, seems to me to be very powerful.' Thus, in the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside. Although their opinions are not altogether explicit, it seems reasonably clear that the District Court and the Court of Appeals placed the burden on Unterweser to show that London would be a more convenient forum than Tampa, although the contract expressly resolved that issue. The correct approach would have been to enforce the forum clause specifically unless Zapata could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching. Accordingly, the case must be remanded for reconsideration.
18
We note, however, that there is nothing in the record presently before us that would support a refusal to enforce the forum clause. The Court of Appeals suggested that enforcement would be contrary to the public policy of the forum under Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), because of the prospect that the English courts would enforce the clauses of the towage contract purporting to exculpate Unterweser from liability for damages to the Chaparral. A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision. See, e.g., Boyd v. Grand Trunk W.R. Co., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949). It is clear, however, that whatever the proper scope of the policy expressed in Bisso,17 it does not reach this case. Bisso rasted on considerations with respect to the towage business strictly in American waters, and those considerations are not controlling in an international commercial agreement. Speaking for the dissenting judges in the Court of Appeals, Judge Wisdom pointed out:
19
'(W)e should be careful not to overemphasize the strength of the (Bisso) policy. . . . (T)wo concerns underlie the rejection of exculpatory agreements: that they may be produced by overweening bargaining power; and that they do not sufficiently discourage negligence. . . . Here the conduct in question is that of a foreign party occurring in international waters outside our jurisdiction. The evidence disputes any notion of overreaching in the contractual agreement. And for all we know, the uncertainties and dangers in the new field of transoceanic towage of oil rigs were so great that the tower was unwilling to take financial responsibility for the risks, and the parties thus allocated responsibility for the voyage to the tow. It is equally possible that the contract price took this factor into account. I conclude that we should not invalidate the forum selection clause here unless we are firmly convinced that we would thereby significantly encourage negligent conduct within the boundaries of the United States.' 428 F.2d, at 907 908. (Footnotes omitted.)
20
Courts have also suggested that a forum clause, even though it is freely bargained for and contravenes no important public policy of the forum, may nevertheless be 'unreasonable' and unenforceable if the chosen forum is seriously inconvenient for the trial of the action. Of course, where it can be said with reasonable assurance that at the time they entered the contract, the parties to a freely negotiated private international commercial agreement contemplated the claimed inconvenience, it is difficult to see why any such claim of inconvenience should be heard to render the forum clause unenforceable. We are not here dealing with an agreement between two Americans to resolve their essentially local disputes in a remote alien forum. In such a case, the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause. The remoteness of the forum might suggest that the agreement was an adhesive one, or that the parties did not have the particular controversy in mind when they made their agreement; yet even there the party claiming should bear a heavy burden of proof.18 Similarly, selection of a remote forum to apply differing foreign law to an essentially American controversy might contravene an important public policy of the forum. For example, so long as Bisso governs American courts with respect to the towage business in American waters, it would quite arguably be improper to permit an American tower to avoid that policy by providing a foreign forum for resolution of his disputes with an American towee.
21
This case, however, involves a freely negotiated international commercial transaction between a German and an American corporation for towage of a vessel from the Gulf of Mexico to the Adriatic Sea. As noted, selection of a London forum was clearly a reasonable effort to bring vital certainty to this international transaction and to provide a neutral forum experienced and capable in the resolution of admiralty litigation. Whatever 'inconvenience' Zapata would suffer by being forced to litigate in the contractual forum as it agreed to do was clearly foreseeable at the time of contracting. In such circumstances it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Absent that, there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to his bargain.
22
In the course of its ruling on Unterweser's second motion to stay the proceedings in Tampa, the District Court did make a conclusory finding that the balance of convenience was 'strongly' in favor of litigation in Tampa. However, as previously noted, in making that finding the court erroneously placed the burden of proof on Unterweser to show that the balance of convenience was strongly in its favor.19 Moreover, the finding falls far short of a conclusion that Zapata would be effectively deprived of its day in court should it be forced to litigate in London. Indeed, it cannot even be assumed that it would be placed to the expense of transporting its witnesses to London. It is not unusual for important issues in international admiralty cases to be dealt with by deposition. Both the District Court and the Court of Appeals majority appeared satisfied that Unterweser could receive a fair hearing in Tampa by using deposition testimony of its witnesses from distant places, and there is no reason to conclude that Zapata could not use deposition testimony to equal advantage if forced to litigate in London as it bound itself to do. Nevertheless, to allow Zapata opportunity to carry its heavy burden of showing not only that the balance of convenience is strongly in favor of trial in Tampa (that is, that it will be far more inconvenient for Zapata to litigate in London than it will be for Unterweser to litigate in Tampa), but also that a London trial will be so manifestly and gravely inconvenient to Zapata that it will be effectively deprived of a meaningful day in court, we remand for further proceedings.
23
Zapata's remaining contentions do not require extended treatment. It is clear that Unterweser's action in filing its limitation complaint in the District Court in Tampa was, so far as Zapata was concerned, solely a defensive measure made necessary as a response to Zapata's breach of the forum clause of the contract. When the six-month statutory period for filing an action to limit its liability had almost run without the District Court's having ruled on Unterweser's initial motion to dismiss or stay Zapata's action pursuant to the forum clause, Unterweser had no other prudent alternative but to protect itself by filing for limitation of its liability.20 Its action in so doing was a direct consequence of Zapata's failure to abide by the forum clause of the towage contract. There is no basis on which to conclude that this purely necessary defensive action by Unterweser should preclude it from relying on the forum clause it bargained for.
24
For the first time in this litigation, Zapata has suggested to this Court that the forum clause should not be construed to provide for an exclusive forum or to include in rem actions. However, the language of the clause is clearly mandatory and all-encompassing; the language of the clause in the Carbon Black case was far different.21
25
The judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.
26
Vacated and remanded.
27
Mr. Justice WHITE, concurring.
28
I concur in the opinion and judgment of the Court except insofar as the opinion comments on the issues which are remanded to the District Court. In my view these issues are best left for consideration by the District Court in the first instance.
29
Mr. Justice DOUGLAS, dissenting.
30
Petitioner Unterweser contracted with respondent to tow respondent's drilling barge from Louisiana to Italy. The towage contract contained a 'forum selection clause' providing that any dispute must be litigated before the High Court of Justice in London, England. While the barge was being towed in the Gulf of Mexico a casualty was suffered. The tow made for Tampa Bay, the nearest port, where respondent brought suit for damages in the District Court.
31
Petitioners sued respondent in the High Court of Justice in London, which denied respondent's motion to dismiss.
32
Petitioners, having previously moved the District Court to dismiss, filed a complaint in that court seeking exoneration or limitation of liability as provided in 46 U.S.C. § 185. Respondent filed its claim in the limitation proceedings, asserting the same cause of action as in its original action. Petitioners then filed objections to respondent's claim and counterclaimed against respondent, alleging the same claims embodied in its English action, plus an additional salvage claim.
33
Respondent moved for an injunction against petitioners' litigating further in the English case and the District Court granted the injunction pending determination of the limitation action. Petitioners moved to stay their own limitation proceeding pending a resolution of the suit in the English court. That motion was denied. 296 F.Supp. 733.
34
That was the posture of the case as it reached the Court of Appeals, petitioners appealing from the last two orders. The Court of Appeals affirmed. 428 F.2d 888, 446 F.2d 907.
35
Chief Justice Taft in Hartford Accident & Indemnity Co. of Hartford v. Southern Pacific, 273 U.S. 207, 214, 47 S.Ct. 357, 358, 71 L.Ed. 612 in discussing the Limitation of Liability Act said that 'the great object of the statute was to encourage shipbuilding and to induce the investment of money in this branch of industry by limiting the venture of those who build the ship to the loss of the ship itself or her freight then pending, in cases of damage or wrong happening, without the privity or knowledge of the ship owner, and by the fault or neglect of the master or other persons on board; that the origin of this proceeding for limitation of liability is to be found in the general maritime law differing from the English maritime law; and that such a proceeding is entirely within the constitutional grant of power to Congress to establish courts of admiralty and maritime jurisdiction.'
36
Chief Justice Taft went on to describe how the owner of a vessel who, in case the vessel is found at fault, may limit his liability to the value of the vessel and may bring all claimants 'into concourse in the proceeding by monition' and they may be enjoined from suing the owner and the vessel on such claims in any other court. Id., at 215, 47 S.Ct., at 359.
37
Chief Justice Taft concluded: '(T)his Court has by its rules and decisions given the statute a very broad and equitable construction for the purpose of carrying out its purpose, and for facilitating a settlement of the whole controversy over such losses as are comprehended within it, and that all the ease with which rights can be adjusted in equity is intended to be given to the proceeding. It is the administration of equity in an admiralty court. . . . The proceeding partakes in a way of the features of a bill to enjoin a multiplicity of suits, a bill in the nature of an interpleader, and a creditor's bill. It looks to a complete and just disposition of a many cornered controversy, and is applicable to proceedings in rem against the ship, as well as to proceedings in personam against the owner; the limitation extending to the owner's property as well as to his person.' Id., at 215—216, 47 S.Ct., at 359.
38
The Limitation Court is a court of equity and traditionally an equity court may enjoin litigation in another court where equitable considerations indicate that the other litigation might prejudice the proceedings in the Limitation Court. Petitioners' petition for limitation subjects them to the full equitable powers of the Limitation Court.
39
Respondent is a citizen of this country. Moreover, if it were remitted to the English court, its substantive rights would be adversely affected. Exculpatory provisions in the towage control provide (1) that petitioners, the masters and the crews 'are not responsible for defaults and/or errors in the navigation of the tow' and (2) that '(d)amages suffered by the towed object are in any case for account of its Owners.'
40
Under our decision in Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697, 698, 83 S.Ct. 967, 968, 10 L.Ed.2d 78 'a contract which exempts the tower from liability for its own negligence' is not enforceable, though there is evidence in the present record that it is enforceable in England. That policy was first announced in Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911; and followed in Boston Metals Co. v. The Winding Gulf, 349 U.S. 122, 75 S.Ct. 649, 99 L.Ed. 933; Dixilyn, supra; Gray v. Johansson, 287 F.2d 852 (CA5); California Co. v. Jumonville, 327 F.2d 988 (CA5); American S.S. Co. v. Great Lakes Towing Co., 333 F.2d 426 (CA7); D. R. Kincaid, Ltd. v. Trans-Pacific Towing, Inc., 367 F.2d 857 (CA9); A. L. Mechling Barge Lines, Inc. v. Derby Co., 399 F.2d 304 (CA5). Cf. United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224. Although the casualty occurred on the high seas, the Bisso doctrine is nonetheless applicable. The Scotland, 105 U.S. 24, 26 L.Ed. 1001; The Belgenland, 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152; The Gylfe v. The Trujillo, 209 F.2d 386 (CA2).
41
Moreover, the casualty occurred close to the District Court, a number of potential witnesses, including respondent's crewmen, reside in that area, and the inspection and repair work were done there. The testimony of the tower's crewmen, residing in Germany, is already available by way of depositions taken in the proceedings.
42
All in all, the District Court judge exercised his discretion wisely in enjoining petitioners from pursuing the litigation in England.*
43
I would affirm the judgment below.
1
Compare, e.g., Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (CA3 1966), and Wm. H. Muller & Co. v. Swedish American Line Ltd., 224 F.2d 806 (CA2), cert. denied, 350 U.S. 903, 76 S.Ct. 182, 100 L.Ed. 793 (1955), with Carbon Black Export, Inc. v. The Monrosa, 254 F.2d 297 (CA5 1958), cert. dismissed, 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959).
2
The General Towage Conditions of the contract included the following:
'1. . . . (Unterweser and its) masters and crews are not responsible for defaults and/or errors in the navigation of the tow.
'2. . . .
'b) Damages suffered by the towed object are in any case for account of its Owners.'
In addition, the contract provided that any insurance of the Chaparral was to be 'for account of' Zapata. Unterweser's initial telegraphic bid had also offered to 'arrange insurance covering towage risk for rig if desired.' As Zapata had chosen to be self-insured on all its rigs, the loss in this case was not compensated by insurance.
3
The Bremen was arrested by a United States marshal acting pursuant to Zapata's complaint immediately upon her arrival in Tampa. The tug was subsequently released when Unterweser furnished security in the amount of $3,500,000.
4
Zapata appeared specially and moved to set aside service of process outside the country. Justice Karminski of the High Court of Justice denied the motion on the ground the contractual choice-of-forum provision conferred jurisdiction and would be enforced, absent a factual showing it would not be 'fair and right' to do so. He did not believe Zapata had made such a showing, and held that it should be required to 'stick to (its) bargain.' App. 206, 211, 213. The Court of Appeal dismissed an appeal on the ground that Justice Karminski had properly applied the English rule. Lord Justice Willmer stated that rule as follows:
'The law on the subject, I think, is not open to doubt . . .. It is always open to parties to stipulate . . . that a particular Court shall have jurisdiction over any dispute arising out of their contract. Here, the parties chose to stipulate that disputes were to be referred to the 'London Court,' which I take as meaning the High Court in this country. Prima facie it is the policy of the Court to hold parties to the bargain into which they have entered. . . . But that is not an inflexible rule, as was shown, for instance, by the case of The Fehmarn, (1957) 1 Lloyd's Rep. 511; (C.A.) (1957) 2 Lloyd's Rep. 551 . . ..
'I approach the matter, therefore, in this way, that the Court has a discretion, but it is a discretion which, in the ordinary way and in the absence of strong reason to the contrary, will be exercised in favour of holding parties to their bargain. The question is whether sufficient circumstances have been shown to exist in this case to make it desirable, on the grounds of balance of convenience, that proceedings should not take place in this country . . ..' (1968) 2 Lloyd's Rep. 158, 162—163.
5
46 U.S.C. §§ 183, 185. See generally G. Gilmore & C. Black, Admiralty § 10—15 (1957).
6
In its limitation complaint, Unterweser stated it 'reserve(d) all rights' under its previous motion to dismiss or stay Zapata's action, and reasserted that the High Court of Justice was the proper forum for determining the entire controversy, including its own right to limited liability, in accord with the contractual forum clause. Unterweser later counterclaimed, setting forth the same contractual cause of action as in its English action and a further cause of action for salvage arising out of the Bremen's services following the casualty. In its counterclaim, Unterweser again asserted that the High Court of Justice in London was the proper forum for determining all aspects of the controversy, including its counterclaim.
7
The Carbon Black court went on to say that it was, in any event, unnecessary for it to reject the more liberal position taken in Wm. H. Muller & Co. v. Swedish American Line Ltd., 224 F.2d 806 (CA2), cert. denied, 350 U.S. 903, 76 S.Ct. 182, 100 L.Ed. 793 (1955), because the case before it had a greater nexus with the United States than that in Muller.
8
The record contains an undisputed affidavit of a British solicitor stating an opinion that the exculpatory clauses of the contract would be held 'prima facie valid and enforceable' against Zapata in any action maintained in England in which Zapata alleged that defaults or errors in Unterweser's tow caused the casualty and damage to the Chaparral.
In addition, it is not disputed that while the limitation fund in the District Court in Tampa amounts to $1,390,000, the limitation fund in England would be only slightly in excess of $80,000 under English law.
9
The Court of Appeals also indicated in passing that even if it took the view that choice-of-forum clauses were enforceable unless 'unreasonable' it was 'doubtful' that enforcement would be proper here because the exculpatory clauses would deny Zapata relief to which it was 'entitled' and because England was 'seriously inconvenient' for trial of the action.
10
Many decisions reflecting this view are collected in Annot., 56 A.L.R.2d 300, 306—320 (1957), and Later Case Service (1967).
For leading early cases, see, e.g., Nute v. Hamilton Mutual Ins. Co., 72 Mass. (6 Gray) 174 (1856); Nashua River Paper Co. v. Hammermill Paper Co., 223 Mass. 8, 111 N.E. 678 (1916); Benson v. Eastern Bldg. & Loan Assn., 174 N.Y. 83, 66 N.E. 627 (1903).
The early admiralty cases were in accord. See, e.g., Wood & Selick, Inc. v. Compagnie Generale Transatlantique, 43 F.2d 941 (CA2 1930); The Ciano, 58 F.Supp. 65 (E.D.Pa.1944); Kuhnhold v. Compagnie Generale Transatlantique, 251 F. 387 (S.D.N.Y.1918); Prince Steam-Shipping Co. v. Lehman, 39 F. 704 (S.D.N.Y.1889).
In Insurance Co. v. Morse, 20 Wall. 445, 22 L.Ed. 365 (1874), this Court broadly stated that 'agreements in advance to oust the courts of the jurisdiction conferred by law are illegal and void.' Id., at 451. But the holding of that case was only that the State of Wisconsin could not by statute force a foreign corporation to 'agree' to surrender its federal statutory right to remove a state court action to the federal courts as a condition of doing business in Wisconsin. Thus, the case is properly understood as one in which a state statutory requirement was viewed as imposing an unconstitutional condition on the exercise of the federal right of removal. See, e.g., Wisconsin v. Philadelphia & Reading Coal & Iron Co., 241 U.S. 329, 36 S.Ct. 563, 60 L.Ed. 1027 (1916).
As Judge Hand noted in Krenger v. Pennsylvania R. Co., 174 F.2d 556 (CA2 1949), even at that date there was in fact no 'absolute taboo' against such clauses. See, e.g., Mittenthal v. Mascagni, 183 Mass. 19, 66 N.E. 425 (1903); Daley v. People's Bldg., Loan & Sav. Assn., 178 Mass. 13, 59 N.E. 452 (1901) (Holmes, J.). See also Cerro de Pasco Copper Corp. v. Knut Knutsen, O.A.S., 187 F.2d 990 (CA2 1951).
11
E.g., Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (CA3 1966); Anastasiadis v. S.S. Little John, 346 F.2d 281 (CA5 1965) (by implication); Wm. H. Muller & Co. v. Swedish American Line Ltd., 224 F.2d 806 (CA2), cert. denied, 350 U.S. 903, 76 S.Ct. 182, 100 L.Ed. 793 (1955); Cerro de Pasco Copper Corp. v. Knut Knutsen, O.A.S., 187 F.2d 990 (CA2 1951); Central Contracting Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965).
The Muller case was overruled in Indussa Corp. v. S.S. Ranborg, 377 F.2d 200 (CA2 1967), insofar as it held that the forum clause was not inconsistent with the 'lessening of liability' provision of the Carriage of Goods by Sea Act, 46 U.S.C. § 1303(8), which was applicable to the transactions in Muller, Indussa, and Carbon Black. That Act is not applicable in this case.
12
In addition to the decision of the Court of Appeal in the instant case, Unterweser Reederei G.m.b.H. v. Zapata Off-Shore Co. (The Chaparral), (1968) 2 Lloyd's Rep. 158 (CA), see, e.g., Mackender v. Feldia A.G., (1967) 2 Q.B. 590 (CA); The Fehmarn, (1958) 1 W.L.R. 159 (CA); Law v. Garrett, (1878) 8 Ch.D. 26 (CA); The Eleftheria, (1970) P. 94. As indicated by the clear statements in The Eleftheria and of Lord Justice Willmer in this case, supra, n. 4, the decision of the trial court calls for an exercise of discretion. See generally A. Dicey & J. Morris, The Conflict of Laws 979—980, 1087—1088 (8th ed. 1967); Cowen & Mendes da Costa, The Contractual Forum: Situation in England and the British Commonwealth, 13 Am.J.Comp.Law 179 (1964); Reese, The Contractual Forum: Situation in the United States, id., at 187, 190 n. 13; Graupner, Contractual Stipulations Conferring Exclusive Jurisdiction Upon Foreign Courts in the Law of England and Scotland, 59 L.Q.Rev. 227 (1943).
13
Restatement (Second) of the Conflict of Laws § 80 (1971); Reese, The Contractual Forum: Situation in the United States, 13 Am.J.Comp.Law 187 (1964); A. Ehrenzweig, Conflict of Laws § 41 (1962). See also Model Choice of Forum Act (National Conference of Commissioners on Uniform State Laws 1968).
14
The record here refutes any notion of overweening bargaining power. Judge Wisdom, dissenting, in the Court of Appeals noted:
'Zapata has neither presented evidence of nor alleged fraud or undue bargaining power in the agreement. Unterweser was only one of several companies bidding on the project. No evidence contradicts its Managing Director's affidavit that it specified English courts 'in an effort to meet Zapata Off-Shore Company half way.' Zapata's Vice President has declared by affidavit that no specific negotiations concerning the forum clause took place. But this was not simply a form contract with boilerplate language that Zapata had no power to alter. The towing of an oil rig across the Atlantic was a new business. Zapata did make alterations to the contract submitted by Unterweser. The forum clause could hardly be ignored. It is the final sentence of the agreement, immediately preceding the date and the parties' signatures. . . .' 428 F.2d 888, 907.
15
At the very least, the clause was an effort to eliminate all uncertainty as to the nature, location, and outlook of the forum in which these companies of differing nationalities might find themselves. Moreover, while the contract here did not specifically provide that the substantive law of England should be applied, it is the general rule in English courts that the parties are assumed, absent contrary indication, to have designated the forum with the view that it should apply its own law. See, e.g., Tzortzis v. Monark Line A/B, (1968) 1 W.L.R. 406 (CA); see generally 1 T. Carver, Carriage by Sea 496—497 (12th ed. 1971); G. Cheshire, Private International Law 193 (7th ed. 1965); A. Dicey & J. Morris, The Conflict of Laws 705, 1046 (8th ed. 1967); Collins, Arbitration Clauses and Forum Selecting Clauses in the Conflict of Laws: Some Recent Developments in England, 2 J.Mar.L. & Comm. 363, 365—370 and n. 7 (1971). It is therefore reasonable to conclude that the forum clause was also an effort to obtain certainty as to the applicable substantive law.
The record contains an affidavit of a Managing Director of Unterweser stating that Unterweser considered the choice-of-forum provision to be of 'overriding importance' to the transaction. He stated that Unterweser towage contracts ordinarily provide for exclusive German jurisdiction and application of German law, but that '(i)n this instance, in an effort to meet (Zapata) half way, (Unterweser) proposed the London Court of Justice. Had this provision not been accepted by (Zapata), (Unterweser) would not have entered into the towage contract . . ..' He also stated that the parties intended, by designating the London forum, that English law would be applied. A responsive affidavit by Hoyt Taylor, a vice president of Zapata, denied that there were any discussions between Zapata and Unterweser concerning the forum clause or the question of the applicable law.
16
See nn. 14—15, supra. Zapata has denied specifically discussing the forum clause with Unterweser, but, as Judge Wisdom pointed out, Zapata made unmerous changes in the contract without altering the forum clause, which could hardly have escaped its attention. Zapata is clearly not unsophisticated in such matters. The contract of its wholly owned subsidiary with an Italian corporation covering the contemplated drilling operations in the Adriatic Sea provided that all disputes were to be settled by arbitration in London under English law, and contained broad exculpatory clauses. App. 306—311.
17
Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963) (per curiam), merely followed Bisso and declined to subject its rule governing towage contracts in American waters to 'indeterminate exceptions' based on delicate analysis of the facts of each case. See 372 U.S., at 698, 83 S.Ct., at 968 (Harlan, J., concurring).
18
See, e.g., Model Choice of Forum Act § 3(3), supra, n. 13, comment: 'On rare occasions, the state of the forum may be a substantially more convenient place for the trial of a particular controversy than the chosen state. If so, the present clause would permit the action to proceed. This result will presumably be in accord with the desires of the parties. It can be assumed that they did not have the particular controversy in mind when they made the choice-of-forum agreement since they would not consciously have agreed to have the action brought in an inconvenient place.'
19
Applying the proper burden of proof, Justice Karminski in the High Court of Justice at London made the following findings, which appear to have substantial support in the record:
'(Zapata) pointed out that in this case the balance of convenience so far as witnesses were concerned pointed in the direction of having the case heard and tried in the United States District Court at Tampa in Florida because the probability is that most, but not necessarily all, of the witnesses will be American. The answer, as it seems to me, is that a substantial minority at least of witnesses are likely to be German. The tug was a German vessel and was, as far as I know, manned by a German crew . . . Where they all are mow or are likely to be when this matter is litigated I do not know, because the experience of the Admiralty Court here strongly points out that maritime witnesses in the course of their duties move about freely. The homes of the German crew presumably are in Germany. There is probably a balance of numbers in favour of the Americans, but not, as I am inclined to think, a very heavy balance.' App. 212. It should also be noted that if the exculpatory clause is enforced in the English courts, many of Zapata's witnesses on the questions of negligence and damage may be completely unnecessary.
20
Zapata has suggested that Unterweser was not in any way required to file its 'affirmative' limitation complaint because it could just as easily have pleaded limitation of liability by way of defense in Zapata's initial action, either before or after the six-month period. That course of action was not without risk, however, that Unterweser's attempt to limit its liability by answer would be held invalid. See G. Gilmore & C. Black, Admiralty § 10—15 (1957). We do not believe this hazardous option in any way deprived Unterweser's limitation complaint of its essentially defensive character so far as Zapata was concerned.
21
See 359 U.S., at 182, 79 S.Ct., at 712.
*
It is said that because these parties specifically agreed to litigate their disputes before the London Court of Justice, the District Court, absent 'unreasonable' circumstances, should have honored that choice by declining to exercise its jurisdiction. The forum-selection clause, however, is part and parcel of the exculpatory provision in the towing agreement which, as mentioned in the text, is not enforceable in American courts. For only by avoiding litigation in the United States could petitioners hope to evade the Bisso doctrine.
Judges in this country have traditionally been hostile to attempts to circumvent the public policy against exculpatory agreements. For example, clauses specifying that the law of a foreign place (which favors such releases) should control have regularly been ignored. Thus, in The Kensington, 183 U.S. 263, 276, 22 S.Ct. 102, 107, 46 L.Ed. 190, the Court held void an exemption from liability despite the fact that the contract provided that it should be construed under Belgian law which was more tolerant. And see E. Gerli & Co. v. Cunard S.S. Co., 48 F.2d 115, 117 (CA2); Oceanic Steam Nav. Co. v. Corcoran, 9 F.2d 724, 731 (CA2); In re Lea Fabrics, Inc., 226 F.Supp. 232, 237 (D.C.N.J.); F. A Straus & Co. v. Canadian P.R. Co., 254 N.Y. 407, 173 N.E. 564; Siegelman v. Cunard White Star, 221 F.2d 189, 199 (CA2) (Frank, J., dissenting). 6A A. Corbin on Contracts § 1446 (1962).
The instant stratagem of specifying a foreign forum is essentially the same as invoking a foreign law of construction except that the present circumvention also requires the American party to travel across an ocean to seek relief. Unless we are prepared to overrule Bisso we should not countenance devices designed solely for the purpose of evading its prohibition.
It is argued, however, that one of the rationales of the Bisso doctrine, 'to protect those in need of goods or services from being overreached by others who have power to drive hard bargains' (349 U.S., at 91, 75 S.Ct., at 633), does not apply here because these parties may have been of equal bargaining stature. Yet we have often adopted prophylactic rules rather than attempt to sort the core cases from the marginal ones. In any event, the other objective of the Bisso doctrine, to 'discourage negligence by making wrongdoers pay damages' (Ibid., 75 S.Ct., at 632) applies here and in every case regardless of the relative bargaining strengths of the parties.
| 78
|
407 U.S. 191
92 S.Ct. 1980
32 L.Ed.2d 648
Dorothy TAYLOR et al.v.John J. McKEITHEN, Governor of Louisiana, et al.
No. 71—784.
June 12, 1972.
PER CURIAM.
1
The 1970 self-reapportionment of the Louisiana Legislature was challenged in this lawsuit on the dual grounds that it offended both the one-man, one-vote principle and the prohibition against voting arrangements designed to dilute the voting strength of racial minorities. After the United States Attorney General interposed an objection to the election law change under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c, the District Court appointed a Special Master to prepare a court-imposed plan. The Master was verbally instructed to hold hearings and to devise a proposal to maintain the integrity of political subdivisions and to observe natural or historical boundaries 'as nearly as possible.' He was also instructed that '(n)o consideration whatsoever was to be given to the location of the residence of either incumbents in office or of announced or prospective candidates.' Opinion of Judge West, Civil Action No. 71—234, Aug. 24, 1971.
2
The Special Master held four days of hearings, during which over 100 persons were heard. Proposed plans were received by him. No one was denied a hearing. He then submitted his recommendation to the District Court and after a hearing it was adopted by the court.
3
This dispute involves only four state senate seats affected by the reapportionment. At the hearing held by the District Judge on the Master's proposal, the State Attorney General presented a counterplan which differed from the Master's only with respect to four senatorial districts in the New Orleans area. Although the judge found that both plans satisfied the one-man, one-vote requirement, he found that the two schemes differed in their racial composition of the four districts, as is set out in greater detail in the margin.1 Under the State Attorney General's scheme, four 'safe' white districts were proposed whereas the Master's design would have created two districts of slight majorities of black voters. Also, under the counterplan each incumbent would continue to reside in his 'own' district, whereas under the Master's proposal the residences of the four incumbents would fall evenly between the two districts to be composed primarily of white voters, ensuring defeat for two of the four incumbents.
4
At the hearing the State Attorney General contended that the court's plan would make hash of the traditional ward-and-precinct lines. The District Court acknowledged that there would be some departure from the historical patterns but concluded that the "historical' boundaries of voting districts in Louisiana reflect(ed) a history of racial discrimination. Adherence to the historical boundaries alluded to by objectors (had) been the prime reason why only two negroes (had) been allowed to sit in the Louisiana Legislature in the last 75 years.' 333 F.Supp. 452, 462. The court found that the alternative proposal would 'operate to diversify the negro voting population throughout the four districts and thus significantly dilute their vote' and would practically eliminate 'the possibility of a negro being elected from any of the four districts,' while the court-approved plan woud at least give blacks 'a fair chance in two out of the four districts. . . .' Id., at 457. The court-approved plan sought 'to protect the rights of the people while the primary purpose of the Senators' plan appear(ed) to be the protection of incumbent office holders.' Id., at 458. Accordingly, as mentioned, the District Court adopted the Master's recommendation.
5
Despite the District Court's findings, however, the Court of Appeals reversed without opinion and adopted the Attorney General's alternative division of New Orleans. The petitioners are the original plaintiffs and they now seek review of this summary reversal.
6
An examination of the record in this case suggests that the Court of Appeals may have believed that benign districting by federal judges is itself unconstitutional gerrymandering even where (a) it is employed to overcome the residual effects of past state dilution of Negro voting strength and (b) the only alternative is to leave intact the traditional 'safe' white districts.2 If that were in fact the reasoning of the lower court, then this petition would present an important federal question of the extent to which the broad equitable powers of a federal court, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554, are limited by the colorblind concept of Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, and Wright v. Rockefeller, 376 U.S. 52, 57, 67, 84 S.Ct. 603, 11 L.Ed.2d 512 (Douglas, J., dissenting).3 In reapportionment cases, as Justice Stewart has observed 'the federal courts are often going to be faced with hard remedial problems' in minimizing friction between their remedies and legitimate state policies. Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 204, 92 S.Ct. 1477, 1487, 32 L.Ed.2d 1 (dissenting opinion).
7
Because this record does not fully inform us of the precise nature of the litigation and because we have not had the benefit of the insight of the Court of Appeals, we grant the petition for writ of certiorari, vacate the judgment below, and remand the case to the Court of Appeals for proceedings in conformity with this opinion.4
8
Vacated and remanded.
9
Mr. Justice BLACKMUN concurs in the Court's judgment.
10
Mr. Justice REHNQUIST, with whom The CHIEF JUSTICE and Mr. Justice POWELL join, dissenting.
11
The short recitation of specific facts in the Court's opinion makes clear that the issues in this case, as viewed by both petitioners and respondents, are well developed in the record. The federal questions adverted to by the Court in its opinion are undoubtedly important ones. They are either presented by the proceedings below on this record, or they are not; this Court, in exercising its certiorari jurisdiction, may wish to consider such problems as are presented in this case at this time, or it may not. While an opinion from the Court of Appeals fully explaining the reason for its reversal of the District Court would undoubtedly be of assistance to our exercise of certiorari jurisdiction here, it is by no means essential.1 I do not believe that the Court's vacation of the judgment below with a virtually express directive to the Court of Appeals that it write an opinion is an appropriate exercise of this Court's authority.
12
The courts of appeals are statutory courts, having the power to prescribe rules for the conduct of their own business so long as those rules are consistent with applicable law and rules of practice and procedure prescribed by this Court, 28 U.S.C. § 2071. No existing statute or rule of procedure prohibits the Fifth Circuit from issuing a short opinion and order, as it has done here, or from deciding cases without any opinion at all. Cf. Rule 21, Court of Appeals for the Fifth Circuit. The courts of appeals, and particularly the Fifth Circuit, which has experienced the heaviest caseload of all the circuits, need the maximum possible latitude to deal with the 'flood tide' of appeals that the 'ever growing explosive increase' of federal judicial business has produced. See Isbell Enterprises, Inc. v. Citizens Casualty Co., 431 F.2d 409 (CA5 1970); NLRB v. Amalgamated Clothing Workers, 430 F.2d 966 (CA5 1970).2
13
If there are important federal questions presented in this record, this Court should address itself to them. Instead of doing that, it calls upon the Fifth Circuit to write an amicus curiae opinion to aid us. I think decisions as to whether opinions should accompany judgments of the courts of appeals, and the desirable length and content of those opinions are matters best left to the judges of the courts of appeals. I therefore dissent from the order of vacation and remand.
1
According to the District Judge's opinion, D.C., 333 F.Supp. 452, the percentages of black registered voters in each of the four districts under each of the competing plans would be:
Master's Attorney General's
Plan Plan
District 2.............. 51% 37.6%
District 3.............. 18% 25.7%
District 4.............. 58% 44.3%
District 5.............. 20% 24.0%
2
It is possible, but unlikely, that the Court of Appeals believed that benign districting, although permissible, was achievable here with less violence to the parish's historical district lines. But had that been its view presumably the court would have remanded for the construction of a less drastic alternative rather than simply directing the adoption of the Attorney General's counterplan.
3
Although similar in some respects, this case is not controlled by Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363. To be sure, in both cases the District Courts were writing on clean slates in the sense that they were fashioning court-imposed reapportionment plans. And, in each case the equitable remedy of the court conflicted with a state policy. (There the state policy favored multi-member districts whereas here the policy favors maintenance of traditional boundaries.) The important difference, however, is that in Whitcomb it was conceded that the State's preference for multi-member districts was not rooted in racial discrimination, 403 U.S., at 149, 91 S.Ct., at 1872. Here, however, there has been no such concession and, indeed, the District Court found a long 'history' of bias and franchise dilution in the State's traditional drawing of district lines. Cf. id., at 155, 91 S.Ct., at 1875.
4
We, of course, agree that the courts of appeals should have wide latitude in their decisions of whether or how to write opinions. That is especially true with respect to summary affirmances. See Rule 21, Court of Appeals for the Fifth Circuit. But here the lower court summarily reversed without any opinion on a point that had been considered at length by the District Judge. Under the special circumstances of this case, we are loath to impute to the Court of Appeals reasoning that would raise a substantial federal question when it is plausible that its actual ground of decision was of more limited importance.
1
See e.g., Lego v. Twomey, 404 U.S. 477, 482 n. 6, 92 S.Ct. 619, 623, 30 L.Ed.2d 618 (1972).
2
In fiscal year 1971, 2,316 new matters were docketed in the Fifth Circuit, 380 more than in any of the other circuits. This represented a 120% increase in a 10-year period, although the number of circuit judges was increased by only 60%. Annual Report of the Director of the Administrative Office of the United States Courts 106 (1971). The increase in the business of the courts of appeals has been almost exponential. In 1961 the Fifth Circuit carried over only 278 cases that were undisposed of. By 1970 there were 1,181 cases put over to the succeeding year. NLRB v. Amalgamated Clothing Workers, 430 F.2d 966, 968 n. 4 (CA5 1970).
| 12
|
407 U.S. 143
92 S.Ct. 1921
32 L.Ed.2d 612
Frederick E. ADAMS, Warden, Petitioner,v.Robert WILLIAMS.
No. 70—283.
Argued April 10, 1972.
Decided June 12, 1972.
Syllabus
Acting on a tip supplied moments earlier by an informant known to him, a police officer asked respondent to open his car door. Respondent lowered the window, and the officer reached into the car and found a loaded handgun (which had not been visible from the outside) in respondent's waistband, precisely where the informant said it would be. Respondent was arrested for unlawful possession of the handgun. A search incident to the arrest disclosed heroin on respondent's person (as the informant had reported), as well as other contraband in the car. Respondent's petition for federal habeas corpus relief was denied by the District Court. The Court of Appeals reversed, holding that the evidence that had been used in the trial resulting in respondent's conviction had been obtain by an unlawful search. been obtained by an unlawful search. S.Ct. 1868, 20 L.Ed.2d 889, recognizes, a policeman making a reasonable investigatory stop may conduct a limited protective search for concealed weapons when he has reason to believe that the suspect is armed and dangerous. Here the information from the informant had enough indicia of reliability to justify the officer's forcible stop of petitioner and the protective seizure of the weapon, which afforded reasonable ground for the search incident to the arrest that ensued. Pp. 145—149.
441 F.2d 394, reversed.
Donald A. Browne, Bridgeport, Conn., for petitioner.
Edward F. Hennessey, III, Hartford, Conn., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent Robert Williams was convicted in a Connecticut state court of illegal possession of a handgun found during a 'stop and frisk,' as well as of possession of heroin that was found during a full search incident to his weapons arrest. After respondent's conviction was affirmed by the Supreme Court of Connecticut, State v. Williams, 157 Conn. 114, 249 A.2d 245 (1968), this Court denied certiorari. 395 U.S. 927, 89 S.Ct. 1783, 23 L.Ed.2d 244 (1969). Williams' petition for federal habeas corpus relief was denied by the District Court and by a divided panel of the Second Circuit, 436 F.2d 30 (1970), but on rehearing en banc the Court of Appeals granted relief. 441 F.2d 394 (1971). That court held that evidence introduced at Williams' trial had been obtained by an unlawful search of his person and car, and thus the state court judgments of conviction should be set aside. Since we conclude that the policeman's actions here conformed to the standards this Court laid down in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we reverse.
2
Police Sgt. John Connolly was alone early in the morning on car patrol duty in a high-crime area of Bridgeport, Connecticut. At approximately 2:15 a.m. a person known to Sgt. Connolly approached his cruiser and informed him that an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist.
3
After calling for assistance on his car radio, Sgt. Connolly approached the vehicle to investigate the informant's report. Connolly tapped on the car window and asked the occupant, Robert Williams to open the door. When Williams rolled down the window instead, the sergeant reached into the car and removed a fully loaded revolver from Williams' waistband. The gun had not been visible to Connolly from outside the car, but it was in precisely the place indicated by the informant. Williams was then arrested by Connolly for unlawful possession of the pistol. A search incident to that arrest was conducted after other officers arrived. They found substantial quantities of heroin on Williams' person and in the car, and they found a machete and a second revolver hidden in the automobile.
4
Respondent contends that the initial seizure of his pistol, upon which rested the later search and seizure of other weapons and narcotics, was not justified by the informant's tip to Sgt. Connolly. He claims that absent a more reliable informant, or some corroboration of the tip, the policeman's actions were unreasonable under the standards set forth in Terry v. Ohio, supra.
5
In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even thoughthere is no probable cause to make an arrest.' Id., at 22, 88 S.Ct., at 1880. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23, 88 S.Ct., at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id., at 21—22, 88 S.Ct., at 1879—1880; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970).
6
The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. 'When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,' he may conduct a limited protective search for concealed weapons. 392 U.S., at 24, 88 S.Ct., at 1881. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop,1 and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id., at 30, 88 S.Ct., at 1884.
7
Applying these principles to the present case, we believe that Sgt. Connolly acted justifiably in responding to his informant's tip. The informant was known to him personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, under Connecticut law, the informant might have been subject to immediate arrest for making a false complaint had Sgt. Connolly's investigation proved the tip incorrect.2 Thus, while the Court's decisions indicate that this informant's unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e.g., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the information carried enough indicia of reliability to justify the officer's forcible stop of Williams.
8
In reaching this conclusion, we reject respondent's argument that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person. Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simply rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations—for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime—the subtleties of the hearsay rule should not thwart an appropriate police response.
9
While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high-crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety.3 When Williams rolled down his window, rather than complying with the policeman's request to step out of the car so that his movements could more easily be seen, the revolver allegedly at Williams' waist became an even greater threat. Under these circumstances the policeman's action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable. The loaded gun seized as a result of this intrusion was therefore admissible at Williams' trial. Terry v. Ohio, 392 U.S., at 30, 88 S.Ct., at 1884.
10
Once Sgt. Connolly had found the gun precisely where the informant had predicted, probable cause existed to arrest Williams for unlawful possession of the weapon. Probable cause to arrest depends 'upon whether, at the moment the arrest was made . . . the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.' Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). In the present case the policeman found Williams in possession of a gun in precisely the place predicted by the informant. This tended to corroborate the reliability of the informant's further report of narcotics and, together with the surrounding circumstances, certainly suggested no lawful explanation for possession of the gun. Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. See Draper v. United States, 358 U.S. 307, 311—312, 79 S.Ct. 329, 331—332, 3 L.Ed.2d 327 (1959). Rather, the court will evaluate generally the circumstances at the time of the arrest to decide if the officer had probable cause for his action:
11
'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).
12
See also id., at 177. Under the circumstances surrounding Williams' possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful. See Brinegar v. United States, supra; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The fruits of the search were therefore properly admitted at Williams' trial, and the Court of Appeals erred in reaching a contrary conclusion.
13
Reversed.
14
Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, dissenting.
15
My views have been stated in substance by Judge Friendly dissenting in the Court of Appeals. 436 F.2d 30, 35. Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided they have a permit. Conn.Gen.Stat.Rev. §§ 29—35, 29 38. Connecticut law gives its police no authority to frisk a person for a permit. Yet the arrest was for illegal possession of a gun. The only basis for that arrest was the informer's tip on the narcotics. Can it be said that a man in possession of narcotics will not have a permit for his gun? Is that why the arrest for possession of a gun in the free-and-easy State of Connecticut becomes constitutional?
16
The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'
17
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
18
The leading case is United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had 'some reasonable relationship to the preservation or efficiency of a well regulated militia.' Id., at 178, 59 S.Ct., at 818. The Second Amendment, it was held, 'must be interpreted and applied' with the view of maintaining a 'militia.'
19
'The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.' Id., at 178—179, 59 S.Ct., at 818.
20
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, to 'possessory offenses' is a serious intrusion on Fourth Amendment safeguards. 'If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows 'that criminal activity may be afoot." 436 F.2d, at 39, quoting Terry v. Ohio, supra, at 30, 88 S.Ct., at 1884.
21
Mr. Justice BRENNAN, dissenting.
22
The crucial question on which this case turns, as the Court concedes, is whether, there being no contention that Williams acted voluntarily in rolling down the window of his car, the State had shown sufficient cause to justify Sgt. Connolly's 'forcible' stop. I would affirm, believing, for the following reasons stated by Judge, now Chief Judge, Friendly, dissenting, 436 F.2d 30, 38 39, that the State did not make that showing:
23
'To begin, I have the gravest hesitancy in extending (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) to crimes like the possession of narcotics . . .. There is too much danger that, instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true. Against that we have here the added fact of the report that Williams had a gun on his person. . . . (But) Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided only they have a permit, Conn.Gen.Stat. §§ 29—35 and 29—38, and gives its police officers no special authority to stop for the purpose of determining whether the citizen has one. . . .
24
'If I am wrong in thinking that Terry should not be applied at all to mere possessory offenses, . . . I would not find the combination of Officer Connolly's almost meaningless observation and the tip in this case to to sufficient justification for the intrusion. The tip suffered from a threefold defect, with each fold compounding the others. The informer was unnamed, he was not shown to have been reliable with respect to guns or narcotics, and he gave no information which demonstrated personal knowledge or—what is worse—could not readily have been manufactured by the officer after the event. To my mind, it has not been sufficiently recognized that the difference between this sort of tip and the accurate prediction of an unusual event is as important on the latter score as on the former. (In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959),) Narcotics Agent Marsh would hardly have been at the Denver Station at the exact moment of the arrival of the train Draper had taken from Chicago unless somenone had told him something important, although the agent might later have embroidered the details to fit the observed facts. . . . There is no such guarantee of a patrolling officer's veracity when he testifies to a 'tip' from an unnamed informer saying no more than that the officer will find a gun and narcotics on a man across the street, as he later does. If the state wishes to rely on a tip of that nature to validate a stop and frisk, revelation of the name of the informer or demonstration that his name is unknown and could not reasonably have been ascertained should be the price.
25
'Terry v. Ohio was intended to free a police officer from the rigidity of a rule that would prevent his doing anything to a man reasonably suspected of being about to commit or having just committed a crime of violence, no matter how grave the problem or impelling the need for swift action, unless the officer had what a court would later determine to be probable cause for arrest. It was meant for the serious cases of imminent danger or of harm recently perpetrated to persons or property, not the conventional ones of possessory offenses. If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows 'that criminal activity may be afoot.' 392 U.S., at 30, 88 S.Ct., at 1868, 20 L.Ed.2d 889. I greatly fear that if the (contrary view) should be followed, Terry will have opened the sluicegates for serious and unintended erosion of the protection of the Fourth Amendment.'
26
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS joins, dissenting.
27
Four years have passed since we decided Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its companion cases, Sibron v. New York and Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). They were the first cases in which this Court explicitly recognized the concept of 'stop and frisk' and squarely held that police officers may, under appropriate circumstances, stop and frisk persons suspected of criminal activity even though there is less than probable cause for an arrest. This case marks our first opportunity to give some flesh to the bones of Terry et al. Unfortunately, the flesh provided by today's decision cannot possibly be made to fit on Terry's skeletal framework.
28
'(T)he most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge of magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' '(T)he burden is on those seeking the exemption to show the need for it." Coolidge v. New Hampshire, 403 U.S. 443, 454—455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). In Terry we said that 'we do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.' 392 U.S. at 20, 88 S.Ct., at 1879. Yet, we upheld the stop and frisk in Terry because we recognized that the realities of on-the-street law enforcement require an officer to act at times on the basis of strong evidence, short of probable cause, that criminal activity is taking place and that the criminal is armed and dangerous. Hence, Terry stands only for the proposition that police officers have a 'narrowly drawn authority to . . . search for weapons' without a warrant. Id., at 27, 88 S.Ct., at 1883.
29
In today's decision the Court ignores the fact that Terry begrudgingly accepted the necessity for creating an exception from the warrant requirement of the Fourth Amendment and treats this case as if warrantless searches were the rule rather than the 'narrowly drawn' exception. This decision betrays the careful balance that Terry sought to strike between a citizen's right to privacy and his government's responsibility for effective law enforcement and expands the concept of warrantless searches far beyond anything heretofore recognized as legitimate. I dissent.
30
* A. The Court's opinion states the facts and I repeat only those that appear to me to be relevant to the Fourth Amendment issues presented.
31
Respondent was sitting on the passenger side of the front seat of a car parked on the street in a 'high crime area' in Bridgeport, Connecticut, at 2:15 a.m. when a police officer approached his car. During a conversation that had just taken place nearby, the officer was told by an informant that respondent had narcotics on his person and that he had a gun in his waistband. The officer saw that the motor was not running, that respondent was seated peacefully in the car, and that there was no indication that he was about to leave the scene. After the officer asked respondent to open the door, respondent rolled down his window instead and the officer reached into the car and pulled a gun from respondent's waistband. The officer immediately placed respondent under arrest for carrying the weapon and searched him, finding heroin in his coat. More heroin was found in a later search of the automobile. Respondent moved to suppress both the gun and the heroin prior to trial. His motion was denied and he was convicted of possessing both items.
32
B. The Court erroneously attempts to describe the search for the gun as a protective search incident to a reasonable investigatory stop. But, as in Terry, Sibron and Peters, supra, there is no occasion in this case to determine whether or not police officers have a right to seize and to restrain a citizen in order to interrogate him. The facts are clear that the officer intended to make the search as soon as he approached the respondent. He asked no questions; he made no investigation; he simply searched. There was nothing apart from the information supplied by the informant to cause the officer to search. Our inquiry must focus, therefore, as it did in Terry on whether the officer had sufficient facts from which he could reasonably infer that respondent was not only engaging in illegal activity, but also that he was armed and dangerous. The focus falls on the informant.
33
The only information that the informant had previously given the officer involved homosexual conduct in the local railroad station. The following colloquy took place between respondent's counsel and the officer at the hearing on respondent's motion to suppress the evidence that had been seized from him.
34
'Q. Now, with respect to the information that was given you about homosexuals in the Bridgeport Police Station (sic), did that lead to an arrest? A. No.
35
'Q. An arrest was not made. A. No. There was no substantiating evidence.
36
'Q. There was no substantiating evidence? A. No.
37
'Q. And what do you mean by that? A. I didn't have occasion to witness these individuals committing any crime of any nature.
38
'Q. In other words, after this person gave you the information, you checked for corroboration before you made an arrest. Is that right? A. Well, I checked to determine the possibility of homosexual activity.
39
'Q. And since an arrest was made, I take it you didn't find any substantiating information. A. I'm sorry counselor, you say since an arrest was made.
40
'Q. Was not made. Since an arrest was not made, I presume you didn't find any substantiating information. A. No.
41
'Q. So that, you don't recall any other specific information given you about the commission of crimes by this informant. A. No.
42
'Q. And you still thought this person was reliable. A. Yes.'1
43
Were we asked to determine whether the information supplied by the informant was sufficient to provide probable cause for an arrest and search, rather than a stop and frisk, there can be no doubt that we would hold that it was insufficient. This Court has squarely held that a search and seizure cannot be justified on the basis of conclusory allegations of an unnamed informant who is allegedly credible. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In the recent case of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), Mr. Justice Harlan made it plain beyond any doubt that where police rely on an informant to make a search and seizure, they must know that the informant is generally trustworthy and that he has obtained his information in a reliable way. Id., at 417, 89 S.Ct., at 589. Since the testimony of the arresting officer in the instant case patently fails to demonstrate that the informant was known to be trustworthy and since it is also clear that the officer had no idea of the source of the informant's 'knowledge,' a search and seizure would have been illegal.
44
Assuming, arguendo, that this case truly involves, not an arrest and a search incident thereto, but a stop and frisk,2 we must decide whether or not the information possessed by the officer justified this interference with respondent's liberty. Terry, our only case to actually uphold a stop and frisk,3 is not directly in point, because the police officer in that case acted on the basis of his own personal observations. No informant was involved. But the rational of Terry is still controlling, and it requires that we condemn the conduct of the police officer in encountering the respondent.
45
Terry did not hold that whenever a policeman has a hunch that a citizen is engaging in criminal activity, he may engage in a stop and frisk. It held that if police officers want to stop and frisk, they must have specific facts from which they can reasonably infer that an individual is engaged in criminal activity and is armed and dangerous.4 It was central to our decision in Terry that the police officer acted on the basis of his own personal observations and that he carefully scrutinized the conduct of his suspects before interfering with them in any way. When we legitimated the conduct of the officer in Terry we did so because of the substantial reliability of the information on which the officer based his decision to act.
46
If the Court does not ignore the care with which we examined the knowledge possessed by the officer in Terry when he acted, then I cannot see how the actions of the officer in this case can be upheld. The Court explains what the officer knew about respondent before accosting him. But what is more significant is what he did not know. With respect to the scene generally, the officer had no idea how long respondent had been in the car, how long the car had been parked, or to whom the car belonged. With respect to the gun,5 the officer did not know if or when the informant had ever seen the gun, or whether the gun was carried legally, as Connecticut law permitted, or illegally.6 And with respect to the narcotics, the officer did not know what kind of narcotics respondent allegedly had, whether they were legally or illegally possessed, what the basis of the informant's knowledge was, or even whether the informant was capable of distinguishing narcotics from other substances.7
47
Unable to answer any of these questions, the officer nevertheless determined that it was necessary to intrude on respondent's liberty. I believe that his determination was totally unreasonable. As I read Terry, an officer may act on the basis of reliable information short of probable cause to make a stop, and ultimately a frisk, if necessary; but the officer may not use unreliable, unsubstantiated, conclusory hearsay to justify an invasion of liberty. Terry never meant to approve the kind of knee-jerk police reaction that we have before us in this case.
48
Even assuming that the officer had some legitimate reason for relying on the informant, Terry requires, before any stop and frisk is made, that the reliable information in the officer's possession demonstrate that the suspect is both armed and dangerous.8 The fact remains that Connecticut specifically authorizes persons to carry guns so long as they have a permit. Thus, there was no reason for the officer to infer from anything that the informant said that the respondent was dangerous. His frisk was, therefore, illegal under Terry.
II
49
Even if I could agree with the Court that the stop and frisk in this case was proper, I could not go further and sustain the arrest and the subsequent searches. It takes probable cause to justify an arrest and search and seizure incident thereto. Probable cause means that the 'facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been committed . . .' Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878). '(G)ood faith is not enough to constitute probable cause.' Director General of Railroads v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 53, 68 L.Ed. 146 (1923).
50
Once the officer seized the gun from respondent, it is uncontradicted that he did not ask whether respondent had a license to carry it, or whether respondent carried it for any other legal reason under Connecticut law. Rather, the officer placed him under arrest immediately and hastened to search his person. Since Connecticut has not made it illegal for private citizens to carry guns, there is nothing in the facts of this case to warrant a man 'of prudence and caution' to believe that any offense had been committed merely because respondent had a gun on his person.9 Any implication that respondent's silence was some sort of a tacit admission of guilt would be utterly absurd.
51
It is simply not reasonable to expect someone to protest that he is not acting illegally before he is told that he is suspected of criminal activity. It would have been a simple matter for the officer to ask whether respondent had a permit, but he chose not to do so. In making this choice, he clearly violated the Fourth Amendment.
52
This case marks a departure from the mainstream of our Fourth Amendment cases. In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), for example, the arresting officer had an informant's tip and actually smelled opium coming from a room. This Court still found the arrest unlawful. And in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, we found that there was no probable cause even where an informant's information was corroborated by personal observation. If there was no probable cause in those cases, I find it impossible to understand how there can be probable cause in this case.
III
53
Mr. Justice Douglas was the sole dissenter in Terry. He warned of the 'powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees . . ..' 392 U.S., at 39, 88 S.Ct., at 1889, 20 L.Ed.2d 889. While I took the position then that we were not watering down rights, but were hesitantly and cautiously striking a necessary balance between the rights of American citizens to be free from government intrusion into their privacy and their government's urgent need for a narrow exception to the warrant requirement of the Fourth Amendment, today's decision demonstrates just how prescient Mr. Justice Douglas was.
54
It seems that the delicate balance that Terry struck was simply too delicate, too susceptible to the 'hydraulic pressures' of the day. As a result of today's decision, the balance struck in Terry is now heavily weighted in favor of the government. And the Fourth Amendment, which was included in the Bill of Rights to prevent the kind of arbitrary and oppressive police action involved herein, is dealt a serious blow. Today's decision invokes the specter of a society in which innocent citizens may be stopped, searched, and arrested at the whim of police officers who have only the slightest suspicion of improper conduct.
1
Petitioner does not contend that Williams acted voluntarily in rolling down the window of his car.
2
Section 53—168 of the Connecticut General Statutes, in force at the time of these events, provided that a 'person who knowingly makes to any police officer * * * a false report or a false complaint alleging that a crime or crimes have been committed' is guilty of a misdemeanor.
3
Figures reported by the Federal Bureau of Investigation indicate that 125 policemen were murdered in 1971, with all but five of them having been killed by gunshot wounds. Federal Bureau of Investigation Law Enforcement Bulletin, Feb. 1972, p. 33. According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963).
1
App. 96—97.
2
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), makes it clear that a stop and frisk is a search and seizure within the meaning of the Fourth Amendment. When I use the term stop and frisk herein, I merely intend to emphasize that it is, as Terry held, a lesser intrusion than a full-scale search and seizure.
3
In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Court held that the action of the policeman could not be justified as a stop and frisk. In Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Court sustained the validity of a search and seizure by holding that it was incident to a legal arrest.
4
Terry v. Ohio, 392 U.S., at 29, 88 S.Ct., at 1884; Sibron v. New York, 392 U.S., at 64, 88 S.Ct., at 1903.
5
The fact that the respondent carried his gun in a high-crime area is irrelevant. In such areas it is more probable than not that citizens would be more likely to carry weapons authorized by the State to protect themselves.
6
See Conn.Gen.Stat.Rev. § 29—35.
7
Connecticut permits possession of certain narcotics under specified circumstances—e.g., pursuant to a doctor's prescription. See Conn.Gen.Stat.Rev. §§ 19—443, 19—456(c), 19—481.
8
The Court virtually ignores the requirement that the suspect be dangerous, as well as armed. Other courts have followed Terry more closely. See, e.g., Commonwealth v. Bourke, 218 Pa.Super. 320, 323, 280 A.2d 425, 427 (1971); Commonwealth v. Clarke, 219 Pa.Super. 340, 343, 280 A.2d 662, 663 (1971); Finley v. People, 176 Colo. 1, 488 P.2d 883 (1971). See also State v. Goudy, 52 Haw, 497, 505, 479 P.2d 800, 805 (1971) (Abe, J., dissenting).
9
The Court appears to rely on the fact that the existence of the gun corroborated the information supplied to the officer by the informant. It cannot be disputed that there is minimal corroboration here, but the fact remains that the officer still lacked any knowledge that respondent had done anything illegal. Since carrying a gun is not per se illegal in Connecticut, the fact that respondent carried a gun is no more relevant to probable cause than the fact that his shirt may have been blue, or that he was wearing a jacket. Moreover, the fact that the informant can identify a gun on sight does not indicate an ability to do the same with narcotics. The corroboration of this one fact is a far cry from the corroboration that the Court found sufficient to sustain an arrest in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
| 01
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407 U.S. 163
92 S.Ct. 1965
32 L.Ed.2d 627
MOOSE LODGE NO. 107, Appellant,v.K. Leroy IRVIS et al.
No. 70—75.
Argued Feb. 28, 1972.
Decided June 12, 1972.
Syllabus
Appellee Irvis, a Negro guest of a member of appellant, a private club, was refused service at the club's dining room and bar solely because of his race. In suing for injunctive relief, appellee contended that the discrimination was state action, and thus a violation of the Equal Protection Clause of the Fourteenth Amendment, because the Pennsylvania liquor board had issued appellant a private club liquor license. The District Court found appellant's membership and guest practices discriminatory, agreed with appellee's view that state action was present, and declared the liquor license invalid as long as appellant continued its discriminatory practices. Appellant's motion to have the final decree limited to its guest policy was opposed by appellee, and the court denied the motion. Following the District Court's decision, the applicable bylaws were amended to exclude as guests those who would be excluded as members. Held:
1. Appellee, who had no applied for or been denied membership in appellant private club, had no standing to contest appellant's membership practices. He did, however, have standing to litigate the constitutional validity of appellant's discriminatory policies toward members' guests, and his opposition to amendment of the judgment did not constitute a disclaimer of injunctive relief directed at appellant's guest policies. Pp. 165—171.
2. The operation of Pennsylvania's regulatory scheme enforced by the state liquor board, except as noted below, does not sufficiently implicate the State in appellant's discriminatory guest practices so as to make those practices 'state action' within the purview of the Equal Protection Clause, and there is no suggestion in the record that the State's regulation of the sale of liquor is intended overtly or covertly to encourage discrimination. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, distinguished. Pp. 171—177.
3. Pennsylvania liquor board's regulation requiring that 'every club licensee shall adhere to all the provisions of its constitution and by-laws' in effect placed state sanctions behind the discriminatory guest practices that were enacted after the District Court's decision, and enforcement of that regulation should be enjoined to the extent that it requires appellant to adhere to those practices. Pp. 177—179.
Irvis v. Scott, D.C., 318 F.Supp. 1246, reversed and remanded.
Frederick Bernays Wiener, Washington, D.C., for appellant.
Harry J. Rubin, York, Pa., for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellee Irvis, a Negro (hereafter appellee), was refused service by appellant Moose Lodge, a local branch of the national fraternal organization located in Harrisburg, Pennsylvania. Appellee then brought this action under 42 U.S.C. § 1983 for injunctive relief in the United States District Court for the Middle District of Pennsylvania. He claimed that because the Pennsylvania liquor board had issued appellant Moose Lodge a private club license that authorized the sale of alcoholic beverages on its premises, the refusal of service to him was 'state action' for the purposes of the Equal Protection Clause of the Fourteenth Amendment. He named both Moose Lodge and the Pennsylvania Liquor Authority as defendants, seeking injuncive relief that would have required the defendant liquor board to revoke Moose Lodge's license so long as it continued its discriminatory practices. Appellee sought no damages.
2
A three-judge district court, 318 F.Supp. 1246, convened at appellee's request, upheld his contention on the merits, and entered a decree declaring invalid the liquor license issued to Moose Lodge 'as long as it follows a policy of racial discrimination in its membership or operating policies or practices.' Moose Lodge alone appealed from the decree, and we postponed decision as to jurisdiction until the hearing on the merits, 401 U.S. 992, 91 S.Ct. 1226, 28 L.Ed.2d 529. Appellant urges, in the alternative, that we either vacate the judgment below because there is not presently a case or controversy between the parties, or that we reverse on the merits.
3
* The District Court in its opinion found that 'a Caucasian member in good standing brought plaintiff, a Negro, to the Lodge's dining room and bar as his guest and requested service of food and beverages. The Lodge through its employees refused service to plaintiff solely because he is a Negro.' 318 F.Supp. 1246, 1247. It is undisputed that each local Moose Lodge is bound by the constitution and general bylaws of the Supreme Lodge, the latter of which contain a provision limiting membership in the lodges to white male Caucasians. The District Court in this connection found that '(t)he lodges accordingly maintain a policy and practice of restricting membership to the Caucasian race and permitting members to bring only Caucasian guests on lodge premises, particularly to the dining room and bar.' Ibid.
4
The District Court ruled in favor of appellee on his Fourteenth Amendment claim, and entered the previously described decree. Following its loss on the merits in the District Court, Moose Lodge moved to modify the final decree by limiting its effect to discriminatory policies with respect to the service of guests. Appellee opposed the proposed modification, and the court denied the motion.
5
The District Court did not find, and it could not have found on this record, that appellee had sought membership in Moose Lodge and been denied it. Appellant contends that because of this fact, appellee had no standing to litigate the constitutional issue respecting Moose Lodge's membership requirements, and that therefore the decree of the court below erred insofar as it decided that issue.
6
Any injury to appellee from the conduct of Moose Lodge stemmed, not from the lodge's membership requirements, but from its policies with respect to the serving of guests of members. Appellee has standing to seek redress for injuries done to him, but may not seek redress for injuries done to others. Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 558, 57 S.Ct. 592, 604, 81 L.Ed. 789 (1937); Erie R. Co. v. Williams, 233 U.S. 685, 697, 34 S.Ct. 761, 763, 58 L.Ed. 1155 (1914). While this Court has held that in exceptional situations a concededly injured party may rely on the constitutional rights of a third party in obtaining relief, Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953),1 in this case appellee was not injured by Moose Lodge's membership policy since he never sought to become a member.
7
Appellee relies on Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), to support the breadth of the District Court's decree. Flast v. Cohen held that a federal taxpayer had standing qua taxpayer to challenge the expenditure of federal funds authorized by Congress under the taxing and spending clause of the Constitution. The Court in Flast pointed out:
8
'It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952).' 392 U.S., at 102, 88 S.Ct., at 1954.
9
The taxpayer's claim in Flast, of course was that the proposed expenditure violated the Establishment Clause of the First Amendment to the Constitution, a clause which by its terms prohibits taxing and spending in aid of religion.
10
The Court in Law Students Civil Rights Research Council v. Wadmond, supra, noted that while appellants admitted that no person involved in that litigation had been refused admission to the New York bar, they claimed that the existence of New York's system of screening applicants for admission to the bar worked a chilling effect upon the free exercise of the rights of speech and association of students who must anticipate having to meet its requirements. The Court then went on to decide the merits of the students' contention. While the doctrine of 'overbreadth' has been held by this Court in prior decisions to accord standing by reason of the 'chilling effect' that a particular law might have upon the exercise of the First Amendment rights, that doctrine has not been applied to constitutional litigation in areas other than those relating to the First Amendment.
11
We believe that Moose Lodge is correct, therefore, in contending that the District Court in its decree went beyond the vindication of any claim that appellee had standing to litigate. Appellee did, however, have standing to litigate the constitutional validity of Moose Lodge's policies relating to the service of guests of members. The language of the decree, insofar as it referred to Moose Lodge's 'policy of racial discrimination in its membership or operating policies or practices' is sufficiently broad to encompass practices relating to the service of guests of members, as well as policies and practices relating to the acceptance of members. But Moose Lodge claims that, because of the position appellee took on the motion to modify the decree, he in effect disclaimed any interest in obtaining relief based solely on the Lodge's practice with respect to serving the guests of members.
Appellee in his brief on this point says:
12
'(Moose Lodge's argument as to mootness) is based upon Moose Lodge's motion to modify the decree . . . and somehow to allow it to change its operations and to permit Irvis to be brought to the Moose Lodge's premises as a guest. But, as Irvis pointed out in his answer to this motion . . . nothing at all would be changed even if this were done because the vice of racial discrimination arose from the privileges of membership, either those accruing to a person in his own enjoyment of them or those accruing to a person in his ability to bring a guest or guests to Moose Lodge. Nothing in the suggested modification would make repetition impossible because the fact that Irvis was a guest was purely happenstance. Whether he be barred because no member would invite him or because he has no opportunity to become a member, the situation remains unchanged.' (Brief for Appellee 41.)
13
During oral argument of the case here, counsel for appellee was asked to explain why he opposed the motion to modify made in the lower court, and he responded as follows:
14
'The motion to modify which would have allowed Mr. Irvis or any others to be admitted as a guest would have done nothing to remove the Commonwealth of Pennsylvania from the discriminatory actions of the Moose Lodge.
15
'That is, it still would have been a matter of being dependent upon a white member of the Moose Lodge to invite him there. It would have been a matter of no particular Negro being sure that the Moose Lodge would or would not discriminate. The Commonwealth of Pennsylvania would still be issuing that license to a discriminating private club. And I think it's worth noting that at the time this motion to modify was being presented, the Moose Lodge was in the process of amending its by-laws to forbid Negroes from being guests. So, at the same time they were saying let us modify the decree so that we can admit Mr. Irvis as a guest, their by-laws were being amended to say no Negroes can come in as guests, let alone members.
16
'We feel that the idea that he should then be allowed to come in as a guest through a modification of the decree does not go to the heart of the problem. It does not supply the type of redress that we think cuts through the problem of state participation or support for the discrimination of the Moose Lodge, and that is why we oppose it.' Tr. of Oral Arg. 31—32.
17
We are loath to attach conclusive weight to the relatively spontaneous responses of counsel to equally spontaneous questioning from the Court during oral argument. However, upon examination of this answer it reflects subsantially the same position as appellee took in his brief here. While it is possible to infer from these statements that appellee is simply not interested in obtaining any relief as to guest practices of Moose Lodge if he should prevail on the merits, it is equally possible to read them as being tactical arguments designed to avoid having to settle for half a loaf when he might obtain the whole loaf.
18
The mere refusal by appellee to consent to the proposed amendment of the judgment by itself could not be construed as a waiver or disclaimer of injunctive relief directed solely to Moose Lodge's practice with respect to the service of guests. Appellee's complaint, while directed primarily at membership policies of Moose Lodge, contained a customary prayer for other relief which was broad enough to embrace relief with respect to the practices of the lodge in serving guests of members. The District Court in its decree used language that was clearly broad enough to include such practices, as well as the membership policies of Moose Lodge. Having thus prayed for such relief in his complaint, and having obtained it from the District Court, nothing less than an explicit renunciation of any claim or desire for such relief here would justify our concluding that there was no longer a case or controversy with respect to Moose Lodge's practices in serving guests of members. We do not believe that a fair reading of appellee's argument in opposition to the motion to amend the judgment below, or of the statements made in his brief and oral argument here, amount to such an explicit renunciation.
19
Because appellee had no standing to litigate a constitutional claim arising out of Moose Lodge's membership practices, the District Court erred in reaching that issue on the merits. But it did not err in reaching the constitutional claim of appellee that Moose Lodge's guest-service practices under these circumstances violated the Fourteenth Amendment. Nothing in the positions taken by the parties since the entry of the District Court decree has mooted that claim, and we therefore turn to its disposition.
II
20
Moose Lodge is a private club in the ordinary meaning of that term. It is a local chapter of a national fraternal organization having well-defined requirements for membership. It conducts all of its activities in a building that is owned by it. It is not publicly funded. Only members and guests are permitted in any lodge of the order; one may become a guest only by invitation of a member or upon invitation of the house committee.
21
Appellee, while conceding the right of private clubs to choose members upon a discriminatory basis, asserts that the licensing of Moose Lodge to serve liquor by the Pennsylvania Liquor Control Board amounts to such state involvement with the club's activities as to make its discriminatory practices forbidden by the Equal Protection Clause of the Fourteenth Amendment. The relief sought and obtained by appellee in the District Court was an injunction forbidding the licensing by the liquor authority of Moose Lodge until it ceased its discriminatory practices. We conclude that Moose Lodge's refusal to serve food and beverages to a guest by reason of the fact that he was a Negro does not, under the circumstances here presented, violate the Fourteenth Amendment.
22
In 1883, this Court in The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, set forth the essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, 'however discriminatory or wrongful,' against which that clause 'erects no shield,' Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948). That dichotomy has been subsequently reaffirmed in Shelley v. Kraemer, supra, and in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).
23
While the principle is easily stated, the question of whether particular discriminatory conduct is private, on the one hand, or amounts to 'state action,' on the other hand, frequently admits of no easy answer. 'Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.' Burton v. Wilmington Parking Authority, supra, at 722, 81 S.Ct., at 860.
24
Our cases make clear that the impetus for the forbidden discrimination need not originate with the State if it is state action that enforces privately originated discrimination. Shelley v. Kraemer, supra. The Court held in Burton v. Wilmington Parking Authority, supra, that a private restaurant owner who refused service because of a customer's race violated the Fourteenth Amendment, where the restaurant was located in a building owned by a statecreated parking authority and leased from the authority. The Court, after a comprehensive review of the relationship between the lessee and the parking authority concluded that the latter had 'so far insinuated itself into a position of interdependence with Eagle (the restaurant owner) that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment.' 365 U.S., at 725, 81 S.Ct., at 862.
25
The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from state conduct set forth in The Civil Rights Cases, supra, and adhered to in subsequent decisions. Our holdings indicate that where the impetus for the discrimination is private, the State must have 'significantly involved itself with invidious discriminations,' Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 1634, 18 L.Ed.2d 830 (1967), in order for the discriminatory action to fall within the ambit of the constitutional prohibition.
26
Our prior decisions dealing with discriminatory refusal of service in public eating places are significantly different factually from the case now before us. Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963), dealt with the trespass prosecution of persons who 'sat in' at a restaurant to protest its refusal of service to Negroes. There the Court held that although the ostensible initiative for the trespass prosecution came from the proprietor, the existence of a local ordinance requiring segregation of races in such places was tantamount to the State having 'commanded a particular result,' 373 U.S., at 248, 83 S.Ct., at 1121. With one exception, which is discussed infra, at 178—179, there is no suggestion in this record that the Pennsylvania statutes and regulations governing the sale of liquor are intended either overtly or covertly to encourage discrimination.
27
In Burton, supra, the Court's full discussion of the facts in its opinion indicates the significant differences between that case and this:
28
'The land and building were publicly owned. As an entity, the building was dedicated to 'public uses' in performance of the Authority's 'essential governmental functions.' (Citation omitted.) The costs of land acquisition, construction, and maintenance are defrayed entirely from donations by the City of Wilmington, from loans and revenue bonds and from the proceeds of rentals and parking services out of which the loans and bonds were payable. Assuming that the distinction would be significant, (citation omitted) the commercially leased areas were not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State's plan to operate its project as a self-sustaining unit. Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority and were payable out of public funds. It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits. Guests of the restaurant are afforded a convenient place to park their automobiles, even if they cannot enter the restaurant directly from the parking area. Similarly, its convenience for diners may well provide additional demand for the Authority's parking facilities. Should any improvements effected in the leasehold by Eagle become part of the realty, there is no possibility of increased taxes being passed on to it since the fee is held by a tax-exempt government agency. Neither can it be ignored, especially in view of Eagle's affirmative allegation that for it to serve Negroes would injure its business, that profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.' 365 U.S., at 723—724, 81 S.Ct., at 861.
