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410 U.S. 686
93 S.Ct. 1209
35 L.Ed.2d 633
Kathryn BURNS et al.v.Ben FORTSON, etc., et al.
No. 72—901.
March 19, 1973.
PER CURIAM.
1
By statute, Georgia registrars are required to close their voter registration books 50 days prior to November general elections, except for those persons who seek to rgister to vote for President or Vice President. Ga.Code Ann, §§ 34—611 and 34 602.* The District Court upheld the registration cutoff against appellants' constitutional attack based upon this Court's decision in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). This appeal followed.
2
The State offered extensive evidence to establish 'the need for a 50-day registration cut-off point, given the vagaries and numerous requirements of the Georgia elections laws.' Plaintiffs introduced no evidence. On the basis of the record before it, the District Court concluded that the State had demonstrated 'that the 50-day period is necessary to promote . . . the orderly, accurate, and efficient administration of state and local elections, free from fraud.' (Footnote omitted.) Although the 50-day registration period approaches the outer constitutional limits in this area, we affirm the judgment of the District Court. What was said today in Marston v. Lewis, 410 U.S. 679, at 681, 93 S.Ct. 1211, at 1213, 35 L.Ed.2d 627, is applicable here:
3
'In the present case, we are confronted with a recent and amply justifiable legislative judgment that 50 days rather than 30 is necessary to promote the State's important interest in accurate voter lists. The Constitution is not so rigid that that determination and others like it may not stand.'
4
The judgment of the District Court is affirmed.
5
Affirmed.
6
Mr. Justice BLACKMUN, concurring in the result.
7
I concur only in the result, for I hesitate to join what, for me, is the Court's unnecessary observation that 'the 50-day registration period approaches the outer constitutional limits in this area.' I also concurred in the result in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and said,
8
'It is, of course, a matter of linedrawing, as the Court concedes, ante, at 1006. 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.' Id., at 363, 92 S.Ct., at 1013.
9
I am not prepared to intimate at this point that a period of time in excess of 50 days cannot be sustained, no matter how supportive the record may be. In Blumstein, the Court struck down Tennessee's 90-day county durational residency requirement in part, I suppose, because it exceeded the State's 30-day registration period. Had the latter been 60 days, rather than 30, I suspect the Court would have indicated approval of a corresponding 60-day durational residency requirement. See 405 U.S., at 345—349, 92 S.Ct. at 1004—1006. I feel that each case in this area should be decided on its own record unrestricted by an arbitrary number-of-days figure.
10
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
11
For the same reasons that I gave in Marston v. Lewis, 410 U.S. 679, 682, 93 S.Ct. 1211, 1213, 35 L.Ed.2d 627, I dissent from the affirmance of the judgment of the District Court. Unlike Arizona, Georgia does not use volunteer deputy registrars, a system that the Court in Marston thought created special problems warranting special treatment. Indeed, the State's expert witness in this case testified that there was something dangerous about using deputy registrars. Nor does Georgia have as late a primary as Arizona. As in Marston, appellees here did not show that it was impossible to increase the size of the registrars' staffs or their operations. Moreover, there was evidence that final lists of registered voters are not prepared until 14 days before the election, which indicates that there is no serious administrative impediment to keeping registration open for a relatively long period.
12
The Court also relies on an ingenious bootstrap argument that I cannot let pass without comment. The statutes in question in Marston were enacted last year after our decision in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). The Arizona Legislature therefore knew that its limitations on registration could only be justified by the administrative burdens faced by registrars. It knew that insuring the purity of the ballot box and guaranteeing the knowledgeability of voters were not goals that could be permissibly served by time limitations on registration. Id., at 353—357, 92 S.Ct., at 1008—1010. The Court in Marston thus correctly noted that the Arizona statutes reflected a recent judgment that 50 days were necessary to avoid administrative problems.
13
In this case, the Court quotes that statement from Marston. The difficulty is that the Georgia statutes here were adopted nearly a decade ago. The legislative judgment is hardly a recent one. Nor was it made knowing that only administrative difficulties were a justification for durational residency requirements. Even if we would be inclined to defer to a recent and informed legislative determination of necessity, when there is no reason to believe that the legislature made such a determination, deference in that regard is uncalled for.
14
Finally, I believe it important to indicate my view that the decisions today provide no basis for making it more difficult to register by making shorter any existing registration periods, in the absence of compelling evidence of extraordinary new circumstances. If 30 days were all that some state officials needed. yesterday, that is all they need today.
*
Section 34—611 was enacted in 1964. At present, Georgia has no independent durational residency requirement. The State's statutory requirement of one year in the State and six months in the county (see Ga.Code Ann. § 34—602) was held unconstitutional in Abbott v. Carter, 356 F.Supp. 280 (ND Ga.1972).
| 12
|
410 U.S. 679
93 S.Ct. 1211
35 L.Ed.2d 627
Paul N. MARSTON et al.v.Anita X. LEWIS and Catherine Mandt.
No. 72—899.
March 19, 1973.
PER CURIAM.
1
Fourteen county recorders and other public officials of Arizona appeal from a judgment of a three-judge district court holding the State's 50-day durational voter residency requirement and its 50-day voter registration requirement unconstitutional under the decision in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).1 A permanent injunction was entered against enforcement of these or any other greater-than-30-day residency and registration requirements in any election held after November 1972. Appellants do not seek review of the District Court's judgment insofar as it enjoins application of the 50-day requirements in presidential elections. See Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. § 1973aa—1.2 Appellants assert, however, that the requirements, as applied to special, primary, or general elections involving state and local officials, are supported by sufficiently strong local interests to pass constitutional muster. We agree and reverse.
2
In Dunn v. Blumstein, we struck down Tennessee's durational voter residency requirement of one year in the State and three months in the county. We recognized that a person does not have a federal constitutional right to walk up to a voting place on election day and demand a ballot. States have valid and sufficient interests in providing for some period of time—prior to an election—in order to prepare adequate voter records and protect its electoral processes from possible frauds. A year, or even three months, was found too long, particularly in the context of 'the judgment of the Tennessee lawmakers,' who had set 'the cutoff point for registration (at) 30 days before an election . . ..' 405 U.S., at 349, 92 S.Ct. at 1006. The Arizona scheme, however, stands in a different light. The durational residency requirement is only 50 days, not a year or even three months. Moreover, unlike Tennessee's, the Arizona requirement is tied to the closing of the State's registration process at 50 days prior to elections and reflects a state legislative judgment that the period is necessary to achieve the State's legitimate goals.
3
We accept that judgment, particularly in light of the realities of Arizona's registration and voting procedures. Those procedures, apparently first adopted during the Populist Era, rely on a 'massive' volunteer deputy registrar system. See, Ariz.Rev.Stat.Ann. § 16—141. According to appellants' testimony, although these volunteers make registration convenient for voters, they average 1.13 mistakes per voter registration and the county recorder must correct those mistakes before certifying to the 'completeness and correctness' of each precinct register. Ariz.Rev.Stat.Ann. § 16—155. The District Court itself noted that there were estimates that 'in Maricopa County alone, some 4,400 registered voters might be denied the right to vote if the county voter list is in error by only one percent.'
4
An additional complicating factor in Arizona registration procedures is the State's fall primary system. The uncontradicted testimony demonstrates that in the weeks preceding the deadline for registration in general elections—a period marked by a curve toward the 'peak' in terms of the registration affidavits received county recorders and their staffs are unable to process the incoming affidavits because of their work in the fall primaries. It is only after the primaries are over that the officials can return to the accumulated backlog of registration affidavits and undertake to process them in accordance with applicable statutory requirements.
5
On the basis of the evidence before the District Court, it is clear that the State has demonstrated that the 50-day voter registration cutoff (for election of state and local officials) is necessary to permit preparation of accurate voter lists. We said in Dunn v. Blumstein that '(f)ixing 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.' 405 U.S., at 348, 92 S.Ct. at 1006. In the present case, we are confronted with a recent and amply justifiable legislative judgment that 50 days rather than 30 is necessary to promote the State's important interest in accurate voter lists. The Constitution is not so rigid that that determination and others like it may not stand.
6
The judgment of the District Court, insofar as it has been appealed from, is reversed.
7
Reversed.
8
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
9
In Dunn v. Blumstein, 405 U.S. 330, 348, 92 S.Ct. 995, 1006 (1972), just last Term, we held that a 30-day residency requirement provided the State with 'an ample period of time . . . to complete whatever administrative tasks are necessary to prevent fraud' in the process of voter registration. We made that judgment in light of the facts that Congress had made a similar judgment as to presidential and vice-presidential elections, 42 U.S.C. § 1973aa—1(a)(6), that roughly half the States had periods of similar length, 1972—1973 Book of the States 36—37 (as of time of decision), and that thh evidence needed to determine residency was relatively easy to find. The District Court, after hearing evidence about the administrative burdens in Arizona, found that appellants needed no longer than 30 days to complete the same tasks. I find nothing in the record that leads me to conclude that this judgment was erroneous.
10
The Court relies on two factors to justify the longer period. First, Arizona's volunteer registrar system is said to result in so many errors that their correction requires 45 days. But these errors occur only because the deputy registrars are inadequately trained and the central supervision of the data-control process is not well organized. The District Court found that 'under present conditions, at least forty-five days are required to make a voter list as free from error as possible' (emphasis added). This justified its refusal to enjoin the operation of the statute as to the election held in November 1972. But appellant Marston's testimony was directed almost exclusively to what can only be considered readily solvable problems caused by untrained personnel in a relatively small office. Appellants presented no evidence that improvements in the administration of the deputy registrar system, including earlier recruitment and better training of deputy registrars and of data-processing personnel in the central offices, could not be adopted before the next election. If, as we held in Dunn, the State 'cannot choose means which unnecessarily burden or restrict constitutionally protected activity,' and if the State must carry 'a heavy burden of justification,' 405 U.S., at 343, 92 S.Ct. at 1003, surely it must show that it cannot, by better administration, eliminate the errors that justified a 50-day period in 1972. The District Court, in my view, correctly concluded that 'the State has presented no facts demonstrating a compelling interest' in its 50-day requirement.
11
The second 'complicating factor' is said to be the burden on county recorders caused by the need to inerrupt the processing of affidavits filed by new registrants in order for them to work on the fall primaries. Here too the appellants showed no need to use small staffs. It is by no means obvious that the recorders' staffs could not be increased temporarily to deal with this 'complication.' Certainly that is a method of processing affidavits which less seriously burdens the right to vote. '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.' Dunn v. Blumstein, supra, at 343, 92 S.Ct., at 1003.
12
In addition, appellants have established a system to register voters for presidential and vice-presidential elections, in compliance with the requirement of 42 U.S.C. § 1973aa—1(d), that no State may impose a residency requirement of greater than 30 days for such elections. In Arizona, those voters who qualify for presidential and vicepresidential elections, but not for state elections, are given absentee ballots. This eliminates the necessity to prepare a separate list of registration lists. Any administrative problems caused by the inability to correct misspellings, to alphabetize the lists, and to determine in which precinct the voter lived—the only difficulties which appellants mentioned in their testimony*—could be eliminated by similar treatment of late registrants for all elections. And if these voters did not have to appear at the polls, the fears of deterring other voters by delays at the polling places would disappear.
13
Even if the evidence below established that the administrative burdens of a 30-day limitation on general registration could not possibly be removed, that would not itself justify the same limitation on registration of newly arrived voters. General registration requirements affect every voter in the State. Durational residency requirements affect a much smaller class of potential voters, and the burdens of registering the members of that class will therefore be significantly smaller. Further, general registration requirements, with which any otherwise eligible voter may comply if he acts with sufficient diligence, might be thought to impair less substantially the right to vote than do durational residency requirements, which bar a newly arrived voter from any participation in the elections. Serious administrative problems might justify the less severe impairment, but a total bar to participation can be justified only by administrative problems of the highest order.
14
In short, the evidence produced below abundantly supports the District Court's conclusion that appellants had failed to carry the heavy burden of justifying the 50-day limitation period in light of reasonably available and less restrictive alternatives. If this Court has drawn a line beyond which reliance on administrative inconvenience is extremely questionable, as we did in Dunn we can avoid an unprincipled numbers game only if we insist that any deviations from the line we have drawn, after mature consideration, be justified by far more substantial evidence than that produced in the District Court by appellants. I would therefore affirm the judgment of the District Court.
1
The requirements appear, respectively, at Ariz.Rev.Stat.Ann. §§ 16—101, subsec. A, par. 3 and 16—107. These provisions were enacted after our decision in Dunn v. Blumstein.
Appellees are a deputy registrar in Maricopa County and a resident of Maricopa County.
2
Section 1973aa—1 withstood constitutional attack in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970).
*
Appellant Marston testified that there would be difficulty in locating the proper precincts and school districts for each registrant. Again, this pertains exclusively to the election in 1972, because of several nonrecurring facts: the State had recently 'cleansed' its voting lists, dropping everyone from the rolls and requiring re-registration of every voter; the State had just been redistricted; and a statute rescheduling school board elections caused transitional problems. Difficulties in determining the proper precinct for each voter could be eliminated by a simple reprograming of the computer used by the registrars. Now the computer simply indicates an error if the address and the precinct entered on the registration form by the registrars are inconsistent; it would not be difficult for a programer to have the computer itself find the proper precinct. And, as appellant Marston testified, his task would not be difficult at all if he used an 'on-line' system of processing the cards through the computer rather than the present 'batch' system.
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410 U.S. 702
93 S.Ct. 1215
35 L.Ed.2d 646
State of TEXAS, Plaintiff,v.State of LOUISIANA.
No. 36, Orig.
Argued Dec. 11, 1972.
Decided March 20, 1973.
Rehearing Denied May 14, 1973.
See 411 U.S. 988, 93 S.Ct. 2266.
Syllabus
The Special Master's Report, to the extent that it recommends that the relevant boundary between Texas and Louisiana be the geographic middle of Sabine Pass, Lake, and River (collectively Sabine) and not the west bank or the middle of the main channel and that all islands in the east half of the Sabine when Louisiana was admitted as a State in 1812, or thereafter formed, should be awarded to Louisiana, is adopted; decision on the Report with respect to islands in the west half of the Sabine existing in 1812 or thereafter formed, is deferred pending further proceedings, in which the United States is invited to participate, and which the Special Master is to conduct. Pp. 704—714.
Samuel D. McDaniel, Austin, Tex., for plaintiff.
Oliver P. Stockwell, Lake Charles, La., for defendant.
Mr. Justice WHITE delivered the opinion of the Court.
1
Texas brought this original action against Louisiana to establish its rights to the jurisdiction and ownership of the western half of Sabine Pass, Sabine Lake, and Sabine River (collectively Sabine) from the mouth of the Sabine in the Gulf of Mexico to the thirty-second degree of north latitude, and to obtain a decree confirming the boundary of the two States as the geographic middle of the Sabine. After the motion to file was granted, 397 U.S. 931, 90 S.Ct. 939, 25 L.Ed.2d 113 (1970), Louisiana filed motions, answer, and counterclaim asserting that its boundary was on the west bank of the Sabine; and the case was referred to a Special Master, 398 U.S. 934, 90 S.Ct. 1833, 26 L.Ed.2d 266 (1970).
2
The Report of the Special Master and the parties' exceptions are now before us. The Special Master's recommendations are that the geographic middle, not the west bank or the middle of the main channel, is the boundary between the two States; that all islands in the Sabine when Louisiana was admitted as a State in 1812 should be awarded to Louisiana subject to prescriptive claims, if any, by Texas to such islands; that all islands formed in the east half of the Sabine after 1812 belong to Louisiana, and those in the west half to Texas. The Special Master contemplates further proceedings to determine what islands were in the Sabine in 1812 and what prescriptive claims Texas may have to such islands. Louisiana's exceptions maintain that its boundary is not the geographic middle but the west bank of the Sabine, or alternatively, the main channel of the stream as it existed in 1812 west of the most westerly islands. Louisiana also claims all islands in the Sabine, whether existing in 1812 or thereafter formed. The exception filed by Texas asserts its right to all islands in the west half of the river but proposes that the question of ownership be deferred pending the outcome of the proposed additional proceedings with respect to islands that may have existed as of 1812.
3
Oral argument was heard on the exceptions. We now approve and adopt the report of the Special Master except his conclusions with respect to ownership of islands in the western half of the Sabine.
4
* In an Enabling Act approved February 20, 1811, 2 Stat. 641, Congress authorized the inhabitants of a portion of the Louisiana Territory ceded under the Treaty between the United States and France on April 30, 1803, 8 Stat. 200, to seek statehood. The Sabine boundary for what was to become the State of Louisiana was described as 'beginning at the mouth of the river Sabine, thence by a line to be drawn along the middle of the said river, including all islands to the thirty-second degree of latitude . . ..' 2 Stat. 641. The 1812 Louisiana Constitution described the State's western boundary in substantially the same manner,1 and the Act of Admission of April 8, 1812, 2 Stat. 701, employed language identical to that of the Enabling Act.
5
Preceding this period, and for some time thereafter, the western boundary of the United States was in doubt. Negotiations between the United States and Spain from 1803 until 1819 culminated in the Treaty of Amity, Settlement, and Limits, 1819, 8 Stat. 252. Under this treaty, the boundary 'between the two countries' was in relevant part established along the west bank of the Sabine, 8 Stat. 254; the United States relinquished all of Texas west of that boundary in exchange for Florida and the Spanish claim to the Oregon Territory; and it was provided that all islands in the Sabine belonged to the United States.
6
The United States renewed its efforts to acquire Texas, and when Mexico declared its independence from Spain in 1821, the United States began negotiating anew for the purchase of Texas. In the Treaty of Limits, 1828, 8 Stat. 372, the United States and Mexico recognized the boundary 'between the two countries,' id., at 374, on the west bank of the Sabine as established in the 1819 treaty with Spain.2 Texas declared its independence from Mexico in 1836, 1 Laws, Republic of Texas, 3—7, in Gammel's Laws of Texas 1822—1897, was recognized as an independent nation by the United States in 1837, Cong.Globe, 24th Cong., 2d Sess., 83, 270, and in 1838 the Sabine boundary agreed upon with Spain in 1819, and with Mexico in 1828, was adopted by the United States and Texas, 8 Stat. 511.3 The Sabine boundary remained unchanged when Texas was admitted as a State in 1845, 9 Stat. 108.
7
In 1848 the legislatures of Texas and Louisiana passed competing resolutions, each requesting consent of Congress to establish its jurisdiction over the Sabine between the middle and the western bank.4 Congress passed an Act in 1848 giving its consent to Texas to extend its eastern boundary from the west bank of the Sabine to the middle, 9 Stat. 245, the Act stating:
8
'(T)his Congress consents that the legislature of the State of Texas may extend her eastern boundary so as to include within her limits one half of Sabine Pass, one half of Sabine Lake, also one half of Sabine River, from its mouth as far north as the thirty-second degree of north latitude.' (Emphasis added.)
II
9
We agree with the Special Master that the western boundary of Louisiana is the geographical middle of the Sabine River, not its western bank or the middle of its main channel. Congress had the authority to admit Louisiana to the Union and to establish the boundaries of that State. U.S.Const., Art. IV, § 3; United States v. Louisiana, 363 U.S. 1, 30, 60—62, 67, 80 S.Ct. 961, 979, 994, 995, 999, 4 L.Ed.2d 1205 (1960); Washington v. Oregon, 211 U.S. 127, 134—135, 29 S.Ct. 47, 48, 49, 53 L.Ed. 118 (1908). Hence, our task is to ascertain congressional will when it admitted Louisiana into the Union on April 8, 1812, and established her relevant western boundary as 'beginning at the mouth of the river Sabine; thence, by a line to be drawn along the middle of said river, including all islands to the thirty-second degree of latitude . . ..' 2 Stat. 702. The statute in this respect was identical with the Enabling Act of the prior year and differed hardly at all from the Preamble to the Louisiana Constitution of January 22, 1812. The Louisiana Legislature resolved in 1848 that the State's jurisdiction should be 'extended' to the western half of the river, reciting that neither it nor any other State had authority over that portion of the Sabine. See n. 4, supra. Texas made a similar request, see n. 4, supra, Congress acceding to the latter and consenting that Texas could 'extend her eastern boundary so as to include within her limits one half of Sabine Pass, one half of the Sabine Lake, also one half of Sabine River, from its mouth . . . (to) the thirty-second degree of north latitude.' 9 Stat. 245. On the floor of the Senate, Mr. Butler, speaking for the Judiciary Committee, stated that the boundaries of the United States extended to the western shore of the Sabine, but that the boundary of the State of Louisiana extended only to the middle, the result being that 'the half of the river and lake, to the western shore, belonged to the United States, and was not included in the State of Louisiana . . ..' Cong.Clobe, 30th Cong., 1st Sess., 882. Hence the bill, which gave 'the half of the river beyond the boundary of the State of Louisiana to the State of Texas . . ..' Ibid. The bill passed, both Senators from Louisiana expressing 'their acquiescence in the arrangement.' Ibid.5
10
There is not a whisper in these statutes and instruments that the western boundary of Louisiana was on the west bank of the Sabine. Clearly, the boundary was along the 'middle' of the Sabine, not on the west bank. Louisiana argues, without substance we think, that the boundary was extended to the west bank by the Treaties of 1819 and 1828 with Spain and Mexico respectively, when the United States established and confirmed its own western boundary on the west bank of the Sabine. As the Special Master correctly noted, however, the United States was acting in its sovereign capacity throughout these events, and there is no indication that the United States was in any way representing Louisiana or intending to relocate the State's western border. Nor was there reason to do so. On the contrary, admission of States beyond the Sabine was some day contemplated, and it was more consistent with the policy of the United States to grant only the east half of the river to Louisiana and reserve the west half for a future State or States. See United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926); Shively v. Bowlby, 152 U.S. 1, 26—28, 57—58, 14 S.Ct. 548, 557, 558, 569, 38 L.Ed. 331 (1894).
11
The Special Master was also correct in ruling that the United States intended the geographic middle of the river, not of the main channel, or thalweg, to be the western boundary of the State. The argument that the middle of the main channel was intended rests on the line of cases in this Court beginning with Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55 (1893), which hold that in normal circumstances it should be assumed Congress intends the word 'middle' to mean 'middle of the main channel' in order that each State would have equal access to the main navigable channel.6 The doctrine was borrowed from international law and has often been adhered to in this Court, although it is plain that within the United States two States bordering on a navigable river would have equal access to it for the purposes of navigation whether the common state boundary was in the geographic middle or along the thalweg. Id., at 7—8, 10, 13 S.Ct., at 241, 242. New Jersey v. Delaware, 291 U.S. 361, 380—385, 54 S.Ct. 407, 413—415, 78 L.Ed. 847 (1934).
12
In Iowa v. Illinois, however, the Court recognized that the issue was the intent of Congress, 147 U.S., at 11, 13 S.Ct., at 242 and that it was merely announcing a rule of construction with respect to statutes and other boundary instruments. Thus, it was acknowledged that the rule might be 'changed by statute or usage of so great a length of time as to have acquired the force of law.' Id., at 10, 13 S.Ct. at 242.
13
When Congress sufficiently indicates that it intends a different boundary in a navigable river, the thalweg rule will not apply.7 In Washington v. Oregon, 211 U.S. 127, 29 S.Ct. 47, 53 L.Ed. 118 (1908), the usual rule of the thalweg was recognized, but the Court said that 'there is no fixed rule making that the boundary between states bordering on a river.' Id., at 134, 29 S.Ct. at 49. The Act admitting Oregon was construed by the Court as placing the northern boundary of the State in the northern channel of the Columbia River and as intending it to remain there even though that channel ceased to be the main navigable channel in the Columbia.
14
It was therefore imperative for the Special Master to look to congressional intent; and if it was sufficiently clear that Congress intended the Louisiana boundary to be the geographic middle of the Sabine rather than the thalweg, it was his duty to establish the border along the former line. His conclusion was surely consistent with the controlling instruments—'along the middle of the . . . river.' It is also apparent that the parties to the Act of Admission, the United States and Louisiana, both evidenced their understanding of the 1811 Enabling Act, the 1812 Constitution of Louisiana, and the 1812 Act of Admission, when the Legislature of Louisiana and the Congress of the United States expressly recited in 1848 that the western boundary of Louisiana included only the east half of the Sabine, not the west half. Whatever may be the normal significance of a later congressional indication of the meaning of an earlier statute, see, e.g., Glidden Co. v. Zdanok, 370 U.S. 530, 541, 82 S.Ct. 1459, 1468, 8 L.Ed.2d 671 (1962); Great Northern R. Co. v. United States, 315 U.S. 262, 273, 277, 62 S.Ct. 529, 533, 535, 86 L.Ed. 836 (1942); Brewster v. Gage, 280 U.S. 327, 337, 50 S.Ct. 115, 117, 74 L.Ed. 457 (1930); Tiger v. Western Investment Co., 221 U.S. 286, 309, 31 S.Ct. 578, 583, 55 L.Ed. 738 (1911), here the question concerns the 1812 boundary between the United States and Louisiana, and in light of Art. IV, § 3, cl. 2, of the Constitution empowering Congress 'to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,' we think the Act of 1848 and the events connected with its passage had special significance as a construction by the United States and Louisiana of the earlier act admitting Louisiana to the Union. Cf. Washington v. Oregon, 211 U.S., at 135, 29 S.Ct., at 49. At least, the indications are clear enough to us that we shall not apply the rule of the thalweg in this case.
15
The Special Master also concluded that even if he was in error in rejecting Louisiana's claim with respect to the original location of her western boundary Texas must still prevail by reason of prescription and acquiescence. Because we are satisfied with our conclusion, already reached, with respect to the boundary location, we need not pass upon this aspect of the Special Master's Report, although we note that the facts relied upon by him are consistent with and support the other ground for his conclusion as to Louisiana's Sabine boundary.
III
16
With respect to islands in the Sabine it is conceded that Louisiana owns all islands in the eastern half of the river, whether existing in 1812 or thereafter formed. As to islands in the west half, the Special Master concluded that by virtue of the 1812 Act of Admission Louisiana owns all islands that then existed in that portion of the river, but rejected her claims to islands thereafter formed in the western half. All later formed islands in that half of the river, he concluded, belonged to the State of Texas.
17
We shall withhold judgment with respect to the ownership of islands in the western half of the Sabine River. Further proceedings with respect to these islands are contemplated in any event, and it is our view that the United States should be requested to present any claims it may have to any of the islands in the western half of the Sabine south of 32 degrees north latitude and, if it so desires, to present evidence and argument with respect to the ownership of such islands. The Special Master should then determine whether this Report in this respect should be modified and complete the proceedings with respect to the ownership of the Sabine islands. Our reasons for so directing will be briefly stated.
18
It is the unquestioned rule that States entering the Union acquire title to the lands under navigable streams and other navigable waters within their borders. Scott v. Lattig, 227 U.S. 229, 242—243, 33 S.Ct. 242, 243, 244, 57 L.Ed. 490 (1913); County of St. Clair v. Lovingston, 23 Wall. 46, 68, 23 L.Ed. 59 (1874); Pollard's Lessee v. Hagan, 3 How. 212, 228—230, 11 L.Ed. 565 (1845). But the rule does not reach islands or fast lands located within such waters. Title to islands remains in the United States, unless expressly granted along with the stream bed or otherwise. This was the express holding of Scott v. Lattig, supra.
19
In that case, a dispute arose over the ownership of an island located east of the thalweg of the Snake River, which was the western boundary of the State of Idaho. It appeared that after Idaho came into the Union, and thereby acquired title to the river bed on its side of the thalweg, the United States patented riparian lands opposite the island, and the patentees claimed the island under the laws of Idaho as against a settlor seeking to homestead the property under the laws of the United States. The homesteader prevailed in this Court because title to the island remained in the United States:
20
'But the island, which we have seen was in existence when Idaho became a State, was not part of the bed of the stream or land under the water, and therefore its ownership did not pass to the State or come within the disposing influence of its laws. On the contrary, although surrounded by the waters of the river and widely separated from the shore, it was fast dry land, and therefore remained the property of the United States and subject to disposal under its laws, as did the island which was in controversy in Mission Rock Co. v. United States, 9 Cir., 109 F. 763, 769—770, and United States v.
21
Mission Rock Co., 189 U.S. 391, 23 S.Ct. 606, 47 L.Ed. 865.' 227 U.S., at 244, 33 S.Ct. at 244.
22
In the case before us, it is probably correct that once the eastern boundary of Texas was extended to the middle of the river in 1848 that State became entitled to any islands in the west half which formed after the date of that extension. But unless the 1848 Act conveyed to Texas the islands located in the western half of the river at that time, title to those islands remained in the United States, if the United States had not previously conveyed all or part of them to Louisiana. The 1848 Act, however, does not mention islands in the Sabine, and it would therefore appear, if Lattig is to be followed, that the United States has an interest in any proceedings to determine the ownership of islands in the west half of the Sabine and should be a party to, or at least have the opportunity to participate in, such proceedings. Texas claims any such islands existing prior to 1848 by prescription and acquiescence, but, plainly, a State may not acquire property from the United States in this manner. United States v. California, 332 U.S. 19, 39—40, 67 S.Ct. 1658, 1668, 1669, 91 L.Ed. 1889 (1947).
23
We shall accordingly await the result of further proceedings before the Special Master with respect to the ownership of islands in the western portion of the Sabine. In all other respects, the exceptions of the parties are overruled and the report of the Special Master is confirmed. So ordered.
24
Report of Special Master confirmed.
25
Mr. Justice DOUGLAS, dissenting.
26
Louisiana was admitted into the Union in 1812. 2 Stat. 701. The Constitution of Louisiana of 1812 described her western boundary as 'beginning at the mouth of the river Sabine; thence by a line to be drawn along the middle of said river, including all (its) islands, to the thirty-second degree of latitude . . .' That was the description1 that was recited in the 1812 Act in which Congress approved the Constitution of Louisiana. 2 Stat. 702. There remained a controversy between this Nation and Spain over this western boundary and the Treaty of 1819 settled the question by the only authority that could establish a boundary with a foreign government. Rhode Island v. Massachusetts, 12 Pet. 657, 725, 9 L.Ed. 1233.
27
That treaty provided that the boundary should start 'at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river, to the 32d degree of latitude.' 8 Stat. 252, 254, 256. When Texas was admitted to the Union in 1845, 9 Stat. 108, that same boundary was used to describe her eastern line. 8 Stat. 372, 374. The Treaty of 1828 recognized that as the boundary line between Louisiana and Texas for it was the boundary between the United States and Mexico, of which Texas was a part. 8 Stat. 372. Texas did not come into the Union until 1845. The Treaty of 1819 read in context means that Louisiana's western border, coinciding with that of the United States, was the western bank of the Sabine.
28
The 1819 Treaty does not mention Louisiana. But Louisiana along that segment of our western boundary was a buffer between this Nation and Spain. It is therefore dubious that the United States was bargaining for that narrow strip between the 'middle' of the Sabine and the west bank of the Sabine as a detached, isolated piece of our public lands. Rather, i seems well-nigh conclusive that in 1819 this Nation was bargaining with Spain for a border that in part at least of its reach would be the western border of Louisiana.
29
Louisiana claims that much and alternatively only the 'middle' of the Sabine which, according to the thalweg doctrine, when describing boundaries on navigable waters, means the middle of the channel, which is not necessarily the geographical 'middle.' The thalweg doctrine had that meaning both when Louisiana was admitted to the Union2 and since that time.3
30
Why then does Louisiana lose? Why is her boundary restricted?
31
The Court relies on the Act of Congress of July 5, 1848, 9 Stat. 245, which gave Texas permission to extend her eastern boundary 'so as to include within her limits one half of Sabine Pass, one half of Sabine Lake, (and) one half of Sabine River.'
32
Washington v. Oregon, 211 U.S. 127, 29 S.Ct. 47, 53 L.Ed. 118 (1908), makes clear that the boundary originally established when Louisiana was admitted to the Union 'is not within the power of the national government to change . . . without (Louisiana's) consent .. ..' Id., at 131, 29 S.Ct., at 47.
33
Given that legislative restraint, Congress had no power to take the west bank from Louisiana or, alternatively, it must have used 'one-half' in a general, rather than a mathematical, sense, thereby granting to Texas only those areas lying west of the thalweg.
34
The Sabine River, Sabine Lake, and Sabine Pass are one continuous body of navigable water. Heretofore when in controversies between States the 'middle' of a navigable stream has been described as the boundary, the middle of the channel is intended. Iowa v. Illinois, 147 U.S. 1, 7—8, 13 S.Ct. 239, 241, 37 L.Ed. 55; Arkansas v. Tennessee, 246 U.S. 158, 173, 38 S.Ct. 301, 304, 62 L.Ed. 638; Minnesota v. Wisconsin, 252 U.S. 273, 40 S.Ct. 313, 64 L.Ed. 558; Wisconsin v. Michigan, 295 U.S. 455, 55 S.Ct. 786, 79 L.Ed. 1541.
35
Mississippi, which was admitted to the Union five years after Louisiana, argued much as Texas does in this case to the effect that Congress had given her territory that Louisiana claimed under an earlier title. The Court held '(i)f it were true that . . . repugnancy between the two acts existed, it is enough to say that Congress, after the admission of Louisiana, could not take away any portion of that state and give it to the state of Mississippi.' Louisiana v. Mississippi, 202 U.S. 1, 40, 26 S.Ct. 408, 418, 50 L.Ed. 934. This reasoning is equally applicable to Louisiana's western border.
36
I conclude in the alternative that the thalweg doctrine widely and generally accepted—has not been constitutionally displaced by statutory language in this case.
37
The question remains whether acts of acquiescence and prescription have since replaced the thalweg with some other boundary between Louisiana and Texas. Although the Special Master concluded that the maps and other evidence in question support both the conclusion that Louisiana has acquiesced in a midstream boundary, rather than the claimed west-bank boundary, and that the midstream boundary thus recognized is in the geographic center rather than the thalweg, I cannot agree. The vast majority of the maps in evidence do denominate a boundary between the banks of the waterways in issue. The quality of the boundary representation is, however, quite inadequate even to determine whether a geographic centerline designation was attempted. Moreover, the main channel is not depicted, so that any possible variance from the thread of the stream is incapable of determination.4 Indeed, the language employed by the Master to describe these maps in the Appendix to his Report depicts this uncertainty; the terms 'middle,' 'mid-Sabine,' and 'centerline' appear to be used interchangeably, with only an occasional use of the more precise terminology 'geographic middle.'5 Acquiescence on the part of one State or prescription on the part of another should not be predicated on such an inadequate showing.
38
The case should be returned to the Special Master for hearings that will thoroughly explore the factual issues concerning the alleged acquiescence or prescription.
1
The preamble to the 1812 Louisiana Constitution described the boundary as along the middle of the Sabine, 'including all its islands.' (Emphasis added.)
2
Neither the 1819 Treaty nor the 1828 Treaty mentions Louisiana or its western boundary.
3
Texas' relevant boundary along the Sabine thus began 'on the gulf of Mexico, at the mouth of the river Sabine, in the sea, continuing north along the western bank of that river, to the 32d degree of latitude . . ..' 8 Stat. 374.
4
The Louisiana Resolution, passed on March 16, 1848, and presented to Congress, provided in pertinent part:
'Whereas the constitution and the laws of the State of Louisiana nor those of any other State or territory, extend over the waters of the Sabine river from the middle of said stream to the western bank thereof; and that it is of importance to the citizens living contiguous
thereto, and to the people in general, that the jurisdiction of some State should be extended over said territory, in order that crimes and offences committed thereupon should be redressed in a speedy and convenient manner:
'Therefore be it resolved by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, 1st. That the constitution and the jurisdiction of the State of Louisiana shall be extended over part of the United States, embraced in the following limits (whenever the consent of the Congress of the United States can be procured thereto,) viz:
'Between the middle of the Sabine river and the western bank thereof, to begin at the month of said river where it empties into the Gulf of Mexico, and thence to continue along the said western bank to the place where it intersects the thirty-second degree of north latitude, it being the boundary line between the said State of Louisiana and the States of—.
'2d. Be it further resolved, etc., That our Senators be instructed, and our Representatives in Congress requested, to procure the passage of a law on the part of the United States, consenting to the extension of the constitution, and the jurisdiction of the laws of the State of Louisiana, over the territory in said river.' S.Misc.Doc.No.135, 30th Cong., 1st Sess.
The Resolution adopted by Texas on March 18, 1848, stated in relevant part:
'Resolution of the Legislature of Texas, in favor of the passage of an act, extending the jurisdiction of that State over the Sabine pass, the Sabine lake, and the Sabine river, April 17, 1848.
'Joint Resolution instructing our Senators and requesting our Representatives in Congress to use their efforts to have a law passed to extend the jurisdiction of Texas over one half of Sabine pass, lake, and river.
'Sec. 1. Be it resolved by the Legislature of the State of Texas, That our Senators be instructed, and our Representatives in Congress be requested, to use their efforts to have a law passed by Congress, extending the jurisdiction of Texas over one half of the waters of Sabine lake, Sabine pass, and Sabine river, up to the 32 of north latitude.' S.Misc.Doc.No.123, 30th Cong., 1st Sess.
5
The full report of the action by the Senate, Cong.Globe, 30th Cong., 1st Sess., 882, is as follows:
'Mr. Butler, from the Committee on the Judiciary, reported an act giving the consent of the Government of the United States to the State of Texas to extend the eastern boundary so as to include within her limits one-half of the Sabine Pass, Sabine Lake, and Sabine River as far north as the 32 of north latitude.
'Mr. B. asked for the immediate consideration of the bill, and briefly explained its character. The boundary of the United States, it was known, embraced the Sabine River and lake to its western shore. The boundary of the State of Louisiana extended to the middle of the Sabine; so that the half of the river and lake, to the western shore, belonged to the United States, and was not included in the State of Louisiana; therefore, the boundary of the State and that of the United States, was not identical. The bill before the Senate gives the half of the river beyond the boundary of the State of Louisiana to the State of Texas, for the purpose of enabling the latter to extend her criminal jurisdiction to the Louisiana boundary. There could be no objection to the bill, and he hoped it would now be passed.
'Mr. Johnson, of La., and Mr. Downs in behalf of the State of Louisiana, expressed their acquiescence in the arrangement.
'The bill was then read a third time and passed.' (Emphasis added.)
6
That the 'middle' of a river was to be construed as the thalweg in establishing the boundary between the States newly admitted to the Union was not authoritative doctrine prior to 1892 when Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55, was decided and certainly not when Louisiana was admitted to the Union in 1812. The opinion in Iowa v. Illinois, supra, referred to five treatises on international law in support of its holding but noted the sharp conflict on the thalweg rule between the Illinois and Iowa courts. In Dunlieth & Dubuque Bridge Co. v. County of Dubuque, 55 Iowa 558, 8 N.W. 443 (1881), though the phrase in question was 'middle of the main channel,' certainly a phrase that would lend itself to a thalweg construction, the court instead ruled that the phrase meant the middle of the river bed, while in Buttenuth v. St. Louis Bridge Co., 123 Ill. 535, 17 N.E. 439 (1888), the court construed the phrase 'middle of the Mississippi River' as being under the thalweg doctrine. After reviewing both cases, this Court chose the latter rule of construction.
7
A sufficiently expressed intent of Congress also overrides the usually applicable 'equal-footing' rule. United States v. Louisiana, 363 U.S. 1, 76—77, 80 S.Ct. 961, 1003, 4 L.Ed.2d 1205 (1960).
1
It was also in the Enabling Act giving Louisiana authority to form a constitution and state government and gain admission to the Union. 2 Stat. 641.
2
The earlier authorities are discussed at length in Iowa v. Illinois, 147 U.S. 1, 7—10, 13 S.Ct. 239, 241, 242, 37 L.Ed. 55 (1893).
3
G. Thompson on Real Property § 3075 (1962 ed.); 3 American Law of Property § 12.27 n. 16 (A. Casner ed. 1952).
4
See generally Texas Exs. A, F. But see Louisiana Ex. K.
5
Report of Special Master, App. B.
| 1011
|
410 U.S. 719
93 S.Ct. 1224
35 L.Ed.2d 659
SALYER LAND COMPANY et al., Appellants,v.TULARE LAKE BASIN WATER STORAGE DISTRICT.
No. 71—1456.
Argued Jan. 8, 1973.
Decided March 20, 1973.
Syllabus
Appellee district exists for the purpose of acquiring, storing, and distributing water for farming in the Tulare Lake Basin. Only landowners are qualified to elect the district's board of directors, votes being apportioned according to the assessed valuation of the lands. A three-judge District Court, against challenge by appellants, held that the limitation of the franchise to landowners comported with equal protection requirements. Held:
1. Restricting the voters to landowners who may or may not be residents does not violate the principle enunciated in such cases as Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, that governing bodies should be selected in a popular election in which every person's vote is equal. Pp. 726 730.
(a) The activities of appellee district fall so disproportionately on landowners as a group that it is not unreasonable that the statutory framework focuses on the land benefited, rather than on people as such. Pp. 726—728.
(b) Although appellee district has some governmental powers, it provides none of the general public services ordinarily attributed to a governing body. Pp. 728—729.
2. Since assessments against landowners are the sole means by which expenses of appellee district are paid, it is not irrational to repose the franchise in landowners but not residents. Pp. 730 731.
3. The exclusion of lessees from voting does not violate the Equal Protection Clause since the short-term lessee's interest may be substantially less than that of a landowner and, the franchise being exercisable by proxy, other lessees may negotiate to have the franchise included in their leases Pp. 731—733.
4. Weighting the vote according to assessed valuation of the land does not evade the principle that wealth has no relation to voter qualifications where, as here, the expense as well as the benefit is proportional to the land's assessed value. Pp. 733—735.
342 F.Supp. 144, affirmed.
Thomas Keister Greer, Rocky Mount, Va., for appellants.
Robert M. Newell, Los Angeles, Cal., for appellee.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
This is another in the line of cases in which the Court has had occasion to consider the limits imposed by the Equal Protection Clause of the Fourteenth Amendment on legislation apportioning representation in state and local governing bodies and establishing qualifications for voters in the election of such representatives. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), enunciated the constitutional standard for apportionment of state legislatures. Later cass such as Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968) and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), extended the Reynolds rule to the governing bodies of a county and of a junior college district, respectively. We are here presented with the issue expressly reserved in Avery, supra:
2
'Were the (county's governing body) a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization's functions.' 390 U.S., at 483—484, 88 S.Ct., at 1120.
3
The particular type of local government unit whose organization is challenged on constitutional grounds in this case is a water storage district, organized pursuant to the California Water Storage District Act, Calif. Water Code § 39000 et seq. The peculiar problems of adequate water supplies faced by most of the western third of the Nation have been described by Mr. Justice Sutherland, who was himself intimately familiar with them, in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 156—157, 55 S.Ct. 725, 728, 79 L.Ed. 1356 (1935):
4
'These states and territories comprised the western third of the United States; a vast empire in extent, but still sparsely settled. From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico, an area greater than that of the original thirteen states, the lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation.
5
'In the beginning, the task of reclaiming this area was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excavated canals, constructed ditches, plowed and cultivated the soil, and transformed dry and desolate lands into green fields and leafy orchards. . . .'
6
Californians, in common with other residents of the West, found the State's rivers and streams in their natural state to present the familiar paradox of feast or famine. With melting snow in the high mountains in the spring, small streams became roaring freshets, and the rivers they fed carried the potential for destructive floods. But with the end of the rainy season in the early spring, farmers depended entirely upon water from such streams and rivers until the rainy season again began in the fall. Long before that time, however, rivers which ran bank full in the spring had been reduced to a bare trickle of water.
7
It was not enough, therefore, for individual farmers or groups of farmers to build irrigation canals and ditches which depended for their operation on the natural flow of these streams. Storage dams had to be constructed to impound in their reservoirs the flow of the rivers at flood stage for later release during the dry season regimen of these streams. For the construction of major dams to facilitate the storage of water for irrigation of large areas, the full resources of the State and frequently of the Federal Government were necessary.1
8
But for less costly projects which would benefit a more restricted geographic area, the State was frequently either unable or unwilling to pledge its credit or its resources. The California Legislature, therefore, has authorized a number of instrumentalities, including water storage districts such as the appellee here, to provide a local response to water problems.
9
Some history of the experience of California and the other Western States with the problems of water distribution is contained in Fallbrood Irrigation District v. Bradley, 164 U.S. 112, 151—154, 17 S.Ct. 56, 60—61, 41 L.Ed. 369 (1896), in which the constitutionality of California's Wright Act was sustained against claims of denial of due process under the Fourteenth Amendment to the United States Constitution. While the irrigation district was apparently the first local governmental unit authorized to deal with water distribution, it is by no means the only one. General legislation in California authorizes the creation, not only of irrigation districts, but of water conservation districts, water storage and conservation districts, flood control districts, and water storage districts such as appellee.2
10
Appellee district consists of 193,000 acres of intensively cultivated, highly fertile farm land located in the Tulare Lake Basin. Its population consists of 77 persons, including 18 children, most of whom are employees of one or another of the four corporations that farm 85% of the land in the district.
11
Such districts are authorized to plan projects and execute approved projects 'for the acquisition, appropriation, diversion, storage, conservation, and distribution of water . . ..' Calif. Water Code § 42200 et seq.3 Incidental to this general power, districts may 'acquire, improve, and operate' any necessary works for the storage and distribution of water as well as any drainage or reclamation works connected therewith, and the generation and distribution of hydroelectric power may be provided for.4 Id., §§ 43000, 43025. They may fix tolls and charges for the use of water and collect them from all persons receiving the benefit of the water or other services in proportion to the services rendered. Id., § 43006. The costs of the projects are assessed against district land in accordance with the benefits accruing to each tract held in separate ownership. Id., §§ 46175, 46176. And land that is not benefited may be withdrawn from the district on petition. Id., § 48029.
12
Governance of the districts is undertaken by a board of directors. Id., § 40658. Each director is elected from one of the divisions within the district, id., § 39929, and each must take an official oath and execute a bond. Id., § 40301. General elections for the directors are to be held in odd-numbered years. Id., §§ 39027, 41300 et seq.
13
It is the voter qualification for such elections that appellants claim invidiously discriminates against them and persons similarly situated. Appellants are landowners, a landowner-lessee, and residents within the area included in the appellee's water storage district. They brought this action under 42 U.S.C. § 1983, seeking declaratory and injunctive relief in an effort to prevent appellee from giving effect to certain provisions of the California Water Code. They allege that §§ 410005 and 410016 unconstitutionally deny to them the equal protection of the laws guaranteed by the Fourteenth Amendment, in that only landowners are permitted to vote in water storage district general elections, and votes in those elections are apportioned according to the assessed valuation of the land. A three-judge court was convened pursuant to 28 U.S.C. § 2284, and the case was submitted on factual statements of the parties and briefs, without testimony or oral argument. A majority of the District Court held that both statutes comported with the dictates of the Equal Protection Clause, and appellants have appealed that judgment directly to this Court under 28 U.S.C. § 1253.
14
In Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), a case in which the Ohio legislative scheme for regulating the electoral franchise was challenged, the Court said:
15
'(T)his Court has firmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that 'invidious' distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.' Id., at 30, 89 S.Ct., at 10.
16
We therefore turn now to the determination of whether the California statutory scheme establishing water storage districts violates the Equal Protection Clause of the Fourteenth Amendment.
17
* It is first argued that § 41000, limiting the vote to district landowners, is unconstitutional since nonlandowning residents have as much interest in the operations of a district as landowners who may or may not be residents. Particularly, it is pointed out that the homes of residents may be damaged by floods within the district's boundaries, and that floods may, as with appellant Ellison, cause them to lose their jobs. Support for this position is said to come from the recent decisions of this Court striking down various state laws that limited voting to landowners, Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970), Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), and Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).
18
In Kramer, the Court was confronted with a voter gualification statute for school district elections that limited the vote to otherwise qualified district residents who were either (1) the owners or lessees of taxable real property located within the district, (2) spouses of persons owning qualifying property, or (3) parents or guardians of children enrolled for a specified time during the preceding year in a local district school. Without reaching the issue of whether or not a State may in some circumstances limit the exercise of the franchise to those primarily interested or primarily affected by a given governmental unit, it was held that the above classifications did not meet that statearticulated goal since they excluded many persons who had distinct and direct interests in school meeting decisions and included many persons who had, at best, remote and indirect interests. Id., at 632—633, 89 S.Ct., at 1892—1893.
19
Similarly, in Cipriano v. City of Houma, supra, decided the same day, provisions of Louisiana law which gave only property taxpayers the right to vote in elections called to approve the issuance of revenue bonds by a municipal utility were declared violative of the Equal Protection Clause since the operation of the utility systems affected virtually every resident of the city, not just the 40% of the registered voters who were also property taxpayers, and since the bonds were not in any way financed by property tax revenue. 395 U.S., at 705, 89 S.Ct., at 1900. And the rationale of Cipriano was expanded to include general obligation bonds of municipalities in Phoenix v. Kolodziejski, supra. It was there noted that not only did those persons excluded from voting have a great interest in approving or disapproving municipal improvements, but they also contributed both directly through local taxes and indirectly through increased rents and costs to the servicing of the bonds. 399 U.S., at 210—211, 90 S.Ct., at 1994—1995.
20
Cipriano and Phoenix involved application of the 'one person, one vote' principle to residents of units of local governments exercising general governmental power, as that term was defined in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). Kramer and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), extended the 'one person, one vote' principle to school districts exercising powers which,
21
'while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.' 397 U.S., at 53—54, 90 S.Ct., at 794.
22
But the Court was also careful to state that:
23
'It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds, supra, might not be required, but certainly we see nothing in the present case that indicates that the activities of these trustees fit in that category. Education has traditionally been a vital governmental function and these trustees, whose election the State has opened to all qualified voters, are governmental officials in every relevant sense of that term.' Id., at 56, 90 S.Ct., at 795.
24
We conclude that the appellee water storage district, by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group, is the sort of exception to the rule laid down in Reynolds which the quoted language from Hadley, supra, and the decision in Avery, supra, contemplated.
25
The appellee district in this case, although vested with some typical governmental powers,7 has relatively limited authority. Its primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin.8 It provides no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body. App. 86. There are no towns, shops, hospitals, or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses, or trains. Ibid.
26
Not only does the district not exercise what might be thought of as 'normal governmental' authority, but its actions disproportionately affect landowners. All of the costs of district projects are assessed against land by assessors in proportion to the benefits received. Likewise, charges for services rendered are collectible from persons receiving their benefit in proportion to the services. When such persons are delinquent in payment, just as in the case of delinquency in payments of assessments, such charges become a lien on the land. Calif.Water Code §§ 47183, 46280. In short, there is no way that the economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries.9
27
Under these circumstances, it is quite understandable that the statutory framework for election of directors of the appellee focuses on the land benefited, rather than on peopel as such. California has not opened the franchise to all residents, as Missouri had in Hadley, supra, nor to all residents with some exceptions, as New York had in Kramer, supra. The franchise is extended to landowners, whether they reside in the district or out of it, and indeed whether or not they are natural persons who would be entitled to vote in a more traditional political election. Appellants do not challenge the enfranchisement of nonresident landowners or of corporate landowners for purposes of election of the directors of appellee. Thus, to sustain their contention that all residents of the district must be accorded a vote would not result merely in the striking down of an exclusion from what was otherwise a delineated class, but would instead engraft onto the statutory scheme a wholly new class of voters in addition to those enfranchised by the statute.
28
We hold, therefore, that the popular election requirements enunciated by Reynolds, supra, and succeeding cases are inapplicable to elections such as the general election of appellee Water Storage District.
II
29
Even though appellants derive no benefit from the Reynolds and Kramer lines of cases, they are, of course, entitled to have their equal protection claim assessed to determine whether the State's decision to deny the franchise to residents of the district while granting it to landowners was 'wholly irrelevant to achievement of the regulation's objectives,' Kotch v. Board of River Port Pilot Commissioners for Port of New Orleans, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947). No doubt residents within the district may be affected by its activities. But this argument proves too much. Since assessments imposed by the district become a cost of doing business for those who farm within it, and that cost must ultimately be passed along to the consumers of the produce, food shoppers in far away metropolitan areas are to some extent likewise 'affected' by the activities of the district. Constitutional adjudication cannot rest on any such 'house that Jack built' foundation, however. The California Legislature could quite reasonably have concluded that the number of landowners and owners of sufficient amounts of acreage whose consent was necessary to organize the district would not have subjected their land to the lien of its possibly very substantial assessments unless they had a dominant voice in its control. Since the subjection of the owners' lands to such liens was the basis by which the district was to obtain financing, the proposed district had as a practical matter to attract landowner support. Nor, since assessments against landowners were to be the sole means by which the expenses of the district were to be paid, could it be said to be unfair or inequitable to repose the franchise in landowners but not residents. Landowners as a class were to bear the entire burden of the district's costs, and the State could rationally conclude that they, to the exclusion of residents, should be charged with responsibility for its operation. We conclude, therefore, that nothing in the Equal Protection Clause precluded California from limiting the voting for directors of appellee district by totally excluding those who merely reside within the district.
III
30
Appellants assert that even if residents may be excluded from the vote, lessees who farm the land have interests that are indistinguishable from those of the landowners. Like landowners, they take an interest in increasing the available water for farming and, because the costs of district projects may be passed on to them either by express agreement or by increased rentals, they have an equal interest in the costs.
31
Lessees undoubtedly do have an interest in the activities of appellee district analogous to that of landowners in many respects. But in the type of special district we now have before us, the question for our determination is not whether or not we would have lumped them together had we been enacting the statute in question, but instead whether 'if any state of facts reasonably may be conceived to justify' California's decision to deny the franchise to lessees while granting it to landowners. McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).
32
The term 'lessees' may embrace the holders of a wide spectrum of leasehold interests in land, from the month-to-month tenant holding under an oral lease, on the one hand, to the long-term lessee holding under a carefully negotiated written lease, on the other. The system which permitted a lessee for a very short term to vote might easily lend itself to manipulation on the part of large landowners because of the ease with which such landowners could create short-term interests on the part of loyal employees. And, even apart from the fear of such manipulation, California may well have felt that landowners would be unwilling to join in the forming of a water storage district if short-term lessees whose fortunes were not in the long run tied to the land were to have a major vote in the affairs of the district.
33
The administration of a voting system which allowed short-term lessees to vote could also pose significant difficulties. Apparently, assessment rolls as well as state and federal land lists are used by election boards in determining the qualifications of the voters. Calif.Water Code § 41016. Such lists, obviously, would not ordinarily disclose either longor short-term leaseholds. While reference could be made to appropriate conveyancing records to determine the existence of leases which had been recorded, leases for terms less than one year need not be recorded under California law in order to preserve the right of the lessee. Calif.Civil Code § 1214.
34
Finally, we note that California has not left the lessee without remedy for his disenfranchised state. Sections 41002 and 41005 of the California Water Code provide for voting in the general election by proxy. To the extent that a lessee entering into a lease of substantial duration, thereby likening his status more to that of a landowner, feels that the right to vote in the election of directors of the district is of sufficient import to him, he may bargain for that right at the time he negotiates his lease. And the longer the term of the lease, and the more the interest of the lessee becomes akin to that of the landowner, presumably the more willing the lessor will be to assign his right. Just as the lessee may by contract be required to reimburse the lessor for the district assessments so he may by contract acquire the right to vote for district directors.
35
Under these circumstances, the exclusion of lessees from voting in general elections for the directors of the district does not violate the Equal Protection Clause.
IV
36
The last claim by appellants is that § 41001, which weights the vote according to assessed valuation of the land, is unconstitutional. They point to the fact that several of the smaller landowners have only one vote per person whereas the J. G. Boswell Company has 37,825 votes, and they place reliance on the various decisions of this Court holding that wealth has no relation to resident-voter qualifications and that equality of voting power may not be evaded. See, e.g., Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).
37
Appellants' argument ignores the realities of water storage district operation. Since its formation in 1926, appellee district has put into operation four multimillion-dollar projects. The last project involved the construction of two laterals from the Basin to the California State Aqueduct at a capital cost of about $2,500,000. Three small landowners having land aggregating somewhat under four acres with an assessed valuation of under $100 were given one vote each in the special election held for the approval of the project. The J. G. Boswell Company, which owns 61,665.54 acres with an assessed valuation of $3,782,220 was entitled to cast 37,825 votes in the election. By the same token, however, the assessment commissioners determined that the benefits of the project would be uniform as to all of the acres affected, and assessed the project equally as to all acreage. Each acre has to bear $13.26 of cost and the three small landowners, therefore, must pay a total of $46, whereas the company must pay $817,685 for its part.10 Thus, as the District Court found, 'the benefits and burdens to each landowner . . . are in proportion to the assessed value of the land.' 342 F.Supp. 144, 146. We cannot say that the California legislative decision to permit voting in the same proportion is not rationally based.
38
Accordingly, we affirm the judgment of the three-judge District Court and hold that the voter qualification statutes for California water storage district elections are rationally based, and therefore do not violate the Equal Protection Clause.
39
Affirmed.
40
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
41
The vices of this case are fourfold.
42
First. Lessees of farmlands, though residents of the district, are not given the franchise.
43
Second. Residents who own no agricultural lands but live in the district and face all the perils of flood which the district is supposed to control are disfranchised.
44
Third. Only agricultural landowners are entitled to vote and their vote is weighted, one vote for each one hundred dollars of assessed valuation as provided in § 41001 of the California Water Code.
45
Fourth. The corporate voter is put in the saddle.
46
There are 189 landowners who own up to 80 acres each. These 189 represent 2.34% of the agricultural acreage of the district. There are 193,000 acres in the district. Appellant Salyer Land Co. is one large operator, West Lake Farms and South Lake Farms are also large operators. The largest is J. G. Boswell Co. These four farm almost 85% of all the land in the district. Of these, J. G. Boswell Co. commands the greatest number of votes, 37,825, which are enough to give it a majority of the board of directors. As a result, it is permanently in the saddle. Almost all of the 77 residents of the district are disfranchised. The hold of J. G. Boswell Co. is so strong that there has been no election since 1947, making little point of the provision in § 41300 of the California Water Code for an election every other year.
47
The result has been calamitous to some who, though landless, have even more to fear from floods than the ephemeral corporation.
48
* In Phoenix v. Kolodziejski, 399 U.S. 204, 209, 90 S.Ct. 1990, 1994, 26 L.Ed.2d 523, we set out the following test for state election schemes which selectively distribute the franchise:
49
'Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise.'
50
Provisions authorizing a selective franchise are disfavored, because they 'always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives.' Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583. In order to overcome this strong presumption, it had to be shown up to now (1) that there is a compelling state interest for the exclusion, and (2) that the exclusions are necessary to promote the State's articulated goal. Phoenix v. Kolodziejski, supra; Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Kramer v. Union Free School District, supra. See also Police Jury of Vermillion Parish v. Hebert, 404 U.S. 807, 92 S.Ct. 52, 30 L.Ed.2d 39; Stewart v. Parish School Board of Parish of St. Charles, D.C., 310 F.Supp. 1172, aff'd, 400 U.S. 884, 91 S.Ct. 136, 27 L.Ed.2d 129. In my view, appellants in this case have made a sufficient showing to invoke the above principles, and the presumption thus established has not been overcome.
51
Assuming, arguendo, that a State may, in some circumstances, limit the franchise to that portion of the electorate 'primarily affected' by the outcome of an election, Kramer v. Union Free School District, supra, 395 U.S. at 632, 89 S.Ct., at 1892, the limitation may only be upheld if it is demonstrated that 'all those excluded are in fact substantially less interested or affected than those the (franchise) includes.' Ibid. The majority concludes that 'there is no way that the economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries.'
52
But, with all respect, that is a great distortion. In these arid areas of our Nation a water district seeks water in time of drought and fights it in time of flood. One of the functions of water districts in California is to manage flood control. That is general California statutory policy.1 It is expressly stated in the Water Code that governs water districts.2 The California Supreme Court ruled some years back that flood control and irrigation are different but complementary aspects of one problem.3
53
From its inception in 1926, this district has had repeated flood control problems. Four rivers, Kings, Kern, Tule, and Kaweah, enter Tulare Lake Basin. South of Tulare Lake Basin is Buena Vista Lake. In the past, Buena Vista has been used to protect Tulare Lake Basin by storing Kern River water in the former. That is how Tulare Lake Basin was protected from menacing floods in 1952. But that was not done in the great 1969 flood, the result being that 88,000 of the 193,000 acres in respondent district were flooded. The board of the respondent district dominated by the big landowner J. G. Boswell Co.—voted 6—4 to table the motion that would put into operation the machinery to divert the flood waters to the Buena Vista Lake. The reason is that J. G. Boswell Co. had a long-term agricultural lease in the Buena Vista Lake Basin and flooding it would have interfered with the planting, growing, and harvesting of crops the next season.
54
The result was that water in the Tulare Lake Basin rose to 192.5 USGS datum. Ellison, one of the appellants who lives in the district, is not an agricultural landowner. But his residence was 15 1/2 feet below the water level of the crest of the flood in 1969.
55
The appellee district has large levees; and if they are broken, damage to houses and loss of life are imminent.
56
Landowners—large or small, resident or nonresident, lessees or landlords, sharecroppers4 or owners—all should have a say. But irrigation, water storage, the building of levees, and flood control, implicate the entire community. All residents of the district must be granted the franchise.
57
This case, as I will discuss below, involves the performance of vital and important governmental functions by water districts clothed with much of the paraphernalia of government. The weighting of votes according to one's wealth is hostile to our system of government. See Stewart v. Parish School Board of St. Charles, D.C., 310 F.Supp. 1172, aff'd, 400 U.S. 884, 91 S.Ct. 136, 27 L.Ed.2d 129. As a nonlandowning bachelor was held to be entitled to vote on matters affecting education, Kramer v. Union Free School District, supra, so all the prospective victims of mismanaged flood control projects should be entitled to vote in water district elections, whether they be resident nonlandowners, resident or nonresident lessees, and whether they own 10 acres or 10,000 acres. Moreover, their votes should be equal regardless of the value of their holdings, for when it comes to performance of governmental functions all enter the polls on an equal basis.
58
The majority, however, would distinguish the water storage district from 'units of local government having general governmental powers over the entire geographic area served by the body,' Avery v. Midland County, Tex., 390 U.S. 474, 485, 88 S.Ct. 1114, 1120, 20 L.Ed.2d 45, and fit this case within the exception contemplated for 'a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents.' Id., at 483—484, 88 S.Ct., at 1120. The Avery test was significantly liberalized in Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45. At issue was an election for trustees of a special purpose district which ran a junior college. We said,
59
'. . . (S)ince the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. . . . (T)hese powers, while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions . . . and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.' Id., at 53—54, 90 S.Ct., at 794. (Emphasis added; footnote omitted.)
60
Measured by the Hadley test, the Tulare Lake Basin Water Storage District surely performs 'important governmental functions' which 'have sufficient impact throughout the district' to justify the application of the Avery principle.
61
Water storage districts in California are classified as irrigation, reclamation, or drainage districts.5 Such state agencies 'are considered exclusively governmental,' and their property is 'held only for governmental purpose,' not in the 'proprietary sense.'6 They are a 'public entity,' just as 'any other political subdivision.'7 That is made explicit in various ways. The Water Code of California states that '(a)ll waters and water rights' of the State 'within the district are given, dedicated, and set apart for the uses and purposes of the district.'8 Directors of the district are 'public officers of the state.'9 The district possesses the power of eminent domain.10 Its works may not be taxed.11 It carries a governmental immunity against suit.12 A district has powers that relate to irrigation, storage of water, drainage, flood control, and generation of hydroelectric energy.13
62
Whatever may be the parameters of the exception alluded to in Avery and Hadley, I cannot conclude that this water storage district escapes the constitutional restraints relative to a franchise within a governmental unit.
II
63
When we decided Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and discussed the problems of malapportionment we thought and talked about people—of population, of the constitutional right of 'qualified citizens to vote,' (id., at 554, 84 S.Ct., at 1377) of 'the right of suffrage,' (id., at 555, 84 S.Ct., at 1378) of the comparison of 'one man's vote' to that of another man's vote. Id., at 559, 84 S.Ct., at 1382. We said:
64
'Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.' Id., at 562, 84 S.Ct., at 1382.
65
It is indeed grotesque to think of corporations voting within the framework of political representation of people. Corporations were held to be 'persons' for purposes both of the Due Process Clause of the Fourteenth Amendment14 and of the Equal Protection Clause.15 Yet, it is unthinkable in terms of the American tradition that corporations should be admitted to the franchise. Could a State allot voting rights to its corporations, weighting each vote according to the wealth of the corporation? Or could it follow the rule of one corporation, one vote? It would be a radical and revolutionary step to take, as it would change our whole concept of the franchise. California takes part of that step here by allowing corporations to vote in these water district matters16 that entail performance of vital governmental functions. One corporation can outvote 77 individuals in this district. Four corporations can exercise these governmental powers as they choose, leaving every individual inhabitant with a weak, ineffective voice. The result is a corporate political kingdom undreamed of by those who wrote our Constitution.
1
The history of the vast Central Valley Project in California is recounted in United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950).
2
4 Waters and Water Rights § 345.3 (R. Clark ed. 1970).
3
The actual adoption of district projects is long and involved. After a district undertakes a project, it must be approved by the California Department of Water Resources. Calif. Water Code § 42200 et seq. A report and the estimated cost of the project must be submitted to the California State Treasurer, who undertakes an independent investigation before declaring the project abandoned or approving the report. Id., § 42275 et seq. If the report is approved, a 'special election' is called. Id., § 42325 et seq. In order for the project to be finally adopted, a majority of the votes and a majority of the voters must approve it. Id., §§ 42355—42550.
4
There is no evidence that the appellee district engages in the generation, sale, or distribution of hydroelectric power.
5
Calif.Water Code § 41000 provides:
'Only the holders of title to land are entitled to vote at a general election.'
6
Calif.Water Code § 41001 provides:
'Each voter may vote in each precinct in which any of the land owned by him is situated and may cast one vote for each one hundred dollars ($100), or fraction thereof, worth of his land, exclusive of improvements, minerals, and mineral rights therein, in the precinct.'
7
The board has the power to employ and discharge persons on a regular staff and to contract for the construction of district projects. Calif.Water Code § 43152. It can condemn private property for use in such projects, id., §§ 43530—43533, and may cooperate (including contract) with other agencies, state and federal. Id., § 43151. Both general obligation bonds and interest-bearing warrants may be authorized. Id., §§ 44900—45900.
8
Appellants strongly urge that districts have the power to, and do, engage in flood control activities. The interest of such activities to residents is said to be obvious since houses may be destroyed and as in the case of appellant Ellison, jobs may disappear. But Calif.Water Code § 43151 provides that any agreement entered into with the State or the United States must be 'for a purpose appeataining to or beneficial to the project of the district. . . .' And the statute which assertedly gives support to the flood control activities, id., § 44000, simply states that a district 'may cooperate and contract with the state . . . or the United States' for the purpose of 'flood control.' Id., § 44001. Thus, any flood control activities are incident to the exercise of the district's primary functions of water storage and distribution.
9
Appellants point out that since the flood of 1969, the district has received about $250,000 in flood relief funds from the Federal Government and that the residents, like other American citizens, have paid their share of that money and are therefore entitled to vote. Cf. Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). But their status as district residents bears no more relation to the flood relief money than that of any other United States citizen and would seem to provide no more compelling reason for granting such residents the right to vote than the citizenry at large.
10
As was pointed out in n. 3, small landowners are protected from crippling assessments resulting from district projects by the dual vote which must be taken in order to approve a project. Not only must a majority of the votes be cast for approval, but also a majority of the voters must approve. In this case, about 189 landowners constitute a majority and 189 of the smallest landowners in the district have only 2.34% of the land.
1
Calif.Stat.1921, c. 914, § 58.
2
Calif.Water Code § 44001.
3
Tarpey v. McClure, 190 Cal. 593, 213 P. 983.
4
Since 1938, sharecroppers have been included in federal regulations defining 'farmers' who are entitled to vote on referenda concerning marketing quotas under the Agricultural Adjustment Act.
'Farmers engaged in the production of a commodity. For purposes of referenda with respect to marketing quotas for tobacco, extra long staple cotton, rice and peanuts the phrase 'farmers engaged in the production of a commodity' includes any person who is entitled to share in a crop of the commodity, or the proceeds thereof because he shares in the risks of production of the crop as an owner, landlord, tenant, or sharecropper (landlord whose return from the crop is fixed regardless of the amount of the crop produced is excluded) on a farm on which such crop is planted in a workmanlike manner for harvest: Provided, That any failure to harvest the crop because of conditions beyond the control of such person shall not affect his status as a farmer engaged in the production of the crop. In addition, the phrase 'farmers engaged in the production of a commodity' also includes each person who it is determined would have had an interest as a producer in the commodity on a farm for which a farm allotment for the crop of the commodity was established and no acreage of the crop was planted but an acreage of the crop was regarded as planted for history acreage purposes under the applicable commodity regulations.' 7 CFR § 717.3(b).
5
Calif.Water Code § 39060.
6
Glenn-Colusa Irrigation District v. Ohrt, 31 Cal.App.2d 619, 623, 88 P.2d 763, 765.
7
Calif.Govt.Code § 811.2.
8
Section 43158. See also id., § 39061.
9
In re Madera Irrigation District, 92 Cal. 296, 322, 28 P. 272, 278.
10
Calif.Water Code § 43530.
11
Id., § 43508.
12
Calif.Govt.Code §§ 811.2, 815.
13
Calif.Water Code §§ 42200, 43000, 43025, 44001.
14
Minneapolis & St. Louis R. Co. v. Beckwith, 129 U.S. 26, 28, 9 S.Ct. 207, 32 L.Ed. 585.
15
Pembina Consolidated Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 188—189, 8 S.Ct. 737, 740—741, 31 L.Ed. 650; Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 397, 6 S.Ct. 1132, 30 L.Ed. 118.
16
Calif.Water Code § 41004.
| 12
|
410 U.S. 743
93 S.Ct. 1237
35 L.Ed.2d 675
ASSOCIATED ENTERPRISES, INC., and Johnston Fuel Liners, Appellants,v.TOLTEC WATERSHED IMPROVEMENT DISTRICT.
No. 71—1069.
Argued Jan. 8, 1973.
Decided March 20, 1973.
Henry A. Burgess, Sheridan, Wyo., for appellants.
Fred W. Phifer, Wheatland, Wyo., for appellee.
PER CURIAM.