29
Here there is nothing approaching the symbiotic relationship between lessor and lessee that was present in Burton, where the private lessee obtained the benefit of locating in a building owned by the state-created parking authority, and the parking authority was enabled to carry out its primary public purpose of furnishing parking space by advantageously leasing portions of the building constructed for that purpose to commercial lessees such as the owner of the Eagle Restaurant. Unlike Burton, the Moose Lodge building is located on land owned by it, not by any public authority. Far from apparently holding itself out as a place of public accommodation, Moose Lodge quite ostentatiously proclaims the fact that it is not open to the public at large.2 Nor is it located and operated in such surroundings that although private in name, it discharges a function or performs a service that would otherwise in all likelihood be performed by the State. In short, while Eagle was a public restaurant in a public building, Moose Lodge is a private social club in a private building.
30
With the exception hereafter noted, the Pennsylvania Liquor Control Board plays absolutely no part in establishing or enforcing the membership or guest policies of the club that it licenses to serve liquor.3 There is no suggestion in this record that Pennsylvania law, either as written or asapplied, discriminates against minority groups either in their right to apply for club licenses themselves or in their right to purchase and be served liquor in places of public accommodation. The only effect that the state licensing of Moose Lodge to serve liquor can be said to have on the right of any other Pennsylvanian to buy or be served liquor on premises other than those of Moose Lodge is that for some purposes club licenses are counted in the maximum number of licenses that may be issued in a given municipality. Basically each municipality has a quota of one retail license for each 1,500 inhabitants. Licenses issued to hotels, municipal golf courses, and airport restaurants are not counted in this quota, nor are club licenses until the maximum number of retail licenses is reached. Beyond that point, neither additional retail licenses nor additional club licenses may be issued so long as the number of issued and outstanding retail licenses remains at or above the statutory maximum.
31
The District Court was at pains to point out in its opinion what it considered to be the 'pervasive' nature of the regulation of private clubs by the Pennsylvania Liquor Control Board. As that court noted, an applicant for a club license must make such physical alterations in its premises as the board may require, must file a list of the names and addresses of its members and employees, and must keep extensive financial records. The board is granted the right to inspect the licensed premises at any time when patrons, guests, or members are present.
32
However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club's enterprise. The limited effect of the prohibition against obtaining additional club licenses when the maximum number of retail licenses allotted to a municipality has been issued, when considered together with the availability of liquor from hotel, restaurant, and retail licensees, falls far short of conferring upon club licensees a monopoly in the dispensing of liquor in any given municipality or in the State as a whole. We therefore hold that, with the exception hereafter noted, the operation of the regulatory scheme enforced by the Pennsylvania Liquor Control Board does not sufficiently implicate the State in the discriminatory guest policies of Moose Lodge to make the latter 'state action' within the ambit of the Equal Protection Clause of the Fourteenth Amendment.
33
The District Court found that the regulations of the Liquor Control Board adopted pursuant to statute affirmatively require that '(e)very club licensee shall adhere to all of the provisions of its Constitution and By-Laws.'4 Appellant argues that the purpose of this provision 'is purely and simply and plainly the prevention of subterfuge,' pointing out that the bona fides of a private club, as opposed to a place of public accommodation masquerading as a private club, is a matter with which the State Liquor Control Board may legitimately concern itself. Appellee concedes this to be the case, and expresses disagreement with the District Court on this point. There can be no doubt that the label 'private club' can be and has been used to evade both regulations of state and local liquor authorities, and statutes requiring places of public accommodation to serve all persons without regard to race, color, religion, or national origin. This Court in Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969), had occasion to address this issue in connection with the application of Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a et seq.
34
The effect of this particular regulation on Moose Lodge under the provisions of the constitution placed in the record in the court below would be to place state sanctions behind its discriminatory membership rules, but not behind its guest practices, which were not embodied in the constitution of the lodge. Had there been no change in the relevant circumstances since the making of the record in the District Court, our holding in Part I of this opinion that appellee has standing to challenge only the guest practices of Moose Lodge would have a bearing on our disposition of this issue. Appellee stated upon oral argument, though, and Moose Lodge conceded in its brief5 that the bylaws of the Supreme Lodge have been altered since the lower court decision to make applicable to guests the same sort of racial restrictions as are presently applicable to members.6
35
Even though the Liquor Control Board regulation in question is neutral in its terms, the result of its application in a case where the constitution and bylaws of a club required racial discrimination would be to invoke the sanctions of the State to enforce a concededly discriminatory private rule. State action, for purposes of the Equal Protection Clause, may emanate from rulings of administrative and regulatory agencies as well as from legislative or judicial action. Robinson v. Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771 (1964). Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), makes it clear that the application of state sanctions to enforce such a rule would violate the Fourteenth Amendment. Although the record before us is not as clear as one would like, appellant has not persuaded us that the District Court should have denied any and all relief.
36
Appellee was entitled to a decree enjoining the enforcement of § 113.09 of the regulations promulgated by the Pennsylvania Liquor Control Board insofar as that regulation requires compliance by Moose Lodge with provisions of its constitution and bylaws containing racially discriminatory provisions. He was entitled to no more. The judgment of the District Court is reversed, and the cause remanded with instructions to enter a decree in conformity with this opinion.
37
Reversed and remanded.
38
Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL joins, dissenting.
39
My view of the First Amendment and the related guarantees of the Bill of Rights is that they create a zone of privacy which precludes government from interfering with private clubs or groups.1 The associational rights which our system honors permit all white, all black, all brown, and all yellow coubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires. So the fact that the Moose Lodge allows only Caucasians to join or come as guests is constitutionally irrelevant, as is the decision of the Black Muslims to admit to their services only members of their race.
40
The problem is different, however, where the public domain is concerned. I have indicated in Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, and Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338, that where restaurants or other facilities serving the public are concerned and licenses are obtained from the State for operating the business, the 'public' may not be defined by the proprietor to include only people of his choice; nor may a state or municipal service be granted only to some. Evans v. Newton, 382 U.S. 296, 298—299, 86 S.Ct. 486, 487 488, 15 L.Ed.2d 373.
41
Those cases are not precisely apposite, however, for a private club, by definition, is not in the public domain. And the fact that a private club gets some kind of permit from the State or municipality does not make it ipso facto a public enterprise or undertaking, any more than the grant to a householder of a permit to operate an incinerator puts the householder in the public domain. We must, therefore, examine whether there are special circumstances involved in the Pennsylvania scheme which differentiate the liquor license possessed by Moose Lodge from the incinerator permit.
42
Pennsylvania has a state store system of alcohol distribution. Resale is permitted by hotels, restaurants, and private clubs which all must obtain licenses from the Liquor Control Board. The scheme of regulation is complete and pervasive; and the state courts have sustained many restrictions on the licensees. See Tahiti Bar Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112. Once a license is issued the licensee must comply with many detailed requirements or risk suspension or revocation of the license. Among these requirements is Regulation § 113.09 which says: 'Every club licensee shall adhere to all of the provisions of its Constitution and By-laws.' This regulation means, as applied to Moose Lodge, that it must adhere to the racially discriminatory provision of the Constitution of its Supreme Lodge that '(t)he membership of lodges shall be composed of male persons of the Caucasian or White race above the age of twenty-one years, and not married to someone of any other than the Caucasian or White race, who are of good moral character, physically and mentally normal, who shall profess a belief in a Supreme Being.'
43
It is argued that this regulation only aims at the prevention of subterfuge and at enforcing Pennsylvania's differentiation between places of public accommodation and bona fide private clubs. It is also argued that the regulation only gives effect to the constitutionally protected rights of privacy and of association. But I cannot so read the regulation. While those other purposes are embraced in it, so is the restrictive membership clause. And we have held that 'a State is responsible for the discriminatory act of a private party when the State, by its law, has compelled the act.' Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142. See Peterson v. City of Greenville, 373 U.S. 244, 248, 83 S.Ct. 1119, 1121, 10 L.Ed.2d 323. It is irrelevant whether the law is statutory, or an administrative regulation. Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771. And it is irrelevant whether the discriminatory act was instigated by the regulation, or was independent of it. Peterson v. City of Greenville, supra. The result, as I see it, is the same as though Pennsylvania had put into its liquor licenses a provision that the license may not be used to dispense liquor to blacks, browns, yellows—or atheists or agnostics. Regulation § 113.09 is thus an invidious form of state action.
44
Were this regulation the only infirmity in Pennsylvania's licensing scheme, I would perhaps agree with the majority that the appropriate relief would be a decree enjoining its enforcement. But there is another flaw in the scheme not so easily cured. Liquor licenses in Pennsylvania, unlike driver's licenses, or marriage licenses, are not freely available to those who meet racially neutral qualifications. There is a complex quota system, which the majority accurately describes. Ante, at 176. What the majority neglects to say is that the quota for Harrisburg, where Moose Lodge No. 107 is located, has been full for many years.2 No more club licenses may be issued in that city.
45
This state-enforced scarcity of licenses restricts the ability of blacks to obtain liquor, for liquor is commercially available only at private clubs for a significant portion of each week.3 Access by blacks to places that serve liquor is further limited by the fact that the state quota is filled. A group desiring to form a nondiscriminatory club which would serve blacks must purchase a license held by an existing club, which can exact a monopoly price for the transfer. The availability of such a license is speculative at best, however, for, as Moose Lodge itself concedes, without a liquor license a fraternal organization would be hard pressed to survive.
46
Thus, the State of Pennsylvania is putting the weight of its liquor license, concededly a valued and important adjunct to a private club, behind racial discrimination.
47
As the first Justice Harlan, dissenting in the Civil Rights Cases, 109 U.S. 3, 59, 3 S.Ct. 18, 55, 27 L.Ed. 835, said:
48
'I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern. . . . What I affirm is that no state, nor the officers of any state, nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can, consistently . . . with the freedom established by the fundamental law . . . discriminate against freemen or citizens, in their civil rights, because of their race . . ..'
49
The regulation governing this liquor license has in it that precise infirmity.4
50
I would affirm the judgment below.
51
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
52
When Moose Lodge obtained its liquor license, the State of Pennsylvania became an active participant in the operation of the Lodge bar. Liquor licensing laws are only incidentally revenue measures; they are primarily pervasive regulatory schemes under which the State dictates and continually supervises virtually every detail of the operation of the licensee's business. Very few, if any, other licensed businesses experience such complete state involvement. Yet the Court holds that such involvement does not constitute 'state action' making the Lodge's refusal to serve a guest liquor solely because of his race a violation of the Fourteenth Amendment. The vital flaw in the Court's reasoning is its complete disregard of the fundamental value underlying the 'state action' concept. That value is discussed in my separate opinion in Adickes v. S.H. Kress & Co., 398 U.S. 144, 190—191, 90 S.Ct. 1598, 1620, 26 L.Ed.2d 142 (1970):
53
'The state-action doctrine reflects the profound judgment that denials of equal treatment, and particularly denials on account of race or color, are singularly grave when government has or shares responsibility for them. Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial discrimination. Accordingly, . . . the cases that have come before us (in which) this Court has condemned significant state involvement in racial discrimination, however subtle and indirect it may have been and whatever form it may have taken(,) . . . represent vigilant fidelity to the constitutional principle that no State shall in any significant way lend its authority to the sordid business of racial discrimination.'
54
Plainly, the State of Pennsylvania's liquor regulations intertwine the State with the operation of the Lodge bar in a 'significant way (and) lend (the State's) authority to the sordid business of racial discrimination.' The opinion of the late Circuit Judge Freedman, for the three-judge District Court, most persuasively demonstrates the 'state action' present in this case:
55
'We believe the decisive factor is the uniqueness and the all-pervasiveness of the regulation by the Commonwealth of Pennsylvania of the dispensing of liquor under licenses granted by the state. The regulation inherent in the grant of a state liquor license is so different in nature and extent from the ordinary licenses issued by the state that it is different in quality.
56
'It had always been held in Pennsylvania, even prior to the Eighteenth Amendment, that the exercise of the power to grant licenses for the sale of intoxicating liquor was an exercise of the highest governmental power, one in which the state had the fullest freedom inhering in the police power of the sovereign. With the Eighteenth Amendment which went into effect in 1919 the right to deal in intoxicating liquor was extinguished. The era of Prohibition ended with the adoption in 1933 of the Twenty-first Amendment, which has left to each state the absolute power to prohibit the sale, possession or use of intoxicating liquor, and in general to deal otherwise with it as it sees fit.
57
'Pennsylvania has exercised this power with the fullest measure of state authority. Under the Pennsylvania plan the state monopolizes the sale of liquor through its so-called state stores, operated by the state. Resale of liquor is permitted by hotels, restaurants and private clubs, which must obtain licenses from the Liquor Control Board, authorizing them 'to purchase liquor from a Pennsylvania Liquor Store (at a discount) and keep on the premises such liquor and, subject to the provisions of this Act and the regulations made thereunder to sell the same and also malt or brewed beverages to guests, patrons or members for consumption on the hotel, restaurant or club premises.'
58
'The issuance or refusal of a license to a club is in the discretion of the Liquor Control Board. In order to secure one of the limited number of licenses which are available in each municipality an applicant must comply with extensive requirements, which in general are applicable to commercial and club licenses equally. The applicant must make such physical alterations in his premises as the Board may require and, if a club, must file a list of the names and addresses of its members and employees, together with such other information as the Board may require. He must conform his over-all financial arrangements to the statute's exacting requirements and keep extensive records. He may not permit 'persons of ill repute' to frequent his premises nor allow thereon at any time any 'lewd, immoral or improper entertainment.' He must grant the Board and its agents the right to inspect the licensed premises at any time when patrons, guests or members are present. It is only on compliance with these and numerous other requirements and if the Board is satisfied that the applicant is 'a person of good repute' and that the license will not be 'detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood,' that the license may issue.
59
'Once a license has been issued the licensee must comply with many detailed requirements or risk its suspension or revocation. He must in any event have it renewed periodically. Liquor licenses have been employed in Pennsylvania to regulate a wide variety of moral conduct, such as the presence and activities of homosexuals, performance by a topless dancer, lewd dancing, swearing, being noisy or disorderly. So broad is the state's power that the courts of Pennsylvania have upheld its restriction of freedom of expression of a licensee on the ground that in doing so it merely exercises its plenary power to attach conditions to the privilege of dispensing liquor which a licensee holds at the sufferance of the state.
60
'These are but some of the many reported illustrations of the use which the state has made of its unrestricted power to regulate and even to deny the right to sell, transport or possess intoxicating liquor. It would be difficult to find a more pervasive interaction of state authority with personal conduct. The holder of a liquor license from the Commonwealth of Pennsylvania therefore is not like other licensees who conduct their enterprises at arms-length from the state, even though they may have been required to comply with certain conditions, such as zoning or building requirements, in order to obtain or continue to enjoy the license which authorizes them to engage in their business. The state's concern in such cases is minimal and once the conditions it has exacted are met the customary operations of the enterprise are free from further encroachment. Here by contrast beyond the act of licensing is the continuing and pervasive regulation of the licensees by the state to an unparalleled extent. The unique power which the state enjoys in this area, which has put it in the business of operating state liquor stores and in the role of licensing clubs, has been exercised in a manner which reaches intimately and deeply into the operation of the licensees.
61
'In addition to this, the regulations of the Liquor Control Board adopted pursuant to the statute affirmatively require that 'every club licensee shall adhere to all the provisions of its constitution and by-laws.' As appied to the present case this regulation requires the local Lodge to adhere to the constitution of the Supreme Lodge and thus to exclude non-Caucasians from membership in its licensed club. The state therefore has been far from neutral. It has declared that the local Lodge must adhere to the discriminatory provision under penalty of loss of its license. It would be difficult in any event to consider the state neutral in an area which is so permeated with state regulation and control, but any vestige of neutrality disappears when the state's regulation specifically exacts compliance by the licensee with an approved provision for discrimination, especially where the ex-action holds the threat of loss of the license.
62
'However it may deal with its licensees in exercising its great and untrammeled power over liquor traffic, the state may not discriminate against others or disregard the operation of the Equal Protection Clause of the Fourteenth Amendment as it affects personal rights. Here the state has used its great power to license the liquor traffic in a manner which has no relation to the traffic in liquor itself but instead permits it to be exploited in the pursuit of a discriminatory practice.' 318 F.Supp. 1246, 1248—1250 (MD Pa.1970).
63
This is thus a case requiring application of the principle that until today has governed our determinations of the existence of 'state action': 'Our prior decisions leave no doubt that the mere existence of efforts by the State, through legislation or otherwise, to authorize, encourage, or otherwise support racial discrimination in a particular facet of life constitutes illegal state involvement in those pertinent private acts of discrimination that subsequently occur.' Adickes v. S.H. Kress & Co., 398 U.S., at 202, 90 S.Ct., at 1626 (separate opinion of Brennan, J.). See, e.g., Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914).
64
I therefore dissent and would affirm the final decree entered by the District Court.
1
Our recent opinion in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636, referred to a similar relationship between the standing of the plaintiff and the argument of which he might avail himself where judicial review of agency action is sought. Id., at 737, 92 S.Ct., at 1367.
2
The Pennsylvania courts have found that Local 107 is not a 'place of public accommodation' within the terms of the Pennsylvania Human Relations Act, Pa.Stat.Ann., Tit. 43, § 951 et seq. (1964). Pennsylvania Human Relations Comm'n v. Loyal Order of Moose, Lodge No. 107, Ct.Common Pleas, Dauphin County, 92 Dauph. 234, aff'd, 220 Pa.Super. 356, 286 A.2d 374 (1971).
3
Unlike the situation in Public Utilities Comm. v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952), where the regulatory agency had affirmatively approved the practice of the regulated entity after full investigation, the Pennsylvania Liquor Control Board has neither approved nor endorsed the racially discriminatory practices of Moose Lodge.
4
Regulations of the Pennsylvania Liquor Control Board § 113.09 (June 1970 ed.).
5
Brief for Appellant 10.
6
Section 92.1 of the General Laws of the Loyal Order of Moose presently provides in relevant part as follows:
'Sec. 92.1—To Prevent Admission of Non Members—There shall never at any time be admitted to any social club or home maintained or operated by any lodge, any person who is not a member of some lodge in good standing. The House Committee may grant guest privileges to persons who are eligible for membership in the fraternity consistent with governmental laws and regulations. A member shall accompany such guest and shall be responsible for the actions of said guest, and upon the member leaving, the guest must also leave. It is the duty of each member of the Order when so requested to submit for inspection his receipt for dues to any member of any House Committee or its authorized employee.'
1
It has been stipulated that Moose Lodge No. 107 'is, in all respects, private in nature and does not appear to have any public characteristics.' App. 23. The cause below was tried solely on the theory that granting a Pennsylvania liquor license to a club assumed to be purely private was sufficient state involvement to trigger the Equal Protection Clause. There was no occasion to consider the question whether, perhaps because of a role as a center of community activity, Moose Lodge No. 107 was in fact 'private' for equal protection purposes. The decision today, therefore, leaves this question open. See Comment, Current Developments in State Action and Equal Protection of the Law, 4 Gonzaga L.Rev. 233, 271—286.
2
Indeed, the quota is more than full, as a result of a grandfather clause in the law limiting licenses to one per 1,500 inhabitants. Act No. 702 of Dec. 17, 1959, § 2. There are presently 115 licenses in effect in Harrisburg, and based on 1970 census figures, the quota would be 45.
3
Hotels and restaurants may serve liquor between 7 a.m. and 2 a.m. the next day, Monday through Saturday. On Sunday, such licensees are restricted to sales between 12 p.m. and 2 a.m., and between 1 p.m. and 10 p.m. Pennsylvania Liquor Code, § 406(a). Thus, such licensees may serve a total of 123 hours per week. Club licensees, however, are permitted to sell liquor to members and guests from 7 a.m. to 3 a.m. the next day, seven days a week. Ibid. The total hours of sale permitted club licensees are 140, 17 more than are permitted hotels and restaurants. (There is an additional restriction on election-day sales as to which only club licensees are exempt. Ibid.)
4
The majority asserts that appellee Irvis had 'standing' only to challenge Moose Lodge's guest-service practices, not its membership policies, on the theory that his 'injury . . . stemmed, not from the lodge's membership requirements, but from its policies with
respect to the serving of guests of members.' Ante, at 166. I submit that appellee's standing is not so confined.
A litigant has standing, for purposes of the Art. III 'case' or 'controversy' requirement, if he 'alleges that the challenged action has caused him injury in fact, economic or otherwise.' Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184. When Moose Lodge refused service to appellee Irvis solely because of his race, it imposed upon him a special disability apart from that suffered by the population at large. If this discrimination is chargeable to the State, Irvis has standing, not only to challenge Moose Lodge's guest policies—the immediate cause of the harm—but also to challenge the state scheme which authorized these policies. For an individual 'subjected by statute to special disabilities necessarily has . . . a substantial, immediate, and real interest in the validity of the statute which imposes the disability.' Evers v. Dwyer, 358 U.S. 202, 204, 79 S.Ct. 178, 179, 3 L.Ed.2d 222.
Moreover, once called into question, all discrimination authorized by the scheme is at issue. Just as a federal court may order an entire school desegregated upon the petition of a litigant representing only the fifth grade, so could the court below cure the invidious discrimination it found to exist in Pennsylvania's liquor licensing scheme upon the petition of a litigant injured only by one aspect of that discrimination. The root evil was that Irvis was discriminated against with the blessing of the State, not that he was discriminated against qua 'guest' or 'member.'
In my view, moreover, a black Pennsylvania suffers cognizable injury, when the State supports and encourages the maintenance of a system of segregated fraternal organizations, whether or not he himself had sought membership in or had been refused service by such an organization, just as a black Pennsylvanian would suffer cognizable injury if the State were to enforce a segregated bus system, whether or not he had ever ridden or ever intended to ride on such a bus. Cf. Evers v. Dwyer, supra. American culture and history have been so plagued with racism and discrimination that it is clear beyond doubt that in such circumstances blacks suffer 'injury in fact.' It 'is practically a brand upon them, affixed by the law,
an assertion of their inferiority, and a stimulant to . . . race prejudice . . ..' Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664. Their stake is analogous to the 'spiritual stake' in First Amendment values which we have held may give standing to raise claims under the Establishment Clause and Free Exercise Clause. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947.
Thus, whether state action be found in Regulation § 113.09, in Pennsylvania's creation of a monopoly which operates to restrict access to places in which blacks may be served liquor, or both, appellee Irvis has standing to challenge all aspects of the discriminatory scheme.
| 12
|
407 U.S. 128
92 S.Ct. 2027
32 L.Ed.2d 600
James R. JAMES, Judicial Administrator, et al., Appellants,v.David E. STRANGE.
No. 71—11.
Argued March 22, 1972.
Decided June 12, 1972.
Syllabus
Kansas recoupment statute enabling State to recover in subsequent civil proceedings legal defense fees for indigent defendants, invalidated by District Court as an infringement on the right to counsel, held to violate the Equal Protection Clause in that, by virtue of the statute, indigent defendants are deprived of the array of protective exemptions Kansas has erected for other civil judgment debtors. Pp. 129—142.
323 F.Supp. 1230, affirmed.
Edward G. Collister, Jr., Lawrence, Kan., for appellants.
John E. Wilkinson, Topeka, Kan., for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents a constitutional challenge to a Kansas recoupment statute, whereby the State may recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants. The three-judge court below held the statute unconstitutional, finding it to be an impermissible burden upon the right to counsel established in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).1 The State appealed and we noted jurisdiction, 404 U.S. 982, 92 S.Ct. 444, 30 L.Ed.2d 365.
2
The relevant facts are not disputed. Appellee Strange was arrested and charged with first-degree robbery under Kansas law. He appeared before a magistrate, professed indigency, and accepted appointed counsel under the Kansas Aid to Indigent Defendants Act.2 Appellee was then tried in the Shawnee County District Court on the reduced charge of pocket picking. He pleaded guilty and received a suspended sentence and three years' probation.
3
Thereafter, appellee's counsel applied to the State for payment for his services and received $500 from the Aid to Indigent Defendants Fund. Pursuant to Kansas' recoupment statute, the Kansas Judicial Administrator requested appellee to reimburse the State within 60 days or a judgment for the $500 would be docketed against him. Appellee contends this procedure violates his constitutional rights.
4
* It is necessary at the outset to explain the terms and operation of the challenged statute.3 When the State provides an indigent defendant with counsel or other legal services, the defendant becomes obligated to the State for the amount expended in his behalf. Within 30 days of the expenditure, the defendant is notified of his debt and given 60 days to repay it.4 If the sum remains unpaid after the 60-day period, a judgment is docketed against defendant for the unpaid amount. Six percent annual interest runs on the debt from the date the expenditure was made. The debt becomes a lien on the real estate of defendant and may be executed by garnishment or in any other manner provided by the Kansas Code of Civil Procedure. The indigent defendant is not, however, accorded any of the exemptions provided by that code for other judgment debtors except the homestead exemption. If the judgment is not executed within five years, it becomes dormant and ceases to operate as a lien on the debtor's real estate, but may be revived in the same manner as other dormant judgments under the code of civil procedure.5
5
Several features of this procedure merit mention. The entire program is administered by the judicial administrator, a public official, but appointed counsel are private practitioners. The statute apparently leaves to administrative discretion whether, and under what circumstances, enforcement of the judgment will be sought. Recovered sums do, however, revert to the Aid to Indigent Defendants Fund.
6
The Kansas statute is but one of many state recoupment laws applicable to counsel fees and expenditures paid for indigent defendants.6 The statutes vary widely in their terms. Under some statutes, the indigent's liability is to the county in which he is tried; in others to the State. Alabama and Indiana make assessment and recovery of an indigent's counsel fees discretionary with the court. Florida's recoupment law has no statute of limitations and the State is deemed to have a perpetual lien against the defendant's real and personal property and estate.7 Idaho, on the other hand, has a five-year statute of limitations on the recovery of an 'indigent's' concealed assets at the time of trial and a three-year statute for the recovery of later acquired ones. In Virginia and West Virginia, the amount paid to court-appointed counsel is assessed only against convicted defendants as a part of costs, although the majority of state recoupment laws apply whether or not the defendant prevails. It is thus apparent that state recoupment laws and procedures differ significantly in their particulars.8 Given the wide differences in the features of these statutes, any broadside pronouncement on their general validity would be inappropriate.
7
We turn therefore to the Kansas statute, aware that our reviewing function is a limited one. We do not inquire whether this statute is wise or desirable, or 'whether it is based on assumptions scientifically substantiated.' Roth v. United States, 354 U.S. 476, 501, 77 S.Ct. 1304, 1317, 1 L.Ed.2d 1498 (1957) (Separate opinion of Harlan, J.). Misguided laws may nonetheless be constitutional. It has been noted both in the briefs and at argument that only $17,000 has been recovered under the statute in its almost two years of operation, and that this amount is negligible compared to the total expended.9 Our task, however, is not to weigh this statute's effectiveness but its constitutionality. Whether the returns under the statute justify the expense, time, and efforts of state officials is for the ongoing supervision of the legislative branch.
8
The court below invalidated this statute on the grounds that it 'needlessly encourages indigents to do without counsel and consequently infringes on the right to counsel as explicated in Gideon v. Wainwright, supra.' 323 F.Supp. 1230, 1233. In Gideon, counsel had been denied an indigent defendant charged with a felony because his was not a capital case. This Court often has voided state statutes and practices which denied to accused indigents the means to present effective defenses in courts of law. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); 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); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Here, however, Kansas has enacted laws both to provide and compensate from public funds counsel for the indigent.10 There is certainly no denial of the right to counsel in the strictest sense. Whether the statutory obligations for repayment impermissibly deter the exercise of this right is a question we need not reach, for we find the statute before us constitutionally infirm on other grounds.
II
9
Appellants have asserted in argument before this Court that the statute 'has attempted to treat them (indigent defendants) the same as would any civil judgment debtor be treated in the State courts . . .'11 Again, in their brief appellants assert that '(f)or all practical purposes the methods available for enforcement of the judgment are the same as those provided by the Code of Civil Procedures (sic) or any other civil judgment.'12 The challenged portion of the statute thrice alludes to means of debt recovery prescribed by the Kansas Code of Civil Procedure.13
10
Yet the ostensibly equal treatment of indigent defendants with other civil judgment debtors recedes sharply as one examines the statute more closely. The statute stipulates that save for the homestead, '(n)one of the exemptions provided for in the code of civil procedure shall apply to any such judgment . . ..'14 This provision strips from indigent defendants the array of protective exemptions Kansas has erected for other civil judgment debtors, including restrictions on the amount of disposable earnings subject to garnishment, protection of the debtor from wage garnishment at times of severe personal or family sickeness, and exemption from attachment and execution on a debtor's personal clothing, books, and tools of trade. For the head of a family, the exemptions afforded other judgment debtors become more extensive, and cover furnishings, food, fuel, clothing, means of transportation, pension funds, and even a family burial plot or crypt.15
11
Of the above exemptions, none is more important to a debtor than the exemption of his wages from unrestricted garnishment. The debtor's wages are his sustenance, with which he supports himself and his family. The average low income wage earner spends nearly nine-tenths of those wages for items of immediate consumption.16 This Court has recognized the potential of certain garnishment proceedings to 'impose tremendous hardship on wage earners with families to support.' Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969).17 Kansas has likewise perceived the burden to a debtor and his family when wages may be subject to wholesale garnishment. Consequently, under its code of civil procedure, the maximum which can be garnished is the lesser of 25% of a debtor's weekly disposable earnings or the amount by which those earnings exceed 30 times the federal minimum hourly wage. No one creditor may issue more than one garnishment during any one month, and no employer may discharge an employee because his earnings have been garnished for a single indebtedness.18 For Kansas to deny protections such as these to the once criminally accused is to risk denying him the means needed to keep himself and his family afloat.
12
The indigent's predicament under this statute comes into sharper focus when compared with that of one who has hired counsel in his defense. Should the latter prove unable to pay and a judgment be obtained against him, his obligation would become enforceable under the relevant provisions of the Kansas Code of Civil Procedure. But, unlike the indigent under the recoupment statute, the code's exemptions would protect this judgment debtor.
13
It may be argued that an indigent accused, for whom the State has provided counsel, is in a different class with respect to collection of his indebtedness than a judgment creditor whose obligation arose from a private transaction. But other Kansas statutes providing for recoupment of public assistance to indigents do not include the severe provisions imposed on indigent defendants in this case. Kansas has enacted, as have many other States, laws for state recovery of public welfare assistance when paid to an ineligible recipient.19 Yet the Kansas welfare recipient, unlike the indigent defendant, is not denied the customary exemptions.20
14
We recognize, of course, that the State's claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors and that enforcement procedures with respect to judgments need not be identical.21 This does not mean, however, that a State may impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor. The State itself in the statute before us analogizes the judgment lien against the indigent defendant to other 'judgments under the code of civil procedure.' But the statute then strips the indigent defendant of the very exemptions designed primarily to benefit debtors of low and marginal incomes.
15
The Kansas statute provides for recoupment whether the indigent defendant is acquitted or found guilty. If acquitted, the indigent finds himself obligated to repay the State for a service the need for which resulted from the State's prosecution. It is difficult to see why such a defendant, adjudged to be innocent of the State's charge, should be denied basic exemptions accorded all other judgment debtors. The indigent defendant who is found guilty is uniquely disadvantaged in terms of the practical operation of the statute. A criminal conviction usually limits employment opportunities. This is especially true where a prison sentence has been served. It is in the interest of society and the State that such a defendant, upon satisfaction of the criminal penalties imposed, be afforded a reasonable opportunity of employment, rehabilitation and return to useful citizenship. There is limited incentive to seek legitimate employment when, after serving a sentence during which interest has accumulated on the indebtedness for legal services, the indigent knows that his wages will be garnished without the benefit of any of the customary exemptions.
16
Appellee in this case has now married, works for a modest wage, and has recently become a father. To deprive him of all protection for his wages and intimate personalty discourages the search for self-sufficiency which might make of the criminally accused a contributing citizen. Not only does this treatment not accord with the treatment of indigent recipients of public welfare or with that of other civil judgment debtors,22 but the Kansas statute also appears to be alone among recoupment laws applicable to indigent defendants in expressly denying them the benefit of basic debtor exemptions.23
III
17
In Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), the Court considered a situation comparable in some respects to the case at hand. Rinaldi involved a New Jersey statute which required only those indigent defendants who were sentenced to confinement in state institutions to reimburse the State the costs of a transcript on appeal. In Rinaldi, as here, a broad ground of decision was urged, namely, that the statute unduly burdened an indigent's right to appeal. The Court found, however, a different basis for decision, holding that '(t)o fasten a financial burden only upon those unsuccessful appellants who are confined in state institutions . . . is to make an invidious discrimination' in violation of the Equal Protection Clause. Id., at 309, 86 S.Ct., at 1500.
18
Rinaldi affirmed that the Equal Protection Clause 'imposes a requirement of some rationality in the nature of the class singled out.' Id., at 308—309, 86 S.Ct., at 1499. This requirement is lacking where, as in the instant case, the State has subjected indigent defendants to such discriminatory conditions of repayment. This case to be sure, differs from Rinaldi in that here all indigent defendants are treated alike. But to impose these harsh conditions on a class of debtors who were provided counsel as required by the Constitution is to practice, no less than in Rinaldi, a discrimination which the Equal Protection Clause proscribes.
19
The Court assumed in Rinaldi, arguendo, 'that a legislature could validly provide for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.' Id., at 309, 86 S.Ct., at 1500. We note here also that the state interests represented by recoupment laws may prove important ones. Recoupment proceedings may protect the State from fraudulent concealment of assets and false assertions of indigency. Many States, moreover, face expanding criminal dockets, and this Court has required appointed counsel for indigents in widening classes of cases24 and stages of prosecution.25 Such trends have heightened the burden on public revenues, and recoupment laws reflect legislative efforts to recover some of the added costs. Finally, federal dominance of the Nation's major revenue sources has encouraged state and local governments to seek new methods of conserving public funds, not only through the recoupment of indigents' counsel fees but of other forms of public assistance as well.
20
We thus recognize that state recoupment statutes may betoken legitimate state interests. But these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other classes of debtors to whom the statute itself repeatedly makes reference. State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for selfsufficiency and self-respect. The statute before us embodies elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.
21
The judgment of the court below is affirmed.
22
Affirmed.
1
The opinion of the three-judge court is reported in 323 F.Supp. 1230 (Kan. 1971).
2
Kan.Stat.Ann. §§ 22—4501 to 22—4515 (Supp.1971).
3
Kan.Stat.Ann. § 22—4513 (Supp.1971). The statute reads as follows:
'(a) Whenever any expenditure has been made from the aid to indigent defendants fund to provide counsel and other defense services to any defendant, as authorized by section 10, . . . such defendant shall be liable to the state of Kansas for a sum equal to such expenditure, and such sum may be recovered from the defendant by the state of Kansas for the benefit of the fund to aid indigent defendants. Within thirty (30) days after such expenditure, the judicial administrator shall send a notice by certified mail to the person on whose behalf such expenditure was made, which
notice shall state the amount of the expenditure and shall demand that the defendant pay said sum to the state of Kansas for the benefit of the fund to aid indigent defendants within sixty (60) days after receipt of such notice. The notice shall state that such sum became due on the date of the expenditure and that the sum demanded will bear interest at six percent (6%) per annum from the due date until paid. Failure to receive any such notice shall not relieve the person to whom it is addressed from the payment of the sum claimed and any interest due thereon.
'Should the sum demanded remain unpaid at the expiration of sixty (60) days after mailing the notice, the judicial administrator shall certify an abstract of the total amount of the unpaid demand and interest thereon to the clerk of the district court of the county in which counsel was appointed or the expenditure authorized by the court, and such clerk shall enter the total amount thereof on his judgment docket in said total amount, together with the interest thereon at the rate of six percent (6%) per annum, for the date of the expenditure thereof until paid, shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure and shall become a lien on real estate from and after the time of filing thereof. A transcript of said judgment may be filed in another county and become a lien upon real estate, located in such county, in the same manner as is provided in case of other judgments. Executions, garnishment, or other proceedings in aid of execution may issue within the county, or to any other county, on said judgment in like manner as on judgments under the code of civil procedure. None of the exemptions provided for in the code of civil procedure shall apply to any such judgment, but no such judgment shall be levied against a homestead. If execution shall not be sued out within five (5) years from the date of the entry of any such judgment, or if five (5) years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant and shall cease to operate as a lien on real estate of the judgment debtor. Such dormant judgment may be revived in like manner as dormant judgments under the code of civil procedure.
'(b) Whenever any expenditure has been made from the aid to indigent defendants fund to provide counsel and other defense
services to any defendant, as authorized by section 10, . . . a sum equal to such expenditure may be recovered by the state of Kansas for the benefit of the aid to indigent defendants fund from any persons to whom the indigent defendant shall have transferred any of his property without adequate monetary consideration after the commission of the alleged crime, to the extent of the value of such transfer, and such persons are hereby made liable to reimburse the state of Kansas for such expenditures with interest at six percent (6%) per annum. Any action to recover judgment for such expenditures shall be prosecuted by the attorney general, who may require the assistance of the county attorney of the county in which the action is to be filed, and such action shall be governed by the provisions of the code of civil procedure relating to actions for the recovery of money. No action shall be brought against any person under the provisions of this section to recover for sums expended on behalf of an indigent defendant, unless such action shall have been filed within two (2) years after the date of the expenditure from the fund to aid indigent defendants.'
4
Failure to receive notice, however, does not relieve the person to whom it is addressed of the obligation.
5
A dormant judgment may be revived within two years of the date on which the judgment became dormant. Kan.Stat.Ann. § 60—2404 (1964).
6
There is also a federal reimbursement provision, 18 U.S.C. § 3006A(f):
'Receipt of other payments.—Whenever the United States magistrate or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, to any person or organization authorized pursuant to subsection (e) to render investigative, expert, or other services, or to the court for deposit in the Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person or organization may request or accept any payment or promise of payment for representing a defendant.'
7
The board of county commissioners has discretion to compromise or release the lien, however. Fla.Stat.Ann. § 27.56 (Supp.1972—1973).
8
State recoupment statutes, including those quoted above, are as follows: Ala.Code, Tit. 15, § 318(12) (Supp.1969); Alaska Stat. § 12.55.020 (1962); Fla.Stat.Ann. § 27.56 (Supp.1972—1973); Idaho Code § 19—858 (Supp.1971); Ind.Ann.Stat. § 9—3501 (Supp.1970), IC 1971, 35—11—1—1; Iowa Code Ann. § 775.5 (Supp.1972); Md.Ann.Code, Art. 26, § 12C (Supp.1971); N.M.Stat.Ann. § 41—22—7 (Supp.1971); N.D.Cent.Code § 29—07—01.1 (Supp.1971); Ohio Rev.Code Ann. § 2941.51 (Supp.1971); S.C.Code Ann. § 17—283 (Supp.1971); Tex.Code Crim.Proc., Art. 1018 (1966); Va.Code Ann. § 14.1—184 (Supp.1971); W.Va.Code Ann. § 62—3—1 (Supp.1971); Wis.Stat.Ann. § 256.66 (1971).
9
For fiscal 1971 $400,000 was appropriated to fund the program.
10
See n. 2, supra.
11
Tr. of Oral Arg. 9. The State concedes that exemptions for other civil judgment debtors are broader than for indigent defendants, id., at 10, a matter we will address forthwith.
12
Brief for Appellants 7.
13
See Kan.Stat.Ann. §§ 60—701 to 60—724, 60—2401 to 60—2419 (1964 and Supp. 1971).
14
The exemptions in the civil code are set forth in Kan.Stat.Ann. §§ 60—2301 to 60—2311 (1964 and Supp.1971).
15
Kan.Stat.Ann. §§ 60—2304 and 60—2308 (1964 and Supp.1971).
16
Bureau of Labor Statistics, Handbook of Labor Statistics 281 (1968). Lowwage earners are defined as families with after-tax income of less than $5,000.
17
The Court in Sniadach held that Wisconsin's prejudgment wage garnishment procedure, as a taking of property without notice and prior hearing, violated the Due Process Clause of the Fourteenth Amendment.
18
Kan.Stat.Ann. §§ 60—2310(b) and 60—2311 (Supp.1971). Section 60—2310 also provides further debtor protection from wage garnishment at a time of disabling personal sickness and from professional collecting agencies. See Kan.Stat.Ann. §§ 60—2310(c) and (d) (Supp.1971). See also Bennett, The 1970 Kansas Legislature in Review, 39 J.B.A.K. 107, 178 (1970), which points out that the State's restrictions on garnishments have been made to conform to Tit. III of the federal Consumer Credit Protection Act, 82 Stat. 163. Kansas, however, provided significant wage exemptions from garnishment long before the federal Act was passed.
19
Kan.Stat.Ann. § 39—719b (1964); § 59—2006 (Supp.1971). Section 39—719b deals mainly with the recovery of assistance from an ineligible recipient. Yet, even when the welfare recipient is deemed to have defrauded the State, he still escapes the immediate interest accumulations and denial of exemptions imposed on indigent defendants:
'39—719b. Duty of recipient to report changes; action by board; recovery of assistance obtained by ineligible recipient. If at any time during the continuance of assistance to any person, the recipient thereof becomes possessed of any property or income in excess of the amount ascertained at the time of granting assistance, it shall be the duty of the recipient to notify the county board of social welfare immediately of the receipt or possession of such property or income and said county board may, after investigation, cancel the assistance in accordance with the circumstances.
'Any assistance paid shall be recoverable by the county board as a debt due to the state and the county in proportion to the amount of the assistance paid by each, respectively: If during the life or on the death of any person receiving assistance, it is found that the recipient was possessed of income or property in excess of the amount reported or ascertained at the time of granting assistance, and if it be shown that such assistance was obtained by an ineligible recipient, the total amount of the assistance may be recovered by the state department of social welfare as a fourth class claim from the estate of the recipient or in an action brought against the recipient while living.'
20
There appears to be a further discrimination against the indigent defendant as contrasted with the delinquent welfare recipient. The recoupment statute applicable to indigent defendants provides for the accumulation of 6% annual interest from the date expenditures are made for counsel or other legal defense costs. Kan.Stat.Ann. § 22—4513 (Supp.1971). The interest build-up for the indigent defendant would not be insubstantial. In the five years before the judgment became dormant, interest accumulations could lift appellee's $500 debt to almost $670. If the dormant judgment is revived within the statutorily prescribed two years, the principal and interest might total over $750. (The interest presumably would run while the judgment was dormant since '(a) dormant judgment may be revived and have the same force and effect as if it had not become dormant . . ..' Kan.Stat.Ann. § 60 2404 (Supp.1971)).
Kansas also has a statute providing that all judgments shall bear 8% interest from the day on which they are rendered. Kan.Stat.Ann. § 16—204 (Supp.1971) (recently amended from 6%). Presumably this statute would cover the 'debts' of welfare recipients once they are reduced to judgment. The debt of the indigent defendant, however, runs from the date the assistance is granted, while any interest on the debt of a welfare recipient would presumably run from the date of judgment.
21
For example, Kansas does not extend its exemptions with respect to wage garnishment to any debt due for any state or federal tax, Kan.Stat.Ann. § 60—2310(e)(3) (Supp.1971). This type of public debt, however, differs from the instant case in representing a wrongful withholding from the State of a tax on assets in the actual possession of the taxpayer and not, as here, a debt contracted under circumstances of indigency.
22
The statutes of various other States, e.g., Alaska, South Carolina, and West Virginia, provide, as does Kansas, for recovery against indigent defendants in the same manner as on other judgments. Unlike Kansas, however, these States do not expressly subject indigents to conditions to which other civil judgment debtors are not liable. See n. 8, supra, for citations.
23
See n. 8, supra, for citations.
24
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
25
Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
| 12
|
407 U.S. 104
92 S.Ct. 1953
32 L.Ed.2d 584
Lewis COLTEN, Appellant,v.COMMONWEALTH OF KENTUCKY.
No. 71—404.
Argued April 17, 1972.
Decided June 12, 1972.
Syllabus
$Appellant, arrested for disorderly conduct when he failed, notwithstanding several requests by an officer, to leave a congested roadside where a friend in another car was being ticketed for a traffic offense, was tried and convicted in an inferior court and fined $10. Kentucky has a two-tier system for adjudicating certain criminal cases, under which a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial do novo in a court of general criminal jurisdiction but must risk a greater punishment if convicted. Exercising his right to a trial de novo, appellant was tried for disorderly conduct in the circuit court, convicted and fined $50. The state appellate court affirmed, rejecting appellant's contention that the disorderly conduct statute is unconstitutional under the First and Fourteenth Amendments and that the greater punishment contravened the due process requirements of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and violated the Fifth Amendment's Double Jeopardy Clause. The disorderly conduct statute makes it an offense for a person with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, to congregate with others in a public place and refuse to comply with a lawful police dispersal order. As construed by the Kentucky Court of Appeals, a violation occurs only where there is no bona fide intention to exercise a constitutional right or where the interest to be advanced by the individual's exercise of the right is insignificant in comparison to the inconvenience, annoyance, or alarm caused by his action. Held:
1. The disorderly conduct statute was not unconstitutionally applied, there having been ample evidence that the action of appellant, who had no constitutional right to observe the ticketing process or engage the issuing officer in conversation, was interfering with enforcement of traffic laws. Pp. 108—110.
2. The statute is not impermissibly vague or broad as 'citizens who desire to obey (it) will have no difficulty in understanding it,' and, as construed by the Kentucky court, individuals may not be convicted thereunder merely for expressing unpopular ideas. Pp. 110—111.
3. Kentucky's two-tier system does not violate the Due Process Clause, as it imposes no penalty on those who seek a trial de novo after having been convicted in the inferior court. The Kentucky procedure involves a completely fresh determination of guilt or innocence by the superior court which is not the court that acted on the case before and has no motive to deal more strictly with a de novo defendant than it would with any other. North Carolina v. Pearce, supra, distinguished. Pp. 112—119.
4. The Double Jeopardy Clause does not prohibit an enhanced sentence on reconviction. North Carolina v. Pearce, supra, 395 U.S. at 719—720, 89 S.Ct. at 2077—2078. Pp. 119—120.
467 S.W.2d 374, affirmed.
Alvin L. Goodman for appellant.
Robert W. Willmott, Jr., for appellee, pro hac vice, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case presents two unrelated questions. Appellant challenges his Kentucky conviction for disorderly conduct on the ground that the conviction and the State's statute are repugnant to the First and Fourteenth Amendments. He also challenges the constitutionality of the enhanced penalty he received under Kentucky's two-tier system for adjudicating certain criminal cases, whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment.
2
Appellant Colten and 15 to 20 other college students gathered at the Blue Grass Airport outside Lexington, Kentucky, to show their support for a state gubernatorial candidate and to demonstrate their lack of regard for Mrs. Richard Nixon, then about to leave Lexington from the airport after a public appearance in the city. When the demonstration had ended, the students got into their automobiles and formed a procession of six to 10 cars along the airport access road to the main highway. A state policeman, observing that one of the first cars in the entourage carried an expired Louisiana license plate, directed the driver, one Mendez, to pull off the road. He complied. Appellant Colten, followed by other motorists in the procession, also pulled off the highway, and Colten approached the officer to find out what was the matter. The policeman explained that the Mendez car bore an expired plate and that a traffic summons would be issued. Colten made some effort to enter into a conversation about the summons. His theory was that Mendez may have received an extension of time in which to obtain new plates. In order to avoid Colten and to complete the issuance of the summons, the policeman took Mendez to the patrol car. Meanwhile, other students had left their cars and additional policemen, having completed their duties at the airport and having noticed the roadside scene, stopped their cars in the traffic lane abreast of the students' vehicles. At least one officer took responsibility for directing traffic, although testimony differed as to the need for doing so. Testimony also differed as to the number of policemen and students present, how many students left their cars and how many were at one time or another standing in the roadway. A state police captain asked on four or five occasions that the group disperse. At least five times police asked Colten to leave.1 A state trooper made two requests, remarking at least once: 'Now, this is none of your affair . . . get back in your car and please move on and clear the road.' In response to at least one of these requests Colten replied that he wished to make a transportation arrangement for his friend Mendez and the occupants of the Mendez car, which he understood was to be towed away. Another officer asked three times that Colten depart and when Colten failed to move away he was arrested for violating Kentucky's disorderly conduct statute, Ky.Rev.Stat. § 437.016 (Supp.1968). The arresting officer testified that Colten's response to the order had been to say that he intended to stay and see what might happen. Colten disputed this. He testified that he expressed a willingness to leave but wanted first to make a transportation arrangement. At trial he added that he feared violence on the part of the police.2
3
The complaint and warrant charging disorderly conduct, which carries a maximum penalty of six months in jail and a fine of $500, were addressed to the Quarterly Court of Fayette County, where Colten was tried, convicted, and fined $10. Exercising his right to a trial de novo in a court of general jurisdiction, Colten 'appealed,' as the Kentucky rules style this recourse, Ky.Rule Crim.Proc. 12.02, to the Criminal Division of the Fayette Circuit Court. By consent, trial was to the court and Colten was convicted of disorderly conduct and this time fined $50. The Kentucky Court of Appeals affirmed. Colten v. Commonwealth, 467 S.W.2d 374 (1971). It rejected Colten's constitutional challenges to the statute and his claim that the punishment imposed was impermissible, under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We noted probable jurisdiction. 404 U.S. 1014, 92 S.Ct. 672, 30 L.Ed.2d 660 (1972).
4
* Colten was convicted of violating Ky.Rev.Stat. § 437.016(1)(f) (Supp.1968), which states:
5
'(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
6
'(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse . . ..'
7
The Kentucky Court of Appeals interpreted the statute in the following way:
8
'As reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right. We think that the plain meaning of the statute, in requiring that the proscribed conduct be done 'with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,' is that the specified intent must be the predominant intent. Predominance can be determined either (1) from the fact that no bona fide intent to exercise a constitutional right appears to have existed or (2) from the fact that the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise.' 467 S.W.2d, at 377.
9
The evidence warranted a finding, the Kentucky court concluded, that at the time of his arrest, 'Colten was not undertaking to exercise any constitutionally protected freedom.' Rather, he 'appears to have had no purpose other than to cause inconvenience and annoyance. So the statute as applied here did not chill or stifle the exercise of any constitutional right.' Id., at 378.
10
Based on our own examination of the record, we perceive no justification for setting aside the conclusion of the state court that when arrested appellant was not engaged in activity protected by the First Amendment. Colten insists that in seeking to arrange transportation for Mendez and in observing the issuance of a traffic citation he was disseminating and receiving information. But this is a strained, near-frivolous contention and we have little doubt that Colten's conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment. Nor can we believe that Colten, although he was not trespassing or disobeying any traffic regulation himself, could not be required to move on. He had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time. The State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction. Here the police had cause for apprehension that a roadside strip, crowded with persons and automobiles, might expose the entourage, passing motorists, and police to the risk of accident. We cannot disagree with the finding below that the order to disperse was suited to the occasion. We thus see nothing unconstitutional in the manner in which the statute was applied.
II
11
Neither are we convinced that the statute is either impermissibly vague or broad. We perceive no violation of '(t)he underlying principle . . . that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); cf. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Here the statute authorized conviction for refusing to disperse with the intent of causing inconvenience, annoyance, or alarm. Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under subdivision (f) of Kentucky's statute if he fails to obey an order to move on. The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. We agree with the Kentucky court when it said: 'We believe that citizens who desire to obey the statute will have no difficulty in understanding it . . .' Colten v. Commonwealth, 467 S.W.2d at 378.
12
Colten also argues that the Kentucky statute is overbroad. He relies on Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), where the Court held unconstitutional a breach-of-peace statute construed to forbid causing agitation or disquiet coupled with refusing to move on when ordered to do so. The Court invalidated the statute on the ground that it permitted conviction where the mere expression of unpopular views prompted the order that is disobeyed. Colten argues that the Kentucky statute must be stricken down for the same reason.
13
As the Kentucky statute was construed by the state court, however, a crime is committed only where there is no bona fide intention to exercise a constitutional right—in which event, by definition, the statute infringes no protected speech or conduct or where the interest so clearly outweighs the collective interest sought to be asserted that the latter must be deemed insubstantial. The court hypothesized, for example, that one could be convicted for disorderly conduct if at a symphony concert he arose and began lecturing to the audience on leghorn chickens. 467 S.W.2d, at 377. In so confining the reach of its statute, the Kentucky court avoided the shortcomings of the statute invalidated in the Cox case. Individuals may not be convicted under the Kentucky statute merely for expressing unpopular or annoying ideas. The statute comes into operation only when the individual's interest in expression, judged in the light of all relevant factors, is 'minuscule' compared to a particular public interest in preventing that expression or conduct at that time and place. As we understand this case, appellant's own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others.3
III
14
Kentucky, like many other States,4 has a two-tier system for adjudicating less serious criminal cases. In Kentucky, at the option of the arresting officer, those crimes classified under state law as misdemeanors5 may be charged and tried in a so-called inferior court,6 where, as in the normal trial setting, a defendant may choose to have a trial or to plead guilty. If convicted after trial or on a guilty plea, however, he has a right to a trial de novo in a court of general criminal jurisdiction, Brown v. Hoblitzell, 307 S.W.2d 739 (Ky.1957), so long as he applies within the statutory time.7 The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky.Rule Crim.Proc. 12.06. Prosecution and defense begin anew. By the same token neither the judge nor jury that determines guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court's findings or judgment. The case is to be regarded exactly as if it had been brought there in the first instance. A convicted defendant may seek review in the state appellate courts in the same manner as a person tried initially in the general criminal court. Ky.Rev.Stat. § 23.032 (Supp.1968). However, a defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court's ruling. His recourse is the trial de novo.
15
While by definition two-tier systems throughout the States have in common the trial de novo feature,8 there are differences in the kind of trial available in the inferior courts of first instance, whether known as county, municipal, police, or justice of the peace courts, or are otherwise referred to. Depending upon the jurisdiction and offense charged, many such systems provide as complete protection for a criminal defendant's constitutional rights as do courts empowered to try more serious crimes. Others, however, lack some of the safeguards provided in more serious criminal cases. Although appellant here was entitled to a six-man jury, cf. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), which he waived, some States do not provide for trial by jury,9 even in instances where the authorized punishment would entitle the accused to such tribunal. Cf. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Some, including Kentucky, do not record proceedings10 and the judges may not be trained for their positions either by experience or schooling.11
16
Two justifications are asserted for such tribunals: first, in this day of increasing burdens on state judiciaries, these courts are designed, in the interest of both the defendant and the State, to provide speedier and less costly adjudications than may be possible in the criminal courts of general jurisdiction where the full range of constitutional guarantees is available; second, if the defendant is not satisfied with the results of his first trial he has the unconditional right to a new trial in a superior court, unprejudiced by the proceedings or the outcome in the inferior courts. Colten, however, considers the Kentucky system to be infirm because the judge in a trial de novo is empowered to sentence anew and is not bound to stay within the limits of the sentence imposed by the inferior court. He bases his attack both on the Due Process Clause, as interpreted in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and on the Fifth Amendment's Double Jeopardy Clause. The issues appellant raises have produced a division among the state courts that have considered them12 as well as a conflict among the federal circuits.13
17
Colten rightly reads Pearce to forbid, following a successful appeal and reconviction, the imposition of a greater punishment than was imposed after the first trial, absent specified findings that have not been made here. He insists that the Pearce rule is applicable here and that there is no relevant difference between the Pearce model and the Kentucky two-tier trial de novo system. Both, he asserts, involve reconviction and resentencing, both provide the convicted defendant with the right to 'appeal' and in both—even though under the Kentucky scheme the 'appeal' is in reality a trial de novo—a penalty for the same crime is fixed twice, with the same potential for an increased penalty upon a successful 'appeal.' But Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater sentence. The court was there concerned with two defendants who, after their convictions had been set aside on appeal, were reconvicted for the same offenses and sentenced to longer prison terms. In one case the term was increased from 10 to 25 years. Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to ensure 'that vindictiveness against a defendant for having successfully attacked his first conviction . . . (would) play no part in the sentence he receives after a new trial . . .' and to ensure that the apprehension of such vindictiveness does not 'deter a defendant's exercise of the right to appeal or collaterally attack his first conviction . . ..' 395 U.S., at 725, 89 S.Ct., at 2080.
18
Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky's inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.
19
We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court's work. Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance. It would also appear that, however understandably a court of general jurisdiction might feel that the defendant who has had a due process trial ought to be satisfied with it, the de novo court in the two-tier system is much more likely to reflect the attitude of the Kentucky Court of Appeals in this case when it stated that 'the inferior courts are not designed or equipped to conduct error-free trials, or to insure full recognition of constitutional freedoms. They are courts of convenience, to provide speedy and inexpensive means of disposition of charges of minor offenses.' Colten v. Commonwealth, 467 S.W.2d, at 379 (Ky.1971). We see no reason, and none is offered, to assume that the de novo court will deal any more strictly with those who insist on a trial in the superior court after conviction in the Quarterly Court than it would with those defendants whose cases are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees.
20
It may often be that the superior court will impose a punishment more severe than that received from the inferior court. But it no more follows that such a sentence is a vindictive penalty for seeking a superior court trial than that the inferior court imposed a lenient penalty. The trial de novo represents a completely fresh determination of guilt or innocence. It is not an appeal on the record. As far as we know, the record from the lower court is not before the superior court and is irrelevant to its proceedings. In all likelihood, the trial de novo court is not even informed of the sentence imposed in the inferior court and can hardly be said to have 'enhanced' the sentence.14 In Kentucky, disorderly conduct is punishable by six months in jail and a fine of $500. The inferior court fined Colten $10, the trial de novo court $50. We have no basis for concluding that the latter court did anything other than invoke the normal processes of a criminal trial and then sentence in accordance with the normal standards applied in that court to cases tried there in the first instance. We cannot conclude, on the basis of the present record or our understanding, that the prophylactic rule announced in Pearce is appropriate in the context of the system by which Kentucky administers criminal justice in the less serious criminal cases.
21
It is suggested, however, that the sentencing strictures imposed by Pearce are essential in order to minimize an asserted unfairness to criminal defendants who must endure a trial in an inferior court with less-than-adequate protections in order to secure a trial comporting completely with constitutional guarantees. We are not persuaded, however, that the Kentucky arrangement for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten's case are any evidence, the penalty is not characteristically severe. Such proceedings offer a defendant the opportunity to learn about the posecution's case and, if he chooses, he need not reveal his own. He may also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction. He cannot, and will not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel, whose advice will also be available in determining whether to seek a new trial, with the slate wiped clean, or to accept the penalty imposed by the inferior court. The State has no such options. Should it not prevail in the lower court, the case is terminated, whereas the defendant has the choice of beginning anew. In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court. We cannot say that the Kentucky trial de novo system, as such, is unconstitutional or that it presents hazards warranting the restraints called for in North Carolina v. Pearce, particularly since such restraints might, to the detriment of both defendant and State, diminish the likelihood that inferior courts would impose lenient sentences whose effect would be to limit the discretion of a superior court judge or jury if the defendant is retried and found guilty.
22
Colten's alternative contention is that the Double Jeopardy Clause prohibits the imposition of an enhanced penalty upon reconviction. The Pearce Court rejected the same contention in the context of that case, 395 U.S., at 719—720, 89 S.Ct. at 2077—2078. Colten urges that his claim is stronger because the Kentucky system forces a defendant to expose himself to jeopardy as a price for securing a trial that comports with the Constitution. That was, of course, the situation in Pearce, where reversal of the first conviction was for constitutional error. The contention also ignores that a defendant can bypass the inferior court simply by pleading guilty and erasing immediately thereafter any consequence that would otherwise follow from tendering the plea.
23
The judgment of the Kentucky Court of Appeals is affirmed.
24
Affirmed.
25
Mr. Justice DOUGLAS, dissenting.
26
This case arose in the aftermath of a visit of the President's wife to Lexington, Kentucky, where nothing untoward happened. After her plane had left, appellant and a group of his friends got into 'some six to ten cars' and started down the access road leading from the airport to the main highway. The lead car was stopped by the police because of an expired license plate and at the officer's request, pulled onto the shoulder of the access road. Appellant, who followed, also pulled onto the shoulder as did the other cars in the group. So there were no cars belonging to appellant's group blocking traffic.
27
The people in the cars, however, walked around, some talking with the police, and appellant talking mostly with the driver of the lead car. Appellant claimed that he only wanted to advise the man who was getting the citation of his rights, and to help arrange for the driver and passengers in the lead car to get to Lexington. The Court of Appeals of Kentucky, however, said that 'Colten's real intent was simply to aggravate, harass, annoy and inconvenience the police, for no purpose other than the pleasure of aggravation, harassment, annoyance and inconvenience.' 467 S.W.2d 374, 376.
28
The statute under which petitioner was convicted read in relevant part as follows:1
29
'(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
30
'(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse . . ..'
31
The Court of Appeals sustained the statute as applied because the inconvenience2 and annoyance to the police far outweighed appellant's speech which fell 'far below the level of minimum social value.' 467 S.W.2d, at 377. That court, citing our obscenity cases, said if 'the lack of redeeming social value is a basis upon which the right of freedom of speech may be required to yield to the protection of contemporary standards of morality . . . it would seem that the public's interest in being protected from inconvenience, annoyance or alarm should prevail over any claimed right to utter speech that has no social value.' Ibid.
32
But the speech involved here was nonerotic, having no suggestion or flavor of the pornographic.
33
The speech here was quiet, not boisterous, and it was devoid of 'fighting words.'
34
Moreover, this was not a case where speech had moved into action, involving overt acts. There were no fisticuffs, no disorderly conduct in the normal meaning of the words.
35
The Court of Appeals said 'Colten was not seeking to express a thought to any listener or to disseminate any idea.' 467 S.W.2d at 378. Nor was he, it said, 'exercising the right of peaceable assembly.' Ibid.
36
He was, however, speaking to a representative of government, the police. And it is to government that one goes 'for a redress of grievances,' to use an almost forgotten phrase of the First Amendment. But it is said that the purpose was 'to cause inconvenience and annoyance.' Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents. We who have the final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet. The situation might have indicated that Colten's techniques were illsuited to the mission he was on, that diplomacy would have been more effective. But at the constitutional level speech need not be a sedative; it can be disruptive. As we said in Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131:
37
'(A) function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.'
38
Under that test this conviction should be set aside.
39
Mr. Justice MARSHALL, dissenting.
40
In my view, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), requires a reversal of this case.
41
In this case the Court correctly evaluates Kentucky's procedure: '(A) defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court's ruling. His recourse is the trial de novo.' From this the conclusion is reached that the 'trial de novo' is not an appeal. What, then, is it? The pertinent Kentucky Rules provide:
12.02 Manner of Taking
42
'(1) An appeal to the circuit court is taken by filing with the clerk thereof a certified copy of the judgment and the amount of costs, and causing to be executed before the clerk a bond to the effect that the defendant will pay the costs of the appeal and perform the judgment which may be rendered against him on the appeal; whereupon, the clerk shall issue an order to the judge or the justice rendering the judgment, to stay proceedings thereon, and to transmit to the office of said clerk all the original papers in the prosecution.
43
'(2) The applicable provisions governing bail shall apply to the bond provided for in subsection (1).
44
'(3) After the service of the order to stay proceedings, no execution shall be issued from the inferior court, and any officer on whom the order is served shall return the execution in his hands as suspended by appeal.'
12.06 Schedule and Manner of Trial; Judgment
45
'Appeals taken to the circuit court shall be docketed by the clerk thereof as a regular criminal prosecution and shall be tried anew, as if no judgment had been rendered, and the judgment shall be considered as affirmed to the extent of the punishment, if any, adjudged against the defendant in the circuit court, and thereupon he shall be adjudged to pay the costs of the appeal. If an appeal taken to the circuit court be dismissed, the judgment of the court from which it was taken shall stand affirmed and the costs of the appeal shall be paid by the party whose appeal is dismissed.' In Pearce this Court reaffirmed the restrictions upon heavier sentences after appeal:
46
'It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, 'penalizing those who choose to exercise' constitutional rights, 'would be patently unconstitutional.' United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138. And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to 'chill the exercise of basic constitutional rights.' Id., at 582, 88 S.Ct., at 1216. See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718. But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. 'A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant.' Nichols v. United States (8 Cir.) 106 F. 672, 679. A court is 'without right to . . . put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered . . . (I) t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.' Worcester v. Commissioner of Internal Revenue, 1 Cir., 370 F.2d 713, 718. See Short v. United States, 120 U.S.
47
App.D.C. 165, 167, 344 F.2d 550, 552. 'This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899.' Rinaldi v. Yeager, 384 U.S. 305, 310—311, 86 S.Ct. 1497, 1500—1501, 16 L.Ed.2d 577.' 395 U.S., at 723—725, 89 S.Ct., at 2079—2080.
48
This Court today seeks to escape this determination by such conclusions as:
49
'Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky's inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.'
50
To the contrary, appellant's Jurisdictional Statement cites us to an order of the same judge who tried this case 'de novo' in which he accepted a motion to dismiss an appeal in a similar case with the following statement:
51
'The Commonwealth Attorney has advised the Court that he does not wish to oppose the defendant's motion to dismiss.
52
'While the defendant may be correct in his assumption that the citizens of this community have a hostile attitude toward students who would attempt to disrupt the university, it may be that this hostility has been earned, and it is conceivable that a jury composed of citizens of this community might impose a more severe sentence than that imposed in the court below. Nonetheless, the Court after having reviewed the law submitted by the defendant and having conducted its own research of the law is of the opinion that the defendant has a right to dismiss his appeal and that he cannot be forced into a new trial if he does not desire to continue his appeal. For that reason the defendant's motion to have his appeal dismissed be and the same is hereby granted.'
53
The record in this case also shows that the trial judge was informed of the lower $10 fine in the original trial and consequently knowingly increased it to $50. Finally, it should not be forgotten that under this Court's ruling today he could have increased it to $500 plus six months in jail.
54
The Court suggests that for some reason there is less danger of vindictive sentencing on the second trial in this context than after an ordinary appeal. Specifically, the Court faults the appellant for failing to present evidence that the danger of vindictiveness is as great here as in the precise context presented in Pearce. But Pearce did not rest on evidence that most trial judges are hostile to defendants who obtain a new trial after appeal. Pearce was based, rather, on the recognition that whenever a defendant is tried twice for the same offense, there is inherent in the situation the danger of vindictive sentencing the second time around, and that this danger will deter some defendants from seeking a second trial. This danger, with its deterrent effect, is exactly the same even though the second trial takes place in a different court from the first. Certainly a defendant has good reason to fear that his case will not be well received by a second court after he rejects a disposition as favorable as the sentence originally imposed in this case.
55
Pearce was directed toward a new trial after an appellate reversal. This case involves a new trial without an appellate reversal. The core problem is the second trial. In both cases we have a second full and complete trial. Pearce should control.
1
This version of the facts is taken largely from the opinion of the Kentucky Court of Appeals. Colten v. Commonwealth, 467 S.W.2d 374, 375—376 (Ky.1971). Colten testified that only the arresting officer ordered him to leave and that the three orders were uttered in such rapid succession that he had little opportunity to comply. App. 49—51. This was disputed by a policeman who testified that earlier he twice asked appellant to leave and gave the admonition quoted in the text. Id., at 23—24. Our own examination of the record indicates that the Kentucky courts' resolution of this factual dispute was a fair one. Cf. Cox v. Louisiana, 379 U.S. 536, 545 n. 8, 85 S.Ct. 453, 459, 13 L.Ed.2d 471 (1965).
2
In his brief appellant makes a passing reference to the possibility of violence on the part of police and suggests that he remained on the scene to avert misdeeds or to be a potential witness to them. Yet he builds no factual basis for a reasonable apprehension of violence and seemingly dispels whatever force such a contention might have when he states in his brief: 'In the overwhelming majority of cases, that suspicion (of police brutality) is undoubtedly wrong, but it is there.' Brief for Appellant 36.
3
Appellant attacks on overbreadth grounds other subsections of the disorderly conduct statute, such as those that prohibit the making of an 'unreasonable noise' and the use of 'abusive or obscene language.' Ky.Rev.Stat. §§ 437.016(b), (c) (Supp.1968). But Colten was not convicted of violating these subsections and they are not properly before us in this case.
4
E.g., Ariz.Rev.Stat.Ann. § 22—371 et seq. (1956 and Supp.1971—1972); Ark.Stat.Ann. § 44—501 et seq. (1964); Colo.Rule Crim.Proc. 37(f); Fla.Stat.Ann. § 924.41 et seq. (Supp.1972—1973); Ind.Ann.Stat. § 9—713 et seq. 1956 and Supp.1971), IC 1971, 35—1 11—2; Kan.Stat.Ann. § 22—3610 et seq. (Supp.1971); Me.Dist.Ct.Crim.Rule 37 et seq.; Md.Ann.Code, Art. 5, § 43 (1968); Mich.Stat.Ann. § 28—1226 (Supp.1972), M.C.L.A. § 774.34; Minn.Stat. §§ 488.20, 633.20 et seq. (1969); Miss.Code Ann. §§ 1201, 1202 (Supp.1971); Mo.Sup.Ct.Rule 22, V.A.M.R.; Mont.Rev.Codes Ann. § 95—2001 et seq. (1947); Neb.Rev.Stat. § 29 601 et seq. (1964); Nev.Rev.Stat. § 189.010 et seq. (1969); N.H.Rev.Stat.Ann. §§ 502:18, 502-A:11—12 (1968); N.M.Stat.Ann. 36 15—1 et seq. (Supp.1971); N.C.Gen Stat. 15—177 et seq., 20—138 (1965 and Supp.1971); N.D.Cent.Code § 33—12—40 et seq. (1960); Pa.Stat.Ann., Tit. 42, § 3001 et seq. (Supp.1972—1973); Pa.Const., Sched.Art. 5, § 16(r)(iii) (Philadelphia), P.S.; Tex.Code Crim.Proc., Arts. 44.17, 45.10 (1966); Va.Code Ann. § 16.1—129 et seq. (1950); Wash.Rev.Code § 3.50.380 et seq. (Supp.1971); W.Va.Code Ann. § 50—18—1 et seq. (1966 and Supp.1971).
5
Misdemeanors are defined as those crimes punishable by a maximum of one year in jail and a $500 fine. Ky.Rev.Stat. §§ 25.010, 26.010 (1962 and Supp.1968).
6
What the Kentucky Court of Appeals calls inferior courts include county, quarterly, justice's and police courts. In all cases in which the punishment is limited to a fine of $20, the inferior courts have original jurisdiction. Ky.Rev.Stat. § 25.010 (1962). In all other misdemeanor cases their jurisdiction is concurrent with that of the circuit courts.
7
Ky.Rev.Stat. § 23.032 (Supp.1968). Kentucky denominates an application for a trial de novo an 'appeal.' However, the right to a new trial is unconditional and exists even when a defendant seeks redetermination of questions of law. Ky.Rules Crim.Proc. 12.02, 12.06.
8
A general discussion of how these courts operate may be found in 47 Ann.Jur.2d, Justices of the Peace §§ 49—120.
9
E.g., Massachusetts, North Carolina, Pennsylvania. Mann v. Commonwealth, 271 N.E.2d 331 (Mass.1971); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970); Pa.Stat.Ann., Tit. 42, § 3001 et seq. (Supp.1972—1973); Pa.Const., Sched. Art. 5, § 16(r)(iii) (Philadelphia).
10
E.g., North Carolina, Virginia. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); Evans v. City of Richmond, 210 Va. 403, 171 S.E.2d 247 (1969).
11
See, e.g., People v. Olary, 382 Mich. 559, 170 N.W.2d 842 (1969); State v. DeBonis, 58 N.J. 182, 276, A.2d 137 (1971). However, the trial judge in the Fayette Quarterly Court, where Colten was tried, is a professional.
12
North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, applies: Bronstein v. Superior Court, 106 Ariz. 251, 475 P.2d 235 (1970); State v. Shak, 51 Haw. 626, 466 P.2d 420 (1970); Eldridge v. State, 256 Ind. 113, 267 N.E.2d 48 (1971); Cherry v. State, 9 Md.App. 416, 264 A.2d 887 (1970); Commonwealth v. Harper, 219 Pa.Super. 100, 280 A.2d 637 (1971).
Contra: Mann v. Commonwealth, 271 N.E.2d 331 (Mass.1971); People v. Olary, 382 Mich. 559, 170 N.W.2d 842 (1969); State v. Stanosheck, 186 Neb. 17, 180 N.W.2d 226 (1970); State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); Evans v. City of Richmond, 210 Va. 403, 171 S.E.2d 247 (1969).
New Mexico prohibits enhanced sentencing altogether. N.M.Stat.Ann. § 36—15—3 (Supp.1971).
13
Pearce applies: Rice v. North Carolina, 434 F.2d 297 (CA4 1970), vacated and remanded on ground of possible mootness, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971); contra: Lemieux v. Robbins, 414 F.2d 353 (CA1 1969), cert. denied, 397 U.S. 1017, 90 S.Ct. 1247, 25 L.Ed.2d 432 (1970). See also Manns v. Allman, 324 F.Supp. 1149 (WD Va.1971), holding that Pearce does not apply where an enhanced penalty is imposed by a jury rather than a judge.
14
In Colten's case the superior court judge did know about the $10 fine. Colten's counsel in closing argument stated what the penalty had been, App. 93, although clearly he need not have done so.
1
Ky.Rev.Stat. § 437.016 (Supp.1968).
2
Neither appellant nor any in his group blocked traffic, their cars being parked on the shoulder of the road. Any blocking of traffic was caused by police who pulled up to see what was going on, leaving their patrol cars in the access road. See 467 S.W.2d, 374, 376.
| 23
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407 U.S. 355
92 S.Ct. 2091
32 L.Ed.2d 791
Albert Delanor MUREL et al., Petitioners,v.BALTIMORE CITY CRIMINAL COURT et al.
No. 70—5276.
Argued March 28 and 29, 1972.
Decided June 19, 1972.
Karl G. Feissner, Andrew E. Greenwald, Hyattsville, Md., for petitioners.
Henry R. Lord, Baltimore, Md., for respondents.
PER CURIAM.
1
Petitioners were convicted of various state crimes and sentenced to fixed terms of imprisonment. They were then committed to the Patuxent Institution in lieu of sentence, for an indeterminate period, pursuant to the Maryland Defective Delinquency Law, Md.Ann.Code, Art. 31B. They sought federal habeas corpus, challenging on constitutional grounds the criteria and procedures that led to their commitment, and the conditions of their confinement. They contend, inter alia, that the statutory standard for commitment is impermissibly vague, that they are entitled to put the government to the burden of proof beyond a reasonable doubt, that at the compulsory psychiatric examination prescribed by the statute they were entitled to have the assistance of counsel and to invoke the privilege against self-incrimination, and that they are being denied a constitutional right to treatment. The District Court denied relief sub nom. Sas v. Maryland, 295 F.Supp. 389 (Md.1969), and the Court of Appeals affirmed sub nom. Tippett v. Maryland, 4 Cir., 436 F.2d 1153 (CA4 1971).1 We granted certiorari, 404 U.S. 999, 92 S.Ct. 567, 30 L.Ed.2d 552 (1971), to consider whether, and to what extent, the constitutional guarantees invoked by petitioners apply to this kind of commitment process. After briefing and oral argument, it now appears that this case does not present these issues in a manner that warrants the exercise of the certiorari jurisdiction of this Court.
2
1. Of the four petitioners, one has been unconditionally released from confinement, and the other three are subject to criminal sentences that have not yet expired, and that would bar their release from custody even if their claims were to prevail.2 This fact, while not necessarily dispositive of all the claims presented by these petitioners, casts those claims in a different light, not contemplated by our original grant of the writ.3 Cf. McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719.
3
2. Under our decisions in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), petitioners' challenge to the Maryland Defective Delinquency Law should be considered in relation to the criteria, procedures, and treatment that the State of Maryland makes available to other persons, not 'defective delinquents,' committed for compulsory psychiatric treatment. We are informed that the statutes governing civil commitment in Maryland are presently undergoing substantial revision, designed to provide greater substantive and procedural safeguards to committed persons. Accordingly, it seems a particularly inopportune time for this Court to consider a comprehensive challenge to the Defective Delinquency Law.
4
In these circumstances, the writ of certionari is therefore dismissed as improvidently granted.
5
It is so ordered.
6
Mr. Justice DOUGLAS, dissenting.
7
Patuxent Institution is a special prison used by the State of Maryland for the incarceration of 'defective delinquents.' Individuals who have demonstrated 'persistent aggravated anti-social or criminal behavior,' who have 'a propensity toward criminal activity,' and who have 'either such intellectual deficiency or emotional unbalance' as to present 'an actual danger to society' may be confined at Patuxent. Md.Ann.Code, Art. 31B, § 5 (1971). The initial determination that one is a defective delinquent is made judicially and, for those confined to Patuxent after such a determination, there is the right to seek judicial redetermination of their status at three-year intervals. Id., § 6 et seq. One of the objectives of Patuxent supposedly is to provide treatment for the inmates so that they may be returned to society. Director of Patuxent Institution v. Daniels, 243 Md. 16, 31—32, 221 A.2d 397, 406 (1966). Should a defective delinquent not receive treatment, or should the treatment prove inadequate to return him to society, the inmate might well remain in Patuxent for the remainder of his life. See McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719.
8
Petitioners brought this action in the District Court challenging various aspects of their confinement at Patuxent. The District Court denied relief, Sas v. Maryland, 295 F.Supp. 389 (Md.1969); the Court of Appeals affirmed, Tippett v. Maryland, 436 F.2d 1153 (CA4 1974); and we granted the petition for a writ of certiorari. 404 U.S. 999, 92 S.Ct. 567, 30 L.Ed.2d 552. Because I base my decision on narrow grounds, I do not reach the broader issues tendred by petitioners.
9
When a State moves to deprive an individual of his liberty, to incarcerate him indefinitely, or to place him behind bars for what may be the rest of his life, the Federal Constitution requires that it meet a more regorous burden of proof than that employed by Maryland to commit defective delinquents. The Defective Delinquency Law does not specify the burden of proof necessary to commit an individual to Patuxent, but the Maryland Court of Appeals has determined that the State need only prove its case by the 'fair preponderance of the evidence.' E.g., Crews v. Director of Patuxent Institution, 245 Md. 174, 225 A.2d 436 (1967); Termin v. Director of Patuxent Institution, 243 Md. 689, 221 A.2d 658 (1966); Dickerson v. Director of Patuxent Institution, 235 Md. 668, 202 A.2d 765 (1964); Purks v. State, 226 Md. 43, 171 A.2d 726 (1961); Blizzard v. State, 218 Md. 384, 147 A.2d 227 (1958); and the Sas v. Maryland, 334 F.2d 506 (CA4 1964); Walker v. Director of Patuxent Institution, 6 Md.App. 206, 250 A.2d 900 (1969). Petitioners have thus been taken from their families and deprived of their constitutionally protected liberty under the same standard of proof applicable to run-of-the-mill automobile negligence actions.1
10
The Court of Appeals disapproved this standard but, because it felt it insignificant, nonetheless held it to be consistent with the requirements of the Due Process Clause:
11
'We might all be happier had (the burden of persuasion) been stated in terms of clear and convincing proof rather than in terms of a preponderance of the evidence. However meaningful the distinction may be to us as judges, however, it is greatly to be doubted that a jury's verdict would ever be influenced by the choice of one standard or the other. We all know that juries apply the preponderance standard quite flexibly, depending upon the nature of the case. In any event, in the present state of our knowledge, choice of the standard of proof should be left to the state. A legislative (sic) choice of the proponderance standard, the same standard governing civil commitments of mentally ill persons who have no history of criminality, ought not to be held in violation of due process requirements when we have no firm foundation for an evaluation of the practical effects of the choice.' Tippett v. Maryland, supra, 436 F.2d, at 1158—1159.
12
Judge Sobeloff dissented in part and would have held the State to a more stringent burden:
13
'The reasonable doubt standard is indispensable in both criminal and juvenile proceedings . . . for 'it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.' . . .
14
'The objections to the preponderance standard apply with equal force in defective delinquency hearings—indeed they are even more compelling in the latter class of cases, since indefinite incarceration is at stake. Due process commands that the jury must be satisfied beyond a reasonable doubt as to all objective facts in dispute, including the truth of any alleged incidents relied upon by the psychiatrists in reaching their recommendation.' Id., at 1165 (citations omitted).
15
In considering the constitutionally mandated burdens of proof applicable to particular types of cases, our decisions have attached greater significance to the varying standards than did the Court of Appeals below. In Speiser v. Randall, 357 U.S. 513, 520—521, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460 (1958), we said:
16
'To experienced lawyers it is commonplace that the outcome of a lawsuit—and hence the vindication of legal rights—depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those rights.'
17
And see In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring).
18
The reason for our continued concern over the applicable burden of proof is that a lawsuit—like any other factfinding process—is necessarily susceptible of error in the making of factual determinations. The nature of the rights implicated in the lawsuit thus determines the allocation and degree of the burden of proof and consequently the party upon whom the risk of errors in the factfinding process will be placed. We applied this reasoning in Speiser, where First Amendment rights were implicated:
19
'In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt.' 357 U.S., at 525—526, 78 S.Ct., at 1342 (citations omitted).
20
In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), Mr. Justice Brennan, in an opinion joined by The Chief Justice and Mr. Justice Blackmun, again applied these principles and reasoned that the important First Amendment interests present in defamation actions required plaintiffs to meet an extraordinary burden of proof. Justice Brennan said, 'In libel cases . . . an erroneous verdict for the plaintiff (is) most serious. . . . (T)he possibility of such error . . . would create a strong impetus toward self-censorship which the First Amendment cannot tolerate.' Id., at 50, 91 S.Ct., at 1823. Mr. Justice Brennan thus concluded that a more rigorous burden of proof was necessary to safeguard the important First Amendment rights involved:
21
'We . . . hold that a libel action . . . 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.' Id., at 52, 91 S.Ct., at 1824.
22
In re Winship, supra, dealt with an individual's personal liberty which we had characterized as 'an interest of transcending value' in Speiser, 357 U.S., at 525, 78 S.Ct., at 1342. There, we determined that 'proof beyond a reasonable doubt' was constitutionally required 'because of the possibility that (an individual might) lose his liberty' and because of the stigma of a criminal conviction. 397 U.S., at 363, 90 S.Ct., at 1072. And see Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966).
23
In the present case, petitioners were deprived of their most basic right—their personal liberty—under a burden of proof which was constitutionally inadequate. The right to liberty is one of transcendent value. Without it, other constitutionally protected rights such as the right of free expression and the right of privacy become largely meaningless. Yet Maryland has deprived petitioners of this right, using a burden of proof which fails to give sufficient weight to the interests involved.
24
It is no answer to say that petitioners' commitments were in 'civil' proceedings and that the requirement for proof beyond a reasonable doubt is required only in 'criminal' cases. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and In re Winship, supra, specifically rejected this distinction and looked instead at the interests involved and the actual nature of the proceedings. See also Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Nor would it be persuasive to argue that the difficulty in proving one's state of mind requires that the State be afforded the benefit of a lesser burden of proof. Proving a state of mind is no more difficult than many other issues with which courts and juries grapple each day.2 An individual who is confronted with the possibility of commitment, moreover, runs the risk of losing his most important right—his liberty.
25
Speiser and Winship indicate that an individual's personal liberty is an interest of transcending value for the deprivation of which the State must prove its case beyond a reasonable doubt. I would follow established precedent and hold that a State may not subject individuals to lengthy—if not indefinite—incarceration under a lesser burden of proof. Accordingly, I would reverse the judgment below.
1
Petitioner Murel was originally committed as a defective delinquent in 1962 and Creswell in 1958; their separate petitions for federal habeas corpus were denied without hearing in 1963. On appeal, the Court of Appeals consolidated these and other similar cases, and remanded all of them for a hearing, sub nom. Sas v. Maryland, 334 F.2d 506 (CA4 1964). The hearing was deferred, by agreement of the parties, pending the outcome of related litigation in the state courts, which culminated in the decision in Director of Patuxent Institution v. Daniels, 243 Md. 16, 221 A.2d 397, cert. denied sub nom. Avey v. Boslow, 385 U.S. 940, 87 S.Ct. 307, 17 L.Ed.2d 219 (1966). The federal habeas hearing was then held in the consolidated cases, which by this time also included that of petitioners Hayes and Avey, who had been committed after the Court of Appeals' remand order. The petitions were again denied, 295 F.Supp. 389 (Md.1969), and the Court of Appeals affirmed, 436 F.2d 1153 (CA4 1971).
2
At the start of this litigation nine years ago both Murel and Creswell were subject to confinement that was wholly attributable to the Defective Delinquency Law, their sentences having expired. This is no longer the case because Murel was recently released, and Creswell was convicted and sentenced on new charges. We therefore do not reach their claims.
3
We do not suggest that these claims are moot, or that a case or controversy is lacking, or that habeas corpus is inappropriate to test the special incidents, if any, of these defective-delinquency confinements. See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); North Carolina v. Rice, 404 U.S. 244, 248, 92 S.Ct. 402, 405, 30 L.Ed.2d 413 (1971).
1
In petitioner Murel's redetermination hearing on December 21, 1964, for example, the trial court instructed the jury: 'The burden is on the State to prove by a preponderance of evidence, as I have
stated to you, that the defendant does come within all phases of the definition of a defective delinquent.' Trial Transcript 70.
The jury instructions in petitioner Creswell's December 20, 1961, redetermination trial were similar:
'The burden of proof in this particular case is governed by our normal civil rules of evidence. The burden of proof is on the State to satisfy you that this defendant is a defective delinquent. If the State has not satisfied you by a fair preponderance of the evidence that he is a defective delinquent, or if your minds are in a state of equal balance, or even balance, after considering all the evidence al to whether he is or is not a defective delinquent, then it is your duty to find him to be not a defective delinquent.
'However, if you are satisfied by a fair preponderance of the evidence that he is a defective delinquent, then it is your duty to so find him to be such defective delinquent.' Trial Transcript 75—76.
The record developed in the District Court also included the jury instructions in the October 30, 1959, redetermination hearing of Charles Tippett, who was a petitioner in the District Court:
'The Court informs you that having once been determined to be a defective delinquent and now that he comes before you and asks to be released as cured of whatever defect there was, the burden is on him to convince you by a fair preponderance of the testimony that that is so.' Trial Transcript 40.
2
Bruce J. Ennis, Staff Attorney of the New York Civil Liberties Union and Director of the Civil Liberties and Mental Illness Project, testified as follows before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st & 2d Sess., 277—278 (1969 and 1970):
'As I mentioned earlier, the mentally ill are possibly less dangerous than the mentally healthy. A five and a half year study of 5,000 patients discharged from New York State mental hospitals showed that 'patients with no record of prior arrest have a strikingly low rate of arrest after release. . . . Their over-all rate of arrest is less than 1/12 that of the general population and the rate for each separate offense is also far lower, especially for more serious charges.' Another psychiatrist states that there is 'not a shred of evidence that the mentally ill are any more dangerous than the mentally healthy.' A diagnosis of mental illness tells us nothing about whether the person so diagnosed is or is not dangerous. Some mental patients are dangerous, some are not. Perhaps the psychiatrist is an expert at deciding whether a person is mentally ill, but is he an expert at predicting which of the persons so diagnosed are dangerous? Sane people, too, are dangerous, and it may legitimately be inquired whether there is anything in the education, training or experience of psychiatrists which renders them particularly adept at predicting dangerous behavior. Predictions of dangerous behavior, no matter who makes them, are incredibly inaccurate, and there is a growing concensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals.
'Because predictions of dangerous behavior are so grossly unreliable, we should authorize confinement only if the predicted danger is proved 'beyond a reasonable doubt' rather than by a mere preponderance of the evidence.' (Footnotes omitted.)
| 89
|
407 U.S. 366
92 S.Ct. 2096
32 L.Ed.2d 798
Dennis TURNERv.State of ARKANSAS.
No. 71—1309.
June 19, 1972.
PER CURIAM.
1
On December 24, 1968, petitioner, one Richard Turner (no relation to petitioner), the decedent Larry Wayne Yates, and one other person were involved in a poker game, which lasted until the early hours of Christmas morning. After he left the game, Yates was murdered and robbed, and an information filed on December 27 charged that:
2
'(Petitioner) on the 25th day of December, 1968 . . . did unlawfully, wilfully, feloniously and violently take from the person of one Larry Wayne Yates . . . a sum of money in excess of $300.00 . . . forcibly and against the will of the said Larry Wayne Yates . . . and while perpetrating said crime of robbery as aforesaid, feloniously, wilfully and with malice aforethought, and with premeditation and deliberation did kill and murder one Larry Wayne Yates . . ..' On April 24, 1969, petitioner received a general verdict of acquittal on this information.
3
On October 3, 1969, however, a county grand jury indicted petitioner for the robbery of Yates and alleged that petitioner
4
'on the 25th day of December, 1968, in Hempstead County, Arkansas, did unlawfully take from Larry Yates by force and intimidation lawful currency in the amount of Four Hundred Dollars ($400.00) belonging to the said Larry Yates, against the peace and dignity of the State of Arkansas.'
5
Petitioner moved to dismiss this indictment on double jeopardy and res judicata grounds, but the trial court denied the motion. On appeal, it was stipulated that 'the murder charge, of which Defendant Dennis Turner was acquitted, and the robbery charge arose out of the same set of facts, circumstances, and the same occasion' and that 'the same testimony adduced by the State of Arkansas in the murder trial will necessarily need be reintroduced in this robbery charge.' A devided Arkansas Supreme Court affirmed the denial of petitioner's motion, Turner v. State, 248 Ark. 367, 452 S.W.2d 317 (1970), holding that the only question determined at the murder trial was whether petitioner was guilty of murder. The court pointed out that under state law, murder and robbery charges could not be joined in one indictment on information and that no offense could be jointly tried with murder. Petitioner's rehearing petition, which argued the relevance of this Court's holding in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), announced seven days after the Arkansas Supreme Court's decision, was denied. Petitioner then entered the complete transcript of the murder trial into the record and once again moved to dismiss the indictment on double jeopardy and res judicata grounds, and the trial court again denied the motion. An amended stipulation provided that the evidence the State would present on the robbery charge would be identical with that it introduced on the murder charge. The Arkansas Supreme Court affirmed the decision of the trial court, 251 Ark. 499, 473 S.W.2d 904 (1971), declining to consider the applicability of this Court's decision in Ashe v. Swenson, supra, because it held that its earlier decision denying petitioner relief now constituted the 'law of the case.'
6
Petitioner contends that Fifth Amendment principles of double jeopardy, see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), prevent his trial on the robbery indictment, because the State is collaterally estopped from relitigating those issues already determined in his favor at the murder trial, determinations that make his conviction on the robbery charge a logical impossibility. Collateral estoppel is part of the Fifth Amendment's double jeopardy guarantee, Ashe v. Swenson, supra, and it is 'a matter of constitutional fact (this Court) must decide through an examination of the entire record.' Id. 397 U.S. at 443, 90 S.Ct., at 1194. Thus, the rejection of petitioner's claim by the Arkansas Supreme Court on procedural grounds does not foreclose our inquiry on this issue.
7
In Ashe, the defendant had been tried and acquitted by a general verdict of the robbery of one member of a poker game. He was then tried and convicted of the robbery of another of the poker players. This Court reversed his conviction, concluding that '(t)he single rationally conceivable issue in dispute before the jury (in the first trial) was whether the petitioner had been one of the robbers,' 397 U.S., at 445, 90 S.Ct., at 1195, and that, this issue once having been determined by a jury in the petitioner's favor, the State was forestalled from relitigating it.
8
In the present case, petitioner was not charged with robbery at the first trial, but the State has stipulated that the robbery and murder arose out of 'the same set of facts, circumstances, and the same occasion.' The crucial question, therefore, is what issues a general verdict of acquittal at the murder trial resolved. The jury was instructed that it must find petitioner guilty of first-degree murder if it found that he had killed the decedent Yates either with premeditation or unintentionally during the course of a robbery. The jury's verdict thus necessarily means that it found petitioner not guilty of the killing. The State's theory, however, is that the jury might have believed that petitioner and Richard Turner robbed Yates, but that Richard actually committed the murder. This theory is belied by the actual instructions given the jury.* The trial judge charged that:
9
'An accessory is one who stands by, aids, abets, or assists . . . the perpetration of the crime.
10
'All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and indicted or informed against, and punished as such.' (Court's Instruction No. 13.)
11
Had the jury found petitioner present at the crime scene, it would have been obligated to return a verdict of guilty of murder even if it believed that he had not actually pulled the trigger. The only logical conclusion is that the jury found him not present at the scene of the murder and robbery, a finding that negates the possibility of a constitutionally valid conviction for the robbery of Yates. This case is thus squarely controlled by Ashe v. Swenson, supra, and must be reversed. See Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971).
12
The writ of certiorari is granted, the decision of the Arkansas Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
13
It is so ordered.
14
Reversed and remanded.
15
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, concurring.
16
Given the decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (see, however, my dissent in Harris v. Washington, 404 U.S. 55, 57, 92 S.Ct. 183, 185, 30 L.Ed.2d 212 (1971)), I join the judgment of the Court.
17
THE CHIEF JUSTICE, rather than taking summary action in this case, would hear oral argument and give the matter plenary consideration.
*
These instructions reflect Ark.Stat.Ann. § 41—2227 which makes accessories before the fact to first-degree murder subject to the same punishment as principals. Ark.Stat.Ann. § 41—118 abolished the distinction between principals and accessories before the fact and also provides that 'all accessories before the fact shall be deemed principals and punished as such.' Ark.Stat.Ann. § 41—119 defines an accessory as 'he who stands by, aids, abets, or assists . . . the perpetration of the crime.'
| 01
|
32 L.Ed.2d 728
92 S.Ct. 2099
407 U.S. 258
Curtis C. FLOOD, Petitioner,v.Bowie K. KUHN et al.
No 71—32.
Argued March 20, 1972.
Decided June 19, 1972.
Syllabus
Petitioner, a professional baseball player 'traded' to another club without his previous knowledge or consent, brought this antitrust suit after being refused the right to make his own contract with another major league team, which is not permitted under the reserve system. The District Court rendered judgment in favor of respondents, and the Court of Appeals affirmed. Held: The longstanding exemption of professional baseball from the antitrust laws, Federal Baseball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922); Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953), is an established aberration, in the light of the Court's holding that other interstate professional sports are not similarly exempt, but one in which Congress has acquiesced, and that is entitled to the benefit of stare decisis. Removal of the resultant inconsistency at this late date is a matter for legislative, not judicial, resolution. Pp. 269—285.
443 F.2d 264, affirmed.
Arthur J. Goldberg, Washington, D.C., for petitioner.
Paul A. Porter, Washington, D.C., for respondent Bowie K. Kuhn.
Louis L. Hoynes, Jr., New York City, for other respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
For the third time in 50 years the Court is asked specifically to rule that professional baseball's reserve system is within the reach of the federal antitrust laws.1 Collateral issues of state law and of federal labor policy are also advanced.
2
* The Game
3
It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken's Elysian Fields June 19, 1846, with Alexander Jay Cartwright as the instigator and the umpire. The teams were amateur, but the contest marked a significant date in baseball's beginnings. That early game led ultimately to the development of professional baseball and its tightly organized structure.
4
The Cincinnati Red Stockings came into existence in 1869 upon an outpouring of local pride. With only one Cincinnatian on the payroll, this professional team traveled over 11,000 miles that summer, winning 56 games and tying one. Shortly thereafter, on St. Patrick's Day in 1871, the National Association of Professional Baseball Players was founded and the professional league was born.
5
The ensuing colorful days are well known. The ardent follower and the student of baseball know of General Abner Doubleday; the formation of the National League in 1876; Chicago's supremacy in the first year's competition under the leadership of Al Spalding and with Cap Anson at third base; the formation of the American Association and then of the Union Association in the 1880's; the introduction of Sunday baseball; interleague warfare with cut-rate admission prices and player raiding; the development of the reserve 'clause'; the emergence in 1885 of the Brotherhood of Professional Ball Players, and in 1890 of the Players League; the appearance of the American League, or 'junior circuit,' in 1901, rising from the minor Western Association; the first World Series in 1903, disruption in 1904, and the Series' resumption in 1905; the short-lived Federal League on the majors' scene during World War I years; the troublesome and discouraging episode of the 1919 Series; the home run ball; the shifting of franchises; the expansion of the leagues; the installation in 1965 of the major league draft of potential new players; and the formation of the Major League Baseball Players Association in 1966.2
6
Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove.3 The list seems endless.
7
And one recalls the appropriate reference to the 'World Serious,' attributed to Ring Lardner, Sr.; Ernest L. Thayer's 'Casey at the Bat';4 the ring of 'Tinker to Evers to Chance';5 and all the other happenings, habits, and superstitions about and around baseball that made it the 'national pastime' or, depending upon the point of view, 'the great American tragedy.'6
II
The Petitioner
8
The petitioner, Curtis Charles Flood, born in 1938, began his major league career in 1956 when he signed a contract with the Cincinnati Reds for a salary of $4,000 for the season. He had no attorney or agent to advise him on that occasion. He was traded to the St. Louis Cardinals before the 1958 season. Flood rose to fame as a center fielder with the Cardinals during the years 1958—1969. In those 12 seasons he compiled a batting average of .293. His best offensive season was 1967 when he achieved .335. He was .301 or better in six of the 12 St. Louis years. He participated in the 1964, 1967, and 1968 World Series. He played errorless ball in the field in 1966, and once enjoyed 223 consecutive errorless games. Flood has received seven Golden Glove Awards. He was co-captain of his team from 1965—1969. He ranks among the 10 major league outfielders possessing the highest lifetime fielding averages.
9
Flood's St. Louis compensation for the years shown was:
10
1961 $13,500 (including a bonus for signing)
1962 $16,000
1963 $17,500
1964 $23,000
1965 $35,000
1966 $45,000
1967 $50,000
1968 $72,500
1969 $90,000
11
These figures do not include any so-called fringe benefits or World Series shares.
12
But at the age of 31, in October 1969, Flood was traded to the Philadelphia Phillies of the National League in a multi-player transaction. He was not consulted about the trade. He was informed by telephone and received formal notice only after the deal had been consummated. In December he complained to the Commissioner of Baseball and asked that he be made a free agent and be placed at liberty to strike his own bargain with any other major league team. His request was denied.
13
Flood then instituted this antitrust suit7 in January 1970 in federal court for the Southern District of New York. The defendants (although not all were named in each cause of action) were the Commissioner of Baseball, the presidents of the two major leagues, and the 24 major league clubs. In general, the complaint charged violations of the federal antitrust laws and civil rights statutes, violation of state statutes and the common law, and the imposition of a form of peonage and involuntary servitude contrary to the Thirteenth Amendment and 42 U.S.C. § 1994, 18 U.S.C. § 1581, and 29 U.S.C. §§ 102 and 103. Petitioner sought declaratory and injunctive relief and treble damages.
14
Flood declined to play for Philadelphia in 1970, despite a $100,000 salary offer, and he sat out the year. After the season was concluded, Philadelphia sold its rights to Flood to the Washington Senators. Washington and the petitioner were able to come to terms for 1971 at a salary of $110,000.8 Flood started the season but, apparently because he was dissatisfied with his performance, he left the Washington club on April 27, early in the campaign. He has not played baseball since then.
III
The Present Litigation
15
Judge Cooper, in a detailed opinion, first denied a preliminary injunction, 309 F.Supp. 793 (S.D.N.Y.1970), observing on the way:
16
'Baseball has been the national pastime for over one hundred years and enjoys a unique place in our American heritage. Major league professional baseball is avidly followed by millions of fans, looked upon with fervor and pride and provides a special source of inspiration and competitive team spirit especially for the young.
17
'Baseball's status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody's business. To put it mildly and with restraint, it would be unfortunate indeed if a fine sport and profession, which brings surcease from daily travail and an escape from the ordinary to most inhabitants of this land, were to suffer in the least because of undue concentration by any one or any group on commercial and profit considerations. The game is on higher ground; it behooves every one to keep it there.' 309 F.Supp., at 797.
18
Flood's application for an early trial was granted. The court next deferred until trial its decision on the defendants' motions to dismiss the primary causes of action, but granted a defense motion for summary judgment on an additional cause of action. 312 F.Supp. 404 (S.D.N.Y.1970).
19
Trial to the court took place in May and June 1970. An extensive record was developed. In an ensuing opinion, 316 F.Supp. 271 (S.D.N.Y.1970), Judge Cooper first noted that:
20
'Plaintiff's witnesses in the main concede that some form of reserve on players is a necessary element of the organization of baseball as a league sport, but contend that the present all-embracing system is needlessly restrictive and offer various alternatives which in their view might loosen the bonds without sacrifice to the game. . . .
21
'Clearly the preponderance of credible proof does not favor elimination of the reserve clause. With the sole exception of plaintiff himself, it shows that even plaintiff's witnesses do not contend that it is wholly undesirable; in fact they regard substantial portions meritorious. . . .' 316 F.Supp., at 275—276.
22
He then held that Federal Baseball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922), and Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953), were controlling; that it was not necessary to reach the issue whether exemption from the antitrust laws would result because aspects of baseball now are a subject of collective bargaining; that the plaintiff's state-law claims, those based on common law as well as on statute, were to be denied because baseball was not 'a matter which admits of diversity of treatment,' 316 F.Supp., at 280; that the involuntary servitude claim failed because of the absence of 'the essential element of this cause of action, a showing of compulsory service,' 316 F.Supp., at 281—282; and that judgment was to be entered for the defendants. Judge Cooper included a statement of personal conviction to the effect that 'negotiations could produce an accommodation on the reserve system which would be eminently fair and equitable to all concerned' and that 'the reserve clause can be fashioned so as to find acceptance by player and club.' 316 F.Supp., at 282 and 284.
23
On appeal, the Second Circuit felt 'compelled to affirm.' 443 F.2d 264, 265 (1971). It regarded the issue of state law as one of first impression, but concluded that the Commerce Clause precluded its application. Judge Moore added a concurring opinion in which he predicted, with respect to the suggested overruling of Federal Baseball and Toolson, that 'there is no likelihood that such an event will occur.'9 443 F.2d, at 268, 272.
24
We granted certiorari in order to look once again at this troublesome and unusual situation. 404 U.S. 880, 92 S.Ct. 201, 30 L.Ed.2d 160 (1971).
IV
The Legal Background
25
A. Federal Baseball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922), was a suit for treble damages instituted by a member of the Federal League (Baltimore) against the National and American Leagues and others. The plaintiff obtained a verdict in the trial court, but the Court of Appeals reversed. The main brief filed by the plaintiff with this Court discloses that it was strenuously argued, among other things, that the business in which the defendants were engaged was interstate commerce; that the interstate relationship among the several clubs, located as they were in different States, was predominant; that organized baseball represented an investment of colossal wealth; that it was an engagement in moneymaking; that gate receipts were divided by agreement between the home club and the visiting club; and that the business of baseball was to be distinguished from the mere playing of the game as a sport for physical exercise and diversion. See also 259 U.S., at 201—206, 42 S.Ct. 465.
26
Mr. Justice Holmes, in speaking succinctly for a unanimous Court, said:
27
'The business is giving exhibitions of base ball, which are purely state affairs. . . . But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. . . . (T) he transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words. As it is put by the defendant, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. To repeat the illustrations given by the Court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State.
28
'If we are right the plaintiff's business is to be described in the same way and the restrictions by contract that prevented the plaintiff from getting players to break their bargains and the other conduct charged against the defendants were not an interference with commerce among the States.' 259 U.S., at 208—209, 42 S.Ct., at 466.10
29
The Court thus chose not to be persuaded by opposing examples proffered by the plaintiff, among then (a) Judge Learned Hand's decision on a demurrer to a Sherman Act complaint with respect to vaudeville entertainers traveling a theater circuit covering several States, H. B. Marienelli, Ltd. v. United Booking Offices, 227 F. 165 (S.D.N.Y.1914); (b) the first Mr. Justice Harlan's opinion in International Textbook Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678 (1910), to the effect that correspondence courses pursued through the mail constituted commerce among the States; and (c) Mr. Justice Holmes' own opinion, for another unanimous Court, on demurrer in a Sherman Act case, relating to cattle shipment, the interstate movement of which was interrupted for the finding of purchasers at the stockyards, Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518 (1905). The only earlier case the parties were able to locate where the question was raised whether organized baseball was within the Sherman Act was American League Baseball Club v. Chase, 86 Misc. 441, 149 N.Y.S. 6 (1914). That court had answered the question in the negative.
30
B. Federal Baseball was cited a year later, and without disfavor, in another opinion by Mr. Justice Holmes for a unanimous Court. The complaint charged antitrust violations with respect to vaudeville bookings. It was held, however, that the claim was not frivolous and that the bill should not have been dismissed. Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271, 43 S.Ct. 540, 67 L.Ed. 977 (1923).11
31
It has also been cited, not unfavorably, with respect to the practice of law, United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 573, 64 S.Ct. 1162, 1184, 88 L.Ed. 1440 (1944) (Stone, C.J., dissenting); with respect to out-of-state contractors, United States v. Employing Plasterers Assn., 347 U.S. 186, 196—197, 74 S.Ct. 452, 459—460, 98 L.Ed. 618 (1954) (Minton, J., dissenting); and upon a general comparison reference, North American Co. v. SEC, 327 U.S. 686, 694, 66 S.Ct. 785, 791, 90 L.Ed. 945 (1946).
32
In the years that followed, baseball continued to be subject to intermittent antitrust attack. The courts, however, rejected these challenges on the authority of Federal Baseball. In some cases stress was laid, although unsuccessfully, on new factors such as the development of radio and television with their substantial additional revenues to baseball.12 For the most part, however, the Holmes opinion was generally and necessarily accepted as controlling authority.13 And in the 1952 Report of the Subcommittee on Study of Monopoly Power of the House Committee on the Judiciary, H.R.Rep.No.2002, 82d Cong., 2d Sess., 229, it was said, in conclusion:
33
'On the other hand the overwhelming preponderance of the evidence established baseball's need for some sort of reserve clause. Baseball's history shows that chaotic conditions prevailed when there was no reserve clause. Experience points to no feasible substitute to protect the integrity of the game or to guarantee a comparatively even competitive struggle. The evidence adduced at the hearings would clearly not justify the enactment of legislation flatly condemning the reserve clause.'
34
C. The Court granted certiorari, 345 U.S. 963, 73 S.Ct. 948, 949, 97 L.Ed. 1382 (1953), in the Toolson, Kowalski, and Corbett cases, cited in nn. 12 and 13, supra, and, by a short per curiam (Warren, C.J., and Black, Frankfurter, Douglas, Jackson, Clark, and Minton, JJ.), affirmed the judgments of the respective courts of appeals in those three cases. Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953). Federal Baseball was cited as holding 'that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws,' 346 U.S., at 357, 74 S.Ct., at 78, and:
35
'Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.' Ibid.
36
This quotation reveals four reasons for the Court's affirmance of Toolson and its companion cases: (a) Congressional awareness for three decades of the Court's ruling in Federal Baseball, coupled with congressional inaction. (b) The fact that baseball was left alone to develop for that period upon the understanding that the reserve system was not subject to existing federal antitrust laws. (c) A reluctance to overrule Federal Baseball with consequent retroactive effect. (d) A professed desire that any needed remedy be provided by legislation rather than by court decree. The emphasis in Toolson was on the determination, attributed even to Federal Baseball, that Congress had no intention to include baseball within the reach of the federal antitrust laws. Two Justices (Burton and Reed, JJ.) dissented, stressing the factual aspects, revenue sources, and the absence of an express exemption of organized baseball from the Sherman Act. 346 U.S., at 357, 74 S.Ct. 78. The 1952 congressional study was mentioned. Id., at 358, 359, 361, 74 S.Ct., at 79, 80, 81.
37
It is of interest to note that in Toolson the petitioner had argued flatly that Federal Baseball 'is wrong and must be overruled,' Brief for Petitioner, No. 18, O.T.1953, p. 19, and that Thomas Reed Powell, a constitutional scholar of no small stature, urged, as counsel for an amicus, that 'baseball is a unique enterprise,' Brief for Boston American League Base-Ball Co. as Amicus Curiae 2, and that 'unbridled competition as applied to baseball would not be in the public interest.' Id., at 14.
38
D. United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955), was a civil antitrust action against defendants engaged in the production of legitimate theatrical attractions throughout the United States and in operating theaters for the presentation of such attractions. The District Court had dismissed the complaint on the authority of Federal Baseball and Toolson, 120 F.Supp. 15 (S.D.N.Y.1953). This Court reversed. Mr. Chief Justice Warren noted the Court's broad conception of 'trade or commerce' in the antitrust statutes and the types of enterprises already held to be within the reach of that phrase. He stated that Federal Baseball and Toolson afforded no basis for a conclusion that businesses built around the performance of local exhibitions are exempt from the antitrust laws. 348 U.S., at 227, 75 S.Ct., at 280. He then went on to elucidate the holding in Toolson by meticulously spelling out the factors mentioned above:
39
'In Federal Base Ball, the Court, speaking through Mr. Justice Holmes, was dealing with the business of baseball and nothing else. . . . The travel, the Court concluded, was 'a mere incident, not the essential thing.' . . .
40
'In Toolson, where the issue was the same as in Federal Base Ball, the Court was confronted with a unique combination of circumstances. For over 30 years there had stood a decision of this Court specifically fixing the status of the baseball business under the antitrust laws and more particularly the validity of the so-called 'reserve clause.' During this period, in reliance on the Federal Base Ball precedent, the baseball business had grown and developed. . . . And Congress, although it had actively considered the ruling, had not seen fit to reject it by amendatory legislation. Against this background, the Court in Toolson was asked to overrule Federal Base Ball on the ground that it was out of step with subsequent decisions reflecting present-day concepts of interstate commerce. The Court, in view of the circumstances of the case, declined to do so. But neither did the Court necessarily reaffirm all that was said in Federal Base Ball. Instead, '(w)ithout re-examination of the underlying issues,' the Court adhered to Federal Base Ball 'so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.' (346 U.S. 356, 74 S.Ct. 79.) In short, Toolson was a narrow application of the rule of stare decisis.
41
'. . . If the Toolson holding is to be expanded—or contracted the appropriate remedy lies with Congress.' 348 U.S., at 228 230, 75 S.Ct., at 281.
42
E. United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290 (1955), was a companion to Shubert and was decided the same day. This was a civil antitrust action against defendants engaged in the business of promoting professional championship boxing contests. Here again the District Court had dismissed the complaint in reliance upon Federal Baseball and Toolson. The Chief Justice observed that 'if it were not for Federal Baseball and Toolson, we think that it would be too clear for dispute that the Government's allegations bring the defendants within the scope of the Act.' 348 U.S., at 240—241, 75 S.Ct., at 261. He pointed out that the defendants relied on the two baseball cases but also would have been content with a more restrictive interpretation of them than the Shubert defendants, for the boxing defendants argued that the cases immunized only businesses that involve exhibitions of an athletic nature. The Court accepted neither argument. It again noted, 348 U.S., at 242, 75 S.Ct., at 262, that 'Toolson neither overruled Federal Baseball nor necessarily reaffirmed all that was said in Federal Baseball.' It stated:
43
'The controlling consideration in Federal Baseball and Hart was, instead, a very practical one—the degree of interstate activity involved in the particular business under review. It follows that stare decisis cannot help the defendants here; for, contrary to their argument, Federal Baseball did not hold that all businesses based on professional sports were outside the scope of the antitrust laws. The issue confronting us is, therefore, not whether a previously granted exemption should continue, but whether an exemption should be granted in the first instance. And that issue is for Congress to resolve, not this Court.' 348 U.S., at 243, 75 S.Ct., at 262.
44
The Court noted the presence then in Congress of various bills forbidding the application of the antitrust laws to 'organized professional sports enterprises'; the holding of extensive hearings on some of these; subcommittee opposition; a postponement recommendation as to baseball; and the fact that 'Congress thus left intact the then-existing coverage of the antitrust laws.' 348 U.S., at 243—244, 75 S.Ct., at 263.
45
Mr. Justice Frankfurter, joined by Mr. Justice Minton, dissented. 'It would baffle the subtlest ingenuity,' he said, 'to find a single differentiating factor between other sporting exhibitions . . . and baseball insofar as the conduct of the sport is relevant to the criteria or considerations by which the Sherman Law becomes applicable to a 'trade or commerce." 348 U.S., at 248, 75 S.Ct., at 265. He went on:
46
'The Court decided as it did in the Toolson case as an application of the doctrine of stare decisis. That doctrine is not, to be sure, an imprisonment of reason. But neither is it a whimsy. It can hardly be that this Court gave a preferred position to baseball because it is the great American sport. . . . If stare decisis be one aspect of law, as it is, to disregard it in identic situations is mere caprice.
47
'Congress, on the other hand, may yield to sentiment and be capricious, subject only to due process. . . .
48
'Between them, this case and Shubert illustrate that nice but rational distinctions are inevitable in adjudication. I agree with the Court's opinion in Shubert for precisely the reason that constrains me to dissent in this case.' 348 U.S., at 249 250, 75 S.Ct., at 266.
49
Mr. Justice Minton also separately dissented on the ground that boxing is not trade or commerce. He added the comment that 'Congress has not attempted' to control baseball and boxing. 348 U.S., at 251, 253, 75 S.Ct., at 267. The two dissenting Justices, thus, did not call for the overruling of Federal Baseball and Toolson; they merely felt that boxing should be under the same umbrella of freedom as was baseball and, as Mr. Justice Frankfurter said, 348 U.S., at 250, 75 S.Ct., at 266, they could not exempt baseball 'to the exclusion of every other sport different not one legal jot or tittle from it.'14
50
F. The parade marched on. Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), was a civil Clayton Act case testing the application of the antitrust laws to professional football. The District Court dismissed. The Ninth Circuit affirmed in part on the basis of Federal Baseball and Toolson. The court did not hesitate to 'confess that the strength of the pull' of the baseball cases and of International Boxing 'is about equal,' but then observed that '(f)ootball is a team sport' and boxing an individual one. 9 Cir., 231 F.2d 620, 622.
51
This Court reversed with an opinion by Mr. Justice Clark. He said that the Court made its ruling in Toolson 'because it was concluded that more harm would be done in overruling Federal Base Ball than in upholding a ruling which at best was of dubious validity.' 352 U.S., at 450, 77 S.Ct., at 393. He noted that Congress had not acted. He then said:
52
'All this, combined with the flood of litigation that would follow its repudiation, the harassment that would ensue, and the retroactive effect of such a decision, led the Court to the practical result that it should sustain the unequivocal line of authority reaching over many years.
53
'(S)ince Toolson and Federal Base Ball are still cited as controlling authority in antitrust actions involving other fields of business, we now specifically limit the rule there established to the facts there involved, i.e., the business of organized professional baseball. As long as the Congress continues to acquiesce we should adhere to—but not extend—the interpretation of the Act made in those cases. . . .
54
'If this ruling is unrealistic, inconsistent, or illogical, it is sufficient to answer, aside from the distinctions between the businesses, that were we considering the question of baseball for the first time upon a clean slate we would have no doubts. But Federal Base Ball held the business of baseball outside the scope of the Act. No other business claiming the coverage of those cases has such an adjudication. We therefore, conclude that the orderly way to eliminate error or discrimination, if any there be, is by legislation and not by court decision. Congressional processes are more accommodative, affording the whole industry hearings and an opportunity to assist in the formulation of new legislation. The resulting product is therefore more likely to protect the industry and the public alike. The whole scope of congressional action would be known long in advance and effective dates for the legislation could be set in the future without the injustices of retroactivity and surprise which might follow court action.' 352 U.S., at 450—452, 77 S.Ct., at 393 (footnote omitted).
55
Mr. Justice Frankfurter dissented essentially for the reasons stated in his dissent in International Boxing, 352 U.S., at 455, 77 S.Ct., at 396. Mr. Justice Harlan, joined by Mr. Justice Brennan, also dissented because he, too, was 'unable to distinguish football from baseball.' 352 U.S., at 456, 77 S.Ct., at 396. Here again the dissenting Justices did not call for the overruling of the baseball decisions. They merely could not distinguish the two sports and, out of respect for stare decisis, voted to affirm.
56
G. Finally, in Haywood v. National Basketball Assn., 401 U.S. 1204, 91 S.Ct. 672, 28 L.Ed.2d 206 (1971), Mr. Justice Douglas, in his capacity as Circuit Justice, reinstated a District Court's injunction pendente lite in favor of a professional basketball player and said, 'Basketball . . . does not enjoy exemption from the antitrust laws.' 401 U.S., at 1205, 91 S.Ct., at 673.15
57
H. This series of decisions understandably spawned extensive commentary,16 some of it mildly critical and much of it not; nearly all of it looked of Congress for any remedy that might be deemed essential.
58
I. Legislative proposals have been numerous and persistent. Since Toolson more than 50 bills have been introduced in Congress relative to the applicability or nonapplicability of the antitrust laws to baseball.17 A few of these passed one house or the other. Those that did would have expanded, not restricted, the reserve system's exemption to other professional league sports. And the Act of Sept. 30, 1961, Pub.L. 87—331, 75 Stat. 732, and the merger addition thereto effected by the Act of Nov. 8, 1966, Pub.L. 89 800, § 6(b), 80 Stat. 1515, 15 U.S.C. §§ 1291—1295, were also expansive rather than restrictive as to antitrust exemption.18
V
59
In view of all this, it seems appropriate now to say that:
60
1. Professional baseball is a business and it is engaged in interstate commerce.
61
2. With its reserve system enjoying exemption from the federal antitrust laws, baseball is, in a very distinct sense, an exception and an anomaly. Federal Baseball and Toolson have become an aberration confined to baseball.
62
3. Even though others might regard this as 'unrealistic, inconsistent, or illogical,' see Radovich, 352 U.S., at 452, 77 S.Ct., at 394, the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs.
63
4. Other professional sports operating interstate—football, boxing, basketball, and, presumably, hockey19 and golf20—are not so exempt.
64
5. The advent of radio and television, with their consequent increased coverage and additional revenues, has not occasioned an overruling of Federal Baseball and Toolson.
65
6. The Court has emphasized that since 1922 baseball, with full and continuing congressional awareness, has been allowed to develop and to expand unhindered by federal legislative action. Remedial legislation has been introduced repeatedly in Congress but none has ever been enacted. The Court, accordingly, has concluded that Congress as yet has had no intention to subject baseball's reserve system to the reach of the antitrust statutes. This, obviously, has been deemed to be something other than mere congressional silence and passivity. Cf. Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 241—242, 90 S.Ct. 1583, 1587 1588, 26 L.Ed.2d 199 (1970).
66
7. The Court has expressed concern about the confusion and the retroactivity problems that inevitably would result with a judicial overturning of Federal Baseball. It has voiced a preference that if any change is to be made, it come by legislative action that, by its nature, is only prospective in operation.
67
8. The Court noted in Radovich, 352 U.S., at 452, 77 S.Ct., at 394, that the slate with respect to baseball is not clean. Indeed, it has not been clean for half a century.
68
This emphasis and this concern are still with us. We continue to be loath, 50 years after Federal Baseball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively.
69
Accordingly, we adhere once again to Federal Baseball and Toolson and to their application to professional baseball. We adhere also to International Boxing and Radovich and to their respective applications to professional boxing and professional football. If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court. If we were to act otherwise, we would be withdrawing from the conclusion as to congressional intent made in Toolson and from the concerns as to retrospectivity therein expressed. Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency.
70
The petitioner's argument as to the application of state antitrust laws deserves a word. Judge Cooper rejected the state law claims because state antitrust regulation would conflict with federal policy and because national 'uniformity (is required) in any regulation of baseball and its reserved system.' 316 F.Supp., at 280. The Court of Appeals, in affirming, stated, '(A) § the burden on interstate commerce outweighs the states' interests in regulating baseball's reserve system, the Commerce Clause precludes the application here of state antitrust law.' 443 F.2d, at 268. As applied to organized baseball, and in the light of this Court's observations and holding in Federal Baseball, in Toolson, in Shubert, in International Boxing, and in Radovich, and despite baseball's allegedly inconsistent position taken in the past with respect to the application of state law,21 these statements adequately dispose of the state law claims.
71
The conclusion we have reached makes it unnecessary for us to consider the respondents' additional argument that the reserve system is a mandatory subject of collective bargaining and that federal labor policy therefore exempts the reserve system from the operation of federal antitrust laws.22
72
We repeat for this case what was said in Toolson:
73
'Without re-examination of the underlying issues, the (judgment) below (is) affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.' 346 U.S., at 357, 74 S.Ct., at 79.
74
And what the Court said in Federal Baseball in 1922 and what it said in Toolson in 1953, we say again here in 1972: the remedy, if any is indicated, is for congressional, and not judicial, action.
75
The judgment of the Court of Appeals is affirmed.
76
Judgment affirmed.
77
Mr. Justice WHITE joins in the judgment of the Court, and in all but Part I of the Court's opinion.
78
Mr. Justice POWELL took no part in the consideration or decision of this case.
79
Mr. Chief Justice BURGER, concurring.
80
I concur in all but Part I of the Court's opinion but, like Mr. Justice DOUGLAS, I have grave reservations as to the correctness of Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953); as he notes in his dissent, he joined that holding but has 'lived to regret it.' The error, if such it be, is one on which the affairs of a great many people have rested for a long time. Courts are not the forum in which this tangled web ought to be unsnarled. I agree with Mr. Justice DOUGLAS that congressional inaction is not a solid base, but the least undesirable course now is to let the matter rest with Congress; it is time the Congress acted to solve this problem.
81
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
82
This Court's decision in Federal Baseball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, made in 1922, is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view1 of a rather dismal business account over the last 50 years would keep that derelict in midstream.
83
In 1922 the Court had a narrow, parochial view of commerce. With the demise of the old landmarks of that era, particularly United States v. E. C. Knight Co., 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325, Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101, and Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357, the whole concept of commerce has changed.
84
Under the modern decisions such as Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328; United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609; Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, the power of Congress was recognized as broad enough to reach all phases of the vast operations of our national industrial system. An industry so dependent on radio and television as is baseball and gleaning vast interstate revenues (see H.R.Rep.No.2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be hard put today to say with the Court in the Federal Baseball Club case that baseball was only a local exhibition, not trade or commerce.
85
Baseball is today big business that is packaged with beer, with broadcasting, and with other industries. The beneficiaries of the Federal Baseball Club decision are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs.
86
The owners, whose records many say reveal a proclivity for predatory practices, do not come to us with equities. The equities are with the victims of the reserve clause. I use the word 'victims' in the Sherman Act sense, since a contract which forbids anyone to practice his calling is commonly called an unreasonable restraint of trade.2 Gardella v. Chandler, 172 F.2d 402 (CA2). And see Haywood v. National Basketball Assn., 401 U.S. 1204, 91 S.Ct. 672, 28 L.Ed.2d 206 (Douglas, J., in chambers).
87
If congressional inaction is our guide, we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation.3 H.R.Rep.No.2002, 82nd Cong., 2d Sess. (1952). The only statutory exemption granted by Congress to professional sports concerns broadcasting rights. 15 U.S.C. §§ 1291—1295. I would not ascribe a broader exemption through inaction than Congress has seen fit to grant explicitly.
88
There can be no doubt 'that were we considering the question of baseball for the first time upon a clean slate'4 we would hold it to be subject to federal antitrust regulation. Radovich v. National Football League, 352 U.S. 445, 452, 77 S.Ct. 390, 1 L.Ed.2d 456. The unbroken silence of Congress should not prevent us from correcting our own mistakes.
89
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
90
Petitioner was a major leagues baseball player from 1956, when he signed a contract with the Cincinnati Reds, until 1969, when his 12-year career with the St. Louis Cardinals, which had obtained him from the Reds, ended and he was traded to the Philadelphia Phillies. He had no notice that the Cardinals were contemplating a trade, no opportunity to indicate the teams with which he would prefer playing, and no desire to go to Philadelphia. After receiving formal notification of the trade, petitioner wrote to the Commissioner of Baseball protesting that he was not 'a piece of property to be bought and sold irrespective of my wishes,'1 and urging that he had the right to consider offers from other teams than the Phillies. He requested that the Commissioner inform all of the major league teams that he was available for the 1970 season. His request was denied, and petitioner was informed that he had no choice but to play for Philadelphia or not to play at all.
91
To non-athletes it might appear that petitioner was virtually enslaved by the owners of major league baseball clubs who bartered among themselves for his services. But, athletes know that it was not servitude that bound petitioner to the club owners; it was the reserve system. The essence of that system is that a player is bound to the club with which he first signs a contract for the rest of his playing days.2 He cannot escape from the club except by retiring, and he cannot prevent the club from assigning his contract to any other club.
92
Petitioner brought this action in the United States District Court for the Southern District of New York. He alleged, among other things, that the reserve system was an unreasonable restraint of trade in violation of federal antitrust laws.3 The District Court thought itself bound by prior decisions of this Court and found for the respondents after a full trial. 309 F.Supp. 793 (1970). The United States Court of Appeals for the Second Circuit affirmed. 443 F.2d 264 (1971). We granted certiorari on October 19, 1971, 404 U.S. 880, 92 S.Ct. 201, 30 L.Ed.2d 160, in order to take a further look at the precedents relied upon by the lower courts.
93
This is a difficult case because we are torn between the principle of stare decisis and the knowledge that the decisions in Federal Baseball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922), and Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953), are totally at odds with more recent and better reasoned cases.
94
In Federal Baseball Club, a team in the Federal League brought an antitrust action against the National and American Leagues and others. In his opinion for a unanimous Court, Mr. Justice Holmes wrote that the business being considered was 'giving exhibitions of base ball, which are purely state affairs.' 259 U.S., at 208, 42 S.Ct., at 466. Hence, the Court held that baseball was not within the purview of the antitrust laws. Thirty-one years later, the Court reaffirmed this decision, without re-examining it, in Toolson, a one-paragraph per curiam opinion. Like this case, Toolson involved an attack on the reserve system. The Court said:
95
'The business has . . . been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation.' Id., at 357, 74 S.Ct., at 78.
96
Much more time has passed since Toolson and Congress has not acted. We must now decide whether to adhere to the reasoning of Toolson—i.e., to refuse to re-examine the underlying basis of Federal Baseball Club—or to proceed with a re-examination and let the chips fall where they may.
97
In his answer to petitioner's complaint, the Commissioner of Baseball 'admits that under present concepts of interstage commerce defendants are engaged therein.' App. 40. There can be no doubt that the admission is warranted by today's reality. Since baseball is interstate commerce, if we re-examine baseball's antitrust exemption, the Court's decision in United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955), United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290 (1955), and Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), require that we bring baseball within the coverage of the antitrust laws. See also, Haywood v. National Basketball Assn., 401 U.S. 1204, 91 S.Ct. 672, 28 L.Ed.2d 206 (Douglas, J., in chambers).
98
We have only recently had occasion to comment that:
99
'Antitrust laws in general, and the Sherman Act in particular, are the Magna Charta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. . . . Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy.' United States v. Topco Associates, Inc., 405 U.S. 596, 610, 92 S.Ct. 1126, 1135, 31 L.Ed.2d 515 (1972).
100
The importance of the antitrust laws to every citizen must not be minimized. They are as important to baseball players as they are to football players, lawyers, doctors, or members of any other class of workers. Baseball players cannot be denied the benefits of competition merely because club owners view other economic interests as being more important, unless Congress says so.
101
Has Congress acquiesced in our decisions in Federal Baseball Club and Toolson? I think not. Had the Court been consistent and treated all sports in the same way baseball was treated, Congress might have become concerned enough to take action. But, the Court was inconsistent, and baseball was isolated and distinguished from all other sports. In Toolson the Court refused to act because Congress had been silent. But the Court may have read too much into this legislative inaction.
102
Americans love baseball as they love all sports. Perhaps we become so enamored of athletics that we assume that they are foremost in the minds of legislators as well as fans. We must not forget, however, that there are only some 600 major league baseball players. Whatever muscle they might have been able to muster by combining forces with other athletes has been greatly impaired by the manner in which this Court has isolated them. It is this Court that has made them impotent, and this Court should correct its error.
103
We do not lightly overrule our prior constructions of federal statutes, but when our errors deny substantial federal rights, like the right to compete freely and effectively to the best of one's ability as guaranteed by the antitrust laws, we must admit our error and correct it. We have done so before and we should do so again here. See, e.g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 241, 90 S.Ct. 1583, 1587, 26 L.Ed.2d 199 (1970).4
104
To the extent that there is concern over any reliance interests that club owners may assert, they can be satisfied by making our decision prospective only. Baseball should be covered by the antitrust laws beginning with this case and henceforth, unless Congress decides otherwise.5
105
Accordingly, I would overrule Federal Baseball Club and Toolson and reverse the decision of the Court of Appeals.6
106
This does not mean that petitioner would necessarily prevail, however, Lurking in the background is a hurdle of recent vintage that petitioner still must overcome. In 1966, the Major League Players Association was formed. It is the collective-bargaining representative for all major league baseball players. Respondents argue that the reserve system is now part and parcel of the collective-bargaining agreement and that because it is a mandatory subject of bargaining, the federal labor statutes are applicable, not the federal antitrust laws.7 The lower courts did not rule on this argument, having decided the case solely on the basis of the antitrust exemption.
107
This Court has faced the interrelationship between the antitrust laws and the labor laws before. The decisions make several things clear. First, 'benefits to organized labor cannot be utilized as a cat's-paw to pull employers' chestnuts out of the antitrust fires.' United States v. Women's Sportswear Manufacturers Assn., 336 U.S. 460, 464, 69 S.Ct. 714 (1949). See also Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945). Second, the very nature of a collective-bargaining agreement mandates that the parties be able to 'restrain' trade to a greater degree than management could do unilaterally. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Amalgamated Meat Cutters v. Jewel Tea, 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965); cf., Local 24, etc., Teamsters, etc., of America v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959). Finally, it is clear that some cases can be resolved only by examining the purposes and the competing interests of the labor and antitrust statutes and by striking a balance.
108
It is apparent that none of the prior cases is precisely in point. They involve union-management agreements that work to the detriment of management's competitors. In this case, petitioner urges that the reserve system works to the detriment of labor.
109
While there was evidence at trial concerning the collective-bargaining relationship of the parties, the issues surrounding that relationship have not been fully explored. As one commentary has suggested, this case 'has been litigated with the implications for the institution of collective bargaining only dimly perceived. The labor law issues have been in the corners of the case—the courts below, for example, did not reach them—moving in and out of the shadows like an uninvited guest at a party whom one can't decide either to embrace or expel.'8
110
It is true that in Radovich v. National Football League, supra, the Court rejected a claim that federal labor statutes governed the relationship between a professional athlete and the professional sport. But, an examination of the briefs and record in that case indicates that the issue was not squarely faced. The issue is once again before this Court without being clearly focused. It should, therefore, be the subject of further inquiry in the District Court.
111
There is a surface appeal to respondents' argument that petitioner's sole remedy lies in filing a claim with the National Labor Relations Board, but this argument is premised on the notion that management and labor have agreed to accept the reserve clause. This notion is contradicted, in part, by the record in this case. Petitioner suggests that the reserve system was thrust upon the players by the owners and that the recently formed players' union has not had time to modify or eradicate it. If this is true, the question arises as to whether there would then be any exemption from the antitrust laws in this case. Petitioner also suggests that there are limits to the antitrust violations to which labor and management can agree. These limits should also be explored.
112
In light of these considerations, I would remand this case to the District Court for consideration of whether petitioner can state a claim under the antitrust laws despite the collective-bargaining agreement, and, if so, for a determination of whether there has been an antitrust violation in this case.
1
The reserve system, publicly introduced into baseball contracts in 1887, see Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202—204 (C.C.SDNY 1890), centers in the uniformity of player contracts; the confinement of the player to the club that has him under the contract; the assignability of the player's contract; and the ability of the club annually to renew the contract unilaterally, subject to a stated salary minimum. Thus
A. Rule 3 of the Major League Rules provides in part:
'(a) UNIFORM CONTRACT. To preserve morale and to produce the similarity of conditions necessary to keen competition, the contracts between all clubs and their players in the Major Leagues shall be in a single form which shall be prescribed by the Major League Executive Council. No club shall make a contract different from the uniform contract or a contract containing a non-reserve clause, except with the written approval of the Commissioner. . . .
'(g) TAMPERING. To preserve discipline and competition, and to prevent the enticement of players, coaches, managers and umpires, there shall be no negotiations or dealings respecting employment, either present or prospective, between any player, coach or manager and any club other than the club with which he is under contract or acceptance of terms, or by which he is reserved, or which has the player on its Negotiation List, or between any umpire and any league other than the league with which he is under contract or acceptance of terms, unless the club or league with which he is connected shall have, in writing, expressly authorized such negotiations or dealings prior to their commencement.'
B. Rule 9 of the Major League Rules provides in part:
'(a) NOTICE. A club may assign to another club an existing contract with a player. The player, upon receipt of written notice of such assignment, is by his contract bound to serve the assignee.
'After the date of such assignment all rights and obligations of the
assignor clubs thereunder shall become the rights and obligations of the assignee club . . ..'
C. Rules 3 and 9 of the Professional Baseball Rules contain provisions parallel to those just quoted.
D. The Uniform Player's Contract provides in part:
'4. (a) . . . The Player agrees that, in addition to other remedies, the Club shall be entitled to injunctive and other equitable relief to prevent a breach of this contract by the Player, including, among others, the right to enjoin the Player from playing baseball for any other person or organization during the term of this contract.'
'5. (a). The Player agrees that, while under contract, and prior to expiration of the Club's right to renew this contract, he will not play baseball otherwise than for the Club, except that the Player may participate in post-season games under the conditions prescribed in the Major League Rules. . . .'
'6. (a) The Player agrees that this contract may be assigned by the Club (and reassigned by any assignee Club) to any other Club in accordance with the Major League Rules and the Professional Baseball Rules.'
'10. (a) On or before January 15 (or if a Sunday, then the next preceding business day) of the year next following the last playing season covered by this contract, the Club may tender to the Player a contract for the term of that year by mailing the same to the Player at his address following his signature hereto, or if none be given, then at his last address of record with the Club. If prior to the March 1 next succeeding said January 15, the Player and the Club have not agreed upon the terms of such contract, then on or before 10 days after said March 1, the Club shall have the right by written notice to the Player at said address to renew this contract for the period of one year on the same terms, except that the amount payable to the Player shall be such as the club shall fix in said notice; provided, however, that said amount, if fixed by
a Major League Club, shall be an amount payable at a rate not less than 80% of the rate stipulated for the preceding year.
'(b) The Club's right to renew this contract, as provided in subparagraph (a) of this paragraph 10, and the promise of the Player not to play otherwise than with the Club have been taken into consideration in determining the amount payable under paragraph 2 hereof.'
2
See generally The Baseball Encyclopedia (1969); L. Ritter, The Glory of Their Times (1966); 1 & 2 H. Seymour, Baseball (1960, 1971); 1 & 2 D. Voigt, American Baseball (1966, 1970).
3
These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated.
4
Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:
'I knew a cove who'd never heard of Washington and Lee,
Of Caesar and Napoleon from the ancient jamboree,
But, bli'me, there are queerer things than anything like that,
For here's a cove who never heard of 'Casey at the Bat'!
'Ten million never heard of Keats, or Shelley, Burns or Poe;
But they know 'the air was shattered by the force of Casey's blow';
They never heard of Shakespeare, nor of Dickens, like as not,
But they know the somber drama from old Mudville's haunted lot.
'He never heard of Casey! Am I dreaming? Is it true?
Is fame but windblown ashes when the summer day is through?
Does greatness fade so quickly and is grandeur doomed to die
That bloomed in early morning, ere the dusk rides down the sky?'
'He Never Heard of Casey' Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.
5
'These are the saddest of possible words,
'Tinker to Evers to Chance.'
Trio of bear cubs, and fleeter than birds,
'Tinker to Evers to Chance.'
Ruthlessly pricking our gonfalon bubble,
Making a Giant hit into a double—
Words that are weighty with nothing but trouble:
'Tinker to Evers to Chance."
Franklin Pierce Adams, Baseball's Sad Lexicon.
6
George Bernard Shaw, The Sporting News, May 27, 1943, p. 15, col. 4.
7
Concededly supported by the Major League Baseball Players Association, the players' collective-bargaining representative. Tr. of Oral Arg. 12.
8
The parties agreed that Flood's participating in baseball in 1971 would be without prejudice to his case.
9
'And properly so. Baseball's welfare and future should not be for politically insulated interpreters of technical antitrust statutes but rather should be for the voters through their elected representatives. If baseball is to be damaged by statutory regulation, let the congressman face his constituents the next November and also face the consequences of his baseball voting record.' 443 F.2d, at 272. Cf. Judge Friendly's comments in Salerno v. American League, 429 F.2d 1003, 1005 (CA2 1970), cert. denied, sub nom. Salerno v. Kuhn, 400 U.S. 1001, 91 S.Ct. 462, 27 L.Ed.2d 452 (1971):
'We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days, that the rationale of Toolson is extremely dubious and that, to use the Supreme Court's own adjectives, the distinction between baseball and other professional sports is 'unrealistic,' 'inconsistent' and 'illogical.' . . . While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch.'
10
'What really saved baseball, legally at least, for the next half century was the protective canopy spread over it by the United States Supreme Court's decision in the Baltimore Federal League antitrust suit against Organized Baseball in 1922. In it Justice Holmes, speaking for a unanimous court, ruled that the business of giving baseball exhibitions for profit was not 'trade or commerce in the commonly-accepted use of those words' because 'personal effort, not related to production, is not a subject of commerce'; nor was it interstate, because the movement of ball clubs across state lines was merely 'incidental' to the business. It should be noted that, contrary to what many believe, Holmes did call baseball a business; time and again those who have not troubled to read the text of the decision have claimed incorrectly that the court said baseball was a sport and not a business.' 2 H. Seymour, Baseball 420 (1971).
11
On remand of the Hart case the trial court dismissed the complaint at the close of the evidence. The Second Circuit affirmed on the ground that the plaintiff's evidence failed to establish that the interstate transportation was more than incidental. 12 F.2d 341 (1926). This Court denied certiorari, 273 U.S. 703, 47 S.Ct. 97, 71 L.Ed. 849 (1926).
12
Toolson v. New York Yankees, Inc., 101 F.Supp. 93 (SD Cal.1951), aff'd, 200 F.2d 198 (CA9 1952); Kowalski v. Chandler, 202 F.2d 413 (CA6 1953). See Salerno v. American League, 429 F.2d 1003 (CA2 1970), cert. denied, sub nom. Salerno v. Kuhn, 400 U.S. 1001, 91 S.Ct. 462, 27 L.Ed.2d 452 (1971). But cf. Gardella v. Chandler, 172 F.2d 402 (CA2 1949) (this case, we are advised, was subsequently settled); Martin v. National League Baseball Club, 174 F.2d 917 (CA2 1949).
13
Corbett v. Chandler, 202 F.2d 428 (CA6 1953); Portland Baseball Club, Inc. v. Baltimore Baseball Club, Inc., 282 F.2d 680 (CA9 1960); Niemiec v. Seattle Rainier Baseball Club, Inc., 67 F.Supp. 705 (W.D.Wash.1946). See State v. Milwaukee Braves, Inc., 31 Wis.2d 699, 144 N.W.2d 1, cert. denied, 385 U.S. 990, 87 S.Ct. 598, 17 L.Ed.2d 451 (1966).
14
The case's final chapter is International Boxing Club v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270 (1959).
15
See also Denver Rockets v. All-Pro Management, Inc., 325 F.Supp. 1049, 1060 (C.D.Cal.1971); Washington Professional Basketball Corp. v. National Basketball Assn., 147 F.Supp. 154 (S.D.N.Y.1956).
16
Neville, Baseball and the Antitrust Laws, 16 Fordham L.Rev. 208 (1947); Eckler, Baseball—Sport or Commerce?, 17 U.Chi.L.Rev. 56 (1949); Comment, Monopsony in Manpower: Organized Baseball Meets the Antitrust Laws, 62 Yale L.J. 576 (1953); P. Gregory, The Baseball Player, An Economic Study, c. 19 (1956); Note, The Super Bowl and the Sherman Act: Professional Team Sports and the Antitrust Laws, 81 Harv.L.Rev. 418 (1967); The Supreme Court, 1953 Term, 68 Harv.L.Rev. 105, 136—138 (1954); The Supreme Court, 1956 Term, 71 Harv.L.Rev. 94, 170—173 (1957); Note, 32 Va.L.Rev. 1164 (1946); Note, 24 Notre Dame Law. 372 (1949); Note, 53 Col.L.Rev. 242 (1953); Note, 22 U.Kan. City L.Rev. 173 (1954); Note, 25 Miss.L.J. 270 (1954); Note, 29 N.Y.U.L.Rev. 213 (1954); Note, 105 U.Pa.L.Rev. 110 (1956); Note, 32 Texas L.Rev. 890 (1954); Note, 35 B.U.L.Rev. 447 (1955); Note, 57 Col.L.Rev. 725 (1957); Note, 23 Geo.Wash.L.Rev. 606 (1955); Note, 1 How.L.J. 281 (1955); Note, 26 Miss.L.J. 271 (1955); Note, 9 Sw.L.J. 369 (1955); Note, 29 Temple L.Q. 103 (1955); Note, 29 Tul.L.Rev. 793 (1955); Note, 62 Dick.L.Rev. 96 (1957); Note, 11 Sw.L.J. 516 (1957); Note, 36 N.C.L.Rev. 315 (1958); Note, 35 Fordham L.Rev. 350 (1966); Note, 8 B.C.Ind. & Com.L.Rev. 341 (1967); Note, 13 Wayne L.Rev. 417 (1967); Note, 2 Rutgers-Camden L.J. 302 (1970); Note, 8 San Diego L.Rev. 92 (1970); Note, 12 B.C.Ind. & Com.L.Rev. 737 (1971); Note, 12 Wm. & Mary L.Rev. 859 (1971).
17
Hearings on H.R. 5307 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 85th Cong., 1st Sess. (1957); Hearings on H.R. 10378 and S. 4070 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 85th Cong., 2d Sess. (1958); Hearings on H.R. 2370 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 86th Cong., 1st Sess. (1959) (not printed); Hearings on S. 616 and S. 886 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 1st Sess. (1959); Hearings on S. 3483 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 2d Sess. (1960); Hearings on S. 2391 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 88th Cong., 2d Sess. (1964); S.Rep.No.1303, 88th Cong., 2d Sess. (1964); Hearings on S. 950 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965); S.Rep.No.462, 89th Cong., 1st Sess. (1965). Bills introduced in the 92d Cong., 1st Sess., and bearing on the subject are S. 2599, S. 2616, H.R. 2305, H.R. 11033, and H.R. 10825.
18
Title 15 U.S.C. § 1294 reads:
'Nothing contained in this chapter shall be deemed to change, determine, or otherwise affect the applicability or nonapplicability of the antitrust laws to any act, contract, agreement, rule, course of conduct, or other activity by, between, or among persons engaging in, conducting, or participating in the organized professional team sports of football, baseball, basketball, or hockey, except the agreements to which section 1291 of this title shall apply.' (Emphasis supplied.)
19
Peto v. Madison Square Garden Corp., 1958 Trade Cases, 69,106 (SDNY 1958).
20
Deesen v. Professional Golfers' Assn., 358 F.2d 165 (CA9), cert. denied, 385 U.S. 846, 87 S.Ct. 72, 17 L.Ed.2d 76 (1966).
21
See Brief for Respondent in Federal Baseball, No. 204, O.T.1921, p. 67, and Brief for Respondent in Toolson, No. 18, O.T.1953, p. 30. See also State v. Milwaukee Braves, Inc., 31 Wis.2d 699, 144 N.W.2d 1 (1966), cert. denied, 385 U.S. 990, 87 S.Ct. 598, 17 L.Ed.2d 451 (1966).
22
See Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L.J. 1 (1971), suggesting present-day irrelevancy of the antitrust issue.
1
While I joined the Court's opinion in Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64, I have lived to regret it; and I would now correct what I believe to be its fundamental error.
2
Had this same group boycott occurred in another industry, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741; United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279; or even in another sport, Haywood v. National Basketball Assn., 401 U.S. 1204, 91 S.Ct. 672, 28 L.Ed.2d 206 (Douglas, J., in chambers); Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456; United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290; we would have no difficulty in sustaining petioner's claim.