1
In this case, we are confronted with an issue similar to the one determined today in Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659. Appellee Toltec Watershed Improvement District was established after referendum held pursuant to Wyoming's Watershed Improvement District Act, Wyo.Stat.Ann. §§ 41—354.1 to 41—354.26 (Supp.1971). After formation, appellee sought a right of entry onto lands owned by appellant Associated Enterprises, Inc., and leased by Johnston Fuel Liners, for the purpose of carrying out studies to determine the feasibility of constructing a dam and reservoir. When Associated Enterprises resisted, the district sought to enforce its right in state court. Arguing that the statutes authorizing the referendum violated the Equal Protection Clause since under § 41—354.9 only landowners are entitled to vote and under § 41—354.10 a watershed improvement district cannot be determined to be administratively practicable and feasible unless a majority of the votes cast, representing a majority of the acreage in the district, favor its creation, appellants maintained that the district was illegally formed. The trial court agreed that had the district been formed in violation of the Equal Protection Clause, appellants would have a good defense under state law to the asserted right of entry, but it held against them on the merits. The Wyoming Supreme Court affirmed, 490 P.2d 1069.
2
Appellants urge here that the provisions entitling only landowners to vote and weighting the vote according to acreage violate the Equal Protection Clause. Like the California water storage district, the Wyoming watershed district is a governmental unit of special or limited purpose whose activities have a disproportionate effect on landowners within the district. The district's operations are conducted through projects and the land is assessed for any benefits received. Wyo.Stat.Ann. §§ 41—354.17, 41—354.21, 41—354.22. Such assessments constitute a lien on the land until paid. Id., § 41—354.23.
3
We cannot agree with the dissent's intimation that the Wyoming Legislature has in any sense abdicated to a wealthy few the ultimate authority over land management in that State. The statute authorizing the establishment of improvement districts was enacted by a legislature in which all of the State's electors have the unquestioned right to be fairly represented. Under the act, districts may be formed only as subdivisions of soil and water conservation districts. Id., § 41—354.3. And a precondition to their formation referendum is a determination by a board of supervisors of the affected conservation district, popularly elected by both occupiers and owners of land within the district, that the watershed improvement district is both necessary and administratively practicable. Id., §§ 41—354.7, 41—354.8; Wyoming Conservation Districts Law, Wyo.Stat.Ann. § 11—234 et seq., § 11—243 (Supp.1971). As in Salyer, supra, we hold that the State could rationally conclude that landowners are primarily burdened and benefited by the establishment and operation of watershed districts and that it may condition the vote accordingly. The judgment appealed from is, therefore, affirmed.
4
Affirmed.
5
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
6
* For the reasons set forth in my dissenting opinion in Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 735, 93 S.Ct. 1224, 1233, 35 L.Ed.2d 659, I cannot agree that the voting provisions of Wyoming's Watershed Improvement District Act pass muster under the Equal Protection Clause. Accordingly, I dissent.
7
At issue is Wyoming's Watershed Improvement District Act, Wyo.Stat.Ann. §§ 41—354.1 to 41—354.26 (Supp.1971). Appellee Toltec Watershed Improvement District was established as a result of a referendum held pursuant to this Act, May 12, 1969.1
8
The purposes of the Wyoming Act are 'to provide for the prevention and control of erosion, floodwater and sediment damages, and the storage, conservation, development, utilization, and disposal of water.' Id., § 41—354.2. These are not purposes related only to special, narrow interests of landowners. As noted in the Salyer Land Co. case, flood control is a purpose that affects at least everyone in a watershed district, whether he be owner, lessee, or a resident not engaged in farming, grazing, or other agricultural activity.
9
In June 1970, appellee sought a right of entry onto lands owned by appellant Associated Enterprises, and leased by appellant Johnston Fuel Liners, for the purpose of carrying out foundation studies for a dam site. When appellant Associated Enterprises resisted, Toltec sought to enforce its right of entry in state court. The trial court agreed with appellants that if Toltec had been illegally formed, they would have a good defense to the asserted right of entry, but held against them on the merits, despite appellants' objections that the referendum which authorized the creation of the watershed improvement district violated the Equal Protection Clause, the franchise being limited to property owners, and the votes being weighted by the amount of property owned. On appeal, the Wyoming Supreme Court affirmed.
10
I conclude that the presumption set out in Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523, has not been overcome, for '(p)lacing (voting) power in property owners alone can be justified only by some overriding interest of those owners that the State is entitled to recognize.' Id., at 209, 90 S.Ct. at 1994. Here, the suggestion was made below that property owners are those 'primarily concerned' with the affairs of the watershed district. But assuming, arguendo, that a State may, in some circumstances, limit the franchise to that portion of the electorate 'primarily affected' by the outcome of an election, Kramer v. Union Free School District, 395 U.S. 621, 632, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583 the limitation may only be upheld if it is demonstrated that 'all those excluded are in fact substantially less interested or affected than those the (franchise) includes.' Ibid.
11
Other than the bald assertion by the court below that it 'makes sense' to limit the franchise in watershed district referenda to property owners, there is nothing in the record to support the exclusion. Appellant Johnston is a lessee of land in the District. Why a lessee is 'substantially less interested' in the creation of a watershed district than is a titleholder is left to speculation.2 And mere speculation is insufficient to justify an infringement on the right to vote, a right which is 'the essence of a democratic society,' Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506.
12
Moreover, we recently stated that 'a percentage reduction of an individual's voting power in proportion to the amount of property he owned would be (constitutionally) defective. See Stewart v. Parish School Board, 310 F.Supp. 1172 (ED La.), aff'd, 400 U.S. 884, 91 S.Ct. 136, 27 L.Ed.2d 129 (1970).' Gordon v. Lance, 403 U.S. 1, 4 n. 1, 91 S.Ct. 1889, 1891, 29 L.Ed.2d 273.
II
13
It is argued, however, that unlike 'units of local government having general governmental powers over the entire geographic area served by the body,' Avery v. Midland County, Tex., 390 U.S. 474, 485, 88 S.Ct. 1114, 1120, 20 L.Ed.2d 45, a watershed improvement district is 'a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents,' id., at 483—484, 88 S.Ct., at 1120. The court below sought to make such an analysis.
14
The Avery test, however, was significantly liberalized in Hadley v. Junior College District of Metropolitan Kansas City, Missouri, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45. At issue was an election for trustees of a special purpose district, which ran a junior college. We said,
15
'(S)ince the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. . . . (T)hese powers, while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions . . . and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.' Id., at 53—54, 90 S.Ct., at 794. (Emphasis added, footnote omitted.)
16
Measured by the Hadley test, the Toltec Watershed Improvement District surely performs 'important governmental functions' which 'have sufficient impact throughout the district' to justify the application of the Avery principle. The District may: levy and collect special assessments, Who.Stat.Ann. § 41—354.13(A); acquire and dispose of property, § 41—354.13(B); exercise the power of eminent domain, § 41—354.13(C); and borrow money and issue bonds, § 41—354.13(E)—all to exercise flood control. § 41—354.2.
17
The lower court characterized these functions as 'proprietary' in nature, rather than 'governmental.' But that is a meaningless distinction when control of public affairs is at issue. Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Stewart v. Parish School Board of St. Charles, 310 F.Supp. 1172, at 1176, aff'd, 400 U.S. 884, 91 S.Ct. 136, 27 L.Ed.2d 129. It is hardly to be argued that a public body with the power to take land by eminent domain, to issue bonds, to levy taxes, and to provide plans for flood control does not 'perform important governmental functions.'
18
It is also inconceivable that a body with the power to destroy a river by damming it and so deprive a watershed of one of its salient environmental assets does not have 'sufficient impact' on the interests of people generally to invoke the principles of Avery and Hadley.
19
It is said that there is a difference between an election to create a special-purpose district, and an election either to authorize the district to issue bonds, or to elect district officers. In my view, such a distinction is not tenable.
20
'Our exacting examination (of statutes which selectively distribute the franchise) is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not.' Kramer v. Union Free School District, supra, 395 U.S., at 629, 89 S.Ct., at 1891.
As we said in Hadley:
21
'If the purpose of a particular election were to be the determining factor in deciding whether voters are entitled to equal voting power, courts would be faced with the difficult job of distinguishing between various elections. We cannot readily perceive judicially manageable standards to aid in such a task. It might be suggested that equal apportionment is required only in 'important' elections, but good judgment and common sense tell us that what might be a vital election to one voter might well be a routine one to another.' 397 U.S., at 55, 90 S.Ct., at 795.
22
The more creation of the Watershed Improvement District subjects residents of the area to constraints. The District may condemn land without further electoral approval; and it has the power to finance improvements through special taxes levied against land to be benefited by the improvements without further electoral approval. While such assessments fall in the first instance on the landowner, lessees and tenants would be substantially affected, as well.3 And its power to reshape or control the watershed and to provide flood control enables it to turn rivers into flumes or to destroy them by erecting dams to build reservoirs. Dams may be vital or they may be disastrous. The sedimentation rate in some areas is so fast as to reduce the life of dams to a few decades. Dams may destroy valued fish runs. Dams substitute a reservoir for a river and wipe out the varied life of a river course, including its wildlife, canoe waters, camping and picnic grounds, and nesting areas of birds. This reshaping of the face of the Nation may be disastrous, no matter who casts the ballots. The enormity of the violation of our environmental ethics, represented by state and federal laws, is only increased when the ballot is restricted to or heavily weighted on behalf of the few who are important only because they are wealthy.
23
The issues I tender are disposed of by the suggestions that the members of the Legislature of Wyoming passed the Act now challenged, that they represented the people of Wyoming, and that they could therefore put the landowners in command of the environmental problems tendered by this case. That would, of course, be true if the case presented no federal question. But adherence to Reynolds v. Sims and its progeny makes the federal rule dominant, viz., that important governmental functions may not be assigned to special groups, whether powerful lobbies or other discrete groups to which a state legislature is often beholden.
24
I would reverse the judgment below.
1
Establishment of a Watershed Improvement District entails several steps. First, a petition proposing the creation of such a district must be filed with the board of supervisors of the soil and water conservation district in which the proposed watershed district will lie. Wyo.Stat.Ann. § 41—354.5. The petition must set forth the boundaries of the proposed district and reasons justifying its creation, and must be signed by a majority of the landowners in the proposed district. Ibid.
On receipt of the petition, the board of supervisors must call a public hearing, which '(a)ll owners of land within the proposed watershed improvement district and all other interested parties shall have the right to attend . . . and to be heard.' Id., § 41—354.7(A). The board of supervisors may, after such hearing, determine that there is no need for the creation of the district. If so, the petition is forthwith denied. Id., § 41 354.7(C).
If the supervisors do think there is a need, however, they must further determine whether the proposed district is 'administratively practicable and feasible.' Id., § 41—354.8. 'To assist the board of supervisors in this determination,' a referendum must be held in the proposed district 'upon the proposition of the creation of such district.' Ibid. Only owners of land lying within the boundaries of the proposed district may vote in this referendum. Id., § 41—354.9(B). If a majority of the landowners representing a majority of the acreage within the district do not vote against creation of the district, the board of supervisors is permitted to determine that the district is administratively practicable and feasible, and to declare it created. Ibid.
Once created, a watershed improvement district has broad powers. It may exercise the power of eminent domain, levy and collect assessments, and issue bonds. Id., §§ 41—354.13 to 41 354.14.
2
The Watershed Improvement District Act itself contemplates that nonlandowners are interested in the proposed creation of a district, by giving them the right to appear and be heard at the public hearing required by the Act prior to the referendum. See n. 1, supra. No reason is advanced why a person not owning property can be sufficiently interested in the district to be given a forum, yet is not sufficiently interested to be allowed to implement the views he expresses at that forum through the ballot box.
3
Landowners are often able to pass property taxes through to their lessees and tenants. D. Netzer, Economics of the Property Tax (1966). This is especially true in urban areas where the demand for rental housing is price inelastic, but there is no reason why it may not also be true in rural areas, as well.
| 12
|
410 U.S. 752
93 S.Ct. 1245
36 L.Ed.2d 1
Pedro J. ROSARIO et al., Petitioners,v.Nelson ROCKEFELLER, Governor of the State of New York, et al.
No. 71—1371.
Argued Dec. 13, 1972.
Decided March 21, 1973.
Rehearing Denied Apr. 23, 1973.
See 411 U.S. 959, 93 S.Ct. 1920.
Syllabus
Petitioners challenge the constitutionality of New York Election Law § 186, which requires a voter to enroll in the party of his choice at least 30 days before the general election in order to vote in the next party primary. Though eligible to enroll before the previous general election, petitioners failed to do so and were therefore ineligible to vote in the 1972 primary. The Court of Appeals, reversing the District Court, upheld the New York scheme, which it found to be a permissible deterrent against the practice of primary election 'raiding' by opposing party members. Held: New York's delayed-enrollment scheme did not violate petitioners' constitutional rights. Pp. 756—762.
(a) Section 186 did not absolutely prohibit petitioners from voting in the 1972 primary, but merely imposed a time deadline on their enrollment, which they chose to disregard. Pp. 756—758.
(b) The statute does not deprive voters of their right under the First and Fourteenth Amendments to associate with the party of their choice or subsequently to change to another party, provided that the statutory time limit for doing so is observed. Pp. 758 759.
(c) The cutoff date for enrollment, which occurs about eight months before a presidential, and 11 months before a nonpresidential, primary, is not arbitrary when viewed in light of the legitimate state purpose of avoiding disruptive party raiding. Pp. 760—761.
458 F.2d 649, affirmed.
Burt Neuborne, New York City, for petitioners; Melvin L. Wulf, New York City, and Seymour Friedman, Brooklyn, on the brief.
A. Seth Greenwald, Asst. Atty. Gen. of New York, for respondents Rockefeller and others; Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Irving Galt, Asst. Atty. Gen., on the brief.
Joseph Jaspan, Mineola, filed a brief for respondents Meisser and others.
David N. Dinkins, pro se, filed a brief for respondents Dinkins and others.
Mr. Justice STEWART delivered the opinion of the Court.
1
For more than 60 years, New York has had a closed system of primary elections, whereby only enrolled members of a political party may vote in that party's primary.1 Under the State's Election Law, McKinney's Consol.Laws, c. 17, a registered voter enrolls as a party member by depositing an enrollment blank in a locked enrollment box. The last day for enrollment is 30 days before the general election each year. Section 186 of the Election Law provides that the enrollment boxes shall not be opened until the Tuesday following the general election, and party affiliations are then entered on the State's official registration books. The voter is then duly enrolled as a member of his party and may vote in a subsequent primary election.2
2
The effect of § 186 is to require a voter to enroll in the party of his choice at least 30 days before the general election in November in order to vote in the next subsequent party primary. If a voter fails to meet this deadline, he cannot participate in a party primary until after the following general election. Section 187 provides an exemption from this waiting period for certain classes of voters, including persons who have attained voting age after the last general election, persons too ill to enroll during the previous enrollment period, and persons who moved from one place to another within a single county. Under § 187, these classes of voters may be specially enrolled as members of a party even after the general election has taken place.3
3
The petitioners are New York residents who became eligible to vote when they came of age in 1971. Although they could have registered and enrolled in a political party before the cutoff date in 1971—October 2—they failed to do so.4 Instead, they waited until early December 1971 to register and to deposit their enrollment blanks. At that time, they could not be specially and immediately enrolled in a party under § 187, since they had attained the voting age before, rather than after, the 1971 general election. Hence, pursuant to § 186, their party enrollment could not become effective until after the November 1972 general election. Because of New York's enrollment scheme, then, the petitioners were not eligible to vote in the presidential primary election held in June 1972.
4
The petitioners filed these complaints for declaratory relief, pursuant to 42 U.S.C. § 1983, alleging that § 186 unconstitutionally deprived them of their right to vote in the June primary and abridged their freedom to associate with the political party of their choice. The District Court, in an unreported opinion, granted them the declaratory relief sought. The Court of Appeals for the Second Circuit reversed, holding § 186 constitutional. 458 F.2d 649. We granted certiorari, but denied the petitioners' motion for summary reversal, expedited consideration, and a stay. 406 U.S. 957, 92 S.Ct. 2062, 32 L.Ed.2d 343 (1972).5
5
The petitioners argue that, through § 186, New York disenfranchised them by refusing to permit them to vote in the June 1972 primary election on the ground that they had not enrolled in a political party at least 30 days prior to the preceding general election. More specifically, they contend that § 186 has operated to preclude newly registered voters, such as themselves, from participating in the primary election of the party of their choice. According to the petitioners, New York has no 'compelling state interest' in its delayed-enrollment scheme so as to justify such disenfranchisement, and hence the scheme must fall. In support of this argument, the petitioners rely on several cases in which this Court has struck down, as violative of the Equal Protection Clause, state statutes that disenfranchised certain groups of people. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Kramer v. Union Free School District 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); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).
6
We cannot accept the petitioners' contention. None of the cases on which they rely is apposite to the situation here. In each of those cases, the State totally denied the electoral franchise to a particular class of residents, and there was no way in which the members of that class could have made themselves eligible to vote. In Carrington, for instance, the Texas Constitution disabled all servicemen from voting in Texas, no matter how long they had lived there. In Kramer, residents who were not property owners or parents were completely precluded from voting in school board elections. In Cipriano and Kolodziejski, the States prohibited non-property owners from ever voting in bond elections. In Evans, Maryland refused to permit residents at the National Institutes of Health, located within its borders, ever to vote in state elections. And in Dunn, Tennessee totally disenfranchised newly arrived residents, i.e., those who had been residents of the State less than a year or residents of the county less than three months before the election.
7
Section 186 of New York's Election Law, however, is quite different. It did not absolutely disenfranchise the class to which the petitioners belong—newly registered voters who were eligible to enroll in a party before the previous general election. Rather, the statute merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary. Since the petitioners attained voting age before the October 2, 1971, deadline, they clearly could have registered and enrolled in the party of their choice before that date and been eligible to vote in the June 1972 primary.6 Indeed, if the petitioners had not been able to enroll by the October 2, 1971, deadline because they did not attain the requisite age until after the 1971 general election, they would have been eligible for special enrollment under § 187. The petitioners do not say why they did not enroll prior to the cutoff date; however, it is clear that they could have done so, but chose not to. Hence, if their plight can be characterized as disenfranchisement at all, it was not caused by § 186, but by their own failure to take timely steps to effect their enrollment.7
8
For the same reason, we reject the petitioners' argument that § 186 violated their First and Fourteenth Amendment right of free association with the political party of their choice. Since they could have enrolled in a party in time to participate in the June 1972 primary, § 186 did not constitute a ban on their freedom of association, but merely a time limitation on when they had to act in order to participate in their chosen party's next primary.8
9
Indeed, under the New York law, a person may, if he wishes, vote in a different party primary each year. All he need do is to enroll in a new political party between the prior primary and the October cutoff date. For example, one June he could be a registered Republican and vote in the Republican primary. Before enrollment closed the following October, he could enroll in the Democratic Party. Since that enrollment would be effective after the November general election and before the following February 1, he could then vote in the next Democratic primary. Before the following October, he could register to vote as a Liberal, and so on. Thus, New York's scheme does not 'lock' a voter into an unwanted pre-existing party affiliation from one primary to the next.9
10
The only remaining question, then, is whether the time limitation imposed by § 186 is so severe as itself to constitute an unconstitutionally onerous burden on the petitioners' exercise of the franchise or on their freedom of political association. As the dissent acknowledges, the State is certainly justified in imposing some reasonable cutoff point for registration or party enrollment, which citizens must meet in order to participate in the next election. Post, at 765. Hence, our inquiry must be whether the particular deadline before us here is so justified.
11
The cutoff date for enrollment prescribed by § 186 occurs approximately eight months prior to a presidential primary (held in June) and 11 months prior to a nonpresidential primary (held in September). The petitioners argue that this period is unreasonably long, and that it therefore unduly burdens the exercise of their constitutional rights. According to the petitioners, § 186 requires party enrollment before prospective voters have knowledge of the candidates or issues to be involved in the next primary elections. The requirement is especially onerous, the petitioners say, as applied to new voters, who have never before registered to vote or enrolled in a political party.
12
It is true that the period between the enrollment deadline and the next primary election is lengthy. But that period is not an arbitrary time limit unconnected to any important state goal. The purpose of New York's delayed-enrollment scheme, we are told, is to inhibit party 'raiding,' whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary. This purpose is accomplished, the Court of Appeals found, not only by requiring party enrollment several months in advance of the primary, on the theory that 'longrange planning in politics is quite difficult,' 458 F.2d, at 653, but also by requiring enrollment prior to a general election. The reason for the latter requirement was well stated by the court below:
13
'(T)he notion of raiding, its potential disruptive impact, and its advantages to one side are not likely to be as apparent to the majority of enrolled voters nor to receive as close attention from the professional politician just prior to a November general election when concerns are elsewhere as would be true during the 'primary season,' which, for the country as a whole, runs from early February until the end of June. Few persons have the effrontery or the foresight to enroll as say, 'Republicans' so that they can vote in a primary some seven months hence, when they full well intend to vote 'Democratic' in only a few weeks. And, it would be the rare politician who could successfully urge his constituents to vote for him or his party in the upcoming general election, while at the same time urging a cross-over enrollment for the purpose of upsetting the opposite party's primary. Yet the operation of section 186 requires such deliberate inconsistencies if large-scale raiding were to be effective in New York. Because of the statute, it is all but impossible for any group to engage in raiding.' Ibid.
14
It is clear that preservation of the integrity of the electoral process is a legitimate and valid state goal. Cf. Dunn v. Blumstein, supra, 405 U.S. at 345, 92 S.Ct. at 1004; Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1972). In the service of that goal, New York has adopted its delayed-enrollment scheme; and an integral part of that scheme is that, in order to participate in a primary election, a person must enroll before the preceding general election. As the Court of Appeals stated: 'Allowing enrollment any time after the general election would not have the same deterrent effect on raiding for it would not put the voter in the unseemly position of asking to be enrolled in one party while at the same time intending to vote immediately for another.' 458 F.2d, at 653. For this reason, New York's scheme requires an insulating general election between enrollment and the next party primary. The resulting time limitation for enrollment is thus tied to a particularized legitimate purpose, and is in no sense invidious or arbitrary. Cf. Lippitt v. Cipollone, 404 U.S. 1032, 92 S.Ct. 729, 30 L.Ed.2d 725 (1972).10
15
New York did not prohibit the petitioners from voting in the 1972 primary election or from associating with the political party of their choice. It merely imposed a legitimate time limitation on their enrollment, which they chose to disregard.
16
Accordingly, the judgment below is affirmed.
17
Affirmed.
18
Mr. Justice POWELL, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
19
* It is important at the outset to place New York's cutoff date for party enrollment in perspective. It prevents prospective voters from registering for a party primary some eight months before a presidential primary and 11 months before a nonpresidential one.1 The Court recognizes, as it must, that the period between the enrollment and the primary election is a 'lengthy' one.2 Indeed, no other State has imposed upon voters previously unaffiliated with any party restrictions which even approach in severity those of New York.3 And New York concedes that only one other State—Kentucky—has imposed as stringent a primary registration deadline on persons with prior party affiliations.4 Confronted with such a facially burdensome requirement, I find the Court's opinion unconvincing.
20
The right of all persons to vote, once the State has decided to make it available to some, becomes a basic one under the Constitution. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). Self-expression through the public ballot equally with one's peers is the essence of a democratic society. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). A citizen without a vote is to a large extent one without a voice in decisions which may profoundly affect him and his family. Whatever his disagreement may be with the judgments of public officials, the citizen should never be given just cause to think that he was denied an equal right to elect them.
21
Yet the Court today upholds a statute which imposes substantial and unnecessary restrictions on this right, as well as on the closely related right to associate with the party of one's choice. See Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967). The Court justifies this holding by placing the responsibility upon petitioners for their failure to enroll, as required by New York law, eight months prior to the presidential primary. We are told that petitioners 'clearly could have registered and enrolled in the party of their choice' before the cutoff date and been eligible to vote in the primary, but for undertermined reasons 'chose not to,' and that their disfranchisement resulted from 'their own failure to take timely steps to effect their enrollment.'5
22
If the cutoff date were a less severe one, I could agree. Certainly, the State is justified in imposing a reasonable registration cutoff prior to any primary or general election, beyond which a citizen's failure to register may be presumed a negligent or wilful act forfeiting his right to vote in a particular election. But it is difficult to perceive any persuasive basis for a registration or party enrollment deadline eight to 11 months prior to election. Failure to comply with such an extreme deadline can hardly be used to justify denial of a fundamental constitutional right. Numerous prior decisions impose on us the obligation to protect the continuing availability of the franchise for all citizens, not to sanction its prolonged deferment or deprivation. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); Baker v. Carr, 369 U.S. 186 (1962); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Reynolds v. Sims, supra; Carrington v. Rash, supra; 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 District, supra; Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Dunn v. Blumstein, supra.
23
The majority excuses the challenged statute because it does not 'absolutely' disenfranchise petitioners or impose any absolute ban on their freedom of association.6 The State likewise contends this is 'not a disenfranchising statute.'7 The Court apparently views this statute as a mere 'time deadline' on petitioners' enrollment that disadvantages no identifiable class and that postpones through the next primary rather than denies altogether petitioners' voting and associational rights.8 I cannot agree. Deferment of a right, especially one as sensitive and essential as the exercise of the first duty of citizenship, can be tantamount to its denial. And any statute which imposes for eight or 11 months an absolute freeze on party enrollment and the consequent right to vote totally disfranchises a class of persons who, for quite legitimate reasons, decide to register closer than eight months to the primary date and those who, for equally legitimate reasons, wish to choose or alter party affiliation. Our decisions, moreover, have never required a permanent ban on the exercise of voting and associational rights before a constitutional breach is incurred. Rather, they have uniformly recognized that any serious burden or infringement on such 'constitutionally protected activity' is sufficient to establish a constitutional violation, Dunn v. Blumstein, supra, 405 U.S. at 343, 92 S.Ct. at 1003; NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); Reynolds v. Sims, supra, 377 U.S. at 561—562, 84 S.Ct. at 1381—1382.
II
24
The majority does not identify the standard of scrutiny it applies to the New York statute. We are told only that the cutoff date is 'not an arbitrary time limit unconnected to any important state goal';9 that it is 'tied to a particularized legitimate purpose, and is in no sense invidious or arbitrary.'10 The Court does not explain why this formulation was chosen, what precedents support it, or how and in what contexts it is to be applied. Such nebulous promulgations are bound to leave the lower courts and state legislatures in doubt and confusion as to how we will approach future significant burdens on the right to vote and to associate freely with the party of one's choice.
25
The Court's formulation, though the terminology is somewhat stronger, resembles the traditional equal protection 'rational basis' test. One may agree that the challenged cutoff date is rationally related to the legitimate interest of New York in preventing party 'raiding.' But this Court's prior decisions simply do not permit such an approach. Rather, they recognize that:
26
'(T)he right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.' Reynolds v. Sims, supra, 377 U.S. at 561—562, 84 S.Ct., at 1381.
27
See also Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
28
Voting in a party primary is as protected against state encroachment as voting in a general election. Bullock v. Carter, supra; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). And the Court has said quite explicitly 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." Dunn v. Blumstein, supra, 405 U.S., at 337, 92 S.Ct., at 1000, quoting Kramer v. Union Free School District, supra, 395 U.S., at 627, 89 S.Ct., at 1889 (emphasis added in Dunn). See also Cipriano v. City of Houma, supra, 395 U.S., at 704, 89 S.Ct., at 1899; City of Phoenix v. Kolodziejski, supra, 399 U.S., at 205, 209, 90 S.Ct., at 1992, 1994. Likewise, the Court has asserted that 'the right of individuals to associate for the advancement of political beliefs' is 'among our most precious freedoms,' Williams v. Rhodes, 393 U.S., at 30, 89 S.Ct., at 10, and must be carefully protected from state encroachment. NAACP v. Alabama, supra; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963).
29
The inquiry thus becomes whether the instant statute, burdening as it does fundamental constitutional rights, can withstand the strict judicial scrutiny called for by our prior cases. The asserted state interest in this case is the prevention of party 'raiding,' which consists of the movement or 'crossover' by members of one party into another's primary to 'defeat a candidate who is adverse to the interests they care to advance.'11 The typical example is a member of one party deliberately entering another's primary to help nominate a weaker candidate, so that his own party's nominee might win more easily in the general election. A State does have an interest in preventing such behavior, lest 'the efficacy of the party system in the democratic process—its usefulness in providing a unity of divergent factions in an alliance for power—would be seriously impaired,' Rosario v. Rockefeller, 458 F.2d 649, 652 (CA2). The court below held flatly that the state interest in deterring 'raiding' was a 'compelling' one. Ibid.
30
The matter, however, is not so easily resolved. The importance or significance of any such interest cannot be determined in a vacuum but, rather, in the context of the means advanced by the State to protect it and the constitutionally sensitive activity it operates to impede. The state interest here is hardly substantial enough to sustain the presumption, upon which the statute appears to be based, that most persons who change or declare party affiliation nearer than eight to 11 months to a party primary do so with intent to raid that primary. Any such presumption assumes a willingness to manipulate the system which is not likely to be widespread.
31
Political parties in this country traditionally have been characterized by a fluidity and overlap of philosophy and membership. And citizens generally declare or alter party affiliation for reasons quite unconnected with any premeditated intention to disrupt or frustrate the plans of a party with which they are not in sympathy. Citizens customarily choose a party and vote in its primary simply because it presents candidates and issues more responsive to their immediate concerns and aspirations. Such candidates or issues often are not apparent eight to 11 months before a primary. That a citizen should be absolutely precluded so far in advance from voting in a party primary in response to a sympathetic candidate, a new or meaningful issue, or changing party philosophies in his State, runs contrary to the fundamental rights of personal choice and expression which voting in this country was designed to serve.
32
Whatever state interest exists for preventing cross-overs from one party to another is appreciably lessened where, as in the case of petitioners, there has been no previous affiliation with any political party. The danger of voters in sympathy with one party 'raiding' another party is insubstantial where the voter has made no prior party commitment at all. Certainly, the danger falls short of the overriding state interest needed to justify denying petitioners, so far in advance, the right to declare an initial party affiliation and vote in the party primary of their choice.
III
33
In Dunn, supra, 405 U.S., at 343, 92 S.Ct., at 1003, the Court emphasized that the State, in pursuing its legitimate interest,
34
'cannot choose means which 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).'
35
The Court indicates that placing the enrollment deadline before the preceding general election serves well the state interest in discouraging party 'raiding'12 This fails to address the critical question of whether that interest may be protected adequately by less severe measures. A foreshortening of the challenged period in this case would not leave the party structure of New York helpless and vulnerable to 'raiding' activities. Other States, with varied and complex party systems, have maintained them successfully without the advanced enrollment deadline imposed by New York.
36
Partisan political activities do not constantly engage the attention of large numbers of Americans, especially as party labels and loyalties tend to be less persuasive than issues and the qualities of individual candidates. The crossover in registration from one party to another is most often impelled by motives is most often impelled by motives quite unrelated to a desire to raid or distort a party's primary. To the extent that deliberate raiding occurs, it is usually the result of organized effort which depends for its success upon some relatively immediate concern or interest of the voters. This type of effort is more likely to occur as a primary date draws near. If New York were to adopt a more reasonable enrollment deadline, say 30 to 60 days, the period most vulnerable to raiding activity would be protected. More importantly, a less drastic enrollment deadline than the eight or 11 months now imposed by New York would make the franchise and opportunities for legitimate party participation available to those who constitutionally have the right to exercise them.13
1
See N.Y. Election Law § 131. The State's first comprehensive primary law was enacted in 1911.
2
Section 186 provides, in pertinent part:
'All enrollment blanks contained in the enrollment box shall remain in such box, and the box shall not be opened nor shall any of the blanks be removed therefrom until the Tuesday following the day of general election in that year. Such box shall then be opened by the board of elections and the blanks contained therein shall be removed therefrom by the board, and the names of the party designated by each voter under such declaration, provided such party continues to be a party, as defined in this law shall be entered by the board, opposite the name of such voter in the appropriate column of the two copies of the register containing enrollment numbers for the election district in which such voter resides. . . . Such enrollment shall be complete before the succeeding first day of February in each year.' This section finds its roots in the 1911 law. Laws 1911, c. 891, § 19.
3
Section 187 provides, in pertinent part:
'Application for special enrollment, transfer or correction of enrollment. 1. At any time after January first and before the thirtieth day preceding the next fall primary, except during the thirty days preceding a spring primary, and except on the day of a primary, a voter may enroll with a party, transfer his enrollment after moving within a county, and under certain circumstances, correct his enrollment, as hereinafter in this section provided.
'2. A voter may enroll with a party if he did not enroll on the day of the annual enrollment (a) because he become of age after the preceding general election, or (b) because he was naturalized subsequent to ninety days prior to the preceding general election, or (c) because he did not have the necessary residential qualifications as provided by section one hundred fifty, to enable him to enroll in the preceding year, or (d) because of being or having been at all the previous times for enrollment a member of the armed forces of the United States as defined in section three hundred three, or (e) because of being the spouse, child or parent of such member of the armed forces and being absent from his or her county of residence at all previous times for enrollment by reason of accompanying or being with such member of the armed forces, or (f) because he was an inmate or patient of a veterans' bureau hospital located outside the state of New York at all previous times for enrollment, or the spouse, parent or child of such inmate or patient accompanying or being with such inmate or patient at such times, or (g) because he was incapacitated by illness during the previous enrollment period thereby preventing him from enrolling.'
4
The petitioners themselves admit this failure. The present consolidated case originated in two complaints, one by the petitioner Rosario and other named plaintiffs, on behalf of a class, and one by the petitioner Eisner. Paragraph 6 of Rosario's complaint stated that '(e)ach of these plaintiffs could have registered and enrolled on or before October 2nd, 1971, the last date of registration for the November 1971 elections. They each did not do so.' Similarly, Eisner's complaint stated, in paragraph 5: 'Plaintiff, Eisner, first became eligible to vote on December 30, 1970, upon the attainment of his twenty-first birthday.' Whether the petitioners failed to enroll before the deadline because of inadvertence, because of lack of interest in the essentially local 1971 general election, or for other reasons is not clear, since none of them advances any explanation for this failure to enroll.
5
Although the June primary election has been completed and the petitioners will be eligible to vote in the next scheduled New York primary, this case is not moot, since the question the petitioners raise is "capable of repetition, yet evading review." Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998, 31 L.Ed.2d 274 (1972); 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).
6
Not only would the petitioners have been eligible for the 1972 primary, but, since they were eligible in 1971 for special enrollment under § 187, they could have, if they had timely registered and enrolled, participated in the September 14, 1971, primary.
7
The District Court held that the petitioners' failure to enroll before the cutoff date was not truly voluntary, because it was not done with sufficient awareness of the relevant circumstances and likely consequences. But this argument could well be made any time a State imposes a time limitation or cutoff point for registration or enrollment. The petitioners do not claim that they were unaware of New York's deadline for enrollment.
8
The dissent states that '(t)he Court apparently views this statute as a mere 'time deadline' on petitioners' enrollment . . . that postpones through the next primary rather than denies altogether petitioners' voting and associational rights.' Post, at 766. And it argues that our decisions 'have never required a permanent ban on the exercise of voting and associational rights before a constitutional breach is incurred.' Post, at 766—767. But the dissent mischaracterizes our view of § 186. We do not uphold the statute on the ground that it is merely a prohibition on voting in one particular primary, rather than a permanent ban on voting. That is neither our point nor the effect of the law. The point is that the statute did not prohibit the petitioners from voting in any election, including the 1972 primary, had they chosen to meet the deadline established by the law.
9
The petitioners also argue that § 186 establishes a durational residence requirement unconstitutional under Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and violates the right to travel under Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Since the exemption in § 187 applies only to persons whose new residence is within the same county as their old residence, persons who arrive in New York State or move from one county to another after the cutoff date, and deposit their enrollment blank at that time, are barred by the delayed-enrollment scheme from voting in the next primary election. According to the petitioners, this constitutes an unconstitutional durational residence requirement and is violative of the 1970 amendments to the Voting Rights Act of 1965, 84 Stat. 316, 42 U.S.C. § 1973aa—1.
The petitioners, however, lack standing to raise these contentions. They make no claim that they are recently arrived residents of the State or that they have moved from one county to another nor even that they have changed their residence at all within the period relevant here. The petitioners cannot represent a class to which they do not belong.
10
The petitioners contend that New York already has less drastic means to prevent raiding—means that would accomplish the State's goal yet would permit the registrant who inadvertently failed to enroll in time to vote in the primary. Specifically, the petitioners point to § 332 of the State's Election Law, which provides that the party enrollment of any voter may be challenged by any party member and, upon the determination by the chairman of the party's county committee that the voter is not in sympathy with the principles of the party, may be canceled by a justice of the State Supreme Court after a hearing. That section, however, is clearly too cumbersome to have any real deterrent effect on raiding in a primary. Every challenge to a would-be raider requires a full administrative and judicial inquiry; proof that the challenge voter is not in sympathy with the party's principles demands inquiry into the voter's mind; and even if the challenge is successful, it strikes from the enrollment books only one name at a time. In the face of large-scale raiding, § 332 alone would be virtually ineffectual. We agree with the Court of Appeals that '(i)n requiring that the state use to a proper end the means designed to impinge minimally upon fundamental rights, the Constitution does not require that the state choose ineffectual means.' 458 F.2d, at 654.
1
October 2, 1971, was the last day on which petitioners' enrollment could have been effective. June 20, 1972, was the date of New York's presidential primary. Thus, the deadline was actually some eight and one-half months before the primary. In nonpresidential years, the cutoff runs from early October until the following September.
2
Ante, at 760.
3
The State does not dispute this point. See Tr. of Oral Arg. 34.
Massachusetts, Illinois, New Jersey, Texas, and Ohio permit previously unaffiliated voters to declare their initial party affiliation immediately prior to voting in the primary of their choice. See Mass.Gen.Laws Ann., c. 53, §§ 37, 38 (Supp.1973); Ill.Rev.Stat. c. 46, §§ 5—30, 7—43, 7—45 (1971); N.J.Stat.Ann. § 19:23—45 (1964); Tex.Election Code, Art. 13.01a (Supp.1972—1973), V.A.T.S.; Ohio Rev.Code Ann. § 3513.19 (1960).
California and Pennsylvania permit previously unaffiliated voters to declare an initial party preference up to the close of registration immediately preceding the primary. Calif.Elections Code §§ 22, 203, 311—312 (1961) (registration closes in California 53 days before a primary); Pa.Stat.Ann., Tit. 25, §§ 623—17, 951 16 (1963 and Supp.1972—1973) (registration closes in Pennsylvania 50 days before a primary).
Michigan permits any registered voter to participate in the primary of his choice. Mich.Comp.Laws §§ 168.570, 168.575 to 168.576, Mich.Stat.Ann. §§ 6.1570, 6.1575—6.1576 (1972). See Brief for Petitioners 32—33.
4
Tr. of Oral Arg. 34.
5
Ante, at 757, 758. See also ante, at 1252 where the Court refers to § 186 as merely imposing 'a legitimate time limitation on their (petitioners') enrollment, which they chose to disregard.'
6
See ante, at 757:
'Section 186 of New York's Election Law, however, is quite different. It did not absolutely disenfranchise the class to which the petitioners belong—newly registered voters who were eligible to enroll in a party before the previous general election. Rather, the statute merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary.'
Similarly at 758:
'For the same reason, we reject the petitioners' argument that § 186 violated their First and Fourteenth Amendment right of free association with the political party of their choice. Since they could have enrolled in a party
in time to participate in the June 1972 primary, § 186 did not constitute a ban on their freedom of association, but merely a time limitation on when they had to act in order to participate in their chosen party's next primary.'
And at 762:
'New York did not prohibit the petitioners from voting in the 1972 primary election or from associating with the political party of their choice. It merely imposed a legitimate time limitation on their enrollment, which they chose to disregard.'
In all these instances, the majority seeks to distinguish a 'time limitation' from an absolute disenfranchisement of petitioners or an absolute ban on their associational rights.
7
Tr. of Oral Arg. 35.
8
Ante, at 757 and n. 6, supra.
9
Ante, at 760.
10
Ante, at 762.
11
Tr. of Oral Arg. 29.
12
Ante, at 761.
13
Petitioners also suggest other 'less drastic' means of protecting the State's interest: greater reliance on the summary disenrollment procedures of § 332 of the State's election law and loyalty oaths, restrictive party affiliation rules optional for those parties who wish them, limitation of the statute's operation to persons with pre-existing party affiliations, and criminal sanctions for fraudulent participation in the electoral process. Tr. of Oral Arg. 13—21. I make no judgment either on the efficacy of these alternatives in protecting the State's interest or on their potential infringement of constitutionally protected rights. Their presence, however, points to the range and variety of other experimental techniques available for New York to consider.
| 12
|
411 U.S. 1
93 S.Ct. 1278
36 L.Ed.2d 16
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT et al., Appellants,v.Demetrio P. RODRIGUEZ et al.
No. 71—1332.
Argued Oct. 12, 1972.
Decided March 21, 1973.
Rehearing Denied April 23, 1973.
See 411 U.S. 959, 93 S.Ct. 1919.
Syllabus
The financing of public elementary and secondary schools in Texas is a product of state and local participation. Almost half of the revenues are derived from a largely state-funded program designed to provide a basic minimum educational offering in every school. Each district supplements state aid through an ad valorem tax on property within its jurisdiction. Appellees brought this class action on behalf of schoolchildren said to be members of poor families who reside in school districts having a low property tax base, making the claim that the Texas system's reliance on local property taxation favors the more affluent and violates equal protection requirements because of substantial interdistrict disparities in per-pupil expenditures resulting primarily from differences in the value of assessable property among the districts. The District Court, finding that wealth is a 'suspect' classification and that education is a 'fundamental' right, concluded that the system could be upheld only upon a showing, which appellants failed to make, that there was a compelling state interest for the system. The court also concluded that appellants failed even to demonstrate a reasonable or rational basis for the State's system. Held:
1. This is not a proper case in which to examine a State's laws under standards of strict judicial scrutiny, since that test is reserved for cases involving laws that operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. Pp. 18—44.
(a) The Texas system does not disadvantage any suspect class. It has not been shown to discriminate against any definable class of 'poor' people or to occasion discriminations depending on the relative wealth of the families in any district. And, insofar as the financing system disadvantages those who, disregarding their individual income characteristics, reside in comparatively poor school districts, the resulting class cannot be said to be suspect. Pp. 18—28.
(b) Nor does the Texas school-financing system impermissibly interfere with the exercise of a 'fundamental' right or liberty. Though education is one of the most important services performed by the State, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution. Even if some identifiable quantum of education is arguably entitled to constitutional protection to make meaningful the exercise of other constitutional rights, here there is no showing that the Texas system fails to provide the basic minimal skills necessary for that purpose. Pp. 29—39.
(c) Moreover, this is an inappropriate case in which to invoke strict scrutiny since it involves the most delicate and difficult questions of local taxation, fiscal planning, educational policy, and federalism, considerations counseling a more restrained form of review. Pp. 40—44.
2. The Texas system does not violate the Equal Protection Clause of the Fourteenth Amendment. Though concededly imperfect, the system bears a rational relationship to a legitimate state purpose. While assuring a basic education for every child in the State, it permits and encourages participation in and significant control of each district's schools at the local level. Pp. 44—53.
D.C., 337 F.Supp. 280, reversed.
Charles Alan Wright, Austin, Tex., for appellants.
Arthur Gochman, San Antonio, Tex., for appellees.
[Amicus Curiae Information from pages 3-5 intentionally omitted]
Mr. Justice POWELL delivered the opinion of the Court.
1
This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas.1 They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. Named as defendants2 were the State Board of Education, the Commissioner of Education, the State Attorney General, and the Bexar County (San Antonio) Board of Trustees. The complaint was filed in the summer of 1968 and a three-judge court was impaneled in January 1969.3 In December 19714 the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.5 The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. 406 U.S. 966, 92 S.Ct. 2413, 32 L.Ed.2d 665 (1972). For the reasons stated in this opinion, we reverse the decision of the District Court.
2
* The first Texas State Constitution, promulgated upon Texas' entry into the Union in 1845, provided for the establishment of a system of free schools.6 Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. As early as 1883, the state constitution was amended to provide for the creation of local school districts empowered to levy ad valorem taxes with the consent of local taxpayers for the 'erection . . . of school buildings' and for the 'further maintenance of public free schools.'7 Such local funds as were raised were supplemented by funds distributed to each district from the State's Permanent and Available School Funds.8 The Permanent School Fund, its predecessor established in 1854 with $2,000,000 realized from an annexation settlement,9 was thereafter endowed with millions of acres of public land set aside to assure a continued source of income for school support.10 The Available School Fund, which received income from the Permanent School Fund as well as from a state ad valorem property tax and other designated taxes,11 served as the disbursing arm for most state educational funds throughout the late 1800's and first half of this century. Additionally, in 1918 an increase in state property taxes was used to finance a program providing free textbooks throughout the State.12
3
Until recent times, Texas was a predominantly rural State and its population and property wealth were spread relatively evenly across the State.13 Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced.14 The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.15
4
In due time it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities.16 Prior to 1939, the Available School Fund contributed money to every school district at a rate of $17.50 per school-age child.17 Although the amount was increased several times in the early 1940's,18 the Fund was providing only $46 per student by 1945.19
5
Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas' changing educational requirements, the state legislature in the late 1940's undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome interdistrict disparities in taxable resources. The Committee's efforts led to the passage of the Gilmer-Aikin bills, named for the Committee's co-chairmen, establishing the Texas Minimum Foundation School Program20. Today, this Program accounts for approximately half of the total educational expenditures in Texas.21
6
The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible—as a unit—for providing the remaining 20%. The districts' share, known as the Local Fund Assignment, is apportioned among the school districts under a formula designed to reflect each district's relative taxpaying ability. The Assignment is first divided among Texas' 254 counties pursuant to a complicated economic index that takes into account the relative value of each county's contribution to the State's total income from manufacturing, mining, and agricultural activities. It also considers each county's relative share of all payrolls paid within the State and, to a lesser extent, considers each county's share of all property in the State.22 Each county's assignment is then divided among its school districts on the basis of each district's share of assessable property within the county.23 The district, in turn, finances its share of the Assignment out of revenues from local property taxation.
7
The design of this complex system was twofold. First, it was an attempt to assure that the Foundation Program would have an equalizing influence on expenditure levels between school districts by placing the heaviest burden on the school districts most capable of paying. Second, the Program's architects sought to establish a Local Fund Assignment that would force every school district to contribute to the education of its children24 but that would not by itself exhaust any district's resources.25 Today every school district does impose a property tax from which it derives locally expendable funds in excess of the amount necessary to satisfy its Local Fund Assignment under the Foundation Program.
8
In the years since this program went into operation in 1949, expenditures for education—from state as well as local sources have increased steadily. Between 1949 and 1967, expenditures increased approximately 500%.26 In the last decade alone the total public school budget rose from $750 million to.$2.1 billion27 and these increases have been reflected in consistently rising perpupil expenditures throughout the State.28 Teacher salaries, by far the largest item in any school's budget, have increased dramatically—the state-supported minimum salary for teachers possessing college degrees has risen from $2,400 to $6,000 over the last 20 years.29
9
The school district in which appellees reside, the Edgewood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State's impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan are enrolled in its 25 elementary and secondary schools. The district is are enrolled in its 25 elementary situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960—the lowest in the metropolitan area—and the median family income ($4,686) is also the lowest.30 At an equalized tax rate of $1.05 per $100 of assessed property the highest in the metropolitan area—the district contributed $26 to the education of each child for the 1967—1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248.31 Federal funds added another $108 for a total of $356 per pupil.32
10
Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly 'Anglo,' having only 18% Mexican-Americans and less than 1% Negroes. The assessed property value per pupil exceeds $49,000,33 and the median family income is $8,001. In 1967—1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil.
11
Although the 1967—1968 school year figures provide the only complete statistical breakdown for each category of aid,34 more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970—1971 school year, the Foundation School Program allotment for Edgewood was $356 per pupil, a 62% increase over the 1967—68 school year. Indeed, state aid alone in 1970—1971 equaled Edgewood's entire 1967—1968 school budget from local, state, and federal sources. Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970—1971.35 These recent figures also reveal the extent to which these two districts' allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant.36 It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each.37
12
Despite these recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State38 still exist. And it was these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas' dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. 337 F.Supp., at 282. Finding that wealth is a 'suspect' classification and that education is a 'fundamental' interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling state interest. Id., at 282—284. On this issue the court concluded that '(n)ot only are defendants unable to demonstrate compelling state interests . . . they fail even to establish a reasonable basis for these classifications.' Id., at 284.
13
Texas virtually concedes that its historically rooted dual system of financing education could not withstanding the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights39 or that involve suspect classifications.40 If, as previous decisions have indicated, strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a 'heavy burden of justification,' that the State must demonstrate that its educational system has been structured with 'precision,' and is 'tailored' narrowly to serve legitimate objectives and that it has selected the 'less drastic means' for effectuating its objectives,41 the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that '(n)o one familiar with the Texas system would contend that it has yet achieved perfection.'42 Apart from its concession that educational financing in Texas has 'defects'43 and 'imperfections,'44 the State defends the system's rationality with vigor and disputes the District Court's finding that it lacks a 'reasonable basis.'
14
This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.
II
15
The District Court's opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees' challenge to Texas' system of school financing. In concluding that strict judicial scrutiny was required, that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes,45 and on cases disapproving wealth restrictions on the right to vote.46 Those cases, the District Court concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education,47 that there is a fundamental right to education and that, absent some compelling state justification, the Texas system could not stand.
16
We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect-classification not the fundamental-interest analysis persuasive.
A.
17
The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school-financing laws in other States,48 is quite unlike any of the forms of wealth discrimination heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference for purposes of consideration under the Constitution that the class of disadvantaged 'poor' cannot be identified or defined in customary equal protection terms, and whether the relative—rather than absolute—nature of the asserted deprivation is of significant consequence. Before a State's laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below.
18
The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court's opinion and of appellees' complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating (1) against 'poor' persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally 'indigent,'49 or (2) against those who are relatively poorer than others,50 or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts.51 Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect.
19
The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and its progeny,52 the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some 'adequate substitute' for a full stenographic transcript. Britt v. North Carolina, 404 U.S. 226, 228, 92 S.Ct. 431, 434, 30 L.Ed.2d 400 (1971); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington State Board of Prisons, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958).
20
Likewise, in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), a decision establishing an indigent defendant's right to court-appointed counsel on direct appeal, the Court dealt only with defendants who could not pay for counsel from their own resources and who had no other way of gaining representation. Douglas provides no relief for those on whom the burdens of paying for a criminal defense are relatively speaking, great but not insurmountable. Nor does it deal with relative differences in the quality of counsel acquired by the less wealthy.
21
Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), struck down criminal penalties that subjected indigents to incarceration simply because of their inability to pay a fine. Again, the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum. Those cases do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.
22
Finally, in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the Court invalidated the Texas filing-fee requirement for primary elections. Both of the relevant classifying facts found in the previous cases were present there. The size of the fee, often running into the thousands of dollars and, in at least one case, as high as $8,900, effectively barred all potential candidates who were unable to pay the required fee. As the system provided 'no reasonable alternative means of access to the ballot' (id., at 149, 92 S.Ct. at 859), inability to pay occasioned an absolute denial of a position on the primary ballot.
23
Only appellees' first possible basis for describing the class disadvantaged by the Texas school-financing system—discrimination against a class of definably 'poor' persons—might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the 'poor,' appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that '(i)t is clearly incorrect . . . to contend that the 'poor' live in 'poor' districts . . .. Thus, the major factual assumption of Serrano—that the educational financing system discriminates against the 'poor'—is simply false in Connecticut.'53 Defining 'poor' families as those below the Bureau of the Census 'poverty level,'54 the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas—those same areas that provide the most attractive sources of property tax income for school districts.55 Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people—defined by reference to any level of absolute impecunity—are concentrated in the poorest districts.
24
Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money expended for it,56 a sufficient answer to appellees' argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.57 Nor indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an 'adequate' education for all children in the State. By providing 12 years of free public-school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to 'guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by 'A Minimum Foundation Program of Education."58 The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire and that it now assures 'every child in every school district an adequate education.'59 No proof was offered at trial persuasively discrediting or refuting the State's assertion.
25
For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of 'poor' people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms.60
26
As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family the lower the dollar amount of education received by the family's children.
27
The principal evidence adduced in support of this comparative-discrimination claim is an affidavit submitted by Professor Joele S. Berke of Syracuse University's Educational Finance Policy Institute. The District Court, relying in major part upon this affidavit and apparently accepting the substance of appellees' theory, noted, first, a positive correlation between the wealth of school districts, measured in terms of assessable property per pupil, and their levels of per-pupil expenditures. Second, the court found a similar correlation between district wealth and the personal wealth of its residents, measured in terms of median family income. 337 F.Supp., at 282 n. 3.
28
If, in fact, these correlations could be sustained, then it might be argued that expenditures on education—equated by appellees to the quality of education—are dependent on personal wealth. Appellees' comparative-discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation61 is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor,62 and whether a class of this size and diversity could ever claim the special protection accorded 'suspect' classes. These questions need not be addressed in this case, however, since appellees' proof fails to support their allegations or the District Court's conclusions.
29
Professor Berke's affidavit is based on a survey of approximately 10% of the school districts in Texas. His findings, previously set out in the margin,63 show only that the wealthiest few districts in the sample have the highest median family incomes and spend the most on education, and that the several poorest districts have the lowest family incomes and devote the least amount of money to education. For the remainder of the districts—96 districts composing almost 90% of the sample the correlation is inverted, i.e., the districts that spend next to the most money on education are populated by families having next to the lowest median family incomes while the districts spending the least have the highest median family incomes. It is evident that, even if the conceptual questions were answered favorably to appellees, no factual basis exists upon which to found a claim of comparative wealth discrimination.64
30
This brings us, then, to the third way in which the classification scheme might be defined—district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to to bottom, the disadvantaged class might be viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education.65 Alternatively, as suggested in Mr. Justice MARSHALL's dissenting opinion, post, at 96, the class might be defined more restrictively to include children in districts with assessable property which falls below the statewide average, or median, or below some other artificially defined level.
31
However described, it is clear that appellees' suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.66 The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.
32
We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention.67 They also assert that the State's system impermissibly interferes with the exercise of a 'fundamental' right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. Graham v. Richardson, 403 U.S. 365, 375—376, 91 S.Ct. 1848, 1853—1854, 29 L.Ed.2d 534 (1971); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). It is this question—whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years.68
B
33
In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), a unanimous Court recognized that 'education is perhaps the most important function of state and local governments.' Id., at 493, 74 S.Ct., at 691. What was said there in the context of racial discrimination has lost none of its vitality with the passage of time:
34
'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. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.' Ibid.
35
This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 234 (Burger, C.J.), 237, 238—239, 92 S.Ct. 1544 1545 (White, J.), (1972); Abington School Dist. v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963) (Brennan, J.); People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948) (Frankfurter, J.); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U.S. 79, 28 S.Ct. 26, 52 L.Ed. 111 (1907).
36
Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that 'the grave significance of education both to the individual and to our society' cannot be doubted.69 But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice Harlan, dissenting from the Court's application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that '(v)irtually every state statute affects important rights.' Shapiro v. Thompson, 394 U.S., at 655, 661, 89 S.Ct., at 1342, 1345. In his view, if the degree of judicial scrutiny of state legislation fluctuated, depending on a majority's view of the importance of the interest affected, we would have gone 'far toward making this Court a 'super-legislature." Ibid. We would, indeed, then be assuming a legislative role and one for which the Court lacks both authority and competence. But Mr. Justice Stewart's response in Shapiro to Mr. Justice Harlan's concern correctly articulates the limits of the fundamental-rights rationale employed in the Court's equal protection decisions:
37
'The Court today does not 'pick out particular human activities, characterize them as 'fundamental,' and give them added protection . . ..' To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands.' Id., at 642, 89 S.Ct., at 1335. (Emphasis in original.)
38
Mr. Justice Stewart's statement serves to underline what the opinion of the Court in Shapiro makes clear. In subjecting to strict judicial scrutiny state welfare eligibility statutes that imposed a one-year durational residency requirement as a precondition to receiving AFDC benefits, the Court explained:
39
'(I)n moving from State to State . . . appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.' Id., at 634, 89 S.Ct., at 1331. (Emphasis in original.) The right to interstate travel had long been recognized as a right of constitutional significance,70 and the Court's decision, therefore, did not require an ad hoc determination as to the social or economic importance of that right.71
40
Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), decided only last Term, firmly reiterates that social importance is not the critical determinant for subjecting state legislation to strict scrutiny. The complainants in that case, involving a challenge to the procedural limitations imposed on tenants in suits brought by landlords under Oregon's Forcible Entry and Wrongful Detainer Law, urged the Court to examine the operation of the statute under 'a more stringent standard than mere rationality.' Id., at 73, 92 S.Ct., at 874. The tenants argued that the statutory limitations implicated 'fundamental interests which are particularly important to the poor,' such as the "need for decent shelter" and the "right to retain peaceful possession of one's home." Ibid. Mr. Justice White's analysis, in his opinion for the Court is instructive:
41
'We do not denigrate the importance of decent, safe and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of rent . . .. Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions.' Id., at 74, 92 S.Ct., at 874. (Emphasis supplied.)
42
Similarly, in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the Court's explicit recognition of the fact that the 'administration of public welfare assistance . . . involves the most basic economic needs of impoverished human beings,' id., at 485, 90 S.Ct., at 1162,72 provided no basis for departing from the settled mode of constitutional analysis of legislative classifications involving questions of economic and social policy. As in the case of housing, the central importance of welfare benefits to the poor was not an adequate foundation for requiring the State to justify its law by showing some compelling state interest. See also Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).
43
The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is 'fundamental' is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972);73 Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972);74 Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972);75 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).76
44
Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State's social and economic legislation. It is appellees' contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The 'marketplace of ideas' is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information77 becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge.
45
A similar line of reasoning is pursued with respect to the right to vote.78 Exercise of the franchise, it is contended, cannot be divorced from the educational foundation of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed.
46
We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual's rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted.79 These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial instrusion into otherwise legitimate state activities.
47
Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expendi tures in Texas provide an education that falls short. Whatever merit appellees' argument might have if a State's financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.
48
Furthermore, the logical limitations on appellees' nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment.80 If so, appellees' thesis would cast serious doubt on the authority of Dandridge v. Williams, supra and Lindsey v. Normer, supra.
49
We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty and have found those arguments unpersuasive. In one further respect we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which 'deprived,' 'infringed,' or 'interfered' with the free exercise of some such fundamental personal right or liberty. See Skinner v. Oklahoma, ex rel. Williamson, supra, 316 U.S. at 536, 62 S.Ct. at 1111; Shapiro v. Thompson, supra, 394 U.S. at 634, 89 S.Ct. at 1331; Dunn v. Blumstein, supra, 405 U.S. at 338—343, 92 S.Ct. at 1001—1004. A critical distinction between those cases and the one now before us lies in what Texas is endeavoring to do with respect to education. Mr. Justice Brennan, writing for the Court in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), expresses well the salient point:81
50
'This is not a complaint that Congress . . . has unconstitutionally denied or diluted anyone's right to vote but rather that Congress violated the Constitution by not extending the relief effected (to others similarly situated) . . ..
51
'(The federal law in question) does not restrict or deny the franchise but in effect extends the franchise to persons who otherwise would be denied it by state law. . . . We need only decide whether the challenged limitation on the relief effected . .. was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights . . . is inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did,' . . . that a legislature need not 'strike at all evils at the same time,' . . . and that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind . . .." Id., at 656—657, 86 S.Ct., at 1727. (Emphasis in original.)
52
The Texas system of school financing is not unlike the federal legislation involved in Katzenbach in this regard. Every step leading to the establishment of the system Texas utilizes today—including the decisions permitting localities to tax and expend locally, and creating and continuously expanding the state aid—was implemented in an effort to extend public education and to improve its quality.82 Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State's efforts and to the rights reserved to the States under the Constitution.83
C
53
It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights.
54
We need not rest our decision, however, solely on the inappropriateness of the strict-scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State's system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing lass than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures.84 This Court has often admonished against such interferences with the State's fiscal policies under the Equal Protection Clause:
55
'The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. . . . (T)he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. . . . It has . . . been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. . . .' Madden v. Kentucky, 309 U.S. 83, 87—88, 60 S.Ct. 406, 408, 84 L.Ed. 590 (1940).
56
See also Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 445, 61 S.Ct. 246, 250, 85 L.Ed. 267 (1940).
57
Thus, we stand on familiar grounds when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet, we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.85
58
In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of 'intractable economic, social, and even philosophical problems.' Dandridge v. Williams, 397 U.S., at 487, 90 S.Ct. at 1163. The very complexity of the problems of financing and managing a statewide public school system suggests that 'there will be more than one constitutionally permissible method of solving them,' and that, within the limits of rationality, 'the legislature's efforts to tackle the problems' should be entitled to respect. Jefferson v. Hackney, 406 U.S., at 546—547, 92 S.Ct., at 1731. On even the most basic questions in this area the scholars and educational experts are divided. Indeed, one of the major sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education86—an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case. Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education.87 And the question regarding the most effective relationship between state boards of education and local school boards, in terms of their respective responsibilities and degrees of control, is now undergoing searching re-examination. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.
59
It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While '(t)he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,'88 it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State.
60
The foregoing considerations buttress our conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheles bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention.
III
61
The basic contours of the Texas school finance system have been traced at the outset of this opinion. We will now describe in more detail that system and how it operates, as these facts bear directly upon the demands of the Equal Protection Clause.
62
Apart from federal assistance, each Texas school receives its funds from the State and from its local school district. On a statewide average, a roughly comparable amount of funds is derived from each source.89 The State's contribution, under the Minimum Foundation Program, was designed to provide an adequate minimum educational offering in every school in the State. Funds are distributed to assure that there will be one teacher—compensated at the statesupported minimum salary—for every 25 students.90 Each school district's other supportive personnel are provided for: one principal for every 30 teachers;91 one 'special service' teacher—librarian, nurse, doctor, etc.—for every 20 teachers;92 superintendents, vocational instructors, counselors, and educators for exceptional children are also provided.93 Additional funds are earmarked for current operating expenses, for student transportation,94 and for free textbooks.95
63
The program is administered by the State Board of Education and by the Central Education Agency, which also have responsibility for school accreditation96 and for monitoring the statutory teacher-qualification standards.97 As reflected by the 62% increase in funds allotted to the Edgewood School District over the last three years,98 the State's financial contribution to education is steadily increasing. None of Texas' school districts, however, has been content to rely alone on funds from the Foundation Program.
64
By virtue of the obligation to fulfill its Local Fund Assignment, every district must impose an ad valorem tax on property located within its borders. The Fund Assignment was designed to remain sufficiently low to assure that each district would have some ability to provide a more enriched educational program.99 Every district supplements its Foundation grant in this manner. In some districts, the local property tax contribution is insubstantial, as in Edgewood where the supplement was only $26 per pupil in 1967. In other districts, the local share may far exceed even the total Foundation grant. In part, local differences are attributable to differences in the rates of taxation or in the degree to which the market value for any category of property varies from its assessed value.100 The greatest interdistrict disparities, however, are attributable to differences in the amount of assessable property available within any district. Those districts that have more property, or more valuable property, have a greater capability for supplementing state funds. In large measure, these additional local revenues are devoted to paying higher salaries to more teachers. Therefore, the primary distinguishing attributes of schools in property-affluent districts are lower pupil-teacher ratios and higher salary schedules.101
65
This, then, is the basic outline of the Texas school financing structure. Because of differences in expenditure levels occasioned by disparities in property tax income, appellees claim that children in less affluent districts have been made the subject of invidious discrimination. The District Court found that the State had failed even 'to establish a reasonable basis' for a system that results in different levels of per-pupil expenditure. 337 F.Supp., at 284. We disagree.
66
In its reliance on state as well as local resources, the Texas system is comparable to the systems employed in virtually every other State.102 The power to tax local property for educational purposes has been recognized in Texas at least since 1883.103 When the growth of commercial and industrial centers and accompanying shifts in population began to create disparities in local resources, Texas undertook a program calling for a considerable investment of state funds.
67
The 'foundation grant' theory upon which Texas legislators and educators based the Gilmer-Aikin bills, was a product of the pioneering work of two New York educational reformers in the 1920's, George D. Strayer and Robert M. Haig.104 Their efforts were devoted to establishing a means of guaranteeing a minimum statewide educational program without sacrificing the vital element of local participation. The Strayer-Haig thesis represented an accommodation between these two competing forces. As articulated by Professor Coleman:
68
'The history of education since the industrial revolution shows a continual struggle between two forces: the desire by members of society to have educational opportunity for all children, and the desire of each family to provide the best education it can afford for its own children.'105
69
The Texas system of school finance is responsive to these two forces. While assuring a basis education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The merit of local control was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Mr. Justice Stewart stated there that '(d)irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society.' Id., at 469, 92 S.Ct., at 2206. The Chief Justice, in his dissent, agreed that '(l)ocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well.' Id., at 478, 92 S.Ct., at 2211.
70
The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity it offers for participation in the decisionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate. Mr. Justice Brandeis identified as one of the peculiar strengths of our form of government each State's freedom to 'serve as a laboratory; and try novel social and economic experiments.'106 No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education.
71
Appellees do not question the propriety of Texas' dedication to local control of education. To the contrary, they attack the school-financing system precisely because, in their view, it does not provide the same level of local control and fiscal flexibility in all districts. Appellees suggest that local control could be preserved and promoted under other financing systems that resulted in more equality in education expenditures. While it is no doubt true that reliance on local property taxation for school revenues provides less freedom of choice with respect to expenditures for some districts than for others,107 the existence of 'some inequality' in the manner in which the State's rationale is achieved is not alone a sufficient basis for striking down the entire system. McGowan v. Maryland, 366 U.S. 420, 425—426, 81 S.Ct. 1101, 1104—1105, 6 L.Ed.2d 393 (1961). It may not be condemned simply because it imperfectly effectuates the State's goals. Dandridge v. Williams, 397 U.S., at 485, 90 S.Ct. at 1161. Nor must the financing system fail because, as appellees suggest, other methods of satisfying the State's interest, which occasion 'less drastic' disparities in expenditures, might be conceived. Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative. Cf. Dunn v. Blumstein, 405 U.S., at 343, 92 S.Ct. at 1003; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain under the present system a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools.108 The people of Texas may be justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe that along with increased control of the purse strings at the state level will go increased control over local policies.109
72
Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on 'happenstance.' They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of local taxation—indeed the very existence of identifiable local governmental units—requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others.110 Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions—public and private.
73
Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education then it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions. It has simply never been within the constitutional prerogative of this Court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live.
74
In sum, to the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. Texas has acknowledged its shortcomings and has persistently endeavored—not without some success—to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and in major part is the product of responsible studies by qualified people. In giving substance to the presumption of validity to which the Texas system is entitled, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911), it is important to remember that at every stage of its development it has constituted a 'rough accommodation' of interests in an effort to arrive at practical and workable solutions. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69—70, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913). One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973). We hold that the Texas plan abundantly satisfies this standard.
IV
75
In light of the considerable attention that has focused on the District Court opinion in this case and on its California predecessor, Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971), a cautionary postscript seems appropriate. It cannot be questioned that the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education. Some commentators have concluded that, whatever the contours of the alternative financing programs that might be devised and approved, the result could not avoid being a beneficial one. But, just as there is nothing simple about the constitutional issues involved in these cases, there is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education. Those who have devoted the most thoughtful attention to the practical ramifications of these cases have found no clear or dependable answers and their scholarship reflects no such unqualified confidence in the desirability of completely uprooting the existing system.
76
The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in over-burdened core-city school districts would be benefited by abrogation of traditional modes of financing education. Unless there is to be a substantial increase in state expenditures on education across the board—an event the likelihood of which is open to considerable question111—these groups stand to realize gains in terms of increased per-pupil expenditures only if they reside in districts that presently spend at relatively low levels, i.e., in those districts that would benefit from the redistribution of existing resources. Yet, recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts.112 Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts.113 Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers,114 a result that would exacerbate rather than ameliorate existing conditions in those areas.
77
These practical considerations, of course, play no role in the adjudication of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional limitations on this Court's function. The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democractic pressures of those who elect them.
78
Reversed.
79
Mr. Justice STEWART, concurring.
80
The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust.1 It does not follow, however, and I cannot find, that this system violates the Constitution of the United States. I join the opinion and judgment of the Court because I am convinced that any other course would mark an extraordinary departure from principled adjudication under the Equal Protection Clause of the Fourteenth Amendment. The unchartered directions of such a departure are suggested, I think, by the imaginative dissenting opinion my Brother MARSHALL has filed today.
81
Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties.2 The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws.
82
There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes.3 And with respect to such legislation, it has long been settled that the Equal Protection Clause is offended only by laws that are invidiously discriminatory—only by classifications that are wholly arbitrary or capricious. See, e.g., Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577. This settled principle of constitutional law was compendiously stated in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, 366 U.S. 420, 425—426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, in the following words:
83
'Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. 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.'
84
This doctrine is no more than a specific application of one of the first principles of constitutional adjudication—the basic presumption of the constitutional validity of a duly enacted state or federal law. See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129 (1893).
85
Under the Equal Protection Clause, this presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently 'suspect.' Because of the historic purpose of the Fourteenth Amendment, the prime example of such a 'suspect' classification is one that is based upon race. See, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222. But there are other classifications that, at least in some settings, are also 'suspect'—for example, those based upon national origin,4 alienage,5 indigency,6 or illegitimacy.7
86
Moreover, quite apart from the Equal Protection Clause, a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications. For example, a law that provided that newspapers could be published only by people who had resided in the State for five years could be superficially viewed as invidiously discriminating against an identifiable class in violation of the Equal Protection Clause. But, more basically, scuch a law would be invalid simply because it abridged the freedom of the press. Numerous cases in this Court illustrate this principle.8
87
In refusing to invalidate the Texas system of financing its public schools, the Court today applies with thoughtfulness and understanding the basic principles I have so sketchily summarized. First, as the Court points out, the Texas system has hardly created the kind of objectively identifiable classes that are cognizable under the Equal Protection Clause.9 Second, even assuming the existence of such discernible categories, the classifications are in no sense based upon constitutionally 'suspect' criteria. Third, the Texas system does not rest 'on grounds wholly irrelevant to the achievement of the State's objective.' Finally, the Texas system impinges upon no substantive constitutional rights or liberties. It follows, therefore, under the established principle reaffirmed in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, supra, that the judgment of the District Court must be reversed.
88
Mr. Justice BRENNAN, dissenting.
89
Although I agree with my Brother WHITE that the Texas statutory scheme is devoid of any rational basis, and for that reason is violative of the Equal Protection Clause, I also record my disagreement with the Court's rather distressing assertion that a right may be deemed 'fundamental' for the purposes of equal protection analysis only if it is 'explicitly or implicitly guaranteed by the Constitution.' Ante, at 33—34. As my Brother MARSHALL convincingly demonstrates, our prior cases stand for the proposition that 'fundamentality' is, in large measure, a function of the right's importance in terms of the effectuation of those rights which are in fact constitutionally guaranteed. Thus, '(a)s the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.' Post, at 102 103.