3
The Court's reliance upon congressional inaction disregards the wisdom of Helvering v. Hallock, 309 U.S. 106, 119 121, 60 S.Ct. 444, 451, 84 L.Ed. 604, where we said:
'Nor does want of specific Congressional repudiations . . . serve as an implied instruction by Congress to us not to reconsider, in the light of new experience . . . those decisions . . .. It would require very persuasive circumstances enveloping Congressional silence to debar this Court from re-examining its own doctrines. . . . Various considerations of parliamentary tactics and strategy might be suggested as reasons for the inaction of . . . Congress, but they would only be sufficient to indicate that we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle.'
And see United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 556-561, 64 S.Ct. 1162, 1175—1178, 88 L.Ed. 1440.
4
This case gives us for the first time a full record showing the reserve clause in actual operation.
1
Letter from Curt Flood to Bowie K. Kuhn, Dec. 24, 1969, App. 37.
2
As Mr. Justice BLACKMUN points out, the reserve system is not novel. It has been employed since 1887. See Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202—204 (C.C.S.D.N.Y.1890). The club owners assert that it is necessary to preserve effective competition and to retain fan interest. The players do not agree and argue that the reserve system is overly restrictive. Before this lawsuit was instituted, the players refused to agree that the reserve system should be a part of the collective-bargaining contract. Instead, the owners and players agreed that the reserve system would temporarily remain in effect while they jointly investigated possible changes. Their activity along these lines has halted pending the outcome of this suit.
3
Petitioner also alleged a violation of state antitrust laws, state civil rights laws, and of the common law, and claimed that he was forced into peonage and involuntary servitude in violation of the Thirteenth Amendment to the United States Constitution. Because I believe that federal antitrust laws govern baseball, I find that state law has been pre-empted in this area. Like the lower courts, I do not believe that there has been a violation of the Thirteenth Amendment.
4
In the past this Court has not hesitated to change its view as to what constitutes interstate commerce. Compare United States v. E. C. Knight Co., 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325 (1895), with Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328 (1948), and United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941).
'The jurist concerned with 'public confidence in, and acceptance of the judicial system' might well consider that, however admirable its resolute adherence to the law as it was, a decision contrary to the public sense of justice as it is, operate, so far as it is known, to diminish respect for the courts and for law itself.' Szanton, Stare Decisis; A Dissenting View, 10 Hastings L.J. 394, 397 (1959).
5
We said recently that '(i)n rare cases, decisions construing federal statutes might be denied full retroactive effect, as for instance where this Court overrules its own construction of a statute . . .' United States v. Estate of Donnelly, 397 U.S. 286, 295, 90 S.Ct. 1033, 1038, 25 L.Ed.2d 312 (1970). Cf. Simpson v. Union Oil Co. of California, 377 U.S. 13, 25, 84 S.Ct. 1051, 1058, 12 L.Ed.2d 98 (1964).
6
The lower courts did not reach the question of whether, assuming the antitrust laws apply, they have been violated. This should be considered on remand.
7
Cf. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941).
8
Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L.J. 1, 22 (1971).
| 78
|
407 U.S. 223
92 S.Ct. 2880
32 L.Ed.2d 704
PENNSYLVANIAv.NEW YORK et al.
No. 40, Orig.
Supreme Court of the United States
June 19, 1972
1
Opinion reported, 407 U.S. 206, 92 S.Ct. 2075, 32 L.Ed.2d 693.
DECREE
2
It is now Ordered, Adjudged, and Decreed as follows:
3
1. Each item of property in question in this case as to which a last known address of the person entitled thereto is shown on the books and records of the defendant, Western Union Telegraph Co., is subject to escheat or custodial taking only by the State of that last known address, as shown on the books and records of defendant, Western Union Telegraph Co., to the extent of that State's power under its own laws, to escheat or take custodially.
4
2. Each item of property in question in this case as to which there is no address of the person entitled thereto shown on the books and records of defendant Western Union Telegraph Co. is subject to escheat or custodial taking only by New York, the State in which Western Union Telegraph Co. was incorporated, to the extent of New York's power under its own laws to escheat or take custodially, subject to the right of any other State to recover such property from New York upon proof that the last known address of the creditor was within that other State's borders.
5
3. Each item of property in question in this case as to which the last known address of the person entitled thereto as shown on the books and records of defendant Western Union Telegraph Co. is in a State the laws of which do not provide for the escheat of such property, is subject to escheat or custodial taking only by New York, the State in which Western Union Telegraph Co. was incorporated, to the extent of New York's power under its own laws to escheat or to take custodially, subject to the right of the State of the last known address to recover the property from New York if and when the law of the State of the last known address makes provisions for escheat or custodial taking of such property.
| 1011
|
407 U.S. 225
92 S.Ct. 2151
32 L.Ed.2d 705
Robert MITCHUM, dba The Book Mart, Appellant,v.Clinton E. FOSTER, Prosecuting Attorney of Bay County, Florida, et al.
No. 70—27.
Argued Dec. 13, 1971.
Decided June 19, 1972.
Syllabus
Title 42 U.S.C. § 1983, which authorizes a suit in equity to redress the deprivation under color of state law 'of any rights, privileges, or immunities secured by the Constitution . . .,' is within that exception of the federal anti-injunction statute, 28 U.S.C. § 2283, which provides that a federal court may not enjoin state court proceedings 'except as expressly authorized by Act of Congress.' And in this § 1983 action, though the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding (cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and companion cases) are not questioned, the District Court is held to have erred in holding that the anti-injunction statute absolutely barred its enjoining a pending state court proceeding under any circumstances whatsoever. Pp. 228—243.
315 F.Supp. 1387, reversed and remanded.
Robert Eugene Smith, Atlanta, Ga., for appellant.
Raymond L. Marky, Tallahassee, Fla., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
The federal anti-injunction statute provides that a federal court 'may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'1 An Act of Congress, 42 U.S.C. § 1983, expressly authorizes a 'suit in equity' to redress 'the deprivation,' under color of state law, 'of any rights, privileges, or immunities secured by the Constitution . . .'2 The question before us is whether this 'Act of Congress' comes within the 'expressly authorized' exception of the anti-injunction statute so as to permit a federal court in a § 1983 suit to grant an injunction to stay a proceeding pending in a state court. This question, which has divided the federal courts,3 has lurked in the background of many of our recent cases, but we have not until today explicitly decided it.4
2
* The prosecuting attorney of Bay County, Florida, brought a proceeding in a Florida court to close down the appellant's bookstore as a public nuisance under the claimed authority of Florida law. The state court entered a preliminary order prohibiting continued operation of the bookstore. After further inconclusive proceedings in the state courts, the appellant filed a complaint in the United States District Court for the Northern District of Florida, alleging that the actions of the state judicial and law enforcement officials were depriving him of rights protected by the First and Fourteenth Amendments. Relying upon 42 U.S.C. § 1983.5 he asked for injunctive and declaratory relief against the state court proceedings, on the ground that Florida laws were being unconstitutionally applied by the state court so as to cause him great and irreparable harm. A single federal district judge issued temporary restraining orders, and a three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284. After a hearing, the three-judge court dissolved the temporary restraining orders and refused to enjoin the state court proceeding, holding that the 'injunctive relief sought here as to the proceedings pending in the Florida courts does not come under any of the exceptions set forth in Section 2283. It is not expressly authorized by Act of Congress, it is not necessary in the aid of this court's jurisdiction and it is not sought in order to protect or effectuate any judgment of this court.' 315 F.Supp. 1387, 1389. An appeal was brought directly here under 28 U.S.C. § 1253,6 and we noted probable jurisdiction. 402 U.S. 941, 91 S.Ct. 1612, 29 L.Ed.2d 109.
II
3
In denying injunctive relief, the District Court relied on this Court's decision in Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234. The Atlantic Coast Line case did not deal with the 'expressly authorized' exception of the anti-injunction statute,7 but the Court's opinion in that case does bring into sharp focus the critical importance of the question now before us. For in that case we expressly rejected he view that the anti-injunction statute merely states a flexible doctrine of comity,8 and made clear that the statute imposes an absolute ban upon the issuance of a federal injunction against a pending state court proceeding, in the absence of one of the recognized exceptions:
4
'On its face the present Act is an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a 'principle of comity,' not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. . . . (We) hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be upheld. . ..' 398 U.S., at 286—287, 90 S.Ct., at 1744.
5
It follows, in the present context, that if 42 U.S.C. § 1983 is not within the 'expressly authorized' exception of the anti-injunction statute, then a federal equity court is wholly without power to grant any relief in a § 1983 suit seeking to stay a state court proceeding. In short, if a § 1983 action is not an 'expressly authorized' statutory exception, the anti-injunction law absolutely prohibits in such an action all federal equitable intervention in a pending state court proceeding, whether civil or criminal, and regardless of how extraordinary the particular circumstances may be.
6
Last Term, in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases,9 the Court dealt at length with the subject of federal judicial intervention in pending state criminal prosecutions. In Younger a three-judge federal district court in a § 1983 action had enjoined a criminal prosecution pending in a California court. In asking us to reverse that judgment, the appellant argued that the injunction was in violation of the federal anti-injunction statute. 401 U.S., at 40, 91 S.Ct., at 748. But the Court carefully eschewed any reliance on the statute in reversing the judgment, basing its decision instead upon what the Court called 'Our Federalism'—upon 'the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.' 401 U.S., at 41, 44, 91 S.Ct., at 749, 750.
7
In Younger, this Court emphatically reaffirmed 'the fundamental policy against federal interference with state criminal prosecutions.' 401 U.S., at 46, 91 S.Ct., at 751. It made clear that even 'the possible unconstitutionality of a statute 'on its face' does not in itself justify an injunction against good-faith attempts to enforce it.' 401 U.S., at 54, 91 S.Ct., at 755. At the same time, however, the Court clearly left room for federal injunctive intervention in a pending state court prosecution in certain exceptional circumstances—where irreparable injury is 'both great and immediate,' 401 U.S., at 46, 91 S.Ct., at 751, where the state law is "flagrantly and patently violative of express constitutional prohibitions," 401 U.S., at 53, 91 S.Ct., at 755, or where there is a showing of 'bad faith, harassment, or . . . other unusual circumstances that would call for equitable relief.' 401 U.S., at 54, 91 S.Ct., at 755. In the companion case of Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701, the Court said that '(o)nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.' 401 U.S., at 85, 91 S.Ct., at 677. See also Dyson v. Stein, 401 U.S. 200, 203, 91 S.Ct. 769, 771, 27 L.Ed.2d 781.
8
While the Court in Younger and its companion cases expressly disavowed deciding the question now before us—whether § 1983 comes within the 'expressly authorized' exception of the anti-injunction statute, 401 U.S., at 54, 91 S.Ct., at 755—it is evident that our decisions in those cases cannot be disregarded in deciding this question. In the first place, if § 1983 is not within the statutory exception, then the anti-injunction statute would have absolutely barred the injunction issued in Younger, as the appellant in that case argued, and there would have been no occasion whatever for the Court to decide that case upon the 'policy' ground of 'Our Federalism.' Secondly, if § 1983 is not within the 'expressly authorized' exception of the anti-injunction statute, then we must overrule Younger and its companion cases insofar as they recognized the permissibility of injunctive relief against pending criminal prosecutions in certain limited and exceptional circumstances. For, under the doctrine of Atlantic Coast Line, the anti-injunction statute would, in a § 1983 case, then be an 'absolute prohibition' against federal equity intervention in a pending state criminal or civil proceeding—under any circumstances whatever.
9
The Atlantic Coast Line and Younger cases thus serve to delineate both the importance and the finality of the question now before us. And it is in the shadow of those cases that the question must be decided.
III
10
The anti-injunction statute goes back almost to the beginnings of our history as a Nation. In 1793, Congress enacted a law providing that no 'writ of injunction be granted (by any federal court) to stay proceedings in any court of a state. . ..' Act of March 2, 1793, 1 Stat. 335. The precise origins of the legislation are shrouded in obscurity,10 but the consistent understanding has been that its basic purpose is to prevent 'needless friction between state and federal courts.' Oklahoma Packing Co. v. Oklahoma Gas & Elec. Co., 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 447. The law remained unchanged until 1874, when it was amended to permit a federal court to stay state court proceedings that interfered with the administration of a federal bankruptcy proceeding.11 The present wording of the legislation was adopted with the enactment of Title 28 of the United States Code in 1948.
11
Despite the seemingly uncompromising language of the anti-injunction statute prior to 1948, the Court soon recognized that exceptions must be made to its blanket prohibition if the import and purpose of other Acts of Congress were to be given their intended scope. So it was that, in addition to the bankruptcy law exception that Congress explicitly recognized in 1874, the Court through the years found that federal courts were empowered to enjoin state court proceedings, despite the anti-injunction statute, in carrying out the will of Congress under at least six other federal laws. These covered a broad spectrum of congressional action: (1) legislation providing for removal of litigation from state to federal courts,12 (2) regislation limiting the liability of ship-owners,13 (3) legislation providing for federal interpleader actions,14 (4) legislation conferring federal jurisdiction over farm mortgages,15 (5) legislation governing federal habeas corpus proceedings,16 and (6) legislation providing for control of prices.17
12
In addition to the exceptions to the anti-injunction statute found to be embodied in these various Acts of Congress, the Court recognized other 'implied' exceptions to the blanket prohibition of the anti-injunction statute. One was an 'in rem' exception, allowing a federal court to enjoin a state court proceeding in order to protect its jurisdiction of a res over which it had first acquired jurisdiction.18 Another was a 'relitigation' exception, permitting a federal court to enjoin relitigation in a state court of issues already decided in federal litigation.19 Still a third exception, more recently developed permits a federal injunction of state court proceedings when the plaintiff in the federal court is the United States itself, or a federal agency asserting 'superior federal interests.'20
13
In Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, the Court in 1941 issued an opinion casting considerable doubt upon the approach to the anti-injunction statute reflected in its previous decisions. The Court's opinion expressly disavowed the 'relitigation' exception to the statute, and emphasized generally the importance of recognizing the statute's basic directive 'of 'hands off' by the federal courts in the use of the injunction to stay litigation in a state court.' 314 U.S., at 132, 62 S.Ct., at 143. The congressional response to Toucey was the enactment in 1948 of the anti-injunction statute in its present form in 28 U.S.C. § 2283, which, as the Reviser's Note makes evident, served not only to overrule the specific holding of Toucey,21 but to restore 'the basic law as generally understood and interpreted prior to the Toucey decision.'22
14
We proceed, then, upon the understanding that in determining whether § 1983 comes within the 'expressly authorized' exception of the anti-injunction statute, the criteria to be applied are those reflected in the Court's decisions prior to Toucey.23 A review of those decisions makes reasonably clear what the relevant criteria are. In the first place, it is evident that, in order to qualify under the 'expressly authorized' exception of the anti-injunction statute, a federal law need not contain an express reference to that statute. As the Court has said, 'no prescribed formula is required; an authorization need not expressly refer to § 2283.' Amalgamated Clothing Workers of America v. Richman Bros. Co., 348 U.S. 511, 516, 75 S.Ct. 452, 455, 99 L.Ed. 600. Indeed, none of the previously recognized statutory exceptions contains any such reference.24 Secondly, a federal law need not expressly authorize an injunction of a state court proceeding in order to qualify as an exception. Three of the six previously recognized statutory exceptions contain no such authorization.25 Thirdly, it is clear that, in order to qualify as an 'expressly authorized' exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding. This is not to say that in order to come within the exception an Act of Congress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti-injunction statute.26 The test, rather, is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding. See Toucey, supra, 314 U.S. at 132—134, 62 S.Ct. at 143—144; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226; Providence & N.Y.S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 599 3 S.Ct. 379, 392, 27 L.Ed. 1038; Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct., 44, 50, 84 L.Ed. 85; Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892.
15
With these criteria in view, we turn to consideration of 42 U.S.C. § 1983.
IV
16
Section 1983 was originally § 1 of the Civil Rights Act of 1871. 17 Stat. 13. It was 'modeled' on § 2 of the Civil Rights Act of 1866, 14 Stat. 27,27 and was enacted for the express purpose of 'enforc(ing) the Provisions of the Fourteenth Amendment.' 17 Stat. 13. The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment.28 As a result of the new structure of law that emerged in the post-Civil War era—and especially of the Fourteenth Amendment, which was its centerpiece the role of the Federal Government as a guarantor of basic federal rights against state power was clearly established. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Zwickler v. Koota, 389 U.S. 241, 245—249, 88 S.Ct. 391, 393—396, 19 L.Ed.2d 444; H. Flack, The Adoption of the Fourteenth Amendment (1908); J. tenBroek, The Anti-Slavery Origins of the Fourteenth Amendment (1951).29 Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.30
17
It is clear from the legislative debates surrounding passage of § 1983's predecessor that the Act was intended to enforce the provisions of the Fourteenth Amendment 'against State action, . . . whether that action be executive, legislative, or judicial.' Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (emphasis supplied). Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.
18
As Representative Lowe stated, the 'records of the (state) tribunals are searched in vain for evidence of effective redress (of federally secured rights) . . .. What less than this (the Civil Rights Act of 1871) will afford an adequate remedy? The Federal Government cannot serve a writ of mandamus upon State Executives or upon State courts to compel them to protect the rights, privileges and immunities of citizens . . .. The case has arisen . . . when the Federal Government must resort to its own agencies to carry its own authority into execution. Hence this bill throws open the doors of the United States courts to those whose rights under the Constitution are denied or impaired.' Cong.Globe, 42d Cong., 1st Sess., 374—376 (1871). This view was echoed by Senator Osborn: 'If the State courts had proven themselves competent to suppress the local disorders, or to maintain law and order, we should not have been called upon to legislate . . .. We are driven by existing facts to provide for the several states in the South what they have been unable to fully provide for themselves; i.e., the full and complete administration of justice in the courts. And the courts with reference to which we legislate must be the United States courts.' Id., at 653. And Representative Perry concluded: 'Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices . . .. (A)ll the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detection. Among the most dangerous things an injured party can do is to appeal to justice.' Id., at App. 78.31
19
Those who opposed the Act of 1871 clearly recognized that the proponents were extending federal power in an attempt to remedy the state courts' failure to secure federal rights. The debate was not about whether the predecessor of § 1983 extended to actions of state courts, but whether this innovation was necessary or desirable.32
20
This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.
V
21
Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century when the anti-injunction statute was enacted. The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.' Ex parte Virginia, 100 U.S., at 346, 25 L.Ed. 676. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a 'suit in equity' as one of the means of redress. And this Court long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person's constitutional rights. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; cf. Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. For these reasons we conclude that, under the criteria established in our previous decisions construing the anti-injunction statute, § 1983 is an Act of Congress that falls within the 'expressly authorized' exception of that law.
22
In so concluding, we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; and its companion cases. They are principles that have been emphasized by this Court many times in the past. Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Beal v. Missouri Pac. R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed 577; Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Williams v. Miller, 317 U.S. 599, 63 S.Ct. 258, 87 L.Ed. 489; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138; Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182. Today we decide only that the District Court in this case was in error in holding that, because of the anti-injunction statute, it was absolutely without power in this § 1983 action to enjoin a proceeding pending in a state court under any circumstances whatsoever.
23
The judgment is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
24
Reversed and remanded.
25
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
26
Mr. Chief Justice BURGER, with whom Mr. Justice WHITE and Mr. Justice BLACKMUN join, concurring.
27
I concur in the opinion of the Court and add a few words to emphasize what the Court is and is not deciding today as I read the opinion. The Court holds only that 28 U.S.C. § 2283, which is an absolute bar to injunctions against state court proceedings in most suits, does not apply to a suit brought under 42 U.S.C. § 1983 seeking an injunction of state proceedings. But, as the Court's opinion has noted, it does nothing to 'question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding.' Ante, at 243. In the context of pending state criminal proceedings, we held in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), that these principles allow a federal court properly to issue an injunction in only a narrow class of circumstances. We have not yet reached or decided exactly how great a restraint is imposed by these principles on a federal court asked to enjoin state civil proceedings Therefore, on remand in this case, it seems to me the District Court, before reaching a decision on the merits of appellant's claim, should properly consider whether general notions of equity or principles of federalism, similar to those invoked in Younger, prevent the issuance of an injunction against the state 'nuisance abatement' proceedings in the circumstances of this case.
1
28 U.S.C. § 2283.
2
The statute provides in full: '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.'
3
Compare Cooper v. Hutchinson, 184 F.2d 119 (CA3) (§ 1983 is an 'expressly authorized' exception), with Baines v. City of Danville, 337 F.2d 579 (CA4) (§ 1983 is not an 'expressly authorized' exception).
4
See Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 1119, 14 L.Ed.2d 22; Cameron v. Johnson, 390 U.S. 611, 613 n. 3, 88 S.Ct. 1335, 1336, 20 L.Ed.2d 182; Younger v. Harris, 401 U.S. 37, 54, 91 S.Ct. 746, 755, 27 L.Ed.2d 669. See also Lunch v. Household Finance Corp., 405 U.S. 538, 556, 92 S.Ct. 1113, 1124, 31 L.Ed.2d 424; Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1.
In Younger, supra, Mr. Justice Douglas was the only member of the Court who took a position on the question now before us. He expressed the view that § 1983 is included in the 'expressly authorized exception to § 2283. . ..' 401 U.S., at 62, 91 S.Ct., at 763. Cf. id., at 54, 91 S.Ct., at 755, L.Ed.2d 701 (Stewart, J., joined by Harlan, J., concurring); Perez v. Ledesma, 401 U.S. 82, 120 n. 14, 91 S.Ct. 674, 694, 27 L.Ed.2d 701 (separate opinion of Brennan, J., joined by White and Marshall, JJ.).
5
Federal jurisdiction was based upon 28 U.S.C. § 1343(3). The statute states in relevant part:
'The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . .'
6
The statute provides: 'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'
7
At issue were the other two exceptions of the anti-injunction statute: 'where necessary in aid of it jurisdiction, or to protect or effectuate its judgments.' Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 288, 90 S.Ct. 1739, 1744, 26 L.Ed.2d 234.
8
See First National Bank & Trust Co. of Racine v. Village of Skokie, 7 Cir., 173 F.2d 1; Baines, 337 F.2d, at 593. See also Taylor & Willis, The Power of Federal Court to Enjoin Proceedings in State Courts, 42 Yale L.J. 1169, 1194 (1933).
9
Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792.
10
'The history of this provision in the Judiciary Act of 1793 is not fully known. We know that on December 31, 1790, Attorney General Edmund Randolph reported to the House of Representatives on desirable changes in the Judiciary Act of 1789. Am.State Papers, Misc., vol. 1, No. 17, pp. 21—36. The most serious question raised by Randolph concerned the arduousness of the circuit duties imposed on the Supreme Court justices. But the Report also suggested a number of amendments dealing with procedural matters. A section of the proposed bill submitted by him provided that 'no injunction in equity shall be granted by a district court to a judgment at law of a State court.' Id., p. 26. Randolph explained that this clause 'will debar the district court from interfering with the judgments at law in the State courts; for if the plaintiff and defendant rely upon the State courts, as far as the judgment, they ought to continue there as they have begun. It is enough to split the same suit into one at law, and another in equity, without adding a further separation, by throwing the common law side of the question into the State courts, and the equity side into the federal courts.' Id., p. 34. The Report was considered by the House sitting as a Committee of the Whole, and then was referred to successive special committees for further consideration. No action was taken until after Chief Justice Jay and his associates wrote the President that their circuit-riding duties were too burdensome. American State Papers, Misc., vol. 1, No. 32, p. 51. In response to this complaint, which was transmitted to Congress, the Act of March 2, 1793, was passed, containing in § 5, inter alia, the prohibition against staying state court proceedings.
'Charles Warren in his article Federal and State Court Interference, 43 Harv.L.Rev. 345, 347, suggests that this provision was the direct consequence of Randolph's report. This seems doubtful, in view of the very narrow purpose of Randolph's proposal, namely, that federal courts of equity should not interfere with the enforcement of judgments at law rendered in the state courts. See Taylor and Willis, The Power of Federal Courts to Enjoin Proceedings in State Courts, 42 Yale L.J. 1169, 1171, n. 14.
'There is no record of any debates over the statute. See 3 Annals of Congress (1791—93). It has been suggested that the provision reflected the then strong feeling against the unwarranted intrusion of federal courts upon state sovereignty. Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440, was decided on February 18, 1793, less than two weeks before the provision was enacted into law. The significance of this proximity is doubtful. Compare Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345, 347—348 with Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 291, 292, 26 S.Ct. 252, 259, 50 L.Ed. 477. Much more probable is the suggestion that the provision reflected the prevailing prejudices against equity jurisdiction. The Journal of William Maclay (1927 ed.), chronicling the proceedings of the Senate while he was one of its members (1789—1791), contains abundant evidence of a widespread hostility to chancery practice. See especially, pp. 92—94, 101—06 (debate on the bill that became Judiciary Act of 1789). Moreover, Senator Ellsworth (soon to become Chief Justice of the United States), the principal draftsman of both the 1789 and 1793 Judiciary Acts, often indicated a dislike for equity jurisdiction. See Brown, Life of Oliver Ellsworth (1905 ed.) 194; Journal of William Maclay (1927 ed.) 103—04; Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 96—100.' Toucey v. New York Life Ins. Co., 314 U.S. 118, 130—132, 62 S.Ct. 139, 86 L.Ed. 100.
See also Note, 38 U.Chi.L.Rev. 612 (1971); 1A J. Moore, Federal Practice 2302 (1965); H. Hart & H. Wechsler, The Federal Courts and the Federal System 1075—1078 (1953); Durfee & Sloss, Federal Injunction Against Proceedings in State Courts: The Life History of a Statute, 30 Mich.L.Rev. 1145 (1932).
11
As so amended, the statute provided that state court proceedings could be enjoined 'where such injunction may be authorized by any law relating to proceedings in bankruptcy.' Rev.Stat. § 720 (1874).
12
See French v. Hay, 22 Wall. 250, 22 L.Ed. 857; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226. The federal removal provisions, both civil and criminal, 28 U.S.C. §§ 1441—1450, provide that once a copy of the removal petition is filed with the clerk of the state court, the 'State court shall proceed no further unless and until the case is remanded.' 28 U.S.C. § 1446(e).
13
See Providence & N.Y.S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 3 S.Ct. 379, 27 L.Ed. 1038. The Act of 1851, 9 Stat. 635, as amended, provides that once a shipowner has deposited with the court an amount equal to the value of his interest in the ship, 'all claims and proceedings against the owner with respect to the matter in question shall cease.' 46 U.S.C. § 185.
14
See Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85. The Interpleader Act of 1926, 44 Stat. 416, as currently written provides that in 'any civil action of interpleader . . . a district court may . . . enter its order restraining (all claimants) . . . from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action.' 28 U.S.C. § 2361.
15
See Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370. The Frazier-Lemke Farm-Mortgage Act, as amended in 1935, 49 Stat. 944, provides that in situations to which it is applicable a federal court shall 'stay all judicial or official proceedings in any court.' 11 U.S.C. § 203(s)(2) (1940 ed.).
16
See Ex parte Royall, 117 U.S. 241, 248—249, 6 S.Ct. 734, 738—739, 26 L.Ed. 868. The Federal Habeas Corpus Act provides that a federal court before which a habeas corpus proceeding is pending may 'stay any proceeding against the person detained in any State court . . . for any matter involved in the habeas corpus proceeding.' 28 U.S.C. § 2251.
17
Section 205(a) of the Emergency Price Control Act of 1942, 56 Stat. 33, provided that the Price Administrator could request a federal district court to enjoin acts that violated or threatened to violate the Act. In Porter v. Dicken, 328 U.S. 252, 66 S.Ct. 1094, 90 L.Ed. 1203, we held that this authority was broad enough to justify an injunction to restrain state court proceedings. Id., at 255, 66 S.T., at 1096. The Emergency Price Control Act was thus considered a congressionally authorized exception to the anti-injunction statute. Ibid.; see also Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. Section 205(a) expired in 1947. Act of July 25, 1946, 60 Stat. 664.
18
See, e.g., Toucey v. New York Life Ins. Co., 314 U.S., at 135—136, 62 S.Ct., at 144—145; Freeman v. Howe, 24 How. 450, 16 L.Ed. 749; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed.2d 226.
19
See, e.g., Toucey, supra, 314 U.S., at 137—141, 62 S.Ct., at 145—148; Dial v. Reynolds, 96 U.S. 340, 24 L.Ed. 644; Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673. See generally 1A J. Moore, Federal Practice 2302—2311 (1965).
20
Leiter Minerals Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267; NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328.
21
The Reviser's Note states in part: 'The exceptions specifically include the words 'to protect or effectuate its judgments,' for lack of which the Supreme Court held that the Federal courts are without power to enjoin relitigation of cases and controversies fully adjudicated by such courts. (See Toucey v. New York Life Insurance Co., 62 S.Ct. 139, 314 U.S. 118, 86 L.Ed. 100. A vigorous dissenting opinion (62 S.Ct. 148 (314 U.S. 141)) notes that at the time of the 1911 revision of the Judicial Code, the power of the courts . . . of the United States to protect their judgments was unquestioned and that the revisers of that code noted no change and Congress intended no change.)' H.R.Rep. No. 308, 80th Cong., 1st Sess., A181—182 (1947).
22
Ibid.
23
Cf. Amalgamated Clothing Workers of America v. Richman Bros. Co., 348 U.S. 511, 521, 75 S.Ct. 452, 458, 99 L.Ed. 600 (dissenting opinion).
24
See nn. 12, 13, 14, 15, 16, and 17, supra.
25
See nn. 12, 13, and 17, supra. The federal courts have found that other Acts of Congress that do not refer to § 2283 or to injunctions against state court proceedings nonetheless come within the 'expressly authorized' language of the anti-injunction statute. See, e.g., Walling v. Black Diamond Coal Mining Co., 59 F.Supp. 348, 351 (WD Ky.) (the Fair Labor Standards Act); Okin v. SEC, 161 F.2d 978, 980 (CA2) (the Public Utility Holding Act); Dilworth v. Riner, 343 F.2d 226, 230 (CA5) (the 1964 Civil Rights Act); Studebaker Corp. v. Gittlin, 360 F.2d 692 (CA2) (the Securities and Exchange Act).
26
Cf. Baines v. City of Danville, 337 F.2d 579 (CA4).
27
See remarks of Representative Shellabarger, chairman of the House Select Committee which drafted the Civil Rights Act of 1871, Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871), and Lynch v. Household Finance Corp., 405 U.S. 538, 545 n. 9, 92 S.Ct. 1113, 1118, 31 L.Ed.2d 424.
28
In addition to proposing the Thirteenth, Fourteenth, and Fifteenth Amendments, Congress, from 1866 to 1875 enacted the following civil rights legisltion: Act of April 9, 1866, 14 Stat. 27; Act of May 31, 1870, 16 Stat. 140; Act of April 20, 1871, 17 Stat. 13; and Act of March 1, 1875, 18 Stat. 335. In 1875, Congress also passed the general federal-question provision, giving federal courts the power to hear suits arising under Art. III, § 2, of the Constitution. Act of March 3, 1875, 18 Stat. 470. This is the predecessor of 28 U.S.C. § 1331.
29
See generally Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323 (1952); Note, 75 Yale L.J. 1007 (1966); F. Frankfurter & J. Landis, The Business of the Supreme Court 65 (1928). As one commentator has put it: 'That statutory plan (of the Fourteenth Amendment and Acts of Congress to enforce it) did supply the means of vindicating those rights (of person and property) through the instrumentalities of the federal government. . . . It did constitute the federal government the protector of the civil rights . . .' TenBroek, at 185. See also United States v. Price, 383 U.S. 787, 801 n. 9, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267; K. Stampp, The Era of Reconstruction 1965).
30
As Representative Shellabarger stated, the Civil Rights Act of 1871 'not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship.' Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871). And as Representative Hoar stated: 'The principal danger that menaces us to-day is from the effort within the States to deprive considerable numbers of persons of the civil and equal rights which the General Government is endeavoring to secure to them.' Cong.Globe, 42d Cong., 1st Sess., 335.
Although, as originally drafted in 1871, § 1983's predecessor protected rights, privileges, or immunities secured by the Constitution, the provision included by the Congress in the Revised Statutes of 1874 was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well. Rev.Stat. § 1979.
31
Representative Coburn stated: 'The United States courts are further above mere local influence than the county courts; their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage; the jurors are taken from the State, and not the neighborhood; they will be able to rise above prejudices or bad passions or terror more easily. . . .' Cong.Globe, 42d Cong., 1st Sess., 460 (1871).
See also id., at Cong.Globe, supra, App. 85 (Rep. Bingham); 321 (Rep. Stoughton); 333—334 (Rep. Hoar); 389 (Rep. Elliot); 394 (Rep. Rainey); 429 (Rep. Beatty); App. 68—69 (Rep. Shellabarger); App. 78 (Rep. Perry); 345 (Sen. Sherman); 505 (Sen. Pratt); 577 (Sen. Carpenter); 651 (Sen. Sumner); 653 (Sen. Osborn); App. 255 (Sen. Wilson). Cf. id., at 697 (Sen. Edmunds).
32
See, e.g., Cong.Globe, 42d Cong., 1st Sess., 361 (Rep. Swann); 385 (Rep. Lewis); 416 (Rep. Biggs); 429 (Rep. McHenry); App. 179 (Rep. Voorhees); 599—600 (Sen. Saulsbury); App. 216 (Sen. Thurman).
| 89
|
407 U.S. 245
92 S.Ct. 2083
32 L.Ed.2d 719
Edward Lee McNEIL, Petitioner,v.DIRECTOR, PATUXENT INSTITUTION.
No. 71—5144.
Argued April 20, 1972.
Decided June 19, 1972.
Syllabus
Petitioner, who was given a five-year sentence, was referred under an ex parte order to the Patuxent Institution for examination to determine whether he should be committed for an indefinite term as a defective delinquent. In this proceeding for post-conviction relief he challenges his confinement after expiration of that sentence as violative of due process. Respondent contends that petitioner's continued confinement is justified until petitioner cooperates with the examining psychiatrists and thus facilitates an assessment of his condition. The trial court denied relief, holding that a person confined under Maryland's Defective Delinquency Law may be detained until the statutory procedures for examination and report have been completed, regardless of whether or not the criminal sentence has expired. Held: in the circumstances of this case, it is a denial of due process to continue to hold petitioner on the basis of an ex parte order committing him to observation without the procedural safeguards commensurate with a long-term commitment, Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435; and without affording him those safeguards his further detention cannot be justified as analogous to confinement for civil contempt or for any other reason. Pp. 247—252.
Reversed.
E. Barrett Prettyman, Jr., Washington, D.C., for petitioner.
Henry R. Lord, Baltimore, Md., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Edward McNeil was convicted of two assaults in 1966, and sentenced to five years' imprisonment. Instead of committing him to prison, the sentencing court referred him to the Patuxent Institution for examination, to determine whether he should be committed to that institution for an indeterminate term under Maryland's Defective Delinquency Law Md.Ann.Code, Art. 31B (1971). No such determination has yet been made, his sentence has expired, and his confinement continues. The State contends that he has refused to cooperate with the examining psychiatrists, that they have been unable to make any valid assessment of his condition, and that consequently he may be confined indefinitely until he cooperates and the institution has succeeded in making its evaluation. He claims that when his sentence expired, the State lost its power to hold him, and that his continued detention violates his rights under the Fourteenth Amendment. We agree.
2
* The Maryland Defective Delinquency Law provides that a person convicted of any felony, or certain misdemeanors, may be committed to the Patuxent Institution for an indeterminate period, if it is judicially determined that he is a 'defective delinquent.' A defective delinquent is defined as
3
'an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.' Md.Ann.Code, Art. 31B, § 5.
4
Defective-delinquency proceedings are ordinarily instituted immediately after conviction and sentencing; they may also be instituted after the defendant has served part of his prison term. §§ 6(b), 6(c).1 In either event, the process begins with a court order committing the prisoner to Patuxent for a psychiatric examination. §§ 6(b), 6(d). The institution is required to submit its report to the court within a fixed period of time. § 7(a).2 If the report recommends commitment, then a hearing must be promptly held, with a jury trial if requested by the prisoner, to determine whether he should be committed as a defective delinquent. § 8. If he is so committed, then the commitment operates to suspend the prison sentence previously imposed. § 9(b).
5
In Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791, several prisoners who had been committed as defective delinquents sought to challenge various aspects of the criteria and procedures that resulted in their commitment; we granted certiorari in that case together with this one, in order to consider together these challenges to the Maryland statutory scheme. For various reasons we decline today to reach those questions, see Murel, supra. But Edward McNeil presents a much more stark and simple claim. He has never been committed as a defective delinquent, and thus he has no cause to challenge the criteria and procedures that control a defective-delinquency hearing. His confinement rests wholly on the order committing him for examination, in preparation for such a commitment hearing. That order was made, not on the basis of an adversary hearing, but on the basis of an ex parte judicial determination that there was 'reasonable cause to believe that the Department may be a Defective Delinquent.'3 Petitioner does not challenge in this Court the power of the sentencing court to issue such an order in the first instance, but he contends that the State's power to hold him on the basis of that order has expired. He filed a petition for state post-conviction relief on this ground, inter alia, pursuant to Md.Ann.Code, Art. 27, § 645A. The trial court denied relief, holding that '(a) person referred to Patuxent under Section 6, Article 31B for the purpose of determining whether or not he is a defective delinquent may be detained in Patuxent until the procedures for such determination have been completed regardless of whether or not the criminal sentence has expired.' App. 35—36. The Court of Appeals of Maryland denied leave to appeal. App. 37—38. We granted certiorari, 404 U.S. 999, 92 S.Ct. 568, 30 L.Ed.2d 552 (1971).
II
6
The State of Maryland asserts the power to confine petitioner indefinitely, without ever obtaining a judicial determination that such confinement is warranted. Respondent advances several distinct arguments in support of that claim.
7
A. First, Respondent contends that petitioner has been committed merely for observation, and that a commitment for observation need not be surrounded by the procedural safeguards (such as an adversary hearing) that are appropriate for a final determination of defective delinquency. Were the commitment for observation limited in duration to a brief period, the argument might have some force. But petitioner has been committed 'for observation' for six years, and on respondent's theory of his confinement there is no reason to believe it likely that he will ever be released. A confinement that is in fact indeterminate cannot rest on procedures designed to authorize a brief period of observation.
8
We recently rejected a similar argument in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), when the State sought to confine indefinitely a defendant who was mentally incompetent to stand trial on his criminal charges. The State sought to characterize the commitment as temporary, and on that basis to justify reduced substantive and procedural safeguards. We held that because the commitment was permanent in its practical effect, it required safeguards commensurate with a long-term commitment. Id., at 723—730, 92 S.Ct., at 1850—1854. The other half of the Jackson argument is equally relevant here. If the commitment is properly regarded as a short-term confinement with a limited purpose, as the respondent suggests, then lesser safeguards may be appropriate, but by the same token, the duration of the confinement must be strictly limited. '(D)ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.' Id., at 738, 92 S.Ct., at 1858. Just as that principle limits the permissible length of a commitment on account of incompetence to stand trial, so it also limits the permissible length of a commitment 'for observation.' We need not set a precise time limit here; it is noteworthy, however, that the Maryland statute itself limits the observation period to a maximum of six months. While the state courts have apparently construed the statute to permit extensions of time, see n. 2, supra, nevertheless the initial legislative judgment provides a useful benchmark. In this case it is sufficient to note that the petitioner has been confined for six years, and there is no basis for anticipating that he will ever be easier to examine than he is today. In these circumstances, it is a denial of due process to continue to hold him on the basis of an ex parte order committing him for observation.
9
B. A second argument advanced by the respondent relies on the claim that petitioner himself prevented the State from holding a hearing on his condition. Respondent contends that, by refusing to talk to the psychiatrists, petitioner has prevented them from evaluating him, and has made it impossible for the State to go forward with evidence at a hearing. Thus, it is argued, his continued confinement is analogous to civil contempt; he can terminate the confinement and bring about a hearing at any time by talking to the examining psychiatrists, and the State has the power to induce his cooperation by confining him.
10
Petitioner claims that he has a right under the Fifth Amendment to withhold cooperation, a claim we need not consider here. But putting that claim to one side, there is nevertheless a fatal flaw in respondent's argument. For if confinement is to rest on a theory of civil contempt, then due process requires a hearing to determine whether petitioner has in fact behaved in a manner that amounts to contempt. At such a hearing it could be ascertained whether petitioner's conduct is willful, or whether it is a manifestation of mental illness, for which he cannot fairly be held responsible. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Civil contempt is coercive in nature, and consequently there is no justification for confining on a civil contempt theory a person who lacks the present ability to comply. Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948). Moreover, a hearing would provide the appropriate forum for resolution of petitioner's Fifth Amendment claim. Finally, if the petitioner's confinement were explicitly premised on a finding of contempt, then it would be appropriate to consider what limitations the Due Process Clause places on the contempt power. The precise contours of that power need not be traced here. It is enough to note that petitioner has been confined, potentially for life, although he has never been determined to be in contempt by a procedure that comports with due process. The contempt analogy cannot justify the State's failure to provide a hearing of any kind.
11
C. Finally, respondent suggests that petitioner is probably a defective delinquent, because most noncooperators are. Hence, it is argued, his confinement rests not only on the purposes of observation, and of penalizing contempt, but also on the underlying purposes of the Defective Delinquency Law. But that argument proves too much. For if the Patuxent staff members were prepared to conclude, on the basis of petitioner's silence and their observations of him over the years, that petitioner is a defective delinquent, then it is not true that he has prevented them from evaluating him. On that theory, they have long been ready to make their report to the court, and the hearing on defective delinquency could have gone forward.
III
12
Petitioner is presently confined in Patuxent without any lawful authority to support that confinement. His sentence having expired, he is no longer within the class of persons eligible for commitment to the Institution as a defective delinquent. Accordingly, he is entitled to be released. The judgment below is reversed, and the mandate shall issue forthwith.
13
Reversed.
14
Mr. Justice DOUGLAS, concurring.
15
This is an action in the Maryland courts for post-conviction relief which was denied, with no court making a report of its decision. The case is here on a petition for writ of certiorari, which we granted. 404 U.S. 999, 92 S.Ct. 567, 30 L.Ed.2d 553. I concur in reversing the judgment below.
16
McNeil was tried and convicted in a Maryland court for assault on a public officer and for assault with intent to rape. He took the stand and denied he had committed the offenses. He had had no prior criminal record. The sentencing judge asked for a psychiatric evaluation of the accused, though neither side at the trial had raised or suggested any psychiatric issues. A medical officer examined him and recommended that he be considered for evaluation and treatment at Patuxent Institution, a state psychiatric agency.
17
The court sentenced McNeil to 'not more than five years' to prison in Hagerstown1 and, without modifying or suspending that sentence, ordered him referred to Patuxent. Under Maryland law a defendant convicted of any felony or certain misdemeanors may be referred to Patuxent for determination whether he is a 'defective delinquent.' Md.Ann.Code, Art. 31B (1971). A 'defective delinquent' is defined in Art. 31B, § 5, as 'an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.'
18
Under Art. 31B, the staff—which includes a psychiatrist, a psychologist, and a physician—shall examine the person and 'state their findings' as to defective delinquency in a written report to the court. Art. 31B, § 7(a). And it is provided that one transferred to Patuxent, the person in question shall remain there 'until such time as the procedures . . . for the determination of whether or not said person is a defective delinquent have been completed, without regard to whether or not the criminal sentence to which he was last sentenced has expired.'2 Art. 31B, § 6(e) (Supp.1971).
19
The examination normally entails psychiatric interviews and evaluation, psychological tests, sociological and social work studies, and review of past history and records, including police, juvenile, penal, and hospital records. Personal interviews include a series of questions to elicit and to determine the past criminal record, and antisocial and criminal behavior of the individual.
20
If the report shows that he should not be classified as a defective delinquent, he is retained in custody under his original sentence with full credit given for the time confined at Patuxent. Art. 31B, § 7(a) (Supp.1971). If the report says that he should be classified as a defective delinquent, a hearing is held, at which the defendant is entitled to counsel and a trial by jury. Art. 31B, § 8.
21
McNeil, though confined at Patuxent beyond the term of five years for which he was sentenced, has never had such a hearing, for he has never been declared a 'defective delinquent.'3 He has not been so declared and on the other hand has not been cleared, because he has refused on at least 15 separate occasions to submit to the psychiatric tests and questions. Nor has he received in the interim any rehabilitative treatment or training. The State, indeed, intends to keep him there indefinitely, as long as he refuses to submit to psychiatric or psychological examinations.4
22
McNeil's refusal to submit to that questioning is not quixotic; it is based on his Fifth Amendment right to be silent. McNeil remains confined without any hearing whatsoever as to whether he has a propensity toward criminal activity and without any hope of having a hearing unless he surrenders his right against self-incrimination.5
23
The Fifth Amendment prohibition against compulsory self-incrimination is applicable to the States by reason of the Fourteenth Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. The protection extends to refusal to answer questions where the person 'has reasonable cause to apprehend danger from a direct answer.' Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118; see Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574. The questioning of McNeil is in a setting and has a goal pregnant with both potential and immediate danger. To be labeled a 'defective delinquent,' McNeil must have demonstrated a 'persistent aggravated antisocial or criminal behavior' and 'a propensity toward criminal activity.' Art. 31B, § 5.
24
McNeil was repeatedly interrogated not only about the crime for which he was convicted but for many other alleged antisocial incidents going back to his spohomore year in high school. One staff member after interviewing McNeil reported: 'He adamantly and vehemently denies, despite the police reports, that he was involved in the offense'; 'Further questioning revealed that he had stolen some shoes but he insisted that he did not know that they were stolen . . .'; 'but in the tenth grade he was caught taking some milk and cookies from the cafeteria'; 'He consistently denies his guilt in all these offenses'; 'He insisted that he was not present at the purse snatching'; 'He was adamant in insisting on this version of the offense despite the police report which was in the brief and which I had available and discussed with him'; 'He continued his denial into a consideration of a juvenile offense . . .'; 'He denies the use of all drugs and narcotics'; '. . . I explained to him that it might be of some help to him if we could understand why he did such a thing but this was to no avail.' Brief for Petitioner 36 n. 43.
25
Some of the questioning of McNeil was at a time when his conviction was on direct appeal or when he was seeking post-conviction relief. Concessions or confessions obtained might be useful to the State on a retrial or might vitiate post-conviction relief. Moreover, the privilege extends to every 'link in a chain of evidence sufficient to connect' the person with a crime. Malloy v. Hogan, 378 U.S., at 13, 84 S.Ct. at 1496. Whether or not a grant of immunity would give the needed protection in this context is irrelevant, because we are advised that there is no such immunity under state laws.
26
Finally, the refusal to answer results in severe sanctions, contrary to the constitutional guarantee.
27
First, the staff refuses to diagnose him, no matter how much information they may have, unless he talks. The result is that he never receives a hearing and remains at Patuxent indefinitely.
28
Second, if there is no report on him, he remains on the receiving tier indefinitely and receives no treatment.
29
Third, if he talks and a report is made and he is committed as a 'defective delinquent,' he is no longer confined for any portion of the original sentence. Art. 31B, § 9(b). If he does not talk, McNeil's sentence continues to run until it expires and yet he is kept at Patuxent indefinitely. We are indeed advised by the record in the Murel case that 20% of Patuxent inmates at that time were serving beyond their expired sentences and of those paroled between 1955 and 1965, 46% had served beyond their expired sentences.
30
Whatever the Patuxent procedures may be called—whether civil or criminal—the result under the Self-Incrimination Clause of the Fifth Amendment is the same. As we said in In re Gault, 387 U.S. 1, 49—50, 87 S.Ct. 1428, 1455—1456, 18 L.Ed.2d 527 there is the threat of self-incrimination whenever there is 'a deprivation of liberty;' and there is such a deprivation whatever the name of the institution, if a person is held against his will.
31
It is elementary that there is a denial of due process when a person is committed or, as here, held without a hearing and opportunity to be heard. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326; Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394.
32
McNeil must be discharged forthwith.
1
But not after he has served all of it. The statute has always provided that no examination may be ordered or held if the person has been released from custody; since 1971 it has always prohibited the examination if the person is within six months of the expiration of sentence. § 6(c), as amended in 1971. The State asserts that about 98% of the referrals to Patuxent are made immediately after conviction. Tr. of Oral Arg. 27; see Respondent's Brief 82 n. 33.
2
The statute originally required the report to be submitted within six months, or before expiration of sentence, whichever later occurs. Since 1971, it has required a report within six months, or three months before expiration of sentence, whichever first occurs. § 7(a), as amended in 1971. The state courts have construed the statute to permit extension of the allowable time, however, in the case of a noncooperative defendant who resists examination. State v. Musgrove, 241 Md. 521, 217 A.2d 247 (1966); Mullen v. Director, 6 Md.App. 120, 250 A.2d 281 (1969).
3
Brief for Petitioner 6 n. 5; see Art. 31B, § 6(b): request for examination is made to court 'on any knowledge or suspicion of the presence of defective delinquency in such person.' It appears that in this case the trial court issued the order sua sponte; prior to sentencing, the court ordered a psychiatric evaluation by its own medical officer, who in turn recommended referral to Patuxent for further evaluation and treatment.
1
Under Maryland law that sentence was subject to statutory reductions for good behavior, industrial or agricultural work, and satisfactory progress in education and vocational courses. Md.Ann.Code, Art. 27, § 700 (1971).
MrNeil would have been eiglible for parole after one-fourth of the term or a little over one year.
2
At the time of McNeil's referral, the Act required that the report be filed no later than six months from the date he was transferred to Patuxent or before expiration of his sentence, whichever last occurred. Md.Ann.Code, Art. 31B, § 7(a) (1957 ed., Supp.1966). An amendment effective July 1, 1971, required that the report be filed no later than six months from the date he was transferred to Patuxent or three months before expiration of his sentence, whichever occurs first. Art. 31B, § 7(a) (Supp.1971).
3
Detention beyond the expiration of courtimposed sentences occurs in Communist China where 'public security organs (have) the authority to impose as well as administer punishment' and 'the discretionary power to extend the duration of imprisonment beyond the original sentences.' Shao-chuan Leng, Justice in Communist China 34 (1967).
4
In the District Court proceedings in Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791, Dr. Boslow, the Director of Patuxent, testified:
'(The Court) . . . Take the case of a person who is referred for diagnosis and he fails, let us say, 100 per cent, to cooperate; he won't talk to anybody, he won't undergo any tests, he won't participate, though I don't think he gets group therapy.
'(Dr. Boslow) No. sir.
'(The Court) But he will do absolutely nothing and will take no advantage of whatever opportunity if any there may be.
'He, therefore, assuming that the law is valid, and assuming that the administration in that respect is supportable, could he remain there indefinitely unclassified? Is that correct?
'(Dr. Boslow) Under the present state of things, yes.'
5
As stated in a provocative and searching study in Virginia,
'Certainly, a prisoner is not entitled to all the constitutional rights enjoyed by free citizens, but the burden of showing what restrictions are necessary for the preservation of prison order should fall upon prison officials. Widespread, sweeping denials of freedom should not be tolerated. Ideally, the legislative and executive branches of government should decided the extent to which liberty must be denied. No organ of government is better suited than the legislature to consider the penological developments of the last few decades in order to determine the extent to which restrictive practices are warranted. But after legislative command or in its absence, the courts must decide whether the balance of competing interests effected by legislative compromise or executive fiat comports with specific constitutional guarantees and traditional notions of due process. In this context the 'hands-off doctrine' has no place. The judiciary functions as more than a final arbiter; it has a responsibility for educating the public and, where it fails to act, it functions to legitimize the status quo. The simple failure of the courts to review prison conditions blunts the success of important constitutional inquiries, impedes the flow of information and encourages abuse.' Hirschkop & Millemann, The Unconstitutionality of Prison Life, 55 Val.L.Rev. 795, 835—837 (1969).
| 34
|
407 U.S. 297
92 S.Ct. 2125
32 L.Ed.2d 752
UNITED STATES, Petitioner,v.UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OF MICHIGAN, SOUTHERNDIVISION, et al.; Lawrence Robert 'Pun' PLAMONDON et al., Real Parties inInterest.
No. 70—153.
Argued Feb. 24, 1972.
Decided June 19, 1972.
Syllabus
The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of 'gather(ing) intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.' On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. § 2511(3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against 'any other clear and present danger to the structure or existence of the Government.' The Government relies on § 2511(3) in support of its contention that 'in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances withour prior judicial approval.' Held:
1. Section 2511(3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301—308.
2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 323—324.
(a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314—315.
(b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate. Pp. 316—318.
(c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318—321.
6 Cir., 444 F.2d 651, affirmed.
Robert C. Mardian, Pasadena, Cal., for petitioner.
William T. Gossett, Detroit, Mich., for respondents United States District Court for the Eastern District of Mich. and District Judge Damon J. Keith.
Arthur Kinoy, Newark, N.J., for respondents John Sinclair, Lawrence 'Pun' Plamondon and John Waterhouse Forrest.
Mr. Justice POWELL delivered the opinion of the Court.
1
The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees,1 without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion.
2
This case arises from a criminal proceeding in the United States District Court for the Eastern District of Michigan, in which the United States charged three defendants with conspiracy to destroy Government property in violation of 18 U.S.C. § 371. One of the defendants, Plamondon, was charged with the dynamite bombing of an office of the Central Intelligence Agency in Ann Arbor, Michigan.
3
During pretrial proceedings, the defendants moved to compel the United States to disclose certain electronic surveillance information and to conduct a hearing to determine whether this information 'tainted' the evidence on which the indictment was based or which the Government intended to offer at trial. In response, the Government filed an affidavit of the Attorney General, acknowledging that its agents had overheard conversations in which Plamondon had participated. The affidavit also stated that the Attorney General approved the wiretaps 'to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.'2 The logs of the surveillance were filed in a sealed exhibit for in camera inspection by the District Court.
4
On the basis of the Attorney General's affidavit and the sealed exhibit, the Government asserted that the surveillance was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security. The District Court held that the surveillance violated the Fourth Amendment, and ordered the Government to make full disclosure to Plamondon of his overheard conversations. 321 F.Supp. 1074 (ED Mich.1971).
5
The Government then filed in the Court of Appeals for the Sixth Circuit a petition for a writ of mandamus to set aside the District Court order, which was stayed pending final disposition of the case. After concluding that it had jurisdiction,3 that court held that the surveillance was unlawful and that the District Court had properly required disclosure of the overheard conversations, 444 F.2d 651 (1971). We granted certiorari, 403 U.S. 930, 91 S.Ct. 2255, 29 L.Ed.2d 708.
6
* Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510—2520, authorizes the use of electronic surveillance for classes of crimes carefully specified in 18 U.S.C. § 2516. Such surveillance is subject to prior court order. Section 2518 sets forth the detailed and particularized application necessary to obtain such an order as well as carefully circumscribed conditions for its use. The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression. Much of Title III was drawn to meet the constitutional requirements for electronic surveillance enunciated by this Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
7
Together with the elaborate surveillance requirements in Title III, there is the following proviso, 18 U.S.C. § 2511(3):
8
'Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.' (Emphasis supplied.)
9
The Government relies on § 2511(3). It argues that 'in excepting national security surveillances from the Act's warrant requirement Congress recognized the President's authority to conduct such surveillances without prior judicial approval.' Brief for United States 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case.
10
We think the language of § 2511(3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that:
11
'Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . .'
12
Against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers—among other things—to protection 'against actual or potential attack or other hostile acts of a foreign power.' But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral.
13
Section 2511(3) certainly confers no power, as the language is wholly inappropriate for such a purpose. It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them. This view is reinforced by the general context of Title III. Section 2511(1) broadly prohibits the use of electronic surveillance '(e)xcept as other wise specifically provided in this chapter.' Subsection (2) thereof contains four specific exceptions. In each of the specified exceptions, the statutory language is as follows:
14
'It shall not be unlawful . . . to intercept' the particular type of communication described.4
15
The language of subsection (3), here involved, is to be contrasted with the language of the exceptions set forth in the preceding subsection. Rather than stating that warrantless presidential uses of electronic surveillance 'shall not be unlawful' and thus employing the standard language of exception, subsection (3) merely disclaims any intention to 'limit the constitutional power of the President.'
16
The express grant of authority to conduct surveillances is found in § 2516, which authorizes the Attorney General to make application to a federal judge when surveillance may provide evidence of certain offenses. These offenses are described with meticulous care and specificity.
17
Where the Act authorizes surveillance, the procedure to be followed is specified in § 2518. Subsection (1) thereof requires application to a judge of competent jurisdiction for a prior order of approval, and states in detail the information required in such application.5 Subsection (3) prescribes the necessary elements of probable cause which the judge must find before issuing an order authorizing an interception. Subsection (4) sets forth the required contents of such an order. Subsection (5) sets strict time limits on an order. Provision is made in subsection (7) for 'an emergency situation' found to exist by the Attorney General (or by the principal prosecuting attorney of a State) 'with respect to conspiratorial activities threatening the national security interest.' In such a situation, emergency surveillance may be conducted 'if an application for an order approving the interception is made . . . within forty-eight hours.' If such an order is not obtained, or the application therefor is denied, the interception is deemed to be a violation of the Act.
18
In view of these and other interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act. We therefore think the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances.6
19
The legislative history of § 2511(3) supports this interpretation. Most relevant is the colloquy between Senators Hart, Holland, and McClellan on the Senate floor:
20
'Mr. Holland. . . . The section (2511(3)) from which the Senator (Hart) has read does not affirmatively give any power. . . . We are not affirmatively conferring any power upon the President. We are simply saying that nothing herein shall limit such power as the President has under the Constitution. . . . We certainly do not grant him a thing.
21
'There is nothing affirmative in this statement.
22
'Mr. McClellan. Mr. President, we make it understood that we are not trying to take anything away from him.
23
'Mr. Holland. The Senator is correct.
24
'Mr. Hart. Mr. President, there is no intention here to expand by this language a constitutional power. Clearly we could not do so.
25
'Mr. McClelland. Even though intended, we could not do so.
26
'Mr. Hart. . . . However, we are agreed that this language should not be regarded as intending to grant any authority, including authority to put a bug on, that the President does not have now.
27
'In addition, Mr. President, as I think our exchange makes clear, nothing in section 2511(3) even attempts to define the limits of the President's national security power under present law, which I have always found extremely vague . . . Section 2511(3) merely says that if the President has such a power, then its exercise is in no way affected by title III.'7 (Emphasis supplied.) One could hardly expect a clearer expression of congressional neutrality. The debate above explicitly indicates that nothing in § 2511(3) was intended to expand or to contract or to define whatever presidential surveillance powers existed in matters affecting the national security. If we could accept the Government's characterization of § 2511(3) as a congressionally prescribed exception to the general requirement of a warrant, it would be necessary to consider the question of whether the surveillance in this case came within the exception and, if so, whether the statutory exception was itself constitutionally valid. But viewing § 2511(3) as a congressional disclaimer and expression of neutrality, we hold that the statute is not the measure of the executive authority asserted in this case. Rather, we must look to the constitutional powers of the President.
II
28
It is important at the outset to emphasize the limited nature of the question before the Court. This case raises no constitutional challenge to electronic surveillance as specifically authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Nor is there any question or doubt as to the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest. 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). Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were 'deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government' (emphasis supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power.8
29
Our present inquiry, though important, is therefore a narrow one. It addresses a question left open by Katz, supra, 389 U.S., at 358 n. 23, 88 S.Ct., at 515:
30
'Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security . . ..'
31
The determination of this question requires the essential Fourth Amendment inquiry into the 'reasonableness' of the search and seizure in question, and the way in which that 'reasonableness' derives content and meaning through reference to the warrant clause. Coolidge v. New Hampshire, 403 U.S. 443, 473—484, 91 S.Ct. 2022, 2042—2047, 29 L.Ed.2d 564 (1971).
32
We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, § 1, of the Constitution, to 'preserve, protect and defend the Constitution of the United States.' Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President through the Attorney General—may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government.9 The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946.10 Herbert Brownell, Attorney General under President Eisenhower, urged the use of electronic surveillance both in internal and international security matters on the grounds that those acting against the Government
33
'turn to the telephone to carry on their intrigue. The success of their plans frequently rests upon piecing together shreds of information received from many sources and many nests. The participants in the conspiracy are often dispersed and stationed in various strategic positions in government and industry throughout the country.'11
34
Though the Government and respondents debate their seriousness and magnitude, threats and acts of sabotage against the Government exist in sufficient number to justify investigative powers with respect to them.12 The covertness and complexity of potential unlawful conduct against the Government and the necessary dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory instrument in certain circumstances. The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its lawabiding citizens.
35
It has been said that '(t)he most basic function of any government is to provide for the security of the individual and of his property.' Miranda v. Arizona, 384 U.S. 436, 539, 86 S.Ct. 1602, 1661, 16 L.Ed.2d 694 (1966) (White, J., dissenting). And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. As Chief Justice Hughes reminded us in Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941):
36
'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.'
37
But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development—even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens.13 We look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs 'not only the seizure of tangible items, but extends as well to the recording of oral statements . . . without any 'technical trespass under . . . local property law." Katz, supra, 389 U.S., at 353, 88 S.Ct., at 512. That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails14 necessitate the application of Fourth Amendment safeguards.
38
National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of 'ordinary' crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. 'Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power,' Marcus v. Search Warrants etc., 367 U.S. 717, 724, 81 S.Ct. 1708, 1712, 6 L.Ed.2d 1127 (1961). History abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on § 2511(3):
39
'As I read it—and this is my fear—we are saying that the President, on his motion, could declare—name your favorite poison—draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government.'15
40
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
III
41
As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and the free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.
42
Though the Fourth Anendment speaks broadly of 'unreasonable searches and seizures,' the definition of 'reasonableness' turns, at least in part, on the more specific commands of the warrant clause. Some have argued that '(t)he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable,' United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950).16 This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead language. Rather, it has been
43
'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' who are a party of any system of law enforcement.' Coolidge v. New Hampshire, 403 U.S., at 481, 91 S.Ct., at 2046.
44
See also United States v. Rabinowitz, supra, 339 U.S., at 68, 70 S.Ct., at 445 (Frankfurter, J., dissenting); Davis v. United States, 328 U.S. 582, 604, 66 S.Ct. 1256, 1266, 90 L.Ed. 1453 (1946) (Frankfurter, J. dissenting).
45
Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. 'It is not fit,' said Mansfield, 'that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.' Leach v. Three of the King's Messengers, 19 How.St.Tr. 1001, 1027 (1765).
46
Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a 'neutral and detached magistrate.' Coolidge v. New Hampshire, supra, 403 U.S. at 453, 91 S.Ct. at 2031; Katz v. United States, supra, 389 U.S., at 356, 88 S.Ct. at 514. The further requirement of 'probable cause' instructs the magistrate that baseless searches shall not proceed.
47
These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359—360, 88 S.Ct. at 515—516 (Douglas, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.17
48
It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court 'has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.' Katz, supra, at 356 357, 88 S.Ct. at 514. The Fourth Amendment contemplates a prior judicial judgment,18 not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B.A.J. 943—944 (1963). The independent check upon executive discretion is not satisfied, as the Government argues, by 'extremely limited' post-surveillance judicial review.19 Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).
49
It is true that there have been some exceptions to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). But those exceptions are few in number and carefully delineated, Katz, supra, 389 U.S., at 357, 88 S.Ct., at 514; in general, they serve the legitimate needs of law enforcement officers to protect their own well-being and preserve evidence from destruction. Even while carving out those exceptions, the Court has reaffirmed the principle that the 'police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure,' Terry v. Ohio, supra, 392 U.S., at 20, 88 S.Ct., at 1879; Chimel v. California, supra, 395 U.S., at 762, 89 S.Ct., at 2039.
50
The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions. It is said that this type of surveillance should not be subject to traditional warrant requirements which were established to govern investigation of criminal activity, not ongoing intelligence gathering. Brief for United States 15—16, 23—24; Reply Brief for United States 2—3.
51
The Government further insists that courts 'as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security.' These security problems, the Government contends, involve 'a large number of complex and subtle factors' beyond the competence of courts to evaluate. Reply Brief for United States 4.
52
As a final reason for exemption from a warrant requirement, the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances 'would create serious potential dangers to the national security and to the lives of informants and agents. . . . Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater 'danger of leaks . . ., because in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be apprised of the nature' of the surveillance.' Brief for United States 24—25.
53
These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government's position.
54
But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
55
We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of 'ordinary crime.' If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.
56
Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, §§ 2516(1)(a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance.
57
Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.
IV
58
We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressedAnd express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.20 Nor does our decision rest on the language of § 2511(3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security.
59
Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of 'ordinary crime.' The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.
60
Given those potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. As the Court said in Camara v. Municipal Court, 387 U.S. 523, 534—535, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967):
61
'In cases in which the Fourth Amendment requires that a warrant to search be obtained, 'probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. . . . In determining whether a particular inspection is reasonable and thus in determining whether there is probable cause to issue a warrant for that inspection—the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.'
62
It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in § 2518.
63
The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.
V
64
As the surveillance of Plamondon's conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), is controlling and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman, 'the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect.' 394 U.S., at 185, 89 S.Ct., at 973.21
65
The judgment of the Court of Appeals is hereby affirmed.
66
Affirmed.
67
THE CHIEF JUSTICE concurs in the result.
68
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
69
Mr. Justice DOUGLAS, concurring.
70
While I join in the opinion of the Court, I add these words in support of it.
71
This is an important phase in the campaign of the police and intelligence agencies to obtain exemptions from the Warrant Clause of the Fourth Amendment. For, due to the clandestine nature of electronic eavesdropping, the need is acute for placing on the Government the heavy burden to show that 'exigencies of the situation (make its) course imperative.'1 Other abuses, such as the search incident to arrest, have been partly deterred by the threat of damage actions against offending officers,2 the risk of adverse publicity, or the possibility of reform through the political process. These latter safeguards, however, are ineffective against lawless wiretapping and 'bugging' of which their victims are totally unaware. Moreover, even the risk of exclusion of tainted evidence would here appear to be of negligible deterrent value inasmuch as the United States frankly concedes that the primary purpose of these searches is to fortify its intelligence collage rather than to accumulate evidence to support indictments and convictions. If the Warrant Clause were held inapplicable here, then the federal intelligence machine would literally enjoy unchecked discretion.
72
Here, federal agents wish to rummage for months on end through every conversation, no matter how intimate or personal, carried over selected telephone lines, simply to seize those few utterances which may add to their sense of the pulse of a domestic underground.
73
We are told that one national security wiretap lasted for 14 months and monitored over 900 conversations. Senator Edward Kennedy found recently that 'warrantless devices accounted for an average of 78 to 209 days of listening per device, as compared with a 13-day per device average for those devices installed under court order.'3 He concluded that the Government's revelations posed 'the frightening possibility that the conversations of untold thousands of citizens of this country are being monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps years at a time.'4 Even the most innocent and random caller who uses or telephones into a tapped line can become a flagged number in the Government's data bank. See Laird v. Tatum, 1971 Term, No. 71—288.
74
Such gross invasions of privacy epitomize the very evil to which the Warrant Clause was directed. This Court has been the unfortunate witness to the hazards of police intrusions which did not receive prior sanction by independent magistrates. For example, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, entire homes were ransacked pursuant to warrantless searches. Indeed, in Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, the entire contents of a cabin, totaling more than 800 items (such as '1 Dish Rag')5 were seized incident to an arrest of its occupant and were taken to San Francisco for study by FBI agents. In a similar case, Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728, police, without a warrant, searched an arrestee's house for three hours, eventually seizing 'several thousand articles, including books, magazines, catalogues, mailing lists, private correspondence (both open and unopened), photographs, drawings, and film.' Id., at 815, 89 S.Ct., at 2052. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, federal agents 'without a shadow of authority' raided the offices of one of the petitioners (the proprietors of which had earlier been jailed) and 'made a clean sweep of all the books, papers and documents found there.' Justice Holmes, for the Court, termed this tactic an 'outrage.' Id., at 385, 390, 391, 40 S.Ct., at 182. In Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431, state police seized more than 2,000 items of literature including the writings of Mr. Justice Black, pursuant to a general search warrant issued to inspect an alleged subversive's home.
75
That 'domestic security' is said to be involved here does not draw this case outside the mainstream of Fourth Amendment law. Rather, the recurring desire of reigning officials to employ dragnet techniques to intimidate their critics lies at the core of that prohibition. For it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment. In Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807, decided in 1765, one finds a striking parallel to the executive warrants utilized here. The Secretary of State had issued general executive warrants to his messengers authorizing them to roam about and to seize libelous material and libellants of the sovereign. Entick, a critic of the Crown, was the victim of one such general search during which his seditious publications were impounded. He brought a successful damage action for trespass against the messengers. The verdict was sustained on appeal. Lord Camden wrote that if such sweeping tactics were validated, then 'the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.' Id., at 1063. In a related and similar proceeding, Huckle v. Money, 2 Wils. K.B. 206, 207, 95 Eng.Rep. 768, 769 (1763), the same judge who presided over Entick's appeal held for another victim of the same despotic practice, saying '(t)o enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition . . .' See also Wilkes v. Wood, 19 How.St.Tr. 1153, 98 Eng.Rep. 489 (1763). As early as Boyd v. United States, 116 U.S. 616, 626, 6 S.Ct. 524, 530, 29 L.Ed. 746, and as recently as Stanford v. Texas, supra, 379 U.S. at 485—486, 85 S.Ct. at 511 512; Berger v. New York, 388 U.S. 41, 49—50, 87 S.Ct. 1873, 1879, 18 L.Ed.2d 1040 and Coolidge v. New Hampshire, supra, 403 U.S., at 455 n. 9, 91 S.Ct., at 2032, the tyrannical invasions described and assailed in Entick, Huckle, and Wilkes, practices which also were endured by the colonists,6 have been recognized as the primary abuses which ensured the Warrant Clause a prominent place in our Bill of Rights. See J. Landynski, Search and Seizure and the Supreme Court 28—48 (1966). N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 43—78 (1937); Note, Warrantless Searches In Light of Chimel: A Return To The Original Understanding, 11 Ariz.L.Rev. 457, 460—476 (1969).
76
As illustrated by a flood of cases before us this Term, e.g., Laird v. Tatum, No. 71—288; Gelbard v. United States, No. 71—110; United States v. Egan, No. 71—263; United States v. Caldwell, No. 70—57; United States v. Gravel, No. 71—1026; Kleindienst v. Mandel, No. 71—16; we are currently in the throes of another national seizure of paranoia, resembling the hysteria which surrounded the Alien and Sedition Acts, the Palmer Raids, and the McCarthy era. Those who register dissent or who petition their governments for redress are subjected to scrutiny by grand juries,7 by the FBI,8 or even by the military.9 Their associates are interrogated. Their homes are bugged and their telephones are wiretapped. They are befriended by secret government informers.10 Their patriotism and loyalty are questioned.11 Senator Sam Ervin, who has chaired hearings on military surveillance of civilian dissidents, warns that 'it is not an exaggeration to talk in terms of hundreds of thousands of . . . dossiers.'12
77
Senator Kennedy, as mentioned supra, found 'the frightening possibility that the conversations of untold thousands are being monitored on secret devices.' More than our privacy is implicated. Also at stake is the reach of the Government's power to intimidate its critics.
78
When the Executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology of this Court's long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients.13 As Justice Brandeis said, concurring in Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648, 71 L.Ed. 1095 'Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.' Chief Justice Warren put it this way in United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 423, 19 L.Ed.2d 508; '(T)his concept of 'national defense' cannot be deemed an end in itself, justifying any . . . power designed to promote such a goal. Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which (make) the defense of the Nation worthwhile.'
79
The Warrant Clause has stood as a barrier against intrusions by officialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives' most intimate conversations to be pillaged then why could not their abodes or mail be secretly searched by the same authority? To defeat so terrifying a claim of inherent power we need only stand by the enduring values served by the Fourth Amendment. As we stated last Term in Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564: '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 . . . a right of personal security against arbitrary intrusions . . . 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.' We have as much or more to fear from the erosion of our sense of privacy and independence by the omnipresent electronic ear of the Government as we do from the likelihood that fomenters of domestic upheaval will modify our form of governing.14
Page 334
80
APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING
FEDERAL WIRETAPPING AND BUGGING 1969—1970
Court Ordered Executive Ordered
Devices Devices
Days in Use
Days in Minimum Maximum
Year Number Use Number (Rounded) (Rounded)
1969 30 462 94 8,100 20,800
1970 180 2,363 113 8,100 22,600
Ratio of Days Used Average Days in Use
Executive Ordered: Per Device
Court Ordered Court Executive Ordered
Ordered Devices
Year Minimum Maximum Devices Minimum Maximum
1969 17.5* 45.0* 15.4 86.2 221.3
1970 3.4 9.6 13.1 71.7 200.0
81
Mr. Justice WHITE, concurring in the judgment.
82
This case arises out of a two-count indictment charging conspiracy to injure and injury to Government property. Count I charged Robert Plamondon and two codefendants with conspiring with a fourth person to injure Government property with dynamite. Count II charged Plamondon alone with dynamiting and injuring Government property in Ann Arbor, Michigan. The defendants moved to compel the United States to disclose, among other things, any logs and records of electronic surveillance directed at them, at unindicted coconspirators, or at any premises of the defendants or coconspirators. They also moved for a hearing to determine whether any electronic surveillance disclosed had tainted the evidence on which the grand jury indictment was based and which the Government intended to use at trial. They asked for dismissal of the indictment if such taint were determined to exist. Opposing the motion, the United States submitted an affidavit of the Attorney General of the United States disclosing that '(t)he defendant Plamondon has participated in conversations which were overheard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government,' the wiretaps having been expressly approved by the Attorney General. The records of the intercepted conversations and copies of the memorandum reflecting the Attorney General's approval were submitted under seal and solely for the Court's in camera inspection.1
83
As characterized by the District Court, the position of the United States was that the electronic monitoring of Plamondon's conversations without judicial warrant was a lawful exercise of the power of the President to safeguard the national security. The District Court granted the motion of defendants, holding that the President had no constitutional power to employ electronic surveillance without warrant to gather information about domestic organizations. Absent probable cause and judicial authorization, the challenged wiretap infringed Plamondon's Fourth Amendment rights. The court ordered the Government to disclose to defendants the records of the monitored conversations and directed that a hearing be held to determine the existence of taint either in the indictment or in the evidence to be introduced at trial.
84
The Government's petition for mandamus to require the District Court to vacate its order was denied by the Court of Appeals. 444 F.2d 651 (CA6 1971). That court held that the Fourth Amendment barred warrantless electronic surveillance of domestic organizations even if at the direction of the President. It agreed with the District Court that because the wiretaps involved were therefore constitutionally infirm, the United States must turn over to defendants the records of overheard conversations for the purpose of determining whether the Government's evidence was tainted.
85
I would affirm the Court of Appeals but on the statutory ground urged by defendant-respondents (Brief 115) without reaching or intimating any views withrespect to the constitutional issue decided by both the District Court and the Court of Appeals.
86
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510—2520, forbids, under pain of criminal penalties and civil actions for damages, any wiretapping or eavesdropping not undertaken in accordance with specified procedures for obtaining judicial warrants authorizing the surveillance. Section 2511(1) establishes a general prohibition against electronic eavesdropping '(e)xcept as otherwise specifically provided' in the statute. Later sections provide detailed procedures for judicial authorization of official interceptions of oral communications; when these procedures are followed the interception is not subject to the prohibitions of § 2511(1). Section 2511(2), however, specifies other situations in which the general prohibitions of § 2511(1) do not apply. In addition, § 2511(3) provides that:
87
'Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.'
88
It is this subsection that lies at the heart of this case.
89
The interception here was without judicial warrant, it was not covered by the provisions of § 2511(2) and it is too clear for argument that it is illegal under § 2511(1) unless it is saved by § 2511(3). The majority asserts that § 2511(3) is a 'disclaimer' but not an 'exception.' But however it is labeled, it is apparent from the face of the section and its legislative history that if this interception is one of those described in § 2511(3), it is not reached by the statutory ban on unwarranted electronic eavesdropping.2
90
The defendants in the District Court moved for the production of the logs of any electronic surveillance to which they might have been subjected. The Government responded that conversations of Plamondon had been intercepted but took the position that turnover of surveillance records was not necessary because the interception complied with the law. Clearly, for the Government to prevail it was necessary to demonstrate, first, that the interception involved was not subject to the statutory requirement of judicial approval for wiretapping because the surveillance was within the scope of § 2511(3); and, secondly, if the Act did not forbid the warrantless wiretap, that the surveillance was consistent with the Fourth Amendment.
91
The United States has made no claim in this case that the statute may not constitutionally be applied to the surveillance at issue here.3 Nor has it denied that to comply with the Act the surveillance must either be supported by a warrant or fall within the bounds of the exceptions provided by § 2511(3). Nevertheless, as I read the opinions of the District Court and the Court of Appeals, neither court stopped to inquire whether the challenged interception was illegal under the statute but proceeded directly to the constitutional issue without adverting to the time-honored rule that courts should abjure constitutional issues except where necessary to decision of the case before them. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936) (concurring opinion). Because I conclude that on the record before us the surveillance undertaken by the Government in this case was illegal under the statute itself, I find it unnecessary, and therefore improper, to consider or decide the constitutional questions which the courts below improvidently reached.
92
The threshold statutory question is simply put: Was the electronic surveillance undertaken by the Government in this case a measure deemed necessary by the President to implement either the first or second branch of the exception carved out by § 2511(3) to the general requirement of a warrant?
93
The answer, it seems to me, must turn on the affidavit of the Attorney General offered by the United States in opposition to defendants' motion to disclose surveillance records. It is apparent that there is nothing whatsoever in this affidavit suggesting that the surveillance was undertaken within the first branch of the § 2511(3) exception, that is, to protect against foreign attack, to gather foreign intelligence or to protect national security information. The sole assertion was that the monitoring at issue was employed to gather intelligence information 'deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.' App. 20.
94
Neither can I conclude from this characterization that the wiretap employed here fell within the exception recognized by the second sentence of § 2511(3); for it utterly fails to assume responsibility for the judgment that Congress demanded: that the surveillance was necessary to prevent overthrow by force or other unlawful means or that there was any other clear and present danger to the structure or existence of the Government. The affidavit speaks only of attempts to attack or subvert; it makes no reference to force or unlawfulness; it articulates no conclusion that the attempts involved any clear and present danger to the existence of rstructure of the Government.
95
The shortcomings of the affidavit when measured against § 2511(3) are patent. Indeed, the United States in oral argument conceded no less. The specific inquiry put to Government counsel was: 'Do you think the affidavit, standing alone, satisfies the Safe Streets Act?' The Assistant Attorney General answered 'No, sir. We do not rely upon the affidavit itself . . ..' Tr. of Oral Arg. 15.4
96
Government counsel, however, seek to save their case by reference to the in camera exhibit submitted to the District Court to supplement that Attorney General's affidavit.5 It is said that the exhibit includes the request for wiretap approval submitted to the Attorney General, that the request asserted the need to avert a clear and present danger to the structure and existence of the Government, and that the Attorney General endorsed his approval on the request.6 But I am unconvinced that the mere endorsement of the Attorney General on the request for approval submitted to him must be taken as the Attorney General's own opinion that the wiretap was necessary to avert a clear and present danger to the existence or structure of the Government when, in an affidavit later filed in court specifically characterizing the purposes of the interception and at least impliedly the grounds for his prior approval, the Attorney General said only that the tap was undertaken to secure intelligence thought necessary to protect against attempts to attack and subvert the structure of Government. If the Attorney General's approval of the interception is to be given a judicially cognizable meaning different from the meaning he seems to have ascribed to it in his affidavit filed in court, there obviously must be further proceedings in the District Court.
97
Moreover, I am reluctant to proceed in the first instance to examine the in camera material and either sustain or reject the surveillance as a necessary measure to avert the dangers referred to in § 2511(3). What Congress excepted from the warrant requirement was a surveillance which the President would assume responsibility for deeming an essential measure to protect against clear and present danger. No judge can satisfy this congressional requirement.
98
Without the necessary threshold determination, the interception is, in my opinion, contrary to the terms of the statute and subject therefore to the prohibition contained in § 2515 against the use of the fruits of the warrantless electronic surveillance as evidence at any trial.7
99
There remain two additional interrelated reasons for not reaching the constitutional issue. First, even if it were determined that the Attorney General purported to authorize an electronic surveillance for purposes exempt from the general provisions of the Act, there would remain the issue whether his discretion was properly authorized. The United States concedes that the act of the Attorney General authorizing a warrantless wiretap is subject to judicial review to some extent, Brief for United States 21—23, and it seems improvident to proceed to constitutional questions until it is determined that the Act itself does not bar the interception here in question.
100
Second, and again on the assumption that the surveillance here involved fell within the exception provided by § 2511(3), no constitutional issue need be reached in this case if the fruits of the wiretap were inadmissible on statutory grounds in the criminal proceedings pending against respondent Plamondon. Section 2511(3) itself states that '(t)he contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.' (Emphasis added.) There has been no determination by the District Court that it would be reasonable to use the fruits of the wiretap against Plamondon or that it would be necessary to do so to implement the purposes for which the tap was authorized.
101
My own conclusion, again, is that, as long as nonconstitutional, statutory grounds for excluding the evidence or its fruits have not been disposed of, it is improvident to reach the constitutional issue.
102
I would thus affirm the judgment of the Court of Appeals unless the Court is prepared to reconsider the necessity for an adversary, rather than an in camera, hearing with respect to taint. If in camera proceedings are sufficient and no taint is discerned by the judge, this case is over, whatever the legality of the tap.
1
See n. 10, infra.
2
The Attorney General's affidavit reads as follows:
'JOHN N. MITCHELL being duly sworn deposes and says:
'1. I am the Attorney General of the United States.
'2. This affidavit is submitted in connection with the Government's opposition to the disclosure to the defendant Plamondon of information concerning the overhearing of his conversations which occurred during the course of electronic surveillances which the Government contends were legal.
'3. The defendant Plamondon has participated in conversations which were overheard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government. The records of the Department of Justice reflect the installation of these wiretaps had been expressly approved by the Attorney General.
'4. Submitted with this affidavit is a sealed exhibit containing the records of the intercepted conversations, a description of the premises that were the subjects of surveillances, and copies of the memoranda reflecting the Attorney General's express approval of the installation of the surveillances.
'5. I certify that it would prejudice the national interest to disclose the particular facts concerning these surveillances other than to the court in camera. Accordingly, the sealed exhibit referred to herein is being submitted solely for the court's in camera inspection and a copy of the sealed exhibit is not being furnished to the defendants. I would request the court, at the conclusion of its hearing on this matter, to place the sealed exhibit in a sealed envelope and return it to the Department of Justice where it will be retained under seal so that it may be submitted to any appellate court that may review this matter.'
3
Jurisdiction was challenged before the Court of Appeals on the ground that the District Court's order was interlocutory and not appealable under 28 U.S.C. § 1291. On this issue, the court correctly held that it did have jurisdiction, relying upon the All Writs Act, 28 U.S.C. § 1651, and cases cited in its opinion, 444 F.2d, at 655—656. No attack was made in this Court as to the appropriateness of the writ of mandamus procedure.
4
These exceptions relate to certain activities of communication common carriers and the Federal Communications Commission, and to specified stituations where a party to the communication has consented to the interception.
5
Title 18 U.S.C. § 2518, subsection (1) reads as follows:
§ 2518. Procedure for interception of wire or oral communications
'(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction
and shall state the applicant's authority to make such application. Each application shall include the following information:
'(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
'(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
'(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
'(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
'(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and
'(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.'
6
The final sentence of § 2511(3) states that the contents of an interception 'by authority of the President in the exercise of the foregoing powers may be received in evidence . . . only where such interception was reasonable . . .' This sentence seems intended to assure that when the President conducts lawful surveillance—pursuant to whatever power he may possess—the evidence is admissible.
7
114 Cong.Rec. 14751. Senator McClellan was the sponsor of the bill. The above exchanged constitutes the only time that § 2511(3) was expressly debated on the Senate or House floor. The Report of the Senate Judiciary Committee is not so explicit as the exchange on the floor, but it appears to recognize that under § 2511(3) the national security power of the President—whatever it may be—'is not to be deemed disturbed.' S.Rep.No.1097, 90th Cong., 2d Sess., 94 U.S.Code Cong. & Admin.News, p. 2183 (1968). See also The 'National Security Wiretap': Presidential Prerogative or Judicial Responsibility, where the author concludes that in § 2511(3) 'Congress took what amounted to a position of neutral noninterference on the question of the constitutionality of warrantless national security wiretaps authorized by the President.' 45 S.Cal.L.Rev. 888, 889 (1972).
8
Section 2511(3) refers to 'the constitutional power of the President' in two types of situations: (i) where necessary to protect against attack, other hostile acts or intelligence activities of a 'foreign power'; or (ii) where necessary to protect against the overthrow of the Government or other clear and present danger to the structure or existence of the Government. Although both of the specified situations are sometimes referred to as 'national security' threats, the term 'national security' is used only in the first sentence of § 2511(3) with respect to the activities of foreign powers. This case involves only the second sentence of § 2511(3), with the threat emanating—according to the Attorney General's affidavit—from 'domestic organizations.' Although we attempt no precise definition, we use the term 'domestic organization' in this opinion to mean a group or organization (whether formally or informally constituted) composed of citizens of the United States and which has no significant connection with a foreign power, its agents or agencies. No doubt there are cases where it will be difficult to distinguish between 'domestic' and 'foreign' unlawful activities directed against the Government of the United States where there is collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers. But this is not such a case.
9
Enactment of Title III reflects congressional recognition of the importance of such surveillance in combatting various types of crime. Frank S. Hogan, District Attorney for New York County for over 25 years, described telephonic interception, pursuant to court order, as 'the single most valuable weapon in law enforcement's fight against organized crime.' 117 Cong.Rec. 14051. The 'Crime Commission' appointed by President Johnson noted that '(t)he great majority of law enforcement officials believe that the evidence necessary to bring criminal sanctions to bear consistently on the higher echelons of organized crime will not be obtained without the aid of electronic surveillance techniques. They maintain these techniques are indispensable to develop adequate strategic intelligence concerning organized crime, to set up specific investigations, to develop witnesses to corroborate their testimony, and to serve as substitutes for them—each a necessary step in the evidencegathering process in organized crime investigations and prosecutions.' Report by the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 201 (1967).
10
In that month Attorney General Tom Clark advised President Truman of the necessity of using wiretaps 'in cases vitally affecting the domestic security.' In May 1940 President Roosevelt had authorized Attorney General Jackson to utilize wiretapping in matters 'involving the defense of the nation,' but it is questionable whether this language was meant to apply to solely domestic subversion. The nature and extent of wiretapping apparently varied under different administrations and Attorneys General, but, except for the sharp curtailment under Attorney General Ramsey Clark in the latter years of the Johnson administration, electronic surveillance has been used both against organized crime and in domestic security cases at least since the 1946 memorandum from Clark to Truman. Brief for United States 16 18; Brief for Respondents 51—56; 117 Cong.Rec. 14056.
11
Brownell, The Public Security and Wire Tapping, 39 Cornell L.Q. 195, 202 (1954). See also Rogers, The Case for Wire Tapping, 63 Yale L.J. 792 (1954).
12
The Government asserts that there were 1,562 bombing incidents in the United States from January 1, 1971, to July 1, 1971, most of which involved Government related facilities. Respondents dispute these statistics as incorporating many frivolous incidents as well as bombings against nongovernmental facilities. The precise level of this activity, however, is not relevant to the disposition of this case. Brief for United States 18; Brief for Respondents 26—29; Reply Brief for United States 13.
13
Professor Alan Westin has written on the likely course of future conflict between the value of privacy and the 'new technology' of law enforcement. Much of the book details techniques of physical and electronic surveillance and such possible threats to personal privacy as psychological and personality testing and electronic information storage and retrieval. Not all of the contemporary threats to privacy emanated directly from the pressures of crime control. Privacy and Freedom (1967).
14
Though the total number of intercepts authorized by state and federal judges pursuant to Tit. III of the 1968 Omnibus Crime Control and Safe Streets Act was 597 in 1970, each surveillance may involve interception of hundreds of different conversations. The average intercept in 1970 involved 44 people and 655 conversations, of which 295 or 45% were incriminating. 117 Cong.Rec. 14052.
15
114 Cong.Rec. 14750. The subsequent assurances, quoted in part I of the opinion, that § 2511(3) implied no statutory grant, contraction, or definition of presidential power eased the Senator's misgivings.
16
This view has not been accepted. In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Court considered the Government's contention that the search be judged on a general 'reasonableness' standard without reference to the warrant clause. The Court concluded that argument was 'founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point.' Id., at 764—765, 89 S.Ct., at 2041.
17
N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79—105 (1937).
18
We use the word 'judicial' to connote the traditional Fourth Amendment requirement of a neutral and detached magistrate.
19
The Government argues that domestic security wiretaps should be upheld by courts in post-surveillance review '(u)nless it appears that the Attorney General's determination that the proposed surveillance relates to a national security matter is arbitrary and capricious, i.e., that it constitutes a clear abuse of the broad discretion that the Attorney General has to obtain all information that will be helpful to the President in protecting the Government . . .' against the various unlawful acts in § 2511(3). Brief for United States 22.
20
See n. 8, supra. For the view that warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved, see United States v. Smith, 321 F.Supp. 424, 425—426 (CDCal.1971); and American Bar Association Project on Standards for Criminal Justice, Electronic Surveillance 120, 121 (Approved Draft 1971 and Feb. 1971 Supp. 11). See also United States v. Clay, 430 F.2d 165 (CA5 1970).
21
We think it unnecessary at this time and on the facts of this case to consider the arguments advanced by the Government for a re-examination of the basis and scope of the Court's decision in Alderman.
1
Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153; Chimel v. California, 395 U.S. 752, 756, 89 S.Ct. 2034, 2036, 23 L.Ed.2d 685; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.
2
See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.
3
Letter from Senator Edward Kennedy to Members of the Subcommittee on Administrative Procedure and Practice of the Senate Judiciary Committee, Dec. 17, 1971, p. 2. Senator Kennedy included in his letter a chart comparing court-ordered and department-ordered wiretapping and bugging by federal agencies. This chart is reproduced in the Appendix to this opinion. For a statistical breakdown by duration, location, and implementing agency of the 1,042 wiretap orders issued in 1971 by state and federal judges, see Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications for 1971; The Washington Post, May 14, 1972, p. A30, col. 1 (final ed.).
4
Kennedy, supra, n. 3, at 2. See also H. Schwartz, A Report on the Costs and Benefits of Electronic Surveillance (American Civil Liberties Union 1971); Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of 'Law and Order,' 67 Mich.L.Rev. 455 (1969).
5
For a complete itemization of the objects seized, see the Appendix to Kremen v. United States, 353 U.S. 346, 349, 77 S.Ct. 828, 830, 1 L.Ed.2d 876.
6
'On this side of the Atlantic, the argument concerning the validity of general search warrants centered around the writs of assistance which were used by customs officers for the detection of smuggled goods.' N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51 (1937). In February 1761, all writs expired six months after the death of George II and Boston merchants petitioned the Superior Court in opposition to the granting of any new writs. The merchants were represented by James Otis, Jr., who later became a leader in the movement for independence.
'Otis completely electrified the large audience in the court room with his denunciation of England's whole policy toward the Colonies and with his argument against general warrants. John Adams, then a young man less than twenty-six years of age and not yet admitted to the bar, was a spectator, and many years later described the scene in these oft-quoted words: 'I do say in the most solemn manner, that Mr. Otis's oration against the Writs of Assistance breathed into this nation the breath of life.' He 'was a flame of fire! Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In 15 years, namely in 1776, he grew to manhood, and declared himself free." Id., at 58—59.
7
See Donner & Cerruti, The Grand Jury Network: How the Nixon Administration Has Secretly Perverted A Traditional Safeguard of Individual Rights, 214 The Nation 5 (1972). See also United States v. Caldwell, O.T.1971, No. 70—57; United States v. Gravel, O.T.1971, No. 71—1026; Gelbard v. United States and United States v. Egan, O.T.1971, Nos. 71—110 and 71—263. And see N.Y. Times, July 15, 1971, p. 6, col. 1 (grand jury investigation of N.Y. Times staff which published the Pentagon Papers).
8
E.g., N.Y. Times, April 12, 1970, p. 1, col. 2 ('U.S. To Tighten Surveillance of Radicals'); N.Y. Times, Dec. 14, 1969, p. 1, col. 1 ('F.B.I.'s Informants and Bugs Collect Data On Black Panthers'); the Washington Post, May 12, 1972, p. D21, col. 5 ('When the FBI Calls, Everybody Talks'); the Washington Post, May 16, 1972, p. B15, col. 5 ('Black Activists Are FBI Targets'); the Washington Post, May 17, 1972, p. B13, col. 5 ('Bedroom Peeking Sharpens FBI Files'). And, concerning an FBI investigation of Daniel Schorr, a television correspondent critical of the Government, see N.Y. Times, Nov. 11, 1971, p. 95, col. 4; and N.Y. Times, Nov. 12, 1971, p. 13, col. 1. For the wiretapping and bugging of Dr. Martin Luther King by the FBI, See V. Navasky, Kennedy Justice 135—155 (1971). For the wiretapping of Mrs. Eleanor Roosevelt and John L. Lewis by the FBI see Theoharis & Meyer, The 'National Security' Justification For Electronic Eavesdropping: An Elusive Exception, 14 Wayne L.Rev. 749, 760—761 (1968).
9
See Laird v. Tatum, O.T.1971, No. 71—288; See also Federal Data Banks, Computers and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971); N.Y. Times, Feb. 29, 1972, p. 1, col. 3.
10
'Informers have been used for national security reasons throughout the twentieth century. They were deployed to combat what was perceived to be an internal threat from radicals during the early 1920's. When fears began to focus on Communism, groups thought to have some connection with the Communist Party were heavily infiltrated. Infiltration of the Party itself was so intense that one former FBI agent estimated a ratio of one informant for every 5.7 members in 1962. More recently, attention has shifted to militant antiwar and civil rights groups. In part because of support for such groups among university students throughout the country, informers seem to have become ubiquitous on campus. Some insight into the scope of the current use of informers was provided by the Media Papers, FBI documents stolen in early 1971 from a Bureau office in Media, Pennsylvania. The papers disclose FBI attempts to infiltrate a conference of war resisters at Haverford College in August 1969, and a convention of the National Association of Black Students in June 1970. They also reveal FBI endeavors 'to recruit informers, ranging from bill collectors to apartment janitors, in an effort to develop constant surveillance in black communities and New Left organizations' (N.Y. Times, April 8, 1971, p. 22, col. 1). In Philadelphia's black community, for instance, a whole range of buildings 'including offices of the Congress of Racial Equality, the Southern Christian Leadership Conference (and) the Black Coalition' (ibid.) was singled out for surveillance by building employees and other similar informers working for the FBI.' Note, Developments In The Law—The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1272—1273 (1972). For accounts of the impersonation of journalists by police, FBI agents and soldiers in order to gain the confidences of dissidents, see Press Freedoms Under Pressure, Report of the Twentieth Century Fund Task Force on the Government and the Press 29—34, 86—97 (1972). For the revelation of Army infiltration of political organizations and spying on Senators, Governors and Congressmen, see Federal Data Banks, Computers and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971) (discussed in my dissent from the denial of certiorari in Williamson v. United States, 405 U.S. 1026, 92 S.Ct. 1323, 31 L.Ed.2d 487). Among the Media Papers was the suggestion by the FBI that investigation of dissidents be stepped up in order to "enhance the paranoia endemic in these circles and (to) further serve to get the point across there is an FBI agent behind every mailbox." N.Y. Times, March 25, 1971, p. 33, col. 1.
11
E.g., N.Y. Times, Feb. 8, 1972, p. 1, col. 8 (Senate peace advocates said, by presidential adviser, to be aiding and abetting the enemy).
12
Amicus curiae brief submitted by Senator Sam Ervin, in Laird v. Tatum, No. 71—288, O.T.1971, p. 8.
13
E.g., New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822; Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491; United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 423, 19 L.Ed.2d 508; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153; Duncan v. kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; White v. Steer, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278; Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Mitchell v. Harmony, 13 How. 115, 14 L.Ed. 75. Note, The 'National Security Wiretap': Presidential Prerogative or Judicial Responsibility, 45 S.Cal.L.Rev. 888, 907—912 (1972).
14
I continue in my belief that it would be extremely difficult to write a search warrant specifically naming the particular conversations to be seized and therefore any such attempt would amount to a general warrant, the very abuse condemned by the Fourth Amendment. As I said, dissenting in Osborn v. United States, 385 U.S. 323, 353, 87 S.Ct. 439, 446, 17 L.Ed.2d 394: 'Such devices lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrants the Fourth Amendment was intended to prohibit.'
*
Ratios for 1969 are less meaningful than those for 1970, since court-ordered surveillance program was in its initial stage in 1969.
Source:
(1) Letter from Assistant Attorney General Robert Mardian to Senator Edward M. Kennedy, March 1, 1971. Source figures withheld at request of Justice Department.
(2) Reports of Administrative Office of U.S. Courts for 1969 and 1970.
1
The Attorney General's affidavit concluded:
'I certify that it would prejudice the national interest to disclose the particular facts concerning these surveillances other than to the court in camera. Accordingly, the sealed exhibit referred to herein is being submitted solely for the court's in camera inspection and a copy of the sealed exhibit is not being furnished to the defendants. I would request the court, at the conclusion of its hearing on this matter, to place the sealed exhibit in a sealed envelope and return it to the Department of Justice where it will be retained under seal so that it may be submitted to any appellate court that may review this matter.' App. 20—21.
2
I cannot agree with the majority's analysis of the import of § 2511(3). Surely, Congress meant at least that if a court determined that in the specified circumstances the President could constitutionally intercept communications without a warrant, the general ban of 2511(1) would not apply. But the limitation on the applicability of § 2511(1) was not open-ended; it was confined to those situations that § 2511(3) specifically described. Thus, even assuming the constitutionality of a warrantless surveillance authorized by the President to uncover private or official graft forbidden by federal statute, the interception would be illegal under § 2511(1) because it is not the type of presidential action saved by the Act by the provision of § 2511(3). As stated in the text and n. 3, infra, the United States does not claim that Congress is powerless to require warrants for surveillances that the President otherwise would not be barred by the Fourth Amendment from undertaking without a warrant.
3
See Tr. of Oral Arg. 13—14:
'Q. . . . I take it from your answer that Congress could forbid the President from doing what you suggest he has the power to do in this case?
'Mr. Mardian (Assistant Attorney General): That issue is not before this Court—
'Q. Well, I would—my next question will suggest that it is. Would you say, though, that Congress could forbid the President?
'Mr. Mardian: I think under the rule announced by this court in Colony Catering that within certain limits the Congress could severely restrict the power of the President in this area.
'Q. Well, let's assume Congress says, then, that the Attorney General, or the President may authorize the Attorney General in specific situations to carry out electronic surveillance if the Attorney General certifies that there is a clear and present danger to the security of the United States?
'Mr. Mardian: I think that Congress has already provided that, and—
'Q. Well, would you say that Congress would have the power to limit surveillances to situations where those conditions were satisfied?
'Mr. Mardian: Yes, I would—I would concur in that, Your Honor.'
A colloquy appearing in the debates on the bill, appearing at 114 Cong.Rec. 14750-14751, indicates that some Senators considered § 2511(3) as merely stating an intention not to interfere with the constitutional powers that the President might otherwise have to engage in warrantless electronic surveillance. But the Department of Justice, it was said, participated in the drafting of § 2511(3) and there is no indication in the legislative history that there was any claim or thought that the supposed powers of the President reached beyond those described in the section. In any case, it seems clear that the congressional policy of noninterference was limited to the terms of § 2511(3).
4
See also Tr. of Oral Arg. 17:
'Q. . . . If all the in camera document contained was what this affidavit contained, it would not comply with the Safe Streets Act?
'Mr. Mardian: I would concur in that, Your Honor.'
5
The Government appears to have shifted ground in this respect. In its initial brief to this Court, the Government quoted the Attorney General's affidavit and then said, without qualification, 'These were the grounds upon which the Attorney General authorized the surveillance in the present case.' Brief for United States 21. Moreover, counsel for the Government stated at oral argument 'that the in camera submission was not intended as a justification for the authorization, but simply (as) a proof of the fact that the authorization had been granted by the Attorney General of the United States, over his own signature.' Tr. of Oral Arg. 6—7.
Later at oral argument, however, the Government said: '(T)he affidavit was never intended as the basis for justifying the surveillance in questtion. . .. The justification, and again I suggest that it is only a partial justification, is contained in the in camera exhibit which was submitted to Judge Keith. . .. We do not rely upon the affidavit itself but the in camera exhibit.' Tr. of Oral Arg. 14—15. And in its reply brief, the Government says flatly: 'Those (in camera) documents, and not the affidavit, are the proper basis for determining the ground upon which the Attorney General acted.' Reply Brief for United States 9.
6
Procedures in practice at the time of the request here in issue apparently resulted in the Attorney General's merely countersigning a request which asserted a need for a wiretap. We are told that under present procedures the Attorney General makes an express written finding of clear and present danger to the structure and existence of the Government before he authorizes a tap. Tr. of Oral Arg. 17—18.
7
'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.' 18 U.S.C. § 2515.
| 01
|
407 U.S. 345
92 S.Ct. 2119
32 L.Ed.2d 783
Gerald SHADWICK, Appellant,v.CITY OF TAMPA.
No. 71—5445.
Argued April 10, 1972.
Decided June 19, 1972.
Syllabus
City charter provision authorizing municipal court clerks to issue arrest warrants for breach of municipal ordinances held to comport with requirements of the Fourth Amendment that warrants be issued by a neutral and detached magistrate who must be capable of determining whether probable cause exists for issuance of the warrant. The clerks, though laymen, worked within the judicial branch under supervision of municipal court judges and were qualified to make the determination whether there is probable cause to believe that a municipal code violation has occurred.
250 So.2d 4, affirmed.
Daniel A. Rezneck, Washington, D.C., for appellant.
Gerald H. Bee, Tampa, for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
1
The charter of Tampa, Florida, authorizes the issuance of certain arrest warrants by clerks of the Tampa Municipal Court.1 The sole question in this case is whether these clerks qualify as neutral and detached magistrates for purposes of the Fourth Amendment. We hold that they do.
2
Appellant was arrested for impaired driving on a warrant issued by a clerk of the municipal court. He moved the court to quash the warrnt on the ground that it was issued by a nonjudicial officer in violation of the Fourth and Fourteenth Amendments. When the motion was denied, he initiated proceedings in the Florida courts by means of that State's writ of common-law certiorari. The state proceedings culminated in the holding of the Florida Supreme Court that '(t)he clerk and deputy clerks of the municipal court of the City of Tampa are neutral and detached 'magistrates' . . . for the purpse of issuing arrest warrants within the requirements of the United States Constitution . . .' 250 So.2d 4, 5 (1971). We noted probable jurisdiction, 404 U.S. 1014, 92 S.Ct. 697, 30 L.Ed.2d 660 (1972).
3
* A clerk of the municipal court is appointed by the city clerk from a classified list of civil servants and assigned to work in the municipal court. The statute does not specify the qualifications necessary for this job, but no law degree or special legal training is required. The clerk's duties are to receive traffic fines, prepare the court's dockets and records, fill out commitment papers and perform other routine clerical tasks. Apparently he may issue subpoenas. He may not, however, sit as a judge, and he may not issue a search warrant or even a felony or misdemeanor arrest warrant for violations of state laws. The only warrants he may issue are for the arrest of those charged with having breached municipal ordinances of the city of Tampa.2
4
Appellant, contending that the Fourth Amendment requires that warrants be issued by 'judicial officers,' argues that even this limited warrant authority is constitutionally invalid. He reasons that warrant applications of whatever nature cannot be assured the discerning, independent review compelled by the Fourth Amendment when the review is performed by less than a judicial officer.3 It is less than clear, however, as to who would qualify as a 'judicial officer' under appellant's theory. There is some suggestion in appellant's brief that a judicial officer must be a lawyer or the municipal court judge himself.4 A more complete portrayal of appellant's position would be that the Tampa clerks are disqualified as judicial officers not merely because they are not lawyers or judges, but because they lack the institutional independence associated with the judiciary in that they are members of the civil service, appointed by the city clerk, 'an executive official,' and enjoy no statutorily specified tenure in office.5
II
5
Past decisions of the Court has mentioned review by a 'judicial officer' prior to issuance of a warrant, Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971); Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Wong Sun v. United States, 371 U.S. 471, 481—482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441 (1963); Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). In some cases the term 'judicial officer' appears to have been used interchangeably with that of 'magistrate.' Katz v. United States, supra, and Johnson v. United States, supra. In others, it was intended simply to underscore the now accepted fact that someone independent of the police and prosecution must determine probable cause. Jones v. United States, supra; Wong Sun v. United States, supra. The very term 'judicial officer' implies, of course, some connection with the judicial branch. But it has never been held that only a lawyer or judge could grant a warrant, regardless of the court system or the type of warrant involved. In Jones, supra, at 270—271 of 362 U.S., at 735—736 of 80 S.Ct., the Court implied that United States Commissioners, many of whom were not lawyers or judges, were nonetheless 'independent judicial officers.'6
6
The Court frequently has employed the term 'magistrate' to denote those who may issue warrants. Coolidge v. New Hampshire, 403 U.S. 443, 449—453, 91 S.Ct. 2022, 2029—2031, 29 L.Ed.2d 564 (1971); Whiteley v. Warden, supra, at 566 of 401 U.S., at 1036 of 91 S.Ct.; Katz v. United States, supra, at 356—357, of 389 U.S., at 514 of 88 S.Ct.; United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 3 L.Ed.2d 1503 (1958); Johnson v. United States, supra, at 13—14 of 333 U.S., at 368—369 of 68 S.Ct.; United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932). Historically, a magistrate has been defined broadly as 'a public civil officer, possessing such power—legislative, executive, or judicial—as the government appointing him may ordain,' Compton v. Alabama, 214 U.S. 1, 7, 29 S.Ct. 605, 607, 53 L.Ed. 885 (1909), or, in a narrower sense 'an inferior judicial officer, such as a justice of the peace.' Ibid. More recent definitions have not much changed.7
7
An examination of the Court's decisions reveals that the terms 'magistrate' and 'judicial officer' have been used interchangeably. Little attempt was made to define either term, to distinguish the one from the other, or to advance one as the definitive Fourth Amendment requirement. We find no commendment in either term, however, that all warrant authority must reside exclusively in a lawyer or judge. Such a requirement would have been incongruous when even within the federal system warrants were until recently widely issued by nonlawyers.8
8
To attempt to extract further significance from the above terminology would be both unnecessary and futile. The substance of the Constitution's warrant requirements does not turn on the labeling of the issuing party. The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search. This Court long has insisted that inferences of probable cause 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.' Johnson v. United States, supra, at 14 of 333 U.S., at 369 of 68 S.Ct.; Giordenello v. United States, supra, at 486 of 357 U.S., at 1250 of 78 S.Ct. In Coolidge v. New Hampshire, supra, the Court last Term voided a search warrant issued by the state attorney general 'who was actively in charge of the investigation and later was to be chief prosecutor at trial.' Id., at 450 of 403 U.S., at 2029 of 91 S.Ct. If, on the other hand, detachment and capacity do conjoin, the magistrate has satisfied the Fourth Amendment's purpose.
III
9
The requisite detachment is present in the case at hand. Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement. There has been no showing whatever here of partiality, or affiliation of these clerks with prosecutors or police. The record shows no connection with any law enforcement activity or authority which would distort the independent judgment the Fourth Amendment requires. Appellant himself expressly refused to allege anything to that effect.9 The municipal court clerk is assigned not to the police or prosecutor but to the municipal court judge for whom he does much of his work. In this sense, he may well be termed a 'judicial officer.' While a statutorily specified term of office and appointment by someone other than 'an executive authority' might be desirable, the absence of such features is hardly disqualifying. Judges themselves take office under differing circumstances. Some are appointed, but many are elected by legislative bodies or by the people. Many enjoy but limited terms and are subject to re-appointment or re-election. Most depend for their salary level upon the legislative branch. We will not elevate requirements for the independence of a municipal clerk to a level higher than that prevailing with respect to many judges. The clerk's neutrality has not been impeached: he is removed from prosecutor or police and works within the judicial branch subject to the supervision of the municipal court judge.
10
Appellant likewise has failed to demonstrate that these clerks lack capacity to determine probable cause. The clerk's authority extends only to the issuance of arrest warrants for breach of municipal ordinances. We presume from the nature of the clerk's position that he would be able to deduce from the facts on an affidavit before him whether there was probable cause to believe a citizen guilty of impaired driving, breach of peace, drunkenness, trespass, or the multiple other common offenses covered by a municipal code. There has been no showing that this is too difficult a task for a clerk to accomplish. Our legal system has long entrusted nonlawyers to evaluate more complex and significant factual data than that in the case at hand. Grand juries daily determine probable cause prior to rendering indictments, and trial juries assess whether guilt is proved beyond a reasonable doubt. The significance and responsibility of these lay judgments betray any belief that the Tampa clerks could not determine probable cause for arrest.
11
We decide today only that clerks of the municipal court may constitutionally issue the warrants in question. We have not considered whether the actual issuance was based upon an adequate showing of probable cause. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Appellant did not submit this question to the courts below, 237 So.2d 231 (1970), 250 So.2d 4 (1971), and we will not decide it here initially. The single question is whether power has been lawfully vested, not whether it has been constitutionally exercised.
12
Nor need we determine whether a State may lodge warrant authority in someone entirely outside the sphere of the judicial branch. Many persons may not qualify as the kind of 'public civil officers' we have come to associate with the term 'magistrate.' Had the Tampa clerk been entirely divorced from a judicial position, this case would have presented different considerations. Here, however, the clerk is an employee of the judicial branch of the city of Tampa, disassociated from the role of law enforcement. On the record in this case, the independent status of the clerk cannot be questioned.
13
What we do reject today is any per se invalidation of a state or local warrant system on the ground that the issuing magistrate is not a lawyer or judge. Communities may have sound reasons for delegating the responsibility of issuing warrants to competent personnel other than judges or lawyers.10 Many municipal courts face stiff and unrelenting caseloads.11 A judge pressured with the docket before him may give warrant applications more brisk and summary treatment than would a clerk. All this is not to imply that a judge or lawyer would not normally provide the most desirable review of warrant requests. But our federal system warns of converting desirable practice into constitutional commandment. It recognizes in plural and diverse state activities12 one key to national innovation and vitality.13 States are entitled to some flexibility and leeway in their designation of magistrates, so long as all are neutral and detached and capable of the probable-cause determination required of them.
14
We affirm the judgment of the Florida Supreme Court.
15
Affirmed.
1
The relevant Florida statute and Tampa charter provisions are set forth below:
1. Section 168.04 of Fla.Stat. (1965), F.S.A. reads as follows: 'The clerk may administer an oath to and take affidavit of any person charging another with an offense by breach of an ordinance, and may issue a warrant to the marshal to have the accused person arrested and brought before the mayor for trial. The marshal may, in the absence of the mayor and clerk from the police station,
administer oaths to affidavits of complaints and issue warrants for the arrest of persons complained against.'
2. Section 495 of the Charter of the City of Tampa enacted by the legislature of the State of Florida in Section 17, Chapter 5363, Laws of Florida 1903, reads as follows:
'The chief of police, or any policeman of the city of Tampa, may, arrest, without warrant, any person violating any of the ordinances of said city, committed in the presence of such officer, and when knowledge of the violation of any ordinance of said city shall come to said chief of police or policeman, not committed in his presence, he shall at once make affidavit, before the judge or clerk of the municipal court, against the person charged with such violation, whereupon said judge or clerk shall issue a warrant for the arrest of such person.'
3. Section 160 of the Charter of the City of Tampa enacted by the legislature of the State of Florida in Section 1, Chapter 61 2915, Laws of Florida 1961, reads as follows:
'The City Clerk of the City of Tampa, with the approval of the Mayor, may appoint one or more deputies, such deputy or deputies to be selected from the approved classified list of the City Civil Service, and to have and exercise the same powers as the City Clerk himself, including but not limited to the issuance of warrants. One or more of such deputies may be designated as clerks of the Municipal Court.'
2
Tr. of Oral Arg. 6, 7, 20, 21.
3
Brief for Appellant 6; Tr. of Oral Arg. 10.
4
Brief for Appellant 12—13; Reply Brief for Appellant 8.
5
Reply Brief for Appellant 8; Tr. of Oral Arg. 10—12.
6
The United States Commissioner system has, of course, been replaced by the Federal Magistrates Act of 1968, 82 Stat. 1107.
7
In Compton, a notary public was deemed a 'magistrate,' but the Court has nowhere indicated that the term denotes solely a lawyer or judge.
Webster's Dictionary (2d ed. 1957), defines magistrate as '(a) person clothed with power as a public civil officer; a public civil officer invested with executive or judicial powers . . .' or, more narrowly, '(a) magistrate of a class having summary, often criminal, jurisdiction, as a justice of the peace, or one of certain officials having a similar jurisdiction . . .' Random House Dictionary (1966) defines magistrate as (1) 'a civil officer charged with the administration of the law' and (2) 'a minor judicial officer, as a justice of the peace or a police justice, having jurisdiction to try minor criminal cases and to conduct preliminary examinations of persons charged with serious crimes.'
8
United States Commissioners were not required to be lawyers until passage of the Federal Magistrates Act of 1968. Even under this Act, a limited exception to lawyer's status is afforded part-time magistrates. 28 U.S.C. § 631(b)(1).
9
Tr. of Oral Arg. 10.
10
Some communities, such as those in rural or sparsely settled areas, may have a shortage of available lawyers and judges and must entrust responsibility for issuing warrants to other qualified persons. The Federal Magistrates Act, for example, explicitly makes provision for nonlawyers to be appointed in those communities where members of the bar are not available. 28 U.S.C. § 631(b)(1).
11
See generally Mass Production Justice and the Constitutional Ideal (C. Whitebread ed. 1970).
12
States differ significantly as to whom they entrust the authority to grant a warrant. See Burke v. Superior Court, 3 Ariz.App. 576, 579, 416 P.2d 997, 1000 (1966); Parks v. Superior Court, 236 P.2d 874, 882 (Ct.App.Cal.1951); Kennedy v. Walker, 135 Conn. 262, 272, 63 A.2d 589, 594 (1948); Grano v. State, 257 A.2d 768, 773—774 (Sup.Ct.Del.1969); Shadwick v. City of Tampa, 250 So.2d 4 (Fla.1971); State v. Swafford, 250 Ind. 541, 546, 237 N.E.2d 580, 584 (1968); State ex rel. French v. Hendricks Superior Court, 252 Ind. 213, 247 N.E.2d 519 (1969); Bailey v. Hudspeth, 164 Kan. 600, 606, 191 P.2d 894, 898 (1948); State v. Guidry, 247 La. 631, 635—636, 173 So.2d 192, 194 (1965); Wampler v. Warden of Maryland Penitentiary, 231 Md. 639, 648, 191 A.2d 594, 600 (1963); LaChapelle v. United Shoe Machinery Corp., 318 Mass. 166, 168—170, 61 N.E.2d 8, 10 (1945); State v. Paulick, 277 Minn. 140, 151 N.W.2d 591 (1967); People v. Richter, 206 Misc. 304, 306—307, 133 N.Y.S.2d 685, 688 (1954); State v. Furmage, 250 N.C. 616, 625—626, 109 S.E.2d 563, 570 (1959); Moseley v. Welch, 218 S.C. 242, 250, 62 S.E.2d 313, 317 (1950); State v. Jefferson, 79 Wash.2d 345, 348 349, 485 P.2d 77, 79 (1971); State ex rel. Sahley v. Thompson, 151 W.Va. 336, 342—343, 151 S.E.2d 870, 873 (1966); State ex rel. White v. Simpson, 28 Wis.2d 590, 137 N.W.2d 391 (1965); State v. Van Brocklin, 194 Wis. 441, 217 N.W. 277 (1927).
13
Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B.A.J. 943, 944 (1963).
| 01
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407 U.S. 206
92 S.Ct. 2075
32 L.Ed.2d 693
Commonwealth of PENNSYLVANIA, Plaintiff,v.State of NEW YORK et al.
No. 40, Orig.
Argued March 29, 1972 on Exceptions to Report of Special Master.
Decided June 19, 1972.
Decree Published June 19, 1972.
See 92 S.Ct. 2880.
Syllabus
Pennsylvania brought this original action against New York to determine the authority of States to escheat, or take custody of, unclaimed funds paid to Western Union Telegraph Co. for purchase of money orders. The Special Master, following Texas v. New Jersey, 379 U.S. 674, 85 S.Ct. 626, 13 L.Ed.2d 596, recommended that any sum held by Western Union unclaimed for the time period prescribed by state statute may be escheated or taken into custody by the State in which the company's records placed the creditor's address, whether the creditor be the payee of an unpaid draft, the sender of a money order entitled to a refund, or an individual whose claim has been erroneously underpaid; and where the records show no address, or where the State in which the creditor's address falls has no applicable escheat law, the right to escheat or take custody shall be in the debtor's domiciliary State, here New York. The recommended decree is adopted and entered, and the cause is remanded to the Special Master for a proposed supplemental decree with respect to the distribution of the costs to the States of the inquiry as to available addresses. Pp. 208 216.
Hermann Rosenberger II, Philadelphia, Pa., for plaintiff.
F. Michael Ahern, Asst. Atty. Gen., Hartford, Conn., for intervenor plaintiff State of Conn.
Winifred L. Wentworth, Tallahassee, Fla., for defendant State of Fla.
Julius Greenfield, New York City, for defendant State of New York.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Pennsylvania and other States except to, and New York supports,1 the Report of the Special Master filed in this original action brought by Pennsylvania against New York for a determination respecting the authority of the several States to escheat, or take custody of, unclaimed funds paid to the Western Union Telegraph Company for the purchase of money orders.2 We overrule the exceptions and enter the decree recommended by the Special Master, see 407 U.S. 223, 92 S.Ct. 2880.3
2
The nature of Western Union's money order business, and the source of the funds here in dispute, were described by the Court in Western Union Telegraph Co. v. Pennsylvania, 368 U.S. 71, 82 S.Ct. 199, 7 L.Ed.2d 139 (1961):
3
'Western Union is a corporation chartered under New York law with its principal place of business in that State. It also does business and has offices in all the other States except Alaska and Hawaii (as well as) in the District of Columbia, and in foreign countries, and was from 1916 to 1934 subject to regulation by the I.C.C. and since then by the F.C.C. In addition to sending telegraphic messages throughout its world-wide system, it carries on a telegraphic money order business which commonly works like this. A sender goes to a Western Union office, fills out an application and gives it to the company clerk who waits on him together with the money to be sent and the charges for sending it. A receipt is given the sender and a telegraph message is transmitted to the company's office nearest to the payee directing that office to pay the money order to the payee. The payee is then notified and upon properly identifying himself is given a negotiable draft, which he can either endorse and cash at once or keep for use in the future. If the payee cannot be located for delivery of the notice, or fails to call for the draft within 72 hours, the office of destination notifies the sending office. This office then notifies the original sender of the failure to deliver and makes a refund, as it makes payments to payees, by way of a negotiable draft which may be either cashed immediately or kept for use in the future.
4
'In the thousands of money order transactions carried on by the company, it sometimes happens that it can neither make payment to the payee nor make a refund to the sender. Similarly payees and senders who accept drafts as payment or refund sometimes fail to cash them. For this reason large sums of money due from Western Union for undelivered money orders and unpaid drafts accumulate over the years in the company's offices and bank accounts throughout the country.' Id., at 72—73, 82 S.Ct., at 200.
5
In 1953 Pennsylvania began state proceedings under its escheat statute4 to take custody of those unclaimed funds, held by Western Union, that arose from money order purchases in the company's Pennsylvania offices. The Supreme Court of Pennsylvania affirmed a judgment for the State of about $40,000, Commonwealth by Gottlieb v. Western Union, 400 Pa. 337, 162 A.2d 617 (1960), but this Court reversed, Western Union v. Pennsylvania, supra, holding that the state court judgment denied Western Union due process of law because it could not protect the company against rival claims of other States. We noted that controversies among different States over their right to escheat intangibles could be settled only in a forum 'where all the States that want to do so can present their claims for consideration and final authoritative determination. Our Court has jurisdiction to do that.' Id., 368 U.S., at 79, 82 S.Ct., at 203.
6
Thereafter, in Texas v. New Jersey, 379 U.S. 674, 85 S.Ct. 626, 13 L.Ed.2d 596 (1965), the Court was asked to decide which of several States was entitled to escheat intangible property consisting of debts owed by the Sun Oil Co. and left unclaimed by creditors. Four different rules were proposed. Texas argued that the funds should go to the State having the most significant 'contacts' with the debt, as measured by a number of factors; New Jersey, that they should go to the State of the debtor company's incorporation; Pennsylvania, to the State where the company had its principal place of business; and Florida, to the State of the creditor's last known address as shown by the debtor's books and records. We rejected Texas' and Pennsylvania's proposals as being too uncertain and difficult to administer, and rejected New Jersey's because 'it would too greatly exalt a minor factor to permit escheat of obligations incurred all over the country by the state in which the debtor happened to incorporate itself.' Id., at 680, 85 S.Ct. at 630. Florida's proposal, on the other hand, was regarded not only as a 'simple and easy' standard to follow, but also as one that tended 'to distribute escheats among the States in the proportion of the commercial activities of their residents.' Id., at 681, 85 S.Ct., at 630. We therefore held that the State of the creditor's last known address is entitled to escheat the property owed him, adding that if his address does not appear on the debtor's books or is in a State that does not provide for escheat of intangibles, then the State of the debtor's incorporation may take custody of the funds 'until some other State comes forward with proof that it has a superior right to escheat.' Id., at 682, 85 S.Ct., at 631. The opinion concluded:
7
'We realize that this case could have been resolved otherwise, for the issue here is not controlled by statutory or constitutional provisions or by past decisions, nor is it entirely one of logic. It is fundamentally a question of ease of administration and of equity. We believe that the rule we adopt is the fairest, is easy to apply, and in the long run will be the most generally acceptable to all the States.' Id., at 683, 85 S.Ct., at 631.
8
On March 13, 1970, Pennsylvania filed this original action to renew its efforts to escheat part of Western Union's unclaimed money order proceeds. The complaint alleged that Western Union had accumulated more than $1,500,000 in unclaimed funds 'on account of money orders purchased from the company on or before December 31, 1962,' and that about $100,000 of that amount, 'held by Western Union on account of money orders purchased from it in Pennsylvania,' was subject to escheat by that State. Pennsylvania asked for a judgment resolving the conflicting claims of it and the defendant States, and for a temporary injunction against payment of the funds by Western Union or a taking of them by the defendant States, pending disposition of the case.5
9
In their arguments before the Special Master, the parties suggested three different formulas to resolve their conflicting claims. Pennsylvania contended that Western Union's money order records do not identify anyone as a 'creditor' of the company and in many instances do not list an address for either the sender or payee; therefore, strict application of the Texas v. New Jersey rule to this type of intangible would result in the escheat of almost all the funds to the State of incorporation, here New York. To avoid this result, Pennsylvania proposed that the State where the money order was purchased be permitted to take the funds. It claimed that the State where the money orders are bought should be presumed to be the State of the sender's residence. Connecticut, California, and Indiana supported this proposal, as did New Jersey as amicus curiae.
10
Florida and Arizona also supported Pennsylvania, but argued that where the payee had received but not cashed the money order, his address, if known, should determine escheat, regardless of the sender's address.
11
New York argued that Texas v. New Jersey should be strictly applied, but that it was not retroactive. Thus, as to money orders purchased between 1930 and 1958 (seven years before the Texas decision)6 New York asserted its right as the State of incorporation to all unclaimed funds, regardless of the creditor's address.7 As for money orders drawn after 1958, New York would apply the Texas rule, and take the funds in all cases where the creditor's address did not appear or was located in a State not providing for escheat.
12
The Special Master has submitted a report recommending that the Texas rule 'be applied to all the items involved in this case regardless of the date of the transactions out of which they arose.' Report 21. The Report expresses some doubt about the constitutionality of the suggested alternatives, stating that both the place-of-purchase and place-of-destination rules might permit intangible property rights to be 'cut off or adversely affected by state action in an in rem proceeding in a forum having no continuing relationship to any of the parties to the proceedings.' Id., at 19. These doubts, however, were not the sole basis for the Special Master's recommendation. He found that '(a)s in the case of the obligations in (Texas v. New Jersey), (the Texas) rule presents an easily administered standard preventing multiple claims and giving all parties a fixed rule on which they can rely.' Id., at 20. He concluded that:
13
'Any sum now held by Western Union unclaimed for the period of time prescribed by the applicable State statutes may be escheated or taken into custody by the State in which the records of Western Union placed the address of the creditor, whether that creditor be the payee of an unpaid draft, the sender of a money order entitled to a refund, or an individual whose claim has been underpaid through error. . . . (I)f no address is contained in the records of Western Union, or if the State in which the address of the creditor falls has no applicable escheat law, then the right to escheat or take custody shall be in the domiciliary State of the debtor, in this case, New York.' Id., at 20—21.
14
The Report also states that New York would bear the burden of establishing 'as to all escheatable items the absence from Western Union's records of an address for the creditor.' Id., at 16.
15
Pennsylvania's exceptions argue that where a transaction is of a type that 'the obligor does not make entries upon its books and records showing the address of the obligee,' only 'the State of origin of the transaction' should be permitted to escheat. Florida and Arizona have abandoned their state-of-destination test, and together with the other participating States save New York, have joined in Pennsylvania's exceptions. Tr. of Oral Arg. 20, 42.
16
Pennsylvania's proposal has some surface appeal. Because Western Union does not regularly record the addresses of its money order creditors, it is likely that the corporate domicile will receive a much larger share of the unclaimed funds here than in the case of other obligations, like bills for services rendered, where such records are kept as a matter of business practice. In a sense, there is some inconsistency between that result and our refusal in Texas to make the debtor's domicile the primary recipient of unclaimed intangibles. Furthermore, the parties say, the Texas rule is nothing more than a legal presumption that the creditor's residence is in the State of his last known address. A presumption based on the place of purchase is equally valid, they argue, and should be applied in order to prevent New York from gaining this windfall.
17
Assuming, without resolving the doubts expressed by the Special Master, that the Pennsylvania rule provides a constitutional basis for escheat, we do not regard the likelihood of a 'windfall' for New York as a sufficient reason for carving out this exception to the Texas rule. Texas v. New Jersey was not grounded on the assumption that all creditors' addresses are known. Indeed, as to four of the eight classes of debt involved in that case, the Court expressly found that some of the creditors 'had no last address indicated.' 379 U.S., at 675—676, n. 4, 85 S.Ct., at 627—628, 13 L.Ed.2d 596. Thus, the only arguable basis for distinguishing money orders is that they involve a higher percentage of unknown addresses. But we are not told what percentage is high enough to justify an exception to the Texas rule, nor is it entirely clear that money orders constitute the only form of transaction where the percentage of unknown addresses may run high. In other words, to vary the application of the Texas rule according to the adequacy of the debtor's records would require this Court to do precisely what we said should be avoided—that is, 'to decide each escheat case on the basis of its particular facts or to devise new rules of law to apply to ever-developing new categories of facts.' Texas v. New Jersey, 379 U.S., at 679, 85 S.Ct., at 629.
18
Furthermore, a substantial number of creditors' addresses may in fact be available in this case. Although Western Union has not kept ledger records of addresses, the parties stipulated, and the Special Master found, that money order applications have been retained in the company's records 'as far back as 1930 in some instances and are generally available since 1941.' Report 9. To the extent that creditor addresses are available from those forms, the 'windfall' to New York will, of course, be diminished.
19
We think that as a matter of fairness the claimant States, and not Western Union, should bear the cost of finding and recording the available addresses, and we shall remand to the Special Master for a hearing and recommendation as to the appropriate formula for distributing those costs. As for future money order transactions, nothing we say here prohibits the States from requiring Western Union to keep adequate address records. The decree recommended by the Special Master is adopted and entered,8 and the cause is remanded to the Special Master for further proceedings and the filing of a proposed supplemental decree with respect to the distribution of costs of the inquiry as to available addresses.
20
It is so ordered.
21
Recommended decree adopted and cause remanded.
22
Mr. Justice POWELL, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.
23
The majority opinion today purports to apply the rule laid down in Texas v. New Jersey, 379 U.S. 674, 85 S.Ct. 626, 13 L.Ed.2d 596 (1965), to a fact situation not contemplated when that case was decided. In applying that rule to these new facts, it seems to me that the Court exalts the rule but derogates the reasons supporting it.
24
* Texas v. New Jersey, a case decided within the Court's original jurisdiction, is a unique precedent. Disposition of that case necessarily required a departure from the Court's usual mode of decisionmaking. Our role in this country's scheme of government is ordinarily a restricted one, limited in large measure to the resolution of conflicts calling for the interpretation and application either of statutory acts or of provisions of the Federal Constitution. In the performance of this function, an individual Justice's views as to what he might consider 'fair' or 'equitable' or 'expeditious' are largely immaterial. Infrequently, however, we are called on to resolve disputes arising under the original jurisdiction of the Court (Art. III, § 2) in which our judgment is unaided by statutory or constitutional directives.
25
In approaching such cases, we may find, as did the Court in Texas v. New Jersey, that fairness and expeditiousness provide the guideposts for our decision:
26
'(T)he issue here is not controlled by statutory or constitutional provisions or by past decisions, nor is it entirely one of logic. It is fundamentally a question of ease of administration and of equity.' Id., at 683, 85 S.Ct., at 631.
27
The case before us today requires the application of similar principles, and I agree that Mr. Justice Black's opinion in Texas v. New Jersey points the way to the most desirable result. In my view, however, the majority's application of that precedent to the facts of this case offends both the 'fairness' and 'ease of administration' bases of that opinion.
28
The Court in Texas v. New Jersey was asked to decide which States could take title to escheatable intangible personal property in the form of debts owed by Sun Oil Co. to a large number of individual creditors. After rejecting several alternatives offered by the parties, the Court adopted the rule proposed by the State of Florida and approved by the Special Master. Under that rule the power to escheat the debts in question, in the first instance, was to be accorded 'to the State of the creditor's last known address as shown by the debtor's books and records.' Id., at 680—681, 85 S.Ct., at 630. In the 'infrequent' case in which no record of last address was available or in which the appropriate State's laws did not provide for the escheat of abandoned intangibles, the property was to go to the State of the debtor's corporate domicile. Id., at 682, 85 S.Ct., at 631.
29
This disposition recommended itself to the Court for several reasons. The rule was generally consistent with the common-law maxim 'mobilia sequuntur personam'* under which intangible personal property may be found to follow the domicile of its owner—here the creditor. Id., at 680, n. 10, 85 S.Ct., at 630. In looking to the residence of the creditor, the rule adopted by the Court recognized that the Company's unclaimed debts were assets of the individual creditors rather than assets of the debtor. Id., at 681, 85 S.Ct., at 630. Also, in distributing the property among the creditors' States, the rule had the advantage of dividing the property in a manner roughly proportionate to the commercial activities of each State's residents. In using the last-known address as the sole indicator of domicile, the rule would be easy to administer and apply. The Court recognized, of course, that this approach might lead to the escheat of property to a State from which the creditor had removed himself in the period since the debt arose. Yet it concluded that these instances would 'tend to a large extent to cancel each other out,' and would not disrupt the basic fairness and expeditiousness of the result. Id., at 681, 85 S.Ct., at 631.
30
Paradoxically, the mechanistic application of the Texas v. New Jersey rule to the present case leads ultimately to the defeat of each of the beneficial justifications for that rule. Unlike the records of the numerous debts owed by Sun Oil, Western Union's records may reflect the creditors' addresses for only a relatively small percentage of the transactions. As a consequence, the greater portion of the entire Western Union fund will go to the State of New York—the State of corporate domicile. Effectively then, the obligation of the debtor will be converted into an asset of the debtor's State of domicile to the exclusion of the creditors' States. The Court in Texas v. New Jersey specifically repudiated this result on the ground that it was inconsistent with 'principles of fairness.' Id., at 680, 85 S.Ct., at 630. It would have 'exalt(ed) a minor factor to permit escheat of obligations incurred all over the country by the State in which the debtor happened to incorporate itself.' Ibid. The fact that the Court was willing to permit this result in the few cases in which no record of address was available or in which no law of escheat governed, does not diminish the clear view of the Court that this result would be impermissible as a basis for disposing of more than a small minority of the debts. Yet the decision today ignores the Court's unwillingness to 'exalt' the largely coincidental domicile of the corporate debtor. It also disregards the Court's clearly expressed intent that the escheatable property be distributed in proportions roughly comparable to the volume of transactions conducted in each State.
31
Furthermore, the rule today is incompatible with the Court's view in Texas v. New Jersey that an easily and inexpensively discernible mode of allocation be utilized. The majority's rule will require the examination of every available money order application to determine whether the applicant filled out the address blank for his own address, or in the case of money order drafts received but not cashed, whether the holder's address had been preserved. Western Union estimated in the stipulated statement of facts that such an item-by-item examination could be undertaken at a cost of approximately $175,000. Report of the Special Master 16.
32
In sum, the invocation of the Texas v. New Jersey rule in the manner contemplated by the majority will lead to a result that is neither expeditious nor equitable.
II
33
The reasons underlying Texas v. New Jersey could best be effectuated by a relatively minor but logical deviation in the manner in which that rule is implemented in this case. Rather than embarking upon a potentially fruitless search for the creditor's last-known address as a rough indicator of domicile, reliance should be placed upon the State where the debtor-creditor relationship was established. In most cases that State is likely also to be the site of the creditor's domicile. In other words, in the case of money orders sent and then returned to the initiating Western Union office because the sendee failed to claim the money, the State in which the money order was purchased may be presumed to be the State of the purchaser-creditor's domicile. And, where the draft has been received by either the initiating party or by the recipient but not negotiated, the State in which the draft was issued may be assumed to be the State of that creditor's domicile.
34
This modification is preferable, first, because it preserves the equitable foundation of the Texas v. New Jersey rule. The State of the corporate debtor's domicile is denied a 'windfall'; the fund is divided in a proportion approximating the volume of transactions occurring in each State; and the integrity of the notion that these amounts represent assets of the individual purchasers or recipients of money orders is maintained. Secondly, the relevant information would be more easily obtainable. The place of purchase and the office of destination are reflected in Western Union's ledger books and it would, therefore, be unnecessary to examine the innumerable application forms themselves. Since the ledgers are more readily available, the allocation of the fund would be effected at less expense than would be required by the majority's resolution.
35
Despite these advantages, the Special Master rejected this alternative. He reasoned that an undetermined number of these transactions must have taken place outside the creditors' State of domicile. Specifically, he cited the cases in which a New Jersey or Connecticut resident might purchase a money order in New York, or cases in which a resident of Virginia or Maryland might make his purchase in the District of Columbia. Report of the Special Master 18. While such cases certainly exist, they are merely exceptions to a generally reliable rule that money order purchases are likely to have occurred within the State of the purchaser's domicile. That perfection is not achieved is no reason to reject this alternative. The Texas v. New Jersey Court recognized that absolute fairness was not obtainable and that the most that could be expected was a rule providing a reasonable approximation. Id., at 681 n. 11, 85 S.Ct., at 630, 13 L.Ed.2d 596. Certainly this objection should not be allowed to frustrate the better alternative in favor of one that is less fair and more difficult to administer.
III
36
The majority opinion intimates, as I think it must, that the ultimate consequence of its decision today is inconsistent (ante, at 214) with the result in Texas v. New Jersey. While the opinion appears to recognize that New York will reap the very 'windfall' that Texas v. New Jersey sought to avoid, its refusal to bend in the face of this consequence goes largely unexplained. Apparently, the basis for its decision is the conviction that the Court's prior precedent was designed to settle the question of escheat of intangible personal property 'once and for all.' Id., at 678, 85 S.Ct., at 629. The majority adheres to the existing rule because of some apprehension that flexibility in this case will deprive the Court of a satisfactory test for the resolution of future cases. The opinion anticipates that departure from Texas v. New Jersey will leave other cases to be decided on an ad hoc basis, depending in each case on the 'adequacy of the debtor's records.' Ante, at 215. Although the factual circumstances of future cases cannot be predicted, it is likely that most of such cases can be resolved within the principles of Texas v. New Jersey. The factual range is limited. The debtor either will or will not maintain creditors' addresses in the ordinary course of business. In some categories of transactions, such as those involving money orders and traveler's checks, adequate address records may not be available. In the case of ordinary corporate debts, however, it is more likely that records will be available. Moreover, as the majority points out, any State is free to require corporations doing business in that State to maintain records of their creditors' addresses. Ante, at 215.
37
In short, the threat of frequent and complicated cases in this area seems remote. It provides little justification for the majority's Cinderella-like compulsion to accommodate this ill-fitting precedential "slipper." From a result that seems both inflexible and inequitable, I dissent.
1
Of the remaining States party to this case, Florida has filed exceptions as defendant, and Connecticut and Indiana as intervening plaintiffs. New Jersey has filed a brief amicus curiae in support of Pennsylvania's position.
2
We granted leave to file the bill of complaint, 398 U.S. 956, 90 S.Ct. 2161, 26 L.Ed.2d 540, permitted the State of Connecticut to intervene as a party plaintiff, and appointed Mr. John F. Davis as a Special Master to take evidence and make appropriate reports. 400 U.S. 811, 91 S.Ct. 30, 27 L.Ed.2d 39. Thereafter, California and Indiana were permitted to intervene as plaintiffs, and Arizona as a defendant. 400 U.S. 924, 91 S.Ct. 182, 27 L.Ed.2d 183; 400 U.S. 1019, 91 S.Ct. 579, 27 L.Ed.2d 631; 401 U.S. 931, 91 S.Ct. 914, 28 L.Ed.2d 211.
3
The exception of Indiana as to a typographical error in the recommended decree is sustained. The phrase 'escheat of custodial taking' in paragraph 2, lines 4—5 of the decree should read 'escheat or custodial taking.'
4
The Pennsylvania statute, Act of July 29, 1953, P.L. 986, § 1 (Pa.Stat.Ann., Tit. 27, § 333) provides in part:
'(b) Whensoever the . . . person entitled to any . . . personal property within or subject to the control of the Commonwealth or the whereabouts of such . . . person entitled has been or shall be and remain unknown for the period of seven successive years, such . . . personal property . . . shall escheat to the Commonwealth . . ..
'(c) Whensoever any . . . personal property within or subject to the control of this Commonwealth has been or shall be and remain unclaimed for the period of seven successive years, such . . . personal property . . . shall escheat to the Commonwealth . . ..'
5
The Court has taken no action on the plea for temporary injunction, and accepts the recommendation of the Special Master that it now 'be denied as unnecessary.' Report 3 n. 2.
6
New York makes no claim with respect to money orders issued before 1930.
7
Section 1309 of New York's Abandoned Property Law, 2 1/2 McKinney's Consol.Laws, c. 1, § 1309, provides for the custodial taking, not escheat, of uncashed money orders, so that 'the rights of a holder of a . . . money order to payment . . . shall be in no wise affected, impaired or enlarged by reason of the provisions of this section or by reason of the payment to the state comptroller of abandoned property hereunder.'
8
Insofar as the invocation of any provision of the Revised Uniform Disposition of Unclaimed Property Act would be inconsistent with this decree, the decree prevails. See North Carolina State Board of Education v. Swann, 402 U.S. 43, 45—46, 91 S.Ct. 1284, 1285—1286, 28 L.Ed.2d 586 (1971).
*
See Blodgett v. Silberman, 277 U.S. 1, 9—10, 48 S.Ct. 410, 413—414, 72 L.Ed. 749 (1928).
| 1011
|
407 U.S. 451
92 S.Ct. 2196
33 L.Ed.2d 51
Pecola Annette WRIGHT et al., Petitioners,v.COUNCIL OF the CITY OF EMPORIA et al.
No. 70—188.
Argued March 1, 1972.
Decided June 22, 1972.
Syllabus
In 1967, Emporia, Virginia, which is located in the center of
Greensville County, changed from a 'town' to a politically
independent 'city' authorized by state law to provide its own
public school system. By a shared-cost agreement with the county,
Emporia in 1968 continued an arrangement, which antedated its
change of status, to use the county public school system for
education of its children. As a consequence of the present
desegregation lawsuit initiated in 1965, the single school
division was operating under a 'freedom of choice' plan approved
by the District Court. Petitioners moved to modify that plan
following this Court's decision in Green v. County School Board,
etc., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. The District
Court, after a hearing, on June 25, 1969, ordered petitioners'
'pairing' plan, to take effect as of the start of the 1969—1970
school year. Two weeks after entry of the District Court's decree,
the city announced its plan to operate a separate school system
and sought termination of the 1968 agreement. On August 1, 1969,
petitioners filed a supplemental complaint seeking to enjoin the
city council and school board (named as additional parties
defendant) from withdrawing Emporia children from the county
schools. Following hearings, the District Court found that the
effect of Emporia's withdrawal would be a 'substantial increase in
the proportion of whites in the schools attended by city
residents, and a concomitant decrease in the county schools.' In
addition to the disparity in racial percentages, the court found
that the proportion of whites in county schools might drop as
county-school whites shifted to private academies, while some
whites might return to city schools from the academies they
previously atended; that two formerly all-white schools (both
better equipped and better located than the county schools) are in
Emporia, while all the schools in the surrounding county were
formerly all-Negro; and that Emporia, which long had the right to
establish a separate school system, did not decide to do so until
the court's order prevented the county from continuing its
long-maintained segregated school system. The court concluded that
Emporia's withdrawal would frustrate the June 25 decree, and
enjoined respondents from
1
Page 452
pursuing their plan. Holding that the question whether new school
district boundaries should be permitted in areas with a history of
state-enforced racial segregation must be resolved in terms of the
'dominant purpose of (the) boundary realignment,' the Court of
Appeals concluded that Emporia's primary purpose was 'benign' and
not a mere 'cover-up' for racial discrimination, and reversed.
Held:
1. In determining whether realignment of school districts by
officials comports with the requirements of the Fourteenth
Amendment, courts will be guided, not by the motivation of the
officials, but by the effect of their action. Pp. 461—462.
2. In the totality of the circumstances of this case, the
District Court was justified in concluding that Emporia's
establishment of a separate school system would impede the process
of dismantling the segregated school system. Pp. 463—471.
4 Cir. 442 F.2d 570, reversed.
Samuel W. Tucker, Richmond, Va., for petitioners.
D. Dortch Warriner, Emporia, Va., for respondents.
djQ Mr. Justice STEWART delivered the opinion of the Court.
We granted certiorari in this case, as in No. 70—130, United
States v. Scotland Neck City Board of Education,1 407 U.S. 484, 92
S.Ct. 2214, 33 L.Ed.2d 75, to consider the circumstances under
2
Page 453
which a federal court may enjoin state or local officials from
carving out a new school district from an existing district that
has not yet completed the process of dismantling a system of
enforced racial segregation. We did not address ourselves to this
rather narrow question in Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, and its
companion cases decided last Term,2 but the problem has confronted
other federal courts in one form or another on numerous occasions
in recent years.3 Here, as in Scotland Neck, the Court of Appeals
reversed a district court decision enjoining the creation of a new
school district. 4 Cir., 442 F.2d 570. We conclude that the Court
of Appeals erred in its interpretation of the legal principles
applicable in cases such as these, and that the District Court's
order was proper in the circumstances of this case.
I
The City of Emporia lies near the center of Greensville
County, Virginia, a largely rural area located in the North
Carolina border. Until 1967, Emporia was
3
Page 454
a 'town' under Virginia law, which meant that it was a part of the
surrounding county for practically all purposes, including the
purpose of providing public education for children residing in the
county.
In 1967, Emporia, apparently dissatisfied with the county's
allocation of revenues from the newly enacted state sales tax,
successfully sought designation as a 'city of the second class.'4
As such, it became politically independent from the surrounding
county, and undertook a separate obligation under state law to
provide free public schooling to children residing within its
borders.5 To fulfill this responsibility, Emporia at first sought
the county's agreement to continue operating the school system on
virtually the same basis as before, with Emporia sharing in the
administration as well as the financing of the schools.6 When the
county officials refused to enter into an arrangement of this
kind, Emporia agreed to a contract whereby the county would
continue to educate students residing in the city in exchange for
Emporia's payment of a specified share of the total cost of the
system. Under this agreement, signed in April 1968, Emporia had a
formal voice in the administration of the schools only through its
par-
4
Page 455
ticipation in the selection of a superintendent. The city and
county were designated as a single school 'division' by the State
Board of Education,7 and this arrangement was still in effect at
the time of the District Court's order challenged in this case.