90
Here, there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment. See post, at 111—115. This being so, any classification affecting education must be subjected to strict judicial scrutiny, and since even the State concedes that the statutory scheme now before us cannot pass constitutional muster under this stricter standard of review, I can only conclude that the Texas school-financing scheme is constitutionally invalid.
91
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
92
The Texas public schools are financed through a combination of state funding, local property tax revenue, and some federal funds.1 Concededly, the system yields wide disparity in per-pupil revenue among the various districts. In a typical year, for example, the Alamo Heights district had total revenues of $594 per pupil, while the Edgewood district had only $356 per pupil.2 The majority and the State concede, as they must, the existence of major disparities in spendable funds. But the State contends that the disparities do not invidiously discriminate against children and families in districts such as Edgewood, because the Texas scheme is designed 'to provide an adequate education for all, with local autonomy to go beyond that as individual school districts desire and are able . . .. It leaves to the people of each district the choice whether to go beyond the minimum and, if so, by how much.'3 The majority advances this rationalization: 'While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level.'
93
I cannot disagree with the proposition that local control and local decisionmaking play an important part in our democratic system of government. Cf. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971). Much may be left to local option, and this case would be quite different if it were true that the Texas system, while insuring minimum educational expenditures in every district through state funding, extended a meaningful option to all local districts to increase their per-pupil expenditures and so to improve their children's education to the extent that increased funding would achieve that goal. The system would then arguably provide a rational and sensible method of achieving the stated aim of preserving an area for local initiative and decision.
94
The difficulty with the Texas system, however, is that it provides a meaningful option to Alamo Heights and like school districts but almost none to Edgewood and those other districts with a low per-pupil real estate tax base. In these latter districts, no matter how desirous parents are of supporting their schools with greater revenues, it is impossible to do so through the use of the real estate property tax. In these districts, the Texas system utterly fails to extend a realistic choice to parents because the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable. That this is the situation may be readily demonstrated.
95
Local school districts in Texas raise their portion of the Foundation School Program—the Local Fund Assignment—by levying ad valorem taxes on the property located within their boundaries. In addition, the districts are authorized, by the state constitution and by statute, to levy ad valorem property taxes in order to raise revenues to support educational spending over and above the expenditure of Foundation School Program funds.
96
Both the Edgewood and Alamo Heights districts are located in Bexar County, Texas. Student enrollment in Alamo Heights is 5,432, in Edgewood 22,862. The per-pupil market value of the taxable property in Alamo Heights is $49,078, in Edgewood $5,960. In a typical relevant year, Alamo Heights had a maintenance tax rate of $1.20 and a debt service (bond) tax rate of 20¢ per $100 assessed evaluation, while Edgewood had a maintenance rate of 52¢ and a bond rate of 67¢. These rates, when applied to the respective tax bases, yielded Alamo Heights $1,433,473 in maintenance dollars and $236,074 in bond dollars, and Edgewood $223,034 in maintenance dollars and $279,023 in bond dollars. As is readily apparent, because of the variance in tax bases between the districts, results, in terms of revenues, do not correlate with effort, in terms of tax rate. Thus, Alamo Heights, with a tax base approximately twice the size of Edgewood's base, realized approximately six times as many maintenance dollars as Edgewood by using a tax rate only approximately two and one-half times larger. Similarly, Alamo Heights realized slightly fewer bond dollars by using a bond tax rate less than one-third of that used by Edgewood.
97
Nor is Edgewood's revenue-raising potential only deficient when compared with Alamo Heights. North East District has taxable property with a per-pupil market value of approximately $31,000, but total taxable property approximately four and one-half times that of Edgewood. Applying a maintenance rate of $1, North East yielded $2,818,148. Thus, because of its superior tax base, North East was able to apply a tax rate slightly less than twice that applied by Edgewood and yield more than 10 times the maintenance dollars. Similarly, North East, with a bond rate of 45¢, yielded $1,249,159—more than four times Edgewood's yield with two-thirds the rate.
98
Plainly, were Alamo Heights or North East to apply the Edgewood tax rate to its tax base, it would yield far greater revenues than Edgewood is able to yield applying those same rates to its base. Conversely, were Edgewood to apply the Alamo Heights or North East rates to its base, the yield would be far smaller than the Alamo Heights or North East yields. The disparity is, therefore, currently operative and its impact on Edgewood is undeniably serious. It is evident from statistics in the record that show that, applying an equalized tax rate of 85¢ per $100 assessed valuation, Alamo Heights was able to provide approximately $330 per pupil in local revenues over and above the Local Fund Assignment. In Edgewood, on the other hand, with an equalized tax rate of $1.05 per $100 of assessed valuation, $26 per pupil was raised beyond the Local Fund Assignment.4 As previously noted in Alamo Heights, total per-pupil revenues from local, state, and federal funds was $594 per pupil, in Edgewood $356.5
99
In order to equal the highest yield in any other Bexar County district, Alamo Heights would be required to tax at the rate of 68 per $100 of assessed valuation. Edgewood would be required to tax at the prohibitive rate of $5.76 per $100. But state law places a $1.50 per $100 ceiling on the maintenance tax rate, a limit that would surely be reached long before Edgewood attained an equal yield. Edgewood is thus precluded in law, as well as in fact, from achieving a yield even close to that of some other districts.
100
The Equal Protection Clause permits discriminations between classes but requires that the classification bear some rational relationship to a permissible object sought to be attained by the statute. It is not enough that the Taxas system before us seeks to achieve the valid, rational purpose of maximizing local initiative; the means chosen by the State must also be rationally ralated to the end sought to be achieved. As the Court stated just lat Term in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972):
101
'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 & Santa Fe Ry. 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).' Neither Taxas nor the majority heeds this rule. If the State aims at maximizing local initiative and local choice, by permitting school districts to resort to the real property tax if they choose to do so, it utterly fails in achieving its purpose in districts with property tax bases so low that there is little if any opportunity for interested parents, rich or poor, to augment school district revenues. Requiring the State to establish only that unequal treatment is in furtherance of a permissible goal, without also requiring the State to show that the means chosen to effectuate that goal are rationally related to its achievement, makes equal protection analysis no more than an empty gesture.6 In my view, the parents and children in Edgewood, and in like districts, suffer from an invidious discrimination violative of the Equal Protection Clause.
102
This does not, of course, mean that local control may not be a legitimate goal of a school-financing system. Nor does it mean that the State must guarantee each district an equal per-pupil revenue from the state school-financing system. Nor does it mean, as the majority appears to believe, that, by affirming the decision below, this Court would be 'imposing on the States inflexible constitutionl restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.' On the contrary, it would merely mean that the State must fashion a financing scheme which provides a rational basis for the maximization of local control, if local control is to remain a goal of the system, and not a scheme with 'different treatment be(ing) accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.' Reed v. Reed, 404 U.S. 71, 75—76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).
103
Perhaps the majority believes that the major disparity in revenues provided and permitted by the Texas system is inconsequential. I cannot agree, however, that the difference of the magnitude appearing in this case can sensibly be ignored, particularly since the State itself considers it so important to provide opportunities to exceed the minimum state educational expenditures.
104
There is no difficulty in identifying the class that is subject to the alleged discrimination and that is entitled to the benefits of the Equal Protection Clause. I need go no further than the parents and children in the Edgewood district, who are plaintiffs here and who assert that they are entitled to the same choice as Alamo Heights to augment local expenditures for schools but are denied that choice by state law. This group constitutes a class sufficiently definite to invoke the protection of the Constitution. They are as entitled to the protection of the Equal Protection Clause as were the voters in allegedly underrepresented counties in the reapportionment cases. See, e.g., Baker v. Carr, 369 U.S. 186, 204—208, 82 S.Ct. 691, 703—705, 7 L.Ed.2d 663 (1962); Gray v. Sanders, 372 U.S. 368, 375, 83 S.Ct. 801, 805, 9 L.Ed.2d 821 (1963); Reynolds v. Sims, 377 U.S. 533, 554—556, 84 S.Ct. 1362, 1377—1379, 12 L.Ed. 506 (1964). And in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), where a challenge to the Texas candidate filing fee on equal protection grounds was upheld, we noted that the victims of alleged discrimination wrought by the filing fee '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,' but concluded that '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.' Id., at 144, 92 S.Ct., at 856. Similarly, in the present case we would blink reality to ignore the fact that school districts, and students in the end, are differentially affected by the Texas school-financing scheme with respect to their capability to supplement the Minimum Foundation School Program. At the very least, the law discriminates against those children and their parents who live in districts where the per-pupil tax base is sufficiently low to make impossible the provision of comparable school revenues by resort to the real property tax which is the only device the State extends for this purpose.
105
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS concurs, dissenting.
106
The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority's decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth.1 More unfortunately, though, the majority's holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.
107
In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the political process which, contrary to the majority's suggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination.2 I, for one, am unsatisfied with the hope of an ultimate 'political' solution sometime in the indefinite future while, in the meantime, countless children unjustifiably receive inferior educations that may affect their hearts and minds in a way unlikely ever to be undone.' Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 l.Ed. 873 (1954). I must therefore respectfully dissent.
108
* The Court acknowledges that 'substantial interdistrict disparities in school expenditures' exist in Texas, ante, at 15, and that these disparities are 'largely attributable to differences in the amounts of money collected through local property taxation,' ante, at 16. But instead of closely examining the seriousness of these disparities and the invidiousness of the Texas financing scheme, the Court undertakes an elaborate exploration of the efforts Texas has purportedly made to close the gaps between its districts in terms of levels of district wealth and resulting educational funding. Yet, however praiseworthy Texas' equalizing efforts, the issue in this case is not whether Texas is doing its best to ameliorate the worst features of a discriminatory scheme but, rather, whether the scheme itself is in fact unconstitutionally discriminatory in the face of the Fourteenth Amendment's guarantee of equal protection of the laws. When the Texas financing scheme is taken as a whole, I do not think it can be doubted that it produces a discriminatory impact on substantial numbers of the schoolage children of the State of Texas.
A.
109
Funds to support public education in Texas are derived from three sources: local ad valorem property taxes; the Federal Government; and the state government.3 It is enlightening to consider these in order.
110
Under Texas law, the only mechanism provided the local school district for raising new, unencumbered revenues is the power to tax property located within its boundaries.4 At the same time, the Texas financing scheme effectively restricts the use of monies raised by local property taxation to the support of public education within the boundaries of the district in which they are raised, since any such taxes must be approved by a majority of the property-taxpaying voters of the district.5
111
The significance of the local property tax element of the Texas financing scheme is apparent from the fact that it provides the funds to meet some 40% of the cost of public education for Texas as a whole.6 Yet the amount of revenue that any particular Texas district can raise is dependent on two factors—its tax rate and its amount of taxable property. The first factor is determined by the property-taxpaying voters of the district.7 But, regardless of the enthusiasm of the local voters for public education, the second factor—the taxable property wealth of the district—necessarily restricts the district's ability to raise funds to support public education.8 Thus, even though the voters of two Texas districts may be willing to make the same tax effort, the results for the districts will be substantially different if one is property rich while the other is property poor. The necessary effect of the Texas local property tax is, in short, to favor property-rich districts and to disfavor property-poor ones.
112
The seriously disparate consequences of the Texas local property tax, when that tax is considered alone, are amply illustrated by data presented to the District Court by appellees. These data included a detailed study of a sample of 110 Texas school districts9 for the 1967—1968 school year conducted by Professor Joel S. Berke of Syracuse University's Educational Finance Policy Institute. Among other things, this study revealed that the 10 richest districts examined, each of which had more than $100,000 in taxable property per pupil, raised through local effort an average of $610 per pupil, whereas the four poorest districts studied, each of which had less than $10,000 in taxable property per pupil, were able to raise only an average of $63 per pupil.10 And, as the Court effectively recognizes, ante, at 27, this correlation between the amount of taxable property per pupil and the amount of local revenues per pupil holds true for the 96 districts in between the richest and poorest districts.11
113
It is clear, moreover, that the disparity of per-pupil revenues cannot be dismissed as the result of lack of local effort that is, lower tax rates—by property-poor districts. To the contrary, the data presented below indicate that the poorest districts tend to have the highest tax rates and the richest districts tend to have the lowest tax rates.12 Yet, despite the apparent extra effort being made by the poorest districts, they are unable even to begin to match the richest districts in terms of the production of local revenues. For example, the 10 richest districts studied by Professor Berke were able to produce $585 per pupil with an equalized tax rate of 31¢ on $100 of equalized valuation, but the four poorest districts studied, with an equalized rate of 70¢ on $100 of equalized valuation, were able to produce only $60 per pupil.13 Without more, this stateimposed system of educational funding presents a serious picture of widely varying treatment of Texas school districts, and thereby of Texas schoolchildren, in terms of the amount of funds available for public education.
114
Nor are these funding variations corrected by the other aspects of the Texas financing scheme. The Federal Government provides funds sufficient to cover only some 10% of the total cost of public education in Texas.14 Furthermore, while these federal funds are not distributed in Texas solely on a per-pupil basis, appellants do not here contend that they are used in such a way as to ameliorate signiticantly the widely varying consequences for Texas school districts and schoolchildren of the local property tax element of the state financing scheme.15
115
State funds provide the remaining some 50% of the monies spent on public education in Texas.16 Technically, they are distributed under two programs. The first is the Available School Fund, for which provision is made in the Texas Constitution.17 The Available School Fund is composed of revenues obtained from a number of sources, including receipts from the state ad valorem property tax, one-fourth of all monies collected by the occupation tax, annual contributions by the legislature from general revenues, and the revenues derived from the Permanent School Fund.18 For the 1970—1971 school year the Available School Fund contained $296,000,000. The Texas Constitution requires that this money be distributed annually on a per capita basis19 to the local school districts. Obviously, such a flat grant could not alone eradicate the funding differentials atrributable to the local property tax. Moreover, today the Available School Fund is in reality simply one facet of the second state financing program, the Minimum Foundation School Program,20 since each district's annual share of the Fund is deducted from the sum to which the district is entitled under the Foundation Program.21
116
The Minimum Foundation School Program provides funds for three specific purposes: professional salaries, current operating expenses, and transportation expenses.22 The State pays, on an overall basis, for approximately 80% of the cost of the Program; the remaining 20% is distributed among the local school districts under the Local Fund Assignment.23 Each district's share of the Local Fund Assignment is determined by a complex 'economic index' which is designed to allocate a larger share of the costs to property-rich districts than to property-poor districts.24 Each district pays its share with revenues derived from local property taxation.
117
The stated purpose of the Minimum Foundation School Program is to provide certain basic funding for each local Texas school district.25 At the same time, the Program was apparently intended to improve, to some degree, the financial position of property-poor districts relative to property-rich districts, since through the use of the economic index—an effort is made to charge a disproportionate share of the costs of the Program to rich districts.26 It bears noting, however, that substantial criticism has been leveled at the practical effectiveness of the economic index system of local cost allocation.27 In theory, the index is designed to ascertain the relative ability of each district to contribute to the Local Fund Assignment from local property taxes. Yet the index is not developed simply on the basis of each district's taxable wealth. It also takes into account the district's relative income from manufacturing, mining, and agriculture, its payrolls, and its scholastic population.28 It is difficult to discern precisely how these latter factors are predictive of a district's relative ability to raise revenues through local property taxes. Thus, in 1966, one of the consultants who originally participated in the development of the Texas economic index adopted in 1949 told the Governor's Committee on Public School Education: 'The Economic Index approach to evaluating local ability offers a little better measure than sheer chance, but not much.'29
118
Moreover, even putting aside these criticisms of the economic index as a device for achieving meaningful district wealth equalization through cost allocation, poor districts still do not necessarily receive more state aid than property-rich districts. For the standards which currently determine the amount received from the Foundation School Program by any particular district30 favor property-rich districts.31 Thus, focusing on the same Edgewood Independent and Alamo Heights School Districts which the majority uses for purposes of illustration, we find that in 1967 1968 property-rich Alamo Heights,32 which raised $333 per pupil on an equalized tax rate of 85¢ per $100 valuation, received $225 per pupil from the Foundation School Program, while property-poor Edgewood,33 which raised only $26 per pupil with an equalized tax rate of $1.05 per $100 valuation, received only $222 per pupil from the Foundation School Program.34 And, more recent data, which indicate that for the 1970—1971 school year Alamo Heights received $491 per pupil from the Program while Edgewood received only $356 per pupil, hardly suggest that the wealth gap between the districts is being narrowed by the State Program. To the contrary, whereas in 1967 1968 Alamo Heights received only $3 per pupil, or about 1%, more than Edgewood in state aid, by 1970—1971 the gap had widened to a difference of $135 per pupil, or about 38%.35 It was data of this character that prompted the District Court to observe that 'the current (state aid) system tends to subsidize the rich at the expense of the poor, rather than the other way around.'36 337 F.Supp. 280, 282. And even the appellants go no further here than to venture that the Minimum Foundation School Program has 'a mildly equalizing effect.'37
119
Despite these facts, the majority continually emphasized how much state aid has, in recent years, been given to property-poor Texas school districts. What the Court fails to emphasize is the cruel irony of how much more state aid is being given to property-rich Texas school districts on top of their already substantial local property tax revenues.38 Under any view, then, it is apparent that the state aid provided by the Foundation School Program fails to compensate for the large funding variations attributable to the local property tax element of the Texas financing scheme. And it is these stark differences in the treatment of Texas school districts and school children inherent in the Texas financing schement, not the absolute amount of state aid provided to any particular school district, that are the crux of this case. There can, moreover, be no escaping the conclusion that the local property tax which is dependent upon taxable district property wealth is an essential feature of the Texas scheme for financing public education.39
B
120
The appellants do not deny the disparities in educational funding caused by variations in taxable district property wealth. They do contend, however, that whatever the differences in per-pupil spending among Texas districts, there are no discriminatory consequences for the children of the disadvantaged districts. They recognize that what is at stake in this case is the quality of the public education provided Texas children in the districts in which they live. But appellants reject the suggestion that the quality of education in any particular district is determined by money beyond some minimal level of funding which they believe to be assured every Texas district by the Minimum Foundation School Program. In their view, there is simply no denial of equal educational opportunity to any Texas school children as a result of the widely varying per-pupil spending power provided districts under the current financing scheme.
121
In my view, though, even an unadorned restatement of this contention is sufficient to reveal its absurdity. Authorities concerned with educational quality no doubt disagree as to the significance of variations in per-pupil spending.40 Indeed, conflicting expert testimony was presented to the District Court in this case concerning the effect of spending variations on educational achievement.41 We sit, however, not to resolve disputes over educational theory but to enforce our Constitution. It is an inescapable fact that if one district has more funds available per pupil than another district, the former will have greater choice in educational planning than will the latter. In this regard, I believe the question of discrimination in educational quality must be deemed to be an objective one that looks to what the State provides its children, not to what the children are able to do with what they receive. That a child forced to attend an underfunded school with poorer physical facilities, less experienced teachers, larger classes, and a narrower range of courses than a school with substantially more funds—and thus with greater choice in educational planning may nevertheless excel is to the credit of the child, not the State, cf. Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 349, 59 S.Ct. 232, 236, 86 L.Ed. 208 (1938). Indeed, who can ever measure for such a child the opportuntiies lost and the talents wasted for want of a broader, more enriched education? Discrimination in the opportunity to learn that is afforded a child must be our standard.
122
Hence, even before this Court recognized its duty to tear down the barriers of state-enforced racial segregation in public education, it acknowledged that inequality in the educational facilities provided to students may be discriminatory state action as contemplated by the Equal Protection Clause. As a basis for striking down state-enforced segregation of a law school, the Court in Sweatt v. Painter, 339 U.S. 629, 633—634, 70 S.Ct. 848, 850, 94 L.Ed. 1114 (1950), stated:
123
'(W)e cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the (whites only) Law School is superior. . . . It is difficult to believe that one who had a free choice between these law schools would consider the question close.' See also McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950). Likewise, it is difficult to believe that if the children of Texas had a free choice, they would choose to be educated in districts with fewer resources, and hence with more antiquated plants, less experienced teachers, and a less diversified curriculum. In fact, if financing variations are so insignificant to educational quality, it is difficult to understand why a number of our country's wealthiest school districts, which have no legal obligation to argue in support of the constitutionality of the Texas legislation, have nevertheless zealously pursued its cause before this Court.42
124
The consequences, in terms of objective educational input, of the variations in district funding caused by the Texas financing scheme are apparent from the data introduced before the District Court. For example, in 1968—1969, 100% of the teachers in the property-rich Alamo Heights School District had college degrees.43 By contrast, during the same school year only 80.02% of the teachers had college degrees in the property poor Edgewood Independent School District.44 Also, in 1968—1969, approximately 47% of the teachers in the Edgewood District were on emergency teaching permits, whereas only 11% of the teachers in Alamo Heights were on such permits.45 This is undoubtedly a reflection of the fact that the top of Edgewood's teacher salary scale was approximately 80% of Alamo Heights.46 And, not surprisingly, the teacher-student ratio varies significantly between the two districts.47 In other words, as might be expected, a difference in the funds available to districts results in a difference in educational inputs available for a child's public education in Texas. For constitutional purposes, I believe this situation, which is directly attributable to the Texas financing scheme, raises a grave question of state-created discrimination in the provision of public education. Cf. Gaston County v. United States, 395 U.S. 285, 293—294, 89 S.Ct. 1720, 1724—1725, 23 L.Ed.2d 309 (1969).
125
At the very least, in view of the substantial interdistrict disparities in funding and in resulting educational inputs shown by appellees to exist under the Texas financing scheme, the burden of proving that these disparities do not in fact affect the quality of children's education must fall upon the appellants. Cf. Hobson v. Hansen, 327 F.Supp. 844, 860—861 (D.C.D.C.1971). Yet appellants made no effort in the District Court to demonstrate that educational quality is not affected by variations in funding and in resulting inputs. And, in this Court, they have argued no more than that the relationship is ambiguous. This is hardly sufficient to overcome appellees' prima facie showing of state-created discrimination between the schoolchildren of Texas with respect to objective educational opportunity.
126
Nor can I accept the appellants' apparent suggestion that the Texas Minimum Foundation School Program effectively eradicates any discriminatory effects otherwise resulting from the local property tax element of the Texas financing scheme. Appellants assert that, despite its imperfections, the Program 'does guarantee an adequate education to every child.'48 The majority, in considering the constitutionality of the Texas financing scheme, seems to find substantial merit in this contention, for it tells us that the Foundation Program 'was designed to provide an adequate minimum educational offering in every school in the State,' ante, at 45, and that the Program 'assur(es) a basic education for every child,' ante, at 49. But I fail to understand how the constitutional problems inherent in the financing scheme are eased by the Foundation Program. Indeed, the precise thrust of the appellants' and the Court's remarks are not altogether clear to me.
127
The suggestion may be that the state aid received via the Foundation Program sufficiently improves the position of property-poor districts vis-a-vis property-rich districts—in terms of educational funds—to eliminate any claim of interdistrict discrimination in available educational resources which might otherwise exist if educational funding were dependent solely upon local property taxation. Certainly the Court has recognized that to demand precise equality of treatment is normally unrealistic, and thus minor differences inherent in any practical context usually will not make out a substantial equal protection claim. See, e.g., Mayer v. City of Chicago, 404 U.S. 189, 194—195, 92 S.Ct. 410, 414—415, 30 L.Ed.2d 372 (1971); Draper v. Washington, 372 U.S. 487, 495—496, 83 S.Ct. 774, 778—779, 9 L.Ed.2d 899 (1963); Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482 (1931). But, as has already been seen, we are hardly presented here with some de minimis claim of discrimination resulting from the play necessary in any functioning system; to the contrary, it is clear that the Foundation Program utterly fails to ameliorate the seriously discriminatory effects of the local property tax.49
128
Alternatively, the appellants and the majority may believe that the Equal Protection Clause cannot be offended by substantially unequal state treatment of persons who are similarly situated so long as the State provides everyone with some unspecified amount of education which evidently is 'enough.'50 The basis for such a novel view is far from clear. It is, of course, true that the Constitution does not require precise equality in the treatment of all persons. As Mr. Justice Frankfurter explained:
129
'The equality at which the 'equal protection' clause aims is not a disembodied equality. The Fourteenth Amendment enjoins 'the equal protection of the laws', and laws are not abstract propositions. . . . The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940).
130
See also Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 (1963); Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 199, 93 L.Ed. 163 (1948). But this Court has never suggested that because some 'adequate' level of benefits is provided to all, discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action. It mandates nothing less than that 'all persons similarly circumstanced shall be treated alike.' F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920).
131
Even if the Equal Protection Clause encompassed some theory of constitutional adequacy, discrimination in the provision of educational opportunity would certainly seem to be a poor candidate for its application. Neither the majority nor appellants inform us how judicially manageable standards are to be derived for determining how much education is 'enough' to excuse constitutional discrimination. One would think that the majority would heed its own fervent affirmation of judicial self-restraint before undertaking the complex task of determining at large what level of education is constitutionally sufficient. Indeed, the majority's apparent reliance upon the adequacy of the educational opportunity assured by the Texas Minimum Foundation School Program seems fundamentally inconsistent with its own recognition that educational authorities are unable to agree upon what makes for educational quality, see ante, at 42—43, and n. 86 and at 47 n. 101. If, as the majority stresses, such authorities are uncertain as to the impact of various levels of funding on educational quality, I fail to see where it finds the expertise to divine that the particular levels of funding provided by the Program assure an adequate educational opportunity—much less an education substantially equivalent in quality to that which a higher level of funding might provide. Certainly appellants' mere assertion before this Court of the adequacy of the education guaranteed by the Minimum Foundation School Program cannot obscure the constitutional implications of the discrimination in educational funding and objective educational inputs resulting from the local property tax particularly since the appellees offered substantial uncontroverted evidence before the District Court impugning the now muchtouted 'adequacy' of the education guaranteed by the Foundation Program.51
132
In my view, then, it is inequality—not some notion of gross inadequacy—of educational opportunity that raises a question of denial of equal protection of the laws. I find any other approach to the issue unintelligible and without directing principle. Here, appellees have made a substantial showing of wide variations in educational funding and the resulting educational opportunity afforded to the schoolchildren of Texas. This discrimination is, in large measure, attributable to significant disparities in the taxable wealth of local Texas school districts. This is a sufficient showing to raise a substantial question of discriminatory state action in violation of the Equal Protection Clause.52
C
133
Despite the evident discriminatory effect of the Texas financing scheme, both the appellants and the majority raise substantial questions concerning the precise character of the disadvantaged class in this case. The District Court concluded that the Texas financing scheme draws 'distinction betwen groups of citizens depending upon the wealth of the district in which they live' and thus creates a disadvantaged class composed of persons living in property-poor districts. See 337 F.Supp., at 282. See also id., at 281. In light of the data introduced before the District Court, the conclusion that the schoolchildren of property-poor districts constitute a sufficient class for our purposes seems indisputablet to me.
134
Appellants contend, however, that in constitutional terms this case involves nothing more than discrimination against local school districts, not against individuals, since on its face the state scheme is concerned only with the provision of funds to local districts. The result of the Texas financing scheme, appellants suggest, is merely that some local districts have more available revenues for education; others have less. In that respect, they point out, the States have broad discretion in drawing reasonable distinctions between their political subdivisions. See Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 231, 84 S.Ct. 1226, 1233, 12 L.Ed.2d 256 (1964); McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Salsburg v. Maryland, 346 U.S. 545, 550—554, 74 S.Ct. 280, 282—285, 98 L.Ed. 281 (1954).
135
But this Court has consistently recognized that where there is in fact discrimination against individual interests, the constitutional guarantee of equal protection of the laws is not inapplicable simply because the discrimination is based upon some group characteristic such as geographic location. See Gordon v. Lance, 403 U.S. 1, 4, 91 S.Ct. 1889, 1891, 29 L.Ed.2d 273 (1971); Reynolds v. Sims, 377 U.S. 533, 565—566, 84 S.Ct. 1362, 1383—1384, 12 L.Ed.2d 506 (1964); Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 807, 9 L.Ed.2d 821 (1963). Texas has chosen to provide free public education for all its citizens, and it has embodied that decision in its constitution.53 Yet, having established public education for its citizens, the State, as a direct consequence of the variations in local property wealth endemic to Texas' financing scheme, has provided some Texas schoolchildren with substantially less resources for their education than others. Thus, while on its face the Texas scheme may merely discriminate between local districts, the impact of that discrimination falls directly upon the children whose educational opportunity is dependent upon where they happen to live. Consequently, the District Court correctly concluded that the Texas financing scheme discriminates, from a constitutional perspective, between school children on the basis of the amount of taxable property located within their local districts.
136
In my Brother STEWART's view, however, such a description of the discrimination inherent in this case is apparently not sufficient, for it fails to define the 'kind of objectively identifiable classes' that he evidentlyperceives to be necessary for a claim to be 'cognizable under the Equal Protection Clause,' ante, at 62. He asserts that this is also the view of the majority, but he is unable to cite, nor have I been able to find, any portion of the Court's opinion which remotely suggests that there is no objectively identifiable or definable class in this case. In any event, if he means to suggest that an essential predicate to equal protection analysis is the precise identification of the particular individuals who compose the disadvantaged class, I fail to find the source from which he derives such a requirement. Certainly such precision is not analytically necessary. So long as the basis of the discrimination is clearly identified, it is possible to test it against the State's purpose for such discrimination—whatever the standard of equal protection analysis employed.54 This is clear from our decision only last Term in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), where the Court, in striking down Texas' primary filing fees as violative of equal protection, found no impediment to equal protection analysis in the fact that the members of the disadvantaged class could not be readily identified. The Court recognized that the filing-fee system tended 'to deny some voters the opportunity to vote for a candidate of their choosing; at the same time it gives the affluent the power to place on the ballot their own names or the names of persons they favor.' Id., at 144, 92 S.Ct., at 856. The Court also recognized that '(t)his 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 . . ..' Ibid. Nevertheless, it concluded that 'we would ignore reality were we not to recognize that this system falls with unequal weight on voters . . . according to their economic status.' Ibid. The nature of the classification in Bullock was clear, although the precise membership of the disadvantaged class was not. This was enough in Bullock for purposes of equal protection analysis. It is enough here.
137
It may be, though, that my Brother STEWART is not in fact demanding precise identification of the membership of the disadvantaged class for purposes of equal protection analysis, but is merely unable to discern with sufficient clarity the nature of the discrimination charged in this case. Indeed, the Court itself displays some uncertainty as to the exact nature of the discrimination and the resulting disadvantaged class alleged to exist in this case. See ante, at 19—20. It is, of course, essential to equal protection analysis to have a firm grasp upon the nature of the discrimination at issue. In fact, the absence of such a clear, articulable understanding of the nature of alleged discrimination in a particular instance may well suggest the absence of any real discrimination. But such is hardly the case here.
138
A number of theories of discrimination have, to be sure, been considered in the course of this litigation. Thus, the District Court found that in Texas the poor and minority group members tend to live in property-poor districts, suggesting discrimination on the basis of both personal wealth and race. See 337 F.Supp., at 282 and n. 3. The Court goes to great lengths to discredit the data upon which the District Court relied, and thereby its conclusion that poor people live in property-poor districts.55 Although I have serious doubts as to the correctness of the Court's analysis in rejecting the data submitted below,56 I have no need to join issue on these factual disputes.
139
I believe it is sufficient that the overarching form of discrimination in this case is between the schoolchildren of Texas on the basis of the taxable property wealth of the districts in which they happen to live. To understand both the precise nature of this discrimination and the parameters of the disadvantaged class it is sufficient to consider the constitutional principle which appellees contend is controlling in the context of educational financing. In their complaint appellees asserted that the Constitution does not permit local district wealth to be determinative of educational opportunity.57 This is simply another way of saying, as the District Court concluded, that consistent with the guarantee of equal protection of the laws, 'the quality of public education may not be a function of wealth, other than the wealth of the state as a whole.' 337 F.Supp., at 284. Under such a principle, the children of a district are excessively advantaged if that district has more taxable property per pupil than the average amount of taxable property per pupil considering the State as a whole. By contrast, the children of a district are disadvantaged if that district has less taxable property per pupil than the state average. The majority attempts to disparage such a definition of the disadvantaged class as the product of an 'artificially defined level' of district wealth. Ante, at 28. But such is clearly not the case, for this is the definition unmistakably dictated by the constitutional principle for which appellees have argued throughout the course of this litigation. And I do not believe that a clearer definition of either the disadvantaged class of Texas schoolchildren or the allegedly unconstitutional discrimination suffered by the members of that class under the present Texas financing scheme could be asked for, much less needed.58 Whether this discrimination, against the schoolchildren of property-poor districts, inherent in the Texas financing scheme, is violative of the Equal Protection Clause is the question to which the must now turn.
II
140
To avoid having the Texas financing scheme struck down because of the interdistrict variations in taxable property wealth, the District Court determined that it was insufficient for appellants to show merely that the State's scheme was rationally related to some legitimate state purpose; rather, the discrimination inherent in the scheme had to be shown necessary to promote a 'compelling state interest' in order to withstand constitutional scrutiny. The basis for this determination was twofold: first, the financing scheme divides citizens on a wealth basis, a classification which the District Court viewed as highly suspect; and second, the discriminatory scheme directly affects what it considered to be a 'fundamental interest,' namely, education.
141
This Court has repeatedly held that state discrimination which either adversely affects a 'fundamental interest,' see, e.g., Dunn v. Blumstein, 405 U.S. 330, 336—342, 92 S.Ct. 995, 999 1003, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 629—631, 89 S.Ct. 1322, 1328—1330, 22 L.Ed.2d 600 (1969), or is based on a distinction of a suspect character, see, e.g., Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971); McLaughlin v. Florida, 379 U.S. 184, 191—192, 85 S.Ct. 283, 287—289, 13 L.Ed.2d 222 (1964), must be carefully scrutinized to ensure that the scheme is necessary to promote a substantial, legitimate state interest. See, e.g., Dunn v. Blumstein, supra, 405 U.S., at 342—343, 92 S.Ct., at 1003—1004; Shapiro v. Thompson, supra, 394 U.S., at 634, 89 S.Ct., at 1331. The majority today concludes, however, that the Texas scheme is not subject to such a strict standard of review under the Equal Protection Clause. Instead, in its view, the Texas scheme must be tested by nothing more than that lenient standard of rationality which we have traditionally applied to discriminatory state action in the context of economic and commercial matters. See, e.g., McGowan v. Maryland, 366 U.S., at 425—426, 81 S.Ct., at 1104—1105; Morey v. Doud, 354 U.S. 457, 465—466, 77 S.Ct. 1344, 1349—1351, 1 L.Ed.2d 1485 (1957); F. S. Royster Guano Co. v. Virginia, 253 U.S., at 415, 40 S.Ct., at 561; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78—79, 31 S.Ct. 337, 340—341, 55 L.Ed. 369 (1911). By so doing, the Court avoids the telling task of searching for a substantial state interest which the Texas financing scheme, with its variations in taxable district property wealth, is necessary to further. I cannot accept such an emasculation of the Equal Protection Clause in the context of this case.
A.
142
To begin, I must once more voice my disagreement with the Court's rigidified approach to equal protection analysis. See Dandridge v. Williams, 397 U.S. 471, 519—521, 90 S.Ct. 1153, 1178 1180, 25 L.Ed.2d 491 (1970) (dissenting opinion); Richardson v. Belcher, 404 U.S. 78, 90, 92 S.Ct. 254, 261, 30 L.Ed.2d 231 (1971) (dissenting opinion). The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review—strict scrutiny or mere rationality. But this Court's decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find in fact that many of the Court's recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued—that is, an approach in which 'concentration (is) placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification.' Dandridge v. Williams, supra, 397 U.S., at 520—521, 90 S.Ct., at 1180 (dissenting opinion).
143
I therefore cannot accept the majority's labored efforts to demonstrate that fundamental interests, which call for strict scrutiny of the challenged classification, encompass only established rights which we are somehow bound to recognize from the text of the Constitution itself. To be sure, some interests which the Court has deemed to be fundamental for purposes of equal protection analysis are themselves constitutionally protected rights. Thus, discrimination against the guaranteed right of freedom of speech has called for strict judicial scrutiny. See Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Further, every citizen's right to travel interstate, although nowhere expressly mentioned in the Constitution, has long been recognized as implicit in the premises underlying that document: the right 'was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.' United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966). See also Crandall v. Nevada, 6 Wall. 35, 48, 18 L.Ed. 744 (1868). Consequently, the Court has required that a state classification affecting theconstitutionally protected right to travel must be 'shown to be necessary to promote a compelling governmental interest.' Shapiro v. Thompson, 394 U.S., at 634, 89 S.Ct., at 1331. But it will not do to suggest that the 'answer' to whether an interest is fundamental for purposes of equal protection analysis is always determined by whether that interest 'is a right . . . explicitly or implicitly guaranteed by the Constitution,' ante, at 33—34.59
144
I would like to know where the Constitution guarantees the right to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), or the right to vote in state elections, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), or the right to an appeal from a criminal conviction, e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). These are instances in which, due to the importance of the interests at stake, the Court has displayed a strong concern with the existence of discriminatory state treatment. But the Court has never said or indicated that these are interests which independently enjoy fullblown constitutional protection.
145
Thus, in Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927), the Court refused to recognize a substantive constitutional guarantee of the right to procreate. Nevertheless, in Skinner v. Oklahoma ex rel. Williamson, supra, 316 U.S., at 541, 62 S.Ct., at 1113, the Court, without impugning the continuing validity of Buck v. Bell, held that 'strict scrutiny' of state discrimination affecting procreation 'is essential' for '(m)arriage and procreation are fundamental to the very existence and survival of the race.' Recently, in Roe v. Wade, 410 U.S. 113, 152—154, 93 S.Ct. 705, 726—727, 35 L.Ed.2d 147 (1973), the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy which we have recognized. Yet the limited stature thereby accorded any 'right' to procreate is evident from the fact that at the same time the Court reaffirmed its initial decision in Buck v. Bell. See Roe v. Wade, supra, at 154, 93 S.Ct., at 727.
146
Similarly, the right to vote in state elections has been recognized as a 'fundamental political right,' because the Court concluded very early that it is 'preservative of all rights.' Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886); see, e.g., Reynolds v. Sims, supra, 377 U.S., at 561—562, 84 S.Ct. at 1381—1382. For this reason, '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.' Dunn v. Blumstein, 405 U.S., at 336, 92 S.Ct., at 1000 (emphasis added). The final source of such protection from inequality in the provision of the state franchise is, of course, the Equal Protection Clause. Yet it is clear that whatever degree of importance has been attached to the state electoral process when unequally distributed, the right to vote in state elections has itself never been accorded the statute of an independent constitutional guarantee.60 See Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970); Kramer v. Union Free School District No. 15, 395 U.S. 621, 626—629, 89 S.Ct. 1886, 1889—1891, 23 L.Ed.2d 583 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 1080, 16 L.Ed.2d 169 (1966).
147
Finally, it is likewise 'true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.' Griffin v. Illinois, 351 U.S., at 18, 76 S.Ct., at 590. Nevertheless, discrimination adversely affecting access to an appellate process which a State has chosen to provide has been considered to require close judicial scrutiny. See, e.g., Griffin v. Illinois, supra; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).61
148
The majority is, of course, correct when it suggests that the process of determining which interests are fundamental is a difficult one. But I do not think the problem is insurmountable. And I certainly do not accept the view that the process need necessarily degenerate into an unprincipled, subjective 'picking-and-choosing' between various interests or that it must involve this Court in creating 'substantive constitutional rights in the name of guaranteeing equal protection of the laws,' ante, at 33. Although not all fundamental interests are constitutionally guaranteed, the determination of which interests are fundamental should be firmly rooted in the text of the Constitution. The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly. Thus, it cannot be denied that interests such as procreation, the exercise of the state franchise, and access to criminal appellate processes are not fully guaranteed to the citizen by our Constitution. But these interests have nonetheless been afforded special judicial consideration in the face of discrimination because they are, to some extent, interrelated with constitutional guarantees. Procreation is now understood to be important because of its interaction with the established constitutional right of privacy. The exercise of the state franchise is closely tied to basic civil and political rights inherent in the First Amendment. And access to criminal appellate processes enhances the integrity of the range of rights62 implicit in the Fourteenth Amendment guarantee of due process of law. Only if we closely protect the related interests from state discrimination do we ultimately ensure the integrity of the constitutional guarantee itself. This is the real lesson that must be taken from our previous decisions involving interests deemed to be fundamental.
149
The effect of the interaction of individual interests with established constitutional guarantees upon the degree of care exercised by this Court in reviewing state discrimination affecting such interests is amply illustrated by our decision last Term in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). In Baird, the Court struck down as violative of the Equal Protection Clause a state statute which denied unmarried persons access to contraceptive devices on the same basis as married persons. The Court purported to test the statute under its traditional standard whether there is some rational basis for the discrimination effected. Id., at 446—447, 92 S.Ct. at 1034—1035. In the context of commercial regulation, the Court has indicated that the Equal Protection Clause 'is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.' See, e.g., McGowan v. Maryland, 366 U.S., at 425, 81 S.Ct., at 1105; Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 557, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947). And this lenient standard is further weighted in the State's favor by the fact that '(a) statutory discrimination will not be set aside if any state of facts reasonably may be conceived (by the Court) to justify it.' McGowan v. Maryland, supra, 366 U.S., at 426, 81 S.Ct. at 1105. But in Baird the Court clearly did not adhere to these highly tolerant standards of traditional rational review. For although there were conceivable state interests intended to be advanced by the statute—e.g., deterrence of premarital sexual activity and regulation of the dissemination of potentially dangerous articles—the Court was not prepared to accept these interests on their face, but instead proceeded to test their substantiality by independent analysis. See 405 U.S., at 449—454, 92 S.Ct., at 1036—1039. Such close scrutiny of the State's interests was hardly characteristic of the deference shown state classifications in the context of economic interests. See, e.g., Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948); Kotch v. Board of River Port Pilot Comm'rs, supra. Yet I think the Court's action was entirely appropriate, for access to and use of contraceptives bears a close relationship to the individual's constitutional right of privacy. See 405 U.S., at 453 454; id., at 463—464, 92 S.Ct. 1038—1039; Id., at 1043—1044 (White, J., concurring in result). See also Roe v. Wade, 410 U.S., at 152—153, 93 S.Ct., at 726—727.
150
A similar process of analysis with respect to the invidiousness of the basis on which a particular classification is drawn has also influenced the Court as to the appropriate degree of scrutiny to to accorded any particular case. The highly suspect character of classifications based on race,63 nationality,64 or alienage65 is well established. The reasons why such classifications call for close judicial scrutiny are manifold. Certain racial and ethnic groups have frequently been recognized as 'discrete and insular minorities' who are relatively powerless to protect their interests in the political process. See Graham v. Richardson, 403 U.S., at 372, 91 S.Ct., at 1852; United States v. Carolene Products Co., 304 U.S. 144, 152—153, n. 4, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234 (1938). Moreover, race, nationality, or alienage is "in most circumstances irrelevant' to any constitutionally acceptable legislative purpose, Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774.' McLaughlin v. Florida, 379 U.S., at 192, 85 S.Ct., at 288. Instead, lines drawn on such bases are frequently the reflection of historic prejudices rather than legislative rationality. It may be that all of these considerations, which make for particular judicial solicitude in the face of discrimination on the basis of race, nationality, or alienage, do not coalesce—or at least not to the same degree—in other forms of discrimination. Nevertheless, these considerations have undoubtedly influenced the care with which the Court has scrutinized other forms of discrimination.
151
In James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), the Court held unconstitutional a state statute which provided for recoupment from indigent convicts of legal defense fees paid by the State. The Court found that the statute impermissibly differentiated between indigent criminals in debt to the State and civil judgment debtors, since criminal debtors were denied various protective exemptions afforded civil judgment debtors.66 The Court suggested that in reviewing the statute under the Equal Protection Clause, it was merely applying the traditional requirement that there be "some rationality" in the line drawn between the different types of debtors. Id., at 140, 92 S.Ct., at 2034. Yet it then proceeded to scrutinize the statute with less than traditional deference and restraint. Thus, the Court recognized 'that state recoupment statutes may betoken legitimate state interests' in recovering expenses and discouraging fraud. Nevertheless, Mr. Justice Powell, speaking for the Court, concluded that
152
'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 self sufficiency and self respect.' Id., at 141—142, 92 S.Ct., at 2034.
153
The Court, in short, clearly did not consider the problems of fraud and collection that the state legislature might have concluded were peculiar to indigent criminal defendants to be either sufficiently important or at least sufficiently substantiated to justify denial of the protective exemptions afforded to all civil judgment debtors, to a class composed exclusively of indigent criminal debtors.
154
Similarly, in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), the Court, in striking down a state statute which gave men preference over women when persons of equal entitlement apply for assignment as an administrator of a particular estate, resorted to a more stringent standard of equal protecting review than that employed in cases involving commercial matters. The Court indicated that it was testing the claim of sex discrimination by nothing more than whether the line drawn bore 'a rational relationship to a state objective,' which it recognized as a legitimate effort to reduce the work of probate courts in choosing between competing applications for letters of administration. Id., at 76, 92 S.Ct., at 254. Accepting such a purpose, the Idaho Supreme Court had thought the classification to be sustainable on the basis that the legislature might have reasonably concluded that, as a rule, men have more experience than women in business matters relevant to the administration of an estate. 93 Idaho 511, 514, 465 P.2d 635, 638 (1970). This Court, however, concluded that '(t)o 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 . . ..' 404 U.S., at 76, 92 S.Ct., at 254. This Court, in other words, was unwilling to consider a theoretical and unsubstantiated basis for distinction—however reasonable it might appear—sufficient to sustain a statute discriminating on the basis of sex.
155
James and Reed can only be understood as instances in which the particularly invidious character of the classification caused the Court to pause and scrutinize with more than traditional care the rationality of state discrimination. Discrimination on the basis of past criminality and on the basis of sex posed for the Court the spector of forms of discrimination which it implicitly recognized to have deep social and legal roots without necessarily having any basis in actual differences. Still, the Court's sensitivity to the invidiousness of the basis for discrimination is perhaps most apparent in its decisions protecting the interests of children born out of wedlock from discriminatory state action. See Weber v. Aetna Casualty & Surety Co., 406 U.S., 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).
156
In Weber, the Court struck down a portion of a state workmen's compensation statute that relegated unacknowledged illegitimate children of the deceased to a lesser status with respect to benefits than that occupied by legitimate children of the deceased. The Court acknowledged the true nature of its inquiry in cases such as these: 'What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?' Id., 406 U.S. at 173, 92 S.Ct., at 1405. Embarking upon a determination of the relative substantiality of the State's justifications for the classification, the Court rejected the contention that the classifications reflected what might be presumed to have been the deceased's preference of beneficiaries as 'not compelling . . . where dependency on the deceased is a prerequisite to anyone's recovery . . ..' Ibid. Likewise, it deemed the relationship between the State's interest in encouraging legitimate family relationships and the burden placed on the illegitimates too tenuous to permit the classification to stand. Ibid. A clear insight into the basis of the Court's action is provided by its conclusion:
157
'(I)mposing 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 birth . . ..' Id., at 175—176, 92 S.Ct., at 1407 (footnote omitted).
158
Status of birth, like the color of one's skin, is something which the individual cannot control, and should generally be irrelevant in legislative considerations. Yet illegitimacy has long been stigmatized by our society. Hence, discrimination on the basis of birth—particularly when it affects innocent children warrants special judicial consideration.
159
In summary, it seems to me inescapably clear that this Court has consistently adjusted the care with which it will review state discrimination in light of the constitutional significance of the interests affected and the invidiousness of the particular classification. In the context of economic interests, we find that discriminatory state action is almost always sustained, for such interests are generally far removed from constitutional guarantees. Moreover, '(t)he extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may in many instances be ascribed to a healthy revulsion from the Court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls.' Dandridge v. Williams, 397 U.S., at 520, 90 S.Ct., at 1179 (dissenting opinion). But the situation differs markedly when discrimination against important individual interests with constitutional implications and against particularly disadvantaged or powerless classes is involved. The majority suggests, however, that a variable standard of review would give this Court the appearance of a 'super-legislature.' Ante, at 31. I cannot agree. Such an approach seems to me a part of the guarantees of our Constitution and of the historic experiences with oppression of and discrimination against discrete, powerless minorities which underlie that document. In truth, the Court itself will be open to the criticism raised by the majority so long as it continues on its present course of effectively selecting in private which cases will be afforded special consideration without acknowledging the true basis of its action.67
160
Opinions such as those in Reed and James seem drawn more as efforts to shield rather than to reveal the true basis of the Court's decisions. Such obfuscated action may be appropriate to a political body such as a legislature, but it is not appropriate to this Court. Open debate of the bases for the Court's action is essential to the rationality and consistency of our decisionmaking process. Only in this way can we avoid the label of legislature and ensure the integrity of the judicial process.
161
Nevertheless, the majority today attempts to force this case into the same category for purposes of equal protection analysis as decisions involving discrimination affecting commercial interests. By so doing, the majority singles this case out for analytic treatment at odds with what seems to me to be the clear trend of recent decisions in this Court, and thereby ignores the constitutional importance of the interest at stake and the invidiousness of the particular classification, factors that call for far more than the lenient scrutiny of the Texas financing scheme which the majority pursues. Yet if the discrimination inherent in the Texas scheme is scrutinized with the care demanded by the interest and classification present in this case, the unconstitutionality of that scheme is unmistakable.
B
162
Since the Court now suggests that only interests guaranteed by the Constitution are fundamental for purposes of equal protection analysis, and since it rejects the contention that public education is fundamental, it follows that the Court concludes that public education is not constitutionally guaranteed. It is true that this Court has never deemed the provision of free public education to be required by the Constitution. Indeed, it has on occasion suggested that state-supported education is a privilege bestowed by a State on its citizens. See Missouri ex rel. Gaines v. Canada, 305 U.S., at 349, 59 S.Ct., at 236. Nevertheless, the fundamental importance of education is amply indicated by the prior decisions of this Court, by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values.
163
The special concern of this Court with the educational process of our country is a matter of common knowledge. Undoubtedly, this Court's most famous statement on the subject is that contained in Brown v. Board of Education, 347 U.S., at 493, 74 S.Ct., at 691:
164
'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. . . .'
165
Only last Term, the Court recognized that '(p)roviding public schools ranks at the very apex of the function of a State.' Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct., 1526, 1532, 32 L.Ed.2d 15 (1972). This is clearly borne out by the fact that in 48 of our 50 States the provision of public education is mandated by the state constitution.68 No other state function is so uniformly recognized69 as an essential element of our society's well-being. In large measure, the explanation for the special importance attached to education must rest, as the Court recognized in Yoder, id., at 221, 92 S.Ct., at 1536, on the facts that 'some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system . . .,' and that 'education prepares individuals to be self-reliant and self-sufficient participants in society.' Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.
166
Education directly affects the ability of a child to exercise his First Amendment rights, both as a source and as a receiver of information and ideas, whatever interests he may pursue in life. This Court's decision in Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957), speaks of the right of students 'to inquire, to study and to evaluate, to gain new maturity and understanding . . .' Thus, we have not casually described the classroom as the "marketplace of ideas." Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). The opportunity for formal education may not necessarily be the essential determinant of an individual's ability to enjoy throughout his life the rights of free speech andassociation guaranteed to him by the First Amendment. But such an opportunity may enhance the individual's enjoyment of those rights, not only during but also following school attendance. Thus, in the final analysis, 'the pivotal position of education to success in American society and its essential role in opening up to the individual the central experiences of our culture lend it an importance that is undeniable.'70
167
Of particular importance is the relationship between education and the political process. 'Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government.' School District of Abington Township v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1576, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). Education serves the essential function of instilling in our young an understanding of and appreciation for the principles and operation of our governmental processes.71 Education may instill the interest and provide the tools necessary for political discourse and debate. Indeed, it has frequently been suggested that education is the dominant factor affecting political consciousness and participation.72 A system of '(c)ompetition in ideas andgovernmental policies is at the core of our electoral process and of the First Amendment freedoms.' Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968). But of most immediate and direct concern must be the demonstrated effect of education on the exercise of the franchise by the electorate. The right to vote in federal elections is conferred by Art. I, § 2, and the Seventeenth Amendment of the Constitution, and access to the state franchise has been afforded special protection because it is 'preservative of other basic civil and political rights,' Reynolds v. Sims, 377 U.S., at 562, 84 S.Ct., at 1381. Data from the Presidential Election of 1968 clearly demonstrate a direct relationship between participation in the electoral process and level of educational attainment;73 and, as this Court recognized in Gaston County v. United States, 395 U.S. 285, 296, 89 S.Ct. 1720, 1725, 23 L.Ed.2d 309 (1969), the quality of education offered may influence a child's decision to 'enter or remain in school.' It is this very sort of intimate relationship between a particular personal interest and specific constitutional guarantees that has heretofore caused the Court to attach special significance, for purposes of equal protection analysis, to individual interests such as procreation and the exercise of the state franchise.74
168
While ultimately disputing little of this, the majority seeks refuge in the fact that the Court has 'never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice.' Ante at 36. This serves only to blur what is in fact at stake. With due respect, the issue is neither provision of the most effective speech nor of the most informed vote. Appellees do not now seek the best education Texas might provide. They do seek, however, an end to state discrimination resulting from the unequal distribution of taxable district property wealth that directly impairs the ability of some districts to provide the same educational opportunity that other districts can provide with the same or even substantially less tax effort. The issue is, in other words, one of discrimination that affects the quality of the education which Texas has chosen to provide its children; and, the precise question here is what importance should attach to education for purposes of equal protection analysis of that discrimination. As this Court held in Brown v. Board of Education, 347 U.S., at 493, 74 S.Ct., at 691, the opportunity of education, 'where the state has undertaken to provide it, is a right which must be made available to all on equal terms.' The factors just considered, including the relationship between education and the social and political interests enshrined within the Constitution, compel us to recognize the fundamentality of education and to scrutinize with appropriate care the bases for state discrimination affecting equality of educational opportunity in Texas' school districts75—aconclusion which is only strengthened when we consider the character of the classification in this case.
C
169
The District Court found that in discriminating between Texas schoolchildren on the basis of the amount of taxable property wealth located in the district in which they live, the Texas financing scheme created a form of wealth discrimination. This Court has frequently recognized that discrimination on the basis of wealth may create a classification of a suspect character and thereby call for exacting judicial scrutiny. See, e.g., 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); McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 807, 89 S.Ct. 1404, 1407, 22 L.Ed.2d 739 (1969). The majority, however, considers any wealth classification in this case to lack certain essential characteristics which it contends are common to the instances of wealth discrimination that this Court has heretofore recognized. We are told that in every prior case involving a wealth classification, the members of the disadvantaged class have 'shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.' Ante, at 20. I cannot agree. The Court's distinctions may be sufficient to explain the decisions in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); and even Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). But they are not in fact consistent with the decisions in Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), or Griffin v. Illinois, supra, or Douglas v. California, supra.
170
In Harper, the Court struck down as violative of the Equal Protection Clause an annual Virginia poll tax of $1.50, payment of which by persons over the age of 21 was a prerequisite to voting in Virginia elections. In part, the Court relied on the fact that the poll tax interfered with a fundamental interest—the exercise of the state franchise. In addition, though, the Court emphasized that '(l)ines drawn on the basis of wealth or property . . . are traditionally disfavored.' 383 U.S., at 668, 86 S.Ct., at 1082. Under the first part of the theory announced by the majority, the disadvantaged class in Harper, in terms of a wealth analysis, should have consisted only of those too poor to afford the $1.50 necessary to vote. But the Harper Court did not see it that way. In its view, the Equal Protection Clause 'bars a system which excludes (from the franchise) those unable to pay a fee to vote or who fail to pay.' Ibid. (Emphasis added.) So far as the Court was concerned, the 'degree of the discrimination (was) irrelevant.' Ibid. Thus, the Court struck down the poll tax in toto; it did not order merely that those too poor to pay the tax be exempted; complete impecunity clearly was not determinative of the limits of the disadvantaged class, nor was it essential to make an equal protection claim.
171
Similarly, Griffin and Douglas refute the majority's contention that we have in the past required an absolute deprivation before subjecting wealth classifications to strict scrutiny. The Court characterizes Griffin as a case concerned simply with the denial of a transcript or an adequate substitute therefor, and Douglas as involving the denial counsel. But in both cases the question was in fact whether 'a State that (grants) appellate review can do so in a way that discriminates against some convicted defendants on account of their proverty.' Griffin v. Illinois, supra, 351 U.S., at 18, 76 S.Ct., at 590 (emphasis added). In that regard, the Court concluded that inability to purchase a transcript denies 'the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance,' ibid. (emphasis added), and that 'the type of an appeal a person is afforded . . . hinges upon whether or not he can pay for the assistance of counsel,' Douglas v. California, supra, 372 U.S., at 355—356, 83 S.Ct., at 816 (emphasis added). The right of appeal itself was not absolutely denied to those too poor to pay; but because of the cost of a transcript and of counsel, the appeal was a substantially less meaningful right for the poor than for the rich.76 It was on these terms that the Court a denial of equal protection, and those terms clearly encompassed degrees of discrimination on the basis of wealth which do not amount to outright denial of the affected right or interest.77
172
This is not to say that the form of wealth classification in this case does not differ significantly from those recognized in the previous decisions of this Court. Our prior cases have dealt essentially with discrimination on the basis of personal wealth.78 Here, by contrast, the children of the disadvantaged Texas school districts are being discriminated against not necessarily because of their personal wealth or the wealth of their families, but because of the taxable property wealth of the residents of the district in which they happen to live. The appropriate question, then, is whether the same degree of judicial solicitude and scrutiny that has previously been afforded wealth classifications is warranted here.
173
As the Court points out, ante, at 28—29, no previous decision has deemed the presence of just a wealth classification to be sufficient basis to call forth rigorous judicial scrutiny of allegedly discriminatory state action. Compare, e.g., Harper v. Virginia Board of Elections, supra, with, e.g., James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971). That wealth classifications alone have not necessarily been considered to bear the same high degree of suspectness as have classifications based on, for instance, race or alienage may be explainable on a number of grounds. The 'poor' may not be seen as politically powerless as certain discrete and insular minority groups.79 Personal proverty may entail much the same social stigma as historically attached to certain racial or ethnic groups.80 But personal poverty is not a permanent disability; its shackles may be escaped. Perhaps most importantly, though, personal wealth may not necessarily share the general irrelevance as a basis for legislative action that race or nationality is recognized to have. While the 'poor' have frequently been a legally disadvantaged group,81 it cannot be ignored that social legislation must frequently take cognizance of the economic status of our citizens. Thus, we have generally gauged the invidiousness of wealth classifications with an awareness of the importance of the interests being affected and the relevance of personal wealth to those interests. See Harper v. Virginia Board of Elections, supra.
174
When evaluated with these considerations in mind, it seems to me that discrimination on the basis of group wealth in this case likewise calls for careful judicial scrutiny. First, it must be recognized that while local district wealth may serve other interests,82 it bears no relationship whatsoever to the interest of Texas schoolchildren in the educational opportunity afforded them by the State of Texas. Given the importance of that interest, we must be particularly sensitive to the invidious characteristics of any form of discrimination that is not clearly intended to serve it, as opposed to some other distinct state interest. Discrimination on the basis of group wealth may not, to be sure, reflect the social stigma frequently attached to personal poverty. Nevertheless, insofar as group wealth discrimination involves wealth over which the disadvantaged individual has no significant control,83 it represents in fact a more serious basis of discrimination than does personal wealth. For such discrimination is no reflection of the individual's characteristics or his abilities. And thus—particularly in the context of a disadvantaged class composed of children—we have previously treated discrimination on a basis which the individual cannot control as constitutionally disfavored. Cf. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).
175
The disability of the disadvantaged class in this case extends as well into the political processes upon which we ordinarily rely as adequate for the protection and promotion of all interests. Here legislative reallocation of the State's property wealth must be sought in the face of inevitable opposition from significantly advantaged districts that have a strong vested interest in the preservation of the status quo, a problem not completely dissimilar to that faced by underrepresented districts prior to the Court's intervention in the process of reapportionment,84 see Baker v. Carr, 369 U.S. 186, 191—192, 82 S.Ct. 691, 695—697, 7 L.Ed.2d 663 (1962).
176
Nor can we ignore the extent to which, in contrast to our prior decisions, the State is responsible for the wealth discrimination in this instance. Griffin, Douglas, Williams, Tate, and our other prior cases have dealt with discrimination on the basis of indigency which was attributable to the operation of the private sector. But we have no such simple de facto wealth discrimination here. The means for financing public education in Texas are selected and specified by the State. It is the State that has created local school districts, and tied educational funding to the local property tax and thereby to local district wealth. At the same time, governmentally imposed land use controls have undoubtedly encouraged and rigidified natural trends in the allocation of particular areas for residential or commercial use,85 and thus determined each district's amount of taxable property wealth. In short, this case, in contrast to the Court's previous wealth discrimination decisions, can only be seen as 'unusual in the extent to which governmental action is the cause of the wealth classifications.'86
177
In the final anaylsis, then The invidious characteristics of the group wealth classification present in this case merely serve to emphasize the need for careful judicial scrutiny of the State's justifications for the resulting interdistrict discrimination in the educational opportunity afforded to the schoolchildren of Texas.
D
178
The nature of our inquiry into the justifications for state discrimination is essentially the same in all equal protection cases: We must consider the substantiality of the state interests sought to be served, and we must scrutinize the reasonableness of the means by which the State has sought to advance its interests. See Police Dept. of City of Chicago v. Mosley, 408 U.S., at 95, 92 S.Ct., at 2289. Differences in the application of this test are, in my view, a function of the constitutional importance of the interests at stake and the invidiousness of the particular classification. In terms of the asserted state interests, the Court has indicated that it will require, for instance, a 'compelling,' Shapiro v. Thompson, 394 U.S., at 634, 89 S.Ct., at 1331, or a 'substantial' or 'important,' Dunn v. Blumstein, 405 U.S., at 343, 92 S.Ct., at 1003, state interest to justify discrimination affecting individual interests of constitutional significance. Whatever the differences, if any, in these descriptions of the character of the state interest necessary to sustain such discrimination, basic to each is, I believe, a concern with the legitimacy and the reality of the asserted state interests. Thus, when interests of constitutional importance are at stake, the Court does not stand ready to credit the State's classification with any conceivable legitimate purpose,87 but demands a clear showing that there are legitimate state interests which the classification was in fact intended to serve. Beyond the question of the adequacy of the State's purpose for the classification, the Court traditionally has become increasingly sensitive to the means by which a State chooses at act as its action affects more directly interests of constitutional significance. See, e.g., United States v. Robel, 389 U.S. 258, 265, 88 S.Ct. 419, 424, 19 L.Ed.2d 508 (1967); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1961). Thus, by now, 'less restrictive alternatives' analysis is firmly established in equal protection jurisprudence. See Dunn v. Blumstein, supra, 405 U.S., at 343, 92 S.Ct., at 1003; Kramer v. Union Free School District No. 15, 395 U.S., at 627, 89 S.Ct., at 1889. It seems to me that the range of choice we are willing to accord the State in selecting the means by which it will act, and the care with which we scrutinize the effectiveness of the means which the State selects, also must reflect the constitutional importance of the interest affected and the invidiousness of the particular classification. Here, both the nature of the interest and the classification dictate close judicial scrutiny of the purposes which Texas seeks to serve with its present educational financing scheme and of the means it has selected to serve that purpose.
179
The only justification offered by appellants to sustain the discrimination in educational opportunity caused by the Texas financing scheme is local educational control. Presented with this justification, the District Court concluded that '(n)ot only are defendants unable to demonstrate compelling state interests for their classifications based upon wealth, they fail even to establish a reasonable basis for these classifications.' 337 F.Supp., at 284. I must agree with this conclusion.
180
At the outset, I do not question that local control of public education, as an abstract matter, constitutes a very substantial state interest. We observed only last Term that '(d)irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society.' Wright v. Council of the City of Emporia, 407 U.S. 451, 469, 92 S.Ct. 2196, 2206, 33 L.Ed.2d 51 (1972). See also id., at 477—478, 92 S.Ct., at 2210 2211 (Burger, C.J., dissenting). The State's interest in local educational control—which certainly includes questions of educational funding—has deep roots in the inherent benefits of community support for public education. Consequently, true state dedication to local control would present, I think, a substantial justification to weigh against simply interdistrict variations in the treatment of a State's schoolchildren. But I need not now decide how I might ultimately strike the balance were we confronted with a situation where the State's sincere concern for local control inevitably produced educational inequality. For, on this record, it is apparent that the State's purported concern with local control is offered primarily as an excuse rather than as a justification for interdistrict inequality.
181
In Texas, statewide laws regulate in fact the most minute details of local public education. For example, the State prescribes required courses.88 All textbooks must be submitted for state approval,89 and only approved textbooks may be used.90 The State has established the qualifications necessary for teaching in Texas public schools and the procedures for obtaining certification.91 The State has even legislated on the length of the school day.92 Texas' own courts have said:
182
'As a result of the acts of the Legislature our school system is not of mere local concern but it is statewide. While a school district is local in territorial limits, it is an integral part of the vast school system which is coextensive with the confines of the State of Texas.' Treadaway v. Whitney Independent School District, 205 S.W.2d 97, 99 (Tex.Civ.App.1947).
183
See also El Dorado Independent School District v. Tisdale, 3 S.W.2d 420, 422 (Tex.Com.App. 1928).
184
Moreover, even if we accept Texas' general dedication to local control in educational matters, it is difficult to find any evidence of such dedication with respect to fiscal matters. It ignores reality to suggest—as the Court does, ante, at 49—50—that the local property tax element of the Texas financing scheme reflects a conscious legislative effort to provide school districts with local fiscal control. If Texas had a system truly dedicated to local fiscal control, one would expect the quality of the educational opportunity provided in each district to vary with the decision of the voters in that district as to the level of sacrifice they wish to make for public education. In fact, the Texas scheme produces precisely the opposite result. Local school districts cannot choose to have the best education in the State by imposing the highest tax rate. Instead, the quality of the educational opportunity offered by any particular district is largely determined by the amount of taxable property located in the district—a factor over which local voters can exercise no control.
185
The study introduced in the District Court showed a direct inverse relationship between equalized taxable district property wealth and district tax effort with the result that the property-poor districts making the highest tax effort obtained the lowest per-pupil yield.93 The implications of this situation for local choice are illustrated by again comparing the Edgewood and Alamo Heights School Districts. In 1967—1968, Edgewood, after contributing its share to the Local Fund Assignment, raised only $26 per pupil through its local property tax, whereas Alamo Heights was able to raise $333 per pupil. Since the funds received through the Minimum Foundation School Program are to be used only for minimum professional salaries, transportation costs, and operating expenses, it is not hard to see the lack of local choice with respect to higher teacher salaries to attract more and better teachers, physical facilities, library books, and facilities, special courses, or participation in special state and federal matching funds programs—under which a property-poor district such as Edgewood is forced to labor.94 In fact, because of the difference in taxable local property wealth, Edgewood would have to tax itself almost nine times as heavily to obtain the same yield as Alamo Heights.95 At present, then, local control is a myth for many of the local school districts in Texas. As one district court has observed, 'rather than reposing in each school district the economic power to fix its own level of per pupil expenditure, the State has so arranged the structure as to guarantee that some districts will spend low (with high taxes) while others will spend high (with low taxes).' Van Dusartz v. Hatfield, 334 F.Supp. 870, 876 (D.C.Minn.1971).
186
In my judgment, any substantial degree of scrutiny of the operation of the Texas financing scheme reveals that the State has selected means wholly inappropriate to secure its purported interest in assuring its school districts local fiscal control.96 At the same time, appellees have pointed out a variety of alternative financing schemes which may serve the State's purported interest in local control as well as, if not better than, the present scheme without the current impairment of the educational opportunity of vast numbers of Texas schoolchildren.97 I see no need, however, to explore the practical or constitutional merits of those suggested alternatives at this time for, whatever their positive or negative features, experience with the present financing scheme impugns any suggestion that it constitutes a serious effort to provide local fiscal control. If for the sake of local education control, this Court is to sustain interdistrict discrimination in the educational opportunity afforded Texas school children, it should require that the State present something more than the mere sham now before us.
III
187
In conclusion, it is essential to recognize that an end to the wide variations in taxable district property wealth inherent in the Texas financing scheme would entail none of the untoward consequences suggested by the Court or by the appellants.
188
First, affirmance of the District Court's decisions would hardly sound the death knell for local control of education. It would mean neither centralized decisionmaking nor federal court intervention in the operation of public schools. Clearly, this suit has nothing to do with local decisionmaking with respect to educational policy or even educational spending. It involves only a narrow aspect of local control—namely, local control over the raising of educational funds. In fact, in striking down interdistrict disparities in taxable local wealth, the District Court took the course which is most likely to make true local control over educational decision-making a reality for all Texas school districts.
189
Nor does the District Court's decision even necessarily eliminate local control of educational funding. The District Court struck down nothing more than the continued interdistrict wealth discrimination inherent in the present property tax. Both centralized and decentralized plans for educational funding not involving such interdistrict discrimination have been put forward.98 The choice among these or other alternatives would remain with the State, not with the federal courts. In this regard, it should be evident that the degree of federal intervention in matters of local concern would be substantially less in this context than in previous decisions in which we have been asked effectively to impose a particular scheme upon the States under the guise of the Equal Protection Clause. See, e.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Cf. Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).
190
Still, we are told that this case requires us 'to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests.' Ante, at 40. Yet no one in the course of this entire litigation has ever questioned the constitutionality of the local property tax as a device for raising educational funds. The District Court's decision, at most, restricts the power of the State to make educational funding dependent exclusively upon local property taxation so long as there exists interdistrict disparities in taxable property wealth. But it hardly eliminates the local property tax as a source of educational funding or as a means of providing local fiscal control.99
191
The Court seeks solace for its action today in the possibility of legislative reform. The Court's suggestions of legislative redress and experimentation will doubtless be of great comfort to the schoolchildren of Texas' disadvantaged districts, but considering the vested interests of wealthy school districts in the preservation of the status quo, they are worth little more. The possibility of legislative action is, in all events, no answer to this Court's duty under the Constitution to eliminate unjustified state discrimination. In this case we have been presented with an instance of such discrimination, in a particularly invidious form, against an individual interest of large constitutional and practical importance. To support the demonstrated discrimination in the provision of educational opportunity the State has offered a justification which, on analysis, takes on at best an ephemeral character. Thus, I believe that the wide disparities in taxable district property wealth inherent in the local property tax element of the Texas financing scheme render that scheme violative of the Equal Protection Clause.100
192
I would therefore affirm the judgment of the District Court.