This lawsuit began in 1965, when a complaint was filed on
behalf of Negro children seeking an end to state-enforced racial
segregation in the Greensville County school system. Prior to
1965, the elementary and high schools located in Emporia served
all white children in the county, while Negro children throughout
the county were assigned to a single high school or one of four
elementary schools, all but one of which were located outside the
Emporia town boundary. In January 1966, the District Court
approved a so-called 'freedom of choice' plan that had been
adopted by the county in April of the previous year. Wright v.
County School Board of Greensville County, D.C., 252 F.Supp. 378.
No white students ever attended the Negro schools under this plan,
and in the 1968—1969 school year only 98 of the county's 2,510
Negro students attended white schools. The school faculties
remained completely segregated.
Following our decision in Green v. County School Board, etc.,
391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, holding that a
freedom-of-choice plan was an unacceptable method of desegregation
where it failed. 'to provide meaningful assurance of prompt and
effective disestablishment of a dual system,' id., at 438, 88
S.Ct. at 1694, the petitioners filed a motion for further relief.
The District Court ordered the county to demonstrate its
compliance with the holding in Green, or to submit a plan designed
to bring the schools into compliance. After various delays, during
which the freedom-of-choice sy-
5
Page 456
stem remained in effect, the county submitted two alternative
plans. The first would have preserved the existing system with
slight modifications, and the second would have assigned students
to schools on the basis of curricular choices or standardized test
scores. The District Court promptly rejected the first of these
proposals, and took the second under advisement. Meanwhile, the
petitioners submitted their own proposal, under which all children
enrolled in a particular grade level would be assigned to the same
school, thus eliminating any possibility of racial bias in pupil
assignments. Following an evidentiary hearing on June 23, 1969,
the District Court rejected the county's alternative plan, finding
that it would 'substitute . . . one segregated school system for
another segregated school system.' By an order dated June 25, the
court ordered the county to implement the plan submitted by the
petitioners, referred to by the parties as the 'pairing' plan, as
of the start of the 1969—1970 school year.8
Two weeks after the District Court entered its decree, the
Emporia City Council sent a letter to the county Board of
Supervisors announcing the city's intention to operate a separate
school system beginning in September. The letter stated that an
'in-depth study and analysis of the directed school arrangement
reflects a totally unacceptable situation to the Citizens and City
Council of the City of Emporia.' It asked that the 1968
city-county agreement be terminated by mutual consent, and that
title to school property located within Emporia be transferred to
the city. The letter further
6
Page 457
advised that children residing in the county would be permitted to
enroll in the city schools on a tuition basis.9 At no time during
this period did the city officials meet with the county council or
school board to discuss the implementation of the pairing decree,
nor did they inform the District Court of their intentions with
respect to the separate school system.
The county school board refused either to terminate the
existing agreement or to transfer school buildings to Emporia,
citing its belief that Emporia's proposed action was 'not in the
best interest of the children in Greensville County.' The City
Council and the City School Board nevertheless continued to take
steps toward implementing the separate system throughout the month
of July. Notices were circulated inviting parents to register
their children in the city system, and a request was made to the
State Board of Education to certify Emporia as a separate school
division. This request was tabled by the State Board at its August
meeting, 'in light of matters pending in the federal court.'
According to figures later supplied to the District Court,
there were 3,759 children enrolled in the unitary system
contemplated by the desegregation decree, of whom 66% were Negro
and 34% were white. Had Emporia established a separate school
system, 1,123 of these students would have attended the city
schools, of whom 48% were white. It is undisputed that the city
proposed to operate its own schools on a unitary
7
Page 458
basis, with all children enrolled in any particular grade
attending the same school.
On August 1, 1969, the petitioners filed a supplemental
complaint naming the members of the Emporia City Council and the
City School Board as additional parties defendant,10 and seeking
to enjoin them from withdrawing Emporia children from the county
schools. At the conclusion of a hearing on August 8, the District
Court found that the establishment of a separate school system by
the city would constitute 'an impermissible interference with and
frustration of' its order of June 25, and preliminarily enjoined
the respondents from taking 'any action which would interfere in
any manner whatsoever with the implementation of the Court's order
heretofore entered. . . .'
The schools opened in September under the pairing order,
while Emporia continued to work out detailed plans and budget
estimates for a separate school system in the hope that the
District Court would allow its implementation during the following
school year. At a further hearing in December, the respondents
presented an expert witness to testify as to the educational
advantages of the proposed city system, and asked that the
preliminary injunction be dissolved. On March 2, 1970, the
District Court entered a memorandum opinion and order denying the
respondents' motion and making the injunction permanent. Wright v.
County School Board of Greensville County, 309 F.Supp. 671. The
8
Page 459
Court of Appeals for the Fourth Circuit reversed, 442 F.2d 570,
but stayed its mandate pending action by this Court on a petition
for certiorari, which we granted. 404 U.S. 820, 92 S.Ct. 56, 30
L.Ed.2d 48.
II
Emporia takes the position that since it is a separate
political jurisdiction entitled under state law to establish a
school system independent of the county, its action may be
enjoined only upon a finding either that the state law under which
it acted is invalid, that the boundaries of the city are drawn so
as to exclude Negroes, or that the disparity of the racial balance
of the city and county schools of itself violates the
Constitution. As we read its opinion, the District Court made no
such findings; nor do we.
The constitutional violation that formed the predicate for
the District Court's action was the enforcement until 1969 of
racial segregation in a public school system of which Emporia had
always been a part. That finding has not been challenged, nor has
Emporia questioned the propriety of the 'pairing' order of June
25, 1969, which was designed to remedy the condition that offended
the Constitution. Both before and after it became a city, Emporia
educated its children in the county schools. Only when it became
clear—15 years after our decision in Brown v. Board of Education,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873—that segregation in the
county system was finally to be abolished, did Emporia attempt to
take its children out of the county system. Under these
circumstances, the power of the District Court to enjoin Emporia's
withdrawal from that system need not rest upon an independent
constitutional violation. The court's remedial power was invoked
on the basis of a finding that the dual school system violated the
Constitution, and since the city and the county constituted
9
Page 460
but one unit for the purpose of student assignments during the
entire time that the dual system was maintained, they were
properly treated as a single unit for the purpose of dismantling
that system.
In Green v. County School Board, etc., 391 U.S. 430, 88 S.Ct.
1689, 20 L.Ed.2d 716, the issue was whether the school board's
adoption of a 'freedom of choice' plan constituted adequate
compliance with the mandate of Brown v. Board of Education, 349
U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II). We did not hold
that a freedom-of-choice plan is of itself unconstitutional.
Rather, we decided that any plan is 'unacceptable' where it 'fails
to provide meaningful assurance of prompt and effective
disestablishment of a dual system. . . .' 391 U.S., at 438, 88
S.Ct. at 1694. In Monroe v. Board of Commissioners, etc., 391 U.S.
450, 88 S.Ct. 1700, 20 L.Ed.2d 733, we applied the same principle
in rejecting a 'free transfer' plan adopted by the school board as
a method of desegregation:
'We do not hold that 'free transfer' can have no place in a
desegregation plan. But like 'freedom of choice,' if it
cannot be shown that such a plan will further rather than
delay conversion to a unitary, nonracial, nondiscriminatory
school system, it must be held unacceptable.' Id., at 459, 88
S.Ct. at 1705.
The effect of Emporia's proposal was to erect new boundary
lines for the purpose of school attendance in a district where no
such lines had previously existed, and where a dual school system
had long flourished. Under the principles of Green and Monroe,
such a proposal must be judged according to whether it hinders or
furthers the process of school desegregation. If the proposal
would impede the dismantling of the dual system, then a district
court, in the exercise of its remedial discretion, may enjoin it
from being carried out.
The Court of Appeals apparently did not believe this case to
be governed by the principles of Green and
10
Page 461
Monroe.11 It held that the question whether new school district
boundaries should be permitted in areas with a history of
state-enforced racial segregation is to be resolved in terms of
the 'dominant purpose of (the) boundary realignment.'
'If the creation of a new school district is designed to
further the aim of providing quality education and is
attended secondarily by a modification of the racial balance,
short of resegregation, the federal courts should not
interfere. If, however, the primary purpose for creating a
new school district is to retain as much of separation of the
races as possible, the state has violated its affirmative
constitutional duty to end state supported school
segregation.' 442 F.2d at 572.
Although the District Court had found that 'in a sense, race
was a factor in the city's decision to secede,' 309 F.Supp., at
680, the Court of Appeals found that the primary purpose of
Emporia's action was 'benign,' and was not 'merely a cover-up' for
racial discrimination. 442 F.2d, at 574.
This 'dominant purpose' test finds no precedent in our
decisions. It is true that where an action by school authorities
is motivated by a demonstrated discriminatory purpose, the
existence of that purpose may add to the discriminatory effect of
the action by intensifying the stigma of implied racial
inferiority. And where a school board offers nonracial
justifications for a plan that is less effective than other
alternatives for dismantling a dual school system, a demonstrated
racial purpose may be taken into consideration in determining the
weight to be given to the proffered justification.
11
Page 462
Cf. Green, supra, 391 U.S. at 439, 88 S.Ct. at 1694. But as we
said in Palmer v. Thompson, 403 U.S. 217, 225, 91 S.Ct. 1940,
1945, 29 L.Ed.2d 438, it 'is difficult or impossible for any court
to determine the 'sole' or 'dominant' motivation behind the
choices of a group of legislators,' and the same may be said of
the choices of a school board. In addition, an inquiry into the
'dominant' motivation of school authorities is as irrelevant as it
is fruitless. The mandate of Brown II was to desegregate schools,
and we have said that '(t)he measure of any desegregation plan is
its effectiveness.' Davis v. School Commissioners of Mobile
County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577.
Thus, we have focused upon the effect—not the purpose or
motivation—of a school board's action in determining whether it is
a permissible method of dismantling a dual system. The existence
of a permissible purpose cannot sustain an action that has an
impermissible effect.
The reasoning of the Court of Appeals in this case is at odds
with that of other federal courts that have held that splinter
school districts may not be created 'where the effect—to say
nothing of the purpose—of the secession has a substantial adverse
effect on desegregation of the county school district.' Lee v.
Macon County Board of Education, 5 Cir., 448 F.2d 746, 752. See
also Stout v. United States (Jefferson County Board of Education
v. Board of Education for City of Pleasant Grove), 5 Cir., 448
F.2d 403, 404; Haney v. County Board of Education, 8 Cir., 410
F.2d 920, 924; Burleson v. County Board of Election Commissioners,
D.C., 308 F.Supp. 352, 356, aff'd, 8 Cir., 432 F.2d 1356; Aytch v.
Mitchell, D.C., 320 F.Supp. 1372, 1377. Though the purpose of the
new school districts was found to be discriminatory in many of
these cases, the courts' holdings rested not on motivation or
purpose, but on the effect of the action upon the dismantling of
the dual school systems involved. That was the focus of the
District Court in this case, and we hold that its approach was
proper.
12
Page 463
III
The basis for the District Court's ruling was its conclusion
that if Emporia were allowed to establish an independent system,
Negroes remaining in the county schools would be deprived of what
Brown II promised them: a school system in which all vestiges of
enforced racial segregation have been eliminated. The District
Court noted that the effect of Emporia's withdrawal would be a
'substantial increase in the proportion of whites in the schools
attended by city residents, and a concomitant decrease in the
county schools.' 309 F.Supp., at 680. In addition, the court found
that the departure of the city's students, its leadership, and its
financial support, together with the possible loss of teachers to
the new system, would diminish the chances that transition to
unitary schools in the county would prove 'successful.'
Certainly, desegregation is not achieved by splitting a
single school system operating 'white schools' and 'Negro schools'
into two new systems, each operating unitary schools within its
borders, where one of the two new systems is, in fact, 'white' and
the other is, in fact, 'Negro.' Nor does a court supervising the
process of desegregation exercise its remedial discretion
responsibly where it approves a plan that, in the hope of
providing better 'quality education' to some children, has a
substantial adverse effect upon the quality of education available
to others. In some cases, it may be readily perceived that a
proposed subdivision of a school district will produce one or both
of these results. In other cases, the likelihood of such results
may be less apparent. This case is of the latter kind, but an
examination of the record shows that the District Court's
conclusions were adequately supported by the evidence.
13
Page 464
Data submitted to the District Court at its December hearing
showed that the school system in operation under the 'pairing'
plan, including both Emporia and the county, had a racial
composition of 34% white and 66% Negro. If Emporia had established
its own system, and if total enrollment had remained the same, the
city's schools would have been 48% white and 52% Negro, while the
county's schools would have been 28% white and 72% Negro.
We need not and do not hold that this disparity in the racial
composition of the two systems would be a sufficient reason,
standing alone, to enjoin the creation of the separate school
district. The fact that a school board's desegregation plan leaves
some disparity in racial balance among various schools in the
system does not alone make that plan unacceptable.12 We observed
in Swann, supra, that '(t)he constitutional command to desegregate
schools does not mean that every school in every community must
always reflect the racial composition of the school system as a
whole.' 402 U.S., at 24, 91 S.Ct. at 1280.
But there is more to this case than the disparity in racial
percentages reflected by the figures supplied by the school board.
In the first place, the District Court found that if Emporia were
allowed to withdraw from the existing system, it 'may be
anticipated that the proportion of whites in county schools may
drop as those who can register in private academies,' 309 F.Supp.,
at 680, while some whites might return to the city schools from
the private schools in which they had previously enrolled. Thus,
in the judgment of the District Court, the statistical breakdown
of the 1969—1970 enrollment figures between city residents and
county
14
Page 465
residents did not reflect what the situation would have been had
Emporia established its own school system.
Second, the significance of any racial disparity in this case
is enhanced by the fact that the two formerly all-white schools
are located within Emporia, while all the schools located in the
surrounding county were formerly all-Negro. The record further
reflects that the school buildings in Emporia are better equipped
and are located on better sites than are those in the county. We
noted in Swann that factors such as these may in themselves
indicate that enforced racial segregation has been perpetuated:
'Independent of student assignment, where it is possible to
identify a 'white school' or a 'Negro school' simply by
reference to the racial composition of teachers and staff,
the quality of school buildings and equipment, or the
organization of sports activities, a prima facie case of
violation of substantive constitutional rights under the
Equal Protection Clause is shown.' 402 U.S., at 18, 91 S.Ct.,
at 1277.
Just as racial balance is not required in remedying a dual
system, neither are racial ratios the sole consideration to be
taken into account in devising a workable remedy.
The timing of Emporia's action is a third factor that was
properly taken into account by the District Court in assessing the
effect of the action upon children remaining in the county
schools. While Emporia had long had the right under state law to
establish a separate school system, its decision to do so came
only upon the basis of—and, as the city officials conceded, in
reaction to—a court order that prevented the county system from
maintaining any longer the segregated system that had lingered for
15 years after Brown I. In the words of Judge Winter, dissenting
in the Court
15
Page 466
of Appeals, '(i)f the establishment of an Emporia school district
is not enjoined, the black students in the county will watch as
nearly one-half the total number of white students in the county
abandon the county schools for a substantially whiter system.' 442
F.2d 588, at 590. The message of this action, coming when it did,
cannot have escaped the Negro children in the county. As we noted
in Brown I: 'To separate (Negro school children) from others of
similar age and qualifications solely because of their race
generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely
ever to be undone.' 347 U.S., at 494, 74 S.Ct., at 691. We think
that, under the circumstances, the District Court could rationally
have concluded that the same adverse psychological effect was
likely to result from Emporia's withdrawal of its children from
the Greensville County system.
The weighing of these factors to determine their effect upon
the process of desegregation is a delicate task that is aided by a
sensitivity to local conditions, and the judgment is primarily the
responsibility of the district judge. See Brown II, supra, 349
U.S. at 299, 75 S.Ct. at 755.13 Given the totality of the
circumstances, we hold that the District Court was justified in
its conclusion that Emporia's establishment of a separate system
would actually impede the process of dismantling the existing dual
system.
16
Page 467
IV
Against these considerations, Emporia advances arguments that
a separate system is necessary to achieve 'quality education' for
city residents, and that it is unfair in any event to force the
city to continue to send its children to schools over which the
city, because of the character of its arrangement with the county,
has very little control. These arguments are entitled to
consideration by a court exercising its equitable discretion where
they are directed to the feasibility or practicality of the
proposed remedy. See Swann v. Charlotte-Mecklengurg Board of
Education, supra, 402 U.S., at 31, 91 S.Ct., at 1283. But, as we
said in Green v. County School Board, etc., supra, the
availability of 'more promising courses of action' to dismantle a
dual system 'at the least . . . places a heavy burden upon the
board to explain its preference for an apparently less efective
method.' 391 U.S., at 439, 88 S.Ct., at 1695.
In evaluating Emporia's claims, it must be remembered that
the city represents the interests of less than one-third of the
students in the system being desegregated. Only the city officials
argue that their plan is preferable to the 'pairing' plan
encompassing the whole of the city-county system. Although the
county school board took no position in the District Court either
for or against Emporia's action, it had previously adopted a
resolution stating its belief that the city's action was not in
the best interests of the county children. In terms of Green, it
was only the respondents—not the county school board—who expressed
a 'preference for an apparently less effective method' of
desegregation.
At the final hearing in the District Court, the respondents
presented detailed budgetary proposals and other evidence
demonstrating that they contemplated a more
17
Page 468
diverse and more expensive educational program than that to which
the city children had been accustomed in the the Greensville
County schools. These plans for the city system were developed
after the preliminary injunction was issued in this case. In
August 1969, one month before classes were scheduled to open, the
city officials were intent upon operating a separate system
despite the fact that the city had no buildings under lease, to
teachers under contract, and no specific plans for the operation
of the schools. Thus, the persuasiveness of the 'quality
education' rationale was open to question. More important,
however, any increased quality of education provided to city
students would, under the circumstances found by the District
Court, have been purchased only at the price of a substantial
adverse effect upon the viability of the county system. The
District Court, with its responsibility to provide an effective
remedy for segregation in the entire city-county system, could not
properly allow the city to make its part of that system more
attractive where such a result would be accomplished at the
expense of the children remaining in the county.
A more weighty consideration put forth by Emporia is its lack
of formal control over the school system under the terms of its
contract with the county. This argument is properly addressed to
the practicality of the District Court's action. As we said in
Davis v. Board of School Commissioners of Mobile County, 402 U.S.,
at 37, 91 S.Ct., at 1292:
'Having once found a violation, the district judge or school
authorities should make every effort to achieve the greatest
possible degree of actual desegregation, taking into account
the practicalities of the situation.'
And in Swann, supra, we noted that a desegregation plan
cannot be regarded as a proper exercise of a dis-
18
Page 469
trict court's discretion where it is not 'reasonable, feasible and
workable.' 402 U.S., at 31, 91 S.Ct., at 1283.
We do not underestimate the deficiencies, from Emporia's
standpoint, in the arrangement by which it undertook in 1968 to
provide for the education of its children. Direct control over
decisions vitally affecting the education of one's children is a
need that is strongly felt in our society, and since 1967 the
citizens of Emporia have had little of that control. But Emporia
did find its arrangement with the county both feasible and
practical up until the time of the desegregation decree issued in
the summer of 1969. While city officials testified that they were
dissatisfied with the terms of the contract prior to that time,
they did not attempt to change it. They argued that the
arrangement became intolerable when the 'pairing' decree was
entered, because the county officials who would control the budget
of the unitary system lacked the desire to make the unitary system
work. The District Court did not accept the contention that a lack
of enthusiasm on the part of county leaders would, if Emporia
children remained in the system, block a successful transition to
unitary schools. The court felt that the 'desire of the city
leaders, coupled with their obvious leadership ability,' would
make itself felt despite the absence of any formal control by the
city over the system's budget and operation, and that the city's
leadership would be 'an important facet in the successful
operation of any court-ordered plan.' 309 F.Supp., at 679. Under
these circumstances, we cannot say that the enforced continuation
of the single city-county system was not 'reasonable, feasible and
workable.'14
19
Page 470
The District Court explicitly noted in its opinion that its
injunction does not have the effect of locking Emporia into its
present circumstances for all time. As already noted, our holding
today does not rest upon a conclusion that the disparity in racial
balance between the city and county schools resulting from
separate systems would, absent any other considerations, be
unacceptable. The city's creation of a separate school system was
enjoined because of the effect it would have had at the time upon
the effectiveness of the remedy ordered to dismantle the dual
system that had long existed in the area. Once the unitary system
has been established and accepted, it may be that Emporia, if it
still desires to do so, may establish an independent system
without such an adverse effect upon the students remaining in the
county, or it may be able to work out a more satisfactory
arrangement with the county for joint operation of the existing
system. We hold only that a new school district may not be created
where its effect would be to impede the process of dismantling a
dual system. And in making that essentially factual determination
in any particular case, 'we must of necessity rely to a large
extent, as this Court has for more than 16 years, on the informed
judgment of the district courts in the first instance and on
courts of appeals.' Swann, supra, 402 U.S., at 28, 91 S.Ct., at
1282. In this case, we believe that the District Court
20
Page 471
did not abuse its discretion. For these reasons, the judgment of
the Court of Appeals is reversed.
Reversed.
djQ Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN, Mr.
Justice POWELL, and Mr. Justice REHNQUIST join, dissenting.
If it appeared that the city of Emporia's operation of a
separate school system would either perpetuate racial segregation
in the schools of the Greensville County area or otherwise
frustrate the dismantling of the dual system in that area, I would
unhesitatingly join in reversing the judgment of the Court of
Appeals and reinstating the judgment of the District Court.
However, I do not believe the record supports such findings and
can only conclude that the District Court abused its discretion in
preventing Emporia from exercising its lawful right to provide for
the education of its own children.
By accepting the District Court's conclusion that Emporia's
operation of its own schools would 'impede the dismantling of the
dual system,' the Court necessarily implies that the result of the
severance would be something less than unitary schools, and that
segregated education would persist in some measure in the
classrooms of the Greensville County area. The Court does not
articulate the standard by which it reaches this conclusion, and
its result far exceeds the contemplation of Brown v. Board of
Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and
all succeeding cases, including Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554
(1971).
If the severance of the two systems were permitted to
proceed, the assignment of children to schools would depend solely
on their residence. County residents would attend county schools,
and city residents would attend city schools. Assignment to
schools would in no sense
21
Page 472
depend on race. Such a geographic assignment pattern is prima
facie consistent with the Equal Protection Clause. See Spencer v.
Kugler, 326 F.Supp. 1235 (D.C.N.J.1971), aff'd, 404 U.S. 1027, 92
S.Ct. 707, 30 L.Ed.2d 723 (1972).
However, where a school system has been operated on a
segregated basis in the past, and where ostensibly neutral
attendance zones or district lines are drawn where none have
existed before, we do not close our eyes to the facts in favor of
theory. In Green v. County School Board, 391 U.S. 430, 88 S.Ct.
1689, 20 L.Ed.2d 716 (1968), the Court ruled that dual school
systems must cease to exist in an objective sense as well as under
the law. It was apparent that under the freedom-of-choice plan
before the Court in Green, the mere elimination of mandatory
segregation had privided no meaningful remedy. Green imposed on
school boards the responsibility to 'fashion steps which promise
realistically to convert promptly to a system without a 'white'
school and a 'Negro' school, but just schools.' 391 U.S., at 442,
88 S.Ct., at 1696. That, I believe, is precisely what would result
if Emporia were permitted to operate its own school system—schools
neither Negro nor white, 'but just schools.' As separate systems,
both Emporia and Greensville County would have a majority of Negro
students, the former slightly more than half, the latter slightly
more than two-thirds. In the words of the Court of Appeals, '(t)he
Emporia city unit would not be a white island in an otherwise
black county.' 442 F.2d, at 573. Moreover, the Negro majority in
the remaining county system would only slightly exceed that of the
entire county area including Emporia. It is undisputed that
education would be conducted on a completely desegregated basis
within the separate systems. Thus, the situation would in no sense
be comparable to that where the creation of attendance zones
within a single formerly segregated school system leaves an
inordinate number
22
Page 473
of one-race schools, such as were found in Davis v. Board of
School Comm'rs, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971).
Rather than perpetuating a dual system, I believe the proposed
arrangement would completely eliminate all traces of state imposed
segregation.
It is quite true that the racial ratios of the two school
systems would differ, but the elimination of such disparities is
not the mission of desegregation. We stated in Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S., at 24, 91
S.Ct., at 1280:
'If we were to read the holding of the District Court to
require, as a matter of substantive constitutional right, any
particular degree of racial balance or mixing, that approach
would be disapproved and we would be obliged to reverse. The
constitutional command to desegregate schools does not mean
that every school in every community must always reflect the
racial composition of the school system as a whole.'
It can no more be said that racial balance is the norm to be
sought, than it can be said that mere racial imbalance was the
condition requiring a judicial remedy. The pointlessness of such a
'racial balancing' approach is well illustrated by the facts of
this case. The District Courtand the petitioners have placed great
emphasis on the estimated six-percent increase in the proportion
of Negro students in the county schools that would result from
Emporia's withdrawal. I do not see how a difference of one or two
children per class1 would even be noticed, let alone how it would
render
23
Page 474
a school part of a dual system. We have seen that the normal
movement of populations could bring about such shifts in a
relatively short period of time. Obsession with such minor
statistical differences reflects the gravely mistaken view that a
plan providing more consistent racial ratios is somehow more
unitary than one which tolerates a lack of racial balance. Since
the goal is to dismantle dual school systems rather than to
reproduce in each classroom a microcosmic reflection of the racial
proportions of a given geographical area, there is no basis for
saying that a plan providing a uniform racial balance is more
effective or constitutionally preferred. School authorities may
wish to pursue that goal as a matter of policy, but we have made
it plain that it is not constitutionally mandated. See Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S., at 16, 91
S.Ct., at 1276.
The Court disavows a 'racial balancing' approach, and seeks
to justify the District Court's ruling by relying on several
additional factors thought to aggravate the effect of the racial
disparity. The real significance of these additional factors is so
negligible as to suggest that the racial inbalance itself may be
what the Court finds most unacceptable.
First, the Court raises the specter of resegregation
resulting from the operation of separate school systems in the
county area, but on the record in this case this is, at best,
highly speculative. The Court suggests two reasons why such an
additional racial shift could be anticipated with the existence of
a separate school system for Emporia: white students residing in
the county might abandon the public schools in favor of private
academies, and white students residing in the city might leave
private schools and enroll in the city school.
In assessing these projections it is necessary to compare the
nature of the proposed separate systems with
24
Page 475
that of the court-ordered 'pairing' system. Thus the first
possibility, that white students from the county might enter
private schools, assumes that white families would be more likely
to withdraw their children from public schools that are 72% Negro
than from those that are 66% Negro. At most, any such difference
would be marginal, and in fact it seems highly improbable that
there would be any difference at all. The second possibility
postulated by the Court seems equally unlikely; it assumes that
families from the city who had previously withdrawn their children
from the public schools due to impending desegregation, would
return their children to public schools having more Negro than
white pupils.
The Court does not mention the possibility of some form of
mass migration of white families into the city from the outlying
county. Of course, when there are adjoining school districts
differing in their racial compositions, it is always conceivable
that the differences will be accentuated by the so-called 'white
flight' phenomenon. But that danger seems remote in a situation
such as this where there is a predominantly Negro population
throughout the entire area of concern.
Second, the Court attaches significance to the fact that the
school buildings located in the county were formerly used as
all-Negro schools and intimates that these facilities are of
generally poorer quality than those in the city. But the District
Court made no such finding of fact, and the record does not
support the Court's suggestion on this point. Admittedly some
dissatisfaction was expressed with the sites of the elementary
schools in the county, and only the city elementary school has an
auditorium. However, all three elementary schools located in the
county are more modern than any school building located in the
city, and the county and city high school buildings are identical
in every respect.
25
Page 476
On a fair reading of the entire record, it can only be said that
any differences between the educational facilities located in the
city and those in the county are de minimis.
Finally, the Court states that the process of desegregation
would be impeded by the 'adverse psychological effect' that a
separate city system would have on Negro students in the county.
Here, again, the Court seeks to justify the District Court's
discretionary action by reliance on a factor never considered by
that court. More important, it surpasses the bounds of reason to
equate the psychological impact of creating adjoining unitary
school systems, both having Negro majorities, with the feelings of
inferiority referred to in Brown I as engendered by a segregated
school system. In Brown I the Court emphasized that the legal
policy of separating children in schools solely according to their
race inevitably generates a sense of inferiority. These
observations were supported by common human experience and
reinforced by psychological authority. Here the Court seeks to
make a similar judgment in a setting where no child is accorded
differing treatment on the basis of race. This wholly speculative
observation by the Court is supported neither by common experience
nor by scientific authority.
Even giving maximum rational weight to all of the factors
mentioned by the Court, I cannot conclude that separate systems
for Emporia and Greensville County would be anything less than
fully unitary and nonracial. The foundation and superstructure of
the dual system would be dissolved, and the result would not
factually preserve the separation of races that existed in the
past. We noted in Swann 'that the existence of some small number
of one-race, or virtually one-race, schools within a district is
not in and of itself the mark of a system that still practices
segregation by law.' 402
26
Page 477
U.S., at 26, 91 S.Ct., at 1281. This reflects our consistent
emphasis on the elimination of the discriminatory systems, rather
than on mere numbers in particular schools. The proposed systems
here would retain no 'one-race, or virtually one-race schools,'
but more important, all vestiges of the discriminatory system
would be removed. That is all the Constitution commands.
It is argued that even if Emporia's operation of its own
unitary school system would have been constitutionally
permissible, it was nevertheless within the equitable discretion
of the District Court to insist on a 'more effective' plan of
desegregation in the form of a county-wide school system. In Brown
v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083
(1955) (Brown II), the Court first conferred on the district
courts the responsibility to enforce the desegregation of the
schools, if school authorities failed to do so, according to
equitable remedial principles. While we have emphasized the
flexibility of the power of the district courts in this process,
the invocation of remedial jurisdiction is not equivalent to
having a school district placed in receivership. It has been
implicit in all of our decisions from Brown II to Swann, that if
local authorities devise a plan that will effectively eliminate
segregation in the schools, a district court must accept such a
plan unless there are strong reasons why a different plan is to be
perferred. A local school board plan that will eliminate dual
schools, stop discrimination, and improve the quality of education
ought not be cast aside because a judge can evolve some other plan
that accomplishes the same result, or what he considers a
preferable result, with a two percent, four percent, or six
percent difference in racial composition. Such an approach gives
controlling weight to sociological theories, not constitutional
doctrine.
This limitation on the discretion of the district courts
involves more than polite deference to the role of local
27
Page 478
governments. Local control is not only vital to continued public
support of the schools, but it is of overriding importance from an
educational standpoint as well. The success of any school system
depends on a vast range of factors that lie beyond the competence
and power of the courts. Curricular decisions, the structuring of
grade levels, the planning of extracurricular activities, to
mention a few, are matters lying solely within the province of
school officials, who maintain a day-to-day supervision that a
judge cannot. A plan devised by school officials is apt to be
attuned to these highly relevant educational goals; a plan deemed
preferable in the abstract by a judge might well overlook and thus
undermine these primary concerns.
The discretion of a district court is further limited where,
as here, it deals with totally separate political entities. This
is a very different case from one where a school board proposes
attendance zones within a single school district or even one where
a school district is newly formed within a county unit. Under
Virginia law, Emporia is as independent from Greensville County as
one State is from another. See City of Richmond v. Board of
Supervisors of Henrico County, 199 Va. 679, 684, 101 S.E.2d 641,
644 (1958); Murray v. City of Roanoke, 192 Va. 321, 324, 64 S.E.2d
804, 807 (1951). This may be an anomaly in municipal
jurisprudence, but it is Virginia's anomaly; it is of ancient
origin, and it is not forbidden by the Constitution. To bar the
city of Emporia from operating its own school system is to strip
it of its most important governmental responsibility, and thus
largely to deny its existence as an independent governmental
entity. It is a serious step and, absent the factors that persuade
me to the contrary in Scotland Neck,2 decided today, I am
unwilling to go that far.
28
Page 479
Although the rights and powers of a bona fide political
entity may not be used as a cloak for evasive action, neither can
those powers be nullified by judicial intervention to achieve a
unitary system in a particular way. When a plan devised by local
authorities crosses the threshold of achieving actual
desegregation, it is not for the district courts to overstep local
prerogatives and insist on some other alternative. Judicial power
ends when a dual school system has ceased to exist.
Since Emporia's operation of a separate school system would
not compromise the goal of eliminating dual schools, there is no
basis for requiring Emporia to demonstrate the necessity of its
decision. The 'heavy burden' test referred to in Green applies
only where there is serious reason to doubt the efficacy of a
school board's plan as a means of achieving desegregation, and
there is no basis for such doubt here. Nonetheless, the Court's
treatment of Emporia's reasons for establishing a separate system
merits comment.
The Court makes light of Emporia's desire to create a
high-quality, unitary school system for the children of its
citizens. In so doing, the Court disregards the following explicit
finding of the District Court:
'The city clearly contemplates a superior quality educational
program. It is anticipated that the cost will be such as to
require higher tax payments by city residents. A kindergarten
program, ungraded primary levels, health services, adult
education, and a low pupil-teacher ratio are included in the
plan. . . .' 309 F.Supp. at 674.
Furthermore, the Court suggests that if Emporia were in fact
to provide the top-flight educational program the District Judge
anticipated, it could only worsen the quality of education in the
remaining county schools. To be sure, there was cause for concern
over the relative quality of education offered in the county
schools;
29
Page 480
as the District Court observed, county officials did 'not embrace
the court-ordered unitary plan with enthusiasm.' 309 F.Supp., at
680. The record shows that prior to the 1969—1970 school year,
per-pupil expenditures in Greensville County lagged behind the
state median, and that the increase in the county school budget
for the 1969—1970 school year was insufficient to keep abreast of
inflation, not to mention increased transportation costs. But the
city of Emporia was in no position to alleviate this problem for
the county. The county had previously refused to allow the city to
participate in joint administration of the schools, and the city
had absolutely no power to affect the level of funding for the
county schools. Under the contract, Emporia was the purchaser of
whatever educational services the county had to offer. Out of
understandable concern for the quality of these services, it
sought to alter the contractual arrangement in order to provide
better unitary schools.
There is no basis on this record for assuming that the
quality of education in the county schools was likely to suffer
further due to Emporia's withdrawal. The Court relies on the
District Court's finding that 'the desire of the city leaders,
coupled with their obvious leadership ability, is and will be an
important facet in the successful operation of any court-ordered
plan.' 309 F.Supp., at 679. The District Court made this finding
despite the fact that the county had refused to administer the
schools jointly with the city, and despite uncontradicted evidence
that there was no line of communications between the city and
county governments, that the city government had been unable to
get any cooperation from the county government, and that there was
an atmosphere of active antagonism between the two governments.
With all deference to the trier of fact, I cannot accept this
finding as supported by evidence in the record of this case. It
appears that the District Court wanted
30
Page 481
that 'obvious leadership ability' of Emporia's citizens to exert
its influence on the more reluctant leadership in the county. This
is a laudable goal in the abstract, but the courts must adjust
their remedies to the facts of each case as they bear on the
central problem of eliminating a dual system.
Although acknowledging Emporia's need to have some '(d)irect
control over decisions vitally affecting the education of (its)
children', the Court states that since Emporia found the
contractual arrangement tolerable prior to 1969, it should not now
be heard to complain. However, the city did not enter that
contract of its own free choice. From the time Emporia became a
city, consideration was given to the formation of a separate
school system, and it was at least thought necessary that the city
participate in administration of the county school system. After
the county rejected the city's proposal for joint administration,
the county threatened to terminate educational services for city
children unless the city entered an agreement by April 30, 1968.
Only then—under virtual duress—did the city submit to the
contractal arrangement. It was not until June 1969 that the city
was advised by its counsel that the agreement might be illegal.
Steps were then taken to terminate the strained relationship.
Recognizing the tensions inherent in a contractual
arrangement put together under these conditions, the Court
indicates that Emporia might be permitted to operate a separate
school system at some future time. The Court does not explain how
the passage of time will substantially alter the situation that
existed at the time the District Court entered its injunction. If,
as the Court states, desegregation in the county was destined to
fail if Emporia established its own school system in 1969, it is
difficult to understand why it would not be an undue risk to allow
separation in the future.
31
Page 482
The more realistic view is that there was never such a danger, and
that the District Court had no cause to disregard Emporia's desire
to free itself from its ties to Greensville County. However, even
on the Court's terms, I assume that Emporia could go back to the
District Court tomorrow and renew its request to operate a
separate system. The county-wide plan has been in effect for the
past three years, and the city should now be relieved of the
court-imposed duty to purchase whatever quality of education the
county sees fit to provide.
Finally, some discussion is warranted of the relevance of
discriminatory purpose in cases such as these. It is, of course,
correct that '(t)he measure of any desegregation plan is its
effectiveness,' Davis v. Board of School Comm'rs, 402 U.S., at 37,
91 S.Ct., at 1292, and that a plan that stops short of dismantling
a dual school system cannot be redeemed by benevolent motives. But
it is also true that even where a dual system has in fact been
dismantled, as it plainly has been in Emporia, we must still be
alert to make sure that ostensibly nondiscriminatory actions are
not designed to eclude children from schools because of their
race. We are well aware that the progress of school desegregation
since 1954 has been hampered by persistent resistance and evasion
in many places. Thus, the normal judicial reluctance to probe the
motives or purposes underlying official acts must yield to the
realities in this very sensitive area of constitutional
adjudication. Compare Griffin v. County School Board of Prince
Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964),
with Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d
438 (1971).
There is no basis for concluding, on this record, that
Emporia's decision to operate a separate school system was the
manifestation of a discriminatory purpose. The strongest finding
made by the District Court was that race was 'in a sense' a factor
in the city's decision; read in context, this ambiguous finding
does not relate to any
32
Page 483
invidious consideration of race. The District Court relied solely
on the following testimony of the chairman of the city school
board:
'Race, of course, affected the operation of the schools by
the county, and I again say, I do not think, or we felt that
the county was not capable of putting the monies in and the
effort and the leadership into a system that would
effectively make a unitary system work . . ..' 309 F.Supp. at
680.
I cannot view this kind of consideration of race as
discriminatory or even objectionable. The same doubts about the
county's commitment to the operation of a high-quality unitary
system would have come into play even if the racial composition of
Emporia were precisely the same as that of the entire county area,
including Emporia.
Nor is this a case where we can presume a discriminatory
purpose from an obviously discriminatory effect. Cf. Gomillion v.
Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). We
are not confronted with an awkward gerrymander or striking shift
in racial proportions. The modest difference between the racial
composition of Emporia's proposed separate school system and that
of the county as a whole affords no basis for an inference of
racial motivation. And while it seems that the more cumbersome
features of the District Court's plan hastened the city's
inevitable decision to operate a separate unitary school system,
this was not because of any desire to manipulate the racial
balance of its schools.
Read as a whole, this record suggests that the District
Court, acting before our decision in Swann was reaching for some
hypothetical perfection in racial balance, rather than the
elimination of a dual school system. To put it in the simplest
terms the Court, in adopting the District Court's approach, goes
too far.
1
Together with No. 70—187, Cotton v. Scotland Neck City
Board of Education.
2
The companion cases were Davis v. Board of School
Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577;
McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582;
North Carolina State Board of Education v. Swann, 402 U.S. 43, 91
S.Ct. 1284, 28 L.Ed.2d 586; and Moore v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 47, 91 S.Ct. 1292, 28 L.Ed.2d 590.3 On the same day that it reversed the District Court orders
in this case and in the Scotland Neck cases, the Court of Appeals
for the Fourth Circuit affirmed an order enjoining the creation of
a new school district in another county of North Carolina. Turner
v. Littleton-Lake Gaston School District, 4 Cir., 442 F.2d 584.
Other cases dealing with attempts to split school districts in the
process of desegregation are Lee v. Macon County Board of
Education, 5 Cir., 448 F.2d 746; Stout v. United States (Jefferson
County Board of Education v. Board of Education for City of
Pleasant Grove), 5 Cir., 448 F.2d 403; Haney v. County Board of
Education, 8 Cir., 410 F.2d 920; United States v. Texas, D.C., 321
F.Supp. 1043, 1052, aff'd, with modifications, 5 Cir., 447 F.2d
441; Burleson v. County Board of Election Commissioners, D.C., 308
F.Supp. 352, aff'd, 8 Cir., 432 F.2d 1356; Aytch v. Mitchell,
D.C., 320 F.Supp. 1372.
4
Va.Code Ann. § 15.1—982.5 See Va.Code Ann. § 22—93; Colonial Heights v. County of
Chesterfield, 196 Va. 155, 82 S.E.2d 566 (1954).6 Emporia was entitled under state law to establish an
independent school system when it became a city in 1967, but it
chose not to do so because, according to the testimony of the
chairman of the city school board, a separate system did not seem
practical at the time. In a letter to the County Board of
Supervisors in July 1969, the Emporia City Council stated that it
had authorized a combined system in 1968 because it believed that
'the educational interest of Emporia citizens, their children and
those of the citizens and children of Greensville County, could
best be served by continuing a combined City-County school
division, thus giving students from both political subdivisions
full benefits of a larger school system.'
7
Under Virginia law as it stood in 1969, the school
'division' was the basic unit for the purpose of school
administration. See Va.Code Ann. §§ 22—30, 22—34, 22—100.1.
8
The plan was later modified in certain respects at the
request of the county school board, and as modified it has been in
operation since September 1969. Because the four schools located
outside Emporia's city limits are all in close proximity to the
city, the 'pairing' plan apparently involved little additional
transportation of students.
9
The District Court took special note of this transfer
arrangement in its memorandum accompanying the preliminary
injunction issued in August 1969. At the time of the final
hearing, however, the respondents assured the court that if
allowed to operate a separate system, they would not permit
transfers from the county without prior permission of the court.
10
Because the county school board had ultimate
responsibility for the administration of the schools under the
combined system, the members of the Emporia school board were not
originally parties to the lawsuit. But the District Court's
desegregation decree bound both county officials 'and their
successors,' and the District Court treated the Emporia school
board members, insofar as they intended to replace the county
board as administrators of part of the system under court order,
as 'successors' to the members of the county board.
11
The decision of the Court of Appeals was rendered less
than a month prior to our decision in Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct.
1267, 28 L.Ed.2d 554.
12
The court order that we approved in Swann, supra, itself
provided for student bodies ranging from 9% Negro to 38% Negro.
13
'Full implementation of these constitutional principles
may require solution of varied local school problems. School
authorities have the primary responsibility for elucidating,
assessing, and solving these problems; courts will have to
consider whether the action of school authorities constitutes good
faith implementation of the governing constitutional principles.
Because of their proximity to local conditions and the possible
need for further hearings, the courts which originally heard these
cases can best perform this judicial appraisal.' 349 U.S., at 299,
75 S.Ct., at 756.
14
City officials testified that one of the primary
objections to the court's 'pairing' decree was that it required a
student to attend six schools in the space of 12 years. Dr.
Tracey, the expert witness for the respondents, expressed the view
that this aspect of the decree had undesirable effects from an
educator's point of view. This argument, however, was never made
to the District Court either before or at the time it adopted the
'pairing' plan. Indeed, the city officials never even met with the
county school board or participated in the hearings that preceded
the decree. After the June 25 order was entered, the District
Court modified it at the request of the county board, and at the
hearing on a preliminary injunction against Emporia's withdrawal
from the system, the court noted that it would be 'delighted to
entertain motions for amendment of the (pairing) plan at any
time.' App. 185a.
1
The record shows that the pupil-teacher ratio in the
county schools is less than 25 to 1. Assuming some rough
correspondence between this ratio and the size of classes, a 6%
racial shift would represent a change in the racial identity of
1.5 students per class on the average.
2
United States v. Scotland Neck City Board of Education and
Cotton v. Scotland Neck City Board of Education, 407 U.S. 484, 92
S.Ct. 2214, 33 L.Ed.2d 75.
| 12
|
407 U.S. 551
92 S.Ct. 2219
33 L.Ed.2d 131
LLOYD CORPORATION, LTD., Petitioner,v.Donald M. TANNER et al.
No. 71—492.
Argued April 18, 1972.
Decided June 22, 1972.
Syllabus
Respondents sought to distribute handbills in the interior
mall area of petitioner's large privately owned shopping center.
Petitioner had a strict no-handbilling rule. Petitioner's security
guards requested respondents under threat of arrest to stop the
handbilling, suggesting that they could resume their activities on
the public streets and sidewalks adjacent to but outside the
center, which respondents did. Respondents, claiming that
petitioner's action violated their First Amendment rights,
thereafter brought this action for injunctive and declaratory
relief. The District Court, stressing that the center is 'open to
the general public' and 'the functional equivalent of a public
business district,' and relying on Marsh v. Alabama, 326 U.S. 501,
66 S.Ct. 276, 90 L.Ed. 265, and Amalgamated Food Employees Union
Local 590 v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20
L.Ed.2d 603, held that petitioner's policy of prohibiting
handbilling within the mall violated respondents' First Amendment
rights. The Court of Appeals affirmed. Held: There has been no
dedication of petitioner's privately owned and operated shopping
center to public use so as to entitle respondents to exercise
First Amendment rights therein that are unrelated to the center's
operations; and petitioner's property did not lose its private
character and its right to protection under the Fourteenth
Amendment merely because the public is generally invited to use it
for the purpose of doing business with petitioner's tenants. The
facts in this case are significantly different from those in
Marsh, supra, which involved a company town with 'all the
attributes' of a municipality, and Logan Valley, supra, which
involved labor picketing designed to convey a message to patrons
of a particular store, so located in the center of a large private
enclave as to preclude other reasonable access to store patrons.
Under the circumstances present in this case, where the
handbilling was unrelated to any activity within the center and
where respondents had adequate alternative means of communication,
the courts below erred in holding those decisions controlling. Pp.
556—570.
446 F.2d 545, reversed and remanded.
1
Page 552
George Black, Jr., Portland, Or., for petitioner.
Carl R. Neil, Portland, Or., for respondents.
djQ Mr. Justice POWELL delivered the opinion of the Court.
This case presents the question reserved by the Court in
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), as to
the right of a privately owned shopping center to prohibit the
distribution of handbills on its property when the handbilling is
unrelated to the shopping center's operations. Relying primarily
on Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265
(1946), and Logan Valley, the United States District Court for the
District of Oregon sustained an asserted First Amendment right to
distribute handbills in petitioner's shopping center, and issued a
permanent injunction restraining petitioner from interfering with
such right. 308 F.Supp. 128 (1970). The Court of Appeals for the
Ninth Circuit affirmed, 446 F.2d 545 (1971). We granted certiorari
to consider petitioner's contention that the decision below
2
Page 553
violates rights of private property protected by the Fifth and
Fourteenth Amendments. 404 U.S. 1037, 92 S.Ct. 703, 30 L.Ed.2d 728
(1972).
Lloyd Corp., Ltd. (Lloyd), owns a large, modern retail
shopping center in Portland, Oregon. Lloyd Center embraces
altogether about 50 acres, including some 20 acres of open and
covered parking facilities which accommodate more than 1,000
automobiles. It has a perimeter of almost one and one-half miles,
bounded by four public streets. It is crossed in varying degrees
by several other public streets, all of which have adjacent public
sidewalks. Lloyd owns all land and buildings within the Center,
except these public streets and sidewalks. There are some 60
commercial tenants, including small shops and several major
department stores.
The Center embodies a relatively new concept in shopping
center design. The stores are all located within a single large,
multi-level building complex sometimes referred to as the 'Mall.'
Within this complex, in addition to the stores, there are parking
facilities, malls, private sidewalks, stairways, escalators,
gardens, an auditorium, and a skating rink. Some of the stores
open directly on the outside public sidewalks, but most open on
the interior privately owned malls. Some stores open on both.
There are no public streets or public sidewalks within the
building complex, which is enclosed and entirely covered except
for the landscaped portions of some of the interior malls.
The distribution of the handbills occurred in the malls. They
are a distinctive feature of the Center, serving both utilitarian
and esthetic functions. Essentially, they are private, interior
promenades with 10-foot sidewalks serving the stores, and with a
center strip 30 feet wide in which flowers and shrubs are planted,
and statutary, fountains, benches, and other amenities are
located. There is no vehicular traffic on the malls. An archi-
3
Page 554
tectural expert described the purpose of the malls as follows:
'In order to make shopping easy and pleasant, and to help
realize the goal of maximum sales (for the Center), the shops
are grouped about special pedestrian ways or malls. Here the
shopper is isolated from the noise, fumes, confusion and
distraction which he normally finds along city streets, and a
controlled, carefree environment is provided . . ..'1
Although the stores close at customary hours, the malls are
not physically closed, as pedestrian window shopping is encouraged
within reasonable hours.2 Lloyd employs 12 security guards, who
are commissioned as such by the city of Portland. The guards have
police authority within the Center, wear uniforms similar to those
worn by city police, and are licensed to carry handguns. They are
employed by and subject to the control of Lloyd. Their duties are
the customary ones, including shoplifting surveillance and general
security.
At a few places within the Center small signs are embedded in
the sidewalk which state:
'NOTICE—Areas In Lloyd Center Used By The
4
Page 555
Public Are Not Public Ways But Are For The Use Of Lloyd
Center Tenants And The Public Transacting Business With Them.
Permission To Use Said Areas May Be Revoked At Any Time.
Lloyd Corporation, Ltd.'
The Center is open generally to the public, with a
considerable effort being made to attract shoppers and prospective
shoppers, and to create 'customer motivation' as well as customer
goodwill in the community. In this respect the Center pursues
policies comparable to those of major stores and shopping centers
across the country, although the Center affords superior
facilities for these purposes. Groups and organizations are
permitted, by invitation and advance arrangement, to use the
auditorium and other facilities. Rent is charged for use of the
auditorium except with respect to certain civic and charitable
organizations, such as the Cancer Society and Boy and Girl Scouts.
The Center also allows limited use of the malls by the American
Legion to sell poppies for disabled veterans, and by the Salvation
Army and Volunteers of America to solicit Christmas contributions.
It has denied similar use to other civic and charitable
organizations. Political use is also forbidden, except that
presidential candidates of both parties have been allowed to speak
in the auditorium.3
The Center had been in operation for some eight years when
this litigation commenced. Throughout this period it had a policy,
strictly enforced, against the distribution of handbills within
the building complex and its malls. No exceptions were made with
respect to handbilling, which was considered likely to annoy
customers, to create litter, potentially to create disorders,
5
Page 556
and generally to be incompatible with the purpose of the Center
and the atmosphere sought to be preserved.
On November 14, 1968, the respondents in this case
distributed within the Center handbill invitations to a meeting of
the 'Resistance Community' to protest the draft and the Vietnam
war. The distribution, made in several different places on the
mall walkways by five young people, was quiet and orderly, and
there was no littering. There was a complaint from one customer.
Security guards informed the respondents that they were
trespassing and would be arrested unless they stopped distributing
the handbills within the Center.4 The guards suggested that
respondents distribute their literature on the public streets and
sidewalks adjacent to but outside of the Center complex.
Respondents left the premises as requested 'to avoid arrest' and
continued the handbilling outside. Subsequently this suit was
instituted in the District Court seeking declaratory and
injunctive relief.
I
The District Court, emphasizing that the Center 'is open to
the general public,' found that it is 'the functional equivalent
of a public business district.' 308 F.Supp., at 130. That court
then held that Lloyd's 'rule prohibiting the distribution of
handbills within the Mall violates . . . First Amendment rights.'
308 F.Supp., at 131. In a per curiam opinion, the Court of Appeals
held that it was bound by the 'factual determination' as to the
character of the Center, and concluded that the decisions of this
Court in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed.
265 (1946), and Amalgamated Food
6
Page 557
Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S.
308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), compelled affirmance.5
Marsh involved Chickasaw, Alabama, a company town wholly
owned by the Gulf Shipbuilding Corp. The opinion of the Court, by
Mr. Justice Black, described Chickasaw as follows:
'Except for (ownership by a private corporation) it has all
the characteristics of any other American town. The property
consists of residential buildings, streets, a system of
sewers, a sewage disposal plant and a 'business block' on
which business places are situated. A deputy of the Mobile
County Sheriff, paid by the company, serves as the town's
policeman. Merchants and service establishments have rented
the stores and business places on the business block and the
United States uses one of the places as a post office from
which six carriers deliver mail to the people of Chickasaw
and the adjacent area. The town and the surrounding
neighborhood, which can not be distinguished from the Gulf
property by anyone not familiar with the property lines, are
thickly settled, and according to all indications the
residents use the business block as their regular shopping
center. To do so, they now, as they have for many years, make
use of a company-owned paved street and sidewalk located
alongside the store fronts in order to enter and leave the
stores and the post office. Intersecting company-owned roads
at each end of the business block lead into a four-lane
public highway which runs parallel to the business block at a
distance of thirty feet. There is nothing to stop
7
Page 558
highway traffic from coming onto the business block and upon
arrival a traveler may make free use of the facilities
available there. In short the town and its shopping district
are accessible to and freely used by the public in general
and there is nothing to distinguish them from any other town
and shopping center except the fact that the title to the
property belongs to a private corporation.' 326 U.S., at 502
503, 66 S.Ct., at 277.
A Jehovah's Witness undertook to distribute religious
literature on a sidewalk near the post office and was arrested on
a trespassing charge. In holding that First and Fourteenth
Amendment rights were infringed, the Court emphasized that the
business district was within a company-owned town, an anachronism
long prevalent in some southern States and now rarely found.6
In Logan Valley the Court extended the rationale of Marsh to
peaceful picketing of a store located in a large shopping center,
known as Logan Walley Mall, near Altoona, Pennsylvania. Weis
Markets, Inc. (Weis), an original tenant, had opened a supermarket
in one of the larger stores and was employing a wholly nonunion
staff. Within 10 days after Weis opened, members of Amalgamated
Food Employees Union Local 590 (Union) began picketing Weis,
carrying signs stating that it was a nonunion market and that its
employees were not receiving union wages or other union benefits.
The picketing, conducted by nonemployees, was carried out
8
Page 559
almost entirely in the parcel pickup area immediately adjacent to
the store and on portions of the adjoining parking lot. The
picketing was peaceful, with the number of pickets varying from
four to 13.
Weis and Logan Valley Plaza, Inc., sought and obtained an
injunction against this picketing. The injunction required that
all picketing be confined to public areas outside the shopping
center. On appeal the Pennsylvania Supreme Court affirmed the
issuance of the injunction, and this Court granted certiorari. In
framing the question, this Court stated:
'The case squarely presents . . . the question whether
Pennsylvania's generally valid rules against trespass to
private property can be applied in these circumstances to bar
petitioners from the Weis and Logan premises.' 391 U.S., at
315, 88 S.Ct., at 1606.
The Court noted that the answer would be clear 'if the
shopping center premises were not privately owned but instead
constituted the business area of a municipality.' Id., at 315, 88
S.Ct., at 1607. In the latter situation, it has often been held
that publicly owned streets, sidewalks, and parks are so
historically associated with the exercise of First Amendment
rights that access to them for purposes of exercising such rights
cannot be denied absolutely. Lovell v. Griffin, 303 U.S. 444, 58
S.Ct. 666, 82 L.Ed. 949 (1938); Hague v. CIO, 307 U.S. 496, 59
S.Ct. 954, 83 L.Ed. 1423 (1939); Schneider v. State, 308 U.S. 147,
60 S.Ct. 146, 84 L.Ed. 155 (1939); Jamison v. Texas, 318 U.S. 413,
63 S.Ct. 669, 87 L.Ed. 869 (1943).
The Court then considered Marsh v. Alabama, supra, and
concluded that:
'The shopping center here is clearly the functional
equivalent of the business district of Chickasaw involved in
Marsh.' 391 U.S., at 318, 88 S.Ct., at 1608.
But the Court was careful not to go further and say that for
all purposes and uses the privately owned streets,
9
Page 560
sidewalks, and other areas of a shopping center are analogous to
publicly owned facilities:
'All we decide here is that because the shopping center
serves as the community business block 'and is freely
accessible and open to the people in the area and those
passing through,' Marsh v. State of Alabama, 326 U.S., at
508, 66 S.Ct., at 279, the State may not delegate the power,
through the use of its trespass laws, wholly to exclude those
members of the public wishing to exercise their First
Amendment rights on the premises in a manner and for a
purpose generally consonant with the use to which the
property is actually put.' Id., at 319—320, 88 S.Ct., at
1609.
The Court noted that the scope of its holding was limited,
and expressly reserved judgment on the type of issue presented in
this case:
'The picketing carried on by petitioners was directed
specifically at patrons of the Weis Market located within the
shopping center and the message sought to be conveyed to the
public concerned the manner in which that particular market
was being operated. We are, therefore, not called upon to
consider whether respondents' property rights could,
consistently with the First Amendment, justify a bar on
picketing which was not thus directly related in its purpose
to the use to which the shopping center property was being
put.' Id., at 320 n. 9, 88 S.Ct., at 1609.
The Court also took specific note of the facts that the
Union's picketing was 'directed solely at one establishment within
the shopping center,' Id., at 321, 88 S.Ct., at 1610, and that the
public berms and sidewalks were 'from 350 to 500 feet away from
the Weis store.' Id., at 322, 88 S.Ct., at 1610. This distance
made it difficult 'to communicate (with) patrons of Weis' and 'to
limit (the) effect (of
10
Page 561
the picketing) to Weis only.' Id., at 322, 323, 88 S.Ct., at
1611.7 Logan Valley was decided on the basis of this factual
situation, and the facts in this case are significantly different.
II
The courts below considered the critical inquiry to be
whether Lloyd Center was 'the functional equivalent of a public
business district.'8 This phrase was first used in Logan Valley,
but its genesis was in Marsh. It is well to consider what Marsh
actually decided. As noted above, it involved an economic anomaly
of the past, 'the company town.' One must have seen such towns to
understand that 'functionally' they were no different from
municipalities of comparable size. They developed primarily in the
Deep South to meet economic conditions, especially those which
existed following the Civil War. Impoverished States, and
especially backward areas thereof, needed an influx of industry
and capital. Corporations attracted to the area by natural
resources and abundant labor were willing to assume the role of
local government. Quite literally, towns
11
Page 562
were built and operated by private capital with all of the
customary services and utilities normally afforded by a municipal
or state government: there were streets, sidewalks, sewers, public
lighting, police and fire protection, business and residential
areas, churches, postal facilities, and sometimes schools. In
short, as Mr. Justice Black said, Chickasaw, Alabama, had 'all the
characteristics of any other American town.' 326 U.S., at 502, 66
S.Ct., at 277. The Court simply held that where private interests
were substituting for and performing the customary functions of
government, First Amendment freedoms could not be denied where
exercised in the customary manner on the town's sidewalks and
streets. Indeed, as title to the entire town was held privately,
there were no publicly owned streets, sidewalks, or parks where
such rights could be exercised.
Logan Valley extended Marsh to a shopping center situation in
a different context from the company town setting, but it did so
only in a context where the First Amendment activity was related
to the shopping center's operations. There is some language in
Logan Valley, unnecessary to the decision, suggesting that the key
focus of Marsh was upon the 'business district,' and that whenever
a privately owned business district serves the public generally
its sidewalks and streets become the functional equivalents of
similar public facilities.9 As Mr. Justice Black's dissent in
Logan Valley emphasized, this would be an incorrect interpretation
of the Court's decision in Marsh:10
'Marsh was never intended to apply to this kind of situation.
Marsh dealt with the very special
12
Page 563
situation of a company-owned town, complete with streets,
alleys, sewers, stores, residences, and everything else that
goes to make a town. The particular company town involved was
Chickasaw, Alabama, which, as we stated in the opinion,
except for the fact that it 'is owned by the Gulf
Shipbuilding Corporation . . . has all the characteristics of
any other American town. The property consists of residential
buildings, streets, a system of sewers, a sewage disposal
plant and a 'business block' on which business places are
situated.' 326 U.S., at 502, 66 S.Ct. at 277. Again toward
the end of the opinion we emphasized that 'the town of
Chickasaw does not function differently from any other town.'
326 U.S., at 508, 66 S.Ct. at 279. I think it is fair to say
that the basis on which the Marsh decision rested was that
the property involved encompassed an area that for all
practical purposes had been turned into a town; the area had
all the attributes of a town and was exactly like any other
town in Alabama.' 391 U.S., at 330—331, 88 S.Ct., at 1614.
The holding in Logan Valley was not dependent upon the
suggestion that the privately owned streets and sidewalks of a
business district or a shopping center are the equivalent, for
First Amendment purposes, of municipally owned streets and
sidewalks. No such expansive reading of the opinion of the Court
is necessary or appropriate. The opinion was carefully phrased to
limit its holding to the picketing involved, where the picketing
was 'directly related in its purpose to the use to which the
shopping center property was being put,' 391 U.S., at 320 n. 9, 88
S.Ct., at 1609, and where the store was located in the center of a
large private enclave with the consequence that no other
reasonable opportunities for the pickets to convey their message
to their intended audience were available.
13
Page 564
Neither of these elements is present in the case now before
the Court.
A.
The handbilling by respondents in the malls of Lloyd Center
had no relation to any purpose for which the center was built and
being used.11 It is nevertheless argued by respondents that, since
the Center is open to the public, the private owner cannot enforce
a restriction against handbilling on the premises. The thrust of
this argument is considerably broader than the rationale of Logan
Valley. It requires on relationship, direct or indirect, between
the purpose of the expressive activity and the business of the
shopping center. The message sought to be conveyed by respondents
was directed to all members of the public, not solely to patrons
of Lloyd Center or of any of its operations. Respondents could
have distributed these handbills on any public street, on any
public sidewalk, in any public park, or in any public building in
the city of Portland.
Respondents' argument, even if otherwise meritorious,
misapprehends the scope of the invitation extended to the public.
The invitation is to come to the Center to do business with the
tenants. It is true that facilities at the Center are used for
certain meetings and
14
Page 565
for various promotional activities. The obvious purpose,
recognized widely as legitimate and responsible business activity,
is to bring potential shoppers to the Center, to create a
favorable impression, and to generate goodwill. There is no
open-ended invitation to the public to use the Center for any and
all purposes, however incompatible with the interests of both the
stores and the shoppers whom they serve.
Mr. Justice WHITE, dissenting in Logan Valley, noted the
limited scope of a shopping center's invitation to the public:
'In no sense are any parts of the shopping center dedicated
to the public for general purposes . . .. The public is
invited to the premises but only in order to do business with
those who maintain establishments there. The invitation is to
shop for the products which are sold. There is no general
invitation to use the parking lot, the pickup zone, or the
sidewalk except as an adjunct to shopping. No one is invited
to use the parking lot as a place to park his car while he
goes elsewhere to work. The driveways and lanes for auto
traffic are not offered for use as general thoroughfares
leading from one public street to another. Those driveways
and parking spaces are not public streets and thus available
for parades, public meetings, or other activities for which
public streets are used.' 391 U.S., at 338, 88 S.Ct. at 1619.
It is noteworthy that respondents' argument based on the
Center's being 'open to the public' would apply in varying degrees
to most retail stores and service establishments across the
country. They are all open to the public in the sense that
customers and potential customers are invited and encouraged to
enter. In terms of being open to the public, there are differences
only
15
Page 566
of degree—not of principle—between a free-standing store and one
located in a shopping center, between a small store and a large
one, between a single store with some malls and open areas
designed to attract customers and Lloyd Center with its elaborate
malls and interior landscaping.
B
A further fact, distinguishing the present case from Logan
Valley, is that the Union pickets in that case would have been
deprived of all reasonable opportunity to convey their message to
patrons of the Weis store had they been denied access to the
shopping center.12 The situation at Lloyd Center was notably
different. The central building complex was surrounded by public
sidewalks, totaling 66 linear blocks. All persons who enter or
leave the private areas within the complex must cross public
streets and sidewalks, either on foot or in automobiles. When
moving to and from the privately
16
Page 567
owned parking lots, automobiles are required by law to come to a
complete stop. Handbills may be distributed conveniently to
pedestrians, and also to occupants of automobiles, from these
public sidewalks and streets. Indeed, respondents moved to these
public areas and continued distribution of their handbills after
being requested to leave the interior malls. It would be an
unwarranted infringement of property rights to require them to
yield to the exercise of First Amendment rights under
circumstances where adequate alternative avenues of communication
exist. Such an accommodation would diminish property rights
without significantly enhancing the asserted right of free speech.
In ordering this accommodation the courts below erred in their
interpretation of this Court's decisions in Marsh and Logan
Valley.
III
The basic issue in this case is whether respondents, in the
exercise of asserted First Amendment rights, may distribute
handbills on Lloyd's private property contrary to its wishes and
contrary to a policy enforced against all handbilling. In
addressing this issue, it must be remembered that the First and
Fourteenth Amendments safeguard the rights of free speech and
assembly by limitations on state action, not on action by the
owner of private property used nondiscriminatorily for private
purposes only. The Due Process Clauses of the Fifth and Fourteenth
Amendments are also relevant to this case. They provide that '(n)o
person shall . . . be deprived of life, liberty, or property,
without due process of law.' There is the further proscription in
the Fifth Amendment against the taking of 'private property . . .
for public use, without just compensation.'
Although accommodations between the values protected by these
three Amendments are sometimes nec-
17
Page 568
essary, and the courts properly have shown a special solicitude
for the guarantees of the First Amendment, this Court has never
held that a trespasser or an uninvited guest may exercise general
rights of free speech on property privately owned and used
nondiscriminatorily for private purposes only. Even where public
property is involved, the Court has recognized that it is not
necessarily available for speaking, picketing, or other
communicative activities. Mr. Justice Black, speaking for the
Court in Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17
L.Ed.2d 149 (1966), said:
'The State, no less than a private owner of property, has
power to preserve the property under its control for the use
to which it is lawfully dedicated. For this reason there is
no merit to the petitioners' argument that they had a
constitutional right to stay on the property, over the jail
custodian's objections, because this 'area chosen for the
peaceful civil rights demonstration was not only 'reasonable'
but also particularly appropriate . . .' Such an argument has
as its major unarticulated premise the assumption that people
who want to propagandize protests or views have a
constitutional right to do so whenever and however and
wherever they please. That concept of constitutional law was
vigorously and forthrightly rejected in two of the cases
petitioners rely on, Cox v. Louisiana, (379 U.S. 536), at 554
555, (85 S.Ct. 453, 13 L.Ed.2d 471) and (379 U.S. 559), at
563—564, (85 S.Ct. 476, 13 L.Ed.2d 487). We reject it again.
The United States Constitution does not forbid a State to
control the use of its own property for its own lawful
nondiscriminatory purpose.' 385 U.S., at 47—48, 87 S.Ct., at
247.
Respondents contend, however, that the property of a large
shopping center is 'open to the public,' serves the same purposes
as a 'business district' of a municipality, and therefore has been
dedicated to certain types
18
Page 569
of public use. The argument is that such a center has sidewalks,
streets, and parking areas which are functionally similar to
facilities customarily provided by municipalities. It is then
asserted that all members of the public, whether invited as
customers or not, have the same right of free speech as they would
have on the similar public facilities in the streets of a city or
town.
The argument reaches too far. The Constitution by no means
requires such an attenuated doctrine of dedication of private
property to public use. The closest decision in theory, Marsh v.
Alabama, supra, involved the assumption by a private enterprise of
all of the attributes of a state-created municipality and the
exercise by that enterprise of semiofficial municipal functions as
a delegate of the State.13 In effect, the owner of the company
town was performing the full spectrum of municipal powers and
stood in the shoes of the State. In the instant case where is no
comparable assumption or exercise of municipal functions or power.
Nor does property lose its private character merely because
the public is generally invited to use it for designated purposes.
Few would argue that a free-standing store, with abutting parking
space for customers, assumes significant public attributes merely
because the public is invited to shop there. Nor is size alone the
controlling factor. The essentially private character of a store
and its privately owned abutting property does not change by
virtue of being large or clustered with other stores in a modern
shopping center. This is not to say that no differences may exist
with respect to government regula-
19
Page 570
tion or rights of citizens arising by virtue of the size and
diversity of activities carried on within a privately owned
facility serving the public. There will be, for example, problems
with respect to public health and safety which vary in degree and
in the appropriate government response, depending upon the size
and character of a shopping center, an office building, a sports
arena, or other large facility serving the public for commercial
purposes. We do say that the Fifth and Fourteenth Amendment rights
of private property owners, as well as the First Amendment rights
of all citizens, must be respected and protected. The Framers of
the Constitution certainly did not think these fundamental rights
of a free society are incompatible with each other. There may be
situations where accommodations between them, and the drawing of
lines to assure due protection of both, are not easy. But on the
facts presented in this case, the answer is clear.
We hold that there has been no such dedication of Lloyd's
privately owned and operated shopping center to public use as to
entitle respondents to exercise therein the asserted First
Amendment rights. Accordingly, we reverse the judgment and remand
the case to the Court of Appeals with directions to vacate the
injunction.
It is so ordered.
Judgment reversed and case remanded.
djQ Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr.
Justice BRENNAN, and Mr. Mustice STEWART join, dissenting.
Donald Tanner, Betsy Wheeler, and Susan Roberts (respondents)
brought this action for a declaratory judgment that they have the
right under the First and Fourteenth Amendments to the United
States Constitution to distribute handbills in a shopping center
owned by petitioner and an injunction to enforce that right.
20
Page 571
Relying primarily on our very recent decision in Amalgamated Food
Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 88
S.Ct. 1601, 20 L.Ed.2d 603 (1968), the United States District
Court for the District of Oregon granted the relief requested. 308
F.Supp. 128 (1970). The United States Court of Appeals for the
Ninth Circuit affirmed. 446 F.2d 545 (1971). Today, this Court
reverses the judgment of the Court of Appeals and attempts to
distinguish this case from Logan Valley. In my view, the
distinction that the Court sees between the cases does not exist.
As I read the opinion of the Court, it is an attack not only on
the rationale of Logan Valley, but also on this Court's
longstanding decision in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct.
276, 90 L.Ed. 265 (1946). Accordingly, I dissent.
I
Lloyd Center is a large, modern retail shopping center in
Portland, Oregon. Sprawling over 50 acres of land, the Center
offers to shoppers more than 60 commercial businesses and
professional offices. It also affords more than 850,000 square
feet of open and covered offstreet parking space—enough to
accommodate more than 1,000 vehicles. Bounded by four public
streets, Lloyd Center has a perimeter of almost one and one-half
miles. Four public streets running east-west and one running
north-south traverse the Center, and at least six other public
streets run partly into or around it. All of these streets have
adjacent sidewalks. These streets and sidewalks are the only parts
of the Center that are not privately owned.
The principal portion of the Center is occupied by a shopping
area called the 'Mall.' Covering approximately 25 acres of land
and having a perimeter of four-fifths of a mile, the Maul, in the
words of the District Court, 'is a multilevel complex of
buildings, parking facilities, sub-malls, sidewalks, stairways,
elevators, es-
21
Page 572
calators, bridges, and gardens, and contains a skating rink,
statues, murals, benches, directories, information booths, and
other facilities designed to attract visitors and make them
comfortable.' 308 F.Supp., at 129. No public streets cross the
Mall, but some stores face those streets that form the perimeter,
and it is possible to enter those stores from public sidewalks.
Other stores are located in the interior of the Mall, and can only
be reached by using privately owned walkways.
On November 14, 1968, respondents entered the Mall and
distributed handbills inviting the public to a meeting to protest
the draft and the Vietnam war. The distribution was peaceful,
nondisruptive, and litter-free. Security guards employed by the
Center approached respondents, indicated that the Center did not
permit handbilling in the Mall, suggested that they distribute
their materials on the public sidewalks and streets, and informed
them that they could be arrested if they persisted in handbilling
within the privately owned portions of the Center. These guards
wore uniforms that were virtually identical to those worn by
regular Portland police and they possessed full police authority.
Believing that they would be arrested if they did not leave the
Mall, respondents departed and subsequently filed this lawsuit.1
A. The question presented by this case is whether one of the
incidents of petitioner's private ownership of the Lloyd Center is
the power to exclude certain
22
Page 573
forms of speech from its property. In other words, we must decide
whether ownership of the Center gives petitioner unfettered
discretion to determine whether or not it will be used as a public
forum.