Page 134
193
TO OPINION OF MARSHALL, J., DISSENTING
REVENUES OF TEXAS SCHOOL DISTRICTS
CATEGORIZED BY EQUALIZED PROPERTY VALUES AND SOURCE OF FUNDS
CATEGORIES
Total Revenues
State and Local Per Pupil
Market Value of Revenues Per Federal (State-Local-
Taxable Property Local Revenues State Revenues Pupil (Columns Revenues Federal, Columns
Per Pupil Per Pupil Per Pupil 1 and 2) Per Pupil 1, 2 and 4)
Above $100,000 $610 $205 $815 $41 $856
(10 districts)
$100,000-$50,000 287 257 544 66 610
(26 districts)
$50,000-$30,000 224 260 484 45 529
(30 districts)
$30,000-$10,000 166 295 461 85 546
(40 districts)
Below $10,000 63 243 306 135 441
(4 districts)
Page 135
194
APPENDIX II TO OPINION OF MARSHALL, J., DISSENTING
TEXAS SCHOOL DISTRICTS CATEGORIZED BY
EQUALIZED PROPERTY VALUES, EQUALIZED
TAX RATES, AND YIELD OF RATES
CATEGORIES EQUALIZED YIELD PER PUPIL
Market Value of TAX (Equalized Rate
Taxable Property RATES Applied to District
Per Pupil ON $100 Market Value)
Above $100,000 $.31 $585
(10 districts)
$100,000-$50,000 .38 262
(26 districts)
$50,000-$30,000 .55 213
(30 districts)
$30,000-$10,000 .72 162
(40 districts)
Below $10,000 .70 60
(4 districts)
Page 136
195
APPENDIX III TO
OPINION OF MARSHALL, J., DISSENTING
SELECTED BEXAR COUNTY, TEXAS, SCHOOL DISTRICTS CATEGORIZED BY
EQUALIZED PROPERTY VALUATION AND SELECTED INDICATORS
OF EDUCATIONAL QUALITY
Selected Districts Per Cent of Per Cent of
From High to Low by Professional Teachers With Total Staff Student-
Professional
Market Valuation Salaries Per College Masters With Emerg- Counselor Professional
Per Pupil Pupil Degrees Degrees ency Permits Ratios Per 100 Pupils
ALAMO HIEIGHTS $372 100% 40% 11% 645 4.80
NORTH EAST 288 99 24 7 1,516 4.50
SAN ANTONIO 251 98 29 17 2,320 4.00
NORTH SIDE 258 99 20 17 1,493 4.30
HARLANDALE 243 94 21 22 1,800 4.00
EDGEWOOD 209 96 15 47 3,098 4.06
Page 137
196
APPENDIX IV TO OPINION OF MARSHALL, J., DISSENTING
BEXAR COUNTY, TEXAS, SCHOOL DISTRICTS
RANKED BY EQUALIZED PROPERTY VALUE
AND TAX RATE REQUIRED TO GENERATE
HIGHEST YIELD IN ALL DISTRICTS
Districts Ranked from Tax Rate Per $100
High to Low Market Needed to Equal
Valuation Per Pupil Highest Yield
ALAMO HEIGHTS $0.68
JUDSON 1.04
EAST CENTRAL 1.17
NORTH EAST 1.21
SOMERSET 1.32
SAN ANTONIO 1.56
NORTH SIDE 1.65
SOUTH WEST 2.10
SOUTH SIDE 3.03
HARLANDALE 3.20
SOUTH SAN ANTONIO 5.77
EDGEWOOD 5.76
1
Not all of the children of these complainants attend public school. One family's children are enrolled in private school 'because of the condition of the schools in the Edgewood Independent School District.' Third Amended Complaint, App. 14.
2
The San Antonio Independent School District, whose name this case still bears, was one of seven school districts in the San Antonio metropolitan area that were originally named as defendants. After a pretrial conference, the District Court issued an order dismissing the school districts from the case. Subsequently, the San Antonio Independent School District joined in the plaintiffs' challenge to the State's school finance system and filed an amicus curiae brief in support of that position in this Court.
3
A three-judge court was properly convened and there are no questions as to the District Court's jurisdiction or the direct appealability of its judgment. 28 U.S.C. §§ 2281, 1253.
4
The trial was delayed for two years to permit extensive pretrial discovery and to allow completion of a pending Texas legislative investigation concerning the need for reform of its public school finance system. 337 F.Supp. 280, 285 n. 11 (W.D.Tex.1971).
5
337 F.Supp. 280. The District Court stayed its mandate for two years to provide Texas an opportunity to remedy the inequities found in its financing program. The court, however, retained jurisdiction to fashion its own remedial order if the State failed to offer an acceptable plan. Id., at 286.
6
Tex.Const., Art. X, § 1 (1845):
'A general diffusion of knowledge being essential to the preservation of the rights and liberties of the people, it shall be the duty of the legislature of this State to make suitable provision for the support and maintenance of public schools.'
Id., § 2:
'The Legislature shall, as early as practicable, establish free schools throughout the State, and shall furnish means for their support by taxation on property . . ..'
7
Tex.Const. of 1876, Art. 7, § 3, as amended, Aug. 14, 1883, Vernon's Ann.Tex.St.
8
Id., Art. 7, §§ 3, 4, 5.
9
3 Gammel's Laws of Texas 1847—1854, p. 1461. See Tex.Const. Art. 7, §§ 1, 2, 5 (interpretive commentaries); 1 Report of Governor's Committee on Public School Education, The Challenge and the Chance 27 (1969) (hereinafter Governor's Committee Report).
10
Tex.Const., Art. 7, § 5 (see also the interpretive commentary); 5 Governor's Committee Report 11—12.
11
The various sources of revenue for the Available School Fund are cataloged in A Report of the Adequacy of Texas Schools, prepared by Texas State Board of Education, 7—15 (1938) (hereinafter Texas State Bd. of Educ.).
12
Tex.Const., Art. 7, § 3, as amended, Nov. 5, 1918 (see interpretive commentary).
13
1 Governor's Committee Report 35; Texas State Md. of Educ., supra, n. 11, at 5—7; J. Coons, W. Clune, & S. Sugarman, Private Wealth and Public Education 48—49 (1970); E. Cubberley, School Funds and Their Apportionment 21—27 (1905).
14
By 1940, one-half of the State's population was clustered in its metropolitan centers. 1 Governor's Committee Report 35.
15
Gilmer-Aikin Committee, To Have What We Must 13 (1948).
16
Still, The Gilmer-Aikin Bills 11—13 (1950); Texas State Bd. of Educ., supra, n. 11.
17
R. Still, supra, n. 16, at 12. It should be noted that during this period the median per-pupil expenditure for all schools with an enrollment of more than 200 was approximately $50 per year. During this same period, a survey conducted by the State Board of Education concluded that 'in Texas the best educational advantages offered by the State at present may be had for the median cost of $52.67 per year per pupil in average daily attendance.' Texas State Bd. of Educ., supra, n. 11, at 56.
18
General Laws of Texas, 46th Legis., Reg.Sess.1939, c. 7, pp. 274—275 ($22.50 per student); General & Spec.Laws of Texas, 48th Legis., Reg.Sess.1943, c. 161, pp. 262—263 ($25 per student).
19
General & Spec.Laws of Texas, 49th Legis., Reg.Sess.1945, c. 52, pp. 74—75; Still, supra, n. 16, at 12.
20
For a complete history of the adoption in Texas of a foundation program, see Still, supra, n. 16. See also 5 Governor's Committee Report 14; Texas Research League, Public School Finance Problems in Texas 9 (Interim Report 1972).
21
For the 1970—1971 school year this state aid program accounted for 48% of all public school funds. Local taxation contributed 41.1% and 10.9% was provided in federal funds. Texas Research League, supra, n. 20, at 9.
22
5 Governor's Committee Report 44—48.
23
At present, there are 1,161 school districts in Texas. Texas Research League, supra, n. 20, at 12.
24
In 1948, the Gilmer-Aikin Committee found that some school districts were not levying any local tax to support education. Gilmer-Aikin Committee, supra, n. 15, at 16. The Texas State Board of Education Survey found that over 400 common and independent school districts were levying no local property tax in 1935—1936. Texas State Bd. of Educ., supra n. 11, at 39—42.
25
Gilmer-Aikin Committee, supra, n. 15, at 15.
26
1 Governor's Committee Report 51—53.
27
Texas Research League, supra, n. 20, at 2.
28
In the years between 1949 and 1967, the average per-pupil expenditure for all current operating expenses increased from $206 to $493. In that same period, capital expenditures increased from $44 to $102 per pupil. 1 Governor's Committee Report 53—54.
29
Acts 1949, 51st Legis., p. 625, c. 334, Art. 4, Tex.Educ.Code Ann. § 16.302 (1972); see generally 3 Governor's Committee Report 113—146; Berke, Carnevale, Morgan & White, The Texas School Finance Case: A Wrong in Search of a Remedy, 1 J. of L. & Educ. 659, 681—682 (1972).
30
The family income figures are based on 1960 census statistics.
31
The Available School Fund, technically, provides a second source of state money. That Fund has continued as in years past (see text accompanying nn. 16—19, supra) to distribute uniform per-pupil grants to every district in the State. In 1968, this Fund allotted $98 per pupil However, because the Available School Fund contribution is always subtracted from a district's entitlement under the Foundation Program, it plays no siginficant role in educational finance today.
32
While federal assistance has an ameliorating effect on the difference in school budgets between wealthy and poor disdistricts, the District Court rejected an argument made by the State in that court that it should consider the effect of the federal grant in assessing the discrimination claim. 337 F.Supp., at 284. The State has not renewed that contention here.
33
A map of Bexar County included in the record shows that Edgewood and Alamo Heights are among the smallest districts in the county and are of approximately equal size. Yet, as the figures above indicate, Edgewood's student population is more than four times that of Alamo Heights. This factor obviously accounts for a significant percentage of the differences between the two districts in per-pupil property values and expenditures. If Alamo Heights had as many students to educate as Edgewood does (22,000) its per pupil assessed property value would be approximately $11,100 rather than $49,000, and its per-pupil expenditures would therefore have been considerably lower.
34
The figures quoted above vary slightly from those utilized in the District Court opinion. 337 F.Supp., at 282. These trivial differences are apparently a product of that court's reliance on slightly different statistical data than we have relied upon.
35
Although the Foundation Program has made significantly greater contributions to both school districts over the last several years, it is apparent that Alamo Heights has enjoyed a larger gain. The sizable difference between the Alamo Heights and Edgewood grants is due to the emphasis in the State's allocation formula on the guaranteed minimum salaries for teachers. Higher salaries are guaranteed to teachers having more years of experience and possessing more advanced degrees. Therefore, Alamo Heights, which has a greater percentage of experienced personnel with advanced degrees, receives more state support. In this regard, the Texas Program is not unlike that presently in existence in a number of other States. Coones, Clune, Sugarman, supra, n. 13, at 63—125. Because more dollars have been given to districts that already spend more per pupil, such Foundation formulas have been described as 'anti-equalizing.' Ibid. The formula, however, is anti-equalizing only if viewed in absolute terms. The percentage disparity between the two Texas districts is diminshed substantially by state aid. Alamo Heights derived in 1967—1968 almost 13 times as much money from local taxes as Edgewood did. The state aid grants to each district in 1970—1971 lowered the ratio to approximately two to one, i.e., Alamo Heights had a little more than twice as much money to spend per pupil from its combined state and local resources.
36
Texas Research League, supra, n. 20, at 13.
37
The Economic Index, which determines each county's share of the total Local Fund Assignment, is based on a complex formula conceived in 1949 when the Foundation Program was instituted. See text, supra, at 9—10. It has frequently been suggested by Texas researchers that the fomula be altered in several respects to provide a more accurate reflection of local taxpaying ability, especially of urban school districts. 5 Governor's Committee, Report 48; Texas Research League, Texas Public School Finance: A Majority of Exceptions 31—32 (2d Interim Report 1972); Berke, Carnevale, Morgan & White, supra, n. 29, at 680—681.
38
The District Court relied on the findings presented in an affidavit submitted by Professor Berke of Syracuse University. His sampling of 110 Texas school districts demonstrated a direct correlation between the amount of a district's taxable property and its level of per-pupil expenditures. But this study found only a partial correlation between a district's median family income and per-pupil expenditures. The study also shows, in the relatively few districts at the extremes, an inverse correlation between percentage of minorities and expenditures.
Categorized by Equalized Property Values, Median Family
Income, and State-Local Revenue
Market Value Median State &
of Taxable Family Per Cent Local
Property Income Minority Revenues
Per Pupil From 1960 Pupils Per Pupil
Above $100,000 $5,900 8% $815
(10 districts)
$100,000-$50,000 $4,425 32% $544
(26 districts)
$50,000-$30,000 $4,900 23% $483
(30 districts)
$30,000-$10,000 $5,050 31% $462
(40 districts)
Below $10,000 $3,325 79% $305
(4 districts)
Although the correlations with respect to family income and race appear only to exist at the extremes, and although the affiant's methodology has been questioned (see Goldstein, Interdistrict Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 523—525, nn. 67, 71 (1972)), insofar as any of these correlations is relevant to the constitutional thesis presented in this case we may accept its basic thrust. But see infra, at 27—25. For a defense of the reliability of the affidavit, see Berke, Carnevale, Morgan & White, supra, n. 29.
39
E.g., Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
40
E.g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).
41
See Dunn v. Blumstein, supra, 405 U.S., at 343, 92 S.Ct., at 1003, and the cases collected therein.
42
Brief for Appellants 11.
43
Ibid.
44
Tr. of Oral Arg. 3; Reply Brief for Appellants 2.
45
E.g., 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).
46
Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); McDonald v. Board of Election Com'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973).
47
See cases cited in text, infra, at 29—30.
48
Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971); Van Dusartz v. Hatfield, 334 F.Supp. 870 (D.C.Minn.1971); Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 (1972); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan. 1973.
49
In their complaint, appellees purported to represent a class composed of persons who are 'poor' and who reside in school districts having a 'low value of . . . property.' Third Amended Complaint App. 15. Yet appellees have not defined the term 'poor' with reference to any absolute or functional level of impecunity. See text, infra, at 22—23. See also Brief for Appellees 1, 3; Tr. of Oral Arg. 20—21.
50
Appellees' proof at trial focused on comparative differences in family incomes between residents of wealthy and poor districts. They endeavored, apparently, to show that there exists a direct correlation between personal family income and educational expenditures. See text, infra, at 25—27. The District Court may have been relying on this notion of relative discrimination based on family wealth. Citing appellees' statistical proof, the court emphasized that 'those districts most rich in property also have the highest median family income . . . while the poor property districts are poor in income . . ..' 337 F.Supp., at 282.
51
At oral argument and in their brief, appellees suggest that description of the personal status of the residents in districts that spend less on education is not critical to their case. In their view, the Texas system is impermissibly discriminatory even if relatively poor districts do not contain poor people. Brief for Appellees 43—44; Tr. of Oral Arg. 20—21. There are indications in the District Court opinion that it adopted this theory of districts discrimination. The opinion repeatedly emphasizes the comparative financial status of districts and early in the opinion it describes appellees' class as being composed of 'all . . . children throughout Texas who live in school districts with low property valuations.' 337 F.Supp., at 281.
52
Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington State Board of Prisons, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958).
53
Note, A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars, 81 Yale L.J. 1303, 1328—1329 (1972).
54
Id., at 1324 and n. 102.
55
Id., at 1328.
56
Each of appellees' possible theories of wealth discrimination is founded on the assumption that the quality of education varies directly with the amount of funds expended on it and that, therefore, the difference in quality between two schools can be determined simplistically by looking at the difference in per-pupil expenditures. This is a matter of considerable dispute among educators and commentators. See nn. 86 and 101, infra.
57
E.g., Bullock v. Carter, 405 U.S., at 137, 149, 92 S.Ct., at 852, 858; Mayer v. City of Chicago, 404 U.S., at 194, 92 S.Ct., at 414; Draper v. Washington, 372 U.S., at 495—496, 83 S.Ct., at 778—779; Douglas v. California, 372 U.S., at 357, 83 S.Ct., at 816.
58
Gilmer-Aikin Committee, supra, n. 15, at 13. Indeed, even though local funding has long been a significant aspect of educational funding, the State has always viewed providing an acceptable education as one of its primary functions. See Texas State Bd. of Educ., supra, n. 11, at 1, 7.
59
Brief for Appellants 35; Reply Brief for Appellants 1.
60
An educational financing system might be hypothesized, however, in which the analogy to the wealth discrimination cases would be considerably closer. If elementary and secondary education were made available by the State only to those able to pay a tuition assessed against each pupil, there would be a clearly defined class of 'poor' people—definable in terms of their inability to pay the prescribed sum—who would be absolutely precluded from receiving an education. That case would present a far more compelling set of circumstances for judicial assistance than the case before us today. After all, Texas has undertaken to do a good deal more than provide an education to those who can afford it. It has provided what it considers to be an adequate base education for all children and has attempted, though imperfectly, to ameliorate by state funding and by the local assessment program the disparities in local tax resources.
61
Also, it should be recognized that median income statistics may not define with any precision the status of individual families within any given district. A more dependable showing of comparative wealth discrimination would also examine factors such as the average income, the mode, and the concentration of poor families in any district.
62
Cf. Jefferson v. Hackney, 406 U.S. 535, 547—549, 92 S.Ct. 1724, 1723—1733, 32 L.Ed.2d 285 (1972); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1258—1259 (1970); Simon, The School Finance Decisions: Collective Bargaining and Future Finance Systems, 82 Yale L.J. 409, 439—440 (1973).
63
Supra, at 15 n. 38.
64
Studies in other States have also questioned the existence of any dependable correlation between a district's wealth measured in terms of assessable property and the collective wealth of families residing in the district measured in terms of median family income. Ridenour & Ridenour, Serrano v. Priest: Wealth and Kansas School Finance, 20 Kan.L. 213, 225 (1972) ('it can be argued that there exists in Kansas almost an inverse correlation: districts with highest income per pupil have low assessed value per pupil, and districts with high assessed value per pupil have low income per pupil'); Davis, Taxpaying Ability: A Study of the Relationship Between Wealth and Income in California Counties, in The Challenge of Change in School Finance, 10th Nat. Educational Assn. Conf. on School Finance 199 (1967). Note, 81 Yale L.J., supra, n. 53. See also Goldstein, supra, n. 38, at 522 527.
65
Indeed, this is predisely how the plaintiffs in Serrano v. Priest defined the class they purported to represent: 'Plaintiff children claim to represent a class consisting of all public school pupils in California, 'except children in that school district . . . which . . . affords the greatest educational opportunity of all school districts within California." 5 Cal.3d, at 589, 96 Cal.Rptr., at 604, 487 P.2d, at 1244. See also Van Dusartz v. Hatfield, 334 F.Supp., at 873.
66
Appellees, however, have avoided describing the Texas system as one resulting merely in discrimination between districts per se since this Court has never questioned the State's power to draw reasonable distinctions between political subdivisions within its borders. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 230—231, 84 S.Ct. 1226, 1232—1233, 12 L.Ed.2d 256 (1964); McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Salsburg v. Maryland, 346 U.S. 545, 552, 74 S.Ct. 280, 284, 98 L.Ed. 281 (1954).
67
E.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). See Mr. Justice MARSHALL'S dissenting opinion, post, at 121.
68
See Serrano v. Priest, supra; Van Dusartz v. Hatfield, supra; Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187, (1972); Coons, Clune & Sugarman, supra, n. 13, at 339—393; Goldstein, supra, n. 38, at 534—541; Vieira, Unequal Educational Expenditures: Some Minority Views on Serrano v. Priest, 37 Mo.L.Rev. 617, 618—624 (1972); Comment, Educational Financing, Equal Protection of the Laws, and the Supreme Court, 70 Mich.L.Rev. 1324, 1335—1342 (1972); Note, The Public School Financing Cases: Interdistrict Inequalities and Wealth Discrimination, 14 Ariz.L.Rev. 88, 120—124 (1972).
69
337 F.Supp., at 283.
70
E.g., United States v. Guest, 383 U.S. 745, 757—759, 86 S.Ct. 1170, 1177—1179, 16 L.Ed.2d 239 (1966); Oregon v. Mitchell, 400 U.S. 112, 229, 237—238, 91 S.Ct. 260, 317, 321—322, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, and Marshall, JJ.).
71
After Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), there could be no lingering question about the constitutional foundation for the Court's holding in Shapiro. In Dandridge, the Court applied the rational-basis test in reviewing Maryland's maximum family grant provision under its AFDC program. A federal district court held the provision unconstitutional, applying a stricter standard of review. In the course of reversing the lower court, the Court distinguished Shapiro properly on the ground that in that case 'the Court found state interference with the constitutionally protected freedom of interstate travel.' Id., at 484 n. 16, 90 S.Ct., at 1161.
72
The Court refused to apply the strict-scrutiny test despite its contemporaneous recognition in Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970) that 'welfare provides the means to obtain essential food, clothing, housing, and medical care.'
73
In Eisenstadt, the Court struck down a Massachusetts statute that prohibited the distribution of contraceptive devices, finding that the law failed 'to satisfy even the more lenient equal protection standard.' 405 U.S., at 447 n. 7, 92 S.Ct., at 1035. Nevertheless, in dictum, the Court recited the correct form of equal protection analysis: '(I)f we were to conclude that the Massachusetts statute impinges upon fundamental freedoms under Griswold (v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)), 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.' Ibid. (emphasis in original).
74
Dunn fully canvasses this Court's voting rights cases and explains that '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.' 405 U.S., at 336, 92 S.Ct., at 1000 (emphasis supplied). The constitutional underpinnings of the right to equal treatment in the voting process can no longer be doubted even though, as the Court noted in Harper v. Virginia Bd. of Elections, 383 U.S., at 665, 86 S.Ct., at 1080, 'the right to vote in state elections is nowhere expressly mentioned.' See Oregon v. Mitchell, 400 U.S., at 135, 138—144, 91 S.Ct., at 270, 271—275 (Douglas, J.) 229, 241—242, 91 S.Ct. 317, 323—324 (Brennan, White, and Marshall, JJ.); Bullock v. Carter, 405 U.S., at 140—144, 92 S.Ct., at 854—856; Kramer v. Union Free School District, 395 U.S. 621, 625—630, 89 S.Ct. 1886, 1888—1889, 23 L.Ed.2d 583 (1969); Williams v. Rhodes, 393 U.S. 23, 29, 30—31, 89 S.Ct. 5, 9, 10—11, 21 L.Ed.2d 24 (1968); Reynolds v. Sims, 377 U.S. 533, 554—562, 84 S.Ct. 1362, 1377—1382, 12 L.Ed.2d 506 (1964); Gray v. Sanders, 372 U.S. 368, 379—381, 83 S.Ct. 801, 807—809, 9 L.Ed.2d 821 (1963).
75
In Mosley, the Court struck down a Chicago antipicketing ordinance that exempted labor picketing from its prohibitions. The ordinance was held invalid under the Equal Protection Clause after subjecting it to careful scrutiny and finding that the ordinance was not narrowly drawn. The stricter standard of review was appropriately applied since the ordinance was one 'affecting First Amendment interests.' 408 U.S., at 101, 92 S.Ct., at 2293.
76
Skinner applied the standard of close scrutiny to a state law permitting forced sterilization of 'habitual criminals.' Implicit in the Court's opinion is the recognition that the right of procreation is among the rights of personal privacy protected under the Constitution. See Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973).
77
See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389—390, 89 S.Ct. 1794, 1806—1807, 23 L.Ed.2d 371 (1969); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); Lamont v. Postmaster General, 381 U.S. 301, 306—307, 85 S.Ct. 1493, 1496—1497, 14 L.Ed.2d 398 (1965).
78
Since the right to vote, per se, is not a constitutionally protected right, we assume that appellees' references to that right are simply shorthand references to the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population. See n. 74, supra.
79
The States have often pursued their entirely legitimate interest in assuring 'intelligent exercise of the franchise,' Katzenbach v. Morgan, 384 U.S. 641, 655, 86 S.Ct. 1717, 1726, 16 L.Ed.2d 828 (1966), through such devices as literacy tests and age restrictions on the right to vote. See ibid.; Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). And, where those restrictions have been found to promote intelligent use of the ballot without discriminating against those racial and ethnic minorities previously deprived of an equal educational opportunity, this Court has upheld their use. Compare Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), with Oregon v. Mitchell, supra, 400 U.S., at 133, 91 S.Ct., at 269 (Black, J.), 135, 144—147, 91 S.Ct. 270, 274 276 (Douglas, J.), 152, 216—217, 91 S.Ct. 279, 310—311 (Harlan, j.), 229, 231—236, 91 S.Ct. 317, 318—321 (Brennan, White, and Marshall, JJ.), 281, 282—284, 91 S.Ct. 343—344 (Stewart, J.), and Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969).
80
See Schoettle, The Equal Protection Clause in Public Education, 71 Col.L.Rev. 1355, 1389—1390 (1971); Vieira, supra, n. 68, at 622—623; Comment, Tenant Interest Representation: Proposal for a National Tenants' Association, 47 Tex.L.Rev. 1160, 1172 1173, n. 61 (1969).
81
Katzenbach v. Morgan involved a challenge by registered voters in New York City to a provision of the Voting Rights Act of 1965 that prohibited enforcement of a state law calling for English literacy tests for voting. The law was suspended as to residents from Puerto Rico who had completed at least six years of education at an 'American-flag' school in that country even though the language of instruction was other than English. This Court upheld the questioned provision of the 1965 Act over the claim that it discriminated against those with a sixth-grade education obtained in non-English-speaking schools other than the ones designated by the federal legislation.
82
Cf. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Hargrave v. Kirk, 313 F.Supp. 944 (M.D.Fla.1970), vacated, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).
83
See Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971); McDonald v. Board of Election Com'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969).
84
See, e.g., Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 10 S.Ct. 533, 33 L.Ed. 892 (1890); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508—509, 57 S.Ct. 868, 871—872, 81 L.Ed. 1245 (1937); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959).
85
Those who urge that the present system be invalidated offer little guidance as to what type of school financing should replace it. The most likely result of rejection of the existing system would be state-wide financing of all public education with funds derived from taxation of property or from the adoption or expansion of sales and income taxes. See Simon, supra, n. 62. The authors of Private Wealth and Public Education, supra, n. 13, at 201—242, suggest an alternative scheme, known as 'district power equalizing.' In simplest terms, the State would guarantee that at any particular rate of property taxation the district would receive a stated number of dollars regardless of the district's tax base. To finance the subsidies to 'poorer' districts, funds would be taken away from the 'wealthier' districts that, because of their higher property values, collect more than the stated amount at any given rate. This is not the place to weigh the arguments for an against 'district power equalizing,' beyond noting that commentators are in disagreement as to whether it is feasible, how it would work, and indeed whether it would violate the equal protection theory underlying appellees' case. President's Commission on School Finance, Schools, People, & Money 32—33 (1972); Bateman & Brown. Some Reflections on Serrano v. Priest, 49 J. Urban L. 701, 706—708 (1972); Brest, Book Review, 23 Stan.L.Rev. 591, 594—596 (1971); Goldstein, supra, n. 38, at 542 543; Wise, School Finance Equalization Lawsuits: A Model Legislative Response, 2 Yale Rev. of L. & Soc. Action 123, 125 (1971); Silard & White, Intrastate Inequalities in Public Education: The Case for Judicial Relief Under the Equal Protection Clause, 1970 Wis.L.Rev. 7, 29—30.
86
The quality-cost controversy has received considerable attention. Among the notable authorities on both sides are the following: C. Jencks, Inequality (1972); C. Silberman, Crisis in the Classroom (1970); U.S. Office of Education, Equality of Educational Opportunity (1966) (the Coleman Report); On Equality of Educational Opportunity (F. Mosteller & D. Moynihan eds. 1972); J. Guthrie, G. Kleindorfer, H. Levin & R. Stout, Schools and Inequality; President's Commission on School Finance, supra, n. 85; Swanson, The Cost-Quality Relationship, in The Challenge of Change in School Finance, 10th Nat. Educational Assn. Conf. on School Finance 151 (1967).
87
See the results of the Texas Governor's Committee's statewide survey on the goals of education in that State. 1 Governor's Committee Report 59—68. See also Goldstein, supra, n. 38, at 519—522; Schoettle, supra, n. 80; authorities cited in n. 86, supra.
88
Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 530, 532, 79 S.Ct. 437, 442, 444, 3 L.Ed.2d 480 (1959) (Brennan, J., concurring); Katzenbach v. Morgan, 384 U.S., at 659, 661, 86 S.Ct., at 1731, 1732 (Harlan, J., dissenting).
89
In 1970 Texas expended approximately.$2.1 billion for education and a little over one billion came from the Minimum Foundation Program. Texas Research League, supra, n. 20, at 2.
90
Tex.Educ.Code Ann. § 16.13 (1972) V.T.C.A.
91
Id., § 16.18.
92
Id., § 16.15.
93
Id., §§ 16.16, 16.17, 16.19.
94
Id., §§ 16.45, 16.51—16.63.
95
Id., §§ 12.01—12.04.
96
Id., § 11.26(a)(5).
97
Id., § 16.301 et seq.
98
See supra, at 13—14.
99
Gilmer-Aikin Committee, supra, n. 15, at 15.
100
There is no uniform statewide assessment practice in Texas. Commercial property, for example, might be assessed at 30% of market value in one county and at 50% in another. 5 Governor's Committee Report 25—26; Berke, Carnevale, Morgan & White, supra, n. 29, at 666—667, n. 16.
101
Texas Research League, supra, n. 20, at 18. Texas, in this regard, is not unlike most other States. One commentator has observed that 'disparities in expenditures appear to be largely explained
by variations in teacher salaries.' Simon, supra, n. 62, at 413.
As previously noted, see text accompanying n. 86, supra, the extent to which the quality of education varies with expenditure per pupil is debated inconclusively by the most thoughtful students of public education. While all would agree that there is a correlation up to the point of providing the recognized essentials in facilities and academic opportunities, the issues of greatest disagreement include the effect on the quality of education of pupil-teacher ratios and of higher teacher salary schedules. E.g., Office of Education, supra, n. 86, at 316—319. The state funding in Texas is designed to assure, on the average, one teacher for every 25 students, which is considered to be a favorable ratio by most standards. Whether the minimum salary of $6,000 per year is sufficient in Texas to attract qualified teachers may be more debatable, depending in major part upon the location of the school district. But there appear to be few empirical data that support the advantage of any particular pupil-teacher ratio or that document the existence of a dependable correlation between the level of public school teachers' salaries and the quality of their classroom instruction. An intractable problem in dealing with teachers' salaries is the absence, up to this time, of satisfactory techniques for judging their ability or performance. Relatively few school systems have merit plans of any kind, with the result that teachers' salaries are usually increased across the board in a way which tends to reward the least deserving on the same basis as the most deserving. Salaries are usually raised automatically on the basis of length of service and according to predetermined 'steps,' extending over 10- to 12-year periods.
102
President's Commission on School Finance, supra, n. 85, at 9. Until recently, Hawaii was the only State that maintained a purely state-funded educational program. In 1968, however, that State amended its educational finance statute to permit counties to collect additional funds locally and spend those amounts on its schools. The rationale for that recent legislative choice is instructive on the question before the Court today:
'Under existing law, counties are precluded from doing anything in this area, even to spend their own funds if they so desire. This corrective legislation is urgently needed in order to allow counties to go above and beyond the State's standards and provide educational facilities as good as the people of the counties want and are willing to pay for. Allowing local communities to go above and beyond established minimums to provide for their people encourages the best features of democratic government.' Haw.Sess.Laws, 1968, Act 38, § 1.
103
See text accompanying n. 7, supra.
104
G. Strayer & R. Haig, The Financing of Education in the State of New York (1923). For a thorough analysis of the contribution of these reformers and of the prior and subsequent history of educational finance, see Coons, Clune & Sugarman, supra, n. 13, at 39—95.
105
J. Coleman, Forward to Strayer & Haig, supra, at vii.
106
New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 375, 387, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting).
107
Mr. Justice WHITE suggests in his dissent that the Texas system violates the Equal Protection Clause because the means it has selected to effectuate its interest in local autonomy fail to guarantee complete freedom of choice to every district. He places special emphasis on the statutory provision that establishes a maximum rate of $1.50 per $100 valuation at which a local school district may tax for school maintenance. Tex.Educ.Code Ann. § 20.04(d) (1972). The maintenance rate in Edgewood when this case was litigated in the District Court was $.55 per $100, barely one-third of the allowable rate. (The tax rate of $1.05 per $100, see supra, at 12, is the equalized
rate for maintenance and for the retirement of bonds.) Appellees do not claim that the ceiling presently bars desired tax increases in Edgewood or in any other Texas district. Therefore, the constitutionality of that statutory provision is not before us and must await litigation in a case in which it is properly presented. Cf. Hargrave v. Kirk, 313 F.Supp. 944 (M.D.Fla.1970), vacated, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).
108
Mr. Justice MARSHALL states in his dissenting opinion that the State's asserted interest in local control is a 'mere sham,' post, at 130, and that it has been offered, not as a legitimate justification, but 'as an excuse . . . for interdistrict inequality.' Id., at 126. In addition to asserting that local control would be preserved and possibly better served under other systems—a consideration that we find irrelevant for the purpose of deciding whether the system may be said to be supported by a legitimate and reasonable basis—the dissent suggests that Texas' lack of good faith may be demonstrated
by examining the extent to which the State already maintains considerable control. The State, we are told, regulates 'the most minute details of local public education,' ibid., including textbook selection, teacher qualifications, and the length of the school day. This assertion, that genuine local control does not exist in Texas, simply cannot be supported. It is abundantly refuted by the elaborate statutory division of responsibilities set out in the Texas Education Code. Although policy decision-making and supervision in certain areas are reserved to the State, the day-to-day authority over the 'management and control' of all public elementary and secondary schools is squarely placed on the local school boards. Tex.Educ.Code Ann. §§ 17.01, 23.26 (1972). Among the innumerable specific powers of the local school authorities are the following: the power of eminent domain to acquire land for the construction of school facilities, id., §§ 17.26, 23.26; the power to hire and terminate teachers and other personnel, id., §§ 13.101—13.103; the power to designate conditions of teacher employment and to establish certain standards of educational policy, id., § 13.901; the power to maintain order and discipline, id., § 21.305, including the prerogative to suspend students for disciplinary reasons, id., § 21.301; the power to decide whether to offer a kindergarten program, id., §§ 21.131—21.135, or a vocational training program, id., § 21.111, or a program of special education for the handicapped, id., § 11.16; the power to control the assignment and transfer of students, id., §§ 21.074—21.080; and the power to operate and maintain a school bus program, id., § 16.52. See also Pervis v. LaMarque Ind. School Dist., 328 F.Supp. 638, 642—643 S.D.Tex.1971), reversed, 466 F.2d 1054 (CA5 1972); Nichols v. Aldine Ind. School Dist., 356 S.W.2d 182 (Tex.Civ.App.1962). Local school boards also determine attendance zones, location of new schools, closing of old ones, school attendance hours (within limits), grading and promotion policies subject to general guidelines, recreational and athletic policies, and a myriad of other matters in the routine of school administration. It cannot be seriously doubted that in Texas education remains largely a local function, and that the preponderating bulk of all decisions affecting the schools is made and executed at the local level, guaranteeing the greatest participation by those most directly concerned.
109
This theme—that greater state control over funding will lead to greater state power with respect to local educational programs and policies—is a recurrent one in the liternature on financing public education. Professor Simon, in his thoughtful analysis of the political ramifications of this case, states that one of the most likely consequences of the District Court's decision would be an inerease in the centralization of school finance and an increase in the extent of collective bargaining by teacher unions at the state level. He suggests that the subjects for bargaining may include many 'non-salary' items, such as teaching loads, class size, curricular and program choices, questions of student discipline, and selection of administrative personnel—matters traditionally decided heretofore at the local level. Simon, supra, n. 62, at 434—436. See, e.g., Coleman, The Struggle for Control of Education, in Education and Social Policy: Local Control of Education 64, 77—79 (C. Bowers, I. Housego & D. Dyke eds. 1970); J Conant, The Child, The Parent, and The State 27 (1959) ('Unless a local community, through its school board, has some control over the purse, there can be little real feeling in the community that the schools are in fact local schools . . .'); Howe, Anatomy of a Revolution, in Saturday Review 84, 88 (Nov. 20, 1971) ('It is an axiom of American politics that control and power follow money . . .'); R. Hutchinson, State-Administered Locally-Shared Taxes 21 (1931) ('(S)tate administration of taxation is the first step toward state control of the functions supported by these taxes . . .'). Irrespective of whether one regards such prospects as detrimental, or whether he agrees that the consequence is inevitable, it certainly cannot be doubted that there is a rational basis for this concern on the part of parents, educators, and legislators.
110
This Court has never doubted the propriety of maintaining political subdivisions within the States and has never found in the Equal Protection Clause any per se rule of 'territorial uniformity.' McGowan v. Maryland, 366 U.S., at 427, 81 S.Ct., at 1105. See also Griffin v. County School Board of Prince Edward County, 377 U.S., at 230—231, 84 S.Ct., at 1232 1233; Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954). Cf. Board of Education of, etc., Muskogee v. Oklahoma, 409 F.2d 665, 668 (CA10 1969).
111
Any alternative that calls for significant increases in expenditures for education, whether financed through increases in property taxation or through other sources of tax dollars, such as income and sales taxes, is certain to encounter political barriers. At a time when nearly every State and locality is suffering from fiscal undernourishment, and with demands for services of all kinds burgeoning and with weary taxpayers already resisting tax increases, there is considerable reason to question whether a decision of this Court nullifying present state taxing systems would result in a marked increase in the financial commitment to education. See Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Toward Equal Educational Opportunity 339—345 (Comm.Print 1972); Berke & Callahan, Serrano v. Priest: Milestone or Millstone for School Finance, 21 J.Pub.L. 23, 25—26 (1972); Simon, supra, n. 62, at 420 421. In Texas, it has been calculated that $2.4 billion of additional school funds would be required to bring all schools in that State up to the present level of expenditure of all but the wealthiest districts—an amount more than double that currently being spent on education. Texas Research League, supra, n. 20, at 16—18. An amicus curiae brief filed on behalf of almost 30 States, focusing on these practical consequences, claims with some justification that 'each of the undersigned states . . . would suffer severe financial stringency.' Brief of Amici Curiae in Support of Appellants 2 (filed by Montgomery county, Md., et al.).
112
See Note, supra, n. 53. See also authorities cited n. 114, infra.
113
See Goldstein, supra, n. 38, at 526; Jencks, supra, n. 86, at 27; U.S. Comm'n on Civil Rights, Inequality in School Financing: The Role of the Law 37 (1972). Coons, Clune & Sugarman, supra, n. 13, at 356—357, n. 47, have noted that in California, for example, (f)ifty-nine percent . . . of minority students live in districts above the median (average valuation per pupil.)' In Bexar County, the largest district by far—the San Antonio Independent School District—is above the local average in both the amount of taxable wealth per pupil and in median family income. Yet 72% of its students are Mexican-Americans. And, in 1967—1968 it spent only a very few dollars less per pupil than the North East and North Side Independent School Districts, which have only 7% and 18% Mexican—American enrollment respectively. Berke, Carnevale, Morgan & White, supra, n. 29, at 673.
114
See Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Issues in School Finance 129 (Comm.Print 1972) (monograph entitled Inequities in School Finance prepared by Professors Berke and Callhan); U.S. Office of Education, Finances of Large-City School Systems: A Comparative Analysis (1972) (HEW publication); U.S. Comm'n on Civil Rights, supra, n. 113, at 33—36; Simon, supra, n. 62, at 410—411, 418.
1
See New York Times, Mar. 11, 1973, p. 1, col. 1.
2
There is one notable exception to the above statement: It has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274. But there is no constitutional right to vote, as such. Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627. If there were such a right, both the Fifteenth Amendment and the Nineteenth Amendment would have been wholly unnecessary.
3
But see Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92.
4
See Oyama v. California, 332 U.S. 633, 644—646, 68 S.Ct. 269, 274—275, 92 L.Ed. 249.
5
See Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534.
6
See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. 'Indigency' means actual or functional indigency; it does not mean comparative poverty vis-a -vis comparative affluence. See James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678.
7
See Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768.
8
See. e.g., Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (free speech); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (freedom of interstate travel); Williams v Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (freedom of association); Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 ('liberty' conditionally protected by Due Process Clause of Fourteenth Amendment).
9
See Katzenbach v. Morgan, 384 U.S. 641, 660, 86 S.Ct. 1731, 1732, 16 L.Ed.2d 828 (Harlan, J., dissenting).
1
The heart of the Texas system is embodied in an intricate series of statutory provisions which make up Chapter 16 of the Texas Education Code, Tex.Educ.Code Ann. § 16.01 et seq. See also Tex.Educ.Code Ann. § 15.01 et seq., and § 20.10 et seq.
2
The figures discussed are from Plaintiffs' Exhibits 7, 8, and 12. The figures are from the 1967—1968 school year. Because the various exhibits relied upon different attendance totals, the per-pupil results do not precisely correspond to the gross figures quoted. The disparity between districts, rather than the actual figures, is the important factor.
3
Brief for Appellants 11—13, 35.
4
Variable assessment practices are also revealed in this record. Appellants do not, however, contend that this factor accounts, even to a small extent, for the interdistrict disparities.
5
The per-pupil funds received from state, federal, and other sources, while not precisely equal, do not account for the large differential and are not directly attacked in the present case.
6
The State of Texas appears to concede that the choice of whether or not to go beyond the state-provided minimum 'is easier for some districts than for others. Those districts with large amounts of taxable property can produce more revenue at a lower tax rate and will provide their children with a more expensive education.' Brief for Appellants 35. The State nevertheless insists that districts have a choice and that the people in each district have exercised that choice by providing some real property tax money over and above the mimimum funds guaranteed by the State. Like the majority, however, the State fails to explain why the Equal Protection Clause is not violated, or how its goal of providing local government with realistic choices as to how much money should be expended on education is implemented, where the system makes it much more difficult for some than for others to privide additional educational funds and where, as a practical and legal matter, it is impossible for some districts to provide the educational budgets that other districts can make available from real property tax revenues.
1
See Van Dusartz v. Hatfield, 334 F.Supp. 870, (D.C.Minn.1971); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan. 1973; Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971); Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187, 119 N.J.Super. 40, 289 A.2d 569 (1972); Hollins v. Shofstall, Civil No. C—253652 (Super.Ct.Maricopa County, Ariz., July 7, 1972). See also Sweetwater County Planning Com. for the Organization of School Districts v. Hinkle, 491 P.2d 1234 (Wyo. 1971), juris. relinquished, 493 P.2d 1050 (Wyo.1972).
2
The District Court in this case postponed decision for some two years in the hope that the Texas Legislature would remedy the gross disparities in treatment inherent in the Texas financing scheme. It was only after the legislature failed to act in its 1971 Regular Session that the District Court, apparently recognizing the lack of hope for self-initiated legislative reform, rendered its decision. See Texas Research League, Public School Finance Problems in Texas 13 (Interim Report 1972). The strong vested interest of property-rich districts in the existing property tax scheme poses a substantial barrier to self-initiated legislative reform in educational financing. See N.Y. Times, Dec. 19, 1972, p. 1, col. 1.
3
Texas provides its school districts with extensive bonding authority to obtain capital both for the acquisition of school sites and 'the construction and equipment of school buildings,' Tex.Educ.Code Ann. § 20.01 (1972), and for the acquisition, construction, and maintenance of 'gymnasia, stadia, or other recreational facilities,' id., §§ 20.21—20.22. While such private capital provides a fourth source of revenue, it is, of course, only temporary in nature since the principal and interest of all bonds must ultimately be paid out of the receipts of the local ad valorem property tax, see id., §§ 20.01, 20.04, except to the extent that outside revenues derived from the operation of certain facilities, such as gymnasia, are employed to repay the bonds issued thereon, see id., §§ 20.22, 20.25.
4
See Tex.Const., Art. 7, § 3; Tex.Educ.Code Ann. §§ 20.01 20.02. As a part of the property tax scheme, bonding authority is conferred upon the local school districts, see n. 3, supra.
5
See Tex.Educ.Code Ann. § 20.04.
6
For the 1970—1971 school year, the precise figure was 41.1%. See Texas Research League, supra, n. 2, at 9.
7
See Tex.Educ.Code Ann. § 20.04.
Theoretically, Texas law limits the tax rate for public school maintenance, see id., § 20.02, to $1.50 per $100 valuation, see id., § 20.04(d). However, it does not appear that any Texas district presently taxes itself at the highest rate allowable, although some poor districts are approaching it, see App. 174.
8
Under Texas law local districts are allowed to employ differing bases of assessment—a fact that introduces a third variable into the local funding. See Tex.Educ.Code Ann. § 20.03. But neither party has suggested that this factor is responsible for the disparities in revenues available to the various districts. Consequently, I believe we must deal with this case on the assumption that differences in local methods of assessment do not meaningfully affect the revenue-raising power of local districts relative to one another. The Court apparently admits as much. See ante, at 46. It should be noted, moreover, that the main set of data introduced before the District Court to establish the disparities at issue here was based upon 'equalized taxable property' values which had been adjusted to correct for differing methods of assessment. See App. C to Affidavit of Professor Joel S. Berke.
9
Texas has approximately 1,200 school districts.
10
See Appendix I, post, p. 134.
11
See Ibid. Indeed, appellants acknowledge that the relevant data from Professor Berke's affidavit show ' a very positive correlation, 0.973, between market value of taxable property per pupil and state and local revenues per pupil.' Reply Brief for Appellants 6 n. 9.
While the Court takes issue with much of Professor Berke's data and conclusions, ante, at 15—16, n. 38 and 25—27, I do not understand its criticisms to run to the basic finding of a correlation between taxable district property per pupil and local revenues per pupil. The critique of Professor Berke's methodology upon which the Court relies, see Goldstein, Interdistrict Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 523—525, nn. 67, 71 (1972), is directed only at the suggested correlations between fimily income and taxable district wealth and between race and taxable district wealth. Obviously, the appellants do not question the relationship in Texas between taxable district wealth and per-pupil expenditures; and there is no basis for the Court to do so, whatever the criticisms that may be leveled at other aspects of Professor Berke's study, see infra, n. 55.
12
See Appendix II, post, p. 135.
13
See ibid.
14
For the 1970—1971 school year, the precise figure was 10.9%. See Texas Research League, supra, n. 2, at 9.
15
Appellants made such a contention before the District Court but apparently have abandoned it in this Court. Indeed, data introduced in the District Court simply belie the argument that federal funds have a significant equalizing effect. See Appendix I, post, p. 134. And, as the District Court observed, it does not follow that remedial action by the Federal Government would excuse any unconstitutional discrimination effected by the state financing scheme. 337 F.Supp. 280, 284.
16
For the 1970—1971 school year, the precise figure was 48%. See Texas Research League, supra, n. 2, at 9.
17
See Tex.Const., Art. 7, § 5 (Supp.1972). See also Tex.Educ.Code Ann. § 15.01(b).
18
See Tex.Educ.Code Ann. § 15.01(b).
The Permanent School Fund is, in essence, a public trust initially endowed with vast quantities of public land, the sale of which has provided an enormous corpus that in turn produces substantial annual revenues which are devoted exclusively to public education. See Tex.Const., Art. 7, § 5 (Supp.1972). See also 5 Report of Governor's Committee on Public School Education, The Challenge and the Chance 11 (1969) (hereinafter Governor's Committee Report).
19
This is determined from the average daily attendance within each district for the preceding year. Tex.Educ.Code Ann. § 15.01(c).
20
See id., §§ 16.01—16.975.
21
See id., §§ 16.71(2), 16.79.
22
See id., §§ 16.301—16.316, 16.45, 16.51—16.63.
23
See id., §§ 16.72—16.73, 16.76—16.77.
24
See id., §§ 16.74—19.76. The formula for calculating each district's share is described in 5 Governor's Committee Report 44 48.
25
See Tex.Educ.Code Ann. § 16.01.
26
See 5 Governor's Committee Report 40—41.
27
See id., at 45—67; Texas Research League, Texas Public Schools Under the Minimum Foundation Program—An Evaluation: 1949 4954, pp. 67—68 (1954).
28
Technically, the economic index involves a two-step calculation. First, on the basis of the factors mentioned above, each Texas county's share of the Local Fund Assignment is determined. Then each county's share is divided among its school districts on the basis of their relative shares of the county's assessable wealth. See Tex.Educ.Code Ann. §§ 16.74—16.76; 5 Governor's Committee Report 43—44; Texas Research League, Texas Public School Finance: A Majority of Exceptions 6—8 (2d Interim Report 1972).
29
5 Governor's Committee Report 48, quoting statement of Dr. Edgar Morphet.
30
The extraordinarily complex standards are summarized in 5 Governor's Committee Report 41—43.
31
The key element of the Minimum Foundation School Program is the provision of funds for professional salaries—more particularly, for teacher salaries. The Program provides each district with funds to pay its professional payroll as determined by certain state standards. See Tex.Educ.Code Ann. §§ 16.301 16.316. If the district fails to pay its teachers at the levels determined by the state standards it receives nothing from the Program. See id., § 16.301(c). At the same time, districts are free to pay their teachers salaries in excess of the level set by the state standards, using local revenues—that is, property tax revenue—to make up the difference, see id., § 16.301(a).
The state salary standards focus upon two factors: the educational level and the experience of the district's teachers. See id., §§ 16.301—16.316. The higher these two factors are, the more funds the district will receive from the Foundation Program for professional salaries.
It should be apparent that the net effect of this scheme is to provide more assistance to property-rich districts than to property-poor ones. For rich districts are able to pay their teachers, out of local funds, salary increments above the state minimum levels. Thus, the rich districts are able to attract the teachers with the best education and the most experience. To complete the circle, this then means, given the state standards, that the rich districts receive more from the Foundation Program for professional salaries than do poor districts. A portion of Professor Berke's study vividly illustrates the impact of the State's standards on districts of varying wealth. See Appendix III, post, p. 136.
32
In 1967—1968, Alamo Heights School District had $49,478 in taxable property per pupil. See Berke Affidavit, Table VII, App. 216.
33
In 1967—1968, Edgewood Independent School District had $5,960 in taxable property per pupil. Ibid.
34
I fail to understand the relevance for this case of the Court's suggestion that if Alamo Heights School District, which is approximately the same physical size as Edgewood Independent School District but which has only one-fourth as many students, had the same number of students as Edgewood, the former's per-pupil expenditure would be considerably closer to the latter's. Ante, at 13, n. 33. Obviously, this is true, but it does not alter the simple fact that Edgewood does have four times as many students but not four times as much taxable property wealth. From the perspective of Edgewood's school children then—the perspective that ultimately counts here—Edgewood is clearly a much poorer district than Alamo Heights. The question here is not whether districts have equal taxable property wealth in absolute terms, but whether districts have differing taxable wealth given their respective school-age populations.
35
In the face of these gross disparities in treatment which experience with the Texas financing scheme has revealed, I cannot accept the Court's suggestion that we are dealing here with a remedial scheme to which we should accord substantial deference because of its accomplishments rather than criticize it for its failures. Ante, at 38—39. Moreover, Texas' financing scheme is hardly remedial legislation of the type for which we have previously shown substantial tolerance. Such legislation may in fact extend the vote to 'persons who otherwise would be denied it by state law,' Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966), or it may eliminate the evils of the private bail bondsman, Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971). But those are instances in which a legislative body has sought to remedy problems for which it cannot be said to have been directly responsible. By contrast, public education is the function of the State in Texas, and the responsibility for any defect in the financing scheme must ultimately rest with the State. It is the State's own scheme which has caused the funding problem, and, thus viewed, that scheme can hardly be deemed remedial.
36
Cf. Appendix I, post, p. 134.
37
Brief for Appellants 3.
38
Thus, in 1967—1968, Edgewood had a total of $248 per pupil in state and local funds compared with a total of $558 per pupil for Alamo Heights. See Berke Affidavit, Table X, App. 219. For 1970—1971, the respective totals were $418 and $913. See Texas Research League, supra, n. 2, at 14.
39
Not only does the local property tax provide approximately 40% of the funds expended on public education, but it is the only source of funds for such essential aspects of educational financing as the payment of school bonds, see n. 3, supra, and the payment of the district's share of the Local Fund Assignment, as well as for nearly all expenditures above the minimums established by the Foundation School Program.
40
Compare, e.g., J. Coleman et al., Equality of Educational Opportunity 290—330 (1966); Jencks, The Coleman Report and the Conventional Wisdom, in On Equality of Educational Opportunity 69, 91—104 (F. Mosteller & D. Moynihan eds. 1972), with, e.g., Guthrie, G. Kleindorfer, H. Levin & R. Stout, Schools and inequality 79—90 (1971); Kiesling, Measuring a Local Government Service: A Study of School Districts in New York State, 49 Rev.Econ. & Statistics, 356 (1967).
41
Compare Berke Answers to Interrogatories 10 ('Dollar expenditures are probably the best way of measuring the quality of education afforded students . . .'), with Graham Deposition 39 ('(I)t is not just necessarily the money, no. It is how wisely you spend it'). It warrants noting that even appellants' witness, Mr. Graham, qualified the importance of money only by the requirement of wise expenditure. Quite obviously, a district which is property poor is powerless to match the education provided by a proterty-rich district, assuming each district allocates its funds with equal wisdom.
42
See Brief of amici curiae, inter alia, San Marino Unified School District; Beverly Hills Unified School District; Brief of amici curiae, inter alia, Bloomfield Hills, Michigan, School District; Dearborn City, Michigan School District; Grosse Pointe, Michigan, Public School System.
43
Answers to Plaintiffs' Interrogatories, App. 115.
44
Ibid. Moreover, during the same period, 37.17% of the teachers in Alamo Heights had advanced degrees, while only 14.98% of Edgewood's faculty had such degrees. See id., at 116.
45
Id., at 117.
46
Id., at 118.
47
In the 1967—1968 school year, Edgewood had 22,862 students and 864 teachers, a ratio of 26.5 to 1. See id., at 110, 114. In Alamo Heights, for the same school year, there were 5,432 students and 265 teachers for a ratio of 20.5 to 1. Ibid.
48
Reply Brief for Appellants 17. See also, id., at 5, 15 16.
49
Indeed, even apart from the differential treatment inherent in the local property tax, the significant interdistrict disparties in state aid received under the Minimum Foundation School Program would seem to raise substantial equal protection questions.
50
I find particularly strong intimations of such a view in the majority's efforts to denigrate the constitutional significance of children in property-poor districts 'receiving a poorer quality education than that available to children in districts having more assessable wealth' with the assertion 'that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.' Ante, at 23, 24. The Court, to be sure, restricts its remark to 'wealth' discrimination. But the logical basis for such a restriction is not explained by the Court, nor is it otherwise apparent, see infra, at 117—120 and n. 77.
51
See Answers to Interrogatories by Dr. Joel S. Berke, Ans. 17, p. 9; Ans. 48—51, pp. 22—24; Ans. 88—89, pp. 41—42; Deposition of Dr. Daniel C. Morgan, Jr., at 52—55; Affidavit of Dr. Daniel C. Morgan, Jr., App. 242—243.
52
It is true that in two previous cases this Court has summarily affirmed district court dismissals of constitutional attacks upon other state educational financing schemes. See McInnis v. Shapiro, 293 F.Supp. 327 (N.D.Ill.1968), aff'd per curiam, sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308 (1969); Burruss v. Wilkerson, 310 F.Supp. 572 (W.D.Va.1969), aff'd per curiam, 397 U.S. 44, 90 S.Ct. 812, 25 L.Ed.2d 37 (1970). But those decisions cannot be considered dispositive of this action, for the thrust of those suits differed materially from that of the present case. In McInnis, the plaintiffs asserted that 'only a financing system which apportions public funds according to the educational needs of the students satisfies the Fourteenth Amendment.' 293 F.Supp., at 331. The District Court concluded that '(1) the Fourteenth Amendment does not require that public school expenditures be made only on the basis of pupils' educational needs, and (2) the lack of judicially manageable standards makes this controversy nonjusticiable.' Id., at 329. The Burruss District Court dismissed that suit essentially in reliance on McInnis which it found to be 'scarcely distinguishable.' 310 F.Supp. at 574. This suit involves no effort to obtain an allocation of school funds that considers only educational need. The District Court rules only that the State must remedy the discrimination resulting from the distribution of taxable local district wealth which has heretofore prevented many districts from truly exercising local fiscal control. Furthermore, the limited holding of the District Court presents none of the problems of judicial management which would exist if the federal courts were to attempt to ensure the distribution of educational funds solely on the basis of educational need, see infra, at 130 132.
53
Tex.Const., Art. 7, § 1.
54
Problems of remedy may be another matter. If provision of the relief sought in a particular case required identification of each member of the affected class, as in the case of monetary relief, the need for clarity in defining the class is apparent. But this involves the procedural problems inherent in class action litigation, not the character of the elements essential to equal protection analysis. We are concerned here only with the latter. Moreover, it is evident that in cases such as this, provision of appropriate relief, which takes the injunctive form, is not a serious problem since it is enough to direct the action of appropriate officials. Cf. Potts v. Flax, 313 F.2d 284, 288—290 (CA5 1963).
55
I assume the Court would lodge the same criticism against the validity of the finding of a correlation between poor districts and racial minorities.
56
The Court rejects the District Court's finding of a correlation between poor people and poor districts with the assertion that 'there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts' in Texas. Ante, at 23. In support of its conclusion the Court offers absolutely no data—which it cannot on this record concerning the distribution of poor people in Texas to refute the data introduced below by appellees; it relies instead on a recent law review note concerned solely with the State of Connecticut, Note, A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars, 81 Yale L.J. 1303 (1972). Common sense suggests that the basis for drawing a demographic conclusion with respect to a geographically large, urban-rural, industrial-agricultural State such as Texas from a geographically small, densely populated, highly industrialized State such an Connecticut is doubtful at best.
Furthermore, the article upon which the Court relies to discredit the statistical procedures employed by Professor Berke to establish the correlation between poor people and poor districts, see n. 11, supra, based its criticism primarily on the fact that only four of the 110 districts studied were in the lowest of the five categories, which were determined by relative taxable property per pupil, and most districts clustered in the middle three groups. See Goldstein, Interdistrict Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 524 n. 67 (1972). See also ante, at 26—27. But the Court fails to note that the four poorest districts in the sample had over 50,000 students which constituted 10% of the students in the entire sample. It appears, moreover, that even when the richest and the poorest categories are enlarged to include in each category 20% of the students in the sample, the correlation between district and individual wealth holds true. See Brief for the Governors of Minnesota, Maine, South Dakota, Wisconsin, and Michigan as amici curiae 17 n. 21.
Finally, it cannot be ignored that the data introduced by appellees went unchallenged in the District Court. The majority's willingness to permit appellants to litigate the correctness of those data for the first time before this tribunal—where effective response by appellees is impossible—is both unfair and judicially unsound.
57
Third Amended Complaint App. 23. Consistent with this theory, appellees purported to represent, among others, a class composed of 'all . . . school children in independent school districts . . . who . . . have been deprived of the equal protection of the law under the Fourteenth Amendment with regard to public school education because of the low value of the property lying within the independent school districts in which they reside.' Id., at 15.
58
The degree of judicial scrutiny that this particular classification demands is a distinct issue which I consider in Part II, C, infra.
59
Indeed, the Court's theory would render the established concept of fundamental interests in the context of equal protection analysis superfluous, for the substantive constitutional right itself requires that this Court strictly scrutinize any asserted state interest for restricting or denying access to any particular guaranteed right, see, e.g., United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); Cox v. Louisiana, 379 U.S. 536, 545—551, 85 S.Ct. 453, 459—463, 13 L.Ed.2d 471 (1965).
60
It is interesting that in its effort to reconcile the state voting rights cases with its theory of fundamentality the majority can muster nothing more than the contention that '(t)he constitutional underpinnings of the right to equal treatment in the voting process can no longer be doubted . . ..' Ante, at 34 n. 74 (emphasis added). If, by this, the Court intends to recognize a substantive constitutional 'right to equal treatment in the voting process' independent of the Equal Protection Clause, the source of such a right is certainly a mystery to me.
61
It is true that Griffin and Douglas also involved discrimination against indigents, that is, wealth discrimination. But, as the majority points out, ante, at 28—29, the Court has never deemed wealth discrimination alone to be sufficient to require strict judicial scrutiny; rather, such review of wealth classifications has been applied only where the discrimination affects an important individual interest, see, e.g., Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Thus, I believe Griffin and Douglas can only be understood as premised on a recognition of the fundamental importance of the criminal appellate process.
62
See, e.g., Duncan v. Louisiana, 391 U.S., 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (right to jury trial); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (right to compulsory process); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (right to confront one's accusers).
63
See, e.g., McLaughlin v. Florida, 379 U.S. 184, 191—192, 85 S.Ct. 283, 287—289, 13 L.Ed.2d 222 (1964); Loving v. Virginia, 388 U.S. 1, 9, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010 (1967).
64
See Oyama v. California, 332 U.S. 633, 644—646, 68 S.Ct. 269, 274—275, 92 L.Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944).
65
See Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971).
66
The Court noted that the challenged '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 sickness, and exemption from attachment and execution on a debtor's personal clothing, books and tools of trade.' 407 U.S., at 135, 92 S.Ct., at 2031.
67
See generally Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972).
68
See Brief of the National Education Association et al. as amici curiae App. A. All 48 of the 50 States which mandate public education also have compulsory-attendance laws which require school attendance for eight years or more. Id., at 20—21.
69
Prior to this Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), every State had a constitutional provision directing the establishment of a system of public schools. But after Brown, South Carolina repealed its constitutional provision, and Mississippi made its constitutional provision discretionary with the state legislature.
70
Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1129 (1969).
71
The President's Commission on School Finance, Schools, People, Money: The Need for Educational Reform 11 (1972), concluded that '(l)iterally, we cannot survive as a nation or as individuals without (education).' It further observed that:
'(I)n a democratic society, public understanding of public issues is necessary for public support. Schools generally include in their courses of instruction a wide variety of subjects related to the history, structure and principles of American government at all levels. In so doing, schools provide students with a background of knowledge which is deemed an absolute necessity for responsible citizenship.' Id., at 13—14.
72
See J. Guthrie, G. Kleindorfer, H. Levin, & R. Stout, Schools and Inequality 103—105 (1971); R. Hess & J. Torney, The Development of Political Attitudes in Children 217—218 (1967); Campbell, The Passive Citizen, in 6 Acta Sociologica, Nos. 1—2, p. 9, at 20—21 (1962).
That education is the dominant factor in influencing political participation and awareness is sufficient, I believe, to dispose of the Court's suggestion that, in all events, there is no indication that Texas is not providing all of its children with a sufficient education to enjoy the right of free speech and to participate fully in the political process. Ante, at 36—37. There is, in short, no limit on the amount of free speech or political participation that the Constitution guarantees. Moreover, it should be obvious that the political process, like most other aspects of social intercourse, is to some degree competitive. It is thus of little benefit to an individual from a property-poor district to have 'enough' education if those around him have more than 'enough.' Cf. Sweatt v. Painter, 339 U.S. 629, 633—634, 70 S.Ct. 848, 849, 850, 94 L.Ed. 1114 (1950).
73
See United States Department of Commerce, Bureau of the Census, Voting and Registration in the Election of November 1968, Current Population Reports, Series P—20, No. 192, Table 4, p. 17. See also Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Levin, The Costs to the Nation of Inadequate Education 46—47 (Comm.Print 1972).
74
I believe that the close nexus between education and our established constitutional values with respect to freedom of speech and participation in the political process makes this a different case from our prior decisions concerning discrimination affecting public welfare, see, e.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), or housing, see, e.g., Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). There can be no question that, as the majority suggests, constitutional rights may be less meaningful for someone without enough to eat or without decent housing. Ante, at 37. But the crucial difference lies in the closeness of the relationship. Whatever the severity of the impact of insufficient food or inadequate housing on a person's life, they have never been considered to bear the same direct and immediate relationship to constitutional concerns for free speech and for our political processes as education has long been recognized to bear. Perhaps, the best evidence of this fact is the unique status which has been accorded public education as the single public service nearly unanimously guaranteed in the constitutions of our States, see supra, at 111—112 and n. 68. Education, in terms of constitutional values, is much more analogous in my judgment, to the right to vote in state elections than to public welfare or public housing. Indeed, it is not without significance that we have long recognized education as an essential step in providing the disadvantaged with the tools necessary to achieve economic self-sufficiency.
75
The majority's reliance on this Court's traditional deference to legislative bodies in matters of taxation falls wide of the mark in the context of this particular case. See ante, at 40—41. The decisions on which the Court relies were simply taxpayer suits challenging the constitutionality of a tax burden in the face of exemptions or differential taxation afforded to others. See, e.g., Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959); Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245 (1937); Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 10 S.Ct. 533, 33 L.Ed. 892 (1890). There is no question that, from the perspective of the taxpayer, the Equal Protection Clause 'imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products.' Allied Stores of Ohio, Inc. v. Bowers, supra, 358 U.S., at 526—527, 79 S.Ct., at 440—441. But in this case we are presented with a claim of discrimination of an entirely different nature—a claim that the revenue-producing mechanism directly discriminates against the interests of some of the intended beneficiaries; and, in contrast to the taxpayer suits, the interest adversely affected is of substantial constitutional and societal importance. Hence, a different standard of equal protection review than has been employed in the taxpayer suits is appropriate here. It is true that affirmance of the District Court decision would to some extent intrude upon the State's taxing power insofar as it would be necessary for the State to at least equalize taxable district wealth. But contrary to the suggestions of the majority, affirmance would not impose a strait jacket upon the revenue-raising powers of the State, and would certainly not spell the end of the local property tax. See infra, at 1347.
76
This does not mean that the Court has demanded precise equality in the treatment of the indigent and the person of means in the criminal process. We have never suggested, for instance, that the Equal Protection Clause requires the best lawyer money can buy for the indigent. We are hardly equipped with the objective standards which such a judgment would require. But we have pursued the goal of substantial equality of treatment in the face of clear disparities in the nature of the appellate process afforded rich versus poor. See, e.g., Draper v. Washington, 372 U.S. 487, 495—496, 83 S.Ct. 774, 778—779, 9 L.Ed.2d 899 (1963); cf. Coppedge v. United States, 369 U.S. 438, 447, 82 S.Ct. 917, 922, 8 L.Ed.2d 21 (1962).
77
Even if I put side the Court's misreading of Griffin and Douglas, the Court fails to offer any reasoned constitutional basis for restricting cases involving wealth discrimination to instances in which there is an absolute deprivation of the interest affected. As I have already discussed, see supra at 88 89, the Equal Protection Clause guarantees equality of treatment of those persons who are similarly situated; it does not merely bar some form of excessive discrimination between such persons. Outside the context of wealth discrimination, the Court's reapportionment decisions clearly indicate that relative discrimination is within the purview of the Equal Protection Clause. Thus, in Reynolds v. Sims, 377 U.S. 533, 562—563, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506 (1964), the Court recognized:
'It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State's voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. . . . Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical. Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. . . . Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. . . . One must be ever aware that the Constitution forbids 'sophisticated as well as simple-minded modes of discrimination." See also Gray v. Sanders, 372 U.S. 368, 380 381, 83 S.Ct. 801, 808—809, 9 L.Ed.2d 821 (1963). The Court gives no explanation why a case involving wealth discrimination should be treated any differently.
78
But cf. Bullock v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972), where prospective candidates' threatended exclusion from a primary ballot because of their inability to pay a filing fee was seen as discrimination against both the impecunious candidates and the 'less affluent segment of the community' that supported such candidates but was also too poor as a group to contribute enough for the filing fees.
79
But cf. M. Harrington, The Other America 13—17 (Penguin ed. 1963).
80
See E. Banfield, The Unheavenly City 63, 75—76 (1970); cf. R. Lynd & H. Lynd, Middletown in Transition 450 (1937).
81
Cf. City of New York v. Miln, 11 Pet. 102, 142, 9 L.Ed. 648 (1837).
82
Theoretically, at least, it may provide a mechanism for implementing Texas' asserted interest in local educational control, see infra, at 126.
83
True, a family may move to escape a property-poor school district, assuming it has the means to do so. But such a view would itself raise a serious constitutional question concerning an impermissible burdening of the right to travel, or, more precisely, the concomitant right to remain where one is. Cf. Shapiro v. Thompson, 394 U.S. 618, 629—631, 89 S.Ct. 1322, 1328 1330, 22 L.Ed.2d 600 (1969).
84
Indeed, the political difficulties that seriously disadvantaged districts face in securing legislative redress are augmented by the fact that little support is likely to be secured from only mildly disadvantaged districts. Cf. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). See also n. 2, supra.
85
See Tex. Cities, Towns and Villages Code, Civ.Stat.Ann. §§ 1011a—1011j (1963 and Supp.1972—1973). See also, e.g., Skinner v. Reed, 265 S.W.2d 850 (Tex.Civ.App.1954); City of Corpus Christi v. Jones, 144 S.W.2d 388 (Tex.Civ.App.1940).
86
Serrano v. Priest, 5 Cal.3d, at 603, 96 Cal.Rptr., at 614, 487 P.2d, at 1254. See also Van Dusartz v. Hatfield, 334 F.Supp., at 875—876.
87
Cf., e.g., Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948).
88
Tex.Educ.Code Ann. §§ 21.101—21.117. Criminal penalties are provided for failure to teach certain required courses. Id., §§ 4.15—4.16.
89
Id., §§ 12.11—12.35.
90
Id., § 12.62.
91
Id., §§ 13.031—13.046.
92
Id., § 21.004.
93
See Appendix II, infra.
94
See Affidavit of Dr. Jose Cardenas, Superintendent of Schools, edgewood Independent School District, App. 234—238.
95
See Appendix IV, infra.
96
My Brother WHITE, in concluding that the Texas financing scheme runs afoul of the Equal Protection Clause, likewise finds on analysis that the means chosen by Texas—local property taxation dependent upon local taxable wealth—is completely unsuited in its present form to the achievement of the asserted goal of providing local fiscal control. Although my Brother WHITE purports to reach this result by application of that lenient standard of mere rationality traditionally applied in the context of commercial interest, it seems to me that the care with which he scrutinizes the practical effectiveness of the present local property tax as a device for affording local fiscal control reflects the application of a more stringent standard of review, a standard which at the least is influenced by the constitutional significance of the process of public education.
97
See n. 98, infra.
98
Centralized educational financing is, to be sure, one alternative. On analysis, though, it is clear that even centralized financing would
not deprive local school district of what has been considered to be the essence of local educational control. See Wright v. Council of the City of Emporia, 407 U.S. 451, 477—478, 92 S.Ct. 2196, 2210 2211, 33 L.Ed.2d 51 (Burger, C.J., dissenting). Central financing would leave in local hands the entire gamut of local educational policy-making—teachers, curriculum, school sites, the whole process of allocating resources among alternative educational objectives.
A second possibility is the much-discussed theory of district power equalization put forth by Professors Coons, Clune, and Sugarman in their seminal work, Private Wealth and Public Education 201—242 (1970). Such a scheme would truly reflect a dedication to local fiscal control. Under their system, each school district would receive a fixed amount of revenue per pupil for any particular level of tax effort regardless of the level of local property tax base. Appellants criticize this scheme on the rather extraordinary ground that it would encourage poorer districts to overtax themselves in order to obtain substantial revenues for education. But under the present discriminatory scheme, it is the poor districts that are already taxing themselves at the highest rates, yet are receiving the lowest returns.
District wealth reapportionment is yet another alternative which would accomplish directly essentially what district power equalization would seek to do artificially. Appellants claim that the calculations concerning state property required by such a scheme would be impossible as a practical matter. Yet Yexas is already making far more complex annual calculations—involving not only local property values but also local income and other economic factors—in conjunction with the Local Fund Assignment portion of the Minimum Foundation School Program. See 5 Governor's Committee Report 43—44.
A fourth possibility would be to remove commercial, industrial, and mineral property from local tax rolls, to tax this property on a statewide basis, and to return the resulting revenues to the local districts in a fashion that would compensate for remaining variations in the local tax bases.
None of these particular alternatives are necessarily constitutionally compelled; rather, they indicate the breadth of choice which would remain to the State if the present interdistrict disparities were eliminated.
99
See n. 98, supra.
100
Of course, nothing in the Court's decision today should inhibit further review of state educational funding schemes under state constitutional provisions. See Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan. 1973; Robinson v. Cahill, 118 N.J. Super. 223, 287 A.2d 187; 119 N.J.Super. 40, 289 A.2d 569 (1972); cf. Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971).
Based on Table V to affidavit of Joel S. Berke, App. 208, which was prepared on the basis of a sample of 110 selected Texas school districts from data for the 1967-1968 school year.
Based on Table II to affidavit of Joel S. Berke, App. 205, which was prepared on the basis of a sample of 110 selected Texas school districts from data for the 1967-1968 school year.
Based on Table XI to affidavit of Joel S. Berke, App. 220, which was prepared on the basis of a sample of six selected school districts located in Bexar County, Texas, from data for the 1967-1968 school year.
Based on Table IX to affidavit of Joel S. Berke, App. 218, which was prepared on the basis of the 12 school districts located in Bexar County, Texas, from data from the 1967-1968 school year.
| 12
|
411 U.S. 138
93 S.Ct. 1241
36 L.Ed.2d 106
William B. CAMP, Comptroller of the Currency of the United Statesv.F. W. PITTS et al.
No. 72—864.
March 26, 1973.
PER CURIAM.
1
In its present posture this case presents a narrow, but substantial, question with respect to the proper procedure to be followed when a reviewing court determines that an administrative agency's stated justification for informal action does not provide an adequate basis for judicial review.
2
In 1967, respondents submitted an application to the Comptroller of the Currency for a certificate authorizing them to organize a new bank in Hartsville, South Carolina. See 12 U.S.C. § 27; 12 CFR § 4.2 (1972). On the basis of information received from a national bank examiner and from various interested parties, the Comptroller denied the application and notified respondents of his decision through a brief letter, which stated in part: '(W)e have concluded that the factors in support of the establishment of a new National Bank in this area are not favorable.' No formal hearings were required by the controlling statute or guaranteed by the applicable regulations, although the latter provided for hearings when requested and when granted at the discretion of the Comptroller.1 Respondents did not request a formal hearing but asked for reconsideration. That request was granted and a supplemental field examination was conducted, whereupon the Comptroller again denied the application, this time stating in a letter that 'we were unable to reach a favorable conclusion as to the need factor,' and explaining that conclusion to some extent.2 Respondents then brought an action in federal district court seeking review of the Comptroller's decision. The entire administrative record was placed before the court, and, upon an examination of that record and of the two letters of explanation, the court granted summary judgment against respondents, holding that de novo review was not warranted in the circumstances and finding that 'although the Comptroller may have erred, there is substantial basis for his determination, and . . . it was neither capricious nor arbitrary.' D.C., 329 F.Supp. 1302, 1308. On appeal, the Court of Appeals did not reach the merits. Rather, it held that the Comptroller's ruling was 'unacceptable' because 'its basis' was not stated with sufficient clarity to permit judicial review. 4 Cir., 463 F.2d 632, 633. For the present, the Comptroller does not challenge this aspect of the court's decision. He does, however, seek review here of the procedures that the Court of Appeals specifically ordered to be followed in the District Court on remand. The court held that the case should be remanded 'for a trial de novo before the District Court' because 'the Comptroller has twice inadequately and inarticulately resolved the (respondents') presentation.' The court further specified that in the District Court, respondents 'will open the trial with proof of their application and compliance with the statutory inquiries, and proffer of any other relevant evidence.' Then, '(t)estimony may . . . be adduced by the Comptroller or intervenors manifesting opposition, if any, to the new bank.' On the basis of the record thus made, the District Court was instructed to make its own findings of fact and conclusions of law in order to determine 'whether the (respondents) have shown by a preponderance of evidence that the Comptroller's ruling is capricious or an abuse of discretion.' 463 F.2d, at 634.
3
We agree with the Comptroller that the trial procedures thus outlined by the Court of Appeals for the remand in this case are unwarranted under present law.
4
Unquestionably, the Comptroller's action is subject to judicial review under the Administrative Procedure Act (APA), 5 U.S.C. § 701. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 156—158, 90 S.Ct. 827, 831—832, 25 L.Ed.2d 184 (1970). But it is also clear that neither the National Bank Act nor the APA requires the Comptroller to hold a hearing or to make formal findings on the hearing record when passing on applications for new banking authorities. See 12 U.S.C. § 26; 5 U.S.C. § 557.3 Accordingly, the proper standard for judicial review of the Comptroller's adjudications is not the 'substantial evidence' test which is appropriate when reviewing findings made on a hearing record, 5 U.S.C. § 706(2)(E). Nor was the reviewing court free to hold a de novo hearing under § 706(2)(F) and thereafter determine whether the agency action was 'unwarranted by the facts.' It is quite plain from our decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), that de novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions. Id., at 415, 91 S.Ct., at 823. Neither situation applies here. The proceeding in the District Court was obviously not brought to enforce the Comptroller's decision, and the only deficiency suggested in agency action or proceedings is that the Comptroller inadequately explained his decision. As Overton Park demonstrates, however, that failure, if it occurred in this case, is not a deficiency in factfinding procedures such as to warrant the de novo hearing ordered in this case.
5
The appropriate standard for review was, accordingly, whether the Comptroller's adjudication was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' as specified in 5 U.S.C. § 706(2) (A). In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. Respondents contend that the Court of Appeals did not envision a true de novo review and that, at most, all that was called for was the type of 'plenary review' contemplated by Overton Park, supra, at 420, 91 S.Ct., at 825. We cannot agree. The present remand instructions require the Comptroller and other parties to make an evidentiary record before the District Court 'manifesting opposition, if any, to the new bank.' The respondents were also to be afforded opportunities to support their application with 'any other relevant evidence.' These instructions seem to put aside the extensive administrative record already made and presented to the reviewing court.
6
If, as the Court of Appeals held and as the Comptroller does not now contest, there was such failure to explain administrative action as to frustrate effective judicial review, the remedy was not to hold a de novo hearing but, as contemplated by Overton Park, to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary. We add a caveat, however. Unlike Overton Park, in the present case there was contemporaneous explanation of the agency decision. The explanation may have been curt, but it surely indicated the determinative reason for the final action taken: the finding that a new bank was an uneconomic venture in light of the banking needs and the banking services already available in the surrounding community. The validity of the Comptroller's action must, therefore, stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller's decision must be vacated and the matter remanded to him for further consideration. See SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). It is in this context that the Court of Appeals should determine whether and to what extent, in the light of the administrative record, further explanation is necessary to a proper assessment of the agency's decision.
7
The petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
8
It is so ordered.
9
Judgment of Court of Appeals vacated and case remanded.
1
See 12 CFR § 4.12(d) (1967). The regulations were amended in 1971, 36 Fed.Reg. 5051. For the present regulation, see 12 CFR § 5.4 (1972).
2
The letter reads in part:
'On each application we endeavor to develop the need and convenience factors in conjunction with all other banking factors and in this case we were unable to reach a favorable conclusion as to the need factor. The record reflects that this market area is now served by the Peoples Bank with deposits of $7.2MM, The Bank of Hartsville with deposits of $12.8MM, The First Federal Savings and Loan Association with deposits of $5.4MM, The Mutual Savings and Loan Association with deposits of $8.2MM and the Sonoco Employees Credit Union with deposits of $6.5MM. The aforementioned are as of December 31, 1968.'
3
Title 12 U.S.C. § 26 contemplates a wide-ranging ex parte investigation; it reads as follows:
'Comptroller to determine if association can commence business.
'Whenever a certificate is transmitted to the Comptroller of the Currency, as provide in this chapter, and the association transmitting the same notifies the comptroller that all of its capital stock has been duly paid in, and that such association has complied with all the provisions of this chapter required to be complied with before an association shall be authorized to commence the business of banking, the comptroller shall examine into the condition of such association, ascertain especially the amount of money paid in on account of its capital, the name and place of residence of each of its directors, and the amount of the capital stock of which each is the owner in good faith, and generally whether such association has complied with all the provisions of this chapter required to entitle it to engage in the business of banking; and shall cause to be made and attested by the oaths of a majority of the directors, and by the president or cashier of the association, a statement of all the facts necessary to enable the comptroller to determine whether the association is lawfully entitled to commence the business of banking.' (Emphasis added.)
'As to the APA, its requirement of a written statement of 'findings and conclusions, and the reasons or basis therefor' (5 U.S.C. § 557(c)(3)(A)), applies only to relemaking proceedings (§ 553) and to adjudications 'required by statute to be determined on the record after opportunity for an agency hearing' (§ 554(a)). By its terms, then, the APA's requirement of formal findings is not relevant since the National Bank Act plainly does not require agency hearings on applications for new banks.
| 89
|
411 U.S. 144
93 S.Ct. 1245
36 L.Ed.2d 113
OHIO MUNICIPAL JUDGES ASSOCIATION et al.v.Arthur DAVIS et al.
No. 72—1010.
March 26, 1973.
Rehearing Denied Apr. 23, 1973.
See 411 U.S. 959, 93 S.Ct. 1923.
PER CURIAM.
1
The motion of American Civil Liberties Union of Ohio, Inc., for leave to file a brief, as amicus curiae, is granted.
2
On the ground that it was beyond its authority to grant the primary relief sought, the United States District Court, 57 F.R.D. 64, dismissed appellants' suit which alleged that Art. IV, § 6(B), of the Ohio Constitution denied equal protection of the laws under the Fourteenth Amendment to the United States Constitution. The judgment is affirmed, but on the ground that appellants' constitutional challenge to Art. IV, § 6(B), was without merit.
3
So ordered.
4
Judgment affirmed.
| 89
|
411 U.S. 145
93 S.Ct. 1267
36 L.Ed.2d 114
The MESCALERO APACHE TRIBE, Petitioner,v.Franklin JONES, Commissioner of the Bureau of Revenue of the State of New Mexico, et al.
No. 71—738.
Argued Dec. 12, 1972.
Decided March 27, 1973.
Syllabus
The State of New Mexico may impose a nondiscriminatory gross receipts tax on a ski resort operated by petitioner Tribe on off-reservation land that the Tribe leased from the Federal Government under § 5 of the Indian Reorganization Act, 25 U.S.C. § 465. Though § 465 exempts the land acquired from state and local taxation, neither that provision nor the federal-instrumentality doctrine bars taxing income from the land. But § 465 bars a use tax that the State seeks to impose on personalty that the Tribe purchased out of State and which, having been installed as a permanent improvement at the resort, became so intimately connected with the land itself as to be encompassed by the statutory exemption. Pp. 147—159.
83 N.M. 158, 489 P.2d 666, affirmed in part and reversed in part.
George E. Fettinger, Alamogordo, N.M., for petitioner.
John C. Cook, Santa Fe, N.M., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Mescalero Apache Tribe operates a ski resort in the State of New Mexico, on land located outside the boundaries of the Tribe's reservation. The State has asserted the right to impose a tax on the gross receipts of the ski resort and a use tax on certain personalty purchased out of State and used in connection with the resort. Whether paramount federal law permits these taxes to be levied is the issue presented by this case.
2
The home of the Mescalero Apache Tribe is on reservation lands in Lincoln and Otero Counties in New Mexico. The Sierra Blanca Ski Enterprises, owned and operated by the Tribe, is adjacent to the reservation and was developed under the auspices of the Indian Reorganization Act of 1934, 48 Stat. 984, as amended, 25 U.S.C. § 461 et seq.1 After a feasibility study by the Bureau of Indian Affairs, equipment and construction money was provided by a loan from the Federal Government under § 10 of the Act, 25 U.S.C. § 470, and the necessary land was leased from the United States Forest Service for a term of 30 years. The ski area borders on the Tribe's reservation but, with the exception of some cross-country ski trails, no part of the enterprise, its buildings or equipment is located within the existing boundaries of the reservation.
3
The Tribe has paid under protest $26,086.47 in taxes to the State, pursuant to the sales tax law, N.M.Stat. Ann. § 72—16—1 et seq. (1953), based on the gross receipts of the ski resort from the sale of services and tangible property.2 In addition, in 1968 the State assessed compensating use taxes against the Tribe in the amount of $5,887.19 (plus penalties and interest), based on the purchase price of materials used to construct two ski lifts at the resort. N.M.Stat.Ann. § 72—17—1 et seq. (1953). The Tribe duly protested the use tax assessment and sought a refund of the sales taxes paid. The State Commissioner of Revenue denied both the claim for refund and the protest of assessment and the Court of Appeals of the State affirmed. The court held, essentially, that the State had authority to apply its non-discriminatory taxes to the Tribe's enterprise and property involved in the dispute, and that the Indian Reorganization Act did not render the Tribe's enterprise a federal instrumentality, constitutionally immune from state taxation, nor did it, by its own terms, grant immunity from the taxes here involved. 83 N.M. 158, 489 P.2d 666 (1971). The Supreme Court of New Mexico denied certiorari. 83 N.M. 151, 489 P.2d 659 (1971). We granted the Tribe's petition for a writ of certiorari, 406 U.S. 905, 92 S.Ct. 1604, 31 L.Ed.2d 815, to consider its claim that the income and property of the ski resort are not properly subject to state taxation. We affirm in part and in part reverse.
4
* At the outset, we reject—as did the state court—the broad assertion that the Federal Government has exclusive jurisdiction over the Tribe for all purposes and that the State is therefore prohibited from enforcing its revenue laws against any tribal enterprise '(w)hether the enterprise is located on or off tribal land.'3 Generalizations on this subject have become particularly treacherous. The conceptual clarity of Mr. Chief Justice Marshall's view in Worcester v. Georgia, 6 Pet. 515, 556—561, 8 L.Ed. 483 (1832), has given way to more individualized treatment of particular treaties and specific federal statutes, including statehood enabling legislation, as they, taken together, affect the respective rights of States, Indians, and the Federal Government. See McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129; Organized Village of Kake v. Egan, 369 U.S. 60, 71 73, 82 S.Ct. 562, 568—569, 7 L.Ed.2d 573 (1962). The upshot has been the repeated statements of this Court to the effect that, even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law. Organized Village of Kake, supra, at 75, 82 S.Ct. at 570; Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); New York ex rel. Ray v. Martin, 326 U.S. 496, 499, 66 S.Ct. 307, 308, 90 L.Ed. 261 (1946); Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896). Even so, in the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan v. State Tax Commission of Arizona, supra, lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent.
5
But tribal activities conducted outside the reservation present different considerations. 'State authority over Indians is yet more extensive over activities . . . not on any reservation.' Organized Village of Kake, supra, 369 U.S., at 75, 82 S.Ct., at 571. Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State. See, e.g., Puyallup Tribe v. Department of Game, 391 U.S. 392, 398, 88 S.Ct. 1725, 1728, 20 L.Ed.2d 689 (1968); Organized Village of Kake, supra, 369 U.S., at 75—76, 82 S.Ct., at 570—571; Tulee v. Washington, 315 U.S. 681, 683, 62 S.Ct. 862, 863, 86 L.Ed. 1115 (1942); Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 48 S.Ct. 333, 72 L.Ed. 709 (1928); Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896). That principle is as relevant to a State's tax laws as it is to state criminal laws, see Ward v. Race Horse, supra, at 516, 16 S.Ct., at 1080, and applies as much to tribal ski resorts as it does to fishing enterprises. See Organized Village of Kake, supra.
6
The Enabling Act for New Mexico, 36 Stat. 557,4 reflects the distinction between on- and off-reservation activities. Section 2 of the Act provides that the people of the State disclaim 'all right and title' to lands 'owned or held by any Indian or Indian tribes the right or title to which shall have been acquired through or from the United States . . . and that . . . the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States.' But the Act expressly provides, with respect to taxation, that 'nothing herein . . . shall preclude the said State from taxing, as other lands and other property are taxed, any lands and other property outside of an Indian reservation owned or held by any Indian, save and except such lands as have been granted . . . or as may be granted or confirmed to any Indian or Indians under any Act of Congress, but . . . all such lands shall be exempt from taxation by said State (only) so long and to such extent as Congress has prescribed or may hereafter prescribe.' It is thus clear that in terms of general power New Mexico retained the right to tax, unless Congress forbade it, all Indian land and Indian activities located or occurring 'outside of an Indian reservation.'5
7
We also reject the broad claim that the Indian Reorganization Act of 1934 rendered the Tribe's off-reservation ski resort a federal instrumentality constitutionally immune from state taxes of all sorts. McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). The intergovernmental-immunity doctrine was once much in vogue in a variety of contexts, and with respect to Indian affairs, was consistently held to bar a state tax on the lessees of, or the product or income from, restricted lands of tribes or individual Indians. The theory was that a federal instrumentality was involved and that the tax would interfere with the Government's realizing the maximum return for its wards. This approach did not survive; its rise and decline in Indian affairs is described and reflected in Helvering v. Mountain Producers Corp., 303 U.S. 376, 58 S.Ct. 623, 82 L.Ed. 907 (1938); Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943); and Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342, 69 S.Ct. 561, 93 L.Ed. 721 (1949), where the Court cut to the bone the proposition that restricted Indian lands and the proceeds from them were—as a matter of constitutional law—automatically exempt from state taxation. Rather, the Court held that Congress has the power 'to immunize these lessees from the taxes we think the Constitution permits Oklahoma to impose in the absence of such action' and that '(t)he question whether immunity shall be extended in situations like these is essentially legislative in character.' Oklahoma Tax Comm'n v. Texas Co., supra, at 365—366, 69 S.Ct., at 574.
8
The Indian Reorganization Act of 1934 neither requires nor counsels us to recognize this tribal business venture as a federal instrumentality. Congress itself felt it necessary to address the immunity question and to provide tax immunity to the extent it deemed desirable. There is, therefore, no statutory invitation to consider projects undertaken pursuant to the Act as federal instrumentalities generally and automatically immune from state taxation. Unquestionably, the Act reflected a new policy of the Federal Government and aimed to put a halt to the loss of tribal lands through allotment. It gave the Secretary of the Interior power to create new reservations, and tribes were encouraged to revitalize their self-government through the adoption of constitutions and bylaws and through the creation of chartered corporations, with power to conduct the business and economic affairs of the tribe.6 As was true in the case before us, a tribe taking advantage of the Act might generate substantial revenues for the education and the social and economic welfare of its people.7 So viewed, an enterprise such as the ski resort in this case serves a federal function with respect to the Government's role in Indian affairs. But the 'mere fact that property is used, among others, by the United States as an instrument for effecting its purpose does not relieve it from state taxation.' Choctaw, Oklahoma & Gulf R. Co. v. Mackey, 256 U.S. 531, 536, 41 S.Ct. 582, 583, 65 L.Ed. 1076 (1921). See also Henderson Bridge Co. v. Kentucky, 166 U.S. 150, 154, 17 S.Ct. 532, 533, 41 L.Ed. 953 (1897).
9
The intent and purpose of the Reorganization Act was 'to rehabilitate the Indian's economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.' H.R.Rep.No.1804, 73d Cong., 2d Sess., 6 (1934). See also S.Rep.No.1080, 73d Cong., 2d Sess., 1 (1934). As Senator Wheeler, on the floor, put it:
10
'This bill . . . seeks to get away from the bureaucratic control of the Indian Department, and it seeks further to give the Indians the control of their own affairs and of their own property; to put it in the hands either of an Indian council or in the hands of a corporation to be organized by the Indians.' 78 Cong.Rec. 11125.
Representative Howard explained that:
11
'The program of self-support and of business and civic experience in the management of their own affairs, combined with the program of education, will permit increasing numbers of Indians to enter the white world on a footing of equal competition.' Id., at 11732.8
12
The Reorganization Act did not strip Indian tribes and their reservation lands of their historic immunity from state and local control.9 But, in the context of the Reorganization Act, we think it unrealistic to conclude that Congress conceived of off-reservation tribal enterprises 'virtually as an arm of the Government.' Department of Employment v. United States, 385 U.S. 355, 359—360, 87 S.Ct. 464, 467, 17 L.Ed.2d 414 (1966). Cf. Clallam County v. United States, 263 U.S. 341, 44 S.Ct. 121, 68 L.Ed. 328 (1923). On the contrary, the aim was to disentangle the tribes from the official bureaucracy. The Court's decision in Organized Village of Kake, supra, which involved tribes organized under the Reorganization Act, demonstrates that off-reservation activities are within the reach of state law. See also Puyallup Tribe, 391 U.S., at 398, 88 S.Ct., at 1728. What was said in Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 48 S.Ct. 333, 72 L.Ed. 709 (1928), is relevant here. At issue there was the taxability of off-reservation Indian land purchased with consent of the Secretary of the Interior with the accumulated royalties from the individual Indian's restricted allotted lands. Alienation of the purchased land was federally restricted. In rejecting a claim that state taxation of the land was barred by the federal-instrumentality doctrine,10 the then Mr. Justice Stone wrote for a unanimous Court:
13
'What governmental instrumentalities will be held free from state taxation, though Congress has not expressly so provided, cannot be determined apart from the purpose and character of the legislation creating them. . . .
14
* * * * * *
15
'The early legislation affecting the Indians had as its immediate object the closest control by the government of their lives and property. The first and principal need then was that they should be shielded alike from their own improvidence and the spoliation of others but the ultimate purpose was to give them the more independent and responsible status of citizens and property owners.. . .
16
* * * * * *
17
'In a broad sense all lands which the Indians are permitted to purchase out of the taxable lands of the state in this process of their emancipation and assumption of the responsibility of citizenship, whether restricted or not, may be said to be instrumentalities in that process. But . . . (t)o hold them immune would be inconsistent with one of the very purposes of their creation, to educate the Indians in responsibility . . ..' Id., at 578—581, 48 S.Ct., at 335.
18
We accordingly decline the invitation to resurrect the expansive version of the intergovernmental-immunity doctrine that has been so consistently rejected in modern times.
II
19
The Tribe's broad claims of tax immunity must therefore be rejected. But there remains to be considered the scope of the immunity specifically afforded by § 5 of the Indian Reorganization Act. 25 U.S.C. § 465.
A.
20
Section 465 provides, in part, that 'any lands or rights acquired' pursuant to any provision of the Act 'shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.'11 On its face, the statute exempts land and rights in land, not income derived from its use. It is true that a statutory tax exemption for 'lands' may, in light of its context and purposes, be construed to support an exemption for taxation on income derived from the land. See Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883 (1956); cf. Superior Bath House Co. v. McCarroll, 312 U.S. 176, 61 S.Ct. 503, 85 L.Ed. 721 (1941).12 But, absent clear statutory guidance, courts ordinarily will not imply tax exemptions and will not exempt off-reservation income from tax simply because the land from which it is derived, or its other source, is itself exempt from tax.
21
'This Court has repeatedly said that tax exemptions are not granted by implication. . . . It has applied that rule to taxing acts affecting Indians as to all others. . . . If Congress intends to prevent the State of Oklahoma from levying a general non-discriminatory estate tax applying alike to all its citizens, it should say so in plain words. Such a conclusion can not rest on dubious inferences.' Oklahoma Tax Comm'n v. United States, 319 U.S., at 606—607, 63 S.Ct., at 1288. See Squire v. Capoeman, supra, 351 U.S., at 6, 76 S.Ct., at 614. Absent a 'definitely expressed' exemption, an Indian's royalty income from Indian oil lands is subject to the federal income tax although the source of the income may be exempt from tax. Choteau v. Burnet, 283 U.S. 691, 696—697, 51 S.Ct. 598, 600—601, 75 L.Ed. 1353 (1931). The Court has also held that a State, as well as the Federal Government, may tax an Indian's pro rata share of income from a tribe's restricted mineral resources. Leahy v. State Treasurer, 297 U.S. 420, 56 S.Ct. 507, 80 L.Ed. 771 (1936). Lessees of otherwise exempt Indian lands are also subject to state taxation. Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342, 69 S.Ct. 561, 93 L.Ed. 721 (1949).
22
On the face of § 465, therefore, there is no reason to hold that it forbids income as well as property taxes. Nor does the legislative history support any other conclusion. As we have noted, several explicit provisions encompassing a broad tax immunity for chartered Indian communities were dropped from the bills that preceded the Wheeler-Howard bill. See n. 9, supra. Similarly, the predecessor to the exemption embodied in § 465 dealt only with lands acquired for new reservations or for additions to existing reservations. 1934 House Hearings 11. Here, the rights and land were acquired by the Tribe beyond its reservation borders for the purpose of carrying on a business enterprise as anticipated by §§ 476 and 477 of the Act.13 These provisions were designed to encourage tribal enterprises 'to enter the white world on a footing of equal competition.' 78 Cong.Rec. 11732. In this context, we will not imply an expansive immunity from ordinary income taxes that businesses throughout the State are subject to. We therefore hold that the exemption in § 465 does not encompass or bar the collection of New Mexico's nondiscriminatory gross receipts tax and that the Tribe's ski resort is subject to that tax.
B
23
We reach a different condlusion with respect to the compensating use tax imposed on the personalty installed in the construction of the ski lifts. According to the Stipulation of Facts, that personal property has been 'permanently attached to the realty.' In view of § 465, these permanent improvements on the Tribe's tax-exempt land would certainly be immune from the State's ad valorem property tax. See United States v. Rickert, 188 U.S. 432, 441—443, 23 S.Ct. 478, 481—482, 47 L.Ed. 532 (1903). We think the same immunity extends to the compensating use tax on the property. The jurisdictional basis for use taxes is the use of the property in the State. See Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937); McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330, 64 S.Ct. 1023, 1025, 88 L.Ed. 1304 (1944). It has long been recognized that 'use' is among the 'bundle of privileges that make up property or ownership' of property and, in this sense, at least, a tax upon 'use' is a tax upon the property itself. Henneford v. Silas Mason Co., supra, 300 U.S., at 582, 57 S.Ct., at 527. This is not to say that use taxes are for all purposes to be deemed simple ad valorem property taxes. See, e.g., United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424 (1958), and its companion cases; Sullivan v. United States, 395 U.S. 169, 89 S.Ct. 1648, 23 L.Ed.2d 182 (1969). But use of permanent improvements upon land is so intimately connected with use of the land itself that an explicit provision relieving the latter of state tax burdens must be construed to encompass an exemption for the former. 'Every reason that can be urged to show that the land was not subject to local taxation applies to the assessment and taxation of the permanent improvements.' United States v. Rickert, supra, 188 U.S., at 442, 23 S.Ct., at 482.
24
The judgment of the Court of Appeals is affirmed in part and reversed in part.
25
Affirmed in part and reversed in part.
26
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice STEWART concur, dissenting in part.
27
The power of Congress granted by Art. I, § 8 '(t)o regulate Commerce . . . with the Indian Tribes' is an exceedingly broad one. In the liquor cases the Court held that it reached acts even off Indian reservations in areas normally subject to the police power of the States. Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691. The power gained breadth by reason of historic experiences that induced Congress to treat Indians as wards of the Nation. See Gritts v. Fisher, 224 U.S. 640, 642—643, 32 S.Ct. 580, 581, 56 L.Ed. 928; United States v. Thomas, 151 U.S. 577, 585, 14 S.Ct. 426, 429, 38 L.Ed. 276; United States v. McGowan, 302 U.S. 535, 538, 58 S.Ct. 286, 287, 82 L.Ed. 410. The laws enacted by Congress varied from decade to decade. See U.S.Dept. of the Interior, Federal Indian Law 94—138 (1958), which is a revision of the monumental work, Handbook of Federal Indian Law prepared by Felix S. Cohen and published in 1940.
28
The present Act, 48 Stat. 984, 25 U.S.C. § 461 et seq., was enacted in 1934 with various purposes in mind, the ones most relevant being, first, '(t)o permit Indian tribes to equip themselves with the devices of modern business organization, through forming themselves into business corporations,' and second, '(t)o establish a system of financial credit for Indians.' S.Rep.No.1080, 73d Cong., 2d Sess., 1.
29
Loans had been made by the federal agency to individual Indians, but the experience had not been satisfactory. Id., at 3 4. The 1934 Act precluded such loans and set up a $10 million revolving-credit fund for loans to incorporated tribes. The industry established pursuant to that Act and involved here is a ski enterprise, adjacent to the reservation and located on lands leased from the U.S. Forest Service.
30
The Court makes much of the fact that the ski enterprise is not on the reservation. But that seems irrelevant to me by reason of § 5 of the Act, which provides in part that 'any lands or rights acquired' pursuant to the 1934 Act 'shall be taken in the name of the United States in trust for the Indian tribe . . . for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.' 25 U.S.C. § 465. While the lease of Forest Service lands was not technically 'acquired . . . in trust for the Indian tribe,' the Court concedes that the lease arrangement was sufficient to bring the Tribe's interest in the land within the immunity afforded by § 465. And so the question respecting income taxes comes down to whether these taxes are within the scope of 'such lands or rights' as used in § 5.
31
I start from the premise made explicit in the Senate Report on the 1934 Act. It set forth the endorsement by President Roosevelt of 'a new standard of dealing between the Federal Government and its Indian wards.' S.Rep., supra, at 3. Article 10 of the 1852 Treaty with the Apaches described the role of the guardian as respects these wards: 'For and in consideration of the faithful performance of all the stipulations herein contained, by the said Apache's Indians, the government of the United States will grant to said Indians such donations, presents, and implements, and adopt such other liberal and humane measures as said government may deem meet and proper.' 10 Stat. 980.
32
The 1934 Act obviously is an effort by Congress to extend its control to Indian economic activities outside the reservation for the benefit of its Indian wards. The philosophy permeating the present Act was articulated by Mr. Chief Justice Marshall in Worcester v. Georgia, 6 Pet. 515, 556, 8 L.Ed. 483: 'From the commencement of our government, Congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.'
33
As noted in Warren Trading Post v. Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165, most tax immunities of Indians have related to activities on reservations. But, as we stated in that case, the fact that the activities occurred on a reservation was not the controlling reason, 'but rather because Congress in the exercise of its power granted in Art. I, § 8, has undertaken to regulate reservation trading in such a comprehensive way that there is no room for the States to legislate on the subject.' Id., at 691 n. 18, 85 S.Ct., at 1246.
34
The powers of Congress 'over Indian affairs are as wide as State powers over non-Indians,' subject, of course, to the limitations of the Bill of Rights. Federal Indian Law 24. One illustration of its extent is shown by the liquor cases already cited. We deal here, however, with 'tribal property'—a leasehold interest in federal lands adjoining the reservation. 'The term tribal property . . . does not designate a single and definite legal institution, but rather a broad range within which important variations exist.' Federal Indian Law 590—591. There is no magic in the word 'reservation.' United States v. McGowan, supra, held that land purchased by Congress for a tribe but outside a 'reservation' was nonetheless 'Indian country.' While that case involved application of liquor laws, the Court stated that 'Congress alone has the right to determine the manner in which this country's guardianship over the Indians shall be carried out,' id., at 538, 58 S.Ct., at 287, and that it was immaterial what the tract of land was called. Id., at 539, 58 S.Ct., at 288.
35
In the present case, Congress has attempted to give this tribe an economic base which offers job opportunities, a higher standard of living, community stability, preservation of Indian culture, and the orientation of the tribe to commercial maturity. We deal only with a tribal-developed enterprise. State taxation of that enterprise interferes with the federal project. The ski resort, being a federal tool to aid the tribe, may not be taxed by the State without the consent of Congress. Congress by § 5 of the Act has made the 'lands or rights' acquired for the tribe exempt from state and local taxation. Section 5, indeed, states that 'lands or rights' acquired under the 1934 Act shall be held 'in trust for the Indian tribe or individual Indian for which the land is acquired.' There is no more convincing way to tax 'rights' in land than to impose an income tax on the gross or net income from those rights. If § 5 be thought to be ambiguous, we should resolve the ambiguity in favor of the tribe. As stated in Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478, 'Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.' In Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883, we resolved doubts respecting the federal income tax in favor of the Indian. There is the same reason for taking that course here.
36
The tribal ski enterprise, unlike the private entrepreneur in Helvering v. Mountain Producers Corp., 303 U.S. 376, 58 S.Ct. 623, 82 L.Ed. 907, on which the Court relies, is plainly a federal instrumentality—authorized and financed by Congress with the aim of starting the tribe on commercial ventures. This case has no relation to Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612, which raised the question whether state inheritance taxes could be levied on restricted property. The Court only held that restricted property, as created by Congress, carried no implication of estate tax exemption. Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342, 69 S.Ct. 561, 93 L.Ed. 721, also relied on by the Court, merely held that a lessee of mineral rights in Indian lands was not immunized from paying state gross production taxes and state excise taxes on petroleum produced from the lands. Those cases would be relevant here if the tribe had leased the ski resort to an outsider who sought the tribal tax immunity. We deal only with an income tax levied on a tribal corporate enterprise conducted by the tribe with federal funds on federal lands leased to the tribe. Federal Indian Law distinguished the Helvering and like cases relied on by the Court from an enterprise 'organized solely to carry out governmental objectives, such as the tribal corporations organized' under the 1934 Act with which we now deal id., at 852 853.
37
In my view, this state income tax is barred by § 5 through which Congress has given tax immunity to these new tribal enterprises.
1
In 1936, the Tribe adopted a constitution, pursuant to § 16 of the Act, 25 U.S.C. § 476.
2
The Tribe asserts that 'no sales tax (gross receipts tax) is being . . . charged for any ski rentals, lift tickets, food or beverages.'
3
Brief for Petitioner 16.
4
A corresponding provision appears in the Constitution of the State of New Mexico, Art. XXI, § 2.
5
The Tribe's treaty with the United States, 10 Stat. 979, which acknowledges that the Tribe is 'exclusively under the laws, jurisdiction, and government of the United States . . .,' does not alter the obvious effect of the State's admission legislation. See, e.g., Organized Village of Kake v. Egan, 369 U.S. 60, 67—68, 82 S.Ct. 562, 566—567, 7 L.Ed.2d 573 (1962), and cases cited therein.
6
See generally U.S. Dept. of the Interior, Federal Indian Law 129—132 (1958), a revision of Handbook of Federal Indian Law, prepared under the editorial direction of Felix S. Cohen, first printed in 1940 (hereinafter Federal Indian Law); Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich.L.Rev. 955 (1972).
7
For other examples see Comment, n. 6 supra, at 983—985. See also J. Collier, On the Gleaming Way 149, 129—149 (1962).
8
See also id., at 11727, 11731—11732 (remarks of Rep. Howard); the statements of Mr. John Collier, the Commissioner of Indian Affairs, in Hearings on H.R. 7902, before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 37, 60, 65—67 (1934) (hereinafter 1934 House Hearings).
9
The predecessor bills to the Wheeler-Howard Act, H.R. 7902 and S. 2755 (respectively 78 Cong.Rec. 2437 and 2440), expressly provided that the chartered Indian communities may act 'as a Federal agency in the administration of Indian Affairs,' and, correspondingly, that the United States would not 'be liable for any act done . . . by a chartered Indian community.' Title I,
§ 4(i). 1934 House Hearings 3. The bills further provided that: 'Nothing in this Act shall be construed as rendering the property of any Indian community . . . subject to taxation by any State or subdivision thereof . . ..' Tit. I, § 11. Id., at 5. The memorandum of John Collier, which accompanied the bills, stated that '(a)s a Federal agency, the property of a chartered community is constitutionally exempt from State taxation . . ..' Id., at 25. These extensive provisions for tax immunity were discarded in the Wheeler-Howard Act, along with the accompanying provisions for more extensive governmental powers on the part of the chartered communities. See H.R.Rep. No. 1804, supra, at 6. We do not read this legislative history, however, as suggesting that Congress intended to remove the traditional tax immunity that Indian tribes enjoyed on their reservations. This reading finds support in Felix S. Cohen's treatise, see Federal Indian Law 852—853, although we believe that the broader thrust of his statement—that any 'attempt by a State to impose income or other types of taxes' upon 'tribal corporations organized under the Indian Reorganization Act . . . would still be held a direct burden on a Federal instrumentality' is not supported by the modern cases and should be read with and in the light of other discussions of the immunity doctrine in particularized contexts. See id., at 872—873, 864—873.
10
The claim of tax immunity was made by a non-Indian lessee, under the rule of Gillespie v. Oklahoma, 257 U.S. 501, 42 S.Ct. 171, 66 L.Ed. 338 (1922), which was itself overruled in Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342, 69 S.Ct. 561, 93 L.Ed. 721 (1949), over two decades after Shaw. As a decision with respect to constitutionally mandated intergovernmental immunity, Shaw remains good law, although its result was altered by statute, as Congress was free to do. See generally Board of County Comm'rs v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094 (1943).
11
The ski resort land was not technically 'acquired' 'in trust for the Indian tribe.' But, as the Solicitor General has pointed out, 'it would have been meaningless for the United States, which already had title to the forest, to convey title to itself for the use of the Tribe.' Brief for the United States as amicus curiae 13. We think the lease arrangement here in question was sufficient to bring the Tribe's interest in the land within the immunity afforded by § 465. It should perhaps be noted that the Tribe has not suggested that it is immune from taxation by virtue of its status as a lessee of land owned by the Federal Government. See, e.g., United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424 (1958); James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937); cf. Helvering v. Mountain Producers Corp., 303 U.S. 376, 58 S.Ct. 623, 82 L.Ed. 907 (1938); Oklahoma Tax Comm'n v. Texas Co., supra.
12
Squire v. Capoeman involved the attempted imposition of federal capital gains taxes on the sale price of timber logged off allotted Indian timberland (located within a reservation). The timber constituted 'the major value'—if not the only practical value—of the Indian's allotted land and it was clear that if the capital gains tax was to apply, the purposes and intent of the General Allotment Act of 1887 would in large measure have been frustrated. Id., 351 U.S., at 10, 76 S.Ct., at 617. The Court, relying in part on 'relatively contemporaneous official and unofficial writings' on the intended scope of the income tax laws, 351 U.S., at 9, 76 S.Ct., at 616, declined to so interpret those later enacted laws and to find that the Government intended to tax its own ward in this particular manner. In contrast to Squire, we find nothing fundamentally inconsistent with the intent of the Indian Reorganization Act in permitting the gross receipts of the Tribe's off-reservation enterprise to be subject to nondiscriminatory state taxes.
13
It is unclear from the record whether the Tribe has actually incorporated itself as an Indian chartered corporation pursuant to § 477. But see Charters, Constitutions and By-Laws of the Indian Tribes of North America, pt. III, pp. 13—15 (G. Fay ed. 1967). The Tribe's constitution, however, adopted under 25 U.S.C. § 476, gives its Tribal Council the powers that would ordinarily be held by such a corporation, Art. XI, and by both practice and regulations, the two entities have apparently merged in important respects. See 25 CFR § 91.2; Comment, n. 6, supra, at 973. In any event, the question of tax immunity cannot be made to turn on the particular form in which the Tribe chooses to conduct its business.
| 12
|
411 U.S. 164
93 S.Ct. 1257
36 L.Ed.2d 129
Rosalind McCLANAHAN, etc., Appellant,v.STATE TAX COMMISSION OF ARIZONA.
No. 71—834.
Argued Dec. 12, 1972.
Decided March 27, 1973.
Syllabus
The State of Arizona has no jurisdiction to impose a tax on the income of Navajo Indians residing on the Navajo Reservation and whose income is wholly derived from reservation sources, as is clear from the relevant treaty with the Navajos and federal statutes. 167—181.
14 Ariz.App. 452, 484 P.2d 221, reversed.
Richard B. Collins, Window Rock, Ariz., for appellant.
Harry R. Sachse, New Orleans, La., for U.S., as amicus curiae, by special leave of Court.
James D. Winter, Phoenix, Ariz., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case requires us once again to reconcile the plenary power of the States over residents within their borders with the semi-autonomous status of Indians living on tribal reservations. In this instance, the problem arises in the context of Arizona's efforts to impose its personal income tax on a reservation Indian whose entire income derives from reservation sources. Although we have repeatedly addressed the question of state taxation of reservation Indians,1 the problems posed by a state income tax are apparently of first impression in this Court.2 The Arizona courts have held that such state taxation is permissible. 14 Ariz.App. 452, 484 P.2d 221 (1971). We noted probable jurisdiction, 406 U.S. 916, 92 S.Ct. 1763, 32 L.Ed.2d 115 (1972), and now reverse. We hold that by imposing the tax in question on this appellant, the State has interfered with matters which the relevant treaty and statutes leave to the exclusive province of the Federal Government and the Indians themselves. The tax is therefore unlawful as applied to reservation Indians with income derived wholly from reservation sources.
2
* Appellant is an enrolled member of the Navajo tribe who lives on that portion of the Navajo Reservation located within the State of Arizona. Her complaint alleges that all her income earned during 1967 was derived from within the Navajo Reservation. Pursuant to Ariz.Rev.Stat.Ann. § 43 188, subsec. f. (Supp.1972—1973), $16.20 was withheld from her wages for that year to cover her state income tax liability.3 At the conclusion of the tax year, appellant filed a protest against the collection of any taxes on her income and a claim for a refund of the entire amount withheld from her wages. When no action was taken on her claim, she instituted this action in Arizona Superior Court on behalf of herself and those similarly situated, demanding a return of the money withheld and a declaration that the state tax was unlawful as applied to reservation Indians.
3
The trial court dismissed the action for failure to state a claim, and the Arizona Court of Appeals affirmed. Citing this Court's decision in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), the Court of Appeals held that the test 'is not whether the Arizona state income tax infringes on plaintiff's rights as an individual Navajo Indian, but whether such a tax infringes on the rights of the Navajo tribe of Indians to be self-governing.' 14 Ariz.App., at 454, 484 P.2d, at 223. The court thus distinguished cases dealing with state taxes on Indian real property on the ground that these taxes, unlike the personal income tax, infringed tribal autonomy.
4
The court then pointed to cases holding that state employees could be required to pay federal income taxes and that the State had a concomitant right to tax federal employees. See Helvering v. Gerhardt, 304 U.S. 405, 58 S.Ct. 969, 82 L.Ed. 1427 (1938); Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927 (1939). Reasoning by analogy from these cases, the court argued that Arizona's income tax on individual Navajo Indians did not '(cause) an impairment of the right of the Navajo tribe to be self governing.' 14 Ariz.App., at 455, 484 P.2d, at 224.
5
Nor did the court find anything in the Arizona Enabling Act, 36 Stat. 557, to prevent the State from taxing reservation Indians. That Act, the relevant language of which is duplicated in the Arizona Constitution, disclaims state title over Indian lands and requires that such lands shall remain 'under the absolute jurisdiction and control of the Congress of the United States.' 36 Stat. 569. But the Arizona court, relying on this Court's decision in Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), held that the Enabling Act nonetheless permitted concurrent state jurisdiction so long as tribal self-government remained intact. Since an individual income tax did not interfere with tribal self-government, it followed that appellant had failed to state a claim. The Arizona Supreme Court denied a petition for review of this decision, and the case came here on appeal. See 28 U.S.C. § 1257(2).
II
6
It may be helpful to begin our discussion of the law applicable to this complex area with a brief statement of what this case does not involve. We are not here dealing with Indians who have left or never inhabited reservations set aside for their exclusive use or who do not possess the usual accoutrements of tribal self-government. See, e.g., Organized Village of Kake v. Egan, supra; Metlakatla Indian Community v. Egan, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962); Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 612 (1943). Nor are we concerned with exertions of state sovereignty over non-Indians who undertake activity on Indian reservations. See, e.g., Thomas v. Gay, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740 (1898); Utah & Northern R. Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed. 542 (1885). Cf. Surplus Trading Co. v. Cook, 281 U.S. 647, 651, 50 S.Ct. 455, 456, 74 L.Ed. 1091 (1930). Nor, finally, is this a case where the State seeks to reach activity undertaken by reservation Indians on nonreservation lands. See, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114. Rather, this case involves the narrow question whether the State may tax a reservation Indian for income earned exclusively on the reservation.
7
The principles governing the resolution of this question are not new. On the contrary, '(t)he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history.' Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945). This policy was first articulated by this Court 141 years ago when Mr. Chief Justice Marshall held that Indian nations were 'distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.' Worcester v. Georgia, 6 Pet. 515, 557, 8 L.Ed. 483 (1832). It followed from this concept of Indian reservations as separate, although dependent nations, that state law could have no role to play within the reservation boundaries. 'The Cherokee nation . . . is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States.' Id., at 561. See also United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883).
8
Although Worcester on its facts dealt with a State's efforts to extend its criminal jurisdiction to reservation lands,4 the rationale of the case plainly extended to state taxation within the reservation as well. Thus, in The Kansas Indians, 5 Wall. 737 (1867), the Court unambiguously rejected state efforts to impose a land tax on reservation Indians. 'If the tribal organization of the Shawness is preserved intact, and recognized by the political department of the government as existing, then they are a 'people distinct from others,' capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union. If under the control of Congress, from necessity there can be no divided authority.' Id., at 755. See also The New York Indians, 5 Wall. 761 (1867).
9
It is true, as the State asserts, that some of the later Indian tax cases turn, not on the Indian sovereignty doctrine, but on whether or not the State can be said to have imposed a forbidden tax on a federal instrumentality. See, e.g., Leahy v. State Treasurer of Oklahoma, 297 U.S. 420, 56 S.Ct. 507, 80 L.Ed. 771 (1936); United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532 (1903). To the extent that the tax exemption rests on federal immunity from state taxation, it may well be inapplicable in a case such as this involving an individual income tax.5 But it would vastly oversimplify the problem to say that nothing remains of the notion that reservation Indians are a separate people to whom state jurisdiction, and therefore state tax legislation, may not extend. Thus, only a few years ago, this Court struck down Arizona's attempt to tax the proceeds of a trading company doing business within the confines of the very reservation involved in this case. See Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965). The tax in no way interfered with federal land or with the National Government's proprietary interests. But it was invalidated nonetheless bacause 'from the very first days of our Government, the Federal Government had been permitting the Indians largely to govern themselves, free from state interference.' Id., at 686—687, 85 S.Ct., at 1243.6 As a leading text on Indian problems summarizes the relevant law: 'State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply. It follows that Indians and Indian property on an Indian reservation are not subject to State taxation except by virtue of express authority conferred upon the State by act of Congress.' U.S.Dept. of the Interior, Federal Indian Law 845 (1958) (hereafter Federal Indian Law).
10
This is not to say that the Indian sovereignty doctrine, with its concomitant jurisdictional limit on the reach of state law, has remained static during the 141 years since Worcester was decided. Not surprisingly, the doctrine has undergone considerable evolution in response to changed circumstances. As noted above, the doctrine has not been rigidly applied in cases where Indians have left the reservation and become assimilated into the general community. See, e.g., Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943). Similarly, notions of Indian sovereignty have been adjusted to take account of the State's legitimate interests in regulating the affairs of non-Indians. See, e.g., New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896); Utah & Northern R. Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed.2d 542 (1885). This line of cases was summarized in this Court's landmark decision in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959): 'Over the years this Court has modified (the Worcester principle) in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized . . .. Thus, suits by Indians against outsiders in state courts have been sanctioned. . . . And state courts have been allowed to try non-Indians who committed crimes against each other on a reservation. . . . But if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive. . . . Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.' Id., at 219—220, 79 S.Ct., at 270 (footnote omitted).
11
Finally, the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption.7 See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114. The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power. Compare, e.g., United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), with Kennerly v. District Court, 400 U.S. 423, 90 S.Ct. 480, 27 L.Ed.2d 507 (1971).8
12
The Indian sovereignty doctrine is relevant, then, not because it provides a definitive resolution of the issues in this suit, but because it provides a backdrop against which the applicable treaties and federal statutes must be read. It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government. Indians today are American citizens.9 They have the right to vote,10 to use state courts,11 and they receive some state services.12 But it is nonetheless still true, as it was in the last century, that '(t)he relation of the Indian tribes living within the borders of the United States . . . (is) an anomalous one and of a complex character. . . . They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.' United States v. Kagama, 118 U.S., at 381—382, 6 S.Ct., at 1112.
III
13
When the relevant treaty and statutes are read with this tradition of sovereignty in mind, we think it clear that Arizona has exceeded its lawful authority by attempting to tax appellant. The beginning of our analysis must be with the treaty which the United States Government entered with the Navajo Nation in 1868. The agreement provided, in relevant part, that a prescribed reservation would be set aside 'for the use and occupation of the Navajo tribe of Indians' and that 'no persons except those herein so authorized to do, and except such officers, soldiers, agents, and employe § of the government, or of the Indians, as may be authorized to enter upon Indian reservations in discharge of duties imposed by law, or the orders of the President, shall ever be permitted to pass over, settle upon, or reside in, the territory described in this article.' 15 Stat. 668.
14
The treaty nowhere explicitly states that the Navajos were to be free from state law or exempt from state taxes. But the document is not to be read as an ordinary contract agreed upon by parties dealing at arm's length with equal bargaining positions. We have had occasion in the past to describe the circumstances under which the agreement was reached. 'At the time this document was signed the Navajos were an exiled people, forced by the United States to live crowded together on a small piece of land on the Pecos River in eastern New Mexico, some 300 miles east of the area they had occupied before the coming of the white man. In return for their promises to keep peace, this treaty 'set apart' for 'their permanent home' a portion of what had been their native country.' Williams v. Lee, 358 U.S., at 221, 79 S.Ct., at 271.
15
It is circumstances such as these which have led this Court in interpreting Indian treaties, to adopt the general rule that '(d)oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.' Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930). When this canon of construction is taken together with the tradition of Indian independence described above, it cannot be doubted that the reservation of certain lands for the exclusive use and occupancy of the Navajos and the exclusion of non-Navajos from the prescribed area was meant to establish the lands as within the exclusive sovereignty of the Navajos under general federal supervision. It is thus unsurprising that this Court has interpreted the Navajo treaty to preclude extension of state law—including state tax law to Indians on the Navajo Reservation. See Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S., at 687, 690, 85 S.Ct., at 1243, 1245; Williams v. Lee, supra, 358 U.S., at 221—222, 79 S.Ct., at 271.
16
Moreover, since the signing of the Navajo treaty, Congress has consistently acted upon the assumption that the States lacked jurisdiction over Navajos living on the reservation.13 Thus, when Arizona entered the Union, its entry was expressly conditioned on the promise that the State would 'forever disclaim all right and title to . . . all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States.' Arizona Enabling Act, 36 Stat. 569.14
17
Nor is the Arizona Enabling Act silent on the specific question of tax immunity. The Act expressly provides that 'nothing herein, or in the ordinance herein provided for, shall preclude the said State from taxing as other lands and other property are taxed any lands and other property outside of an Indian reservation owned or held by any Indian.' Id., at 570 (emphasis added). It is true, of course, that exemptions from tax laws should, as a general rule, be clearly expressed. But we have in the past construed language far more ambiguous than this as providing a tax exemption for Indians. See, e.g., Squire v. Capoeman, 351 U.S. 1, 6, 76 S.Ct. 611, 614, 100 L.Ed. 883 (1956), and we see no reason to give this language an especially crabbed or restrictive meaning.15
18
Indeed, Congress' intent to maintain the tax-exempt status of reservation Indians is especially clear in light of the Buck Act, 4 U.S.C. § 104 et seq., which provides comprehensive federal guidance for state taxation of those living within federal areas. Section 106(a) of Title 4 U.S.C. grants to the States general authority to impose an income tax on residents of federal areas, but § 109 expressly provides that '(n)othing in sections 105 and 106 of this title shall be deemed to authorize the levy or collection of any tax on or from any Indian not otherwise taxed.' To be sure, the language of the statute itself does not make clear whether the reference to 'any Indian not otherwise taxed' was intended to apply to reservation Indians earning their income on the reservation. But the legislative history makes plain that this proviso was meant to except reservation Indians from coverage of the Buck Act, see S.Rep.No.1625, 76th Cong., 3d Sess., 2, 4 (1940); 84 Cong.Rec. 10685, and this Court has so interpreted it. See Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S., at 691 n. 18, 85 S.Ct., at 1245. While the Buck Act itself cannot be read as an affirmative grant of tax-exempt status to reservation Indians, it should be obvious that Congress would not have jealously protected the immunity of reservation Indians from state income taxes had it thought that the States had residual power to impose such taxes in any event. Similarly, narrower statutes authorizing States to assert tax jurisdiction over reservations in special situations are explicable only if Congress assumed that the States lacked the power to impose the taxes without special authorization.16
19
Finally, it should be noted that Congress has now provided a method whereby States may assume jurisdiction over reservation Indians. Title 25 U.S.C. § 1322(a) grants the consent of the United States to States wishing to assume criminal and civil jurisdiction over reservation Indians, and 25 U.S.C. § 1324 confers upon the States the right to disregard enabling acts which limit their authority over such Indians. But the Act expressly provides that the State must act 'with the consent of the tribe occupying the particular Indian country,' 25 U.S.C. § 1322(a),17 and must 'appropriately (amend its) constitution or statutes.' 25 U.S.C. § 1324. Once again, the Act cannot be read as expressly conferring tax immunity upon Indians. But we cannot believe that Congress would have required the consent of the Indians affected and the amendment of those state constitutions which prohibit the assumption of jurisdiction if the States were free to accomplish the same goal unilaterally by simple legislative enactment. See Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971).18
20
Arizona, of course, has neither amended its constitution to permit taxation of the Navajos nor secured the consent of the Indians affected. Indeed, a startling aspect of this case is that appellee apparently concedes that, in the absence of compliance with 25 U.S.C. § 1322(a), the Arizona courts can exercise neither cvil nor criminal jurisdiction over reservation Indians. See Brief for Appellee 24—26.19 But the appellee nowhere explains how, without such jurisdiction, the State's tax may either be imposed or collected. Cf. Tr. of Oral Arg. 38—39. Unless the State is willing to defend the position that it may constitutionally administer its tax system altogether without judicial intervention, cf. Ward v. Board of County Comm'rs, 253U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751 (1920), the admitted absence of either civil or criminal jurisdiction would seem to dispose of the case.
IV
21
When Arizona's contentions are measured against these statutory imperatives, they are simply untenable. The State relies primarily upon language in Williams v. Lee stating that the test for determining the validity of state action is 'whether (it) infringed on the right of reservation Indians to make their own laws and be ruled by them.' 358 U.S., at 220, 79 S.Ct. at 271. Since Arizona has attempted to tax individual Indians and not the tribe or reservation as such, it argues that it has not infringed on Indian rights of self-government.
22
In fact, we are far from convinced that when a State imposes taxes upon reservation members without their consent, its action can be reconciled with tribal self-determination. But even if the State's premise were accepted, we reject the suggestion that the Williams test was meant to apply in this situation. It must be remembered that cases applying the Williams test have dealt principally with situations involving non-Indians. See also Organized Village of Kake v. Egan, 369 U.S., at 75—76, 82 S.Ct., at 570—571. In these situations, both the tribe and the State could fairly claim an interest in asserting their respective jurisdictions. The Williams test was designed to resolve this conflict by providing that the State could protect its interest up to the point where tribal self-government would be affected.
23
The problem posed by this case is completely different. Since appellant is an Indian and since her income is derived wholly from reservation sources, her activity is totally within the sphere which the relevant treaty and statutes leave for the Federal Government and for the Indians themselves. Appellee cites us to no cases holding that this legislation may be ignored simply because tribal self-government has not been infringed.20 On the contrary, this Court expressly rejected such a position only two years ago.21 In Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971), the Blackfoot Indian Tribe had voted to make state jurisdiction concurrent within the reservation. Although the State had not complied with the procedural prerequisites for the assumption of jurisdiction, it argued that it was nonetheless entitled to extend its laws to the reservation since such action was obviously consistent with the wishes of the Tribe and, therefore, with tribal self-government. But we held that the Williams rule was inapplicable and that '(t)he unilateral action of the Tribal Council was insufficient to vest Montana with jurisdiction.' Id., at 427, 91 S.Ct., at 482. If Montana may not assume jurisdiction over the Blackfeet by simple legislation even when the Tribe itself agrees to be bound by state law, it surely follows that Arizona may not assume such jurisdiction in the absence of tribal agreement.
24
Nor is the State's attempted distinction between taxes on land and on income availing. Indeed, it is somewhat surprising that the State adheres to this distinction in light of our decision in Warren Trading Post Co. v. Arizona Tax Comm'n, supra, wherein we invalidated anincome tax which Arizona had attempted to impose within the Navajo Reservation. However relevant the land-income distinction may be in other contexts, it is plainly irrelevant when, as here, the tax is resisted because the State is totally lacking in jurisdiction over both the people and the lands it seeks to tax. In such a situation, the State has no more jurisdiction to reach income generated on reservation lands than to tax the land itself.
25
Finally, we cannot accept the notion that it is irrelevant 'whether the . . . state income tax infringes on (appellant's) rights as an individual Navajo Indian,' as the State Court of Appeals maintained. 14 Ariz.App., at 454, 484 P.2d, at 223. To be sure, when Congress has legislated on Indian matters, it has, most often, dealt with the tribes as collective entities. But those entities are, after all, composed of individual Indians, and the legislation confers individual rights. This Court has therefore held that 'the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.' Williams v. Lee, supra, 358 U.S., at 220, 79 S.Ct., at 271. (emphasis added). In this case, appellant's rights as a reservation Indian were violated when the state collected a tax from her which it had no jurisdiction to impose. Accordingly, the judgment of the court below must be reversed.
26
Reversed.
1
See e.g., Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943); Childers v. Beaver, 270 U.S. 555, 46 S.Ct. 387, 70 L.Ed. 730 (1926); United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532 (1903); The Kansas Indians, 5 Wall. 737, 18 L.Ed. 667 (1867). Cf. Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883 (1956).
2
State courts have disagreed on the question. Compare Ghahate v. Bureau of Revenue, 80 N.M. 98, 451 P.2d 1002 (1969), with Commissioner of Taxation v. Brun, 286 Minn. 43, 174 N.W.2d 120 See Powless v. State Tax Comm'n, 22 A.D.2d 746, 253 N.Y.S.2d 438 (1964); State Tax Comm'n v. Barnes, 14 Misc.2d 311, 178 N.Y.S.2d 932 (1958).
3
The liability was created by Ariz.Rev.Stat.Ann. § 43—102 subsec. a (Supp. 1972—1973) which, in relevant part, provides; 'There shall be levied, collected, and paid for each taxable year upon the entire net income of every estate or trust taxable under this title and of every resident of this state and upon the entire net income of every nonresident which is derived from sources within this state, taxes in the following amounts and at the following rates upon the amount of net income in excess of credits against net income provided in §§ 43—127 and 43—128.' Appellant conceded below that she was a 'resident' within the meaning of the statute, and that question, which in any event poses an issue of state law, is not now before us.
4
See also Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946); United States v. Chavez, 290 U.S. 357, 54 S.Ct. 217, 78 L.Ed. 360 (1933); United States v. Ramsey, 271 U.S. 467, 46 S.Ct. 559, 70 L.Ed. 1039 (1926).
5
The federal-instrumentality doctrine does not prohibit state taxation of individuals deriving their income from federal sources. See Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 7 L.Ed.2d 573 (1939). Cf. Leahy v. State Treasurer of Oklahoma, 297 U.S. 420, 56 S.Ct. 507, 80 L.Ed. 771 (1936). The doctrine has, in any event, been sharply limited with respect to Indians. See Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943).
6
The court below distinguished Warren Trading Post as limited to cases where the Federal Government has pre-empted state law by regulating Indian traders in a manner inconsistent with state taxation. 14 Ariz.App. 452, 455, 484 P.2d 221, 224. But although the Court was, no doubt, influenced by the federal licensing requirements, the reasoning of Warren Trading Post cannot be so restricted. The Court invalidated Arizona's tax in part because 'Congress has, since the creation of the Navajo Reservation nearly a century ago, left the Indians on it largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities.' Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 690, 85 S.Ct. 1242, 1245, 14 L.Ed.2d 165 (1965).
7
The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making. See U.S.Const. Art. I, § 8, cl. 3; Art. II, § 2, cl. 2. See also Williams v. Lee, 358 U.S. 217, 219, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 n. 4 (1959); Perrin v. United States, 232 U.S. 478, 482, 34 S.Ct. 387, 389, 58 L.Ed. 691 (1914); Federal Indian Law 3.
8
The extent of federal pre-emption and residual Indian sovereignty in the total absence of federal treaty obligations or legislation is therefore now something of a moot question. Cf. Organized Village of Kake v. Egan, 369 U.S. 60, 62, 82 S.Ct. 562, 564, 7 L.Ed.2d 573 (1962); Federal Indian Law 846. The question is generally of little more than theoretical importance, however, since in almost all cases federal treaties and statutes define the boundaries of federal and state jurisdiction.
9
See U.S.C. § 1401(a)(2).
10
See, e.g., Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456 (1948).
11
See, e.g., Felix v. Patrick, 145 U.S. 317, 332, 12 S.Ct. 862, 867, 36 L.Ed. 719 (1892).
12
The court below pointed out that Arizona was expending tax monies for education and welfare within the confines of the Navajo Reservation. 14 Ariz.App., at 456—457, 484 P.2d, at 225 226. It should be noted, however, that the Federal Government defrays 80% of Arizona's ordinary social security payments to reservation Indians, see 25 U.S.C. § 639, and has authorized the expenditure of more than $88 million for rehabilitation programs for Navajos and Hopis living on reservations. See also 25 U.S.C. §§ 13, 309, 309a. Moreover, '(c)onferring rights and privileges on these Indians cannot affect their situation, which can only be changed by treaty stipulation, or a voluntary abandonment of their tribal organization.' The Kansas Indians, 5 Wall., at 757.
13
'Congress has . . . acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation. . . . Significantly, when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. Georgia had denied.' Williams v. Lee, 358 U.S., at 220—221, 79 S.Ct., at 271 (footnote omitted).
14
This language is duplicated in Arizona's own constitution. See Ariz.Const., Art. 20, 4, A.R.S. It is also contained in the Enabling Acts of New Mexico and Utah, the other States in which the Navajo Reservation is located. See New Mexico Enabling Act, 36 Stat. 558—559; Utah Enabling Act, 28 Stat. 108.
15
There is nothing in Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), to the contrary. In Egan, we held that "absolute' federal jurisdiction is not invariably exclusive jurisdiction,' and that this language in federal legislation did not preclude the exercise of residual state authority. See id., at 68, 82 S.Ct., at 567. But that holding came in the context of a decision concerning the fishing rights of nonreservation Indians. See id., at 62, 82 S.Ct., at 564. It did not purport to provide guidelines for the exercise of state authority in areas set aside by treaty for the exclusive use and control of Indians.
16
See, e.g., 25 U.S.C. § 398 (congressional authorization for States to tax mineral production on unallotted tribal lands). Cf. 18 U.S.C. § 1161 (state liquor laws may be applicable within reservations); 25 U.S.C. § 231 (state health and education laws may be applicable within reservations).
17
As passed in 1953, Pub.L. 280, 67 Stat. 588, delegated civil and criminal jurisdiction over Indian reservations to certain States, although not to Arizona. 18 U.S.C. § 1162; 28 U.S.C. § 1360. The original Act also provided a means whereby other States could assume jurisdiction over Indian reservations without the consent of the tribe affected. 67 Stat. 590. However, in 1968, Congress passed the Indian Civil Rights Act which changed the prior procedure to require the consent of the Indians involved before a State was permitted to assume jurisdiction. 25 U.S.C. § 1322(a). Thus, had it wished to do so, Arizona could have unilaterally assumed jurisdiction over its portion of the Navajo Reservation at any point during the 15 years between 1953 and 1968. But although the State did pass narrow legislation purporting to require the enforcement of air and water pollution standards within reservations, Ariz.Rev.Stat.Ann. §§ 36—1801, 36 1865 (Supp.1972), it declined to assume full responsibility for the Indians during the period when it had the opportunity to do so.
18
We do not suggest that Arizona would necessarily be empowered to impose this tax had it followed the procedures outlined in 25 U.S.C. § 1322 et seq. Cf. 25 U.S.C. § 1322(b). That question is not presently before us, and we express no views on it.
19
In light of our prior cases, appellee has no choice but to make this concession. See, e.g., Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971); United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886).
20
Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), is not such a case. See n. 15, supra.
21
Indeed, the position was expressly rejected in Williams itself, upon which appellee so heavily relies. Williams held that 'absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.' 358 U.S., at 220, 79 S.Ct. at 271 (emphasis added).
| 12
|
411 U.S. 182
93 S.Ct. 1455
36 L.Ed.2d 142
Earl L. BUTZ, Secretary of Agriculture, et al., Petitioners,v.GLOVER LIVESTOCK COMMISSION COMPANY, INC.
No. 71—1545.
Argued Feb. 27, 1973.
Decided March 28, 1973.
Rehearing Denied June 4, 1973.
See 412 U.S. 933, 93 S.Ct. 2746.
Syllabus
Respondent stockyard operator, who after a hearing had been found to have short-weighted livestock and underpaid consignors on the basis of the false weights, was ordered by a Judicial Officer acting for the Secretary of Agriculture to cease and desist and to keep correct records, and its registration under the Packers and Stockyards Act was suspended for 20 days. The Court of Appeals upheld all but the suspension, which it found inappropriate in view of the other sanctions, and contrary to the Secretary's practice except for 'intentional and flagrant' violations. Held: In setting aside the suspension order, the Court of Appeals exceeded the scope of proper judicial review of administrative sanctions, since the Secretary had full authority to make the suspension order as a deterrent to violations whether intentional or negligent, and issuance of the order against respondent, who had ignored previous warnings against short-weighting, was not an abuse of administrative discretion. Pp. 185—189.
454 F.2d 109, reversed.
Keith A. Jones, for petitioners.
R. A. Eilbott, Jr., Pine Bluff, Ark., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Judicial Officer of the Department of Agriculture, acting for the Secretary of Agriculture, found that respondent, a registrant under the Packers and Stockyards Act, 1921, 42 Stat. 159, 7 U.S.C. § 181 et seq., wilfully violated §§ 307(a) and 312(a) of the Act, 7 U.S.C. §§ 208(a) and 213(a), by incorrect weighing of livestock, and also breached § 401, 7 U.S.C. § 221, by entries of false weights. An order was entered directing that respondent cease and desist from the violations and keep correct accounts, and also suspending respondent as a registrant under the Act for 20 days. Upon review of the decision and order, the Court of Appeals for the Eighth Circuit upheld, as supported by substantial evidence, the findings that respondent violated the Act by short-weighting cattle, and also sustained the cease-and-desist order and the order to keep correct accounts. The Court of Appeals, however, set aside the 20-day suspension. Glover Livestock Comm. Co. v. Hardin, 454 F.2d 109 (1972). We granted certiorari to consider whether, in doing so, the Court of Appeals exceeded the scope of proper judicial review of administrative sanctions. 409 U.S. 947, 93 S.Ct. 288, 34 L.Ed.2d 217 (1972). We conclude that the setting aside of the suspension was an impermissible judicial intrusion into the administrative domain under the circumstances of this case, and reverse.
2
Respondent operates a stockyard in Pine Bluff, Arkansas. As a registered 'market agency' under § 303 of the Act, 7 U.S.C. § 203, respondent is authorized to sell consigned livestock on commission, subject to the regulatory provisions of the Act and the Secretary's implementing regulations.1 Investigations of respondent's operations in 1964, 1966, and 1967 uncovered instances of underweighing of consigned livestock. Respondent was informally warned to correct the situation, but when a 1969 investigation revealed more underweighing, the present proceeding was instituted by the Administrator of the Packers and Stockyards Administration.
3
Following a hearing and the submission of briefs, the Department of Agriculture hearing examiner found that respondent had 'intentionally weighed the livestock at less than their true weights, issued scale tickets and accountings to the consignors on the basis of the false weights, and paid the consignors on the basis of the false weights.'2 The hearing examiner recommended, in addition to a cease-and-desist order and an order to keep correct records, a 30-day suspension of respondent's registration under the Act.
4
The matter was then referred to the Judicial Officer. After hearing oral argument, the Judicial Officer filed a decision and order accepting the hearing examiner's findings and adopting his recommendations of a cease-and-desist order and an order to keep correct records. The recommended suspension was also imposed but was reduced to 20 days. The Judicial Officer stated:
5
'It is not a pleasant task to impose sanctions but in view of the previous warnings given respondent we conclude that we should not only issue a cease and desist order but also a suspension of respondent as a registrant under the act but for a lesser period than recommended by complainant and the hearing examiner.' 30 Agri.Dec. 179, 186 (1971).
6
The Court of Appeals agreed that 7 U.S.C. § 204 authorized the Secretary to suspend 'any registrant found in violation of the Act,' 454 F.2d, at 113, that the suspension procedure here satisfied the relevant requirements of the Administrative Procedure Act, 5 U.S.C. § 558, and that 'the evidence indicates that (respondent) acted with careless disregard of the statutory requirements and thus meets the test of 'wilfulness." 454 F.2d, at 115. The court nevertheless concluded that the suspension order was 'unconscionable' under the circumstances of this case. The court gave two reasons. The first, relying on four previous suspension decisions, was that the Secretary's practice was not to impose suspensions for negligent or careless violations but only for violations found to be 'intentional and flagrant,' and therefore that the suspension in respondent's case was contrary to a policy of "achiev(ing) . . . uniformity of sanctions for similar violations." The second reason given was that '(t)he cease and desist order coupled with the damaging publicity surrounding these proceedings would certainly seem appropriate and reasonable with respect to the practice the Department seeks to eliminate.' Id., at 114, 115.