This Court held in Marsh v. Alabama, supra, that even though
property is privately owned, under some circumstances it may be
treated as though it were publicly held, at least for purposes of
the First Amendment. In Marsh, a member of the Jehovah's Witnesses
religious sect was arrested and convicted of violating Alabama's
criminal trespass statute when she undertook to distribute
religious literature in the downtown shopping area of a privately
owned town without permission of the owner. The Court reasoned
that '(t)he more an owner, for his advantage, opens up his
property for use by the public in general, the more do his rights
become circumscribed by the statutory and constitutional rights of
those who use it.' Supra, Id., at 506, 66 S.Ct., at 278. Noting
that the stifling effect produced by any ban on free expression in
a community's central business district was the same whether the
ban was imposed by public or private owners, the Court concluded
that:
'When we balance the Constitutional rights of owners of
property against those of the people to enjoy freedom of
press and religion, as we must here, we remain mindful of the
fact that the latter occupy a preferred position. As we have
stated before, the right to exercise the liberties
safeguarded by the First Amendment 'lies at the foundation of
free government by free men' and we must in all cases 'weigh
the circumstances and . . . appraise the . . . reasons . . .
in support of the regulation . . . of the rights.' . . . In
our view the circumstance that the property rights to the
premises where the deprivation of liberty, here involved,
took place, were held by others than the public, is not
suffi-
23
Page 574
cient to justify the State's permitting a corporation to
govern a community of citizens so as to restrict their
fundamental liberties and the enforcement of such restraint
by the application of a State statute.' (Footnotes and
citations omitted.) Id., at 509, 66 S.Ct., at 280.
We relied heavily on Marsh in deciding Logan Valley, supra.
In Logan Valley, a shopping center in its formative stages
contained a supermarket and department store. The supermarket
employed a staff composed of only nonunion employees. Members of
Amalgamated Food Employees Union, Local 590, began to picket the
market with signs stating that the market's employees were not
receiving union wages or union benefits. The picketing was carried
out almost entirely in the parcel pickup area and that portion of
the parking lot immediately adjacent thereto. 391 U.S., at 311, 88
S.Ct., at 1604. The supermarket sought and obtained an injunction
from a Pennsylvania state court prohibiting the union members from
trespassing upon the parking areas or in the store, the effect of
which was to prohibit picketing and handbilling on any part of the
private property and to relegate the union members to carrying
signs on the publicly owned earthen berms that surrounded the
shopping center.2 Finding that the shopping center was the
functional equivalent of the business district involved in Marsh,
we could see 'no reason why access to a business district in a
company town for the purpose of exercising First Amendment rights
should be constitutionally re-
24
Page 575
quired, while access for the same purpose to property functioning
as a business district should be limited simply because the
property surrounding the 'business district' is not under the same
ownership.' Id., at 319, 88 S.Ct., at 1608. Thus, we held that the
union activity was constitutionally protected.
B. In the instant case the District Court found that 'the
Mall is the functional equivalent of a public business district'
within the meaning of Marsh and Logan Valley. The Court of Appeals
specifically affirmed this finding, and it is overwhelmingly
supported by the record.
The Lloyd Center is similar to Logan Valley Plaza in several
respects: both are bordered by public roads, and the entrances of
both lead directly into the public roads; both contain large
parking areas and privately owned walkways leading from store to
store; and the general public has unrestricted access to both. The
principal differences between the two centers are that the Lloyd
Center is larger than Logan Valley, that Lloyd Center contains
more commercial facilities, that Lloyd Center contains a range of
professional and nonprofessional services that were not found in
Logan Valley, and that Lloyd Center is much more intertwined with
public streets than Logan Valley. Also, as in Marsh, supra,
Lloyd's private police are given full police power by the city of
Portland, even though they are hired, fired, controlled, and paid
by the owners of the Center. This was not true in Logan Valley.
In 1954, when Lloyd's owners first acquired land for the
Center, the city of Portland vacated about eight acres of public
streets for their use. The ordinance accomplishing the vacation
sets forth the city's view of the Center's function:
'WHEREAS the Council finds that the reason for these
vacations is for general building purposes to
25
Page 576
be used in the development of a general retail business
district and the development of an adequate parking area to
support said district; . . . the Council . . . finds that in
order to develop a large retail unit such as contemplated by
Lloyd Corporation, Ltd., it is necessary to vacate the
streets above mentioned . . ..' (Emphasis added.) Ordinance
No. 101288, Nov. 10, 1954, App. 202.
The 1954 ordinance also indicates that the city of Portland
was aware that as Lloyd Center developed, it would be necessary
for the city to build new streets and to take other steps to
control the traffic flow that the Center would engender. App. 202,
208—209. In 1958, an emergency ordinance was passed giving the
Lloyd Center an extension of time to meet various conditions on
which the 1954 vacations were made. The city council viewed the
projected Center as offering an 'opportunity for much needed
employment' and concluded that the emergency ordinance was
'necessary for the immediate preservation of the public health,
peace and safety of the city of Portland.' Ordinance No. 107641,
March 20, 1958, App. 196.
In sum, the Lloyd Center is an integral part of the Portland
community. From its inception, the city viewed it as a 'business
district' of the city and depended on it to supply much-needed
employment opportunities. To insure the success of the Center, the
city carefully integrated it into the pattern of streets already
established and planned future development of streets around the
Center. It is plain, therefore, that Lloyd Center is the
equivalent of a public 'business district' within the meaning of
Marsh and Logan Valley. In fact, the Lloyd Center is much more
analogous to the company town in Marsh than was the Logan Valley
Plaza.
Petitioner agrees with our decision in Logan Valley that it
is proper for courts to treat shopping centers
26
Page 577
differently from other privately owned property, like private
residences. The Brief for Petitioner states at pages 9—10 that
'(a) shopping center, which falls somewhere between the
extremes of a company town and a private residence, is
neither absolutely subject to the control of the owner nor is
it absolutely open to all those wishing to engage in speech
activities. . . .
'Each case requires an appropriate resolution of the
conflicting interests of shopping center owners and those
seeking to engage in speech activities on shopping center
premises.'
Petitioner contends that our decision in Logan Valley struck
the appropriate balance between First Amendment and private
property interests. The argument is made, however, that this case
should be distinguished from Logan Valley, and this is the
argument that the Court accepts.
II
As I have pointed out above, Lloyd Center is even more
clearly the equivalent of a public business district than was
Logan Valley Plaza. The First Amendment activity in both Logan
Valley and the instant case was peaceful and nondisruptive; and
both cases involve traditionally acceptable modes of speech. Why
then should there be a different result here? The Court's answer
is that the speech in this case was directed at topics of general
interest—the the Vietnam war and the draft—whereas the speech in
Logan Valley was directed to the activities of a store in the
shopping center, and that this factual difference is of
constitutional dimensions. I cannot agree.
A. It is true that in Logan Valley we explicitly left open
the question whether 'property rights could, con-
27
Page 578
sistently with the First Amendment, justify a bar on picketing (or
handbilling) which was not . . . directly related in its purpose
to the use to which the shopping center property was being put.'
391 U.S., at 320 n. 9, 88 S.Ct., at 1609. But, I believe that the
Court errs in concluding that this issue must be faced in the
instant case.
The District Court observed that Lloyd Center invites schools
to hold football rallies, presidential candidates to give
speeches, and service organizations to hold Veterans Day
ceremonies on its premises. The court also observed that the
Center permits the Salvation Army, the Volunteers of America, and
the American Legion to solicit funds in the Mall. Thus, the court
concluded that the Center was already open to First Amendment
activities, and that respondents could not constitutionally be
excluded from distributing leaflets solely because Lloyd Center
was not enamored of the form or substance of their speech. The
Court of Appeals affirmed, taking the position that it was not
extending either Logan Valley or Marsh. In other words, the
District Court found that Lloyd Center had deliberately chosen to
open its private property to a broad range of expression and that
having done so it could not constitutionally exclude respondents,
and the Court of Appeals affirmed this finding.
Petitioner apparently concedes that if the lower courts are
correct, respondents should prevail. Brief for Petitioner 19. This
concession is, in fact, mandated by our decision in Logan Valley,
in which we specifically held that members of the public may
exercise their First Amendment rights on the premises of a
shopping center that is the functional equivalent of a business
district if their activity is 'generally consonant with the use to
which the property is actually put.' 391 U.S., at 320, 88 S.Ct.,
at 1609. If the property of Lloyd Center is generally open to
First Amendment activity, respondents cannot be excluded.
28
Page 579
On Veterans Day, Lloyd Center allows organizations to parade
through the Center with flags, drummers, and color guard units and
to have a speaker deliver an address on the meaning of Veterans
Day and the valor of American solidiers. Presidential candidates
have been permitted to speak without restriction on the issues of
the day, which presumably include war and peace. The American
Legion is annually given permission to sell poppies in the Mall
because Lloyd Center believes that 'veterans . . . deserves (sic)
some comfort and support by the people of the United States.'3 In
light of these facts, I perceive no basis for depriving
respondents of the opportunity to distribute leaflets inviting
patrons of the Center to attend a meeting in which different
points of view would be expressed from those held by the
organizations and persons privileged to use Lloyd Center as a
forum for parading their ideas and symbols.
I believe that the lower courts correctly held that
respondents' activities were directly related in purpose to the
use to which the shopping center was being put. In my view,
therefore, this case presents no occasion to consider whether or
not Logan Valley should be extended. But, the Court takes a
different view and concludes that Lloyd Center was never open to
First Amendment activity. Even if I could agree with the Court on
this point, I would not reach a different result in this case.
B. If respondents had distributed handbills complaining about
one or more stores in Lloyd Center or about
29
Page 580
the Center itself, petitioner concedes that our decision in Logan
Valley would insulate that conduct from proscription by the
Center.4 I cannot see any logical reason to treat differently
speech that is related to subjects other than the Center and its
member stores.
We must remember that it is a balance that we are striking—a
balance between the freedom to speak, a freedom that is given a
preferred place in our hierarchy of values, and the freedom of a
private property owner to control his property. When the competing
interests are fairly weighed, the balance can only be struck in
favor of speech.
Members of the Portland community are able to see doctors,
dentists, lawyers, bankers, travel agents, and persons offering
countless other services in Lloyd Center. They can buy almost
anything that they want or need there. For many Portland citizens,
Lloyd Center will so completely satisfy their wants that they will
have no reason to go elsewhere for goods or services. If speech is
to reach these people, it must reach them in Lloyd Center. The
Center itself recognizes this. For example, in 1964 its director
of public relations offered candidates for President and Vice
President the use of the center for political speeches, boasting
'that our convenient location and setting would provide the
largest audience (the candidates) could attract in Oregon.' App.
187.
For many persons who do not have easy access to television,
radio, the major newspapers, and the other forms of mass media,
the only way they can express themselves to a broad range of
citizens on issues of general public concern is to picket, or to
handbill, or to utilize other
30
Page 581
free or relatively inexpensive means of communication. The only
hope that these people have to be able to communicate effectively
is to be permitted to speak in those areas in which most of their
fellow citizens can be found. One such area is the business
district of a city or town or its functional equivalent.5 And this
is why respondents have a tremendous need to express themselves
within Lloyd Center.
Petitioner's interests, on the other hand, pale in
comparison. For example, petitioner urges that respondents' First
Amendment activity would disturb the Center's customers. It is
undisputed that some patrons will be disturbed by any First
Amendment activity that goes on, regardless of its object. But,
there is no evidence to
31
Page 582
indicate that speech directed to topics unrelated to the shopping
center would be more likely to impair the motivation of customers
to buy than speech directed to the uses to which the Center is
put, which petitioner concedes is constitutionally protected under
Logan Valley. On the contrary, common sense would indicate that
speech that is critical of a shopping center or one or more of its
stores is more likely to deter consumers from purchasing goods or
services than speech on any other subject. Moreover, petitioner
acknowledges that respondents have a constitutional right to
'leaflet' on any subject on public streets and sidewalks within
Lloyd Center. It is difficult for me to understand why leafletting
in the Mall would be so much more disturbing to the Center's
customers.
I also find patently frivolous petitioner's argument that if
handbilling in the Mall is permitted, Lloyd Center would face
inordinate difficulties in removing litter from its premises. The
District Court found that respondents' activities were
litter-free. Assuming, arguendo, that if respondents had been
permitted to continue their activities, litter might have
resulted, I think that it is immediately apparent that even if
respondents confined their activities to the public streets and
sidewalks of the Center as Lloyd's private police suggested,
litter would have been a problem as the recipients of the
handbills carried them to the shopping and parking areas.
Petitioner concedes that it would have had to remove this litter.
There is no evidence that the amount of litter would have
substantially increased if respondents distributed the leaflets
within the Mall. But, even assuming that the litter might have
increased, that is not a sufficient reason for barring First
Amendment activity. See, e.g., Schneider v. State of New Jersey,
308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). If petitioner is
truly concerned about litter, it should accept a previous
suggestion by this Court and prosecute those
32
Page 583
who throw handbills away, not those who use them for communicative
purposes.6 Id., at 162, 60 S.Ct., at 151.
In sum, the balance plainly must be struck in favor of
speech.
C. Petitioner's other grounds for denying respondents access
to the Mall can be dealt with quickly. The assertion is made that
petitioner had the right to regulate the manner in which First
Amendment activity took place on its property, and that because
the public streets and sidewalks inside the Center offered
sufficient access to the public, it was permissible to deny
respondents use of the Mall. The District Court found that certain
stores in the Center could only be reached by using the private
walkways of the Mall. Those persons who drove into the Center,
parked in the privately owned parking lots, and who entered the
stores accessible only through the Mall could not be safely
reached from the public streets and sidewalks. Hence, the District
Court properly found that the Mall was the only place where
respondents had reasonable access to all of Lloyd Center's
patrons.7 308 F.Supp., at 131. At one point in this
33
Page 584
litigation, petitioner also attempted to assert that it was
entitled to bar respondents' distribution of leaflets on the
ground that the leaflets violated the Selective Service laws. The
District Court found that this contention was without merit. 308
F.Supp., at 132—133. It seems that petitioner has abandoned the
contention in this Court. In any event, it is meritless for the
reasons given by the District Court.
III
In his dissenting opinion in Logan Valley, 391 U.S. 308, at
339, 88 S.Ct. 1601, at 1618, 20 L.Ed.2d 603, Mr. Justice White
said that the rationale of that case would require affirmance of a
case like the instant one. Mr. Justice White, at that time, was
convinced that our decision in Logan Valley, incorrect though he
thought it to be, required that all peaceful and nondisruptive
speech be permitted on private property that was the functional
equivalent of a public business district.
As stated above, I believe that the earlier view of Mr.
Justice White is the correct one, that there is no legitimate way
of following Logan Valley and not applying it to this case. But,
one may suspect from reading the opinion of the Court that it is
Logan Valley itself that the Court finds bothersome. The vote in
Logan Valley was 6—3, and that decision is only four years old.
But, I am aware that the composition of this Court has radically
changed in four years. The fact remains that Logan Valley is
binding unless and until it is overruled. There is no valid
distinction between that case and this one, and, therefore, the
results in both cases should be the same.
34
Page 585
While the majority is obviously troubled by the rationale of
Logan Valley, it is interesting that none of the participants in
this litigation have experienced any similar difficulty. Lloyd
Corp. urges that Logan Valley was correctly decided, that it
struck a balance that the First Amendment required us to strike,
and that it has fully complied with Logan Valley with respect to
labor activity. The American Retail Federation urges in its Brief
as amicus curiae that a balance must be struck between the
property interests of shopping center owners and the First
Amendment interests of shopping center users. It does not urge
that Logan Valley was incorrectly decided in any way.
It is true that Lloyd Corp. and the American Retail
Federation ask the Court to distinguish this case from Logan
Valley, but what is more important is that they recognize that
when massive areas of private property are opened to the public,
the First Amendment may come into play. They would like, of
course, to limit the impact of speech on their private property,
but whether or not they can do so consistently with the First
Amendment is a question that this Court must resolve.
We noted in Logan Valley that the large-scale movement of
this country's population from the cities to the suburbs has been
accompanied by the growth of suburban shopping centers. In
response to this phenomenon, cites like Portland are providing for
large-scale shopping areas within the city. It is obvious that
privately owned shopping areas could prove to be greatly
advantageous to cities. They are totally self-sufficient, needing
no financial support from local government; and if, as here, they
truly are the functional equivalent of a public business area, the
city reaps the advantages of having such an area without paying
for them. Some of the advantages are an increased tax base, a
drawing attraction for residents, and a stimulus to further
growth.
35
Page 586
It would not be surprising in the future to see cities rely
more and more on private businesses to perform functions once
performed by governmental agencies. The advantage of reduced
expenses and an increased tax base cannot be overstated. As
governments rely on private enterprise, public property decreases
in favor of privately owned property. It becomes harder and harder
for citizens to find means to communicate with other citizens.
Only the wealthy may find effective communication possible unless
we adhere to Marsh v. Alabama and continue to hold that '(t)he
more an owner, for his advantage, opens up his property for use by
the public in general, the more do his rights become circumscribed
by the statutory and constitutional rights of those who use it,'
326 U.S. 276, at 506, 66 S.Ct. 276, at 278.
When there are no effective means of communication, free
speech is a mere shibboleth. I believe that the First Amendment
requires it to be a reality. Accordingly, I would affirm the
decision of the Court of Appeals.
1
App. 254.2 The manager of the Center testified:
'Q. Turning now to the general policy in operation of the
Lloyd Center, it's true that the malls and walkways within the
center are open 24 hours a day; is that right?
'A. Well, they aren't physically closed such as putting a
gate across, no. But, they are not—when people are there after
hours, they are watched. And, if it is too late at night, they are
told the places are closed and they should leave.
'Q. If I wanted to walk through the center malls of Lloyd
Center at 3:00 in the morning, would anyone stop me?
'A. Depending on who the officer was on duty as to what he is
supposed to do. But, they would have made inquiry and followed you
to see what you are doing.' App. 49.
3
The manager of the Center, explaining why presidential
candidates were allowed to speak, said: 'We do that for one reason
and that is great public interest. It . . . brings a great many
people to Lloyd Center who may shop before they leave.' App. 51.
4
The city of Portland has an ordinance which makes it
unlawful to trespass on private property. Portland, Or., Police
Code § 16—613.
5
The Court of Appeals also relied on Wolin v. Port of New
York Authority, 392 F.2d 83 (CA2 1968).
6
In commenting on the necessity for citizens who reside in
company towns to have access to information, the Court said: 'Many
people in the United States live in company-owned towns. These
people, just as residents of municipalities, are free citizens of
their State and country. Just as all other citizens they must make
decisions which affect the welfare of community and nation. To act
as good citizens they must be informed.' 326 U.S., at 508, 66
S.Ct., at 280.
7
The Court also commented on the increasing role of
shopping centers and on the problem which they would present with
respect to union activities if picketing were totally proscribed
within shopping center areas: 'Business enterprises located in
downtown areas (on public streets and sidewalks) would be subject
to on-the-spot public criticism for their (labor) practices, but
businesses situated in the suburbs could largely immunize
themselves from similar criticism by creating a cordon sanitaire
of parking lots around their stores.' 391 U.S., at 324—325, 88
S.Ct., at 1612. The concurring opinion of Mr. Justice Douglas also
emphasized the related purpose of the picketing in Logan Valley:
'Picketing in regard to labor conditions the Weis Supermarket is
directly related to that shopping center business.' 391 U.S., at
326, 88 S.Ct., at 1612.8 308 F.Supp. 128, 130, 132 (Or.1970); 446 F.2d 545, 546
(CA9 1971).
9
Amalgamated Food Employees Union Local 590 v. Logan Valley
Plaza, Inc., 391 U.S. 308, 319, 88 S.Ct. 1601, 1608, 20 L.Ed.2d
603 (1968).10 As Mr. Justice Black was the author of the Court's
opinion in Marsh, his analysis of its rationale is especially
meaningful.
11
The injunction issued against Lloyd is comprehensive. It
enjoins Lloyd (and others in active concert or participation with
it) from 'preventing or interfering with the distribution of
non-commercial handbills in a peaceful and orderly manner in the
malls and walkways within Lloyd Center at times when they are open
to general public access.' There is no limitation as to type of
literature distributed except that it must be 'non-commercial.'
Nor, indeed, is there any limitation in this injunction as to the
number of persons participating in such activities or the
frequency thereof. Irrespective of how controversial, offensive,
distracting, or extensive the distributions may be, Lloyd has been
ordered to allow all non-commercial handbilling which anyone
desires to undertake within its private premises.
12
The Court's opinion in Logan Valley described the
obstacles resulting from the location of the Weis store in the
shopping center, and its relation to public streets and sidewalks:
'Petitioners' picketing was directed solely at one establishment
within the shopping center. The berms surrounding the center are
from 350 to 500 feet away from the Weis store. All entry onto the
mall premises by customers of Weis, so far as appears, is by
vehicle from the roads alongside which the berms run. Thus the
placards bearing the message which petitioners seek to communicate
to patrons of Weis must be read by those to whom they are directed
either at a distance so great as to render them virtually
indecipherable—where the Weis customers are already within the
mall—or while the prospective reader is moving by car from the
roads onto the mall parking areas via the entrance ways cut
through the berms. In addition, the pickets are placed in some
danger by being forced to walk along heavily traveled roads along
which traffic moves constantly at rates of speed varying from
moderate to high. Likewise, the task of distributing handbills to
persons in moving automobiles is vastly greater (and more
hazardous) than it would be were petitioners permitted to pass
them out within the mall to pedestrians.' 391 U.S., at 321—322, 88
S.Ct., at 1610.
13
Mr. Justice Black, dissenting in Logan Valley, emphasized
the distinction between a privately owned shopping center and the
'company town' involved in Marsh, which he said had assumed 'all
the attributes' of a municipality. 391 U.S., at 332, 88 S.Ct., at
1615. (Original emphasis.)
1
There is some conflict in the testimony as to precisely
what the guards told respondents with respect to the likelihood
that they would be arrested if they did not leave the Mall. The
Agreed Facts in the Pretrial Order states that the guards said
that respondents could be arrested if they refused to leave. The
District Court found that the guards caused respondents to believe
that they would be arrested and that this was the reason that they
left the Mall. The Court of Appeals affirmed this finding and it
is supported by the record.
2
Logan Valley involved both picketing and handbilling,
since the effect of the state court injunction was to ban both
forms of expression. 391 U.S., at 322—323 and n. 12, 88 S.Ct., at
1610—1611. We made it clear in Logan Valley that while there were
obvious differences between picketing and handbilling, both
involved a modicum of a burden of property. We held that neither
could be barred from a shopping center that was the functional
equivalent of a public business district. Id., at 315—316, 88
S.Ct., at 1606—1607.
3
App. 62 (testimony of R. Horn, manager of Lloyd Center).
It is widely known that the American Legion is a Veteran's
organization. See 1 Encyclopedia of Associations 997 (7th ed.
1972). It is also common knowledge that the poppy is the symbol
sold by the Legion to finance various of its activities. At times
the proceeds from selling poppies were used to finance lobbying
and other activities directed at increasing the military capacity
of the United States. R. Jones, A History of the American Legion
330—332 (1946).
4
The record indicates that when unions have picketed inside
the Mall, Lloyd Center has voiced no objections. App. 108
(testimony of R. Horn, manager of Lloyd Center). It is apparent
that petitioner has no difficulty in accepting our decision in
Logan Valley and in complying with it.
5
It is evident from the Court's opinion that the majority
fails to grasp the essence of our decision in Logan Valley. The
Court notes that there is a difference between a free-standing
store and one located in a shopping center, and between small
stores and extremely large ones, but suggests that because the
difference is 'of degree—not of principle' it is unimportant. This
files directly in the face of Logan Valley, where we said that as
private property expands to the point where it becomes, in
reality, the business district of a community, the rights of the
owners to proscribe speech on the part of those invited to use the
property diminish. When the Court states that this was broad
language that was somehow unnecessary to our decision it betrays
its misunderstanding of the holding.
As Mr. Justice Black and Mr. Justice White both pointed out
in dissent in Logan Valley, there was really only one issue before
the Court—i.e., whether the Logan Valley Plazza was prevented by
the Fourteenth Amendment from inhibiting speech even though it was
private property. The critical issue was whether the private
property had sufficient 'public' qualities to warrant a holding
that the Fourteenth Amendment reached it. We answered this
question in the affirmative, and the answer was the pivotal factor
in our decision. Every member of the Court was acutely aware that
we were dealing with degrees, not absolutes. But we found that
degrees of difference can be of constitutional dimension. While
any differences between the instant case and Logan Valley are
immaterial in my view, such differences as there are make this a
clearer case of illegal state action.
6
Since petitioner's security guards have full police power,
they can enforce state laws against littering, just as they have
enforced laws against loitering in the past. App. 45 (testimony of
R. Horn, manager of Lloyd Center).
----------7.The Court implies that it is willing to reverse both lower
courts and hold that their findings that alternative forums for
leafletting in Lloyd Center were either not as effective as the
Mall or dangerous are clearly erroneous. I too have read the
record in this case and I find no warrant for such a holding. The
record plainly shows that it was impossible to reach many of the
shoppers in the Center without using the Mall unless respondents
were willing to approach cars as they were leaving the center. The
District Court and the Court of Appeals took the view that
requiring respondents to run from the sidewalk, to knock on car
windows, to ask that the windows be rolled down so that a handbill
could be distributed, to offer the handbill, run back to the
sidewalk, and to repeat this gesture for every automobile leaving
Lloyd Center involved hazards not only to respondents but also to
other pedestrians and automobile passengers. Having never seen
Lloyd Center, except in photographs contained in the record, and
having absolutely no idea of the amount of traffic entering or
leaving the Center, the Court cavalierly overturns the careful
findings of facts below. This, in my opinion, exceeds even the
most expansive view of the proper appellate function of this
Court.
| 23
|
407 U.S. 385
92 S.Ct. 2247
33 L.Ed.2d 11
PIPEFITTERS LOCAL UNION NO. 562 et al., Petitioners,v.UNITED STATES.
No. 70—74.
Argued Jan. 11, 1972.
Decided June 22, 1972.
Syllabus
Petitioner union and three of its officers were convicted of conspiracy to violate 18 U.S.C. § 610, which prohibited a labor organization from making a contribution or an expenditure in connection with a federal election. Evidence indicated that the union from 1949 through 1962 maintained a political fund to which union members and others working under the union's jurisdiction were required to contribute and that that fund was then succeeded by the present fund, which was, in form, set up as a separate 'voluntary' organization; union officials, nevertheless, retained unlimited control over the fund, and no significant change was made in the regular and systematic collection of contributions at a prescribed rate based on hours worked; union agents, moreover, continued to collect donations at jobsites on union time, and the proceeds were used for a variety of purposes, including political contributions in connection with federal elections; those contributions, on the other hand, were made from accounts strictly segregated from union dues and assessments, and, although some of the contributors believed otherwise, donations to the fund were not, in fact, necessary for employment or union membership. Under instructions to determine whether the fund was in reality a union fund or the contributors' fund, the jury found each defendant guilty. The Court of Appeals rejected petitioners' challenges, and held that the fund was a subterfuge through which the union made political contributions of union monies in violation of § 610. The Federal Election Campaign Act of 1971, which became effective after oral argument here, added a paragraph at the end of § 610 that expressly authorizes labor organizations to establish, administer, and solicit contributions for political funds, provided that the fund not make a contribution or expenditure in connection with a federal election by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat thereof, or by monies required as a condition of employment or union membership. Held:
1. Section 610, as confirmed by the Federal Election Campaign Act, does not apply to contributions or expenditures from voluntarily financed union political funds. A legitimate political fund must be separate from the sponsoring union only in the sense that there must be a strict segregation of its monies from union dues and assessments, and solicitation by union officials, although permissible, must be conducted under circumstances plainly indicating that donations are for a political purpose and that those solicited may decline to contribute without reprisal. Pp. 401—427.
2. Section 610 may be interpreted to prohibit the use of general union monies for the establishment, administration, or solicitation of contributions for union political funds. By clearly permitting such use, the Federal Election Campaign Act may, therefore, have impliedly repealed § 610. Pp. 428—427.
3. Even if there has been such an implied repeal, it, nevertheless, does not require abatement of the prosecution against petitioners because of the federal saving statute, 1 U.S.C. § 109. United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480, followed. Hamm v. Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, distinguished. Pp. 432—435.
4. The instructions to the jury were clearly erroneous because they permitted the jury to convict without finding that donations to the fund had been actual or effective dues or assessments. The sufficiency of the indictment is left open for determination on remand. Pp. 435—442.
434 F.2d 1127, vacated and remanded to the District Court with instructions to dismiss indictment against petitioners Callanan and Lawler, both now deceased, and reversed and remanded to the District Court as to remaining petitioners.
Morris A. Shenker, St. Louis, Mo., for petitioners.
Lawrence G. Wallace, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioners—Pipefitters Local Union No. 562 and three individual officers of the Union—were convicted by a jury in the United States District Court for the Eastern District of Missouri of conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 610. At the time of trial § 610 provided in relevant part:
2
'It is unlawful . . . for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors or a Senator or Representative in . . . Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices . . ..
3
'Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be fined not more than $5,000; and every officer or director of any corporation, or officer of any labor organization, who consents to any contribution or expenditure by the corporation or labor organization, as the case may be, . . . in violation of this section, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if the violation was willful, shall be fined not more than $10,000 or imprisoned not made than two years, or both.
4
'For the purposes of this section 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exist (sic) for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.'1
5
The indictment charged, in essence, that petitioners had conspired from 1963 to May 9, 1968, to establish and maintain a fund that (1) would receive regular and systematic payments from Local 562 members and members of other locals working under the Union's jurisdiction; (2) would have the appearance, but not the reality of being an entity separate from the Union; and (3) would conceal contributions and expenditures by the Union in connection with federal elections in violation of § 610.2
6
The evidence tended to show, in addition to disbursements of about $150,000 by the fund to candidates in federal elections, an identity between the fund and the Union and a collection of well over $1 million in contributions to the fund by a method similar to that employed in the collection of dues or assessments. In particular, it was established that from 1949 through 1962 the Union maintained a political fund to which Union members and others working under the Union's jurisdiction were in fact required to contribute and that the fund was then succeeded in 1963 by the present fund, which was, in form, set up as a separate 'voluntary' organization. Yet, a principal Union officer assumed the role of director of the present fund with full and unlimited control over its disbursements. The Union's business manager, petitioner Lawler, became the first director of the fund and was later succeeded by petitioner Callanan, whom one Local 562 member described as 'the Union' in explaining his influence within the local. Moreover, no significant change was made in the regular and systematic method of collection of contributions at a prescribed rate based on hours worked, and Union agents continued to collect donations at jobsites on Union time. In addition, changes in the rate of contributions were tied to changes in the rate of members' assessments. In 1966, for example, when assessments were increased from $1 to 50¢ per day worked, wages, the contribution rate was decreased from $1 to 50¢ per day worked with the result that the change did not cause, in the words of the Union's executive board, 'one extra penny cost to members of Local Union 562.' At the same time, the contribution rate for nonmembers, who were not required to pay the prescribed travel card fee for working under Local 562's jurisdiction, remained the same at $2 per day worked, approximately matching the total assessment and contribution of members. Finally, in addition to political contributions, the fund used its monies for nonpolitical purposes, such as aid to financially distressed members on strike, and for a period of a new months, upon the vote of its members, even suspended collections in favor of contributions to a separate gift fund for petitioner Callanan.3 Not surprisingly, various witnesses testified that during the indictment period contributions to the fund were often still referred to as—and actually understood by some to be assessments, or that they paid their contributions 'voluntarily' in the same sense that they paid their dues or other financial obligations.4
7
On the other hand, the evidence also indicated that the political contributions by the fund were made from accounts strictly segregated from Union dues and assessments5 and that donations to the fund were not, in fact, necessary for employment or Union membership. The fund generally required contributors to sign authorization cards, which contained a statement that their donations were 'voluntary . . . (and) no part of the dues or financial obligations of Local Union No. 562 . . .,'6 and the testimony was overwhelming from both those who contributed and those who did not, as well as from the collectors of contributions, that no specific pressure was exerted, and no reprisals were taken, to obtain donations.7 Significantly, the Union's attorney who had advised on the organization of the fund testified on cross-examination that his advice had been that payments to the fund could not be made a condition of employment or Local 562 membership, but it was immaterial whether contributions appeared compulsory to those solicited.8
8
Under instructions to determine whether on this evidence the fund was in reality a Union fund or the contributors' fund,9 the jury found each defendant guilty. The jury also found specially that a willful violation of § 610 was not contemplated, and the trial court imposed sentence accordingly. The Union was fined $5,000, while the individual defendants were each sentenced to one year's imprisonment and fined $1,000.
9
On appeal to the Court of Appeals for the Eighth Circuit, petitioners contended that the indictment failed to allege, and the evidence was insufficient to sustain, a conspiracy to violate § 610, and that § 610, on its face or as construed and applied, abridged their rights under the First, Fifth, Sixth, and Seventeenth Amendments and Art. I, § 2, of the Constitution. They argued further that the special finding by the jury that a willful violation of § 610 was not contemplated effectively resulted in acquittal, since such willfulness was an essential element of the conspiracy under 18 U.S.C. § 371. The Court of Appeals in a four-to-three en banc decision, 434 F.2d 1127 (1970), adopted Judge Van Oosterhout's panel opinion rejecting each of these claims, 434 F.2d 1116 (1970). The gist of the court's decision, insofar as pertinent here, was that the Pipefitters fund was a subterfuge through which the Union made political contributions of Union monies in violation of § 610, as demonstrated by the evidence that the fund regularly served Union purposes and that the donors to the fund contributed in the belief that their job security depended upon it. We granted certiorari. 402 U.S. 994, 91 S.Ct. 2168, 29 L.Ed.2d 160 (1971).
10
After we heard oral argument, the President on February 7, 1972, signed into law the Federal Election Campaign Act of 1971, which in § 205 amends 18 U.S.C. § 610, see infra, at 409—410, effective April 7, 1972. See Federal Election Campaign Act of 1971, § 406, 86 Stat. 20. We, accordingly, requested the parties to file supplemental briefs addressing the impact of that amendment on this prosecution.10 Having considered those briefs, we now hold that § 205 of the Federal Election Campaign Act merely codifies prior law, with one possible exception pertinent to this case; that the change in the law, if in fact made, does not in any event require this prosecution to abate; but that the judgment below must, nevertheless, be reversed because of erroneous jury instructions.11 This disposition makes decision of the constitutional issues premature, and we therefore do not decide them. Cf. United States v. International Union United Auto., etc., Workers, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957); United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948).
11
* We begin with an analysis of § 610.
12
First. The parties are in agreement that § 610, despite its broad language, does not prohibit a labor organization from making, through the medium of a political fund organized by it, contributions or expenditures in connection with federal elections, so long as the monies expended are in some sense volunteered by those asked to contribute. Thus, the Government states in its brief, 'Nor do we dispute (petitioners') conclusion, following their review of the legislative history of Section 610, that a union could 'establish a political organization for the purpose of receiving earmarked political monies directly from (voluntary contributions of) union members . . .." Brief for the United States 27 n. 7, quoting Brief for Petitioners 62. See also Brief for the United States 30. This construction of § 610 is clearly correct.12
13
The antecedents of § 610 have previously been traced in United States v. Auto. Workers and United States v. CIO, both, supra. We need recall here only that the prohibition in § 313 of the Federal Corrupt Practices Act of 1925, 43 Stat. 1074, on contributions by corporations in connection with federal elections was extended to labor organizations in the War Labor Disputes Act of 1943, 57 Stat. 163, but only for the duration of the war. As the court noted in CIO, supra, at 115, 68 S.Ct., at 1354, 'It was felt that the influence which labor unions exercised over elections through monetary expenditures should be minimized, and that it was unfair to individual union members to permit the union leadership to make contributions from general union funds to a political party which the individual member might oppose.' The prohibition on contributions was then permanently enacted into law in § 304 of the Labor Management Relations Act, 1947, 61 Stat. 159, with the addition, however, of a proscription on 'expenditures' and an extension of both prohibitions to payments in connection with federal primaries and political conventions as well as federal elections themselves. Yet, neither prohibition applied to payments by union political funds in connection with federal elections so long as the funds were financed in some sense by the voluntary donations of the union membership. Union political funds had come to prominence in the 1944 and 1946 election campaigns and had been extensively studied by special committees of both the House and the Senate. Against the backdrop of the committee findings and recommendations, the Senate debates upon the reach of § 304 attached controlling significance to the voluntary source of financing of the funds. The unequivocal view of the proponents of § 304 was that the contributions and expenditures of voluntarily financed funds did not violate that provision.
14
The special committees investigating the 1944 and 1946 campaigns devoted particular attention to the activities of the Political Action Committee (PAC) of the Congress of Industrial Organizations (CIO) because they had stirred considerable public controversy. See H.R.Rep.No.2093, 78th Cong., 2d Sess., 2—6 (1945); S.Rep.No.101, 79th Cong., 1st Sess., 20—24, 57—59 (1945); H.R.Rep.No.2739, 79th Cong. 2d Sess., 30—31 (1946). See also S.Rep.No.1, pt. 2, 80th Cong., 1st Sess., 34 (1947). The committee findings were that PAC had been established by the executive board of the CIO in July 1943; that it consisted of a national office and 14 regional offices advising and coordinating numerous state and local political action committees; that its connection to the CIO was close at every level of organization; that its program, adopted by the CIO convention in November 1943, had included the re-election of President Roosevelt and the election of a 'progressive' Congress; that it had initially been financed by sizable pledges from the treasuries of CIO international unions and that some of these funds had been expended in federal primaries; but that, following the nomination in July 1944 of President Roosevelt for re-election, it was generally financed by $1 contributions knowingly and freely made by individual CIO members; and that these monies were used for political educational activities, including get-out-the-vote drives, but were not directly contributed to any candidate or political committee. Thus, PAC had limited its direct contributions in federal campaigns to primaries, to which the Act at the time expressly did not apply, and restricted its activities in the elections themselves to so-called 'expenditures' rather than 'contributions.' The Senate Special Committee on Campaign Expenditures concluded in 1945 that, in these circumstances, there was 'no clear-cut violation' by PAC of § 313 of the Corrupt Practices Act. S.Rep.No.101, supra, at 23. Although there was agreement within in the committee that § 313 should be extended to federal primaries and nominating conventions because of their importance in determining final election results, id., at 81—82,13 there was disagreement on whether § 313 should also be amended to proscribe 'expenditures' in addition to 'contributions.' A majority believed that it should not be, in part because the amendment 'would tend to limit the rights of freedom of speech, freedom of the press, and freedom of assembly as guaranteed by the Federal Constitution.' Id., at 83.14 Senators Ball and Ferguson, who dissented from this conclusion, nevertheless conceded that even as to 'expenditures' '(i)f the Political Action Committee had been organized on a voluntary basis and obtained its funds from voluntary individual contributions from the beginning, there could be no quarrel with its activities or program and in fact both are desirable in a democracy.' Id., at 24. The House Campaign Expenditures Committee in 1946, however, strongly urged the adoption of a prohibition on 'expenditures' in terms condemning the activities of PAC without regard to the source of its funds.15
15
Then, in 1947, Congress made permanent the application of § 313 of the Corrupt Practices Act to labor organizations and closed the loopholes that were thought to have been exploited in the 1944 and 1946 elections. These changes were embodied in § 304 of the labor bill introduced by Representative Hartley, which was adopted by the House and the conference committee with little apparent discussion or opposition.16 The provision, however, provoked lengthy debate on the Senate floor when Senator Taft, sponsor of the Senate labor bill and one of the Senate conferees, sought to explain its import. That debate compellingly demonstrates that voluntarily financed union political funds were not believed to be prohibited by the broad wording of § 304. Thus, Senator Taft stated:
16
'(I)t seems to me the conditions are exactly parallel, both as to corporations and labor organizations. (An association of manufacturers) receiving corporation funds and using them in an election would violate the law, in my opinion, exactly as the PAC, if it got its fund from labor unions, would violate the law. If the labor people should desire to set up a political organization and obtain direct contributions for it, there would be nothing unlawful in that. If the National Association of Manufacturers, we will say, wanted to obtain individual contributions for a series of advertisements, and if it, itself, were not a corporation, then, just as in the case of PAC, it could take an active part in a political campaign.' 93 Cong.Rec. 6439 (1947) (emphasis added).
17
In response to a question by Senator Magnuson whether unions would be prohibited from publishing a newspaper 'favoring a candidate, mentioning his name, or endorsing him for public office,' Taft continued:
18
'No; I do not think it means that. The union can issue a newspaper, and can charge the members for the newspaper, that is, the members who buy copies of the newspaper, and the union can put such matters in the newspaper if it wants to. The union can separate the payment of dues from the payment for a newspaper if its members are willing to do so, that is, if the members are willing to subscribe to that kind of a newspaper. I presume the members would be willing to do so. A union can publish such a newspaper, or unions can do as was done last year, organize something like the PAC, a political organization, and receive direct contributions, just so long as members of the union know what they are contributing to, and the dues which they pay into the union treasury are not used for such purpose.' Id., at 6440 (emphasis added).
19
When Magnuson rejoined that 'all union members know that a part of their dues in these cases go for the publication of some labor (newspaper) organ,' Taft concluded:
20
'Yes. How fair is it? We will assume that 60 percent of a union's employees are for a Republican candidate and 40 percent are for a Democratic candidate. Does the Senator think the union members should be forced to contribute, without being asked to do so specifically, and without having a right to withdraw their payments, to the election of someone whom they do not favor? Assume the paper favors a Democratic candidate whom they oppose or a Republican candidate whom they oppose. Why should they be forced to contribute money for the election of someone to whose election they are opposed? If they are asked to contribute directly to the support of a newspaper or to the support of a labor political organization, they know what their money is to be used for and presumably approve it. From such contribution the organization can spend all the money it wants to with respect to such matters. But the prohibition is against labor unions using their members' dues for political purposes, which is exactly the same as the prohibition against a corporation using its stockholders' money for political purposes, and perhaps in violation of the wishes of many of its stockholders.' Idid. (emphasis added).
21
See also id., at 6437, 6438.
22
Senator Taft's view that a union cannot violate the law by spending political funds volunteered by its members was consistent with the legislative history of the War Labor Disputes Act and an express interpretation given to that Act by the Attorney General in 1944.17 His view also reflected concern that a broader application of § 610 might raise constitutional questions of invasion of First Amendment freedoms, and he wished particularly to reassure colleagues who had reservations on that score and whose votes were necessary to override a predictable presidential veto, see 93 Cong.Rec. 7485 of the Labor Management Relations Act.18 We conclude, accordingly, that his view of the limited reach of § 610, entitled in any event to great weight, is in this instance controlling. Cf. American Newspaper Pub. Assn. v. NLRB, 345 U.S. 100, 106—111, 73 S.Ct. 552, 555—558, 97 L.Ed. 852 (1953); Amalgamated Ass'n of Street Electric Railway & Motor Coach Employees of America, Division 998 v. Wisconsin Employment Relations Board, 340 U.S. 383, 392 n. 15, 71 S.Ct. 359, 364, 95 L.Ed. 364 (1951). We therefore hold that § 610 does not apply to union contributions and expenditures from political funds financed in some sense by the voluntary donations of employees. Cf. United States v. Auto. Workers, 352 U.S., at 592, 77 S.Ct., at 541; United States v. CIO, 335 U.S., at 123, 68 S.Ct., at 1357.
23
Section 205 of the Federal Election Campaign Act confirms this conclusion by adding at the end of § 610 the following paragraph:
24
'As used in this section, the phrase 'contribution or expenditure' shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section; but shall not include communications by a corporation to its stockholders and their families or by a labor organization to its members and their families on any subject; nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and their families, or by a labor organization aimed at its members and their families; the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization: Provided, That it shall be unlawful for such a fund to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment, or by monies obtained in any commercial transaction.' 86 Stat. 10 (emphasis added).
25
This amendment stemmed from a proposal offered by Representative Hansen on the House floor, see 117 Cong.Rec. 43379, to which the Senate acquiesced in conference. See id., at 46799 (joint conference committee report). Hansen stated that the purpose of his proposal was, with one exception not pertinent here,19 'to codify the court decisions interpreting (and the legislative history explicating) section 610 . . . and to spell out in more detail what a labor union or corporation can or cannot do in connection with a Federal election.'20 Moreover, there was substantial agreement among his colleagues that the effect of his amendment was, in fact, mere codification and clarification,21 and even those who disagreed did not dispute that voluntarily financed union political funds are permissible. Indeed, Representative Crane, who led the opposition to the Hansen amendment,22 himself had written the House committee provision for which the Hansen amendment was, in effect, substituted.23 Mr. Crane's provision, like the Hansen amendment, was said in some measure to codify existing law,24 and would also have specifically authorized voluntary funds.25 This consensus that has now been captured in express terms in § 610 cannot, of course, by itself conclusively establish what Congress had in mind in 1947. But it does "throw a cross light" on the earlier enactment that, together with the latter's legislative history, demonstrates beyond doubt the correctness of the parties' common ground of interpretation of § 610. Michigan Nat. Bank v. Michigan, 365 U.S. 467, 481, 81 S.Ct. 659, 666, 5 L.Ed.2d 710 (1961) (quoting L. Hand, J.). Cf. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 194, 87 S.Ct. 2001, 2013, 18 L.Ed.2d 1123 (1967); NLRB v. Drivers, Chauffeurs, Helpers, Local Union, 362 U.S. 274, 291—292, 80 S.Ct. 706, 715—716, 4 L.Ed.2d 710 (1960).
26
Second. Where the litigants part company is in defining precisely when political contributions and expenditures by a union political fund fall outside the ambit of § 610. The Government maintains, first, that a valid fund may not be the alter ego of the sponsoring union in the sense of being dominated by it and serving its purposes, regardless of the fund's source of financing:
27
'Section 610 was violated (the Government explains) if in fact the (Pipefitters) Fund was merely a subterfuge through which the union itself made proscribed political contributions, irrespective of whether the moneys so contributed were voluntarily given to the Fund by the contributors. . . . (T)he evidence that the payments were voluntary (was only a factor relevant) in determining if it was the union or the Fund as a separate entity that made the political contributions in question . . ..' Brief for the United States in Opposition to the Petition for Certiorari 7.
28
See also Brief for the United States 24. The requirement that the fund be separate from the sponsoring union eliminates, in the Government's view, 'the corroding effect of money employed in elections by aggregated power,' United States v. Auto. Workers, 352 U.S., at 582, 77 S.Ct., at 537, which this Court has found to be one of the dual purposes underlying § 610. See id., passim; United States v. CIO, 335 U.S., at 113, 115, 68 S.Ct., at 1353, 1354.
29
The Government urges, secondly, that in accordance with the legislative intent to protect minority interests from overbearing union leadership, which we have found to be the other purpose of § 610, see idid., the fund may not be financed by monies actually required for employment or union membership or by payments that are effectively assessed, that is, solicited in circumstances inherently coercive.26 Petitioners, on the other hand, contend that, to be valid, a political fund need not be distinct from the sponsoring union and, further, that § 610 permits the union to exercise institutional pressure, much as recognized charities do, in soliciting donations. See Brief for Petitioners 71, 73 n. 22.
30
We think that neither side fully and accurately portrays the attributes of legitimate political funds. We hold that such a fund must be separate from the sponsoring union only in the sense that there must be a strict segregation of its monies from union dues and assessments.27 We hold, too, that although solicitation by union officials is permissible, such solicitation must be conducted under circumstances plainly indicating that donations are for a political purpose and that those solicited may decline to contribute without loss of job, union membership, or any other reprisal within the union's institutional power. Thus, we agree with the second half of the Government's position, but reject the first.
31
As Senator Taft's remarks quoted above indicate, supra, at 406—408, the test of voluntariness under § 610 focuses on whether the contributions solicited for political use are knowing freechoice donations. The dominant concern in requiring that contributions be voluntary was, after all, to protect the dissenting stockholder or union member. Whether the solicitation scheme is designed to inform the individual solicited of the political nature of the fund and his freedom to refuse support is, therefore, determinative.
32
Nowhere, however, has Congress required that the political organization be formally or functionally independent of union control or that union officials be barred from soliciting contributions or even precluded from determining how the monies raised will be spent. The Government's argument to the contrary in the first half of its position is based on a misunderstanding of the purposes of § 610.28 When Congress prohibited labor organizations from making contributions or expenditures in connection with federal elections, it was, of course, concerned not only to protect minority interests within the union but to eliminate the effect of aggregated wealth on federal elections. But the aggregated wealth it plainly had in mind was the general union treasury—not the funds donated by union members of their own free and knowing choice. Again, Senator Taft adamantly maintained that labor organizations were not prohibited from expending those monies in connection with federal elections. Indeed, Taft clearly espoused the union political organization merely as an alternative to permissible direct political action by the union itself through publications endorsing candidates in federal elections. The only conditions for that kind of direct electioneering were that the costs of publication be financed through individual subscriptions rather than through union dues and that the newspapers be recognized by the subscribers as political organs that they could refuse to purchase.29 Neither the absence of even a formally separate organization, the solicitation of subscriptions by the union, nor the method for choosing the candidates to be supported was mentioned as being material. Similarly, the only requirements for permissible political organizations were that they be funded through separate contributions and that they be recognized by the donors as political organizations to which they could refuse support. As Taft said, 'If the labor people should desire to set up a political organization and obtain direct contributions for it, there would be nothing unlawful in that,' 'just so long as members of the union know what they are contributing to, and the dues which they pay into the union treasury are not used for such purpose.' Supra, at 406, 407.
33
The operations of PAC, the organization that dominated the congressional investigations of the 1944 and 1946 campaigns and that was expressly approved by the 80th Congress, are especially instructive in this regard. Significantly, it was exactly the knowing free-choice donation test of voluntariness that PAC sought scrupulously to observe in soliciting contributions. Sidney Hillman, Chairman of PAC, testified before the House Campaign Expenditures Committee in 1944:
34
'(W)e have utilized every avenue to tell the people not to become overenthusiastic about collections. We want this contribution on a voluntary basis and would rather have no contribution than to have any taint of coercion or even any interference. We do not want any money except from those who want to see the reelection of Roosevelt.'30
35
PAC was, nevertheless, generally regarded, not as a functionally separate organization (except for its method of financing31), but as an instrumentality of the CIO, itself subsumed within the definition of 'labor organization.'32 It was, as we have seen, established by the executive board of the CIO, its program was adopted at the national CIO convention, and its relationship to the CIO was close at every level of organization.33 Furthermore, union agents generally collected contributions, H.R.Rep.No.2093, 78th Cong., 2d Sess., 5 (1945), and the union leadership was instrumental in choosing candidates to be supported.34 Thus, far from being a separate organization sprouting from the desires of the rank and file to engage in political action, PAC, the paradigm union political fund, was a medium for organized labor, conceived and administered by union officials, to pursue through the political forum the goals of the working man.35 And the only prerequisite for its continued operation after enactment of § 304 of the Labor Management Relations Act was that it be strictly financed by solicitations designed to result in knowing free-choice donations.
36
This conclusion, too, we find confirmed by § 205 of the Federal Election Campaign Act, supra, at 409—410. That provision expressly authorizes 'the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization . . ..' The provision then states in a proviso clause that 'it shall be unlawful for such a fund to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment . . ..' Thus, § 205 plainly permits union officials to establish, administer, and solicit contributions for a political fund. The conditions for that activity are that the fund be 'separate' and 'segregated' and that its contributions and expenditures not be financed through physical force, job discrimination, or financial reprisal or the 'threat' thereof, or through 'dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment.' The quoted language is admittedly subject to contrary interpretations. 'Separate' could (and normally when juxtaposed to 'segregated' would) be read to mean an apartness beyond 'segregated'; 'threat' could be construed as referring only to the expression of an actual intention to inflict injury; and 'dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment' could be interpreted to mean only actual dues or assessments. But we think that the legislative history of § 205 establishes that 'separate' is synonymous with 'segregated'; that 'threat' includes the creation of an appearance of an intent to inflict injury even without a design to carry it out; and that 'dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment' includes contributions effectively assessed even if not actually required for employment or union membership.
37
The Hansen amendment was an alternative to Representative Crane's proposal, which declared in relevant part, n. 25, supra:
38
'Nothing in this section shall preclude an organization from establishing and administering a separate contributory fund for any political purpose . . ., if all contributions, gifts, or payments to such fund are made freely and voluntarily, and are unrelated to dues, fees, or other moneys required as a condition of membership in such organization or as a condition of employment.' (Emphasis added.)
39
The debate on the differences between the Crane, and Hansen provisions did not involve this language when the Hansen amendment was first introduced and adopted by the House. See ibid. At that point Hansen merely indicated in general explanation of his amendment that a permissible fund had to be 'separate,' which in context clearly meant 'segregated,' see 117 Cong.Rec. 43379,36 and that, although the law could not 'control the mental reaction' of a union member solicited by his union chief, id., at 43381,37 the monies obtained had to come 'in a truly voluntary manner and without the employment of the kinds of threats or reprisals or other methods that are prohibited by this amendment.' Ibid. Thus interpreted, the Hansen amendment as its author explained, served the traditional purposes of § 610:
40
'(T)he underlying theory of section 610 is that substantial general purpose treasuries should not be diverted to political purposes, both because of the effect on the political process of such aggregated wealth and out of concern for the dissenting member or stockholder. Obviously, neither of these considerations cuts against allowing voluntary political funds. For no one who objects to the organization's politics has to lend his support, and the money collected is that intended by those who contribute to be used for political purposes and not money diverted from another source.' Ibid.
41
No one at that time disputed that the Crane and Hansen provisions were the same in these respects in codifying prior law.
42
After the conference committee had adopted the Hansen amendment, however, Crane inserted in the record a Wall Street Journal article suggesting that the Hansen amendment had been inspired by the AFL—CIO to overrule the Court of Appeals decision in this case by authorizing a union political fund even if it is not separate and distinct from the sponsoring union, and by altering the test of voluntariness to focus on the absence of force rather than on the contributor's intent to make a donation of his own free and knowing choice. See 118 Cong.Rec. 323—324.38 Crane did not significantly elaborate on the article or specifically endorse each of the particular points it made.
43
Hansen rejoined that he '(stood) fully behind every word of the statement' he had made during the earlier debate on his amendment and '(repeated) . . . that the purpose and effect of my amendment is (sic) to codify and clarify the existing law and not to make any substantive changes in the law.' Id., at 328.39 He stated further that his 'amendment is consistent with the position taken by the Justice Department in the brief it filed with the U.S. Supreme Court in the Pipefitter case (which charged that the contributions to the Pipefitters fund 'were assessed by the union as part of its dues structure') . . .,' since his amendment prohibited financing political funds through monies required for employment or union membership. His amendment, therefore, would not have the effect of 'thwarting' that prosecution. Id., at 328—329 (emphasis omitted). Hansen stated, too, that his 'amendment is also consistent with the provisions of the so-called Crane amendment dealing with the legality of a separate, voluntary political fund.' Ibid. The only difference he appears to have seen between his amendment and the text of the Crane provision quoted above was that the one made explicit what the other treated implicitly. Hansen explained:
44
'(A)s Senator Dominick stated, speaking in support of an amendment to section 610 he offered to the other body, the general view is that:
45
"If a member wishes to pay money voluntarily to a candidate or to a labor organization fund for a candidate or even to a fund which the union will determine how it is to be spent, I have no objections.' (117 Cong.Rec.S. 29329.40
46
'The Hansen amendment building on this consensus tracks this language with a single addition making explicit what is implicit in the Crane amendment—that unions and corporations may solicit contributions to these funds as long as they do so without attempting to secure money through 'physical force, job discrimination, financial reprisals' or the threat thereof. Thus the Hansen amendment does not break new ground, it merely writes currently accepted practices into clear and explicit statutory language.' Id., at 329.
47
Crane made no reply to these assertions.
48
We conclude from this legislative history that the term 'separate' in the Hansen amendment is synonymous with 'segregated.' Nothing in the legislative history indicates that the word is to be understood in any other way. To the contrary, Hansen's comments in general explanation of his amendment support that interpretation, as does the use of the term in the Crane provision, with which, Hansen said, his amendment was consistent. Moreover, Hansen did not deny that his amendment departed from the Court of Appeals, insistence in the Pipefitters decision that a permissible political fund be separate and distinct from the sponsoring union; instead, he merely found his amendment consistent with the Government's argument before this Court that political contributions and expenditures cannot be made from dues or assessments. Finally, both the Crane and the Hansen amendments expressly authorize unions to establish and administer voluntary political funds. The Hansen amendment also expressly authorizes union officials to solicit contributions and, as the quoted statement of Senator Dominick indicates, further permits them to determine the disposition of the monies raised. In these circumstances, it is difficult to conceive how a valid political fund can be meaningfully 'separate' from the sponsoring union in any way other than 'segregated.' Similarly, we conclude that the term 'threat' and the phrase 'dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment' must be read broadly to encompass solicitation schemes that do not make plain the political nature of the union fund and the freedom of the individual solicited to refuse to contribute without reprisal. The term and the phrase, in other words, include apparent, as well as actual threats and dues or assessments respectively. Again, Hansen's explanatory statements are all consistent with that interpretation. Even his observation that the law cannot 'control the mental reaction' of a union member approached by a union official seems better taken simply as justification for allowing solicitation by union officials at all rather than as condoning the use of tacit force or pressure. Moreover, if the Hansen amendment is to be construed, as Hansen indicated it should be, in pari materia with the Crane provision, it, too, must require that donations be made 'freely and voluntarily.' Likewise, if the amendment is meant, as Hansen said it was, to embrace the Government's position in this case, we merely implement his purpose by interpreting 'dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment' as including not only actual but also effective dues or assessments.
49
Construed as we have done, § 205 of the Federal Election Campaign Act does nothing more than accomplish the expressed purpose of its author—that is, codify and clarify prior law. But since we have arrived at our interpretation without reference to prior law, § 205 once again throws on § 610 as embodied in § 304 of the Labor Management Relations Act 'a cross light' that confirms our understanding of the law applicable to this prosecution.
50
Third. Arguably, however, there is one change effected by § 205 material to this case, and that is with regard to the use of general union monies for the establishment, administration, and solicitation of contributions for political funds. Section 304 of the Labor Management Relations Act may be interpreted to prohibit such use, while the Hansen amendment plainly permits it.
51
As we have seen, supra, at 403, PAC was initially financed from general union treasuries. After the nomination of President Roosevelt for re-election, however, the costs of administration of PAC as well as its political expenditures were mainly, although not entirely, financed from a segregated account of voluntary individual donations . The House campaign expenditures committee explained in its 1945 report, H.R.Rep.No.2093, 78th Cong.2d Sess., 5 (1945):
52
'(I)t is not . . . possible completely to separate the resources and facilities made available to the Political Action Committee even after July 23, 1944 (when Roosevelt became a candidate for re-election), from those of the Congress of Industrial Organizations and its unions. On the national level and in most States that separation appears to have been preserved so far as cash income and cash expenditures for strictly Political Action Committee as distinguished from union activities are concerned. The local distribution of Political Action Committee literature, for example, has been largely handled by volunteers on their own time; and the contributions have largely been taken by shop stewards outside working hours. But no such separation has proved possible where the use of union offices(41) and office personnel is concerned. Union personnel assigned to full-time Political Action Committee work have typically been transferred from the union to the Political Action Committee pay roll. But the part time Political Action Committee services of persons who are both union and Political Action Committee officers cannot be thus readily segregated.'
53
In endorsing PAC in the enactment of § 304 of the Labor Management Relations Act, Congress clearly had in mind PAC's financial structure after July 1944. Congress, therefore, may have considered that PAC's activities in the future could be financed only from voluntary donations separate from union dues and assessments, except for incidental expenses such as office space and part-time personnel. Alternatively, in view of the emphasis on protecting minority union interests and manintaining a strict segregation of funds, Congress may have thought that all of PAC's activities, including the costs of administration and solicitation of contributions, had to be paid for exclusively from voluntary contributions. The evidence is strong at least that Congress believed the costs of organization of new union political funds had to be financed in that way. See, e.g., S.Rep.No.101, 79th Cong., 1st Sess., 24 (1945) (statement by Sens. Ball and Ferguson, quoted, supra, at 404).
54
In contrast, the Hansen amendment provides that 'it shall be unlawful for such a fund to make a contribution or expenditure by utilizing money or anything of value secured' in a prohibited way. Conceivably this language could be read to forbid making contributions or expenditures through the establishment or administration of a political fund or through the solicitation of donations financed by general union monies. But that is neither the plain meaning nor, as the legislative history of § 205 shows, the intended construction of the provision. When the Hansen amendment was first introduced, its sponsor explained:
55
'As a further safeguard (against the use of a compulsory fund for political purposes) the proviso also makes it a violation for such a fund to make a contribution or expenditure from money collected as dues or other fees required as a condition of membership or employment or obtained through commercial transactions. This insures that any money, service, or tangible item—such as a typewriter, Xerox machine, and so forth—provided to a candidate by such a fund must be financed by the voluntary political donations it has collected.' 117 Cong.Rec. 43381.
56
At no point in the debate on § 205 did Hansen suggest that his amendment was to be read more broadly than this, despite the fact that the Wall Street Journal article inserted in the record by Representative Crane specifically charged that 'union chiefs could use dues money to pay for the soliciting . . ..' 118 Cong.Rec. 323. Furthermore, the exemption for the establishment, administration, and solicitation of contributions for voluntary political funds was but one of three exceptions to the general rule prohibiting corporations and labor organizations from making contributions or expenditures in connection with federal elections. The other two exceptions were communications to, and nonpartisan registration and get-out-the-vote campaigns aimed at, stockholders or union members and their families. In explaining the three exemptions, Hansen clearly regarded each of them as a permissible activity to be financed by general union funds, for each, in his view, was an activity where group interests predominated42 and 'the interest of the minority (was) weakest . . ..' 117 Cong.Rec. 43380.
57
Thus, § 205 may in one respect have impliedly repealed the substantive law relating to this prosecution.43 But we need not now decide that question, because even if there has been such an implied repeal, it would not affect this prosecution for reasons to which we now turn.
II
58
The rule is well established that prosecutions under statutes impliedly or expressly repealed while the case is still pending on direct review must abate in the absence of a demonstration of contrary congressional intent or a general saving statute. For, '(p)rosecution for crimes is but an application or enforcement of the law, and, if the prosecution continues, the law must continue to vivify it.' United States v. Chambers, 291 U.S. 217, 226, 54 S.Ct. 434, 436, 78 L.Ed. 763 (1934). This doctrine had its earliest expression in United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801), and has since 'been consistently recognized and applied by this Court.' Bell v. Maryland, 378 U.S. 226, 231 n. 2, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822 (1964). As Chief Justice Hughes observed in Chambers, supra, 291 U.S. at 226, 54 S.Ct. at 436, 'The principle involved is . . . not archaic, but rather is continuing and vital—that the people are free to withdraw the authority they have conferred and, when withdrawn, . . . the courts (cannot) assume the right to continue to exercise it.'
59
In this case, however, although we do not find a demonstration of contrary congressional intent that would overcome application of this rule if applicable,44 we do hold that the general federal saving statute, 61 Stat. 635, 1 U.S.C. § 109, operates to nullify any abatement of the prosecution. That statute provides in pertinent part:
60
'The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.'
61
In United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 (1888), the Court reviewed an indictment, returned in 1885, alleging that the defendant, an attorney, had in 1883 charged clients in pension cases against the Government $100 and $50 respectively in violation of a $10 maximum fee established by Act of Congress, June 20, 1878, 20 Stat. 243. Despite the fact that Congress had expressly repealed that Act and raised the maximum permissible fee in pension cases to $25 in 1884, Act of Congress, July 4, 1884, § 3, 23 Stat. 99, the Court sustained the indictment on the basis of the federal saving statute. In Hamm v. Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964), on the other hand, we held that the saving statute would not nullify abatement of federal prosecutions for trespass in public luncheon facilities following enactment of the public accommodation requirements of the Civil Rights Act of 1964. We explained, id., at 314, 85 S.Ct., at 390:
62
'The federal saving statute was originally enacted in 1871, 16 Stat. 432. It was meant to obviate mere technical abatement such as that illustrated by the application of the rule in (United States v. Tynen, 11 Wall. 88, 20 L.Ed. 153) decided in 1871. There a substitution of a new statute with a greater schedule of penalties was held to abate the previous prosecution. In contrast, the Civil Rights Act works no such technical abatement. It substitutes a right for a crime. So drastic a change is well beyond the narrow language of amendment and appeal. It is clear, therefore, that if the convictions were under a federal statute they would be abated.'
63
The instant case is controlled by Reisinger rather than by Hamm. Section 205 of the Federal Election Campaign Act may, of course, make lawful what was previously unlawful—namely, the financing of the establishment administration, and solicitation of contributions for voluntary political funds from general union monies. But § 205 does not, in any event, '(substitute) a right for a crime.' To the contrary, as in Reisinger and Tynen, it retains the basic offense—contributions or expenditures by labor organizations in connection with federal elections are still forbidden so long as they are paid for from actual or effective dues or assessments. We therefore hold that even if there has been an implied repeal of § 610, petitioners remain punishable under that provision. We turn now to determine whether the convictions below have been returned consistently with that law.
III
The Government urges:
64
'The essential charge of the indictment and the theory on which the case was tried was that the (Pipefitters) Fund, although formally set up as an entity independent of Local 562, was in fact a union fund, controlled by the union, contributions to which were assessed by the union as part of its dues structure, collected from non-members in lieu of dues, and expended, when deemed necessary, for union purposes and the personal use of the directors of the Fund.' Brief for the United States, 23 (emphasis added).
65
See also Brief for the United States in Opposition to the Petition for Certiorari 11—12.45 This was indeed, as we shall shortly see, the theory on which the indictment was drawn, the jury was instructed, and petitioners' convictions were affirmed. It is also the construction of § 610 that we have rejected in favor of the Government's narrower construction that the prerequisite for a permissible political fund is simply that it not be financed by actual or effective dues or assessments. See supra, at 413—414. On the other hand, we find that the indictment may be read to allege not only that the Pipefitters fund was 'a union fund, controlled by the union,' but that 'contributions to (it) were assessed by the union as part of its dues structure, (and were) collected from non-members in lieu of dues . . .' For reasons that follow, however, we do not now construe the indictment as making this essential allegation, but leave that question open for determination on remand. We hold now only that the jury instructions failed to require proof of the essential element for conviction, and hence reverse the judgment below.
66
First. Petitioners moved before trial to dismiss the indictment on the following ground, App. 28:
67
'The gist of the indictment is to allege that Section 610 . . . prohibits labor unions from forming parallel political organizations which receive voluntary contributions from the members of the union to be contributed and expended in Federal elections. Congress intended such political organizations to be legally authorized. Thus, the indictment fails to state an offense . . ..'
68
Petitioners also moved for a bill of particulars, id., at 30:
69
'whether it is the government's position and theory of the case that the mere fact that the (Pipefitters fund) was established, maintained, and administered by members, officers, employees, agents, foremen and shop (stewards) of Local 562 is, in and of itself, sufficient to make said Fund, under the law, a Fund of Local 562(;) . . . whether or not it is the government's position that Section 610 . . . prohibits the members, officers, employees, agents, foremen and shop (stewards) of a union from establishing any political organization or fund for the purpose of making contributions and expenditures in connection with (federal) elections . . .(;) . . . whether it is the government's position and theory of the case that the alleged 'regular and systematic collection, receipt, and expenditures of money obtained from working members of Local 562 and from working members of other labor organizations employed under jurisdiction of the defendant Local 562' were voluntary or involuntary collections and contributions.'46
70
In a memorandum in opposition to the motion to dismiss, the Government acknowledged petitioners' argument 'that the indictment is defective in that it does not allege that the funds involved were not voluntary' and took the position that '(p)roof of the offense charged here does not depend upon whether the funds were volunteered or not by union members. The issue is whether these funds were the general funds of Local 562,' id., at 56, which the indictment, in the Government's view, impliedly charged in alleging that petitioners "unlawfully, wilfully and knowingly did conspire and agree with each other . . . to violate Section 610. . . ." Id., at 54. The trial court overruled each of petitioners' motions without opinion.
71
On appeal the Court of Appeals adopted the Government's theory of the case. First, it ruled that by implication '(t)he gist of the government's claim as reflected by the indictment is that the money in the fund is in truth and in fact money belonging to Local 562.' 434 F.2d, at 1120.47 The court then held, ibid.:
72
'The failure of the indictment to allege that the payments to the fund were involuntary is not fatal. . . . If (the allegation that the money in the fund is in fact Union money) is established by the evidence, the issue of whether the payment to the fund is voluntary or involuntary is not controlling.
73
'Of course as observed by the (trial) court in its instructions, the issue of whether the payments to the fund were voluntary is relevant and material on the issue of whether the fund is the property of Local 562. Other considerations such as the intention of the donors as to ownership and control of the fund also bear upon the issue.'
74
This account of the proceedings below indicates that the question of the voluntariness of the contributions to the Pipefitters fund was regarded both at trial and on appeal as a matter relating to, but not essential for the basic charge of the indictment that Local 562 concealed political contributions of Union monies through the subterfuge of a Union-controlled fund. This theory, of course, flies in the face of the legislative history of s 610. The impressive lesson of that history in this regard is that the political contributions in issue violated § 610 if, and only if, payments to the fund were actually or effectively required for employment or union membership. In other words, the essence of the crime in this respect is whether the method of solicitation for the fund was calculated to result in knowing free-choice donations. Whether the fund was otherwise controlled by the Union is immaterial.
75
We think, nevertheless, that the indictment may be read, consistently with the proper interpretation of § 610, to allege that the contributions to the Pipefitters fund derived from effective dues or assessments.48 But whether the indictment should now be construed in light of the proceedings below to make this allegation is an altogether different question.49 Since this precise question was not addressed below and has not been briefed or argued before us and since the case must, in any event, be remanded, whereupon the issue may become moot,50 we do not now undertake to decide it. Instead, in the event that the Government chooses to proceed with the indictment before us, petitioners shall have leave to renew their motion to dismiss.
76
Second. The jury instructions embody an interpretation of § 610 that is plainly erroneous. The trial court refused requests by petitioners for instructions that the jury should acquit if it found that contributions to the Pipefitters fund were made voluntarily.51 Adopting a contrary view, the court instructed the jury, over petitioners' objections, that it should return verdicts of guilty if the fund 'was in fact a union fund, . . . the money therein was union money, and . . . the real contributor to the candidates was the union.' 'In determining whether the Pipefitters Voluntary Fund was a bona fide fund, separate and distinct from the union or a mere artifice or device,' the jury was further instructed to 'take into consideration all the facts and circumstances in evidence, and in such consideration . . . (to) consider' 19 factors, several of which related to the regularity, rate, method of collection, and segregation from Union monies of payments to the fund. Others concerned the kinds of expenditures the fund made and the Union's control over them. Still others involved whether the payments to the fund were made voluntarily. In the latter regard the court charged (emphasis added):
77
'A great deal of evidence has been introduced on the question of whether the payments into the Pipefitters Voluntary . . . Fund by members of Local 562 and others working under its jurisdiction were voluntary or involuntary. This evidence is relevant for your consideration, along with all other facts and circumstances in evidence, in determining whether the fund is a union fund. However, the mere fact that the payments into the fund may have been made voluntarily by some or even all of the contributors thereto does not, of itself, mean that the money so paid into the fund was not union money.' See n. 9, supra.
78
On appeal the Court of Appeals did not address the validity of these instructions other than to agree with the trial judge that 'the issue of whether the payments to the fund were voluntary is relevant and material (but not determinative) on the issue of whether the fund is the property of Local 562.' Supra, at 438.
79
The instructions, as the Court of Appeals confirmed, clearly permitted the jury to convict without finding that donations to the Pipefitters fund had been actual or effective dues or assessments. This was plain error.52
80
The judgment of the Court of Appeals as to petitioners Callanan and Lawler is vacated, and the case is remanded to the District Court with directions to dismiss the indictment against them. See n. 11, supra. The judgment of the Court of Appeals as to petitioners Local 562 and Seaton is reversed, and the case is remanded to the District Court for proceedings as to them consistent with this opinion.
81
It is so ordered.
82
Vacated in part, reversed in part, and remanded with directions.
83
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
84
Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, dissenting.