7
The applicable standard of judicial review in such cases required review of the Secretary's order according to the 'fundamental principle . . . that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy 'the relation of remedy to policy is peculiarly a matter for administrative competence." American Power Co. v. SEC, 329 U.S. 90, 112, 67 S.Ct. 133, 146, 91 L.Ed. 103 (1946). Thus, the Secretary's choice of sanction was not to be overturned unless the Court of Appeals might find it 'unwarranted in law or . . . without justification in fact . . ..' Id., at 112 113, 67 S.Ct., at 146; Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941); Moog Industries, Inc. v. FTC, 355 U.S. 411, 413—414, 78 S.Ct. 377, 379—380, 2 L.Ed.2d 370 (1958); FTC v. Universal-Rundle Corp., 387 U.S. 244, 250, 87 S.Ct. 1622, 1626, 18 L.Ed.2d 749 (1967); 4 K.Davis, Administrative Law § 30.10, pp. 250—251 (1958). The Court of Appeals acknowledged this definition of the permissible scope of judicial review3 but apparently regarded respondent's suspension as 'unwarranted in law' or 'without justification in fact.' We cannot agree that the Secretary's action can be faulted in either respect on this record.
8
We read the Court of Appeals' opinion to suggest that the sanction was 'unwarranted in law' because 'uniformity of sanctions for similar violations' is somehow mandated by the Act. We search in vain for that requirement in the statute.4 The Secretary may suspend 'for a reasonable specified period' any registrant who has violated any provision of the Act. 7 U.S.C. § 204. Nothing whatever in that provision confines its application to cases of 'intentional and flagrant conduct' or denies its application in cases of negligent or careless violations. Rather, the breadth of the grant of authority to impose the sanction strongly implies a congressional purpose to permit the Secretary to impose it to deter repeated violations of the Act, whether intentional or negligent. Hyatt v. United States, 276 F.2d 308, 313 (CA10, 1960); G. H. Miller & Co. v. United States, 260 F.2d 286 (CA7, 1958); In re Silver, 21 Agric.Dec. 1438, 1452 (1962).5 The employment of a sanction within the authority of an administrative agency is thus not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases. FCC v. WOKO, 329 U.S. 223, 227—228, 67 S.Ct. 213, 215—216, 91 L.Ed. 204 (1946); FTC v. Universal-Rundle Corp., 387 U.S., at 250, 251, 87 S.Ct., at 1626—1627; G. H. Miller & Co. v. United States, supra, 260 F.2d, at 296; Hiller v. SEC, 429 F.2d 856, 858—859 (CA2, 1970); Dlugash v. SEC, 373 F.2d 107, 110 (CA2, 1967); Kent v. Hardin, 425 F.2d 1346, 1349 (CA5, 1970).
9
Moreover, the Court of Appeals may have been in error in acting on the premise that the Secretary's practice was to impose suspensions only in cases of 'intentional and flagrant conduct.'6 The Secretary's practice, rather, apparently is to employ that sanction as in his judgment best serves to deter violations and achieve the objectives of that statute. Congress plainly intended in its broad grant to give the Secretary that breadth of discretion. Therefore, mere unevenness in the application of the sanction does not render its application in a particular case 'unwarranted in law.'
10
Nor can we perceive any basis on this record for a conclusion that the suspension of respondent was so 'without justification in fact' 'as to constitute an abuse of (the Secretary's) discretion.' American Power Co. v. SEC, 329 U.S., at 115, 67 S.Ct., at 147; Moog Industries, Inc. v. FTC, 355 U.S., at 414, 78 S.Ct., at 380; Barsky v. Board of Regents, 347 U.S. 442, 455, 74 S.Ct. 650, 657, 98 L.Ed. 829 (1954). The Judicial Officer rested the suspension on his view of its necessity in light of respondent's disregard of previous warnings. The facts found concerning the previous warnings and respondent's disregard of these warnings were sustained by the Court of Appeals as based on ample evidence. In that circumstance, the overturning of the suspension authorized by the statute was an impermissible intrusion into the administrative domain.
11
Similarly, insofar as the Court of Appeals rested its action on its view that, in light of damaging publicity about the charges, the cease-and-desist order sufficiently redressed respondent's violations, the court clearly exceeded its function of judicial review. The fashioning of an appropriate and reasonable remedy is for the Secretary, not the court. The court may decide only whether under the pertinent statute and relevant facts, the Secretary made 'an allowable judgment in (his) choice of the remedy.' Jacob Siegel Co. v. FTC, 327 U.S. 608, 612, 66 S.Ct. 758, 760, 90 L.Ed. 888 (1946).
12
Reversed.
13
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS joins, dissenting.
14
The only remarkable thing about this case is its presence in this Court. For the case involves no more than the application of well-settled principles to a familiar situation, and has little significance except for the respondent. Why certiorari was granted is a mystery to me—particularly at a time when the Court is thought by many to be burdened by too heavy a caseload. See Rule 19, Rules of the Supreme Court of the United States.
15
The Court of Appeals did nothing more than review a penalty imposed by the Secretary of Agriculture that was alleged by the respondent to be discriminatory and arbitrary. In approaching its task, the appellate court displayed an impeccable understanding of the permissible scope of review:
16
'The scope of our review is limited to the correction of errors of law and to an examination of the sufficiency of the evidence supporting the factual conclusions. The findings and order of the Judicial Officer must be sustained if not contrary to law and if supported by substantial evidence. Also, this Court may not substitute its judgment for that of the Judicial Officer's as to which of the various inferences may be drawn from the evidence.' 454 F.2d 109, 110—111.
17
'Ordinarily it is not for the courts to modify ancillary features of agency orders which are supported by substantial evidence. The shaping of remedies is peculiarly within the special competence of the regulatory agency vested by Congress with authority to deal with these matters, and so long as the remedy selected does not exceed the agency's statutory power to impose and it bears a reasonable relation to the practice sought to be eliminated, a reviewing court may not interfere.' Id., at 114.
18
Had the Court of Appeals used the talismanic language of the Administrative Procedure Act, and found the penalty to be either 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' 5 U.S.C. § 706(2)(A), I have no doubt that certiorari would have been denied. But the Court of Appeals made the mistake of using the wrong words, saying that the penalty was 'unconscionable,' because it was 'unwarranted and without justification in fact.'1
19
Today the Court holds that the penalty was not 'unwarranted in law', because it was within permissible statutory limits. But this ignores the valid principle of law that motivated the Court of Appeals—the principle that like cases are to be treated alike. As Professor Jaffe has put the matter:
20
'The scope of judicial review is ultimately conditioned and determined by the major proposition that the constitutional courts of this country are the acknowledged architects and guarantors of the integrity of the legal system. . . . An agency is not an island entire of itself. It is one of the many rooms in the magnificent mansion of the law. The very subordination of the agency to judicial jurisdiction is intended to proclaim the premise that each agency is to be brought into harmony with the totality of the law; the law as it is found in the statute at hand, the statute book at large, the principles and conceptions of the 'common law,' and the ultimate guarantees associated with the Constitution.'2
21
The reversal today of a wholly defensible Court of Appeals judgment accomplishes two unfortunate results. First, the Court moves administrative decision-making one step closer to unreviewability, an odd result at a time when serious concern is being expressed about the fairness of agency justice.3 Second, the Court serves notice upon the federal judiciary to be wary indeed of venturing to correct administrative arbitrariness.
22
Because I think the Court of Appeals followed the correct principles of judicial review of administrative conduct, I would affirm its judgment.
1
7 U.S.C. §§ 201—217a. Specifically, registrants are prohibited from engaging in or using 'any unfair, unjustly discriminatory, or deceptive practice or device in connection with receiving, marketing, buying, or selling on a commission basis or otherwise, feeding, watering, holding, delivery, shipment, weighing, or handling . . . of livestock,' 7 U.S.C. § 213(a), and are required to 'keep such accounts, records, and memoranda as fully and correctly disclose all transactions involved in his business . . ..' 7 U.S.C. § 221.
The Secretary's regulations may be found in 9 CFR pt. 201.
2
App. 35.
3
The Court of Appeals stated:
'Ordinarily it is not for the courts to modify ancillary features of agency orders which are supported by substantial evidence. The shaping of remedies is peculiarly within the special competence of the regulatory agency vested by Congress with authority to deal with these matters, and so long as the remedy selected does not exceed the agency's statutory power to impose and it bears a reasonable relation to the practice sought to be eliminated, a reviewing court may not interfere. . . . (A)ppellate courts (may not) enter the more spacious domain of public policy which Congress has entrusted in the various regulatory agencies.' 454 F.2d, 109, 114.
4
The Court of Appeals cited a 1962 decision by the Secretary in which appears a reference to 'uniformity of sanctions for similar violations.' In re Silver, 21 Agri.Dec. 1438 (1962). That reference is no support for the Court of Appeals' decision, however, for the Secretary said expressly in that decision:
'False and incorrect weighing of livestock by registrants under the act is a flagrant and serious violation thereof . . .' and 'even if respondent did not give instructions for the false weighings, his negligence in allowing the false weighings over an extended period brings such situation within the reach of the cited cases (sustaining sanctions) and we would still order the sanctions below.' Id., at 1452 (emphasis added).
5
It is by no means clear that respondent's violations were merely negligent. The hearing examiner found that respondent had 'intentionally' underweighed livestock, and the Judicial Officer stated: 'We conclude then, as did the hearing examiner, that respondent wilfully violated . . . the act.' (Emphasis added.) 'Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent. It seems clear, however, that the Judicial Officer sustained the hearing examiner's finding that the violations were 'intentional.'
6
See, e.g., In re Martella, 30 Agri.Dec. 1479 (1971); In re Meggs, 30 Agri.Dec. 1314 (1971); In re Producers Livestock Marketing Assn., 30 Agri.Dec. 796 (1971); In re Trimble, 29 Agri.Dec. 936 (1970); In re Anson, 28 Agri.Dec. 1127 (1969); In re Williamstown Stockyards, 27 Agri.Dec. 252 (1968); In re Middle Georgia Livestock Sales Co., 23 Agri.Dec. 1361 (1964). These cases involve suspension of registrants under the Packers and Stockyards Act for false weighing of producers' livestock and in none was there a finding that the violation was intentional or flagrant. There are also many cases of suspension for diverse other violations without a finding that the conduct was intentional or flagrant. See, e.g., In re Wallis, 29 Agri.Dec. 37 (1970).
1
The Court of Appeals borrowed this phrasing of the test from this Court's opinion in American Power Co. v. SEC, 329 U.S. 90, 112—113, 67 S.Ct. 133, 146, 91 L.Ed. 103.
2
L. Jaffe, Judicial Control of Administrative Action 589 590 (1965).
3
See generally K. Davis, Discretionary Justice: A Preliminary Inquiry (1969), reviewed by Wright, Beyond Discretionary Justice, 81 Yale L.J. 575.
| 89
|
411 U.S. 192
93 S.Ct. 1463
36 L.Ed.2d 151
Alton J. LEMON et al., Appellants,v.David H. KURTZMAN, etc., et al.
No. 71—1470.
Argued Nov. 8, 1972.
Decided April 2, 1973.
Syllabus
Following this Court's invalidation in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (Lemon I) of Pennsylvania's statutory program to reimburse nonpublic sectarian schools (hereafter schools) for secular educational services, the District Court on remand enjoined any payments under the program for services rendered after Lemon I, but permitted Pennsylvania to reimburse the schools for services performed prior to that decision. Appellants challenge the scope of this decree. Held: The judgment is affirmed. Pp. 193—209.
348 F.Supp. 300, affirmed.
THE CHIEF JUSTICE, in an opinion joined by Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST concluded that the District Court did not abuse its discretion in permitting Pennsylvania to reimburse the schools for services rendered and costs incurred in reliance on the statutory scheme prior to its invalidation in Lemon I. Pp. 197—209.
(a) An unconstitutional statute is not absolutely void, but is a practical reality upon which people rely. Courts recognize that reality. Pp. 197—199.
(b) A trial court has wide latitude in shaping an equitable decree and reaching an accommodation between public and private needs. Pp. 200—201.
(c) The contested reimbursement will not contravene the constitutional principle of Lemon I of avoiding the ongoing entanglement of church and state, since only a final, ministerial post-audit is involved and no further detailed state surveillance of the schools is required. At the same time, however, supervision already conducted by Pennsylvania officials insures that the proposed reimbursement will not be used for sectarian purposes. The proposed payment reflects only the schools' expenses incurred in expectation of reimbursement. Pp. 201—202.
(d) The schools relied in good faith on the state statute, which invited the contracts and authorized reimbursement for past services: and appellants, in self-styled 'sensible recognition of the practical realities of the situation,' may well have encouraged such reliance by the schools by not moving to have the payments enjoined before the contract services had been performed. Pp. 203 205.
(e) The schools could not have enticipated the Lemon I holding which involved resolution of an issue of first impression that 'was not clearly foreshadowed.' Pp. 206—207.
(f) A State and those with whom it deals are not to be subjected to harsh, retrospective relief merely because they act on the basis of presumptively valid legislation, in the absence of contrary judicial direction. Pp. 207—209.
Mr. Justice WHITE concurred in the judgment.
David P. Bruton, Philadelphia, Pa., for appellants.
William B. Ball, Harrisburg, Pa., for appellees.
Mr. Chief Justice BURGER announced the judgment of the Court and an opinion in which Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST join.
1
On June 28, 1971, we held that the Pennsylvania statutory program to reimburse nonpublic sectarian schools for certain secular educational services violated the Establishment Clause of the First Amendment. The case was remanded to the three-judge District Court for further proceedings consistent with our opinion. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (Lemon I). On remand, the District Court entered summary judgment in favor of appellants and enjoined payment, under Act 109, of any state funds to nonpublic sectarian schools for educational services performed after June 28, 1971. The District Court's order permitted the State to reimburse nonpublic sectarian schools for services provided before our decision in Lemon I. Appellants made no claim that appellees refund all sums paid under the Pennsylvania statute1 struck down in Lemon I.
2
Appellants, the successful plaintiffs of Lemon I, now challenge the limited scope of the District Court's injunction. Specifically, they assert that the District Court erred in refusing to enjoin payment of some $24 million set aside by Pennsylvania to compensate nonpublic sectarian schools for educational services rendered by them during the 1970—1971 school year. We noted probable jurisdiction, 406 U.S. 943, 92 S.Ct. 2046, 32 L.Ed.2d 330 (1972), and we affirm the judgment of the District Court.
3
(1)
4
The specifics of the Pennsylvania statutory scheme held unconstitutional in Lemon I need be recalled only briefly. Under Act 109, the participating nonpublic schools of Pennsylvania were to be reimbursed by the State for certain educational services provided by the schools pursuant to purchase-of-service contracts with the State. According to the terms of the contracts, the schools were to provide teachers, textbooks, and instructional materials for mathematics, modern foreign language, physical science, and physical education courses—'secular' courses of instruction. The State was not only to compensate the schools for the services provided, but also to undertake continuing surveillance of the instructional programs to insure that the services purchased were not provided in connection with 'any subject matter expressing religious teaching, or the morals or forms of worship of any sect.' See Lemon I, supra, 403 U.S., at 609—610, 91 S.Ct., at 2110.
5
Under § 5607 of the Act, any nonpublic school seeking reimbursement was to 'maintain such accounting procedures, including maintenance of separate funds and accounts pertaining to the cost of secular educational service, as to establish that it actually expended in support of such service an amount of money equal to the amount of money sought in reimbursement.' To this end, the school accounts were to be subject to audit by the State Auditor General. Actual payment was to be made by the Superintendent of Public Instruction 'in four equal installments payable on the first day of September, December, March and June of the school term following the school term in which the secular educational service was rendered.' (Emphasis supplied.)
6
In Lemon I, we held that, although Act 109 had a secular legislative purpose, the Act fostered 'excessive entanglement' of church schools and State through the requirement of ongoing state scrutiny of the educational programs of sectarian schools, the statutory post-audit procedures, and potential involvement in the political process. We found it unnecessary to decide whether Act 109 was constitutionally infirm on the additional ground that the 'primary effect' of any state payments to church-related schools would be to promote the cause of religion in contravention of the Establishment Clause of the First Amendment.
7
(2)
8
Against this backdrop, we turn to the events relevant to this appeal. On June 19, 1968, Act 109 became law. Approximately one month later, appellants publicly declared their intention of challenging the constitutionality of the new legislation. During the following six months, the State took steps to implement the Act, promulgating regulations and, in January 1969, entering for the first time into service contracts for the 1968—1969 school year (then in progress) with approximately 1,181 nonpublic schools throughout Pennsylvania. The schools submitted schedules in June 1969, at the conclusion of the 1968—1969 school year, specifying the precise items of expense during that year for which they would seek reimbursement, to be made during the 1969—1970 school year. On June 3, 1969, appellants filed their complaint, asking that Act 109 be declared unconstitutional and its enforcement enjoined.
9
Simultaneously with their 1969 complaint, appellants filed a motion for a preliminary injunction to restrain the responsible state officials from 'paying or processing for paying any funds pursuant to (Act 109).' However, appellants abandoned the request for preliminary relief in a letter of August 28, 1969, from their counsel to Judge Troutman. Appellants, describing their position as a 'sensible recognition of the practical realities of the situation, . . . withdraw from any attempt to prevent initial payment to the nonpublic schools scheduled for September 2 (1969).' In the same letter, appellants' counsel mentioned the payments scheduled for December 2, 1969, but in fact no attempt was ever made to enjoin those reimbursements.
10
On November 29, 1969, a divided District Court granted appellees' motion to dismiss appellants' complaint for failure to state a claim on which relief could be granted. Appellants filed a notice of appeal to this Court on December 17, 1969; at no time before or after probable jurisdiction was noted on April 20, 1970, did appellants move for interlocutory relief pending appeal, even though on January 15, 1970, the schools entered into service contracts with the State for the 1969—1970 school year. Consequently, the District Court had no occasion to consider the exercise of injunctive power pendente lite.
11
In September 1970, the schools began performing services for the 1970—1971 school year, compensable under the terms of Act 109; and on January 15, 1971, contracts were entered into for that school year. On June 28, 1971, we held Act 109 unconstitutional and remanded the cause to the District Court for further proceedings consistent with our opinion. Not until appellants filed their motion for summary judgment, in August 1971, did they first indicate their intention to prevent reimbursement under Act 109 for the services already provided by the schools during the 1970—1971 school year.
12
(3)
13
Claims that a particular holding of the Court should be applied retroactively have been pressed on us frequently in recent years. Most often, we have been called upon to decide whether a decision defining new constitutional rights of a defendant in a criminal case should be applied to convictions of others that predated the new constitutional development. E.g., Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973); Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). But 'in the last few decades, we have recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases.' Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971); Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968); Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). We have approved nonretroactive relief in civil litigation, relating, for example, to the validity of municipal financing founded upon electoral procedures later declared unconstitutional, Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), and City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); or to the validity of elections for local officials held under possibly discriminatory voting laws, Allen v. States Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). In each of these cases, the common request was that we should reach back to disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a different understanding of the controlling of judge-made law from the rule that ultimately prevailed.
14
Appellants urge, as they did in the District Court, a strange amalgam of flexibility and absolutism. Appellants assure us that they do not seek to require the schools to disgorge prior payments received under Act 109; in the same breath, appellants insist that the presently disputed payment be enjoined because an unconstitutional statute 'confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178 (1886). Conceding that we have receded from Norton in a host of criminal decisions and in other recent constitutional decisions relating to municipal bonds, appellants nevertheless view those precedents as departures from the established norm of Norton. We disagree.
15
The process of reconciling the constitutional interests reflected in a new rule of law with reliance interests founded upon the old is 'among the most difficult of those which have engaged the attention of courts, state and federal . . ..' Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 319, 84 L.Ed. 329 (1940). Consequently, our holdings in recent years have emphasized that the effect of a given constitutional ruling on prior conduct 'is subject to no set 'principle of absolute retroactive invalidity' but depends upon a consideration of 'particular relations . . . and particular conduct . . . of rights claimed to have become vested, of status, of prior determinations deemed to have finality'; and 'of public policy in the light of the nature both of the statute and of its previous application." Linkletter, supra, 381 U.S., at 627, 85 S.Ct., at 1736, quoting from Chicot County Drainage Dist., supra, 308 U.S., at 374, 60 S.Ct., at 319. However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity. Appellants offer no persuasive reason for confining the modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves perceive none.
16
In Linkletter, the Court suggested a test, often repeated since, embodying the recent balancing approach; we looked to 'the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Id., at 629, 85 S.Ct., at 1738. Those guidelines are helpful. See infra, at 209—203 but the problem of Linkletter and its progeny is not precisely the same as that now before us. Here, we are not considering whether we will apply a new constitutional rule of criminal law in reviewing judgments of conviction obtained under a prior standard; the problem of the instant case is essentially one relating to the appropriate scope of federal equitable remedies, a problem arising from enforcement of a state statute during the period before it had been declared unconstitutional. True, the temporal scope of the injunction has brought the parties back to this Court, and their dispute calls into play values not unlike those underlying Linkletter and its progeny. But however we state the issue, the fact remains that we are asked to reexamine the District Court's evaluation of the proper means of implementing an equitable decree. Cf. United States v. Estate of Donnelly, 397 U.S. 286, 295 (1970); id., at 296—297, 90 S.Ct. 1033, 1038, at 1039—1040, 25 L.Ed.2d 312 (Harlan, J., concurring).
17
In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 27 n. 10, 91 S.Ct. 1267, 1275, 1281, 28 L.Ed.2d 554 (1971). Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary,2 what is fair, and what is workable. 'Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.' Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955). Mr. Justice Douglas, speaking for the Court, has said,
18
'The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.' Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944).
19
See also Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946).
20
In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding that those interests have constitutional roots.
21
(4)
22
The constitutional fulcrum of Lemon I was the excessive entanglement of church and state fostered by Act 109. We found it unnecessary to decide whether the 'legislative precautions (of Act 109) restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses.' 403 U.S., at 613—614, 91 S.Ct., at 2111, 29 L.Ed.2d 745. For, as we said of both Act 109 and the similar Rhode Island provision, '(a) comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed . . .. These prophylactic contacts will involve excessive and enduring entanglement between state and church.' Id., at 619, 91 S.Ct., at 2114. We further emphasized the reciprocal threat to First Amendment interests from enmeshing the divisive issue of direct aid to religions schools in the traditional political processes. Id., at 622—624, 91 S.Ct., at 2115—2117.
23
The sensitive values of the Religion Clauses do not readily lend themselves to quantification but, despite the inescapable imprecision, we think it clear that the proposed distribution of state funds to Pennsylvania's nonpublic sectarian schools will not substantially undermine the constitutional interests at stake in Lemon I. Act 109 required the Superintendent of Public Instruction to ensure that educational services to be reimbursed by the State were kept free of religions influences. Under the Act, the Superintendent's supervisory task was to have been completed long ago, during the 1970—1971 school year itself; nothing in the record suggests that the Superintendent did not faithfully execute his duties according to law. Hence, payment of the present disputed sums will compel no further state oversight of the instructional processes of sectarian schools. By the same tokens, since the constitutionality of Act 109 is now settled, there is no further potential for divisive political conflict among the citizens and legislators of Pennsylvania over the desirability or degree of direct state aid to sectarian schools under Act 109.
24
Two problems having constitutional overtones remain, but their resolution requires no compromise of the basic principles of Lemon I. There is, first, the impact of the single and final post-audit. The record indicates that the post-audit process will involve only a ministerial 'cleanup' function, that of balancing expenditures and receipts in the closing accounting—undertaken only once, and in that setting a minimal contact of the State with the affairs of the schools. Second, there is the question of impinging on the Religion Clauses from the fact of any payment that provides any state assistance or aid to sectarian schools—the issue we did not reach in Lemon I. Yet even assuming a cognizable constitutional interest in barring any state payments, under the District Court holding that interest is implicated only once under special circumstances that will not recur. There is no present risk of significant intrusive administrative entanglement, since only a final post-audit remains and detailed state surveillance of the schools is a thing of the past. At the same time, that very process of oversight—now an accomplished fact—assures that state funds will not be applied for any sectarian purposes.3 Finally, as will appear, even this single proposed payment for services long since passing state scrutiny reflects no more than the schools' reliance on promised payment for expenses incurred by them prior to June 28, 1971.
25
Offsetting the remote possibility of constitutional harm from allowing the State to keep its bargain are the expenses incurred by the schools in reliance on the state statute inviting the contracts made and authorizing reimbursement for past services performed by the schools.4 It is well established that reliance interests weigh heavily in the shaping of an appropriate equitable remedy. City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). That there was such reliance by the schools is reflected by a well-supported District Court finding. The District Court found that there was no dispute 'that to deny the church-related schools any reimbursement for their services rendered would impose upon them a substantial burden which would be difficult for them to meet.'5 348 F.Supp. 300, 304—305.
26
The significance of appellee schools' reliance is reinforced by the fact that appellants' tactical choice not to press for interim injunctive suspension of payments or contracts during the pendency of the Lemon I litigation may well have encouraged the appellee schools to incur detriments in reliance upon reimbursement by the State under Act 109. In June 1969, appellants initiated the litigation that culminated in Lemon I. Though initially appellants moved for a preliminary injunction to block the September 1969 payment of funds for services rendered during the 1968—1969 school year, for reasons of their own appellants withdrew the request. Funds were paid in September and December 1969, and in March and June 1970. In 1970, the State entered into new contracts with the nonpublic schools; appellants took no steps to block the making of these contracts or to prevent the State from disbursing funds, in September and December 1970, or March and June 1971, for services rendered during the 1969—1970 school year. Appellants, meanwhile, had filed a notice of appeal to this Court by the time the distribution of funds for the 1969 1970 school year began. It was only after our decision in Lemon I six months after the contracts for the 1970—1971 school year were perfected and after all services under those contracts had been performed—that appellants asserted their intention to block the payments due, beginning in the fall of 1971. Thus, for nearly two years, the State and the schools proceeded to act on the assumption that appellants would continue to adhere to a 'sensible recognition of the practical realities of the situation.'
27
There has been no demonstration by the appellee schools of the precise amount of any detriment incurred by them during the 1970—1971 school year in the expectation of reimbursement by the State. The complexity of such a determination for each of Pennsylvania's 1,181 nonpublic schools that contracted with the State under Act 109 is readily apparent.6 But we need not dwell on the matter of uncertainty. On this record the District Court could reasonably find reliance on the part of the appellee schools and reasonably could conclude that no more was needed to demonstrate retrospectively the degree of their reliance.
28
It is argued, though, that the schools were foolhardy to rely on any reimbursement by the State whatever, in view of the constitutional cloud over the Pennsylvania program from the outset. We conclude, however, that our holding in Lemon I 'decid(ed) an issue of first impression whose resolution was not clearly foreshadowed.' Chevron Oil Co. v. Huson, 404 U.S., at 106, 92 S.Ct., at 355. A three-judge district court, with one dissent, upheld Act 109. Soon after, another three-judge district court in Rhode Island held unconstitutional the Rhode Island statutory scheme we considered together with Pennsylvania's program in Lemon I. Nor were district courts alone in disagreement over the constitutionality of Lemon-style plans to provide financial assistance to sectarian schools. This Court was itself divided when the issue was ultimately resolved after full briefing and argument. And the Court acknowledged 'that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.' Lemon I, 403 U.S., at 612, 91 S.Ct., at 2111.7
29
That there would be constitutional attack on Act 109 was plain from the outset. But this is not a case where it could be said that appellees acted in bad faith or that they relied on a plainly unlawful statute. In this case, even the clarity of hindsight is not persuasive that the constitutional resolution of Lemon I could be predicted with assurance sufficient to undermine appellees' reliance on Act 109.
30
(5)
31
In the end, then, appellants' position comes down to this: that any reliance whatever by the schools was unjustified because Act 109 was an 'untested' state statute whose validity had never been authoritatively determined. The short answer to this argument is that governments must act if they are to fulfill their high responsibilities. As one scholar has observed, the diverse state governments were preserved by the Framers 'as separate sources of authority and organs of administration—a point on which they hardly had a choice.' H. Wechsler, Principles, Politics, and Fundamental Law 50 (1961).
32
Appellants ask, in effect, that we hold those charged with executing state legislative directives to the peril of having their arrangements unraveled if they act before there has been an authoritative judicial determination that the governing legislation is constitutional. Appellants would have state officials stay their hands until newly enacted state programs are 'ratified' by the federal courts, or risk draconian, retrospective decrees should the legislation fall. In our view, appellants' position could seriously undermine the initiative of state legislators and executive officials alike. Until judges say otherwise, state officers—the officers of Pennsylvania—have the power to carry forward the directives of the state legislature. Those officials may, in some circumstances, elect to defer acting until an authoritative judicial pronouncement has been secured; but particularly when there are no fixed and clear constitutional precedents, the choice is essentially one of political discretion and one this Court has never conceived as an incident of judicial review. We do not engage lightly in post hoc evaluation of such political judgment, founded as it is on 'one of the first principles of constitutional adjudication—the basic presumption of the constitutional validity of a duly enacted state or federal law.' San Antonio Independent School District v. Rodriguez, 411 U.S. 1, at 60, 93 S.Ct. 1278, at 1311, 36 L.Ed.2d 16 (1973) (Stewart, J., concurring).
33
Federalism suggests that federal court intervention in state judicial processes be appropriately confined. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and companion cases. Likewise, federalism requires that federal injunctions unrelated to state courts be shaped with concern and care for the responsibilities of the executive and legislative branches of state governments.8 In short the propriety of the relief afforded appellants by the District Court, applying familiar equitable principles, must be measured against the totality of circumstances and in light of the general principle that, absent contrary direction, state officials and those with whom they deal are entitled to rely on a presumptively valid state statute, enacted in good faith and by no means plainly unlawful.
34
Affirmed.
35
Mr. Justice WHITE concurs in the judgment.
36
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
37
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice STEWART concur, dissenting.
38
There is as much a violation of the Establishment Clause of the First Amendment whether the payment from public funds to sectarian schools involves last year, the current year, or next year. Madison in his Remonstrance stated: '(T)he same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment . . ..'1
39
Whether the grant is for teaching last year or at the present time, taxpayers are forced to contribute to sectarian schools a part of their tax dollars.
40
The ban on that practice is not new. Lemon I, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 did not announce a change in the law. We had announced over and over again that the use of taxpayers' money to support parochial schools violates the First Amendment, made applicable to the States by virtue of the Fourteenth.
41
We said in unequivocal words in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711: 'No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.' We reiterated the same idea in Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954, in McGowan v. Maryland, 366 U.S. 420, 443, 81 S.Ct. 1101, 1114, 6 L.Ed.2d 393, and in Torcaso v. Watkins, 367 U.S. 488, 493, 81 S.Ct. 1680, 1682, 6 L.Ed.2d 982. We repeated the same idea in McCollum, People of State of Illinois, ex rel. v. Board of Education, 333 U.S. 203, 210, 68 S.Ct. 461, 465, 92 L.Ed. 649, and added that a State's tax-supported public schools could not be used 'for the dissemination of religious doctrines' nor could a State provide the church 'pupils for their religious classes through use of the state's compulsory public school machinery.' Id., at 212, 68 S.Ct., at 466.
42
Mr. Justice Brennan in his separate opinion in Lemon I put the matter succinctly when he said,
43
'(F)or more than a century, the consensus, enforced by legislatures and courts with substantial consistency, has been that public subsidy of sectarian schools constitutes an impermissible involvement of secular with religious institutions.' 403 U.S. 642, 648—649, 91 S.Ct. 2129.
44
So there was clear warning that those who proposed such subsidies were treading on unconstitutional ground. They can tender no considerations of equity that should allow them to profit from their unconstitutional venture.
45
The issues presented in this type of case are often caught up in political strategies, designed to turn judicial or legislative minorities into majorities. Lawyers planning trial strategies are familiar with those tactics. But those who use them and lose have no equities that make constitutional what has long been declared to be unconstitutional. From the days of Madison, the issue of subsidy has never been a question of the amount of the subsidy but rather a principle of no subsidy at all.
46
The problem of retroactivity involved in criminal cases is therefore inapplicable. There the question is whether the newly announced rule goes to the fairness of the trial that had been completed under the old rule. See Johnson v. New Jersey, 384 U.S. 719, 726—729, 86 S.Ct. 1772, 1777—1779, 16 L.Ed.2d 882. Here there is no new rule supplanting an old rule. The rule of no subsidy has been the dominant one since the days of Madison. We deal with the normal situation that governs judicial decisions. Normally they determine legal rights and obligations with respect to events that have already transpired. By definition, courts decide disputes that have already arisen. A losing litigant has no equity in the fact that he 'relied' on advice that turned out to be unreliable or wrong.2 A decision overruling a prior authority may at times deny a litigant due process if applied retroactively. See Brinkerhoff-Faris Turst & Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107. Only a compelling circumstance has been held to limit a judicial ruling to prospective applications. The disruptive effect in criminal law enforcement is one example. Stovall v. Denno, 388 U.S. 293, 300, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199. Likewise, a ruling on the legality of municipal bonds has been given only prospective application where many prior bonds had been issued in good faith on a contrary assumption. City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204, 213—215, 90 S.Ct. 1990, 1996—1997, 26 L.Ed.2d 523.
47
Retroactivity of the decision in Lemon I goes to the very core of the integrity of the judicial process. Constitutional principles do not ride on the effervescent arguments advanced by those seeking to obtain unconstitutional subsidies. The happenstance of litigation is no criterion for dispensing these unconstitutional subsidies. No matter the words used for the apologia, the subsidy today given to sectarian schools out of taxpayers' monies exceeds by far the 'three pence' which Madison condemned in his Remonstrance.
48
I would reverse the judgment below and adhere to the constitutional principle announced in Lemon I.
1
Nonpublic Elementary and Secondary Education Act, June 19, 1968, No. 109, Pa.Stat.Ann., Tit. 24, §§ 5601—5609 (Supp.1971).
2
In Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965), the Court recalled Mr. Justice Cardozo's statement that 'the Federal Constitution has no voice upon the subject,' citing Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). In Sunburst, the Court refused to accept the petitioner's contention that '(a)dherence to precedent as establishing a governing rule for the past in respect of the meaning of a statute is . . . a denial of due process when coupled with the declaration of an intention to refuse to adhere to it in adjudicating any controversies growing out of the transactions of the future.' Id., at 363—364, 53 S.Ct., at 148. Instead, the Court held that 'A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.' Id., at 364, 53 S.Ct., at 148.
Sunburst does not, of course, suggest that we may ignore constitutional interests in deciding whether to attach retrospective effect to a constitutional decision of this Court.
3
See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971):
'If the government closed its eyes to the manner in which these grants are actually used it would be allowing public funds to promote sectarian education. If it did not close its eyes but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension.' Id., at 640, 91 S.Ct., at 2124 (Douglas, J., concurring).
'The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught . . . and enforces it, it is then entangled in the 'no entanglement' aspect of the Court's Establishment Clause jurisprudence.' Id., at 668, 91 S.Ct., at 2138 (opinion of White, J.).
Here, the 'insoluble paradox' is avoided because the entangling supervision prerequisite to state aid has already been accomplished and need not enter into our present evaluation of the constitutional interests at stake in the proposed payment.
4
We agree with the District Court that whether the payments in question constitute payments under valid contracts or a subsidy 'makes no difference in our decision.' To characterize the payments as subsidies does not 'lessen the reliance of the nonpublic schools on the payments or the subsequent hardship upon them if the payments are not made.' 348 F.Supp. 300, 304 n. 6.
5
The District Court's comment, in turn, reflects the following colloquy between that court and counsel for appellants, at the December 15, 1971, hearing after remand from this Court:
'MR. SAWYER: I am perfectly willing to concede—and I think I must here; we have taken no evidence—that there was reliance. And I would like to state, so there is no question about that, that I am assuming there was reliance. I think as a practical matter, however, the schools continued to do what they were doing before.
'JUDGE HASTIE: Reliance in the sense, I assume, of determining activities and expenditures in anticipation that this amount would be reimbursed?
'MR. SAWYER: I know of a school that escrowed it, but I would think that would be rare. And I have to live with that, I think, unless I want to be prepared to go ahead and ask to take testimony and try to prove that wasn't so. . . .'
6
As to each school, the determination of actual reliance would be subtle, premised largely on credibility and not on facts of record. Nonreliance could not be assumed simply because expenditure levels remained constant before and after Act 109; any school might well assert that it would have reduced its educational expenditures in some particular but for the expectation of compensation for certain other expenditures incurred in connection with Act 109. Similarly, the inquiry could not be limited to expenditures for those items specified by the Act. Increased expenditures for any of the gamut of a school's activities might have been incurred in reliance on reimbursement for services covered by Act 109.
7
According to the dissent, appellees can 'tender no considerations of equity' because they had 'clear warning' that they were 'treading on unconstitutional ground.' The apparent premise for this assertion is the view that the Establishment Clause forbids any and all use of tax moneys to 'support' or to 'subsidize' sectarian schools. Yet the Court's decisions, prior to and at the time of Lemon I, shied away from this sweeping application of the Establishment Clause, favoring instead particularized analysis of state involvement in religious schools, with the analysis based upon the facts and circumstances before us. Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971); Walz v. Tax Comm'n, 397 U.S. 664, 669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970); Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 242—243, 88 S.Ct. 1923, 1925—1926, 20 L.Ed.2d 1060 (1968); Everson v. Board of Education, 330 U.S. 1, 14, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). There is, then, no basis for the dissent's suggestion that the Court has been 'unequivocal' in proscribing all state assistance to religious schools.
8
This is not to say, of course, that the flexible range of federal injunctive powers should be curtailed so as to permit state officers to proceed with their business regardless of serious constitutional questions concerning state legislation. Indeed, a significant purpose of these tools is to preserve rights of all parties and to minimize unnecessary harm during the often protracted pendency of constitutional litigation.
1
Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 186 (G. Hunt ed. 1901). The Remonstrance is reprinted in Everson v. Board of Education, 330 U.S. 1, 63, 67 S.Ct. 504, 534, 91 L.Ed. 711 (Rutledge, J., dissenting), and in Walz v. Tax Comm'n, 397 U.S. 664, 719, 90 S.Ct. 1409, 1437, 25 L.Ed.2d 697 (Douglas, J., dissenting).
2
The rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, which rejected Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, was given retrospective effect. We said, 'The element of reliance is not persuasive, for Delli Paoli has been under attack from its inception and many courts have in fact rejected it.' Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100.
| 23
|
411 U.S. 213
93 S.Ct. 1461
36 L.Ed.2d 169
David X. FONTAINE, Petitioner,v.UNITED STATES.
No. 71—6757.
Argued Feb. 28, 1973.
Decided April 2, 1973.
Steven M. Umin, Washington, D.C., for petitioner.
Samuel Huntington, Washington, D.C., for respondent.
PER CURIAM.
1
On November 13, 1969, the petitioner was arraigned in a federal district court upon a charge of robbery of a federally insured bank.1 He executed a written waiver of his right to counsel and to a grand jury indictment, and pleaded guilty. Before accepting the plea, the trial judge, proceeding under Fed.Rule Crim.Proc. 11, addressed the petitioner personally. The petitioner acknowledged in substance that his plea was given voluntarily and knowingly, that he understood the nature of the charge and the consequences of the plea, and that he was in fact guilty. See McCarthy v. United States, 394 U.S. 459, 464—467, 89 S.Ct. 1166, 1169, 22 L.Ed.2d 418; cf. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274. The judge then accepted the guilty plea and subsequently sentenced the petitioner to 20 years in prison.
2
On August 6, 1971, the petitioner filed a motion under 28 U.S.C. § 2255 to vacate his sentence on the ground that his plea of guilty had been induced by a combination of fear, coercive police tactics, and illness, including mental illness. The District Judge who had accepted the petitioner's plea and sentenced him to prison considered the motion but denied it without an evidentiary hearing; the District Judge reasoned that since the requirements of Rule 11 had been met, this collateral attack was per se unavailable, stating: 'When the trial court has so questioned the accused about pleading guilty, the petitioner cannot now be heard to collaterally attack the record and deny what was said in open court.' The Court of Appeals for the Sixth Circuit affirmed on the same grounds.
3
Petitioner seek certiorari to review that judgment; he urges that under the plain wording of § 2255 and our decision in Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, he was entitled to an evidentiary hearing on his claims. Petitioner's motion for relief under § 2255 sets out detailed factual allegations regarding alleged circumstances occurring after his arrest and before his appearance in court. Those allegations describe physical abuse and illness from a recent gunshot wound that required hospitalization which was documented by records tendered in support of his petition. The records also showed that a month following the plea he was again hospitalized for heroin addiction, for aggravation of the earlier gunshot would and for other severe illnesses. Petitioner further alleges that prolonged interrogation continued during the period preceding his plea. All of this, he claims, coerced his confession, his waiver of counsel, and the uncounseled plea of guilty. It is elementary that a coerced plea is open to collateral attack. Machibroda v. United States, supra, at 493, 82 S.Ct., at 513. See also Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Diamond v. United States, 9 Cir., 432 F.2d 35, 39; Crow v. United States, 10 Cir., 397 F.2d 284, 285—286. It is equally clear that § 2255 calls for a hearing on such allegations unless 'the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . ..'
4
We need not take issue with the Government's generalization that when a defendant expressly represents in open court, without counsel, that his plea is voluntary and that he waived counsel voluntarily, he 'may not ordinarily' repudiate his statements to the sentencing judge. The objective of Fed.Rule Crim.Proc. 11, of course, is to flush out and resolve all such issues, but like any procedural mechanism, its exercise is neither always perfect nor uniformly invulnerable to subsequent challenge calling for an opportunity to prove the allegations.2
5
On this record, we cannot conclude with the assurance required by the statutory standard 'conclusively show' that under no circumstances could the petitioner establish facts warranting relief under § 2255; accordingly, we vacate the judgment of the Court of Appeals and remand to that court to the end that the petitioner be afforded a hearing on his petition in the District Court.
6
It is so ordered.
7
Judgment vacated and case remanded.
8
Mr. Justice WHITE dissents.
1
He had been arrested by state officers and had been in the custody of state police and in state jurisdiction until the time of the federal charge.
2
The petitioner has also urged in this Court that his plea must be vacated because the transcript of his pleading fails to disclose an intelligent waiver of counsel. But this claim was not raised in the Court of Appeals or in the petition for certiorari, and we accordingly express no view upon the question.
| 01
|
36 L.Ed.2d 202
93 S.Ct. 1562
411 U.S. 216
UNITED STATESv.Aphonse T. INDRELUNAS.
No. 72—805.
Decided April 16, 1973.
PER CURIAM.
1
The Government, petitioner here, appealed to the Court of Appeals from a judgment in favor of respondent entered by the District Court on February 25, 1971. The Court of Appeals dismissed the appeal, holding that final judgment had been entered in the action prior to February 25, 1971, and that therefore the Government's appeal was untimely under the provisions of Fed.Rule App.Proc. 4. Foiles v. United States, 465 F.2d 163 (CA7 1972). Since both parties implicitly concede that the jurisdiction of the Court of Appeals was based on the provisions of 28 U.S.C. § 1291, making final decisions of the district courts appealable, the correctness of the Court of Appeals' decision depends on whether the District Court's judgment of February 25, 1971, was a final decision.1 That question, in turn, depends on whether actions taken in the District Court previous to the February date amounted to the 'entry of judgment' as that term is used in Fed.Rule Civ.Proc. 58.2
2
Rule 58 provides in pertinent part that '(e)very judgment shall be set forth on a separate document.' There was admittedly no such separate document filed in the District Court in this case prior to the February date, but the Court of Appeals held that the 'separate document' requirement of Rule 58 was applicable only to those judgments described in clause (2) of the first sentence of the Rule, and that since the relief granted by the District Court in this action was not within the description contained in that clause, a 'separate document' was not essential to the existence of a judgment. The Court of Appeals stated in its opinion that its holding was contrary to holdings of the Courts of Appeals for the Third. Fifth, and Tenth Circuits, respectively. 465 F.2d, at 167.3 A conflict on an issue such as this is of importance and concern to every litigant in a federal court, since, as this case makes clear, the timeliness of appeals, as well as the timeliness of post-trial motions, may turn on the question of when judgment is entered. Consideration of the petition for certiorari and the response has led us to conclude that further briefs and oral arguments would not materially assist in our disposition of the case and, for the reasons hereafter stated, we grant certiorari and reverse the judgment of the Court of Appeals.
3
The underlying dispute between the Government and respondent related to the latter's liability to pay withholding taxes due from a corporation in which he was an officer. Respondent and one Foiles, a fellow corporate officer, were assessed for the unpaid taxes, made partial payments on the assessments, and then unsuccessfully pursued administrative remedies seeking a refund. At the conclusion of these efforts Foiles sued in the District Court for a refund. The Government answered, counter claimed against Foiles for the balance due on the assessment, and filed a third-party complaint seeking like recovery against respondent. Issue was joined, trial had to a jury, and verdicts in the following form were returned in favor of both taxpayers:
4
'We, the jury, find for the plaintiff, Harry H. Foiles, and against the defendant, United States of America, in the amount claimed. . . .
5
'We, the jury, find against the defendant, United States of America, on the counterclaim, and in favor of the plaintiff, Harry H. Foiles. . . .
6
'We, the jury, find against the third-party plaintiff, United States of America, and in favor of the third-party defendant, Alphonse T. Indrelunas.' The District Court's civil docket entry following the recital of these forms of verdict contains the language 'Enter judgment on the verdicts. Jury discharged.'
7
There was apparently no agreement as to the exact amount respondent and Foiles were to receive pursuant to the jury's verdict at the time it was returned. On May 14, 1970, some 14 months later, a stipulation was filed in the District Court specifying the amount of refund to be paid to each of the prevailing parties. Within 60 days of this date, the Government filed a notice of appeal as to Foiles only, but this appeal was not pursued. Some eight months later, on motion by the Government, the District Court on February 25, 1971, entered formal judgments, the one in favor of respondent being in the amount of $3,621.32 against the Government. The Government's notice of appeal was from this judgment.
8
The Court of Appeals, in holding the Government's notice of appeal untimely, decided that judgment had been actually entered on March 21, 1969, when the District Court clerk entered in the civil docket the notations described above. It held that the 'separate document' requirement contained in Rule 58 applies only to the 'complex' judgments described in clause (2) of that Rule. The court said that:
9
'(W)hen the jury verdict is clear and unequivocal, setting forth a general verdict with reference to the sole question of liability and where nothing remains to be decided and when no opinion or memorandum is written, as is the situation described in clause (1) of Rule 58, there is no requirement for a separate document to start the time limits for appeal running.' 465 F.2d, at 167—168.
10
Rule 58 was substantially amended in 1963 to remove uncertainties as to when a judgment is entered and to expedite the entry of judgment by limiting the number of situations in which the court need rely on counsel for the prevailing party to prepare a form of judgment. The first sentence of the rule describes 'simple' judgments, providing for recovery of only a sum certain, of costs, or of nothing. These clause (1) judgments are to be prepared, signed, and entered by the clerk without direction by the court. Clause (2) of that sentence deals with the more 'complex' forms of judgment, which are to be entered by the clerk after the court approves the form of the judgment. The rule then continues that '(e)very judgment shall be set forth on a separate document,' and further states that '(a) judgment is effective only when so set forth and when entered as provided in Rule 79(a).'
11
The reason for the 'separate document' provision is clear from the notes of the advisory committee of the 1963 amendment. See Notes of Advisory Committee following Fed.Rule Civ.Proc. 58, reported in 28 U.S.C. Prior to 1963, there was considerable uncertainty over what actions of the District Court would constitute an entry of judgment, and occasional grief to litigants as a result of this uncertainty. See, e.g., United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). To eliminate these uncertainties, which spawned protracted litigation over a technical procedural matter, Rule 58 was amended to require that a judgment was to be effective only when set forth on a separate document.
12
Professor Moore makes the following cogent observation with respect to the purpose of the separate-document provision of the rule:
13
'This represents a mechanical change that would be subject to criticism for its formalism were it not for the fact that something like this was needed to make certain when a judgment becomes effective, which has a most important bearing, inter alia, on the time for appeal and the making of post-judgment motions that go to the finality of the judgment for purposes of appeal.' 6A J. Moore, Federal Practice 58.04 (4.—2), at 58—161 (1972).
Again in the same work, the author notes:
14
'Although confusion may still arise at times, the current version of Rule 58 provides a greater degree of certainty as to when a judgment has been rendered and becomes effective. Thus, as previously pointed out, when the court's decision, whether written or oral, is a simple grant of a sum certain or costs or that all relief be denied, the clerk is to prepare forthwith and sign a judgment which must be set forth on a separate document. Thereafter, the clerk is immediately to enter the judgment in the civil docket.' Id., at 58—180.
15
Here there was nothing meeting the requirement of the 'separate document' provision of Rule 58 until February 25, 1971. The docket entry following the jury's verdict simply reflected the jury's determination as to the liability of the parties, without specifying an amount due; more importantly, notwithstanding the instructions of the court, it was not recorded on a separate document.
16
The Court of Appeals appears to have been motivated in its conclusion, at least in part, by what it felt to have been the capricious conduct of the Government in first seeking to appeal following the filing of the stipulation for damages, and then later insisting that at that time there had been no judgment which it could have appealed from. But whatever may be the appropriate sanctions available in a particular case for capricious conduct on the part of a litigant, we do not believe that a case-by-case tailoring of the 'separate document' provision of Rule 58 is one of them. That provision is, as Professor Moore states, a 'mechanical change' that must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered.
17
We grant the petition for certiorari, reverse the judgment of the Court of Appeals, and remand for further proceedings consistent with this opinion.
18
It is so ordered.
19
Reversed and remanded.
1
Fed.Rule Civ.Proc. 54(a) provides in part that "(j)udgment' as used in these rules includes a decree and any order from which an appeal lies.'
2
Rule 58 provides:
'Subject to the provisions of Rule 54(b):
(1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.'
3
See Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (CA3 1970); Pure Oil Co. v. Boyne, 370 F.2d 121 (CA5 1966); United States v. Evans, 365 F.2d 95 (CA10 1966). The decision may also conflict with a recent Fourth Circuit case. Superior Life Insurance Co. v. United States, 462 F.2d 945 (CA4 1972).
| 89
|
411 U.S. 233
93 S.Ct. 1577
36 L.Ed.2d 216
Clifford H. DAVIS, Petitioner,v.UNITED STATES.
No. 71—6481.
Argued February 20, 1973.
Decided April 17, 1973.
Syllabus
Three years after his conviction for a federal crime, petitioner brought this collateral attack on the ground of unconstitutional discrimination in the composition of the grand jury that indicted him. The District Court found that, though petitioner could have done so, he at no stage of the proceedings attacked the grand jury's composition, and it concluded that under Fed.Rule Crim.Proc. 12(b)(2) he had waived his right to do so. The court also determined that since the challenged jury-selection method had long obtained, the grand jury that indicted petitioner indicted his two white accomplices, and the case against petitioner was 'a strong one,' there was no 'cause shown' under the rule to grant relief from the waiver. The Court of Appeals affirmed. Held:
1. The waiver standard set forth in Fed.Rule Crim.Proc. 12(b)(2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding but also later on collateral review. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357, followed; Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed. 227, distinguished. Pp. 236—243.
2. The District Court, in the light of the record in this case, did not abuse its discretion in denying petitioner relief from the application of the waiver provision. Pp. 243—245, 455 F.2d 919, 5 Cir., affirmed.
Melvin L. Wulf, New York City, for petitioner.
Edward R. Korman, New York City, for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
We are called upon to determine the effect of Rule 12(b)(2) of the Federal Rules of Criminal Procedure on a postconviction motion for relief which raises for the first time a claim of unconstitutional discrimination in the composition of a grand jury. An indictment was returned in the District Court charging petitioner Davis, a Negro, and two white men with entry into a federally insured bank with intent to commit larceny in violation of 18 U.S.C. §§ 2 and 2113(a). Represented by appointed counsel,1 petitioner entered a not-guilty plea at his arraignment and was given 30 days within which to file pretrial motions. He timely moved to quash his indictment on the ground that it was the result of an illegal arrest, but made no other pretrial motions relating to the indictment.
2
On the opening day of the trial, following voir dire of the jury, the District Judge ruled on petitioner's pretrial motions in chambers and ordered that the motion to quash on the illegal arrest ground be carried with the case. He then asked twice if there were anything else before commencing trial. Petitioner was convicted and sentenced to 14 years' imprisonment. His conviction was affirmed on appeal. 409 F.2d 1095 (CA5 1969).
3
Post-conviction motions were thereafter filed and denied, but none dealt with the issue presented in this case. Almost three years after his conviction, petitioner filed the instant motion to dismiss the indictment, pursuant to 28 U.S.C. § 2255, alleging that the District Court had acquiesced in the systematic exclusion of qualified Negro jurymen by reason of the use of a 'key man' system of selection,2 and asserted violation of the 'mandatory requirement of the statute laws set forth . . . in title 28, U.S.C.A. Section 1861, 1863, 1864, and the 5th amendment of the United States Constitution.'3 His challenge only when to the composition of the grant jury and did not include the petit jury which found him guilty. The District Court, though it took no evidence on the motion, invited additional briefs on the issue of waiver. It then denied the motion. In its memorandum opinion it relied on Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), and concluded that petitioner had waived his right to object to the composition of the grand jury because such a contention is waived under Rule 12(b)(2) unless raised by motion prior to trial. Also, since the 'key man' method of selecting grand jurors had been openly followed for many years prior to petitioner's indictment; since the same grand jury that indicted petitioner indicted his two white accomplices; and since the case against petitioner was 'a strong one,' the court determined that there was nothing in the facts of the case or in the nature of the claim justifying the exercise of the power to grant relief under Rule 12(b)(2) for 'cause shown.'
4
The Court of Appeals affirmed on the basis of Shotwell, supra, and Rule 12(b) (2). Because its decision is contrary to decisions of the Ninth Circuit in Fernandez v. Meier, 408 F.2d 974 (1969), and Chee v. United States, 449 F.2d 747 (1971), we granted certiorari to resolve the conflict.
5
Petitioner contends that because his § 2255 motion alleged deprivation of a fundamental constitutional right, one which has been recognized since Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), his case is controlled by this Court's dispositions of Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), rather than Shotwell Mfg. Co. v. United States, supra, and Rule 12(b)(2). Accordingly, he urges that his collateral attack on his conviction may be precluded only after a hearing in which it is established that he 'deliberately bypassed' or 'understandingly and knowingly' waived his claim of unconstitutional grand jury composition. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
6
* Rule 12(b)(2) provides in pertinent part that '(d)efenses and objections based on defects in the institution of the prosecution or in the indictment . . . may be raised only by motion before trial,' and that failure to present such defenses or objections 'constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.' By its terms, it applies to both procedural and constitutional defects in the insitution of prosecutions which do not affect the jurisdiction of the trial court. According to the Notes of the Advisory Committee on Rules, the waiver provision was designed to continue existing law, which as exemplified by this Court's decision in United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857 (1883), was inter alia, that defendants who pleaded to an indictment and went to trial without making any nonjurisdictional objection to the grand jury, even one unconstitutionally composed, waived any right of subsequent complaint on account thereof. Not surprisingly, therefore, the Advisory Committee's Notes expressly indicate that claims such as petitioner's are meant to be within the Rule's purview:
7
'These two paragraphs (12(b)(1) and (2)) classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12(a). In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. . . .
8
'. . . Among the defenses and objections in this group are the following: Illegal selection or organization of the grand jury . . ..' Notes of Advisory Committee following Fed.Rule Crim.Proc. 12, 18 U.S.C.App.
9
This Court had occasion to consider the Rule's application in Shotwell Mfg. Co. v. United States, supra, a case involving tax-evasion convictions. In a motion filed more than four years after their trial, but before the conclusion of direct review, petitioners alleged that both the grand and petit jury arrays were illegally constituted because, inter alia, 'the Clerk of the District Court failed to employ a selection method designed to secure a cross-section of the population.'4 371 U.S., at 361—362, 83 S.Ct., at 460—461. Deeming the case controlled by Rule 12(b)(2), the District Court held a hearing to determine whether there was 'cause' warranting relief from the waiver provision and it found that 'the facts concerning the selection of the grand and petit juries were notorious and available to petitioners in the exercise of due diligence before the trial.' Id., at 363, 83 S.Ct., at 461. It concluded that their failure to exercise due diligence combined with the absence of prejudice from the alleged illegalities precluded the raising of the issue, and the Court of Appeals affirmed. In this Court, petitioners conceded that Rule 12(b)(2) applied to their objection to the grand jury array, but they denied that it applied to the petit jury. Both objections were held foreclosed by the petitioners' years of inaction, and the lower courts' application of the Rule was affirmed.
10
Shotwell thus confirms that Rule 12(b)(2) precludes untimely challenges to grand jury arrays, even when such challenges are on constitutional grounds.5 Despite the strong analogy between the effect of the Rule as construed in Shotwell and petitioner's § 2255 allegations, he nonetheless contends that Kaufman v. United States, supra, establishes that he is not precluded from raising his constitutional challenge in a § 2255 proceeding.6 See Fay v. Noia, supra. We disagree.
11
In Kaufman, the defendant in a bank robbery conviction sought collateral relief under § 2255 alleging that illegally seized evidence had been admitted against him at trial, over a timely objection, and that this evidence resulted in the rejection of his only defense to the charge. The application was denied in both the District Court and the Court of Appeals on the ground that it had not been raised on appeal from the judgment of conviction and 'that a motion under § 2255 cannot be used in lieu of an appeal.' 394 U.S., at 223, 89 S.Ct., at 1072. This Court reversed, however, holding that when constitutional claims are asserted, post-conviction relief cannot be denied solely on the ground that relief should have been sought by appeal. Ibid.
12
But the Court in Kaufman was not dealing with the sort of express waiver provision contained in Rule 12(b)(2) which specifically provides for the waiver of a particular kind of constitutional claim if it be not timely asserted. The claim in Kaufman was that the applicable provisions of § 2255 by implication forbade the assertion of a constitutional claim of unlawful search and seizure where the defendant failed to assert the claim on appeal from the judgment of conviction.7 See, e.g., Sunal v. Large, 332 U.S. 174, 179, 67 S.Ct. 1588, 1591, 91 L.Ed. 1982 (1947). The Court held that the statute did not preclude the granting of relief on such a claim simply because it had not been asserted on appeal, where there was no indication of a knowing and deliverate bypass of the appeal procedure. But here the Government's claim is not that § 2255 itself limits or precludes the assertion of petitioner's claim, but that the separate provisions of Rule 12(b)(2) do so. Kaufman, therefore, is dispositive only if the absence of a statutory provision for waiver in § 2255 and the federal habeas statute by implication precludes the application to post-conviction proceedings of the express waiver provision found in the Federal Rules of Criminal Procedure.
13
Shotwell held that a claim of unconstitutional grand jury composition raised four years after conviction, but while the appeal proceedings were still alive, was governed by Rule 12(b)(2). Both the reasons for the Rule and the normal rules of statutory construction clearly indicate that no more lenient standard of waiver should apply to a claim raised three years after conviction simply because the claim is asserted by way of collateral attack rather than in the criminal proceeding itself.
14
The waiver provisions of Rule 12(b)(2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.
15
Rule 12(b)(2) promulgated by this Court and, pursuant to 18 U.S.C. § 3771, 'adopted' by Congress, governs by its terms the manner in which the claims of defects in the institution of criminal proceedings may be waived. See Singer v. United States, 380 U.S. 24, 37, 85 S.Ct. 783, 791, 13 L.Ed.2d 630 (1965). Were we confronted with an express conflict between the Rule and a prior statute, the force of § 3771, providing that '(a)ll laws in conflict with such rules shall be of no further force or effect,' is such that the prior inconsistent statute would be deemed to have been repealed. Cf. Sibbach v. Wilson & Co., 312 U.S. 1, 10, 61 S.Ct. 422, 424, 85 L.Ed. 479 (1941). The Federal Rules of Criminal Procedure do not ex proprio vigore govern post-conviction proceedings, and had Congress in enacting the statutes governing federal collateral relief specifically there dealt with the issue of waiver, we would be faced with a difficult question of repeal by implication of such a provison by the later enacted rules of criminal procedure. But Congress did not deal with the question of waiver in the federal collateral relief statutes, and in Kaufman this Court held that, since § 2255 had not spoken on the subject or waiver with respect to claims of unlawful search and seizure, a particular doctrine of waiver would be applied by this Court in interpreting the statute.
16
We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of 'cause' for relief from waiver, nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12(b)(2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of 'cause' which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12(b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review.
17
Our conclusion in this regard is further buttressed by the Court's observation in Parker v. North Carolina, 397 U.S. 790, 798, 90 S.Ct. 1458, 1463, 25 L.Ed.2d 785 (1970), decided the year after Kaufman, that '(w)hether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide.' The context of the Court's language makes it apparent that the question was framed in terms of waiver and timely assertion of such a claim in state criminal proceedings. But if the question were left open with respect to state proceedings, it must have been at least patently open with respect to federal habeas review of federal convictions, where Congress is the lawgiver both as to the procedural rules governing the criminal trial and the principles governing collateral review.
II
18
The principles of Rule 12(b)(2), as construed in Shotwell, are not difficult to apply to the facts of this case. Petitioner alleged the deprivation of a substantial constitutional right, recognized by this Court as applicable to state criminal proceedings from Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883), through Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). But he failed to assert the claim until long after his trial, verdict, sentence, and appeal had run their course. In findings challenged only half-heartedly here, the District Court determined that no motion, oral or otherwise, raised the issue of discrimination in the selection of the grand jurors prior to trial. The Court of Appeals affirmed, and no petition for rehearing conducted its own search of the record in a vain effort to see whether the files or docket entries in the case supported petitioner's contention that he had made such a motion. We will not disturb the coordinate findings of these two courts on a question such as this.
19
The waiver provision of the Rule therefore coming into play, the District Court held that there had been no 'cause shown' which would justify relief. It said:
20
'Petitioner offers no plausible explanation of his failure to timely make his objection to the composition of the grand jury. The method of selecting grand jurors then in use was the same system employed by this court for years. No reason has been suggested why petitioner or his attorney could not have ascertained all of the facts necessary to present the objection to the court prior to trial. The same grand jury that indicted petitioner also indicted his two white accomplices. The case had no racial overtones. The government's case against petitioner was, although largely circumstantial, a strong one. There was certainly sufficient evidence against petitioner to justify a grand jury in determining that he should stand trial for the offense with which he was charged. . . . Petitioner has shown no cause why the court should grant him relief from his waiver of the objection to the composition of the grand jury . . ..'
21
In denying the relief, the court took into consideration the question of prejudice to petitioner. This approach was approved in Shotwell where the Court stated:
22
'(W)here, as here, objection to the jury selection has not been timely raised under Rule 12(b)(2), it is entirely proper to take absence of prejudice into account in determining whether a sufficient showing has been made to warrant relief from the effect of that Rule.' 371 U.S., at 363, 83 S.Ct., at 461.
23
Petitioner seeks to avoid this aspect of Shotwell by asserting that there both lower courts had found that petitioners were not prejudiced in any way by the alleged illegalities whereas under Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), prejudice is presumed in cases where there is an allegation of racial discrimination in grand jury composition. But Peters dealt with whether or not a white man had a substantive constitutional right to set aside his conviction upon proof that Negroes had been systematically excluded from the state grand and petit juries which indicted and tried him. Three Justices dissented from the Court's upholding of such a substantive right on the ground that no prejudice had been shown, and three concurred separately in the judgment. But the three opinions delivered in Peters, supra, all indicate a focus on the existence of the constitutional right, rather than its possible loss through delay in asserting it. The presumption of prejudice which supports the existence of the right is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner.
24
We hold that the District Court did not abuse its discretion in denying petitioner relief from the application of the waiver provision of Rule 12(b) (2), and that having concluded he was not entitled to such relief, it properly dismissed his motion under § 2255. Accordingly, the judgment of the Court of Appeals is affirmed.
25
Affirmed.
26
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
27
The opinion of the Court obscures the only sensible argument for the result the majority reaches. I am not persuaded by that argument, and find the majority opinion clearly defective. I believe that Rule 12(b)(2), properly interpreted in the light of the purposes it serves and the purposes served by making available collateral relief from criminal convictions, does not bar a prisoner from claiming that the grand jury that indicted him was unconstitutionally composed, if he shows that his failure to make that claim before trial was not '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). But first there is some underbrush to be cleared away.
28
Davis challenged the 'key man' system of selection of grand jurors used in the Northern District of Mississippi in 1968, when he was indicted, because it was implemented to exclude qualified Negroes from the grand jury.1 Cf. Glasser v. United States, 315 U.S. 60, 85—87, 62 S.Ct. 457, 471 473, 86 L.Ed. 680 (1942); Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414 (CA3 1955). The Court notes that the use of the 'key man' system was approved by this Court in Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961).2 This observation is both irrelevant and misleading. It is irrelevant because the Court's holding today bars prisoners from raising meritorious claims not raised before trial.3 A prisoner like Davis could not contend after today's decision, for example, that federal jury commissioners had simply refused to place the names of Negroes in the jury box used in 1968. That, of course, would have been unconstitutional. See Alexander v. Louisiana, 405 U.S. 625, 628—629, 92 S.Ct. 1221, 1224—1225, 31 L.Ed.2d 536 (1972); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942).4 The Court's observation is misleading because in Scales the Court said only that 'no impropriety in the method of choosing grand jurors has been shown,' as to a grand jury convened in the Middle District of North Carolina in 1955, 367 U.S., at 206 n. 2, 259, 81 S.Ct., at 1501. I doubt that the Court meant to suggest that the use of a 'key man' system was immune from constitutional attack. Indeed, Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), and the cases there cited, show that systems essentially the same as a 'key man' system may be administered in an unconstitutional manner.5
29
To the extent that our prior decisions speak to the issue in this case, the Court's decision today seems inconsistent with them. The Court purports to distinguish Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), for example, on the ground that we were there 'not dealing with the sort of express waiver provision contained in Rule 12(b)(2).' I had not thought that words were quite so magical as that distinction makes them. It is true, of course, that Rule 12(b)(2) provides that '(d)efenses and objections based on defects in the institution of the prosecution . . . may be raised only by motion before trial. . . . Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.' Kaufman involved a claim that the prisoner was convicted on the basis of evidence obtained in an unconstitutional search. And Rule 14(e) of the Federal Rules of Criminal Procedure provides that a motion to suppress the use of the evidence obtained in an unlawful search 'shall be made before trial or hearing unless opportunity therefore did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.'
30
In Kaufman, we indicated that the failure to make a timely motion to suppress would permit the § 2255 court to deny relief where that failure was a deliberate bypass of the orderly procedures set out in the Rules of Criminal Procedure. 394 U.S., at 227 n. 8, 89 S.Ct., at 1074. Relief under § 2255 would be barred only if there had been an intentional relinquishment of a known right.6 Rule 41(e) does not use the apparently crucial word 'waiver.' But its structure is basically the same as that of Rule 12(b)(2): the motions shall be made at a certain time, and failure to make them may be excused for cause. Nothing in the opinion of the Court suggests why the use of the word 'waiver' makes such a difference, so that Kaufman permits consideration of claims not made in the time set by Rule 41(e) in a § 2255 proceeding, while claims not made in the time set by Rule 12(b)(2) may not be considered. There is a clear line of cases in the courts of appeals holding that failure to make a timely motion to suppress evidence bars an attempt to raise the Fourth Amendment issue on appeal. See, e.g., United States v. Ellis, 461 F.2d 962 (CA2 1972); United States v. Volkell, 251 F.2d 333 (CA2 1958), and cases cited therein. Certainly the use of the word 'waiver' in Rule 12(b)(2) does not make any clearer the notice to attorneys that the failure to make a timely claim about the composition of the grand jury will bar later attempts to raise that claim.
31
In light of the similarity between Kaufman and this case, the only way that I can understand the Court's action is to assume that the Court believes there are strong reasons of policy justifying 'an airtight system of forfeitures,' Fay v. Noia, 372 U.S. 391, 432, 83 S.Ct. 822, 845, 9 L.Ed.2d 837 (1963), with respect to a claim that the grand jury was unconstitutionally composed, reasons that are not applicable to a claim that evidence unconstitutionally seized was used at trial. All that I can find in the opinion of the Court, however, is one sentence referring to such policy considerations: 'Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.'7
32
That, I submit, is once again both irrelevant and misleading. It is misleading because it relies on a mechanical invocation of the difficulties of reprosecution in a setting where those difficulties are patently quite small. When evidence used at trial is ordered suppressed and a retrial required, the prosecution must reconstruct its case with a new focus; it may have to gather new evidence, or find new witnesses, or it may have to elicit new testimony from witnesses who testified before. In such a setting, there may well be difficulties in reprosecution. But when a new trial is required so that an indictment may be returned by a properly constituted grand jury, those difficulties simply do not arise. Nothing in the previous trial must be redone; indeed, the prosecution could present its entire case through the testimony given at the previous trial, if it showed that its witnesses were now unavailable and thus that the alleged difficulties in reprosecution were real. Cf. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). All that the prosecution might lose is the enhancement of credibility, if any, that the actual presence of the witnesses could lend their testimony.
33
The Court's reference to '(s)trong tactical considerations' is irrelevant because a prisoner would properly be held to have intentionally relinquished his right to raise the constitutional claim if he failed to raise it for tactical reasons. The only issue in this case is whether one who claims that he did not intentionally relinquish a known right is to be afforded the opportunity to prove that claim, as a step toward establishing that his rights were in fact infringed. Saying that Davis, who makes just such a claim, cannot be allowed to prove it because some other prisoners might have made a tactical choice not to raise the underlying issue, is just not responsive to his argument.8
34
The Solicitor General has urged on us policy considerations that at least bear on the decision whether the Government's interest in enforcing an airtight system of forfeitures with respect to claims going to the composition of the grand jury is greater than its interest in enforcing a similar system with respect to claims going to the admission of illegally seized evidence. He argues that the crucial difference lies in the ease with which the prosecution can reconstruct its case on a proper basis. It is relatively easy, he says, to remedy the return of an indictment by an unconstitutionally composed grand jury. All that must be done is to convene a properly composed grand jury. But if the result of a finding of error is to wash out not just the indictment but also an entire trial, that error is very costly to legitimate interests in economy. Thus, failure to raise a claim relating to the composition of the grand jury prior to trial may entail large costs. In contrast, the Solicitor General suggests, failure to raise a claim before trial relating to the use of the fruits of an unconstitutional search is not quite so costly. Whenever the finding that the search was unlawful is made, the prosecution will have to reconstruct its case rather substantially. New witnesses may have to be found, and more emphasis must be placed upon the testimony of witnesses that is not tainted by the search. There is, on this view, a very important reason for enforcing an airtight system of foreclosures where the claim is that an easily remedied error has been made—it is simply much more costly to require retrials in those cases.
35
That argument undoubtedly has some force. But it also goes too far, for it is inconsistent with the power given to reverse a conviction on the basis of plain error to which no objection had been made. Fed.Rule Crim.Proc. 52(b). An improper argument by a prosecutor in his closing argument may be plain error, for example. Doty v. United States, 416 F.2d 887, 890—891 (CA10 1968), and cases cited. Yet timely objection might have cut off the improper argument at a when an admonition to the jury to disregard it would adequately protect the defendant's rights. A system that permits reversal on the ground of plain error to which no objection had been made but prohibits reversal on the ground that timely objection to the composition of the grand jury had not been made by a defendant who did not intentionally relinquish his right to object, and that justifies the latter rule in terms of governmental interests in economy, seems to me perverse.