85
The decision of the Court today will have a profound effect upon the role of labor unions and corporations in the political life of this country. The holding, reversing a trend since 1907, opens the way for major participation in politics by the largest aggregations of economic power, the great unions and corporations. This occurs at a time, paradoxically, when public and legislative interest has focused on limiting—rather than enlarging—the influence upon the elective process of concentrations of wealth and power.
86
* The majority opinion holds that unions lawfully may make political contributions so long as they come from funds voluntarily given to the union for such purpose. The Court seeks to buttress this holding by a long and scholarly presentation of the legislative history of 18 U.S.C. § 610. But some of that history invites conflicting inferences, and the background of § 205 of the Federal Election Campaign Act of 1971, to which the majority also devotes extensive attention, is of doubious value in interpreting an earlier statute which on its face is clear and unambiguous.1
87
In its preoccupation with the legislative history, the Court has overlooked the central point involved in this case: that the conviction of petitioners accords with the plain language of the controlling statute. Nor does the majority demonstrate an ambiguity in that statutory language that makes relevant its long journey into the legislative history.
88
The operative language of § 610 states that: 'It is unlawful . . . for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with' any federal election. Despite this unqualified proscription, the majority opinion sustains the right of unions and corporations to make political contributions directly, provided only that the funds therefor come voluntarily from members, employees, or stockholders and are maintained separately from the other funds of the union or corporation.2 With all respect, this holding is precisely contrary to the express language of law. At the risk of unnecessary repetition I set forth in juxtaposition the operative language in § 610 as contrasted with that of the Court's holding:
89
Section 610 Court's Holding
"It is unlawful . . . "(Section) 610 does not
for . . . any labor apply to union contributions
organization to make a and expenditures
contribution or expenditure from political funds
in connection with any financed in some sense by
(federal) election . . . . " the voluntary donations
of employees." Ante, at 409.
90
If words are given their normal meaning, the statute and the
Court's holding flatly contradict each other. One says that it
shall be unlawful for a union to make a political contribution or
expenditure. The other says this is perfectly lawful, so long as
the funds which the union contributes or expends were donated
freely and knowingly. The Court has simply added a qualification,
91
Page 445
not found in the statutory language, which significantly changes
the meaning of this Act of the Congress.
The Court's holding, moreover, directly counters the purposes
for which § 610 was enacted. Congress passed this legislation to
restrict and minimize the influence corporations and unions might
exert on elections. In United States v. CIO, 335 U.S. 106, 113, 68
S.Ct. 1349, 1353, 92 L.Ed. 1849 (1948), with respect to
corporations, the Court stated:
'This legislation seems to have been motivated by two
considerations. First, the necessity for destroying the
influence over elections which corporations exercised through
financial contribution. Second, the feeling that corporate
officials had no moral right to use corporate funds for
contribution to political parties without the consent of the
stockholders.'
In commenting on the reasons for extending the legislation to
labor organizations, the Court in the same case observed:
'Its legislative history indicates congressional belief that
labor unions should then be put under the same restraints as
had been imposed upon corporations. It was felt that the
influence which labor unions exercised over elections through
monetary expenditures should be minimized, and that it was
unfair to individual union members to permit the union
leadership to make contributions from general union funds to
a political party which the individual member might oppose.'
Id., at 115, 68 S.Ct. at 1353.
The two principal motivations for the enactment of § 610, as
identified in CIO, are (i) the minimizing of influence of labor
unions (as well as corporations) on elections 'through monetary
expenditures'; and (ii) the elimination of the unfairness 'to
individual union members' of allowing union management to make
political
92
Page 446
contributions from general union funds. It seems self-evident that
both of these legislative purposes will be frustrated by the
Court's holding that, despite the language of the statute
forbidding union contributions, unions may now make political
contributions and expenditures, provided only that the source of a
fund is voluntary.
To be sure, there is some language in the congressional
debates which emphasizes the freedom of union members, as well as
that of employees and stockholders of corporations, to make
uncoerced political contributions. No one contests this basic
freedom. But whatever may have been said in congressional debates,
courts are bound by what is written into legislation. If the
language of a statute is clear and unambiguous there is no
occasion to resort to legislative history. Nor can such history,
however illuminating it may seem, be relied upon to contradict, or
dilute, or add unspecified conditions to statutory language which
is perfectly clear. Where statutory provisions were 'clear and
unequivocal on their face,' the Court has found 'no need to resort
to the legislative history of the Act.' United States v. Oregon,
366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (1961). As
Justice Black observed, '(n)o legislative history can justify
judicial emasculation' of the unambiguous language of a statute.
Maryland Casualty Co. v. Cushing, 347 U.S. 409, 437, 74 S.Ct. 608,
623, 98 L.Ed. 806 (1954) (dissenting).3
II
Accepting, as I think we must, § 610 as written, the issue in
this case is whether the political fund of Local
93
Page 447
562 was in reality a sham or subterfuge through which the union
itself made the contributions forbidden by the statute. The
indictment in this case was framed on this basis, and the jury was
so instructed. The question properly addressed by the Court of
Appeals was 'whether the contributions or expenditures were (in
fact) made by a labor organization.' 434 F.2d 1116, 1121 (1970).
After summarizing the evidence submitted to the jury on this
issue, the Court of Appeals concluded:
'There is substantial evidence to support a jury finding that
the fund was not a bona fide separate and distinct entity but
was in fact a device set up to circumvent the provisions of §
610 and that the fund constituted union money.' 434 F.2d, at
1121.
It is not normally the function of this Court in a case of
this kind to determine whether a jury verdict is supported by
substantial evidence. It may not be inappropriate, however, to say
in light of the record before us—that the evidence was more than
sufficient to show that union officials supervised closely the
collection of the 'contributions,' sought 'contributions' in much
the same manner as compulsory assessments, viewed them as part of
the total cost burden which the union member had to bear, expended
them freely both for union projects and political purposes, and so
generally commingled the administration of the fund with the
administration of the union as to entitle the jury to believe the
gifts by Local 562 from the fund to candidates for federal office
constituted union political contributions in violation of § 610.4
94
Page 448
The majority opinion of this Court does not contest this
view. It concludes, rather, that the jury was erroneously
instructed, and that accordingly the verdict and judgment must be
set aside. If a new trial is held, the jury must be instructed in
accordance with the Court's interpretation of § 610 that a union
may lawfully make political contributions from a fund it collects
and administers so long as the payments into it are voluntary.
It is from this interpretation of § 610—one which in my view
willrender the statute largely ineffectual—that I dissent.5
III
The consequences of today's decision could be far-reaching
indeed. The opinion of the Court provides a blueprint for
compliance with § 610, as now construed,
95
Page 449
which will be welcomed by every corporation and union which wishes
to take advantage of a heretofore unrecognized opportunity to
influence elections in this country.6
It may be that the unions, by virtue of a system of
collecting 'political contributions' simultaneously with the
collection of dues and regularizing such collections to the point
where they are indistinguishable from dues, will be the primary
beneficiaries. But the corporations are more numerous than the
unions. They have millions of stockholders and hundreds of
thousands of nonunion employees. Both unions and corporations have
large financial resources. Today's interpretation of § 610 will
enable a more direct and extensive political employment of these
resources by both union and corporation.
By refusing to affirm the judgment below, the majority
renders the ultimate fate of this litigation uncertain. If, on
remand, the techniques of Local 562 should be sanctioned, other
unions and corporations could easily follow Local 562 and obtain
from members, employees, and shareholders a consent form attesting
that the contribution (or withholding) is 'voluntary.' The
trappings of voluntariness might be achieved while the substance
of coercion remained. Union members and corporate employees might
find themselves the objects of regular and systematized
solicitation by the very agent which exercises direct control over
their jobs and livelihood.
96
Page 450
The only remaining requirement to meet the new standards is
that the fund be separate from other union or corporate funds,
although under the majority's interpretation of § 205 it may be
established and administered, and the contributions to it
solicited, by the Union or corporation with its own funds. Again,
if Local 562 were to provide the standards, the separateness of
such a fund need be nothing more than a separate ledger and bank
account.
In sum, the opinion of the Court today, adopting an
interpretation of § 610 at variance with its language and purpose,
goes a long way toward returning unions and corporations to an
unregulated status with respect to political contributions. This
opening of the door to extensive corporate and union influence on
the elective and legislative processes must be viewed with genuine
concern. This seems to me to be a regressive step as contrasted
with the numerous legislative and judicial actions in recent years
designed to assure that elections are indeed free and
representative.
I would affirm the judgment below.
1
Section 371, in turn, provided:
'If two or more persons conspire . . . to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
'If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.'
2
Omitting the overt acts charged, the indictment, filed May 9, 1968, stated in relevant part:
'The Grand Jury charges:
'1. That at all times hereinafter mentioned defendant Pipefitters Local Union No. 562, St. Louis, Missouri, (hereinafter referred to as Local 562), affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL—CIO (hereinafter referred to as
the United Association), was a labor organization within the meaning of Section 610 of Title 18, United States Code, that is to say, an organization in which employees participated and which existed, in part, for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
'3. That from on or about October 12, 1966, up to and including the date of the filing of this indictment, defendant Lawrence L. Callanan was an officer of defendant Local 562.
'4. That at all times hereinafter mentioned defendant John L. Lawler was an officer of defendant Local 562.
'5. That at all times hereinafter mentioned, defendant George Seaton was an officer of defendant Local 562.
'7. That at all times hereinafter mentioned, the Pipefitters Voluntary, Political, Educational, Legislative, Charity and Defense Fund (hereinafter the Fund), was a fund of defendant Local 562, established, maintained, and administered by officers, employees, members, agents, foremen and job stewards of defendant Local 562, to effect a regular and systematic collection, receipt, and expenditure of moneys obtained from working members of defendant Local 562 and from working members of other labor organizations employed under the jurisdiction of defendant Local 562.
'9. That from in or about 1963 and continuously thereafter up to and including the date of the filing of this indictment, in the City of St. Louis, in the Eastern District of Missouri and elsewhere, Local 562, Lawrence L. Callanan, John L. Lawler and George Seaton, the defendants herein, and John F. Burke and Edward J. Steska, named herein as co-conspirators but not as defendants, unlawfully, wilfully and knowingly did conspire and agree with each other and with divers other persons to the grand jurors unknown, to violate Section 610 of Title 18, United States Code in that they did unlawfully, wilfully, and knowingly conspire and agree to have Local 562 make contributions and expenditures in connection with elections at which Presidential and Vice Presidential electors or United States Senators and Representatives to
Congress were to be voted for, and to wilfully consent to the making of such contributions and expenditures by Local 562.
'10. It was a part of said conspiracy that the defendants and co-conspirators would establish and maintain a special fund entitled 'Pipefitters Voluntary Political, Educational, Legislative, Charity and Defense Fund,' which fund would have the appearance of being a wholly independent entity, separate and apart from Local 562; and that the defendants and co-conspirators would thereby conceal the fact that Local 562 would make contributions and expenditures in connection with elections at which Presidential and Vice Presidential electors or United States Senators and Representatives to Congress were to be voted for.
'11. It was further a part of the conspiracy that defendant John L. Lawler would be Director of the Fund and that at a certain time he would be succeeded as Director of the Fund by defendant Lawrence L. Callanan; and that the Director of the Fund would appear to have control and management of the Fund, including the receipt and disbursement of money and the keeping of its books.
'12. It was further a part of the conspiracy that defendants John L. Lawler and Lawrence L. Callanan would not have the books of the Fund audited, or afford members of defendant Local 562 and other pipefitters contributing to the Fund any accounting for the money on hand, paid into or disbursed from the Fund.
'13. It was further a part of the conspiracy that the defendants and co-conspirators, by means of the creation and operation of the Fund, would continue in new form the practice of collecting for political purposes One Dollar ($1.00) per day worked from members of defendant Local 562 and Two Dollars ($2.00) per day worked from non-member pipefitters employed on jobs within the jurisdiction of defendant Local 562.
'14. It was further a part of the conspiracy that the defendants and co-conspirators would waive and fail to enforce Section 180 of the Constitution of the United Association in order to facilitate the payment of monies into the Fund, by failing to collect from non-members of Local 562, working under its jurisdiction, a required travel card fee of not in excess of Eight Dollars ($8.00) per month, and in lieu thereof, collecting payments to the Fund at
the rate of Two Dollars ($2.00) per eight-hour working day from such non-members.
'15. It was further a part of the conspiracy that the defendants and co-conspirators would cause general foremen, area foremen, job stewards, officers, agents, employees and other members of Local 562 acting in a supervisory capacity over members and pipefitters working on jobs under the jurisdiction of Local 562, to become agents of the Fund in order to facilitate the collection of monies for the Fund on a regular basis on job sites and at the headquarters of Local 562, 1242 Pierce Avenue, St. Louis, Missouri.
'16. It was further a part of the conspiracy that the defendants and co-conspirators, in order to facilitate an orderly, regular and systematic collection of contributions to the Fund, would cause the agents of the Fund, referred to in paragraph 15 of this Indictment to distribute to the pipefitters working at all job sites contribution agreement cards to be signed by such pipefitters, and to distribute to foremen and job stewards at such job sites printed collection sheets for the Fund upon which to record the number of hours worked by such pipefitters and the amount of the contributions paid by each into the Fund; and that such foremen or job stewards would advise newly employed pipefitters at such job sites of the existence of the Fund and of the rates of participation, that is, for members of Local 562, One Dollar ($1.00) per eight hours worked; and after January 1, 1965, Fifty Cents ($.50) per eight hours worked, and for members of other pipefitter locals Two Dollars ($2.00) per eight hours worked.
'17. It was further a part of the conspiracy that defendant Local 562 would make substantial contributions in connection with the 1964 General Election and the 1966 General Election and that defendants Lawrence L. Callanan and John L. Lawler would consent to such contributions by issuing checks drawn upon the account of the Fund in the approximate total amount of One Hundred Fifty Thousand Dollars ($150,000).'
3
These facts petitioners, in essence, concede:
'It was undisputed that contributions to the Fund were routinely made at regular intervals at job sites; that they were routinely collected by union stewards, foremen, area foremen, general foremen, or other agents of the union; that they were determined by a formula based upon the amount of hours or overtime hours
worked upon a job under the jurisdiction of the union; that they were at one rate for 562 members and at a different rate for members of other unions; that they began, continued and terminated with employment on a job under the jurisdiction of the union; that monies of the Fund were used to provide benefits to union members (as well as to make political contributions); that non-members were not charged any dues and assessments, including travel card dues in the amount of eight dollars per month; that monies of the Fund were used in part to promote activities permitted to the union by its Constitution and bylaws; that contributions to the Fund were only requested and received from Journeyman Pipefitters working on jobs under the jurisdiction of Local 562, and not from any other classes of persons or organizations; that expenditures from the Fund were under the control of its director who was also the principal officer of the union; and that records used in the collection of the contributions to the Fund were similar to those employed from time to time by the union in the collection of its regular dues and assessments.' Brief for Petitioners 52—53.
4
See App. 197, 212; 270, 281—283; 294; 318, 323—324; 427, 432; 457, 462; 619—621; 698—699; 746; 843; 893; 903. Judge Van Oosterhout's panel opinion, adopted by the majority in the rehearing en banc below, 434 F.2d 1127 (1970), succinctly makes the point: 'It would appear to be unrealistic to believe that such a large number of workmen would make such substantial voluntary contributions to be used for political purposes unless they felt that their job security required them so to do.' 434 F.2d 1116, 1122 (1970).
5
It also appears that the costs of administration of the fund, including the solicitation of contributions, were to some extent, though by no means entirely, similarly financed. See, e.g., App. 17 (indictment apparently charging fund disbursements to pay for authorization cards, see n. 6, infra, and collection sheets); 95—96, 99,
513 (one-time fund employee continuing to assist in fund bookkeeping activities in evenings and on Saturdays while on Union welfare fund payroll); 107—111 (another employee assisting in fund bookkeeping and collection activities while on Union welfare fund payroll before becoming full-time fund employee); 154 passim (Union agent collecting contributions on Union time); 787 (Callanan never on Union and fund payrolls at same time).
6
The authorization card read, Brief for Petitioners 21—22:
'VOLUNTARY CONTRIBUTION AGREEMENT
'I, the undersigned, of my own free will and accord, desire to make regular contributions to the Political, Education, Legislative, Charity and Defense Fund which has been established and will be maintained by persons who are members of Local Union No. 562.
'I, therefore, agree to hereafter contribute ..% per 8 hour day to said fund and authorize my contributions to be used and expended by those in charge of the fund, in their sole judgment and discretion, for political, educational, legislative, charity and defense purposes.
'I understand that contributions are voluntary on my part and that I may revoke this agreement by a written notice to that effect mailed to the fund or to persons in charge thereof. I also understand that my contributions are no part of the dues or financial obligations of Local Union No. 562 and that the Union has nothing whatsoever to do with this fund.
'Signed ......
'Date: ......
'Witness: ......
7
See App. 171—172; 189—190; 239—240, 244—245; 256, 259—260; 299, 311; 322—323; 347; 359—361, 363—365; 382—384; 404, 411; 446; 460; 481—483; 529; 541, 543; 554—555; 561—562; 566, 570—571; 572 573; 577—578; 581; 584—585; 593—594; 600—602, 606; 617; 633—634; 641; 653; 659; 663; 669; 685, 689; 694; 700—702; 705; 710; 715; 718;
723; 731; 752—753; 766; 835; 840; 845—847; 850; 854; 858; 860; 865 866; 869, 871; 872; 875; 877; 887; 889; 894; 902; 915; 919; 925; 930; 944, 947; 948; 953; 956; 962. The only contrary evidence was the testimony of William Copeland, id., at 194—213, a non-562 member who was laid off from a job two days after refusing to contribute when the Union steward explained that everyone had to pay. A co-worker, however, who was also a non-562 member, but paid his contributions, was discharged at the same time, and although he was shortly thereafter put on another 562 job, Copeland did not return to the Union hiring hall for further work. Moreover, Copeland acknowledged on cross-examination that he had 'strong feelings' against Local 562, not only because of the political fund, but because of an earlier dismissal at another job involving a jurisdictional dispute between 562 and his own union.
8
The cross-examination was as follows, id., at 1067—1068:
'Q. Was it of any concern to you as to what the members who were being solicited thought about it, the atmosphere in which the solicitation was made, was that of any concern to you?
'A. None, because it made no difference as a matter of law and as a matter of procedure. I would have no way of knowing what assumptions people reach. I have no way of knowing what people think. My concern is what was said, what was done, and how it was done.
'Q. Well, in your opinion to (the organizers of the fund) did you not make it clear that in no way should it appear compulsory to the members who were asked to contribute?
'A. No, sir, I did no such thing. I simply told them that the contributions must not be made a condition of employment or a condition of Union membership and that was the extent of my advice to them on what they must do, what they must not do, and how they should do it.'
9
The court's instructions in this regard were as follows (emphasis added):
'You will note that Section 610 prohibits contributions by labor organizations for use in connection with an election for a federal office. It does not prohibit any person from making or agreeing to make such contributions or setting up an independent fund for such purpose separate and distinct from union funds either alone or in conjunction with others, simply because such person happens to be a member of a labor organization. That is, the statute is not violated unless the contribution is in fact and in the final analysis made by the labor organization.
'In this case evidence was offered by the Government to the effect that funds were contributed to or on behalf of candidates for federal office and that such funds were paid out upon checks drawn upon the Pipefitters Voluntary Political, Educational, Legislative, Charity and Defense Fund. It is necessary, therefore, that the evidence establish that the Pipefitters . . . Fund was in fact a union fund, that the money therein was union money, and that the real contributor to the candidates was the union. As to this issue, the defendants contend that the fund in question was a bona fide entity separate and apart from the union, established by the voluntary good faith act of members of the pipefitters Local 562 and others, from which contributions to candidates were made on behalf of the persons who created the fund and not on behalf of the union. On the other hand, the Government contends that the fund was a mere artifice or device set up by the defendants and others as a part of the alleged conspiracy to give the outward appearance of being an independent and separate entity but in fact constituting a part of union funds.
'In determining whether the Pipefitters Voluntary Fund was a bona fide fund, separate and distinct from the union or a mere artifice or device, you should take into consideration all the facts and circumstances in evidence, and in such consideration you may consider
'1. Whether or not payments to the fund were routinely made at regular intervals at job sites,
'2. Whether or not payments to the fund were routinely col-
lected by union stewards, foremen, area foremen, general foremen, or other agents of the union,
'3. Whether or not the payment to the fund was determined by a formula based upon the amount of hours or overtime hours worked upon a job under the supervision of the union,
'4. Whether or not payments to the fund were at one rate for 562 members and at a different rate for members of other unions,
'5. Whether or not payments to the fund began, continued and terminated with employment on a job under the jurisdiction of the union,
'6. Whether or not monies of the fund were used to provide benefits to union members in their capacity as members,
'7. Whether or not payments to the fund by members of other unions were in lieu of payments to the union in the form of travel card dues in the amount of eight dollars per month,
'8. Whether or not monies of the fund were used in part to promote activities properly permitted to the union pursuant to Section 2.05 of its Constitution and by-laws,
'9. Whether or not payments to the fund were made by those affiliated with the union to the general exclusion of other classes of persons or organizations,
'10. Whether or not contributions to the fund were required as a condition of employment or continued employment or membership in Local 562,
'11. Whether or not the individuals who contributed to said fund signed a voluntary contribution agreement,
'12. Whether or not the contributions to said fund were made voluntarily or involuntarily,
'13. Whether or not the monies contributed to said fund were kept separate and distinct from the funds of Local 562,
'14. Whether or not some persons who worked under the jurisdiction of Local 562 did not contribute to said fund,
'15. Whether or not the monies of said fund were used in part to promote activities which were prohibited to Local 562 by its Constitution and by-laws,
'16. Whether or not said fund was established and maintained pursuant to the advice of counsel,
'17. Whether or not the monies of said fund were reported to
the Department of Labor on the LM—2 forms, which required the reporting of monies of Local 562,
'18. Whether or not expenditures from the fund were under the control of the union and its officers,
'19. Whether or not records used in the collection of the payments to the fund are similar to those employed from time to time by the union in the collection of its regular dues and assessments.
'If upon consideration of all the facts and circumstances in evidence you find that the contributions to the candidates for federal office for political purposes were in fact made out of union funds by the union, and that the individual defendants as officers of the union, willfully consented thereto, then you may take this fact into consideration together with other facts in evidence in determining whether there was a prior understanding or agreement so to do.
'A great deal of evidence has been introduced on the question of whether the payments into the Pipefitters Voluntary Political, Educational, Legislative, Charity and Defense Fund by members of Local 562 and others working under its jurisdiction were voluntary or involuntary. This evidence is relevant for your consideration, along with all other facts and circumstances in evidence, in determining whether the fund is a union fund. However, the mere fact that the payments into the fund may have been made voluntarily by some or even all of the contributors thereto does not, of itself, mean that the money so paid into the fund was not union money.'
10
The questions posed to the parties were:
'Does § 205 of the Federal Election Campaign Act of 1971 (P.L. 92—225) affect the decision in this case, and, if so, with what result? More particularly, does § 205 effect a substantive change in 18 U.S.C. § 610 in any way material to this case, as, for example, by altering any of the attributes of permissible union political organizations, such as the method of organization or administration or the method of solicitation or collection of contributions? If so, must this prosecution abate under the doctrine of United States v. The Schooner Peggy, 1 Cranch 103 (2 L.Ed. 49), and its progeny? Or does the federal saving statute, 1 U.S.C. § 109, nullify any abatement of the prosecution? In answering the latter question, what effect should be given to Hamm v. Rock Hill, 379 U.S. 306 (85 S.Ct. 384, 13 L.Ed.2d 300)?'
11
Petitioners Callanan and Lawler died pending our decision. The judgment affirming the convictions of those petitioners will therefore be vacated with directions to the District Court to dismiss the indictment against them. Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). The remaining petitioners press the argument, rejected by the Court of Appeals, that the special finding by the jury that a willful violation of § 610 was not contemplated amounted to an acquittal, since such willfulness was an essential element of the conspiracy under 18 U.S.C. § 371. The trial court apparently required a special finding to determine whether the substantive offense that petitioners were charged with conspiring to commit was a misdemeanor or a felony. See 15 U.S.C. § 610. That, in turn, was relevant for imposing sentence under § 371. See n. 1, supra. Petitioners contend that § 371 punishes a conspiracy to commit a malum prohibitum such as § 610 only when the object of the conspiracy is known to have been unlawful, which, so the argument goes, the jury found not to have been the case here by virtue of its special finding. This argument is not persuasive. Petitioners not only failed to object to the trial court's requirement that the jury return a special finding as inconsistent with the general charge, but also failed to move for acquittal on the ground now offered once the special finding was returned. More important, even assuming, arguendo, the correctness of petitioners' premise that knowledge of the reach of § 610 was a requisite for conviction, but see Keegan v. United States, 325 U.S. 478, 506, 65 S.Ct. 1203, 1215, 89 L.Ed. 1745 (1945) (Stone, C.J., dissenting); see generally Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 936—937 (1959), petitioners would still be entitled at best to a new trial, not acquittal. The trial court specifically instructed the jury:
'The crime charged in this case requires proof of specific intent before a defendant can be convicted. . . . To establish specific intent the Government must prove that the defendant knowingly, willfully and purposely did an act which the law forbids. . . .
'An act is done 'knowingly' if done voluntarily and with knowledge of the facts, and not because of mistake or inadvertence or other innocent reason.
'An act is done 'willfully' if done voluntarily and purposely and
with the specific intent to do that which the law forbids; that is to say, with bad purpose either to disobey or to disregard the law.
'An act is done 'unlawfully' if done contrary to law.' App. 1110 (emphasis added). See also id., at 1116 (instruction on good-faith belief in legality of object of conspiracy). In view of this instruction the jury's special finding may well have been inconsistent with its general verdict, but that, we hold, could require only reversal, not acquittal.
12
The dissent declines to accept this agreement of the parties on the ground that the language of § 610 is so clear on its face that there is no warrant for turning to the legislative history of the provision. The contrary is plainly true: Section 610 wholly fails to specify what funds a labor organization is barred from contributing or expending in connection with a federal election. Moreover, as we shall shortly see, the dissent's 'facial' interpretation of § 610 was expressly rejected by its proponents in 1947, both from concern that it would raise constitutional questions of invasion of First Amendment freedoms, and in an effort to ensure enactment of the
law. In addition, Congress has only recently in the Federal Election Campaign Act of 1971 decisively rejected that interpretation on the basis of the very legislative history found dispositive herein. See n. 20, infra. Congress in 1947 and again only a few months ago was able to come to this conclusion solely because of the facial ambiguity of the provision.
It is also worth noting that the dissent's own analysis reveals the necessity for resorting to the legislative history of the statute. The dissent, too, appreciates 'the freedom of union members, as well as that of employees and stockholders of corporations to make uncoerced political contributions.' If that is so, it obviously becomes imperative to determine the contours of that freedom, which, in turn, requires investigation of the legislative history of § 610.
13
See also H.R.Rep. No. 2093, 78th Cong., 2d Sess., 9 (1945); S.Rep. No. 1, pt. 2, 80th Cong., 1st Sess., 36 (1947). But see H.R.Rep. No. 2739, 79th Cong., 2d Sess., 46—47 (1946).
14
The Senate committee did recommend that the use of general union funds to finance the distribution of a political pamphlet in connection with a federal election be prosecuted as a test case to determine the scope of the term 'contribution' in § 313. S.Rep.No. 101, 79th Cong., 1st Sess., 57—59 (1945).
15
H.R.Rep. No. 2739, supra, n. 13, at 39—40, 43, 46. The House Committee declared, for example, id., at 43:
'The CIO Political Action Committee is a committee of the Congress of Industrial Organizations and, as such, under the Corrupt Practices Act, is likewise as a labor union prohibited (from) making any contribution in connection with any election at which a Representative to Congress is to be elected.
'The committee feels that whether or not the activities carried on by these organizations and the payment of salaries to men known as organizers or advisers who go into the congressional districts and actively assist in local campaign activities, and expenditures for radio time, newspaper advertising, printing and distribution of handbills and posters, and for transportation of voters, constitute violations of the letter of the Federal Corrupt Practices Act, they certainly constitute violations of the spirit and intent of the law and the (Act) should be so amended as to clearly and distinctly set out that such activities are prohibited.'
The Senate committee studying the 1946 campaign joined this recommendation, but without any reference to PAC. See S.Rep. No. 1, pt. 2, supra, n. 13, at 38—39. See also H.R.Rep. No. 2083, supra, n. 13, at 9, 10—11 (noting the controversy over the scope of the term 'contribution' and expressing views seemingly sympathetic with prohibiting 'expenditures').
16
See H.R.Rep. No. 245, 80th Cong., 1st Sess., 46 (1947); 93 Cong.Rec. 3428, 3522—3523 (1947); H.R.Conf.Rep.No. 510, 80th Cong., 1st Sess., 67—68 (1947). See also 93 Cong.Rec. 6389 (critical remarks of Representative Sabath following the conference com-
mittee report). The only statement offering a rationale for § 304 was made by Rep. Robsion after the House had voted to override President Truman's veto of the Act. Robsion stressed that it was unfair to union members to allow the expenditure of union funds in support of candidates for federal office whom they opposed. See 93 Cong.Rec. 7492.
17
See Hearings on H.R. 804 and H.R. 1483, before a Subcommittee of the House Committee on Labor, 78th Cong., 1st Sess., 117, 133 (1943) (statements of Rep. Landis, sponsor of the measure) ('Individual union members would not be prohibited from contributing.' 'If you have a membership of 500,000, and all the Democrats wanted to give a dollar apiece, and there were 300,000, that would be $300,000. . . . Your whole organization could give as high as that if they donated only a dollar apiece'); letter from Attorney General Biddle to Sen. E. H. Moore (Sept. 23, 1944) (emphasis added), reproduced in Department of Justice Press Release, Sept. 25, 1944, and noted in 4 Law.Guild Rev., No. 5, p. 49 (1944):
'You also point out (the Attorney General wrote) that committees composed of members of unions are engaged in the solicitation of funds from individual union members and you assert that committees of this kind 'are as much a labor organization as a union organization itself.' This contention is inconsistent with the provisions of the statute. In amending section 313 of the Corrupt Practices Act, the (War Labor Disputes Act) provided that for the purposes of the amendment the words 'labor organization' should have the the same meaning they have under the National Labor Relations Act. . . . I think it clear that committees of the kind that you describe are not labor organizations within the meaning of this definition and they would not be recognized as bargaining agencies by the National Labor Relations Board. Even if it were true that these committees were identical with the
labor organizations to which their members belong—which I believe not to be the fact—there would still be no violation of law because the statute applies to contributions made by labor organizations and in this case the contributions are made by individuals and not by the committees.'
18
See, e.g., 93 Cong.Rec. 6448, 6522—6523 (exchange between Sen. Pepper, who, in opposing § 304, decried it as Republican legislation in contravention of the First Amendment, and Sen. Ellender, who, as a Democratic representative on the conference committee, rose in support of Sen. Taft's construction). See also United States v. CIO, 335 U.S. 106, 120, 68 S.Ct. 1349, 1356, 92 L.Ed. 849 (1948).
19
The exception involved whether nonpartisan registration and get-out-the-vote campaigns could be directed to the public at large. See 117 Cong.Rec. 43379—43381, 43390.
20
Id., at 43379. See also 118 Cong.Rec. 329 (Jan. 19, 1972). In determining that § 610 has always permitted unions to organize voluntarily financed political funds, Hansen relied, as we have done, on Sen. Taft's floor explanation of § 304 of the Hartley bill. See 117 Cong.Rec. 43381; 118 Cong.Rec. 329.
21
See, e.g., 117 Cong.Rep. 43381 (remarks of Rep. Hays), 43383—43385 (remarks of Rep. Thompson), 43388—43389 (remarks of Reps. Steiger and Gude).
22
See, e.g., 117 Cong.Rec. 43382, 43386, 43390—43391; 118 Cong.Rec. 323—324.
23
The Hansen proposal was offered as an amendment to an amendment in the nature of a substitute to the bill as reported out of committee. Although the substitute amendment had no provision relating to § 610, see 117 Cong.Rec. 43365—43366, it was expected that the Crane provision would be taken up as an amendment to the substitute amendment if the Hansen amendment failed to carry. See, e.g., id., at 43389—43390 (remarks of Reps. Devine and Crane). (Reporter's Note: The remarks of Rep. Devine, whose name was erroneously omitted from 117 Cong.Rec. 43389, col. 3, para. 5, line 1, begin with the language, 'Mr. Chairman, I rise in opposition . . ..')
24
See, e.g., id., at 43389—43390 (remarks of Rep. Devine).
25
The Crane provision would have added the following paragraph at the end of § 610:
'As used in this section, the phrase 'contribution or expenditure' shall include any direct or indirect payment, distribution, loan, ad-
vance, deposit, or gift, of money, or any services, or anything of value to any candidate, compaign (sic) committee, or political party or organization, in connection with any election to any of the offices referred to in this section, including any expenditure in connection with get-out-the-vote activities. Nothing in this section shall preclude an organization from establishing and administering a separate contributory fund for any political purpose, including voter registration or get-out-the-vote drives, if all contributions, gifts, or payments to such fund are made freely and voluntarily, and are unrelated to dues, fees, or other moneys required as a condition of membership in such organization or as a condition of employment.' H.R.Rep. No. 92—564, p. 19 (1971) (emphasis different). The principal bone of contention between the proponents and opponents of the Hansen amendment when it was first introduced was whether union or corporation treasuries could and should be available to finance get-out-the-vote drives. Representative Frenzel, for example, summarized the debate shortly before the House vote on the Hansen amendment was taken, 117 Cong.Rec. 43391:
'(I)t is important that we understand neither the Crane amendment nor the Hansen amendment is directed toward voluntary or COPE (the successor of PAC) moneys. What we are talking about is Treasury money. The principal distinction is that the Hansen amendment would allow its use to get-out-the-vote drives for union members while the Crane amendment would not.'
Following the conference committee report, Crane rose once again in opposition to the Hansen amendment, this time and for the first time criticizing the amendment in its treatment of union political funds. The dispute centered then, however, not on whether voluntary funds were permissible, but on exactly what their prerequisites were. See infra, at 422—426.
26
'A union member (the Government explains) may find irresistible the union's demand—through its steward on the jobsite for contributions fixed as a regular percentage of days worked and money earned. Section 610 reduces this institutional pressure by forbidding the unions from making direct political contributions from money that is effectively assessed.' Brief for the United States 38. As we shall see, infra, at 435—442, the Government's theory in prosecuting this case focused on the first, but not the second, of its arguments here presented.
27
For the scope of the required segregation of funds, see infra, at 428—432.
28
The Government relies on United States v. Lewis Food Co., 366 F.2d 710 (1966), where the Court of Appeals for the Ninth Circuit upheld an indictment under § 610 that failed to allege, inter alia, that an expenditure by a corporation in connection with a federal election was made against the wishes of an individual stockholder. The court there explained, id., at 713 714:
'The statute itself . . . does not provide an exception when stockholders consent. We are of the opinion that Congress intended to insure against officers proceeding in such matters without obtaining the consent of shareholders by forbidding all such expenditures.
'The Supreme Court stated that the other legislative motivation (in addition to the protection of minority interests) for enactment of legislation such as section 610 was the necessity for destroying the influence over elections which corporations exercised through financial contributions. (United States v. CIO, 335 U.S., at 113, 68 S.Ct., at 1353.) This consideration would be meaningless if a corporation could make expenditures for activities otherwise forbidden by section 610 by simply obtaining unanimous consent of its shareholders. In the Auto. Workers case, the indictment contained no allegation that the expenditure of union funds (to finance television broadcasts designed to influence the electorate at large) was contrary to the wish of members. Nevertheless, the Supreme Court found the indictment sufficient.'
The Ninth Circuit's reliance on Auto. Workers was misplaced. The indictment there did allege, as we noted, 352 U.S., at 584, 77 S.Ct., at 538, "that the fund used came from the Union's dues, was not obtained by
voluntary political contributions or subscriptions from members of the Union, and was not paid for by advertising or sales." In Anto. Workers, therefore, we had no occasion to address the legitimacy of union-controlled political contributions financed from the knowing free-choice donations of union members. More important, the court in Lewis labored under the same misapprehension on which the Government's argument rests here—namely, that the legislative purpose to eliminate the effects of aggregated wealth on federal elections reaches unionor corporation-controlled contributions and expenditures financed not from the general treasury, but from voluntary donations.
By saying this, we do not mean to suggest that the result in Lewis was incorrect. To the contrary, an indictment that alleges a contribution or expenditure from the general treasury of a union or corporation in connection with a federal election states an offense. See nn. 47 and 48, infra. The unanimous vote of the union members or stockholders may at most (but we need not now decide) be a defense.
29
In United States v. CIO, this Court, of course, went further than Senator Taft's comments would allow by holding that § 304 did not bar a union from using union funds to publish a periodical, in regular course and for distribution to those accustomed to receiving it, that urged union members to vote for a candidate for Congress. The Court, however, arrived at that construction because the contrary interpretation would create 'the gravest doubt' of the statute's constitutionality. 335 U.S., at 121, 68 S.Ct., at 1357.
30
Hearings before the House Committee to Investigate Campaign Expenditures on H.Res. 551, 78th Cong., 2d Sess., 79 (1944). See also id., at 16—17. PAC's method of collection of contributions appears, in large measure, to have been true to Hillman's words, since both its political and voluntary nature were well known. See Id., at 51, 76—79, 712—713, 728—729, 800—801, 822—823, 844—845, 851, 864—866, 871, 880, 885—886, 921—925, 928, 935-936, 941, 946, 962, 964, 988, 999, 1017, 1021—1031, 1033—1038, 1041. In some instances complaints were lodged that pressure had been exercised in obtaining donations, and the House Committee noted in its report that in California some PAC monies were taken directly from union treasuries and 'that at least one local union . . . upon vote by its entire membership levied an assessment of 25 cents per month upon each member. . . .' H.R.Rep. No. 2093, supra, n. 13, at 6. This, nevertheless, was recognized as an exception '(to) the general national plan' following Roosevelt's nomination for re-election, under which PAC was generally financed by individual contributions 'largely . . . taken by shop stewards outside working hours.' Id., at 5. Indeed, the amount of individual contributions actually collected by PAC evidences that it successfully informed CIO members that donations were not mandatory assessments. Cf. L. Overacker, Presidential Campaign Funds 61 (1946). From an estimated CIO membership of five million PAC might have collected $5 million at the requested rate of $1 a member. Yet the national PAC office, which received 50¢ of each $1 donated, obtained only $376,910.77 in 1944, S.Rep. No. 101, supra, n. 14, at 23, suggesting contributions by less than 800,000 CIO members. See also H.R.Rep. No. 2739, supra, n. 13 at 31 ($218,415.98 received in 1946).
31
See infra, at 428—429.
32
Indeed, in a letter to regional PAC directors, the national PAC office itself referred to the organization 'as an instrumentality of the Congress of Industrial Organizations.' S.Rep. No. 101, supra, n. 14, at 22. See also Hearing before the Senate Special Committee to
Investigate Presidential, Vice Presidential, and Senatorial Campaign Expenditures on S.Res. 263, 78th Cong., 2d Sess., 19 (1944) (testimony of Sidney Hillman) ('We just speak and act for the C.I.O. organizations'); House Hearings, supra, n. 30, at 839 840 (testimony of state PAC president) (local PAC is agent of union local). It is true that Senator Taft stated at one point in the Senate debates that '(t)he PAC is a separate organization which raises its own funds for political purposes, and does so perfectly properly.' 93 Cong.Rec. 6437 (1947) (emphasis added). But if meant to indicate anything more than that PAC had a formal identity separate from the CIO, this isolated statement was clearly inconsistent with well-known facts about the organization. Moreover, neither Taft nor any of his colleagues appears to have attached any particular significance to the statement. Nor can we, in view of Taft's endorsement of direct union electioneering through political newspapers paid for through subscriptions. See supra, at 406—408, 416—417. It is also true that the Attorney General in his letter to Senator Moore in 1944 opined that committees like PAC were not 'labor organizations' within the meaning of the War Labor Disputes Act inasmuch as they were not bargaining agencies. See n. 17, supra. But the Senate Campaign Expenditures Committee implicitly in 1945, and the House Committee, expressly in 1946, rejected that conclusion. See S.Rep. No. 101, supra, n. 14, at 23; H.R.Rep. No. 2739, supra, n. 13, at 43 (quoted in n. 15, supra). See also House Hearings, supra, n. 30, at 27 (whether PAC was a 'labor organization' 'highly debatable' in opinion of PAC counsel).
33
The House Committee observed in its 1945 report, H.R.Rep. No. 2093, supra, n. 13, at 5:
'The relationship between the Political Action Committee and the Congress of Industrial Organizations is . . . close on every level of organization. Mr. Hillman is president of the Amalgamated Clothing Workers of America, as well as chairman of the Political Action Committee. The State political action committees typically utilize the existing mechanism of the Congress of Industrial Organizations State councils; and the local political action committees are similarly set up as committees of the Congress of Industrial Organizations locals.'
34
The national PAC organization did not endorse senatorial, congressional, state, or local candidates, but gave advice to state and local political action committees in that regard. The national organization did endorse President Roosevelt on May 17, 1944, when, in the words of Sidney Hillman, 'substantially all of the C.I.O. international unions and the great majority of its State councils had already acted. . . .' House Hearings, supra, n. 30, at 8. The national organization also endorsed Vice President Truman. Candidates for Congress were apparently chosen for endorsement by state or local PAC committees composed of representatives of the international CIO unions after review of incumbents' voting records in consultation with the regional PAC offices. See S.Rep. No. 101, supra, n. 14, at 21; Senate Hearings, supra, n. 32, at 12—13, 20—22; House Hearing, supra, at 8, 39—41, 43—46, 709—712, 714—715, 725—728, 842—845, 896—898, 904, 906—908, 942—944, 949—950, 954—960, 977—979, 983—985, 993—995, 1001, 1003, 1006—1007. PAC's endorsement procedures were described in 1951 as follows: The chairman of the local political action committee, who was usually the union president, would consult with a prospective candidate together with a screening committee. If that committee acted favorably, the candidate would then be presented to the political action committee for a vote on formal endorsement. Any endorsement would then be reported to the constituent unions of the area PAC and to the state and national PAC offices, and activity in support of the candidate would get under way. J. Kroll, The CIO—PAC and How it Works, in The House of Labor 120, 122—123 (J. Hardman & M. Neufeld eds. 1951).
35
Accord, Overacker, supra, n. 30, at 61—62:
'Although the political action committee of the CIO was separately organized, and in most cases its separate identity was scrupulously preserved, it is hard to escape the conclusion that it was the alter ego of the organization which inspired it. The cir-
cumstances under which it came into being, the 'interlocking of directorates' at the top, and the close cooperation at the local level all point in that direction.'
36
'This fund (Hansen stated) must be separate from any union or corporate funds, and contributions must be voluntary. To insure that contributions are voluntary, the amendment prohibits
the use by the separate political fund of any money or anything of value obtained by the use or threat of force, job discrimination, or financial reprisal, or by dues or fees, or other monies required as a condition of employment or membership in a labor organization . . ..' (Emphasis added.)
37
'The essential prerequisite (Hansen said) for the validity of such political funds is that the contributions to them be voluntary. For that reason the final section of this amendment makes it a violation of section 610 to use physical force, job discrimination, financial reprisals or the threat thereof, in seeking contributions. This is intended to insure that a solicitor for COPE or BIPAC (union political funds) cannot abuse his organizational authority in seeking political contributions. Of course, nothing can completely erase some residual effects on this score, any more than the law can control the mental reaction of a businessman asked for a contribution by an individual who happens to be his banker, or of a farmer approached by the head of his local farm organization. The proper approach, and the one adopted here, is to provide the strong assurance that a refusal to contribute will not lead to reprisals and to leave the rest to the independence and good sense of each individual.'
38
In particular, the article quoted 'a man at the Justice Department' as saying that "(t)he (Hansen) provision . . . not only doesn't codify existing law, but it overrules existing law"; stated that Hansen had '(ignored the Court of Appeals decision in this case) that holds that labor can raise campaign cash only through voluntary funds that are 'separate and distinct' from the sponsoring union'; asserted that under the Hansen amendment 'union chiefs . . . wouldn't be required to tell members for what purpose the money (solicited) is going'; and quoted an Associate Deputy Attorney General as reporting the Government's position to be "that a contribution to a political fund (must) be not only 'voluntary,' in the sense of an absence of force, but also knowingly made."
39
At this point Representative Hays, a supporter of the Hansen amendment, interjected, 118 Cong.Rec. 328:
'I will say to the gentleman that what he is saying will be the legitimate legislative history and that what somebody down in the Department of Justice, some Assistant Attorney General's opinion (see n. 38, supra), is worth exactly as much as the piece of paper it is printed on, no more and no less.'
40
See also 117 Cong.Rec. 43380 (Hansen quoting approvingly same statement by Sen. Dominick).
41
Compare Senate Hearing, supra, n. 32, at 41 (regional PAC offices, to Sidney Hillman's knowledge, separate from CIO offices, as 'we don't like them to mix their union business with political activities'), and House Hearings, supra, n. 30, at 717, 901 (testimony of
regional PAC directors) (regional office financed from national PAC headquarters), with House Hearings, id., at 717—718, 736, 841, 857—861, 867—868, 872 (overlapping use of offices on state and local level).
42
With the exemption for communications to stockholders or union members and their families apparently in mind, Hansen stated, for example, 117 Cong.Rec. 43380: '(E)very organization should be allowed to take the steps necessary for its growth and survival. There is, of course, no need to belabor the point that Government policies profoundly affect both business and labor. . . . If an organization, whether it be the NAM, the AMA or the AFL CIO, believes that certain candidates pose a threat to its well-being or the well-being of its members or stockholders, it should be able to get its views to those members or stockholders. As fiduciaries for their members and stockholders the officers of these institutions have a duty to share their informed insights on all issues affecting their institution with their constituents. Both union members and stockholders have the right to expect this expert guidance.' This reasoning, of course, applies as well to solicitations for contributions to voluntary political funds.
'At the present time (Hansen summarized) there is broad agreement as to the essence of the proper balance in regulating corporate and union political activity required by sound policy and the Constitution. It consists of a strong prohibition on the use of corporate and union treasury funds to reach the general public in support of, or opposition to, Federal candidates and a limited permission to corporations and unions, allowing them to communicate freely with members and stockholders on any subject, to attempt to convince members and stockholders to register and vote, and to make political contributions and expenditures financed by voluntary donations which have been kept in a separate segregated fund. This amendment writes that balance into clear and unequivocal statutory language.' Id., at 43381.
43
See e.g., United States v. Tynen, 11 Wall. 88, 92, 20 L.Ed. 153 (1871): '(I)t is a familiar doctrine that repeals by implication are not favored. When there are two acts on the same subject the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first . . ..'
44
The Government in response to the questions posed in n. 10, supra, argues that '(h)ere there is no problem of inferring legislative intent because Congress (in the House debates) clearly expressed its intention that pending prosecutions should not abate'. Supplemental Brief for the United States 7. Representative Hansen, to be sure, did state in the debate that this prosecution would not abate. See supra, at 425. But he also indicated that the effect of his amendment on pending cases was not, and should not be, a matter of concern:
'Obviously, the members of the joint Senate-House conference committee were not concerned about the suggested effect of this amendment on pending cases. Nor were Members of the other body who approved the conference report by a voice vote. There is no reason for Members of this body to be concerned. This is much needed and meritorious legislation. I strongly urge an overwhelming vote of approval.' 118 Cong.Rec. 329.
More important, Hansen's view that this prosecution would continue was possibly premised, as we have seen, on a mistaken understanding of what § 610 previously provided in terms pertinent to this case. If his understanding was, in fact, mistaken, we would have to assume that Congress would intend the general rule of abatement 'applicable as part of the background against which (it) acts,' Hamm v. Rock Hill, 379 U.S. 306, 314, 85 S.Ct. 384, 390, 13 L.Ed.2d 300 (1964), to prevail.
45
The Government in response to the questions posed in n. 10, supra, confirms that this was the theory of the prosecution:
'In short, the case was tried on the theory that the fund here involved was not the kind of a fund which the amended statute permits but was the kind of a fund which was and still is a violation of Section 610—a fund which, while ostensibly separate, was in fact a union fund, supported by money collected as union money and used, when deemed desirable, as general union funds.' Supplemental Brief for the United States 5 (emphasis in original).
46
These inquiries were addressed to paragraphs 7, 10, and 17 of the indictment, see n. 2, supra. Comparable inquiries were generally leveled at other pertinent paragraphs of the indictment.
47
The court arrived at this conclusion on the basis of United States v. Lewis Food Co., supra, n. 28, where the Court of Appeals for the Ninth Circuit sustained an indictment under § 610 that failed to allege expressly that an expenditure by a corporation in connection with a federal election was financed from the general corporate treasury (or, as discussed in n. 28, supra, that it was made against the wishes of an individual stockholder).
'In our opinion (the court there explained), the allegation in the indictment that the corporation made an 'expenditure' for the stated purpose, necessarily infers (sic) an allegation that general corporate funds were used. Corporate expenditures normally come from a corporation's general funds and not from some independent fund contributed by shareholders or otherwise obtained.' 366 F.2d at 713.
48
The heart of the indictment is found in paragraph 10, which states, supra, n. 2:
'It was a part of said conspiracy that the defendants . . . would establish and maintain a special fund . . ., which fund would have the appearance of being a wholly independent entity, separate and apart from Local 562; and that the defendants . . . would thereby conceal the fact that Local 562 would make contributions and expenditures in connection with (federal) elections . . ..'
As in Lewis Food Co., supra, n. 47, it is a fair inference from this allegation that the union made prohibited political contributions and expenditures from general union monies rather than from the knowing free-choice donations of individual members. Moreover, the indictment not only expressly alleges that collections for the fund were 'regular and systematic' at an established rate, see paragraphs 7, 13, 15, and 16 of the indictment, supra, n. 2, but specifically charges in paragraph 14, ibid. (Emphasis added):
'It was further a part of the conspiracy that the defendants . . . would waive and fail to enforce Section 180 of the Constitution of the United Association in order to facilitate the payment of monies into the Fund, by failing to collect from non-members of Local 562, working under its jurisdiction, a required travel card fee of not in excess of Eight Dollars ($8.00) per month, and in lieu thereof, collecting payments to the Fund at the rate of Two Dollars ($2.00) per eight-hour working day from such non-members.'
These allegations together, although not a model of clarity, might (but we do not now decide for the reasons stated in the text) consti-
tute 'a plain, concise and definite' statement, within the meaning of Rule 7(c) of the Federal Rules of Criminal Procedure, that the conspiracy included the actual or effective assessment of contributions to the Pipefitters fund as part of the Union's compulsory dues structure.
49
Compare, e.g., Hanger v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Comyns, 248 U.S. 348, 39 S.Ct. 98, 63 L.Ed. 287 (1919), and Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799 (1897), with, e.g., United States v. Boston & M.R. Co., 380 U.S. 157, 159 n. 1, 85 S.Ct. 868, 869, 13 L.Ed.2d 728 (1965), and Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).
50
Although two of the petitioners died pending decision in this case, see n. 11, supra, the Government may decide on remand to seek a new indictment against the remaining petitioners. The present indictment charges that the conspiracy continued up to the date of the indictment, May 9, 1968, and that an overt act was committed in furtherance of the conspiracy on July 14, 1967, in which case it does not appear that the five-year statute of limitations governing noncapital offenses has run. See 18 U.S.C. § 3282; Grunewald v. United States, 353 U.S. 391, 396—397, 77 S.Ct. 963, 969—970, 1 L.Ed.2d 931 (1957). See also United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 (1888) (indictment valid, though returned after law
51
Petitioners offered seven instructions on 'voluntariness.' Two merely used the term without further definition, while others referred to whether the contributions constituted union dues or
assessments or were made by the donors for political purposes. See App. at 1096—1100. Hereafter, proper instructions on the question of voluntariness may be framed in terms of the application to the proofs of the language of § 205 of the Federal Election Campaign Act as herein construed. See supra, at 421—427.
52
The Court of Appeals did not directly rule on the validity of the instructions because, in the majority's view, petitioners had failed to preserve their objections on appeal. See 434 F.2d, at 1125. See also id., at 1128 (Matthes, C.J., concurring). The dissent below makes a strong argument to the contrary, see id., at 1135 (Lay, J.), but we need not address the question, since the instructions were plainly erroneous, the claim of error was brought to the attention of the trial court, and we may notice a plain error not presented. See, e.g., Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). See also 434 F.2d, at 1130 (Heaney, J., dissenting), 1135 (Lay, J., dissenting).
1
The majority opinion finds confirmation of its interpretation of the legislative history of § 610 in the recently enacted § 205 of the Federal Election Campaign Act of 1971. The majority concludes, however, that § 205 is not retroactive and therefore is inapplicable to this case, a view which I share. I find it unnecessary to the disposition of this case to intertwine the legislative history of the two statutes when only one of them is applicable.
2
The alleged separate fund involved in this case was
segregated only in the sense that there was a separate ledger and
bank account. The Court of Appeals held that there was
'substantial evidence to support a jury finding that the fund was
not a bona fide separate and distinct entity.' 434 F.2d 1116, 1121
(1970). The decision of the majority focuses attention on the
issue of voluntariness and gives little indication that a more
realistic segregation of the fund is required.
3
It has been an ancient and cardinal tenet of statutory
construction that 'where a law is expressed in plain and
unambiguous terms, whether those terms are general or limited, the
legislature should be intended to mean what they have plainly
expressed, and consequently no room is left for construction.'
Lake County v. Rollins, 130 U.S. 662, 670—671, 9 S.Ct. 651, 652,
32 L.Ed. 1060 (1889); Yates v. United States, 354 U.S. 298, 305,
77 S.Ct. 1064, 1069, 1 L.Ed.2d 1356 (1957); United States v.
Standard Brewery, 251 U.S. 210, 217, 40 S.Ct. 139, 140, 64 L.Ed.
229 (1920).
4
Even on the issue of voluntariness, which the Court of
Appeals rightly found 'relevant and material' though 'not
controlling,' 434 F.2d, at 1120, the evidence was impressive that
the collection scheme was inherently coercive. Since Local 562 had
consistently collected contributions to its political funds since
1949, 'contributions' appear to have become a customary de facto
condition to union membership or employment within Local 562's
jurisdiction. Moreover, the regularity of these contributions—week
by week and year by year and each in the same amount as requested
by the union—seems suspiciously incompatible with the concept of
free-will gifts.
5
My interpretation of the statute does not imply that no
'separate fund' would be permissible. I recognize that,
consistently with the statute (as amended by § 205), a union or
corporation may be instrumental in establishing a political fund,
provided it is a bona fide one—separate and segregated from the
union in a genuine, not merely formalistic, way. For example, such
a fund might be managed by a separate nonprofit entity, with
responsible trustees not subservient to the union or corporate
sponsor, who engage independent auditors, who make regular reports
to contributors, and who provide realistic means by which
contributors can express their preference as to political
candidates or parties. Safeguards would be required to assure that
contributions were not coerced, either directly or by means of an
inherently coercive system or relationship. Such a bona fide fund
would contrast quite sharply with that operated by Local 562,
where there were no bylaws, no constitution, no independent
trustees, no audit, no report to contributors, or other
indications of genuine separateness or segregation; and where the
union itself collected, operated, and expended the 'contributions'
in substantially the same manner as union dues and assessments.
6
I recognize, of course, that the recent enactment of § 205
of the Federal Election Campaign Act of 1971 has supplemented and
extended § 610 in defining permissible limits of union and
corporate contributions. But § 205 still leaves intact the
operative language of § 610 which explicitly proscribes political
contributions by unions and corporations. The interpretative gloss
today added unnecessarily on this language will result in
rendering ineffectual the basic intention of the Congress to
prevent the intrusion of corporate and union power into our
political system.
| 78
|
407 U.S. 539
92 S.Ct. 2238
33 L.Ed.2d 122
CENTRAL HARDWARE COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD et al.
No. 70—223.
Argued April 18, 1972.
Decided June 22, 1972.
Syllabus
Petitioner had a rule against solicitational activities in
its stores and parking lots. The parking lots are appurtenant to
petitioner's free-standing stores and do not serve other retail
establishments. Union organizers used petitioner's parking lots to
solicit petitioner's employees to join the union, and petitioner
ordered the organizers off its property. The union filed unfair
labor practice charges against petitioner. The National Labor
Relations Board (NLRB) held that enforcement of petitioner's
no-solicitation rule, which it found was overly broad, violated §
8(a)(1) of the National Labor Relations Act, which proscribes
interference with employees' § 7 organizational rights. The NLRB
concluded that the character and use of the lots distinguished the
case from N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct.
679, 100 L.Ed. 975, which required a 'yielding' of the employer's
property rights in the context of an organizational campaign only
'when the inaccessibility of employees makes ineffective the
reasonable attempts by nonemployees to communicate with them
through the usual channels . . .. Id., at 112, 76 S.Ct., at 684.
Instead, the NLRB held applicable Amalgamated Food Employees v.
Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603,
where peaceful picketing by union agents on a parking lot within a
shopping center was held, under the circumstances existing, to be
within the protection of the First Amendment. The Court of
Appeals, agreeing, ordered enforcement of the NLRB's order. Held:
Logan Valley, decided on constitutional grounds, is not applicable
to this § 7 case, which the Court of Appeals should now reconsider
in the light of Babcock. Pp. 542—548.
439 F.2d 1321, vacated and remanded.
Ronald L. Aylward, Keith E. Mattern, St. Louis, Mo., for
petitioner.
1
Page 540
Norton J. Come, Washington, D.C., for respondent, N.L.R.B.
Bernard Dunau, Washington, D.C., for respondent Retail
Clerk's Union 725, Retail Clerks International, AFL—CIO.
djQ Mr. Justice POWELL delivered the opinion of the Court.
Petitioner, Central Hardware Co. (Central), owns and operates
two retail hardware stores in Indianapolis, Indiana. Each store is
housed in a large building, containing 70,000 square feet of floor
space, and housing no other retail establishments. The stores are
surrounded on three sides by ample parking facilities,
accommodating approximately 350 automobiles. The parking lots are
owned by Central, and are maintained solely for the use of
Central's customers and employees. While there are other retail
establishments in the vicinity of Central's stores, these
establishments are not a part of a shopping center complex, and
they maintain their own separate parking lots.
Approximately a week before Central opened its stores, the
Retail Clerks Union, Local 725, Retail Clerks International
Association, AFL—CIO (the Union), began an organization campaign
at both stores. The campaign consisted primarily of solicitation
by nonemployee Union
2
Page 541
organizers on Central's parking lots. The nonemployee organizers
confronted Central's employees in the parking lots and sought to
persuade them to sign cards authorizing the Union to represent
them in an appropriate bargaining unit. As a part of the
organization campaign, an 'undercover agent for the Union' was
infiltrated into the employ of Central, receiving full-time salary
from both the Union and the company. This agent solicited
employees to join the Union, and obtained a list of the employees
of the two stores which was about 80% complete.
Central had a no-solicitation rule which it enforced against
all solicitational activities in its stores and on its parking
lots. A number of employees complained to Central's local
management that they were being harassed by the organizers, and
these complaints were forwarded to Central's corporate
headquarters in St. Louis, Missouri. The St. Louis officials
directed the Indianapolis management to enforce the nonemployee
no-solicitation rule and keep all Union organizers off the company
premises, including the parking lots. Although most of the
nonemployee Union organizers had either left Indianapolis or
ceased work on the Central organization campaign, the Indianapolis
management had occasion to assert the nonemployee no-solicitation
rule on several occasions.
One arrest was made when a field organizer for the Union was
confronted by the manager of one of the stores on its parking lot,
and refused to leave after being requested to do so. The field
organizer asserted that he was a 'customer' and insisted upon
entering the store. The police were called, and when the organizer
persisted in his refusal to leave, he was arrested.
Shortly after Central received complaints from its employees
as to harassment by the organizers, Central filed unfair labor
practice charges against the Union. The
3
Page 542
Union subsequently filed unfair labor practice charges against
Central. After an investigation, the General Counsel of the
National Labor Relations Board (the Board) dismissed Central's
charges against the Union, and issued a complaint against Central
on the Union's charges.
The Board held that Central's nonemployee no-solicitation
rule was overly broad, and that its enforcement violated § 8(a)(1)
of the National Labor Relations Act. The Board reasoned that the
character and use of Central's parking lots distinguished the case
from N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679,
100 L.Ed. 975 (1956), and brought it within the principle of
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). 181
N.L.R.B. 491 (1970). A divided Court of Appeals for the Eighth
Circuit agreed, and ordered enforcement of the Board's order
enjoining Central from enforcing any rule prohibiting nonemployee
Union organizers from using its parking lots to solicit employees
on behalf of the Union. 439 F.2d 1321 (1971). We granted
certiorari to consider whether the principle of Logan Valley is
applicable to this case. 404 U.S. 1014, 92 S.Ct. 669, 30 L.Ed.2d
661 (1972). We conclude that it is not.
I
Section 7 of the National Labor Relations Act, as amended, 61
Stat. 140, 29 U.S.C. § 157, guarantees to employees the right to
'selforganization, to form, join, or assist labor organizations.'
This guarantee includes both the right of union officials to
discuss organization with employees, and the right of employees to
discuss organization among themselves.1 Section 8(a)(1) of the
Act, 29 U.S.C. § 158(a)(1), makes it an unfair labor practice for
an employer 'to interfere with, restrain, or coerce employees in
the exercise of the rights guaran-
4
Page 543
teed' in § 7. But organization rights are not viable in a vacuum;
their effectiveness depends in some measure on the ability of
employees to learn the advantages and disadvantages of
organization from others. Early in the history of the
administration of the Act the Board recognized the importance of
freedom of communication to the free exercise of organization
rights. See Peyton Packing Co., 49 N.L.R.B. 828 (1943), enforced,
142 F.2d 1009 (C.A.5), cert. denied, 323 U.S. 730, 65 S.Ct. 66, 89
L.Ed. 585 (1944).
In seeking to provide information essential to the free
exercise of organization rights, union organizers have often
engaged in conduct inconsistent with traditional notions of
private property rights. The Board and the courts have the duty to
resolve conflicts between organization rights and property rights,
and to seek a proper accommodation between the two. This Court
addressed the conflict which often arises between organization
rights and property rights in N.L.R.B. v. Babcock & Wilcox Co.,
351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). The Babcock &
Wilcox Co. operated a manufacturing plant on a 100-acre tract
about one mile from a community of 21,000 people. The plant
buildings were enclosed within a fence, employee access being
through several gates. Approximately 90% of the employees drove to
work in private cars, and the company maintained a parking lot for
the employees. Only employees and deliverymen normally used the
parking lot. The company had a rule forbidding the distribution of
literature on company property. The Board found that the company's
parking lot and the walkway leading from it to the plant entrance
were the only 'safe and practicable' places in the vicinity of the
plant for distribution of union literature, and held the company
guilty of an unfair labor practice for enforcing the
no-distribution rule and thereby denying union organizers limited
access to company property. The Board ordered the com-
5
Page 544
pany to rescind its no-distribution rule insofar as it related to
nonemployee union representatives seeking to distribute union
literature on the parking lot and walkway area.2
The Court of Appeals for the Fifth Circuit refused
enforcement of the Board's order on the ground that the Act did
not authorize the Board to impose a servitude on an employer's
property where no employee was involved.3 This Court affirmed on
the ground that the availability of alternative channels of
communication made the intrusion on the employer's property rights
ordered by the Board unwarranted. The Court in Babcock stated the
guiding principle for adjusting conflicts between § 7 rights and
property rights:
'Organization rights are granted to workers by the same
authority, the National Government, that preserves property
rights. Accommodation between the two must be obtained with
as little destruction of one as is consistent with the
maintenance of the other. The employer may not affirmatively
interfere with organization; the union may not always insist
that the employer aid organization. But when the
inaccessibility of employees makes ineffective the reasonable
attempts by nonemployees to communicate with them through the
usual channels, the right to exclude from property has been
required to yield to the extent needed to permit
communication of information on the right to organize.' 351
U.S., at 112, 76 S.Ct., at 684.
The principle of Babcock is limited to this accommodation
between organization rights and property rights. This principle
requires a 'yielding' of property rights only in the context of an
organization cam-
6
Page 545
paign. Moreover, the allowed intrusion on property rights is
limited to that necessary to facilitate the exercise of employees'
§ 7 rights. After the requisite need for access to the employer's
property has been shown, the access is limited to (i) union
organizers; (ii) prescribed nonworking areas of the employer's
premises; and (iii) the duration of organization activity. In
short, the principle of accommodation announced in Babcock is
limited to labor organization campaigns, and the 'yielding' of
property rights it may require is both temporary and minimal.
II
The principle applied in Amalgamated Food Employees Union
Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct.
1601, 20 L.Ed.2d 603 (1968), is quite different. While it is true
that Logan Valley involved labor picketing, the decision rests on
constitutional grounds; it is not a § 7 case.
Logan Valley had its genesis in Marsh v. Alabama, 326 U.S.
501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Marsh involved a 'company
town,' an economic anachronism rarely encountered today. The town
was wholly owned by the Gulf Shipbuilding Corp., yet it had all of
the characteristics of any other American town. Gulf Shipbuilding
held title to all the land in the town, including that covered by
streets and sidewalks. Gulf Shipbuilding also provided municipal
services, such as sewerage service and police protection, to the
residents of the town. A Jehovah's Witness undertook to distribute
religious literature on a sidewalk near the post office in the
'business block' of the town, and was arrested on a trespassing
charge. She was subsequently convicted of the crime of
trespassing, and the Alabama courts upheld the conviction on
appeal. This Court reversed, holding that Alabama could not permit
a corporation to assume the functions of a municipal government
and at the same
7
Page 546
time deny First Amendment rights through the application of the
State's criminal trespass law.
In Logan Valley, over a strong dissent by Mr. Justice Black,
the author of Marsh, the Court applied the reasoning of Marsh to a
modern economic phenomenon, the shopping center complex. The Logan
Valley Mall was a complex of retail establishments, which the
Court regarded under the factual circumstances as the functional
equivalent of the 'community business block' of the company town
in Marsh. The corporate owner of Logan Valley Mall obtained a
state court injunction against peaceful picketing on the shopping
center property, and the Pennsylvania Supreme Court affirmed the
issuance of the injunction on the ground that the picketing
constituted a trespass on private property. This Court reversed,
holding that Pennsylvania could not 'delegate the power, through
the use of its trespass laws, wholly to exclude those members of
the public wishing to exercise their First Amendment rights on the
premises in a manner and for a purpose generally consonant with
the use to which the property is actually put.' 391 U.S., at 319
320, 88 S.Ct., at 1609.
III
The Board and the Court of Appeals held that Logan Valley
rather than Babcock controlled this case. The Board asserts that
the distinguishing feature between these two cases is that in
Logan Valley the owner had 'diluted his property interest by
opening his property to the general public for his own economic
advantage.'4 The emphasis, both in the argument on behalf of the
Board and in the opinion below, is on the opening of the property
'to the general public.'5
8
Page 547
This analysis misconceives the rational of Logan Valley.6
Logan Valley involved a large commercial shopping center which the
Court found had displaced, in certain relevant respects, the
functions of the normal municipal 'business block.' First and
Fourteenth Amendment free-speech rights were deemed infringed
under the facts of that case when the property owner invoked the
trespass laws of the State against the pickets.
Before an owner of private property can be subjected to the
commands of the First and Fourteenth Amendments the privately
owned property must assume to some significant degree the
functional attributes of public property devoted to public use.
The First and Fourteenth Amendments are limitations on state
action, not on action by the owner of private property used only
for private purposes. The only fact relied upon for the argument
that Central's parking lots have acquired the characteristics of a
public municipal facility is that they are 'open to the public.'
Such an argument could be made with respect to almost every retail
and service establishment in the country, regardless of size or
location. To accept it would cut Logan Valley entirely away from
its roots in Marsh. It would also constitute an unwarranted
infringement of long-settled rights of private property protected
by the Fifth and Fourteenth Amendments. We hold that the Board and
the Court of Appeals erred in applying Logan Valley to this case.
The Trial Examiner concluded that no reasonable means of
communication with employees were available to the nonemployee
Union organizers other than solicitation in Central's parking
lots. The Board adopted this conclusion. Central vigorously
contends that this
9
Page 548
conclusion is not supported by substantial evidence in the record
as a whole. The Court of Appeals did not consider this contention,
because it viewed Logan Valley as controlling rather than Babcock.
The determination whether on the record as a whole there is
substantial evidence to support agency findings is a matter
entrusted primarily to the courts of appeals. Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456
(1951). Since the Court of Appeals has not yet considered this
question in light of the principles of NLRB v. Babcock & Wilcox
Co., supra, the judgment is vacated, and the case will be remanded
to that court for such consideration.
It is so ordered.
Judgment vacated and case remanded.
djQ Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr.
Justice BRENNAN join, dissenting.
I agree with the Court that this case should have been
considered under N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105,
76 S.Ct. 679, 100 L.Ed. 975 (1956). That case is, as the opinion
of the Court suggests, narrower than Amalgamated Food Employees
Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20
L.Ed.2d 603 (1968). It does not purport to interpret the National
Labor Relations Act (NLRA) so as to give union members the same
comprehensive rights to free expression on the private property of
an employer that the First Amendment gives to all citizens on
private property that is the functional equivalent of a public
business district. But Babcock is, in another sense, even broader
than Logan Valley. It holds that where a union has no other means
at its disposal to communicate with employees other than to use
the employer's property, or where the union is denied the access
to employees that the employer gives anti-union forces, the union
may communicate with employees on the property of the employer.
Congress gave unions this right in Section 7
10
Page 549
of the NLRA, 61 Stat. 140, 29 U.S.C. § 157. The First Amendment
gives no such broad right to use private property to ordinary
citizens.
The National Labor Relations Board found that petitioner
permitted anti-union solicitation on its premises at the same time
that it barred union solicitation. 181 N.L.R.B. 491 (1970). It
made no explicit finding as to whether access to the employees was
reasonably available to the union outside of the petitioner's
property, but suggested that it was not. Rather than deciding the
case under Babcock, supra, which would appear to control and to
provide that the union activity in the case is protected by the
NLRA, the Board appears to have decided the case under Logan
Valley, supra. The United States Court of Appeals for the Eighth
Circuit affirmed on the basis of Logan Valley and found it
unnecessary to review the Board's finding of discrimination by the
employer against the union in the use of its property or to remand
the case for a determination of whether it was necessary for the
union to use petitioner's property to communicate with the
employees. 439 F.2d 1321 (1971).
It is obvious, then, that neither the Board nor the Court of
Appeals has fully considered whether the employer's conduct was
proscribed by Babcock even though the indications in the Board's
opinion are that it was. In reaching out to decide this case under
Logan Valley, the agency and the lower court decided a difficult
constitutional issue that might well have been avoided by deciding
the case under the NLRA. This was error. The principle is well
established that decisions on constitutional questions should not
be reached unnecessarily. See, e.g., Dandridge v. Williams, 397
U.S. 471, 476, 90 S.Ct. 1153, 1157, 25 L.Ed.2d 491 (1970);
Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000
(1963).
11
Page 550
Since both the agency and the Court of Appeals should have
first decided whether or not Babcock controlled the instant case
before proceeding to decide it under Logan Valley, before this
Court decides whether or not the decision below was correct under
the Constitution, we should remand the case to the Board, rather
than to the Court of Appeals, for a square holding as to the
applicability of Babcock to the facts of this case. Mr. Justice
White has recently re-emphasized the point that when an agency
decides a case under an incorrect legal approach, courts should
not seek to predict whether the agency would have decided the case
the same way under the correct approach, but should instead remand
the case to the agency for further proceedings. FTC v. Sperry &
Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 908, 31 L.Ed.2d
170 (1972). See also Burlington Truck Lines v. United States, 371
U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962).
Accordingly, I would remand this case to the Board for
further proceedings without deciding the constitutional question.
1
See Thomas v. Collins, 323 U.S. 516, 533—534, 65 S.Ct.
315, 324—325, 89 L.Ed. 430 (1945).
2
Babcock & Wilcox Co., 109 N.L.R.B. 485, 486 (1954).3 NLRB v. Babcock & Wilcox Co., 222 F.2d 316 (CA5 1955).
4
Brief for the NLRB 20.5 439 F.2d, at 1326—1328.
6
For a full discussion of Logan Valley and the
circumstances in which it is applicable, see the decision of the
Court today in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219,
33 L.Ed.2d 131.
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