36
The Solicitor General's argument is unpersuasive, ultimately, not alone for the reasons just given, but also because the legitimate governmental interests that support a strict system of forfeitures with respect to claims about the composition of the grand jury are, in my view, outweighed by other important public interests.9 First, and most important in this case, we must assure that no one is excluded from participation in important democratic institutions like the grand jury because of race. Second, convicted offenders will be more amenable to rehabilitation when they know that all their claims of unfairness have been considered, unless they deliberately refrained from raising them at an earlier point. Finally, providing the opportunity to raise such claims at any point in the process, so long as the offender did not willingly conceal them for strategic reasons, helps guarantee that the process of criminal justice is fair, and does so without benefiting someone who was delinquent in his attempts to preserve the fairness of the process.
37
'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)).' Alexander v. Louisiana, 405 U.S. 625, 628, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972). 'People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion.' Carter v. Jury Comm'n, 396 U.S., at 329, 90 S.Ct., at 523. When it fulfills its proper function, the grand jury is a central institution of our democracy, restraining the discretion of prosecutors to institute criminal proceedings. Cf. United States v. Dionisio, 410 U.S. 1, at 17, 93 S.Ct. 764, at 773, 35 L.Ed.2d 67 (1973); Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962). Although there may be other ways to vindicate the right of every qualified citizen to participate in the grand jury without discrimination based on race, Carter v. Jury Comm'n, supra, this Court has consistently allowed criminal defendants to assert the rights of excluded groups without requiring that they show prejudice in the particular case. Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946). This is contrary to the general rule that no one has standing to assert the rights of others, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166—167, 92 S.Ct. 1965, 1968—1969, 32 L.Ed.2d 627 (1972). It is justified by the importance of assuring every opportunity to raise claims of unconstitutional discrimination in the selection of grand juries. That principle alone, in my view, would warrant a very restrictive view of attempts to foreclose the opportunity to raise such claims.
38
But there is more. Offenders who have been indicted by unconstitutionally composed grand juries undeniably are aggrieved. There is a paramount public interest that the process of criminal justice be fair. As we said in Kaufman v. United States, 394 U.S., at 226, 89 S.Ct., at 1074, 'The provision of federal collateral remedies rests . . . upon a recognition that adequate protection of constitutional rights relating to the criminal trial process requires the continuing availability of a mechanism for relief.' The function of collateral relief 'has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release.' Fay v. Noia, 372 U.S., at 401—402, 83 S.Ct., at 829. (emphasis added). The traditional scope of collateral relief requires, again, that prisoners be afforded the broadest possible opportunity to present claims that their detention is the result of an unconstitutional procedure.10
39
I do not deny that there is an interest in enforcing compliance with reasonable procedural requirements by a system of forfeitures, so that claims will be raised at a time when they may easily be determined and necessary corrective action taken. But I do not believe that the system of forfeitures must be so comprehensive and rigid that a person may not raise a claim of discrimination in the selection of the grand jury even though he made no deliberate, informed choice to forgo the claim. Such a system too grievously affects other important interests.
40
With these principles in mind, the resolution of this case is not difficult. Rule 12(b)(2) provides that 'the court for cause shown may grant relief from the waiver.' I would hold that, when a prisoner shows that his failure to raise a claim of discrimination in the selection of the grand jury was not an intentional relinquishment of a known right, he has shown cause for relief from the waiver.11 The prior cases, which Rule 12(b)(2) is said to have continued, did not examine in any detail the circumstances in which failure to object was held to constitute a waiver. See, e.g., United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857 (1883); In re Wilson, 140 U.S. 575, 11 S.Ct. 870, 35 L.Ed. 513 (1891). Cf. Kohl v. Lehlback, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432 (1895). It is clear that in none of those cases did the prisoner show that his failure to object was not an intentional relinquishment of a known right.12
41
Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), does not reflect a contrary interpretation of Rule 12(b)(2). There a corporation and two of its officers were indicted for attempted income tax evasion. Four years after trial, they attacked the composition of the grand and petit juries. They contended that there was newly discovered evidence that the Clerk of the District Court had failed to use a method of selecting grand jurors designed to secure a cross section of the community. Thus, they did not contend that they had not known of their right to be indicted by a representative grand jury. Clearly, to establish that that right had been infringed, they had to find evidence relating to the method of selection. The District Court found that such evidence was 'notorious and available to petitioners in the exercise of due diligence before the trial.' Id., at 363, 83 S.Ct., at 461. I have little difficulty in saying that, where one must present evidence in order to support a constitutional claim, the failure to exercise due diligence in searching for that evidence is a deliberate relinquishment of that claim.
42
The interpretation I would give to 'good cause' is supported, finally, by this Court's insistence that acquiescence in the loss of constitutional rights is not lightly to be assumed. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937), and cases cited therein at n. 2. It is well established that a procedural rule that unreasonably precludes the vindication of constitutional rights itself raises serious constitutional questions. See e.g., Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143 (1923); Williams v. Georgia, 349 U.S. 375, 399, 75 S.Ct. 814, 827, 99 L.Ed. 1161 (1955) (Clerk, J., dissenting). In Johnson v. Zerbst, supra, this Court adopted a definition of waiver that can be applied to serve all valid interests in barring untimely assertions of constitutional rights while not precluding claims by defendants who have not abused the procedural system. No convincing reasons have been advanced to adopt a more restrictive definition of waiver in this case. If Davis did not intentionally relinquish a known right, I do not see any valid interest in keeping him from asserting that right in this § 2255 action.
43
Davis alleged in his motion for collateral relief that 'he had not waived nor abandoned this right to contest the Grand Jury array.' App. 8. This is enough, in a motion submitted by a prisoner unaided by counsel, to constitute an allegation that he had not intentionally relinquished a known right. Cf. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). It is a factual allegation not refuted by the record in the case, 28 U.S.C. § 2255, and Davis should have an opportunity to prove this allegation. I would therefore reverse the judgment below.
1
Petitioner was represented throughout the trial by competent, court-appointed counsel, whose advocacy prompted the Court of Appeals to compliment him saying:
'We have rarely witnessed a more thorough or more unstinted expenditure of effort by able counsel no behalf of a client.' 409 F.2d 1095, 1101 (CA5 1969).
2
The use of the 'key man' system was approved in Scales v. United States, 367 U.S. 203, 259, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), affirming 260 F.2d 21, 44—46 (CA4 1958). The adoption of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 1869, has precluded its further use.
3
Petitioner also alleged that a timely oral motion in open court prior to trial was made preserving for him the right to contest the grand jury array, and that a law student who was researching the grand jury array was stopped from seeing him.
4
Petitioner attempts to distinguish shotwell on the ground that the case 'involved legal irregularities which did not rise to the dimension of the fundamental constitution right asserted' herein. (Brief for Petitioner 18.) At 362—363 of the Court's opinion in Shotwell, 83 S.Ct. at p. 461, however, the majority accepted petitioners' assertion of constitutional deprivation at face value before rejecting on the basis face value before rejecting their claims on the basis of Rule 12(b)(2).
5
We are comforted in this conclusion by the concurrence of all but one of the courts of appeals that have considered the issue. See Moore v. United States, 432 F.2d 730, 740 (CA3 1970) (en banc); Juelich v. Harris, 425 F.2d 814 (CA7 1970); United States v. Williams, 421 F.2d 529, 532 (CA8 1970); Bustillo v. United States, 421 F.2d 131 (CA5 1970); and Poliafico v. United States, 237 F.2d 97 (CA,6 1956). Contra, Fermandez v. Meier, 408 F.2d 974 (CA9 1969).
6
Petitioner relies on the reasoning of fernandez, supra, in arguing that a different waiver rule should apply in § 2255 proceedings. In that case, the defendant argued that the exclusion of Spanish Americans from his grand and petit juries constituted a deprivation of constitutional right. The claim was untimely raised and the Court of Appeals conceded that failure to present it as provided in Rule 12(b)(2) resulted in a waiver. Relying, however, on this Court's decisions in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), that court held that collateral relief could be denied under § 2255 only upon a showing of a 'knowing and deliberate by-pass' of a timely objection. Petitioner concedes that the court misread Sanders, supra, but he argues that it applied the correct waiver rule. Although we find it difficult to conceptualize the application of one waiver rule for purposes of federal appeal and another for purposes of federal habeas corpus, we will nonetheless give consideration to petitioner's claim that the cases interpreting the federal habeas corpus statute set the applicable standard.
7
The Court in Kaufman made reference to the possibility of the denial of § 2255 relief as a result of a deliberate bypass of the suppression procedures established in Fed.Rule Crim.Proc. 41(e). Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1070, 22 L.Ed.2d 227 (1969). But it had no occasion to consider that Rule's effects on § 2255 motions since there '(a) ppointed counsel had objected at trial to the admission of certain evidence on grounds of unlawful search and seizure,' id., at 220 n. 3, 89 S.Ct., at 1071, and the District Court's rationale for denying relief was that 'this matter was not assigned as error on Kaufman's appeal from conviction and is not available as a ground for collateral attack . . ..' See Id., at 219, 89 S.Ct., at 1070.
1
Davis alleged, in part:
'(b) that the jury commissioner and Clerk of Court for the Northern Distrit of Mississippi for the past 20 years implementing the 'Keyman' and 'Selectors,' system cause nought to token in their selection of prospective qualifying negro jurymen because of their race and color in violation of Section 1863.
'(c) that the Northern District Court has by its affirmative action taken for the past 20 years has acquiesced to systematically, purposefully, unlawfully and unconstitutionally excluded the prospective qualified resident negroes from the Grand Jury box in violation of Section 1864.
'(d) that the petitioner being a member of the negro race has been prejudiced by the aforesaid violation caused by the violators in carrying out their duties, and has denied petitioner his constitutional right, guaranteed to him by the Sixth Amendment, the right to a fair cross-section of the community.' App. 7.
2
Under a 'key man' system, jury commissioners ask persons who are thought to have wide contacts in the community to supply the names of prospective jurors.
3
Similarly, the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861—1869, can be administered in an unconstitutional manner. Its adoption might have some bearing on our decision to review a holding that the 'key man' system used in Mississippi in 1968 was constitutional, but the new Act is plainly irrelevant to the question presented by this case.
4
Those cases involved discrimination unconstitutional because of the Equal Protection Clause of the Fourteenth Amendment. But the Due Process and Grand Jury Clauses of the Fifth Amendment make unconstitutional the same discrimination in the federal system. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
5
The Court also notes that its conclusion is 'buttressed by the Court's observation in Parker v. North Carolina, 397 U.S. 790, 798, 90 S.Ct. 1458, 1463, 25 L.Ed.2d 785 (1970) . . . that '(w)hether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide." I am at a loss to understand how that observation buttresses the Court's holding today. In Parker we were reviewing a state court's decision to deny collateral relief under state law. The state court had refused to consider Parker's claim that the grand jury was unconstitutionally composed because he had failed to raise the claim before trial. That was either an adequate state ground, in a procedural sense, or a construction of the state collateral-relief statute. No matter how considered, though, the Court clearly had no jurisdiction to consider the constitutional claim. It would have been odd indeed had we decided that Parker's claim could or could not be raised in a federal habeas corpus action. The observation on which the majority relies can only mean that the question had not then been decided by this Court. I fail to understand how the fact that a question had not been resolved supports any particular resolution of a similar question. In the sense of 'buttressed' used by the majority, Parker also buttresses my position.
6
Kaufman had raised the search issue at trial, but his counsel on appeal did not pursue it. 394 U.S., at 220 n. 3, 89 S.Ct., at 1070. Ordinarily, the failure to pursue a claim in the Court of Appeals bars further review. It does so in the nature of things with respect to consideration by the Court of Appeals. And as to review in this Court, see Lawn v. United States, 355 U.S. 339, 362 n. 16, 78 S.Ct. 311, 324, 2 L.Ed.2d 321 (1958).
That a rule makes a waiver 'express,' rather than a series of holdings doing the same, should affect analysis only if the fact that the waiver is 'express' makes some difference in terms of policy. The Court offers no reasons why the 'express' waiver bears on any relevant policies of § 2255.
7
The sentence proceding that one in the opinion of the Court simply says that some incentive to raise the claim is necessary. It does not say why the system of foreclosures must be airtight.
8
The difficulties in proving that a tactical choice was made not to raise the grand jury claim are, so far as I can tell, no different from proving that a tactical choice was made not to make a motion to suppress or to object to a prosecutor's comments on a defendant's failure to testify, both decisions to which this Court has applied the traditional test of waiver. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); Camp v. Arkansas, 404 U.S. 69, 92 S.Ct. 307, 30 L.Ed.2d 223 (1971).
9
Since nothing distinguishes this case from others involving, for example, claims of illegal searches, Kaufman v. United States, supra, in terms of the governmental interest in finality in criminal litigation, I do not discuss that interest here. The Government must be able to assert interests peculiar to grand jury claims in order to show that those interests outweigh countervailing public interests served by leaving those claims open to later determination.
10
Indeed, this Court has suggested that any narrowing of those opportunities would itself be an unconstitutional suspension of the writ of habeas corpus, Art. I, § 9, cl. 2. Fay v. Noia, 372 U.S. 391, 406, 83 S.Ct. 822, 831, 9 L.Ed.2d 837 (1963); Sanders v. United States, 373 U.S. 1, 11—12, 83 S.Ct. 1068, 1075—1076, 10 L.Ed.2d 148 (1963).
11
I do not understand the Court's contention that this is a 'liberal requirement.' It is true of course that waiver will not be presumed from a silent record. Cf. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). But in a case like this, the record is not silent; it shows that the defendant did not object to the composition of the grand jury. (I do not quarrel with the Court's reliance on the finding made below that, despite Davis' allegations, no pretrial objection was made.) Thus, the burden is on him to show that he did not know of his right to object to the composition of the grand jury, or that, knowing of his rights, he nonetheless did not exercise them because, for example, he feared that to do so would generate hostility that would adversely affect his chances of acquittal.
12
In a related setting, this Court has interpreted language that might be thought to preclude later claims in a manner similar to that I would adopt here. Sanders v. United States, supra, involved the question whether failure to raise a claim in a previous petition for collateral relief precluded consideration of that claim in a later petition. There was a statutory provision that '(t)he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.' 28 U.S.C. § 2255. The term 'similar relief' was interpreted to mean relief based upon the same claim that was presented before, or upon a claim that had intentionally been relinquished, 373 U.S., at 15—18, 83 S.Ct., at 1077—1079.
| 01
|
411 U.S. 223
93 S.Ct. 1565
36 L.Ed.2d 208
Joseph Everette BROWN and Thomas Dean Smith, Petitioners,v.UNITED STATES.
No. 71—6193.
Argued Dec. 7, 1973.
Decided April 17, 1973.
Syllabus
Petitioners were convicted of transporting and conspiring to transport stolen goods in interstate commerce to their coconspirator, whose retail store was searched under a defective warrant while petitioners were in custody in another State. The charges against petitioners were limited to acts committed before the day of the search. At a pretrial hearing on petitioners' motion to suppress evidence seized at the store, petitioners alleged no proprietary or possessory interest in the store or the goods, and the District Court denied their motion for lack of standing. At petitioners' trial, the seized goods were introduced into evidence. In addition, police testimony as to statements by petitioners implicating each other were introduced into evidence in a manner contrary to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. The Court of Appeals concluded that the Bruton error was harmless in view of overwhelming independent proof of guilt and affirmed the District Court's ruling on standing. Held:
1. Petitioners had no standing to contest the admission of the evidence seized under the defective warrant since they alleged no legitimate expectation of privacy or interest of any kind in the premises searched or the goods seized; they had no 'automatic' standing under Jones v. United States, 362 U.S. 257, as the case against them did not depend on possession of the seized evidence at the time of the contested search and seizure; and they could not vicariously assert the personal Fourth Amendment right of the store owner in contesting admission of the seized goods. Pp. 227 230.
2. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury, and the Bruton error was harmless. Pp. 230—232.
452 F.2d 868, affirmed.
Lowell W. Lundy, Barbourville, Ky., for petitioners.
Mark L. Evans, Dept. of Justice, Washington, D.C., for respondent.
Mr Chief Justice BURGER delivered the opinion of the Court.
1
Petitioners were convicted by a jury of transporting stolen goods and of conspiracy to transport stolen goods in interstate commerce, contrary to 18 U.S.C. § 2314 and 18 U.S.C. § 371. The central issue now is whether petitioners have standing to challenge the lawfulness of the seizure of merchandise stolen by them but stored in the premises of one Knuckles, a coconspirator. At the time of the seizure from Knuckles, petitioners were in police custody in a different State. Knuckles successfully challenged the introduction of the stolen goods seized from his store under a faulty warrant, and his case was separately tried.
2
The evidence against petitioners is largely uncontroverted. Petitioner Brown was the manager of a warehouse in Cincinnati, Ohio, owned by a wholesale clothing and household goods company. He was entrusted with the warehouse keys. Petitioner Smith was a truck driver for the company. During 1968 and 1969, the company had experienced losses attributed to pilferage amounting to approximately $60,000 each year. One West, a buyer and supervisor for the company, recovered a slip of paper he had seen drop from Brown's pocket. On the slip, in Brown's handwriting, was a list of warehouse merchandise, together with a price on each item that was well below wholesale cost. West estimated that the lowest legitimate wholesale price for these items would have been a total of about $6,400, while the total as priced by Brown's list was $2,200. The police were promptly notified and set up a surveillance of the warehouse. Ten days later, petitioners were observed wheeling carts containing boxes of merchandise from the warehouse to a truck. From a concealed point, the police took 20 photographs of petitioners loading the merchandise onto the truck. Petitioners then locked the warehouse, and drove off. They were followed and stopped by the police, placed under arrest, advised of their constitutional rights, and, with the loaded truck, taken into custody to police headquarters. The goods in the truck had not been lawfully taken from the warehouse and had a total value of about $6,500.
3
Following their arrest, and after being fully informed of their constitutional rights, both petitioners made separate confessions to police indicating that they had conspired with Knuckles to steal from the warehouse, that they had stolen goods from the warehouse in the past, and that they had taken these goods, on two occasions about two months before their arrest, to Knuckles' store in Manchester, Kentucky. Petitioners also indicated that they had 'sold' the previously stolen goods on delivery to Knuckles for various amounts of cash. Knuckles' store was then searched pursuant to a warrant, and goods stolen from the company, worth over $100,000 in retail value, were discovered. Knuckles was at the store during the search, but petitioners were in custody in Ohio.
4
Prior to trial, petitioners and Knuckles1 moved to suppress the stolen merchandise found at Knuckles' store. The prosecution conceded that the warrant for the search of Knuckles' store was defective. The District Court held a hearing on petitioners' motion to suppress the evidence. Petitioners, however, alleged no proprietary or possessory interest in Knuckles' premises or in the goods seized there, nor was any evidence of such an interest presented to the District Court. After the hearing, the District Court granted Knuckles' motion to suppress the goods seized, but denied petitioners' motion for lack of standing. The charges against Knuckles were severed for separate trial.
5
At petitioners' trial, stolen merchandise seized from Knuckles' store was received in evidence. The events leading to petitioners' arrests upon leaving the warehouse and while they were in possession of stolen goods were fully described by police officers who were eyewitnesses. The 20 photographs taken of the crime in progress were admitted into evidence. There was additional incriminating testimony by the owner of the service station from whom petitioners rented trucks used in the thefts, and by five witnesses who saw petitioners unloading boxes from a truck late at night and carrying the boxes into Knuckles' store. The prosecutor also introduced into evidence, over petitioners' objections, portions of each petitioner's confession which implicated the other in a manner now conceded to be contrary to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Those considerable parts of each petitioner's confession which did not implicate the other were admitted without objection. The jury returned verdicts of guilty on all counts.
6
On appeal, the Court of Appeals for the Sixth Circuit recognized that a Bruton error had occurred, but went on to conclude that the independent proof of petitioners' guilt was 'so overwhelming that the error was harmless,' citing Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The Court of Appeals also held that the stolen merchandise seized pursuant to the defective warrant was properly admitted against petitioners, stating:
7
'This ruling (of the District Court) was correct because appellants claimed no possessory or proprietary rights in the goods or in Knuckles' store, and it is clear that they cannot assert the Fourth Amendment right of another.' 452 F.2d 868, 870 (1971).
8
(1)
9
Petitioners contend that they have 'automatic' standing to challenge the search and seizure at Knuckles' store. They rely on the decision of this Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), establishing a rule of 'automatic' standing to contest an allegedly illegal search where the same possession needed to establish standing is 'an essential element of the offense . . . charged.' Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968). That case involved (a) a seizure of contraband narcotics, (b) a defendant who was present at the seizure,2 and (c) an offense in which the defendant's possession of the seized narcotics at the time of the contested search and seizure was a critical part of the Government's case. Jones, supra, 362 U.S., at 263, 80 S.Ct. at 732. Mr. Justice Frankfurter, writing for the Court in Jones, emphasized the 'dilemma' inherent in a defendant's need to allege 'possession' to contest a seizure, when such admission of possession could later be used against him. Id., at 262—264, 80 S.Ct., at 731—732. Mr. Justice Frankfurter quoted the words of Judge Learned Hand:
10
'Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.' Connolly v. Medalie, 58 F.2d 629, 630 (CA2 1932).
11
The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in Simmons v. United States, supra, we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence. 390 U.S., at 389—394, 88 S.Ct. at 973—976. For example, under the Simmons doctrine the defendant is permitted to establish the requisite standing by claiming 'possession' of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial. Thus, petitioners in this case could have asserted, as to the pretrial suppression hearing, a possessory interest in the goods at Knuckles' store without any danger of incriminating themselves. They did not do so.
12
But it is not necessary for us now to determine whether our decision in Simmons, supra, makes Jones' 'automatic' standing unnecessary. We reserve that question for a case where possession at the time of the contested search and seizure is 'an essential element of the offense . . . charged.' Simmons, 390 U.S., at 390, 88 S.Ct., at 974. Here, unlike Jones, the Government's case against petitioners does not depend on petitioners' possession of the seized evidence at the time of the contested search and seizure.3 The stolen goods seized had been transported and 'sold' by petitioners to Knuckles approximately two months before the challenged search. The conspiracy and transportation alleged by the indictment were carefully limited to the period before the day of the search.
13
In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. The vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present. The Government cannot be accused of taking 'advantage of contradictory positions.' Jones v. United States, supra, at 263, 80 S.Ct., at 732. See United States v. Allsenberrie, 424 F.2d 1209, 1212—1214 (CA7 1970); United States v. Cowan, 396 F.2d 83, 86 (CA2 1968); Niro v. United States, 388 F.2d 535, 537 (CA1 1968); United States v. Bozza, 365 F.2d 206, 223 (CA2 1966). But cf. United States v. Price, 447 F.2d 23, 29 (CA2), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971).
14
Again, we do not decide that this vice of prosecutorial self-contradiction warrants the continued survival of Jones' 'automatic' standing now that our decision in Simmons has removed the danger of coerced self-incrimination. We simply see no reason to afford such 'automatic' standing where, as here, there was no risk to a defendant of either self-incrimination or prosecutorial self-contradiction. Petitioners were afforded a full hearing on standing and failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized. Nor, incidentally, does the record reveal any such interest.4 As the Court of Appeals correctly concluded, petitioners had no standing to contest the defective warrant used to search Knuckles' store; they could not then and cannot now rely on the Fourth Amendment rights of another. 'Fourth Amendment rights are personal rights which, like some other constitutional rights may not be vicariously asserted. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).' Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). See Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963).
15
(2)
16
The Solicitor General concedes that, under Bruton, supra, statements made by petitioners were improperly admitted into evidence. Neither petitioner testified at the trial. The prosecution tendered police testimony as to statements made by Smith implicating Brown in the crimes charged, even though these statements were made out of Brown's presence.5 This testimony was admitted into evidence. Similar statements, made by Brown relating to Smith, were also admitted. Petitioners counsel made timely objections.
17
Upon an independent examination of the record, we agree with the Court of Appeals that the Bruton errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. In this case, as in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the independent evidence 'is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this . . . conviction undisturbed,' id., at 254, 89 S.Ct. 1726, at 1729. We reject the notion that a Bruton error can never be harmless. '(A) defendant is entitled to a fair trial but not a perfect one,' for there are no perfect trials. Bruton v. United States, 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). See Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972); Chapman v. California, 386 U.S. 18, 23—24, 87 S.Ct. 824, 827—828, 17 L.Ed.2d 705 (1967).
18
Affirmed.
1
Knuckles was joined in the conspiracy count and was also charged with having received stolen merchandise, contrary to 18 U.S.C. § 2315.
2
Presence of the defendant at the search and seizure was held, in Jones, to be a sufficient source of standing in itself. Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960). Here, of course, petitioners were not present at the contested search and seizure, but were in police custody in a different State. See Wong Sun v. United States, 371 U.S. 471, 492 n. 18, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963).
3
'Petitioner's conviction flows from his possession of the narcotics at the time of the search.' Jones, supra, at 263, 80 S.Ct., at 732. (emphasis added).
4
Petitioners now contend that they had a partnership 'property interest' in or 'constructive possession' of the stolen goods found at Knuckles' store, as a conspiracy is a 'partnership in crime.' Even if the petitioners had not already 'sold' the merchandise to Knuckles, their 'property interest' in the merchandise was totally illegitimate. The 'constructive possession' argument is equally ingenious, but equally unavailing. Even on the doubtful assumption that the alleged conspiracy between petitioners and Knuckles could support a 'constructive possession' of the merchandise at Knuckles' store, the conspiracy was alleged to have continued only 'to and including the 28th day of August, 1970.' The seizure was made on August 29, 1970. Finally, these contentions were not made in the courts below or in the petition for certiorari. They are therefore, not properly before this Court. Lawn v. United States, 355 U.S. 339, 362—363, n. 16, 78 S.Ct. 311, 324—325, 2 L.Ed.2d 321 (1958).
5
An FBI agent, Whitley, testified as follows:
'(Smith stated that) during June 1970, another individual who was also employed at Central Jobbing Company, one Joe Brown, had ap-
proached him and asked him to help steal merchandise from Central Jobbing Company and help him transport this merchandise to Manchester, Kentucky. He advised me that during June of 1970, he and Joe Brown made two trips to Manchester, Kentucky, with merchandise consisting of household goods and clothing which they had stolen from Central Jobbing Company. He recalled that to the best of his knowledge . . . these dates were June 5th and 29th, 1970. He said that he and Mr. Brown had received approximately one-half the value of the stolen merchandise from the owners of the Knuckles Discount Store in Manchester, Kentucky, and that the owners of the Discount Store knew that the merchandise was stolen. Mr. Smith stated further that he had received approximately $2,500.00 as his share of the money which they had received from the stolen merchandise.'
Another witness, a Detective Hulgin from the County Sheriff's Patrol, had also testified to similar statements by Smith, adding that Smith had stated that the list, which was found by West at the warehouse, had been prepared and shown to him by Brown, and that the total price of $2,200 shown on the list was the amount of money that petitioners were to receive for that particular shipment to Knuckles. Hulgin also testified that he was told by Brown that Smith had accompanied Brown on two previous occasions when Brown delivered stolen goods to Knuckles.
| 01
|
411 U.S. 258
93 S.Ct. 1602
36 L.Ed.2d 235
Lewis S. TOLLETT, Warden, Petitioner,v.Willie Lee HENDERSON.
No. 72—95.
Argued Feb. 20, 1973.
Decided April 17, 1973.
Syllabus
Where a state criminal defendant, on advice of counsel, pleads guilty he cannot in a federal habeas corpus proceeding raise independent claims relating to the deprivation of constitutional rights that antedated the plea, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, such as infirmities in the grand jury selection process, but may only attack the voluntary and intelligent character of the guilty plea by showing that counsel's advice was not within the standards of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. Pp. 261—269.
459 F.2d 237, reversed and remanded.
R. Jackson Rose, Asst. Atty. Gen., State of Tennessee, for petitioner.
H. Fred Hoefle, Cincinnati, Ohio, for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Twenty-five years ago respondent was indicted for the crime of first-degree murder by a grand jury in Davidson County, Tennessee. On the advice of counsel, he pleaded guilty and was sentenced to a term of 99 years in prison. Many years later he sought habeas corpus in both state and federal courts. In one petition in United States District Court, he contended that a confession he had given to the police had been coerced, and that he had been denied the effective assistance of counsel. The District Court considered these claims and decided them adversely to respondent, the Court of Appeals for the Sixth Circuit affirmed without opinion, and this Court denied certiorari. Henderson v. Henderson, 391 U.S. 927, 88 S.Ct. 1829, 20 L.Ed.2d 667 (1968). Respondent then sought state habeas corpus, alleging for the first time that he was deprived of his constitutional right because Negroes had been excluded from the grand jury which indicted him in 1948. After a series of proceedings in the Tennessee trial and appellate courts, the Tennessee Court of Criminal Appeals ultimately concluded that respondent had waived his claim by failure to raise it before pleading to the indictment, and by pleading guilty.
2
Respondent then filed in the United States District Court the petition for habeas corpus which commenced the present litigation, asserting the denial of his constitutional right by reason of the systematic exclusion of Negroes from grand jury service. Petitioner, in effect, conceded such systematic exclusion to have existed, and the District Court so found. The issue upon which the District Court and the Court of Appeals focused was whether respondent's failure to object to the indictment within the time provided by Tennessee law constituted a waiver of his Fourteenth Amendment right to be indicted by a constitutionally selected grand jury.
3
At a state hearing, respondent testified that his lawyer did not inform him of his constitutional rights with respect to the composition of the grand jury, that he did not know how the grand jury was selected or that Negroes were systematically excluded, and that his attorney did not tell him that he could have challenged the indictment, or that failure to challenge it would preclude him from later raising that issue. An unchallenged affidavit submitted by the attorney who represented respondent in the 1948 criminal proceeding stated that counsel did not know as a matter of fact that Negroes were systematically excluded from the Davidson County grand jury, and that therefore there had been no occasion to advise respondent of any rights he had as to the composition or method of selection of that body.
4
On the basis of this evidence, the Court of Appeals held that the record demonstrated no such 'waiver' of constitutional rights as that term was defined in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)—'an intentional relinquishment or abandonment of a known right or privilege.' The Court of Appeals went on to affirm the judgment of the District Court, which had ordered respondent released from custody because Negroes had been excluded from the grand jury which indicted him for the offense in question. We granted certiorari in order to decide whether a state prisoner, pleading guilty with the advice of counsel, may later obtain release through federal habes corpus by proving only that the indictment to which he pleaded was returned by an unconstitutionally selected grand jury.1
5
* Respondent, a Negro, and two others were arrested by Tennessee authorities for the robbery of a Nashville liquor store and the attempted murder of an employee who was shot during the episode. Three weeks later the employee died, and a Davidson County grand jury subsequently returned a murder indictment against respondent. Respondent signed a confession admitting his involvement in the robbery and shooting.
6
At the time of his arrest, respondent was 20 years old and his formal education had terminated at the sixth grade level. He had no attorney when he signed the confession, but subsequently his mother retained counsel to represent him. The attorney's major effort appears to have been to arrange a form of plea bargain, whereby respondent would plead guilty to the murder charge and the sentence, although imposed by a petit jury, would be 99 years, rather than the ultimate penalty. Respondent initially expressed a desire to plead not guilty, but, apparently because of the evidence against him and the possibility that the death sentence might be imposed if he were convicted, he decided on the advice of his counsel to plead guilty. The plea was entered, and the agreed-upon sentence was imposed.
II
7
For nearly a hundred years it has been established that the Constitution prohibits a State from systematically excluding Negroes from serving upon grand juries that indict for crime and petit juries that try the factual issue of the guilt or innocence of the accused. Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1880). See also Virginia v. Rives, 100 U.S. 313, 322—323, 25 L.Ed. 667 (1880). These holdings have been reaffirmed over the years, see, e.g., Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), and Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939), and are not of course questioned here. But respondent's assertion of this claim has another dimension to it; it was made for the first time many years after he had pleaded guilty to the offense for which he was indicted by the grand jury. None of our previous decisions dealing with the constitutional prohibition against racial discrimination in the selection of grand jurors has come to us in the context of a guilty plea.2
8
In Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), this Court dealt at some length with the effect of a plea of guilty on the later assertion of claimed violations of constitutional rights. In Brady v. United States, supra, 397 U.S. at 750, 758, 90 S.Ct. at 1470, 1474, the Court said:
9
'The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction.
10
'This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.'
11
In McMann v. Richardson, supra, 397 U.S. at 770—771, 90 S.Ct. at 1448, the Court laid down the general rule by which federal collateral attacks on convictions based on guilty pleas rendered with the advice of counsel were to be governed:
12
'In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.' (Footnote omitted.)
13
The Court of Appeals in its opinion in this case expressed the view that Brady, supra, and McMann, supra, were not controlling, because, in its words:
14
'The Brady line of cases dealt only with challenges to the guilty plea itself; no such challenge has been made here. For this reason alone we believe that Brady and its successors cannot govern our decision here.' 459 F.2d 237, 242 n. 5 (1972).3
15
We think the Court of Appeals took too restrictive a view of our holdings in the Brady trilogy. In each of those cases the habeas petitioner alleged some deprivation of constitution rights that preceded his decision to plead guilty. In McMann, supra, each of the respondents asserted that a coerced confession had been obtained by the State. In Brady, supra, the claim was that the burden placed on the exercise of the right to jury trial by the structure of the Federal Kidnaping Act, 18 U.S.C. § 1201—a burden which was held constitutionally impermissible in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)—had motivated petitioner's decision to plead guilty. In Parker, supra, the claim was that a provision of that State's laws similar to that contained in 18 U.S.C. § 1201 had likewise motivated the guilty plea.
16
While the claims of coerced confessions extracted prior to the guilty plea in McMann were in a somewhat different posture than had they been made in attacking a jury verdict based in part upon such confessions, the claim of impermissible burden on the right to jury trial resulting from the structure of the Kidnaping Act and the North Carolina law, respectively, were not significantly different from what they would have been had they been made following a bench trial and judgment of conviction. But the Court in Brady and Parker, as well as in McMann, refused to address the merits of the claimed constitutional deprivations that occurred prior to the guilty plea. Instead, it concluded in each case that the issue was not the merits of these constitutional claims as such, but rather whether the guilty plea had been made intelligently and voluntarily with the advice of competent counsel.
17
There are no doubt factual and legal differences between respondent's present assertion of the claim of discriminatory selection of the members of a grand jury, and the assertion of the constitutional claims by the prisoners in the Brady trilogy. In the latter cases, the facts giving rise to the constitutional claims were generally known to the defendants and their attorneys prior to the entry of the guilty pleas, and the issue in this Court turned on the adequacy of the attorneys' advice in evaluating those facts as a part of the recommendation to plead guilty. In the instant case, the facts relating to the selection of the Davidson County grand jury in 1948 were found by the District Court and the Court of Appeals to have been unknown to both respondent and his attorney. If the issue were to be cast solely in terms of 'waiver,' the Court of Appeals was undoubtedly correct in concluding that there had been no such waiver here. But just as the guilty pleas in the Brady trilogy were found to foreclose direct inquiry into the merits of claimed antecedent constitutional violations there, we conclude that respondent's guilty plea here alike forecloses independent inquiry into the claim of discrimination in the selection of the grand jury.
III
18
We hold that after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity. A state prisoner must, of course, prove that some constitutional infirmity occurred in the proceedings. But the inquiry does not end at that point, as the Court of Appeals apparently thought. If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not 'within the range of competence demanded of attorneys in criminal cases,' McMann v. Richardson, supra, 397 U.S. at 771, 90 S.Ct. at 1449. Counsel's failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof. Thus, while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief.
19
We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.
20
A guilty plea, voluntarily and intelligently entered, may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge, no matter how peripheral such a plea might be to the normal focus of counsel's inquiry. And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, McMann, supra, it is likewise not sufficient that he show that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings.
21
The principal value of counsel to the accused in a criminal prosecution often does not lie in counsel's ability to recite a list of possible defenses in the abstract, nor in his ability, if time permitted, to amass a large quantum of factual data and inform the defendant of it. Counsel's concern is the faithful representation of the interest of his client and such representation frequently involves highly practical considerations as well as specialized knowledge of the law. Often the interests of the accused are not advanced by challenges that would only delay the inevitable date of prosecution, see Brady v. United States, supra, 397 U.S. at 751—752, 90 S.Ct. at 1470—1471, or by contesting all guilt, see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against the accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement, such as unconstitutional grand jury selection procedures, might be factually supported.
22
In order to obtain his release on federal habeas under these circumstances, respondent must not only establish the unconstitutional discrimination in selection of grand jurors, he must also establish that his attorney's advice to plead guilty without having made inquiry into the composition of the grand jury rendered that advice outside the 'range of competence demanded of attorneys in criminal cases.'
23
Because we do not have before us all of the papers dealing with respondent's previous federal habeas petitions, we are not in a position to say whether he is presently precluded from raising the issue of the voluntary and intelligent nature of his guilty plea, or whether that claim would be open to him on appropriate allegations in a new or amended petition. The Court of Appeals was at pains to point out that respondent's present petition did not attack the guilty plea. In view of the reliance placed by the Court of Appeals and the District Court in their respective opinions in this case upon the statement of the concurring judge in the Tennessee Court of Criminal Appeals that '(n)o lawyer in this State would have ever thought of objecting to the fact that Negroes did not serve on the Grand Jury in Tennessee in 1948,' the chances of respondent's being able to carry the necessary burden of proof in challenging the guilty plea would appear slim. Nonetheless, we prefer to have this issue, if it be open to respondent under federal habeas practice, first addressed by the District Court or by the Court of Appeals. Respondent was not at any rate entitled to release from custody solely by reason of the fact that the grand jury which indicted him was unconstitutionally selected, and the judgment of the Court of Appeals holding otherwise is reversed and remanded for further proceedings consistent with this opinion.
24
Reversed and remanded for further proceedings consistent with this opinion.
25
It is so ordered.
26
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
27
I would affirm the judgment of the Court of Appeals. I am convinced that Henderson amply demonstrated that he is entitled to relief on any acceptable theory of voluntariness, right to effective assistance of counsel, or waiver, and that no further proceedings are necessary. The Court adopts an inflexible rule in a case where, as the Court of Appeals noted, the facts establish a need for flexibility. 459 F.2d 237, 242 n. 5 (CA6 1962). In doing so, it disregards this Court's previous counsel that whether a defendant is to be precluded from establishing a claim that his constitutional rights have been infringed 'must depend, in each case, upon the particular facts and circumstances surrounding that case.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
28
The Court relies on the 'guilty plea' trilogy, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). In each of those cases the Court held that a guilty plea, intelligently and voluntarily made, barred the assertion of later claims that at some point in the pretrial process, an admission of guilt had been unconstitutionally extracted, either through a coerced confession or through a plea of guilty induced by fear of enhanced punishment if such a plea were not made. In McMann, the Court summarized the view of the criminal process underlying those cases, stating, 'In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession.' 397 U.S., at 770, 90 S.Ct., at 1448.
29
The Court today extends that holding, so that, even where counsel does not consider and present to his client the possibility of a challenge to the composition of the grand jury, the client is nonetheless held to have made an 'intelligent' guilty plea. I think that this extension of the 'guilty plea' trilogy is misconceived. Those cases were concerned with the practical consequences of overturning negotiated pleas of guilty simply on the ground that the defense may have misjudged the possibility of successfully raising constitutional challenges to the pretrial proceedings. The Court recognized the importance of plea bargaining to the administration of criminal justice. See, e.g., Brady v. United States, supra, 397 U.S. at 750—753, 90 S.Ct. at 1470—1471. Promises of leniency, which the Court viewed as indistinguishable from the challenges in those cases, are used to induce defendants to forgo possibly meritorious challenges to the proceedings against them. This, the Court believed, permitted the imposition of punishment on offenders who deserved it, without significantly impairing the integrity of the criminal process by leaving unsanctioned all constitutional violations.
30
Whatever one may think of this analysis,1 it is plainly premised on the notion of bargain and exchange: in return for relinquishing a constitutional challenge, the offender receives more lenient treatment. Clearly, that decision must be made by the defendant, for we would not let an attorney bargain away his client's rights.2 It is the defendant who must, 'with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.' Id., at 750, 90 S.Ct., at 1470. Yet nothing like that happened in this case. Henderson's attorney never presented to him the possibility that, by insisting upon indictment by a properly composed grand jury, he might secure a more favorable bargain. See App. 83, 96.
31
The opinion of the Court devotes most of its attention to assertions and reassertions that in all cases a guilty plea 'may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge.' But the majority gives us almost no reason why those assertions should be accepted, and, with respect, I cannot accept them.
32
The Court invokes the specter of requiring counsel to present to his client 'every conceivable constitutional plea in abatement,' suggesting, I suppose, that there are such a huge number of conceivable constitutional objections to the Prosecution as to make such a requirement utterly impractical. I doubt that this accurately reflects the true situation; in most cases only one or two possibly meritorious objections to the prosecution can be made before trial. And, after all, these are objections bottomed on constitutional guarantees. I would have thought that the fact that the Constitution placed limits on the prosecution would be very important in deciding whether a lawyer's professional responsibility required him to consult with his client before taking action that led to a relinquishment of the constitutional objection. Surely Brady implied as much in saying that guilty pleas, because they operate as a waiver of constitutional rights, 'must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences,' 397 U.S., at 748, 90 S.Ct., at 1469 (emphasis added). The Court today extends the holdings of the 'guilty plea' trilogy without reference to the rationale by which those cases were reconciled with the requirements of the Constitution that a plea is a waiver of constitutional rights only where the defendant has been informed of those rights and decides not to invoke them in order to gain some advantage.
33
In the end, the Court seems to adopt a concept of professional responsibility that I cannot accept. It would let an attorney 'advance' the interests of his client without even informing himself about the facts underlying a constitutional challenge so that he might inform the client about the way in which, in the attorney's professional judgment, the course he is taking in fact advances those interests. '(F)aithful representation of the interest of his client,' ante, at 268, means, I believe, that an attorney must consult with the client fully on matters of constitutional magnitude. Without such consultation, the representation of criminal defendants becomes only another method of manipulating persons in situations where their control over their lives is precisely what is at stake.
34
If plea bargaining is to be constitutionally acceptable, it must rest upon personal choices made by defendants informed about possible alternatives; at least, they should know what options are open to them. In this case, Henderson might have secured a sentence shorter than 99 years by requiring the State to defend the constitutionality of its procedures for selecting grand juries. As is clear from this record, such a defense could not have succeeded, and the embarrassment of attempting a defense might well have led the prosecution to offer a more favorable bargain.3 I find nothing in the opinion of the Court that persuades me that Henderson's attorney acted 'within the range of competence demanded of attrneys in criminal cases,' McMann v. Richardson, supra, 397 U.S. at 771, 90 S.Ct. at 1449, because he did not consult with his client on a matter about which consultation is required.
35
Petitioner suggests, however, that Henderson's attorney may have considered the possibility of challenging the indictment but rejected that course because he believed that the grand jury was in fact selected by procedures that conformed to constitutional requirements. There is only the barest support in the record for this contention,4 and the District Judge explicitly found that no objection was made by counsel 'quite simply, because the possibility never occurred to him.' 342 F.Supp. 113, 115. But even if petitioner's suggestion were correct, it would not advance his cause. For then, as Judge Celebrezze aptly put it, the attorney's decision would have been 'grossly inadequate in light of the clearly established constitutional law of the period.' 459 F.2d, at 242 n. 5.5
36
Henderson was indicted in March 1948 by a grand jury in Davidson County, Tennessee.6 Although Negroes constituted 25% of the population of the county in 1948, not a single Negro had served on the grand jury in the years before 1948.7 In addition, whenever the name of a Negro appeared on the lists from which members of the grand jury were chosen, the letters 'c' or 'col' were marked next to the name. In the words of the Court of Appeals, 'officials were thus provided with a simple means of determining which citizens might be appropriately 'excused' from grand jury duty. It is apparent from the absence of any Negroes on the grand jury panels that the means were used and the impermissible end of exclusion accomplished.' 459 F.2d, at 239, n. 2.
37
Two points about these facts must be emphasized. First, the law was clear in 1948 that it was extremely difficult for a State to establish that it did not unconstitutionally exclude Negroes from service on the grand jury if no Negroes in fact served and a method of selection was used that brought to the attention of the persons selecting the grand jury the race of potential grand jurors. See, e.g., Patton v. Mississippi, 332 U.S. 463, 466, 68 S.Ct. 184, 186, 92 L.Ed. 76 (1947); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). It was therefore relatively easy to assess whether, if an attorney could present that kind of evidence, a constitutional challenge to the indictment was likely to succeed. Thus, making the decision to challenge the grand jury is different from making the decision to challenge a confession as coerced or a search as unreasonable. The latter decision as the Court emphasized in McMann v. Richardson, supra, 397 U.S. at 769—770, 90 S.Ct. at 1448, often turns upon predictions about how certain facts will be viewed by a court attempting to apply largely unstructured tests of reasonableness of voluntariness under all the circumstances. I would therefore accord less weight to the fact that an attorney must make professional judgments in cases like this one than in cases like McMann, in line with the difference in the ease with which such judgments can confidently be made.
38
Second, it takes almost no inquiry at all to determine whether any Negroes had served on local grand juries and whether racial designations appeared on the lists from which grand jurors were chosen. In its quest to establish a general rule applicable to all cases of challenges to the composition of grand juries, the Court disregards this fact. Instead, it characterizes the problem as involving 'amass(ing) a large quantum of factual data' and 'elaborate consideration of whether pleas in abatement . . . might be factually supported.' Ante, at 268. What ever might be the situation in other cases, the facts in this case show that no large amounts of data or elaborate consideration is involved. That is enough to demonstrate the fallacy of the Court's attempt to define a broad general rule. I would adhere to tests that turn on the facts of each case. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
39
The Court suggests that the failure by Henderson's attorney to consider the possibility of a constitutional challenge may be excused because, in the words of a judge of the Tennessee Court of Criminal Appeals, 3 Tenn.Cr.App. 204, 211, 459 S.W.2d 176, 179 (1970), 'No lawyer in this State would have ever thought of objecting to the fact that Negroes did not serve on the Grand Jury in Tennessee in 1948.' That statement is simply untrue. Even cursory research has disclosed several cases at the appellate level in which such challenges were raised by local attorneys. Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132 (1947); Williamson v. State, 194 Tenn. 341, 250 S.W.2d 556 (1952);8 Beckett v. United States, 84 F.2d 731 (CA6 1936). It may well be that Henderson 'received the same advice on this point (that is, none at all) that he would have received from most other lawyers of Tennessee in 1948.' 459 F.2d, at 242 n. 6. That should not exonerate Henderson's attorney, though; it reflects, as Judge Celebrezze said, 'a too-long tolerated gap between the requirement of the Constitution and realities of Tennessee Criminal practice.' Ibid. Determination of whether counsel is competent should not turn on the fact that many attorneys in a particular place at a given time would not think of raising certain claims. The test must be whether the advice was competent in light of the law of the time,9 and without regard to local peculiarities. Cf. United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 82 (CA5 1959); Windom v. Cook, 423 F.2d 721 (CA5 1970).
40
If Henderson's attorney had had even a passing acquaintance with the Tennessee Supreme Court's decision in Kennedy v. State, supra, a decision plainly relevant to Henderson's situation and recently decided, he would have immediately noticed that he had a very strong case. The Tennessee Supreme Court held that Kennedy had failed to prove his claim of unconstitutional discrimination in the selection of grand jurors. The court emphasized that the jury commissioners in Maury County selected names from tax books that 'contained no identifying symbols whereby the race of any taxpayer might be known,' and that 10 persons of 109 summoned for jury service were Negroes. 186 Tenn., at 316, 210 S.W.2d, at 134. An attorney of minimal competence would have realized that, where no Negroes had been summoned for service over many years and where racial designations were used, the Tennessee Supreme Court would very probably have held the selection system unconstitutional, in line with the decisions of this Court.10
41
I believe that the Court today adopts a rule that does not reflect the variety of circumstances in which claims like Henderson's arise. The Court's rule is particularly inappropriate in this very case. I therefore dissent.
1
In Parker v. North Carolina, 397 U.S. 790, 798, 90 S.Ct. 1458, 1463, 25 L.Ed.2d 785 (1970), the Court said 'Whether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide,' citing three decisions of the courts of appeals. All of these decisions dealt with the issue of whether grand jury exclusion might be raised on federal habeas after a plea of not guilty and trial by jury. That issue is left open by this opinion, as it was by Parker.
2
Cf. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161 (1955); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 127, 89 L.Ed. 1692 (1945); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938); Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500 (1935); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497 (1906); Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Tarrance v. Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Williams v. Mississippi, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012 (1898); Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896); Bush v. Kentucky, 107 U.S. 110, 27 L.Ed. 354 (1883); Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880).
3
A recent decision of the Fourth Circuit, Parker v. Ross, 470 F.2d 1092 (1972), arrived at the conclusion we now reach by extending the reasoning of the Brady trilogy to the type of claim respondent seeks to assert.
The second sentence of the quoted passage does not appear in the cited report. It is contained, however, in the official opinion as issued by the Clerk of Court for the Sixth Circuit.
1
Mr. Justice Douglas, Mr. Justice Brennan, and I dissented in McMann and Parker, believing that guilty pleas were so prevalent that it did impair constitutional protections to permit a plea to bar challenges to the prosecution.
2
Some of this Court's decisions suggest that an attorney's decision, in which the defendant does not participate, not to raise a constitutional objection may sometimes preclude successful reliance on the constitutional claim. See Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965); Brookhart v. Janis, 384 U.S. 1, 7—8, 86 S.Ct. 1245, 1248, 16 L.Ed.2d 314 (1966). If such a rule is to be squarely adopted by this Court, it should be limited narrowly to situations in which practical realities bar consultation, as often may happen during the course of trial. Cf. Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972).
3
Even if the State successfully defended its procedures in a preliminary attack, or if it decided to institute proceedings anew by convening a new grand jury, Henderson would have secured time in which to parepare a better defense and in which passions over his offense might subside, so that a plea of not guilty might have been more attractive to him.
4
In a hearing held in state court on Henderson's application for collateral relief, an affidavit from the attorney who had represented him was introduced. It stated in part, 'I have never been aware of any irregularity in the method of selection of grand or petit juries, particularly in regard to systematic exclusion of members of any race . . ..' App. 96.
5
In this regard the strictures in McMann v. Richardson, 397 U.S. 759, 772—773, 90 S.Ct. 1441, 1449—1450, 25 L.Ed.2d 763 (1970), against assessing decisions by counsel in the light of subsequent developments in the law have no force.
6
Davidson County includes the city of Nashville.
7
The first Negro to serve on the Davidson County grand jury was selected in 1953.
8
The offense in this case occurred in 1949; the report does not indicate when the trial commenced. In its opinion, the Tennessee Supreme Court noted that 'some months ago this Court reversed a conviction . . . because no members of the colored race were summoned for jury service.' 194 Tenn. 341, 346, 250 S.W.2d 556, 558 (1952) (emphasis added).
9
Including, of course, consideration of recent trends that might fruitful attempts to raise claims rejected in decisions whose rationale has been undermined by later decisions. Cf. Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Milton v. Wainwright, 407 U.S. 371, 381—382, 92 S.Ct. 2174, 2180, 33 L.Ed.2d 1 (Stewart, J., dissenting).
10
Notwithstanding these differences between Kennedy and this case, petitioner suggests that it would have been 'an exercise in futility' to have challenged the composition of the grand jury in this case. Brief for Petitioner 12. I would not lightly assume that a State's highest court would disregard clear holdings, consistently reiterated, of this Court. But even if petitioner's assessment is correct, it would further undercut extending the rationale of the 'guilty plea' trilogy to this case. As I have said above, plea bargaining rests on an exchange. If the State refuses to acknowledge that it may have something to lese, by taking the position that state courts would fail to apply established constitutional standards to undisputed facts, no bargain is possible. In such a case, even on the rationable of the 'guilty plea' cases, the plea would be involuntary.
Petitioner's suggestion is of course premised on an estimate of how a competent attorney would have assessed the chances of prevailing on the constitutional challenge. Since Henderson's attorney made no such assessment anyway, the suggestion has no relevance to this case.
| 01
|
411 U.S. 345
93 S.Ct. 1571
36 L.Ed.2d 294
Kirby J. HENSLEY, Petitioner,v.MUNICIPAL COURT, SAN JOSE MILPITAS JUDICIAL DISTRICT, SANTA CLARA COUNTY, State of CALIFORNIA.
No. 71—1428.
Argued Jan. 15, 1973.
Decided April 18, 1973.
Syllabus
Restraints imposed on petitioner who was released on his own recognizance constitute 'custody' within the meaning of the federal habeas corpus statute, 28 U.S.C. §§ 2241(c)(3), 2254(a). Pp. 348—353.
(9 Cir. 1972) 453 F.2d 1252, reversed.
Stanley A. Bass, New York City, for petitioner.
Dennis Alan Lempert, San Jose, Cal., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case requires us to determine whether a person released on his own recognizance is 'in custody' within the meaning of the federal habeas corpus statute, 28 U.S.C. §§ 2241(c)(3), 2254(a). See Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed. 426 (1968); 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). Petitioner initiated this action in the United States District Court for the Northern District of California, challenging a state court conviction on First and Fourteenth Amendment grounds. The court denied relief, holding that since the petitioner was enlarged on his own recognizance pending execution of sentence, he was not yet 'in custody' for purposes of the habeas corpus statute. The Court of Appeals for the Ninth Circuit agreed that release on one's own recognizance is not sufficient custody to confer jurisdiction on the District Court, and affirmed the judgment. 453 F.2d 1252 (1972).1 We granted certiorari, 409 U.S. 840, 93 S.Ct. 43, 34 L.Ed.2d 79 (1972), and we reverse.
2
Convicted of a misdemeanor in California Municipal Court for violation of § 29007 of the California Education Code,2 petitioner was sentenced to serve one year in jail and pay a fine of $625. He appealed his conviction unsuccessfully to the Appellate Department of the Superior Court, and his efforts to have the conviction set aside on state court collateral attack have proved equally unavailing. It appears that petitioner exhausted all available state court remedies prior to filing this petition for federal habeas corpus. See 28 U.S.C. § 2254(b).3
3
At all times since his conviction petitioner has been enlarged on his own recognizance. While pursuing his state court remedies he remained at large under an order of the state trial court staying execution of his sentence. And the state trial court extended its stay, even after the Supreme Court of California declined to hear his application for postconviction relief, apparently to permit petitioner to remain at large while seeking habeas corpus in the United States District Court. Pending appeal from the District Court's denial of relief, an application for extension of the state court stay was granted by Mr. Justice Black, as Acting Circuit Justice, on August 12, 1970, and extended by Mr. Justice Douglas, as Circuit Justice, on August 20, 1970, and again on September 9, 1970.4 The Court of Appeals affirmed the denial of habeas corpus, but granted a 30-day stay of its mandate pending application for certiorari. That stay was extended by Mr. Justice Douglas, as Circuit Justice, on March 20, 1972, and it is pursuant to his order that petitioner remains at large at the present time.
4
The California Penal Code provides that any court that may release a defendant upon his giving bail may release him on his own recognizance, provided he agrees in writing that:
5
'(a) He will appear at all times and places as ordered by the court or magistrate releasing him and as ordered by any court in which, or any magistrate before whom, the charge is subsequently pending.
6
'(b) If he fails to so appear and is apprehended outside of the State of California, he waives extradition.
7
'(c) Any court or magistrate of competent jurisdiction may revoke the order of release and either return him to custody or require that he give bail or other assurance of his appearance . . ..' Cal.Penal Code § 1318.4.
8
A defendant is subject to re-arrest if he fails to appear as agreed, id., § 1318.8(a), and a willful failure to appear is itself a criminal offense. Id., § 1319.6. We assume that these statutory conditions have been imposed on petitioner at all times since the state trial court stayed execution of his sentence.
9
The question presented for our decision is a narrow one: namely, whether the conditions imposed on petitioner as the price of his release constitute 'custody' as that term is used in the habeas corpus statute. Respondent contends that the conditions imposed on petitioner are significantly less restrictive than those imposed on the petitioner in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), where we held that a person released on parole is 'in custody' for purposes of the district courts' habeas corpus jurisdiction. It is true, of course, that the parolee is generally subject to greater restrictions on his liberty of movement than a person released on bail or his own recognizance. And some lower courts have reasoned that this difference precludes an extension of the writ in cases such as the one before us.5 On the other hand, a substantial number of courts, perhaps a majority, have concluded that a person released on bail or on his own recognizance may be 'in custody' within the meaning of the statute.6 In view of the analysis, which led to a finding of custody in Jones v. Cunningham, supra, we conclude that this latter line of cases reflects the sounder view.
10
While the 'rhetoric celebrating habeas corpus has changed little over the centuries,'7 it is nevertheless true that the functions of the writ have undergone dramatic change. Our recent decisions have reasoned from the premise that habeas corpus is not 'a static, narrow, formalistic remedy,' Jones v. Cunningham, supra, at 243, 83 S.Ct., at 377, but one which must retain the 'ability to cut through barriers of form and procedural mazes.' Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969). See Frank v. Mangum, 237 U.S. 309, 346, 35 S.Ct. 582, 594, 59 L.Ed. 969 (1915) (Holmes, J., dissenting). 'The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.' Harris v. Nelson, supra, 394 U.S. at 291, 89 S.Ct. at 1086.
11
Thus, we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements. The demand for speed, flexibility, and simplicity is clearly evident in our decisions concerning the exhaustion doctrine, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); the criteria for relitigation of factual questions, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); the prematurity doctrine, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); the choice of forum, Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972); and the procedural requirements of a habeas corpus hearing. Harris v. Nelson, supra. That same theme has indelibly marked our construction of the statute's custody requirement. See Strait v. Laird, supra; Peyton v. Rowe, supra; Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968); Jones v. Cunningham, supra.8
12
The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate. Applying that principle, we can only conclude that petitioner is in custody for purposes of the habeas corpus statute. First, he is subject to restraints 'not shared by the public generally,' Jones v. Cunningham, supra, 371 U.S. at 240, 83 S.Ct. at 376, that is, the obligation to appear 'at all times and places as ordered' by '(a)ny court or magistrate of competent jurisdiction.' Cal. Penal Code §§ 1318.4(a), 1318.4(c). He cannot come and go as he pleases. His freedom of movement rests in the hands of state judicial officers, who may demand his presence at any time and without a moment's notice. Disobedience is itself a criminal offense. The restraint on his liberty is surely no less severe than the conditions imposed on the unattached reserve officer whom we held to 'in custody' in Strait v. Laird, supra.9
13
Second, petitioner remains at large only by the grace of a stay entered first by the state trial court and then extended by two Justices of this Court. The State has emphatically indicated its determination to put him behind bars, and the State has taken every possible step to secure that result. His incarceration is not, in other words, a speculative possibility that depends on a number of contingencies over which he has no control. This is not a case where the unfolding of events may render the entire controversy academic. The petitioner has been forced to fend off the state authorities by means of a stay, and those authorities retain the determination and the power to seize him as soon as the obstacle of the stay is removed. The need to keep the stay in force is itself an unusual and substantial impairment of his liberty.
14
Moreover, our conclusion that the petitioner is presently in custody does not interfere with any significant interest of the State. Indeed, even if we were to accept respondent's argument that petitioner is not in custody, that result would do no more than postpone this habeas corpus action until petitioner had begun service of his sentence.10 It would still remain open to the District Court to order petitioner's release pending consideration of his habeas corpus claim. In re Shuttlesworth, 369 U.S. 35, 82 S.Ct. 551, 7 L.Ed.2d 548 (1962). Even if petitioner remained in jail only long enough to have his petition filed in the District Court, his release by order of the District Court would not jeopardize his 'custody' for purposes of a habeas corpus action. Carafas v. LaVallee, supra.11 Plainly, we would badly serve the purposes and the history of the writ to hold that under these circumstances the petitioner's failure to spend even 10 minutes in jail is enough to deprive the District Court of power to hear his constitutional claim.
15
Finally, we emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all persons released on bail or on their own recognizance. We are concerned here with a petitioner who has been convicted in state court and who has apparently exhausted all available state court opportunities to have that conviction set aside. Where a state defendant is released on bail or on his own recognizance pending trial or pending appeal, he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts. Nothing in today's opinion alters the application of that doctrine to such a defendant.
16
Since the Court of Appeals erroneously concluded that petitioner was not 'in custody' at the time his petition was filed, its judgment is reversed and the case is remanded to the District Court to consider his petition for a writ of habeas corpus.
17
Reversed and remanded.
18
Mr. Justice BLACKMUN, concurring in the result.
19
I emphasize again, as I did in my separate concurrence in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 501, 93 S.Ct. 1123, 1132, 35 L.Ed.2d 443 (1973), that the Court has wandered a long way down the road in expanding traditional notions of habeas corpus. Indeed, the Court now concedes this. Ante, at 349. The present case is yet another step. Although recognizing that the custody requirement is designed to preserve the writ as a remedy for severe restraints on individual liberty, ante, at 351, the Court seems now to equate custody with almost any restraint, however, tenuous. One wonders where the end is. Nevertheless, in the light of cases already decided by the Court, I feel compelled to go along and therefore concur in the result.
20
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice POWELL join, dissenting.
21
The issue in this case is whether petitioner was in 'custody,' within the meaning of 28 U.S.C. § 2241, entitling him to the benefit of the extraordinary writ of habeas corpus. The Court of Appeals for the Ninth Circuit unanimously held that he was neither in actual nor constructive custody. If there is any vestige left of the obvious and the original meaning of 'custody' the court below was right and the majority opinion of this Court today has further stretched both the letter and the rationale of the statute.
22
Petitioner has been free on his own recognizance since his conviction and the imposition of sentence in the summer of 1969. The California statute authorizing his release imposes no territorial or supervisory limitations and he has been subject to none. He has not been required to post any security for his appearance. At the time of the filing of his federal habeas petition, the only conceivable restraint on him was that at the time of the expiration of the stay granted by the state court, petitioner would have had to surrender himself to the custody of the sheriff. The record shows that for the three and one-half years since his conviction petitioner has utilized his freedom to travel both within and without the State of California for business purposes.
23
Petitioner was under no greater restriction than one who had been subpoenaed to testify in court as a witness. This is simply not 'custody' in any known sense of the word, and it surely is not what was meant by Congress when it enacted 28 U.S.C. § 2241. The Court apparently feels, like Faust, that it has in its previous decisions already made its bargain with the devil, and it does not shy from this final step in the rewriting of the statute. I cannot agree, and I therefore dissent.
1
The Court of Appeals concluded that the question was controlled by a prior decision of the same court, Matysek v. United States, 339 F.2d 389 (1964).
2
Petitioner was convicted of awarding Doctor of Divinity degrees without obtaining the necessary accreditation. He defended the charge on the grounds that he is the chief presiding officer of a bona fide church, that his church has awarded honorary Doctor of Divinity certificates to persons who have completed a course of instruction in the church's principles, and that state interference with this practice is an unconstitutional restraint on the free exercise of his religious beliefs.
3
There is a substantial question whether petitioner has forfeited the right to raise his First and Fourteenth Amendment challenge to the state court conviction by deliberately bypassing an opportunity to raise the claim in the state courts. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Respondent maintains that petitioner deliberately absented himself from trial following the close of the prosecution's case, with full knowledge that the trial would continue in his absence. He thereby relinquished, respondent contends, the right to defend himself and present evidence on his behalf. Petitioner argues in response that trial counsel failed to advise him of the reopening of trial and failed to warn him that absence from trial would lead to conviction. Accordingly, he asserts that he should not be held to have knowingly and intelligently bypassed an available state procedure. The record on this point is more than a little obscure, and we express no opinion on the question beyond noting that the issue was not considered, much less resolved, by either of the courts below, and it is not in any sense presented for our decision.
4
In his Motion for Stay, filed in this Court on August 11, 1970, and addressed to the Circuit Justice of the Ninth Circuit, petitioner explained that the 'Stay of Execution granted by the Trial Court is scheduled to expire on August 12, 1970, at which time petitioner has been ordered to surrender himself to the Sheriff of Santa Clara County for immediate incarceration.' Motion for Stay 2.
5
See, e.g., United States ex rel. Meyer v. Weil, 458 F.2d 1068 (CA7 1972); Allen v. United States, 349 F.2d 362 (CA1 1965); Application of Jackson, 338 F.Supp. 1225 (WD Tenn.1971); United States ex rel. Granello v. Krueger, 306 F.Supp. 1046 (EDNY 1969); Moss v. Maryland, 272 F.Supp. 371 (Md.1967).
6
See, e.g., Capler v. City of Greenville, 422 F.2d 299, 301 (CA5 1970); Marden v. Purdy, 409 F.2d 784, 785 (CA5 1969); Beck v. Winters, 407 F.2d 125, 126—127 (CA8 1969); Burris v. Ryan, 397 F.2d 553, 555 (CA7 1968); United States ex rel. Smith v. DiBella, 314 F.Supp. 446 (Conn.1970); Ouletta v. Sarver, 307 F.Supp. 1099, 1101 n. 1 (ED Ark.1970), aff'd, 428 F.2d 804 (CA8 1970); Cantillon v. Superior Court, 305 F.Supp. 304, 306—307 (CD Cal.1969); Matzner v. Davenport, 288 F.Supp. 636, 638 n. 1 (NJ 1968), aff'd, 410 F.2d 1376 (CA3 1969); Nash v. Purdy, 283 F.Supp. 837, 838—839 (SD Fla.1968); Duncombe v. New York, 267 F.Supp. 103, 109 n. 9 (SDNY 1967); Foster v. Gilbert, 264 F.Supp. 209, 211—212 (SD Fla.1967). In addition, the Supreme Court of California has concluded that release on one's own recognizance under the laws of that State imposes 'sufficient constructive custody' to permit an application for writ of habeas corpus. In re Smiley, 66 Cal.2d 606, 613, 58 Cal.Rptr. 579, 583, 427 P.2d 179, 183 (1967).
7
Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1040 (1970).
8
Insofar as former decisions, Stallings v. Splain, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed 940 (1920); Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497 (1913); Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed.2d 748 (1898); Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277 (1885), may indicate a narrower reading of the custody requirement, they may no longer be deemed controlling. In none of the decisions on which we today rely, Strait v. Laird, supra; Peyton v. Rowe, supra; Carafas v. LaVallee, supra; Jones v. Cunningham, supra, are these earlier cases even cited in the opinions of the Court.
9
Similarly, in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), where the Commonwealth of Kentucky had lodged a detainer against a prisoner in an Alabama jail, we held that the petitioner was in the custody of Kentucky officials for purposes of his habeas corpus action.
10
By contrast, a finding of no 'custody' in Carafas v. LaVallee, supra, would not merely have postponed the exercise of habeas corpus jurisdiction, but would have barred it altogether. Similarly, if we had held in Jones v. Cunningham, supra, that a parolee is not in custody, then habeas corpus jurisdiction could not have been exercised until such time as release on parole was revoked. Cf. Peyton v. Rowe, supra.
11
See United States ex rel. Pon v. Esperdy, 296 F.Supp. 726 (SDNY 1969); Goldberg v. Hendrick, 254 F.Supp. 286, 288—289 (ED Pa.1966).
| 01
|
411 U.S. 325
93 S.Ct. 1590
36 L.Ed.2d 280
Reubin O'D. ASKEW et al., Appellants,v.The AMERICAN WATERWAYS OPERATORS, INC., at al.
No. 71—1082.
Argued Nov. 14, 1972.
Decided April 18, 1973.
Rehearing Denied June 4, 1973.
See 412 U.S. 933, 93 S.Ct. 2746.
Syllabus
Florida Oil Spill Prevention and Pollution Control Act, providing for the State's recovery of cleanup costs and imposing strict, no-fault liability on waterfront oil-handling facilities and ships destined for or leaving such facilities for any oil-spill damage to the State or private persons, does not, in the context of this action by shipping interests to enjoin application of the Florida statute, invade a regulatory area pre-empted by the federal Water Quality Improvement Act, which is concerned solely with recovery of actual cleanup costs incurred by the Federal Government, and presupposes a coordinated federal-state effort to deal with coastal oil pollution. Nor is the State's police power over sea-to-shore pollution pre-empted by the Admiralty to supply an exclusive remedy in this admiralty-related to suppl an exclusive remedy in this admiralty-related situation. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, and Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, distinguished. Pp. 329—344.
D.C., 335 F.Supp. 1241, reversed.
Daniel S. Dearing and Robert L. Shevin, Tallahassee, Fla., for appellants.
Nicholas J. Healy, New York City, for appellees American Institute of Merchant Shipping and others.
LeRoy Collins, Tallahassee, Fla., for appellees The American Waterways Operators, Inc., and others.
[Amicus Curiae Information from pages 326-327 intentionally omitted]
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This action was brought by merchant shipowners and operators, world shipping associations, members of the Florida coastal barge and towing industry, and owners and operators of oil terminal facilities and heavy industries located in Florida, to enjoin application of the Florida Oil Spill Prevention and Pollution Control Act, Fla.Laws 1970, c. 70—244, Fla.Stat.Ann. § 376.011 et seq. (Supp.1973) (hereinafter referred to as the Florida Act). Officials responsible for enforcing the Florida Act were named as defendants, but the State of Florida intervened as a party defendant, asserting that its interests were much broader than those of the named defendants. A three-judge court was convened pursuant to 28 U.S.C. § 2281.
2
The Florida Act imposes strict liability for any damage incurred by the State or private persons as a result of an oil spill in the State's territorial waters from any waterfront facility used for drilling for oil or handling the transfer or storage of oil (terminal facility) and from any ship destined for or leaving such facility. Each owner or operator of a terminal facility or ship subject to the Act must establish evidence of financial responsibility by insurance or a surety bond.1 In addition, the Florida Act provides for regulation by the State Department of Natural Resources with respect to containment gear and other equipment which must be maintained by ships and terminal facilities for the prevention of oil spills.
3
Several months prior to the enactment of the Florida Act, Congress enacted the Water Quality Improvement Act of 1970, 84 Stat. 91, 33 U.S.C. § 1161 et seq. (hereinafter referred to as the Federal Act).1a This Act subjects shipowners and terminal facilities to liability without fault up to $14,000,000 and $8,000,000, respectively, for cleanup costs incurred by the Federal Government as a result of oil spills. It also authorizes the President to promulgate regulations requiring ships and terminal facilities to maintain equipment for the prevention of oil spills. It is around that Act and the federally protected tenets of maritime law evidenced by Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, and its progeny that the controversy turns. The District Court held that the Florida Act is an unconstitutional intrusion into the Federal maritime domain. It declared the Florida Act null and void and enjoined its enforcement. 335 F.Supp. 1241.
4
The case is here on direct appeal. We reverse. We find no constitutional or statutory impediment to permitting Forida, in the present setting of this case, to establish any 'requireemnt or liability' concerning the impact of oil spillages on Florida's interests or concerns. To rule as the District Court has done is to allow federal admiralty jurisdiction to swallow most of the police power of the States over oil spillage—an insidious form of pollution of vast concern to every coastal city or port and to all the estuaries on which the life of the ocean and the lives of the coastal people are greatly dependent.
5
* It is clear at the outset that the Federal Act does not preclude, but in fact allows, state regulation. Section 1161(o) provides that:
6
'(1) Nothing in this section shall affect or modify in any way the obligations of any owner or operator of any vessel, or of any owner or operator of any onshore facility or offshore facility to any person or agency under any provision of law for damages to any publicly-owned or privately-owned property resulting from a discharge of any oil or from the removal of any such oil.
7
'(2) Nothing in this section shall be construed as preempting any State or political subdivision thereof from imposing any requirement or liability with respect to the discharge of oil into any waters within such State.
8
'(3) Nothing in this section shall be construed . . . to affect any State or local law not in conflict with this section.' (Emphasis added.)
9
According to the Conference Report, 'any State would be free to provide requirements and penalties similar to those imposed by this section or additional requirements and penalties. These, however, would be separate and independent from those imposed by this section and would be enforced by the States through its courts.'2 (Emphasis added.) The Florida Act covers a wide range of 'pollutants,' § 3(7), and a restricted definition of pollution. § 3(8). We have here, however, no question concerning any pollutant except oil.
10
The Federal Act, to be sure, contains a pervasive system of federal control over discharges of oil 'into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone.' § 1161(b)(1). So far as liability is concerned, an owner or operator of a vessel is liable to the United States for actual costs incurred for the removal of oil discharged in violation of § 1161(b)(2) in an amount 'not to exceed $100 per gross ton of such vessel or $14,000,000, whichever is lesser,' § 1161(f)(1), except for discharges caused solely by an act of God, act of war, negligence of theUnited States, or act or omission of another party. With like exceptions the owner or operator of an onshore or offshore facility is liable to the United States for the actual costs incurred by the United States in an amount not to exceed $8,000,000. § 1161(f)(2)—(3). But in each case the owner or operator is liable to the United States for the full amount of the costs where the United States can show that the discharge of oil was 'the result of willful negligence or willful misconduct within the privity and knowledge of the owner.' Comparable provisions of liability spell out the obligations of 'a third party' to the United States for its actual costs incurred in the removal of the oil. § 1161(g).
11
So far as vessels are concerned the federal Limited Liability Act, 46 U.S.C. §§ 181—189, extends to damages caused by oil spills even where the injury is to the shore. Richardson v. Harmon, 222 U.S. 96, 106, 32 S.Ct. 27, 30, 56 L.Ed. 110. That Act limits the liabilities of the owners of vessels to the 'value of such vessels and freight pending.' 46 U.S.C. § 189.
12
Section 12 of the Florida Act makes all licensees3 of terminal facilities 'liable to the state for all costs of cleanup or other damage incurred by the state and for damages resulting from injury to others,' it not being necessary for the State to plead or prove negligence.4 There is no conflict between § 12 of the Florida Act and § 1161 of the Federal Act when it comes to damages to property interests, for the Federal Act reaches only costs of cleaning up. As respects damages, § 14 of the Florida Act requires evidence of financial responsibility of a terminal facility or vessel—a provision which does not conflict with the Federal Act.
13
The Solicitor General says that while the Limited Liability Act, so far as vessels are concerned, would override § 12 of the Florida Act by reason of the Supremacy Clause, the Limited Liability Act has no bearing on 'facilities' regulated by the Florida Act. Moreover, § 12 has not yet been construed by the Florida courts and it is susceptible of an interpretation so far as vessels are concerned which would be in harmony with the Federal Act. Section 12 does not in terms provide for unlimited liability.
14
Moreover, while the Federal Act determines damages measured by the cost to the United States for cleaning up oil spills, the damages specified in the Florida Act relate in part to the cost to the State of Florida in cleaning up the spillage. Those two sections are harmonious parts of an integrated whole. Section 1161(c)(2) directs the President to prepare a National Contingency Plan for the containment, dispersal, and removal of oil. The plan must provide that federal agencies 'shall' act 'in coordination with State and local agencies.' Cooperative action with the States is also contemplated by § 1161(e), which provides that '(i)n addition to any other action taken by a State or local government' the President may, when there is an imminent and substantial threat to the public health or welfare, direct the United States Attorney of the district in question to bring suit to abate the threat. The reason for the provision in § 1161(o)(2), stating that nothing in § 1161 pre-empts any State 'from imposing any requirement or liability with respect to the discharge of oil into any waters within such State,' is that the scheme of the Act is one which allows—though it does not require—co-operation of the federal regime with a state regime.
15
If Florida wants to take the lead in cleaning up oil spillage in her waters, she can use § 12 of the Florida Act and recoup her costs from those who did the damage. Whether the amount of costs she could recover from a wrongdoer is limited to those specified in the Federal Act and whether in turn this new Federal Act removes the pre-existing limitations of liability in the Limited Liability Act are questions we need not reach here. Any opinion on them is premature. It is sufficient for this day to hold that there is room for state action in cleaning up the waters of a State and recouping, at least within federal limits so far as vessels are concerned, her costs.
16
Beyond that is the potential claim under § 12 of the Florida Act for 'other damage incurred by the state and for damages resulting from injury to others.' The Federal Act in no way touches those areas. A State may have pulbic beaches ruined by oil spills. Shrimp, clam, oyster and scallop beds may be destroyed, and ruined and the livelihood of fishermen imperiled.5 The Federal Act takes no cognizance of those claims but only of costs to the Federal Government, if it does the cleaning up.
17
We held in Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193, that while Congress had regulated the size of commercial sponges taken in Florida waters, it had not dealt with any diving apparatus that might be used. Florida had such a law and was allowed to enforce it against one of its citizens. Mr. Chief Justice Hughes, speaking for the Court, said: 'It is also clear that Florida has an interest in the proper maintenance of the sponge fishery and that the statute so far as applied to conduct within the territorial waters of Florida, in the absence of conflicting federal legislation, is within the police power of the State.' Id., at 75, 61 S.Ct., at 928.
18
Similarly, in Manchester v. Massachusetts, 139 U.S. 240, 266, 11 S.Ct. 559, 565, 35 L.Ed. 159, we stated that if Congress fails to assume control of fisheries in a bay, 'the right to control such fisheries must remain with the state which contains such bays.'
19
Florida in her brief accurately states that no remedy under the Federal Act exists for state or private property owners damaged by a massive oil slick such as hit England and France in 1967 in the Torrey Canyon disaster. The Torrey Canyon carried 880,000 barrels of crude oil.6 Today not only is more oil being moved by sea each year but the tankers are much larger.
20
'The average tanker used during World War II had a capacity of 16,000 tons, but by 1965 that average had risen to 27,000 tons, and new tankers delivered in 1966 averaged about 76,000 tons. A Japanese company has launched a 276,000-ton tanker, and other Japanese yards have orders for tankers as large as 312,000 tons. More than sixty tankers of 150,000 tons or more are on order throughout the world, tankers of 500,000 to 800,000 tons are on the drawing boards, and those of more than one million tons are thought to be feasible. On the new 1,010 foot British tanker 'Esso Mercia' two officers have been issued bicycles to help patrol the decks of the 166,890 ton vessel.
21
'The size of the tanker fleet itself is growing at a rate that rivals the growth in average size of new tankers. In 1955 the world tanker fleet numbered about 2,500 vessels. By 1965 it had increased to 3,500, and in 1968 it numbered some 4,300 ships. At the present time nearly one ship out of every five in the world merchant fleet is engaged in transporting oil, and nearly the entire fleet is powered by oil.'7
22
Our Coast Guard reports8 that while in 1970 there were 3,711 oil spills in our waters, in 1971 there were 8,736. The damage to state interests already caused by oil spills, the increase in the number of oil spills, and the risk of ever-increasing damage by reason of the size of modern tankers underlie the concern of coastal States.
23
While the Federal Act is concerned only with actual cleanup costs incurred by the Federal Government, the State of Florida is concerned with its own cleanup costs. Hence there need be no collision between the Federal Act and the Florida Act because, as noted, the Federal Act presupposes a coordinated effort with the States, and any federal limitation of liability runs to 'vessels,' not to shore 'facilities.' That is one of the reasons why the Congress decided that the Federal Act does not pre-empt the States from establishing either 'any requirement or liability' respecting oil spills.
24
Moreover, since Congress dealt only with 'cleanup' costs, it left the States free to impose 'liability' in damages for losses suffered both by the States and by private interests. The Florida Act imposes liability without fault. So far as liability without fault for damages to state and private interests is concerned, the police power has been held adequate for that purpose. State statutes imposing absolute liability on railroads for all property lost through fires caused by sparks emitted from locomotive engines have been sustained. St. Louis & San Francisco R. Co. v. Mathews, 165 U.S. 1, 17 S.Ct. 243, 41 L.Ed. 611. The Federal Act, however, while restricted to cleanup costs incurred by the United States, imposes limited liability for those costs and provides certain exceptions, unless willfulness is established. Where liability is imposed by §§ 1161(f)—(g), previously summarized, the United States may recover the full amount of the costs where the oil spillage was the result of 'willful negligence or willful misconduct.' If the coordinated federal plan in actual operation leaves the State of Florida to do the cleanup work, there might be financial burdens imposed greater than would have been imposed had the Federal Government done the cleanup work. But it will be time to resolve any such conflict between federal and state regimes when it arises.
25
Nor can we say at this point that regulations of the Florida Department of Natural Resources requiring 'containment gear' pursuant to § 7(2)(a) of the Florida Act would be per se invalid because the subject to be regulated requires uniform federal regulation. Cf. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852. Resolution of this question, as well as the question whether such regulations will conflict with Coast Guard regulations promulgated on December 21, 1972, pursuant to § 1161(j)(1) of the Federal Act, 37 Fed.Reg. 28250, should await a concrete dispute under applicable Florida regulations. Finally, the provision of the Florida Act requiring the licensing of terminal facilities, a traditional state concern, creates no conflict per se with federal legislation. Section 1171(b)(1) of the Federal Act provides that federal permits will not be issued to terminal facility operators or owners unless the applicant first supplies a certificate from the State that his operation 'will be conducted in a manner which will not violate applicable water quality standards.' And Tit. I, § 102(b), of the recently enacted Ports and Waterways Safety Act of 1972, Pub.L. 92 340, 86 Stat. 426, 33 U.S.C. § 1222(b) (1970 ed., Supp. II), provides that the Act does not prevent 'a State or political subdivision thereof from prescribing for structures only higher safety equipment requirements or safety standards than those which may be prescribed pursuant to this title.'
II
26
And so, in the absence of federal preemption and any fatal conflict between the statutory schemes, the issue comes down to whether a State constitutionally may exercise its police power respecting maritime activities concurrently with the Federal Government.
27
The main barriers found by the District Court to the Florida Act are Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, and its progeny. Jensen held that a maritime worker on a vessel in navigable waters could not constitutionally receive an award under New York's workmen's compensation law, because the remedy in admiralty was exclusive. Later, in Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, after Congress expressly allowed the States in such cases to grant a remedy, the Court held that Congress had no such power.
28
But those decisions have been limited by subsequent holdings of this Court. As stated by Mr. Justice Frankfurter in Romero v. International Terminal Operating Co., 358 U.S. 354, 373, 79 S.Ct. 468, 480, 3 L.Ed. 368, Jensen and its progeny mark isolated instances where 'state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system.' Mr. Justice Frankfurter added, however: 'But this limitation still leaves the States a wide scope. State-created liens are enforced in admiralty. State remedies for wrongful death and state statutes providing for the survival of actions, both historically absent from the relief offered by the admiralty, have been upheld when applied to maritime causes of action. Federal courts have enforced these statutes. State rules for the partition and sale of ships, state laws governing the specific performance of arbitration agreements, state laws regulating the effect of a breach of warranty under contracts of maritime insurance—all these laws and others have been accepted as rules of decision in admiralty cases, even, at times, when they conflicted with a rule of maritime law which did not require uniformity.' Id., at 373 374, 79 S.Ct., at 480—481.
29
Moreover, in Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903, we gave our approval to The City of Norwalk, D.C., 55 F. 98, written by Judge Addison Brown, holding that a State may modify or supplement maritime law even by creating a liability which a court of admiralty would recognize and enforce, provided the state action is not hostile 'to the characteristic features of the maritime law or inconsistent with federal legislation,' 312 U.S., at 388, 61 S.Ct., at 691. Mr. Chief Justice Hughes after citing Steamboat Co. v. Chase, 16 Wall. 522, 21 L.Ed. 369, and Sherlock v. Alling, 93 U.S. 99, 23 L.Ed. 819, went on to hold that, while no suit for wrongful death would lie in the federal courts under general maritime law, state statutes giving damages in such cases were valid. He said, 'The grounds of objection to the admiralty jurisdiction in enforcing liability for wrongful death were similar to those urged here; that is, that the Constitution presupposes a body of maritime law, that this law, as a matter of interstate and international concern, requires harmony in its administration and cannot be subject to defeat or impairment by the diverse legislation of the States, and hence that Congress alone can make any needed changes in the general rules of the maritime law. But these contentions proved unavailing and the principle was maintained that a State, in the exercise of its police power, may establish rules applicable on land and water within its limits, even though these rules incidentally affect maritime affairs, provided that the state action 'does not contravene any acts of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations.' It was decided that the state legislation encountered none of these objections. The many instances in which state action had created new rights, recognized and enforced in admiralty, were set forth in The City of Norwalk, and reference was also made to the numerous local regulations under state authority concerning the navigation of rivers and harbors. There was the further pertinent observation that the maritime law was not a complete and perfect system and that in all maritime countries there is a considerable body of municipal law that underlies the maritime law as the basis of its administration. These views find abundant support in the history of the maritime law and in the decisions of this Court.' 312 U.S., at 389—390, 61 S.Ct., at 692.
30
Mr. Chief Justice Hughes added that our decisions as of 1941, the date of Just v. Chambers, gave broad 'recognition of the authority of the States to create rights and liabilities with respect to conduct within their borders, when the state action does not run counter to federal laws or the essential features of an exclusive federal jurisdiction.' Id., at 391, 61 S.Ct., at 693.
31
Historically, damages to the shore or to shore facilities were not cognizable in admiralty. See, e.g., The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Martin v. West, 222 U.S. 191, 32 S.Ct. 42, 56 L.Ed. 159. Mr. Justice Story wrote in 1813, 'In regard to torts I have always understood, that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never (I believe) deliberately claimed to have any jurisdiction over torts, except such as are maritime torts, that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide.'9 Thomas v. Lane, 23 Fed.Cas. 957, 960, No. 13,902 (CC Me.).
32
On June 19, 1948, Congress enacted the Admiralty Extension Act, 46 U.S.C. § 740.10 The Court considered the Act in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383. In that case, the Court held that the Admiralty Extension Act did not apply to a longshoreman performing loading and unloading services on the dock. The longshoreman was relegated to his remedy under the state workmen's compensation law. Id., at 215, 92 S.Ct., at 426. The Court said, 'At least in the absence of explicit congressional authorization, we shall not extend the historic boundaries of the maritime law.' Id., at 214, 92 S.Ct., at 426.11
33
The Admiralty Extension Act has survived constitutional attack in the lower federal courts12 and was applied without question by this Court in Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297. The Court recognized in Victory Carriers, however, that the Act may 'intrude on an area that has heretofore been reserved for state law.' Id., 404 U.S., at 212, 92 S.Ct., at 425. It cautioned that under these circumstances, 'we should proceed with caution in construing constitutional and statutory provisions dealing with the jurisdiction of the federal courts.' Ibid. While Congress has extended admiralty jurisdiction beyond the boundaries contemplated by the framers, it hardly follows from the constitutionality of that extension that we must sanctify the federal courts with exclusive jurisdiction to the exclusion of powers traditionally within the competence of the States. One can read the history of the Admiralty Extension Act without finding any clear indication that Congress intended that sea-to-shore injuries be exclusively triable in the federal courts.13
34
Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law. Thus in Kelly v. Washington ex rel. Foso Co., 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3, it appeared that, while Congress had provided a comprehensive system of inspection of vessels on navigable waters, id., at 4, 58 S.Ct., at 89, the State of Washington also had a comprehensive code of inspection. Some of those state standards conflicted with the federal requirements, id., at 14—15, 58 S.Ct., at 94; but those provisions of the Washington law relating to safety and seaworthiness were not in conflict with the federal law. So the question was whether the absence of congressional action and the need for uniformity of regulation barred state action. Mr. Chief Justice Hughes, writing for the Court, ruled in the negative, saying:
35
'A vessel which is actually unsafe and unseaworthy in the primary and commonly understood sense is not within the protection of that principle. The state may treat it as it may treat a diseased animal or unwholesome food. In such a matter, the state may protect its people without waiting for federal action providing the state action does not come into conflict with federal rules. If, however, the state goes farther and attempts to impose particular standards as to structure, design, equipment, and operation, which in the judgment of its authorities may be desirable but pass beyond what is plainly essential to safety and seaworthiness, the state will encounter the principle that such requirements, the principle that such requirements, action of Congress which can establish a uniform rule. Whether the state in a particular matter goes too far must be left to be determined when the precise question arises.' Id., at 15, 58 S.Ct., at 94.
36
That decision was rendered before the Admiralty Extension Act was passed.
37
Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852, Ships cruising navigable waters Ships Cruising navigable waters and inspected and licensed under federal acts were charged with violating Detroit's Smoke Abatement Code. The company and its agents were, indeed, criminally charged with violating that Code. The Court in sustaining the state prosecution said:
38
'The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city's inhabitants. Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power. In the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government.' Id., at 442, 80 S.Ct., at 815.
39
The Court reasoned that there was room for local control since federal inspection was 'limited to affording protection from the perils of maritime navigation,' while the Detroit ordinance was aimed at 'the elimination of air pollution to protect the health and enhance the cleanliness of the local community.' Id., at 445, 80 S.Ct., at 817. The Court, in reviewing prior decisions, noted that a federally licensed vessel was not exempt (1) 'from local pilotage laws'; (2) 'local quarantine laws'; (3) 'local safety inspections'; or (4) 'local regulation of wharves and docks.' Id., at 447, 80 S.Ct., at 818.
40
It follows, a fortiori, that sea-to-shore pollution historically within the reach of the police power of the States—is not silently taken away from the States by the Admiralty Extension Act, which does not purport to supply the exclusive remedy.
41
As discussed above, we cannot say with certainty at this stage that the Florida Act conflicts with any federal Act. We have only the question whether the waiver of pre-emption by Congress in § 1161(o)(2) concerning the imposition by a State of 'any requirement or liability' is valid.
42
It is valid unless the rule of Jensen and Knickerbocker Ice is to engulf everything that Congress chose to call 'admiralty,' pre-empting state action. Jensen and Knickerbocker Ice have been confined to their facts, viz., to suits relating to the relationship or vessels, plying the high seas and our navigable waters, and to their crews. The fact that a whole system of liabilities was established on the basis of those two cases, led us years ago to establish the 'twilight zone' where state regulation was permissible. See Davis v. Department of Labor and Industries of Washington, 317 U.S. 249, 252—253, 63 S.Ct. 225, 227, 87 L.Ed. 246. Where there was a hearing by a federal agency and a conclusion by that agency that the case fell within the federal jurisdiction, we made its findings final. Ibid. Where there were no such findings, we presumed state law, in terms applicable, was constitutional. 317 U.S., at 257—258, 63 S.Ct., at 229. That is the way the 'twilight zone' has been defined.
43
Jensen thus has vitality left. But we decline to move the Jensen line of cases shoreward to oust state law from any situations involving shoreside injuries by ships on navigable waters. The Admiralty Extension Act does not pre-empt state law in those situations. See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371.
44
The judgment below is reversed.
45
Judgment reversed.
1
At the hearing on plaintiffs-appellees' application for a temporary restraining order, it was indicated that none of the plaintiffs had attempted to comply with the Florida Act. Shipowners and operators had threatened to divert their vessels from Florida ports.
1a
The Water Quality Improvement Act of 1970 was amended after this case was docketed by the Federal Water Pollution this case, to establish any 'requirement 86 Stat. 816, 33 U.S.C. §§ 1251—1376. Since the sections of the 1970 Act cited in the opinion have not been substantially changed, references to the 1970 Act have been retained.
2
H.R.Conf.Rep.No.91—940, p. 42; U.S.Code Cong. & Admin.News 1970, pp. 2691, 2727.
3
Those required to obtain a license are those who operate a terminal facility. § 6(1). But licenses to terminal facilities include 'vessels used to transport oil, petroleum products, their by-products, and other pollutants between the facility and vessels within state waters.' § 6(4).
4
Section 12 also provides that the pilot or the master of any vessel or person in charge of any licensee's terminal facility who fails 'to give immediate notification of a discharge to the port manager and the nearest coast guard station' may be imprisoned for not more than two years or fined not more than $10,000.
5
As to the damages of oil spills to ecological factors it was recently said in 10 Harv.Int'l L.J. 316, 321—323 (1969):
'Some damage to marine lief is obvious in the wake of a disaster such as the one which befell the 'Torrey Canyon.' Surface feeding fishes die when they swim into floating oil, and even slight, non-fatal contact may render their flesh inedible. Shellfish, among others, are also vulnerable to oil pollution. When the tanker 'P.W. Thirtle' grounded off Newport, Rhode Island, 31,000 gallons of heavy black oil were discharged from her tanks in an effort to refloat the ship; the result of this was the virtual destruction of the entire oyster fishery of Narragansett Bay. The most serious consequences of oil pollution, however, may not be those which are immediately obvious.
'According to Dr. Erwin S. Iversen, a marine biologist:
"The greatest problem may be the toxic effects on the intertidal animals that serve as food for the other more important fishes. . .. I don't think the effect is merely that of killing large populations of commercial fishes. Worse than that, it interrupts the so-called food chain.'
'There have been few specific studies of the effect that oil accumulation has on this food chain. One study, conducted by Dr. Paul Galtsoff of the United States Fish and Wildlife Service, found that the diatoms on which oysters feed will not grow where there is even a slight trace of oil on the water. The effect of oil on such microscopic marine plant life may be of great importance, because it is estimated that it takes as much as ten pounds of plant matter to produce one pound of fish.
'Large scale oil pollution, such as that which occurred when the 'Torrey Canyon' ran into the Seven Stones Reef, results in huge losses of water birds. Aside from humane and aesthetic considerations, these birds play a vital role in the ecology of the seashore, a role which profoundly affects the fishing industry. The uncertainty as to the actual extent of the damage done to marine life by oil pollution makes it difficult to estimate the economic effect of such damage, but the importance of the fishing industry within the world's economy is not in doubt and is steadily increasing. Between 1958 and 1963, for example, there was a 42% rise in the world catch. Because of the increasing importance of seafood protein, future damage to marine life will have progressively greater economic consequences.
'Perhaps the most noticeable damage caused by oil pollution is the fouling of recreational beaches and shorefront property. One-half million tons of oil are washed ashore each year, rendering beaches unfit for swimming and filling the air with unpleasant odors. Besides the annoyance that this causes a vacationing public seeking relief from urban life, economic loss may be considerable. It is estimated, for example, that a serious oil spill off Long Island during the summer months would cost resort and beach operators thirty million dollars. Oil spills also create navigational and fire hazards in harbors, ports and marinas.' (Footnotes omitted.)
6
Brief for Appellants 25.
7
10 Harv.Int'l L.J., at 317—318 (footnotes omitted).
8
Polluting Incidents In and Around U.S. Waters, Calendar Year 1971, Environmental Protection, Commandant U.S. Coast Guard.
9
A statement we recently quoted with approval in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S.Ct. 493, 497, 34 L.Ed.2d 454 and Victory Carriers, Inc. v. Law, 404 U.S. 202, 205, 92 S.Ct. 418, 421, 30 L.Ed.2d 383.
10
It provides in relevant part. 'The advmiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.'
11
The Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., recently was amended to cover employees working on shoreside areas customarily used by an employer in loading, unloading, repairing, or building a vessel. Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub.L. 92—576, § 2, 86 Stat. 1251.
12
See Victory Carriers, supra, at 209 n. 9, 92 S.Ct., at 423.
13
See H.R.Rep.No.1523, 80th Cong., 2d Sess.; S.Rep.No. 1593, 80th Cong., 2d Sess., U.S.Code Cong. & Admin.News 1948, p. 1898.
| 78
|
411 U.S. 279
93 S.Ct. 1614
36 L.Ed.2d 251
EMPLOYEES OF the DEPARTMENT OF PUBLIC HEALTH & WELFARE, State of MISSOURI, et al., Petitioners,v.DEPARTMENT OF PUBLIC HEALTH & WELFARE, State of MISSOURI, et al.
No. 71—1021.
Argued Jan. 15, 1973.
Decided April 18, 1973.
Syllabus
Petitioners, employees of state health facilities, brought suit for overtime pay due them under § 16(b) of the Fair Labor Standards Act (FLSA) and damages, which the District Court dismissed as being an unconsented action against the State of Missouri and thus barred by the Eleventh Amendment. The Court of Appeals affirmed. Held: Although amendments to the FLSA in 1966 extended statutory coverage to state employees, the legislative history discloses no congressional purpose to deprive a State of its constitutional immunity to suit in federal forum by employees of its nonprofit institutions, particularly since Congress made no change in § 16(b), which makes no reference to suits by employees against the State. Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233, distinguished. The amendments' extension of coverage to state employees is not without meaning as the Secretary of Labor is thereby enabled to bring remedial action on their behalf under § 17 of the FLSA. Pp. 281—287.
452 F.2d 820, affirmed.
A. L. Zwerdling, Detroit Mich., for petitioners.
Lawrence G. Wallace, washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Charles Allen Blackmar for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The Eleventh Amendment, adopted in 1795, and formally ratified in 1798, provides:
2
'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'
3
The Eleventh Amendment is the basis of a motion by Missouri to dismiss a complaint filed by employees of state agencies of that State, the Department of Public Health and Welfare, and two of its divisions, the Division of Mental Disease and the Division of Health, and various officials of the Department and of the two Divisions.
4
Although the Eleventh Amendment is not literally applicable since petitioners who brought suit are citizens of Missouri, it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842; Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280; Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233;1 C. Jacobs, The Eleventh Amendment and Sovereign Immunity 109—110 (1972).
5
The employees seek overtime compensation due them under § 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 216(b), and an equal amount as liquidated damages and attorneys' fees. The District Court dismissed the complaint. The Court of Appeals, sitting in a panel of three, reversed, one judge dissenting. No. 20,204, Apr. 2, 1971 (not reported). On the filing of a petition for rehearing, the Court of Appeals sat en banc and by a closely divided vote set aside the panel decision and affirmed the judgment of the District Court. 452 F.2d 820. The case is here on a petition for a writ of certiorari which we granted. 405 U.S. 1016, 92 S.Ct. 1294, 31 L.Ed.2d 478.
6
The panel of three thought the present case was governed by Parden v. Terminal R. Co., supra. The court sitting en banc thought Parden was distinguishable. That is the central issue argued in the present case.
7
Parden involved a state-owned railroad operating in interstate commerce; and the claims were those of employees under the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq. The term carrier for purposes of that Act was defined by Congress as including '(e)very common carrier by railroad while engaging in commerce between any of the several States.' Id., § 51. The Court concluded that Congress designed to bring stateowned, as well as privately owned, carriers within that definition and that it was empowered to do so by the Commerce Clause. The State's operation of its railroad in interstate commerce, it held, was in subordination to the power of Congress to regulate interstate commerce and application of the FELA to a State in those circumstances was not precluded by sovereign immunity. 377 U.S., at 191—193, 84 S.Ct., at 1212—1213. The Parden case in final analysis turned on the question of waiver, a majority of the Court holding that it was a federal question since any consent of the State to suit did not arise from an act 'wholly within its own sphere of authority' but in the area of commerce, which is subject to pervasive federal regulation. Id., at 196, 84 S.Ct. at 1215.
8
It is said that the Fair Labor Standards Act (FLSA) stands on the same foundation, reflecting the power of Congress to regulate conditions of work of those producing goods for commerce, United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, and those whose activities are necessary to the rpoduction of goods for commerce. Kirschbaum Co. v. Walling, 316 U.S. 517, 524, 62 S.Ct. 1116, 1120, 86 L.Ed. 1638. By § 3(d) of the Act, 'employer' was first defined to exclude the United states or any State or political subdivision of a State. But in 1966 there was added to § 3(d) an 'except' clause which reads 'except with respect to employees of a State, or a political subdivision thereof, employed (1) in a hospital, institution, or school referred to in the last sentence of subsection (r) or this section . . ..' Section 3(r) was amended at the same time to include: 'The operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, . . . elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit' . . ..' Identical language was also added in 1966 to section 3(s), which defines '(e)nterprise engaged in commerce or in the production of goods for commerce.'
9
By reason of the literal language of the present Act, Missouri and the departments joined as defendants are constitutionally covered by the Act, as the Court held in Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020. The question is whether Congress has brought the States to heel, in the sense of lifting their immunity from suit in a federal court—a question we reserved in Maryland v. Wirtz, supra, at 199—201, 88 S.Ct., at 2025—2026.
10
There is no doubt that Congress desired to bring under the Act employees of hospitals and related institutions. S.Rep. No. 1487, 89th Cong., 2d Sess., 8, 22—23; H.R.Rep. No. 1366, 89th Cong., 2d Sess., 3, 11—12, 15, 16—17, 18, U.S.Code Cong. & Admin.News 1966, p. 3002. But § 16(b) remained the same. Prior to 1966 and afterward, it read in relevant part:
11
'Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction . . ..' The history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a nonconsenting State. Parden involved the railroad business which Alabama operated 'for profit.' 377 U.S., at 185, 84 S.Ct., at 1209. Parden was in the area where private persons and corporations normally ran the enterprise.
12
State mental hospitals, state cancer hospitals, and training schools for delinquent girls which are not operated for profit are not proprietary. 'Before 1810, only a few eastern-seaboard states had incorporated private institutions to care for the mentally ill, and Virginia alone had established a public asylum.' D. Rothman, The Discovery of the Asylum 130 (1971). But, as Rothman relates, after that the public sector took over.2
13
Where employees in state institutions not conducted for profit have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress, acting responsibly, would not be presumed to take such action silently. The dramatic circumstances of the Parden case, which involved a rather isolated state activity can be put to one side. We deal here with problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State's governmental hierarchy. Those who follow the teachings of Kirschbaum v. Walling, supra, and see its manifold applications will appreciate how pervasive such a new federal scheme of regulation would be.
14
But we have found not a word in the history of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts. The Parden opinion did state that it would be 'surprising' to learn that Congress made state railroads liable to employees under the FELA, yet provided 'no means by which that liability may be enforced.' 377 U.S., at 197, 84 S.Ct., at 1215. It would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without changing the old § 16(b) under which she could not be sued or indicating in some way by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution. Thus, we cannot conclude that Congress conditioned the operation of these facilities on the forfeiture of immunity from suit in a federal forum.
15
By holding that Congress did not lift the sovereign immunity of the States under the FLSA, we do not make the extension of coverage to state employees meaningless. Cf. Parden v. Terminal R. Co., supra, at 190, 84 S.Ct. at 1211. Section 16(c) gives the Secretary of Labor authority to bring suit for unpaid minimum wages or unpaid overtime compensation under the FLSA. Once the Secretary acts under § 16(c), the right of any employee or employees to sue under § 16(b) terminates. Section 17 gives the Secretary power to seek to enjoin violations of the Act and to obtain restitution in behalf of employees. Sections 16 and 17 suggest that since private enforcement of the Act was not a paramount objective, disallowance of suits by state employees and remitting them to relief through the Secretary of Labor may explain why Congress was silent as to waiver of sovereign immunity of the States. For suits by the United States against a State are not barred by the Constitution. See United States v. Mississippi, 380 U.S. 128, 140—141, 85 S.Ct. 808, 814—815, 13 L.Ed.2d 717. In this connection, it is not amiss to note that § 16(b) allows recovery by employees, not only of the amount of unpaid wages but of an equal amount as liquidated damages and attorneys' fees. It is one thing, as in Parden, to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly. The policy of the Act so far as the States are concerned is wholly served by allowing the delicate federal-state relationship to be managed through the Secretary of Labor.
16
The Solicitor General, as amicus curiae, argues that Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842, should not be construed to apply to the present case, his theory being that in Hans the suit was one to collect on coupons attaching to state bonds, while in the instant case the suit is a cause of action created by Congress and contained in § 16(b) of the Act. It is true that, as the Court said in Parden, 'the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.' 377 U.S., at 191, 84 S.Ct., at 1212. But we decline to extend Parden to cover every exercise by Congress of its commerce power, where the purpose of Congress to give force to the Supremacy Clause by lifting the sovereignty of the States and putting the States on the same footing as other employers is no clear.
17
We are told that the FLSA in 1971 covered 45.4 million employees and nearly 2 million establishments, and 2.7 million of these employees and 118,000 of these establishments were in state or local government employment. We are also told that less than 4% of these establishments can be investigated by the Secretary of Labor each year. The argument is that if we deny this direct federal court remedy, we in effect are reconizing that there is a right without any remedy. Section 16(b), however, authorizes employee suits in 'any court of competent jurisdiction.' Arguably, that permits suit in the Missouri courts but that is a question we need not reach. We are concerned only with the problem of this Act and the constitutional constraints on 'the judicial power' of the United States.
18
Affirmed.
19
Mr. Justice MARSHALL, with whom Mr. Justice STEWART joins, concurring in the result.
20
I believe that proper analysis of whether these employees may sue their state employer in federal court for overtime compensation owed to them under the Fair Labor Standards Act1 requires consideration of what I view as two distinct questions: (1) did Congress, in extending the protection of the FLSA to state employees such as these petitioners, effectively lift the State's protective veil of sovereign immunity; and (2) even if Congress did lift the State's general immunity, is the exercise of federal judicial power barred in the context of this case in light of Art. III and the Eleventh Amendment? Portions of the Court's opinion convey the impression that these questions are but a single issue.2 I do not agree.
21
Sovereign immunity is a common-law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence.3 While the present-day immunity of a State from suit by its own citizens or by citizens of another State in the absence of consent obviously cannot be justified on the common-law rationale that 'the King can do no wrong,' the principle has been said to be applicable to the States because of '(t)he inherent nature of sovereignty,' Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 875, 88 L.Ed. 1121 (1944). See also Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907).
22
The common-law doctrine of sovereign immunity in its original form stood as an absolute bar to suit against a State by one of its citizens, absent consent. But that doctrine was modified pro tanto in 1788 to the extent that the States relinquished their sovereignty to the Federal Government. At the time our Union was formed, the States, for the good of the whole, gave certain powers to Congress, including power to regulate commerce, and by so doing, they simultaneously subjected to congressional control that portion of their pre-existing common-law sovereignty which conflicted with those supreme powers given over to Congress. This is one of the essential lessons of the decision in Parden v. Terminal R. Co., 377 U.S. 184, 192, 84 S.Ct. 1207, 1212, 12 L.Ed.2d 233 (1964), where the Court recognized that '(b)y empowering Congress to regulate commerce . . . the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation.' Congress having validly exercised its power under the Commerce Clause to extend the protection of the FLSA to state employees such as petitioners, see Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), the State may not defeat this suit by retreating behind its commonlaw shield of sovereign immunity.
23
Insofar as the Court may now be suggesting that the Congress has not effectively lifted the State's immunity from private suit in the context of the FLSA, I cannot agree. In the 1966 amendments, § 3(d), 29 U.S.C. § 203(d), which defines 'employer' for the purposes of the FLSA was altered to cover expressly 'employees of a State, or a political subdivision thereof, employed . . . in a hospital, institution, or school . . ..'4 In the face of such clear language, I find it impossible to believe that Congress did not intend to extend the full benefit of the provisions of the FLSA to these state employees.5 It is true—as the Court points out—that in 1966 Congress did not amend § 16(b) of the Act, 29 U.S.C. § 216(b), which provides for private suit by the 'employee' against the 'employer' to recover unpaid compensation. But this is readily explained by the fact that no amendment to the language of § 16(b) was necessary to make the desired extension to state employees; the alternation of the definition of 'employer' in § 3(d) clearly sufficed to achieve Congress' purpose6 and to express its will. Indeed, to suggest that § 16(b) may not provide for suit by state employees, despite the alteration of § 3(d) to include state employers, ignores the basic canon of statutory construction that different provisions of the same statute normally should be construed consistently with one another. See, e.g., Clark v. Uebersee Finanz-Korporation, A.G., 332 U.S. 480, 488, 68 S.Ct. 174, 177, 92 L.Ed. 88 (1947); Markham v. Cabell, 326 U.S. 404, 410 411, 66 S.Ct. 193, 196—197, 90 L.Ed. 165 (1945); Ex parte Public National Bank, 278 U.S. 101, 104, 49 S.Ct. 43, 44, 73 L.Ed. 202 (1928).
24
There remains, though, the question, where may these petitioners enforce against the State their congressionally created rights under the FLSA? Section 16(b) authorizes employee suits 'in any court of competent jurisdiction.' Has Congress thus successfully compelled the State in this case to submit to employee suits in federal court?
The Eleventh Amendment provides:
25
'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'
26
On its face the Amendment, of course, makes no mention of a citizen's attempt to sue his own State in federal court, the situation with which we deal here. Nevertheless, I believe it clear that the judicial power of the United States does not extend to suits such as this, absent consent by the State to the exercise of such power. This question was first considered in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), where a federal court action was brought against a State by one of its citizens who claimed that it had unconstitutionally repudicated certain debt obligations in violation of the Contract Clause of Art. I, § 10. Mr. Justice Bradley, speaking for the Court, observed that the suit was 'an attempt to strain the Constitution and the law to a construction never imagined or dreamed of,' and he then asked:
27
'Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own state in the federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled?' Id., at 15, 10 S.Ct., at 507.
28
The Court rejected such a suggestion in Hans, and it has continued to do so ever since. See Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Fitts v. McGhee, 172 U.S. 516, 524—525, 19 S.Ct. 269, 272—273, 43 L.Ed. 535 (1899); North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849 (1890).
29
The root of the constitutional impediment to the exercise of the federal judicial power in a case such as this is not the Eleventh Amendment but Art. III of our Constitution. Following the decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), in which this Court held that federal jurisdiction encompassed a suit brought against a nonconsenting State by citizens of another State, the Eleventh Amendment was introduced to clarify the intent of the Framers concerning the reach of the federal judicial power. See, e.g., Hans v. Louisiana, 134 U.S., at 11—14, 10 S.Ct., at 505 507. It had been widely understood prior to ratification of the Constitution that the provision in Art. III, § 2, concerning 'Controversies . . . between a State and Citizens of another State' would not provide a mechanism for making States unwilling defendants in federal court.7 The Court in Chisholm, however, considered the plain meaning of the constitutional provision to be controlling. The Eleventh Amendment served effectively to reverse the particular holding in Chisholm and, more generally, to restore the original understanding, see, e.g., Hans v. Louisiana, supra, at 11—15, 10 S.Ct., at 505—507. Thus, despite the narrowness of the language of the Amendment, its spirit has consistently guided this Court in interpreting the reach of the federal judicial power generally, and 'it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification,' Ex parte New York, No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921); see Smith v. Reeves, 178 U.S. 436, 447—449, 20 S.Ct. 919, 923—924, 44 L.Ed. 1140 (1900).8
30
This limitation upon the judicial power is, without question, a reflection of concern for the sovereignty of the States, but in a particularly limited context. The issue is not the general immunity of the States from private suit a question of the common law—but merely the susceptibility of the States to suit before federal tribunals. Because of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate in a case such as this.9
31
At the same time, it is well established that a State may consent to federal suit and submit to the exercise of federal jurisdiction over it.10 See, e.g., Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959); Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284, 26 S.Ct. 252, 256, 50 L.Ed. 477 (1906); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882, 27 L.Ed. 780 (1833). The issue, then, is whether the State has consented to this suit by its employees under the FLSA.
32
In Parden v. Terminal R. Co., supra, this Court found that Alabama which had undertaken the operation of an interstate railroad had consented to suits brought in federal court by its railroad employees under the Federal Employers' Liability Act, 45 U.S.C. §§ 51—60. As to the State's suability in federal court, the Court reasoned that 'Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act.' 377 U.S., at 192, 84 S.Ct., at 1213. For me at least, the concept of implied consent or waiver relied upon in Parden approaches, on the facts of that case, the outer limit of the sort of voluntary choice which we generally associate with the concept of constitutional waiver. Cf. D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185—186, 92 S.Ct. 775, 782—783, 31 L.Ed.2d 124 (1972); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Certainly, the concept cannot be stretched sufficiently further to encompass this case. Here the State was fully engaged in the operation of the affected hospitals and schools at the time of the 1966 amendments. To suggest that the State had the choice of either ceasing operation of these vital public services or 'consenting' to federal suit suffices, I believe, to demonstrate that the State had no true choice at all and thereby that the State did not voluntarily consent to the exercise of federal jurisdiction in this case. Cf. Marchetti v. United States, 390 U.S. 39, 51—52, 88 S.Ct. 697, 704 705, 19 L.Ed.2d 889 (1968). In Parden, Alabama entered the interstate railroad business with at least legal notice of an operator's responsibilities and liability under the FELA to suit in federal court, and it could have chosen not to enter at all if it considered that liability too onerous or offensive. It obviously is a far different thing to say that a State must give up established facilities, services, and programs or else consent to federal suit. Thus, I conclude that the State has not voluntarily consented to the exercise of federal judicial power over it in the context of this case.11
33
This is not to say, however, that petitioners are without a forum in which personally to seek redress against the State.12 Section 16(b)'s authorization for employee suits to be brought 'in any court of competent jurisdiction' includes state as well as federal courts. See Iowa Beef Packers, Inc. v. Thompson, 405 U.S. 228, 92 S.Ct. 859, 31 L.Ed.2d 165 (1972). As I have already noted, Congress has the power to lift the State's common-law immunity from suit insofar as that immunity conflicts with the regulatory authority conferred upon it by the Commerce Clause. Congress has done so with respect to these state employees in its 1966 amendments to the FLSA; by those amendments, Congress created in these employees a federal right to recover from the state compensation owing under the Act. While constitutional limitations upon the federal judicial power bar a federal court action by these employees to enforce their rights, the courts of the State nevertheless have an independent constitutional obligation to entertain employee actions to enforce those rights. See Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947). See also General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754 (1908). For Missouri has courts of general jurisdiction competent to hear suits of this character,13 and the judges of those courts are co-equal partners with the members of the federal judiciary in the enforcement of federal law and the Federal Constitution, see Martin v. Hunter's Lessee, 1 Wheat. 304, 339—340, 4 L.Ed. 97 (1816). Thus, since federal law stands as the supreme law of the land, the State's courts are obliged to enforce it, even if it conflicts with state policy, see Testa v. Katt, supra, 330 U.S., at 392—394, 67 S.Ct. at 813—815; Second Employers' Liability Cases, 223 U.S. 1, 57—58, 32 S.Ct. 169, 178, 56 L.Ed. 327 (1912).
34
I see our decision today, then as nothing more than a regulation of the forum in which these petitioners may seek a remedy for asserted denial of their rights under the FLSA. At first blush, it may seem hypertechnical to say that these petitioners are entitled personally to enforce their federal rights against the State in a state forum rather than in a federal forum. If that be so, I think it is a hypertechnicality that has long been understood to be a part of the tension inherent in our system of federalism.
35
Mr. Justice BRENNAN, dissenting.
36
I dissent. Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), compels reversal of the judgment of the Court of Appeals in this case and neither the Court's opinion nor my Brother MARSHALL's opinion concurring in the result is persuasive that it does not.
37
* Essentially, the Court purports only to distinguish Parden. There is, of course, the distinction that the lawsuits were brought under different statutes. The lawsuit in Parden was brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51—60, against the State of Alabama, owner and operator of a railroad engaged in interstate commerce, by citizens of Alabama in the employ of the railroad. The suit in the present case was brought under § 16(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201—219, as amended in 1966, Pub.L. 89—601, 80 Stat. 830, against the State of Missouri, operator of hospitals and other institutions covered by that Act, by citizens of Missouri employed in such institutions. But the lawsuits have in common that each is an action for damages in federal court brought against a State by citizens of the State in its employ under the authority of a regulatory statute founded on the Commerce Clause. Parden held that a federal court determination of such suits cannot be precluded by the doctrine of sovereign immunity because the States surrendered their sovereignty to that extent when they granted Congress the power to regulate commerce. 377 U.S. at 191, 84 S.Ct. at 1212. That holding fits precisely this FLSA lawsuit and compels reversal of the judgment of the Court of Appeals. I turn, then, to the reasons for may disagreement with the arguments upon which the Court rests its contrary conclusion.
38
Parden presented a question of first impression, namely, whether a State's operation of a congressionally regulated enterprise in interstate commerce has the consequence, without more, that the State becomes subject to a congressionally imposed condition of amenability to suit, or whether that consequence should follow only when Congress has expressly declared that any State which undertakes regulable conduct will be deemed thereby to have waived its immunity. Parden held that by operation the railroad, Alabama became amenable to suits under the FELA. Parden is distinguished on the ground that, whatever may have been the case of a suit under the FELA in this suit under the FLSA the State may assert the defense of sovereign immunity unless Congress has foreclosed its assertion by clear language in the statute. But that very argument was rejected in Parden when advanced by the dissenters there as the principle that should control in all these cases. For the Parden dissent also argued that the immunity had not been surrendered when the States formed the Constitution and should be disallowed '(o)nly when Congress has clearly considered the problem and expressly declared that any State which undertakes given regulable conduct will be deemed thereby to have waived its immunity . . ..' 377 U.S., at 198—199, 84 S.Ct., at 1216. In rejecting that argument, Parden held that the States had surrendered the protection of sovereign immunity in federal court suits authorized by Congress pursuant to the States' grant to Congress of the commerce power. Thus, under Parden, there can exist no basis for today's inquiry 'whether Congress has brought the States to heel, in the sense of lifting their immunity from suit in a federal court,' ante, at 283, since Parden held that because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver. There can be room for such inquiry only upon acceptance of the rejected premise underlying the Parden dissent, namely, that the States in forming the Union did not surrender their immunity as such to that extent, but only subjected their immunity to congressional control. The Court's rejection of that premise is explicit in Parden's holding that:
39
'By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit.' 377 U.S., at 192, 84 S.Ct., at 1213.
40
In other words, the Parden holding, although perhaps not unambiguously phrased, was that when Congress conditions engagement in a regulated interstate enterprise upon amenability to suit, States that engage in such enterprise do not have the protection of sovereign immunity in suits in federal court arising from their engagement because by surrendering their immunity to that extent when they granted Congress the commerce power, the States in effect agreed that Congress might subject them to suits in federal court arising out of their engagement in enterprises regulated by Congress in statutes such as the FELA and the FLSA.
41
However, even on the Court's premise that the grant to Congress of the commerce power did no more than empower Congress expressly to disallow the immunity, Congress must be taken to have disallowed it in § 16(b) suits since Congress plainly stated its intention in enacting the 1966 amendments to put the States 'on the same footing as other employers' in such suits. Since Parden had been decided two years before the amendments were adopted, Congress understandably had no reason expressly to declare the disallowance since no immunity existed to be disallowed. But Congress' intention to make the States amenable to § 16(b) suits clearly appears in the legislative history of the amendments.1 Indeed, this case is even more compelling than Parden on that score for the FELA contains no provision expressly including employees of public railroads under the Act but only a general provision making the FELA applicable to 'every' common carrier by railroad in interstate commerce. 377 U.S. at 187—188, 84 S.Ct. at 1210—1211. In contrast, Congress directly addressed the question whether fully to extend the FLSA, including the provision of § 16(b) to the public employees of the defined public institutions: the 1966 amendments thus enact a considered congressional decision to extend the benefits of the FLSA enjoyed by employees of private employers to employees of the States, or political subdivisions thereof, employed in the institutions covered by the amendments. I find no support whatever in either the text of the amendments or their legislative history for the arguments made by the Court for its contrary conclusion.
42
First, the Court observes that § 16(b) was left undisturbed when the amendments were adopted. But § 16(b) in terms applies to '(a)ny employer' covered by the Act. The extension of coverage to employers of public institutions made by the amendments was only the latest of several extensions made since § 16(b) first appeared in the FLSA as initially adopted. Obviously, the words '(a)ny employer' blanket all FLSA employers and it is only the sheerest sort of ritualism to suggest that Congress excluded the States from § 16(b) suits by not expressly referring to the States in § 16(b).
43
Second, the Court argues that Alabama's operation of the railroad in Parden was 'proprietary' in nature and Missouri's operation of hospitals and schools is 'governmental' in character. That distinction does not, however, support the conclusion that Congress failed with sufficient clarity to subject States to § 16(b) suits. Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), which sustained the constitutionality of the 1966 amendments, construed the reach of the amendments as covering public enterprises having both characteristics, and expressly held 'that the Federal Government, when acting within a delegated power, may override countervailing state interests whether these be described as 'governmental' or 'proprietary' in character.' Id., at 195, 88 S.Ct., at 2023. Indeed, the 1966 amendments themselves provide that the public enterprises, whether for profit or not for profit, 'shall be deemed to be activities performed for a business purpose.' 29 U.S.C. § 203(r).2
44
Third, the Court argues that the amendments may saddle the States with 'enormous fiscal burdens,' and that 'Congress, acting responsibly, would not be presumed to take such action silently.' Ante, at 284—285. Not only is the ancestry of the supposed presumption not divulged, but the Court offers no explanation how it overbears the clearly declared congressional purpose to subject States to § 16(b) suits. Moreover, this argument tracks the rejected argument of the dissent in Maryland v. Wirtz that the 1966 amendments 'overwhelm state fiscal policy' and therefore offend 'constitutional principles of federalism' in that they allow 'the National Government (to) devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment.' 392 U.S., at 203—205, 88 S.Ct., at 2028.
45
Fourth, the Court argues that the authority of the Secretary of Labor under § 16(c) to sue for unpaid minimum wages or unpaid overtime, and the Secretary's authority under § 17 to enjoin violations of the Act, 'suggest that since private enforcement of the Act was not a paramount objective (of Congress), disallowance of suits by state employees and remitting them to relief through the Secretary of Labor may explain why Congress was silent as to waiver of sovereign immunity of the States.' Ante, at 286. Again the Court ignores the evidence in the text and legislative history of the 1966 amendments that Congress not only was not 'silent' but spoke loudly its purpose to deny the States the protection of sovereign immunity. In any event, the premise that 'private enforcement of the Act was not a paramount objective' is wholly unfounded. For the Act's legislative history establishes conclusively that Congress placed great reliance upon the private lawsuit as an important tool for achieving the Act's objectives.3 To buttress this, the Solicitor General has emphasized in his amicus curiae brief that without the private lawsuit, the purpose of the 1966 amendments cannot be achieved, since the Secretary of Labor has neither staff nor resources to take on the enormous number of claims counted upon to be vindicated in private actions. In addition, if state law may preclude actions in state courts,4 the Solicitor General observes:
46
'The unavoidable result is that state employees of schools and hospitals may find themselves in precisely the same situation as the employees in Parden: if they are unable to sue their state employer under Section 16(b) they may be, for all practical purposes, left in the position of having a right without a remedy . . ..' Brief for United States as Amicus Curiae 23.5
The Court also argues:
47
'In this connection, it is not amiss to note that § 16(b) allows recovery by employees, not only of the amount of unpaid wages, but of an equal amount as liquidated damages and attorneys' fees. It is one thing, as in Parden, to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly. The policy of the Act so far as the States are concerned is wholly served by allowing the delicate federal-state relationship to be managed through the Secretary of Labor.' Ante, at 286.
48
Here, again, the Court relies upon the rejected argument of the dissent in Maryland v. Wirtz that the amendments unconstitutionally 'overwhelm state fiscal policy.' In any event, the purpose of double recovery has not the remotest connection with any design of Congress 'in pursuit of a harmonious federalism.' Actually its purpose is, in the Court's own words: 'as in Parden, to make a state employee whole.' That was made clear in Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707—708, 65 S.Ct. 895, 902, 89 L.Ed. 1296 (1945):
49
'We have previously held that the liquidated damage provision is not penal in its nature but constitutes compensation for the retention of a workman's pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages. Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682. It constitutes a Congressional recognition that failure to pay the statutory minimum on time may be so detrimental to maintenance of the minimum standard of living 'necessary for health, efficiency and general well-being of workers' and to the free flow of commerce, that double payment must be made in the event of delay in order to insure restoration of the worker to that minimum standard of well-being. Employees receiving less than the statutory minimum are not likely to have sufficient resources to maintain their well-being and efficiency until such sums are paid at a future date. The same policy which forbids waiver of the statutory minimum as necessary to the free flow of commerce requires that reparations to restore damage done by such failure to pay on time must be made to accomplish Congressional purposes.'
50
The answer to the argument that we should be reluctant to believe that Congress 'desired to treat the States so harshly' is that Congress extended the FLSA to the States to the extent of the 1966 amendments with full awareness that it was imposing a financial burden. As was cogently said by the Court of Appeals for the Tenth Circuit in Briggs v. Sagers, 424 F.2d 130, 133—134 (1970):
51
'The legislative history of the 1966 FLSA Amendments reflects that passage was to attain a 'minimum standard of living necessary for health, efficiency, and general well-being of workers . . . with all deliberate speed consistent with the policy of the act and the welfare of the American people.' (S.Rep.No.1487, 89th Cong., 2d Sess., 3 (1966).) This demonstrates to our satisfaction that Congress contemplated the financial burden that the Amendments could cause for the states. But the overall purpose of the FLSA tacitly suggests that the imposition of such strain is outweighed by the underlying policy of the Act.' (Emphasis added.)
52
Finally, the Court suggests that to deny the employees a federal forum will not leave them without a right of action for damages since § 13(b) authorizes suits in 'any court of competent jurisdiction,' and '(a)rguably, that permits suit in the Missouri courts.' Ante, at 287. I am puzzled how the Court reconciles the implication that petitioners might maintain their § 16(b) action in state court with its basic holding that only 'clear' expression by Congress can be taken as 'lifting the sovereignty of the States and putting the States on the same footing as other employers.' Ibid. But, in any event, plaintiffs in Parden might also have sued in state courts since FELA jurisdiction is 'concurrent with that of the courts of the several States,' 45 U.S.C. § 56. Yet, we held that this was irrelevant to the issue of amenability of States to FELA suits in federal court since 'Congress did not intend this language to limit the jurisdiction of the federal courts, but merely to provide an alternative forum in the state courts.' 377 U.S., at 190 n. 8, 84 S.Ct., at 1212.
II
53
Congress can, of course, readily repair the deficiency the Court finds today in the FLSA simply by amending the Act expressly to declare that a State that engages in an enterprise covered by the 1966 amendments shall be amenable to suit under § 16(b) in federal court. A greater reason for concern, therefore, is with the Court's and my Brother MARSHALL's treatment of the Eleventh Amendment and the doctrine of sovereign immunity as constitutional limitations upon the power of a federal court to entertain a suit brought against a State by one of its citizens. Since the Court's treatment differs from my Brother MARSHALL's in substantial respects, I shall discuss the two separately.
III
54
Parden regarded the Eleventh Amendment to be inapplicable to suits against a State brought by its own citizens in federal court and held that whether the FELA suit was maintainable turned on the availability to Alabama of the protection of the ancient doctrine of sovereign immunity. Yet the Court says, ante, at 284, that '(t)he history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a nonconsenting State.' Any intimation in that statement that we may infer from the Eleventh Amendment a 'constitutional immunity,' ante, at 285, protecting States from § 16(b) suits brought in federal court by its own citizens, must be rejected. I emphatically question, as I develop later, that sovereign immunity is a constitutional limitation upon the federal judicial power to entertain suits against States. Indeed, despite some assumptions in opinions of this Court, I know of no concrete evidence that the framers of the Amendment thought, let alone intended, that even the Amendment would ensconce the doctrine of sovereign immunity. On its face, the Amendment says nothing about sovereign immunity but enacts an express limitation upon federal judicial power. It is familiar history that it was adopted as the response to the Court's decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), that construed Art. III, § 2, of the Constitution—that '(t)he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . between a State and Citizens of another State'—to extend to a suit in federal court brought by individual citizens of South Carolina against the State of Georgia. An outraged outcry of financially embarrassed debtor States fearful of suits in federal court greeted that decision and resulted in the immediate proposal, and fairly prompt adoption, of the Eleventh Amendment. But all that the Amendment provides in terms is that '(t)he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State' (emphasis added). The literal wording is thus a flat prohibition against the federal judiciary's entertainment of suits against even a consenting State brought by citizens of another State or by aliens. In the very year the Amendment was formally ratified, 1798, this Court gave it that sweep in holding that 'the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state . . ..' Hollingsworth v. Virginia, 3 Dall. 378, 382, 1 L.Ed. 644 (1798) (emphasis added). It is true that cases since decided have said that federal courts do have power to entertain suits against consenting States. None has yet offered, however, a persuasively principled explanation for that conclusion in the face of the wording of the Amendment. Since the question whether the Eleventh Amendment constitutionalized sovereign immunity as to noncitizen suits should, therefore, be regarded as open, or at least ripe for further consideration, it is unfortunate that the Court, by referring to the Amendment in this case after Parden held it to be inapplicable, should lend support to the argument that the Amendment reflects the existence of a constitutional bar to suits against a State brought by its own citizens.
55
In a nation whose ultimate sovereign is the people and not government, a doctrine premised upon kingship—or, as has been suggested, 'on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends,' Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907)—is indefensible 'if it represents, as the Court has more than once intimated, an unfortunate excrescence of a political and legal order which no longer enlists support . . ..' C. Jacobs, The Eleventh Amendment and Sovereign Immunity 160 (1972). Mr. Justice Frankfurter reminded us:
56
'The course of decisions concerning sovereign immunity is a good illustration of the conflicting considerations that often struggle for mastery in the judicial process, at least implicitly. In varying degrees, at different times, the momentum of the historic doctrine is arrested or deflected by an unexpressed feeling that governmental immunity runs counter to prevailing notions of reason and justice. Legal concepts are then found available to give effect to this feeling . . ..' Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709, 69 S.Ct. 1457, 1471, 93 L.Ed. 1628 (1949) (dissenting opinion).
57
Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), as well as its numerous progeny, holding that a federal court may enjoin state officers from enforcing an unconstitutional statute, was a notable example of a '(l)egal concept . . . found available to give effect to this feeling' that 'governmetal immunity runs counter to prevailing notions of reason and justice.' Parden was another example. The Court's discussion today of the inapplicable Eleventh Amendment regrettably tends to exalt governmental immunity over 'prevailing notions of reason and justice.' It also casts a shadow upon the validity of the view expressed by Mr. Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821), that the Amendments did not apply to bar federal-question suits brought against a State by its own citizens. It had been argued in that case that:
58
'The original clause (Art. III) giving jurisdiction on account of the character of the parties, as aliens, citizens of different States, etc. does not limit, but extends the judicial power of the Union. The (Eleventh) amendment applies to that alone. It leaves a suit between a State and a citizen, arising under the constitution, laws, etc. where it found it; and the States are still liable to be sued by a citizen, where the jurisdiction arises in this manner, and not merely out of the character of the parties.' Id., at 348 349 (emphasis added).
59
Mr. Chief Justice Marshall adopted this interpretation. In determining whether a writ of error was a 'suit' within the meaning of the Eleventh Amendment, he said:
60
'If this writ of error be a suit in the sense of the 11th amendment, it is not a suit commenced or prosecuted 'by a citizen of another State, or by a citizen or subject of any foreign State.' It is not then within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen, that in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties.' Id., at 412 (emphasis added).
61
In other words, the view of the great Chief Justice was that the Eleventh Amendment expressly withdrew the federal judicial power originally granted in federal-question cases only as to suits against States by citizens of other States or by aliens. I do not read Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), as has been suggested, Jacobs, supra, at 109, to reject Mr. Chief Justice Marshall's view that a State may be sued in federal court by its own citizens under the federal-question clause. Hans was also a suit against a State by its own citizens. The Court in Hans held that the Eleventh Amendment was inapplicable in such case (and Parden followed this holding), but that the State nevertheless enjoyed the protection of the ancient doctrine, inherent in the nature of sovereignty, that a State is not amenable to the suit of an individual without its consent. 134 U.S., at 10—15, 10 S.Ct., at 505—507. Thus, even if the Eleventh Amendment is a constitutional restraint upon suits against States by citizens of another State, Hans accords to nonconsenting States only a nonconstitutional immunity from suit by its own citizens. True, Mr. Chief Justice Marshall's statement of the principle in Cohens v. Virginia, created a paradox: 'a citizen with a claim under the Constitution or federal law against his own state might sue in the federal courts, while a citizen of another state or an alien, parties exercising much less, if any, influence upon the government of the state for its beneficence, would be denied a federal remedy.' Jacobs, supra, at 91. Hans recognized that Mr. Chief Justice Marshall in Cohens v. Virginia, had said that, nevertheless, the federal-question clause of the Constitution should be read as making a State amenable to suit by one of its own citizens. 134 U.S., at 19—20, 10 S.Ct., at 508—509. This Court gives particular weight to pronouncements of Mr. Chief Justice Marshall upon the meaning of his contemporaries in framing the Constitution. The Hans treatment of Cohens does not constitute an exception. The statement, id., at 20, 10 S.Ct., at 509 that the 'observation was unnecessary to the decision . . . and . . . ought not to outweigh the important considerations referred to which lead to a different conclusion' implies at most a reservation. Whatever significance may be attached to the statement, however, the Hans opinion as an entirety can sensibly be read as resting the judgment squarely upon the ancient nonconstitutional doctrine of sovereign immunity. Hans' resolution of the paradox, in other words, was that, independently of any constitutional provision, such suits against a nonconsenting State by its own citizens are barred by sovereign immunity. It must, therefore, be reason for regret if the Court today, by its discussion of the Eleventh Amendment, suggests a constitutional limitation on the federal judicial power—a limitation that could have far-reaching and untoward consequences. As one commentator has observed:
62
'If, as has been suggested, the American doctrine of sovereign immunity is indefensible upon both theoretical and pragmatic grounds—if it represents, as the Court has more than once intimated, an unfortunate excrescence of a political and legal order which no longer enlists support—its continued observance should depend upon whether it is incorporated into the Constitution and hence made obligatory upon the judiciary unless waived by the government. It is clear enough, of course, that if the doctrine is to have constitutional status, it must be judicially inferred. There is absolutely nothing in the original Constitution nor in any of the amendments expressly sanctioning the doctrine. And to this generalization the Eleventh Amendment, despite the outcry about sovereign immunity and the sovereignty of the states which preceded its adoption, does not constitute an exception. That amendment, to be sure, did impose a limitation upon the federal judicial power with respect to suits brought against the states by certain classes of individuals, but its language does not support the Court's far-reaching statement that 'as to the states, legal irresponsibility was written into the Eleventh Amendment.' (Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 517, 83 L.Ed. 784 (1939).)' Jacobs, supra, at 160.
IV
63
My Brother MARSHALL takes a much different approach. He agrees, contrary to the Court, that Parden forecloses a State sued under § 16(b) in federal court (and, he concludes, also in state court) from relying on the protection of the ancient doctrine of sovereign immunity, since the States surrendered their sovereignty to congressional control to that extent when Congress was given the Commerce power. Nevertheless, my Brother MARSHALL would affirm the judgment of the Court of Appeals on the basis of a construction that Art. III, even before the adoption of the Eleventh Amendment and independently of the ancient doctrine of sovereign immunity, implicitly barred federal courts from entertaining suits brought by individuals against nonconsenting States. The Eleventh Amendment, he argues, is simply a reaffirmation of that implicit constitutional limitation on the federal judicial power after this Court held otherwise in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793). Then, while admitting that the Eleventh Amendment is not literally applicable to suits brought against a State by its own citizens, he reads Hans v. Louisiana, supra, as applying the so-called jurisdictional bar of Art. III to such suits. Thus, he concludes that the present suit is beyond the judicial power of the federal courts, unless the State of Missouri is found to have consented. Moreover, his theory compels him to the paradoxical conclusion that Missouri can frustrate petitioners' vindication of their federally created rights in federal court, but is powerless to deny them vindication of those rights in its own courts.6
64
Jurisdiction of the suit before us is general federal-question jurisdiction under Art. III, § 2, cl. 1. That provision, of course, contains no exemption of States, and on its face obviously grants no form of immunity to the States. Rather, the more plausible reading of the plain words of the Article is that they extend federal judicial power to federal-question controversies between a State and individuals, whether citizens or noncitizens of the State. That certainly was the construction of the Article 'as originally framed' expressed by Mr. Chief Justice Marshall in Cohens v. Virginia, supra. The Amendment overruled Chisholm v. Georgia to except suits by citizens of other States and by aliens, and thus was the ultimate resolution of the vehement protests of debtor States voiced during the ratification period. Those States feared that Art. III might expose them to suits in federal courts by out-of-state and alien creditors. Chisholm proved that the fears were justified. See Jacobs, supra, at 27—40; Hans v. Louisiana, supra, 134 U.S., at 10—15, 10 S.Ct., at 505—507. Madison and Hamilton, along with John Marshall, had replied to these critics during the ratification period that suits against a State could only be maintained where the State has consented (as, for example, where the State is the plaintiff or an intervenor). This was not because of anything in Art. III, implicit or otherwise; ratherIt was because '(i)t is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent.' The Federalist No. 81 (Hamilton). Hans v. Louisiana conceded, arguendo, that there was federal-question jurisdiction to maintain the suit, but nevertheless concluded that the State was immune from suit. However, as was the case in the responses of Madison, Hamilton, and John Marshall to the critics of the ratification period, the Court, in my view, based its decision, not on some alleged jurisdictional prohibition drawn from Art. III, but rather on the principle that, independently of any constitutional provision, such suits are barred by sovereign immunity where the State has not voluntarily surrendered its immunity. Otherwise, there would have been no reason for the Court's lengthy quotation from Hamilton's definition of the ancient doctrine:
65
'It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states . . ..' 134 U.S., at 13, 10 S.Ct., at 506 quoting from The Federalist No. 81 (Hamilton) (second emphasis added).
66
And the Court in Hans referred several times to the opinion of Mr. Justice Iredell in Chisholm v. Georgia, eventually concluding that Mr. Justice Iredell's views 'were clearly right.' Id., at 14, 10 S.Ct., at 506. Yet Mr. Justice Iredell did not suggest that Art. III contained an implicit, absolute jurisdictional bar against federal court suits brought by an individual against a State. On the contrary, his position, similar to that of Hamilton, was that unless a State consents, as it must be taken to have done where, for example, the suit involves an activity as to which the States surrendered their sovereignty in forming the Constitution, the States are protected by the ancient doctrine of sovereign immunity from being subjected to suit in federal court at the instance of individuals. Thus, Mr. Justice Iredell stated:
67
'So far as States under the Constitution can be made legally liable to (federal judicial) authority, so far to be sure they are subordinate to the authority of the United States, and their individual sovereignty is in this respect limited. But it is limited no farther than the necessary execution of such authority requires. The authority extends only to the decision of controversies in which a State is a party, and providing laws necessary for that purpose. That surely can refer only to such controversies in which a State can be a party; in respect to which, if any question arises, it can be determined, according to the principles I have supported, in no other manner than by a reference either to pre-existent laws (common law), or laws passed under the Constitution and in conformity to it.
68
'If therefore, no new remedy be provided (by Congress under authority granted in the Constitution) . . . it is incumbent upon us to enquire, whether previous to the adoption of the Constitution . . . an action of the nature like this before the Court could have been maintained against one of the States in the Union upon the principles of the common law, which I have shown to be alone applicable. If it could, I think it is now maintainable here . . ..' 2 Dall., at 436—437 (emphasis in original).
69
And in the end, Hans stated: 'It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present case as to that then under discussion.' 134 U.S., at 14—15, 10 S.Ct., at 507. Thus, one cannot find support for intepreting Art. III as a jurisdictional bar in the 'views of those great advocates and defenders of the Constitution.'7
70
In sum, except as the Eleventh Amendment may be read to create a jurisdictional bar against suits by citizens of another State or by aliens, the restriction on the exercise of the federal judicial power in suits against a State brought by individuals derives, not from anything in the Constitution, including Art. III, but from traditional nonconstitutional principles of sovereign immunity. Except, as Hamilton put it, where 'there is a surrender of this immunity in the plan of the convention,' in which case in my view consent is irrelevant, Art. III extends rather than bars exercise of federal judicial power to entertain such suits against consenting States, leaving open only the question whether the State in fact consented or may be deemed to have consented. Hans was a 'sovereign immunity' case pure and simple; no alleged bar in either Art. III or the Eleventh Amendment played any role whatever in that decision. Therefore, even if the Eleventh Amendment be read liberally to prohibit the exercise of federal judicial power to entertain suits against a State brought by citizens of another State or foreign country (a question we need not decide in this case), my Brother MARSHALL has no support in Hans for bringing this suit by a State's own citizens within that prohibition. Stated simply, the holding of Hans is that the ancient principles of sovereign immunity limit exercise of the federal power to suits against consenting States. And the fundamental lesson of Parden, as my Brother MARSHALL concedes, is that by adopting and ratifying the Commerce Clause, the States surrendered a portion of their sovereignty as to those cases in thich state activity touches on the federal regulatory power under the Commerce Clause. '(T)he States by the asoption of the Constitution, acting 'in their highest sovereign capacity, in the convention of the people,' waived their exemption from judicial power. . . . (J)urisdiction . . . was thus established 'by their own consent and delegated authority' as a necessary feature of the formation of a more perfect Union.' Principality of Monaco v. Mississippi, 292 U.S. 313, 328—329, 54 S.Ct. 745, 750, 78 L.Ed. 1282 (1934).
71
Indeed, if Art. III is an absolute jurisdictional bar, my Brother MARSHALL is inconsistent in conceding that federal courts have power to entertain suits by or against consenting States. For I had always supposed that jurisdictional power to entertain a suit was not capable of waiver and could not be conferred by consent. It is true that, contrary to the different holding of Hollingsworth v. Virginia, 3 Dall. 378, 1 L.Ed. 644 (1798), some opinions have assumed that a State may consent to suit in federal court. Jacobs, supra, at 107—108. But the opinions making that assumption did not confront my Brother MARSHALL's theory that Art. III contains an implicit jurisdictional bar and, accordingly, do not address the highly provocative ancillary question whether such a bar would prohibit federal courts from entertaining suits even against consenting States. Doubtless because my Brother MARSHALL's theory did not occur to the judges, those cases (which did not arise under statutes like the FELA and FLSA) were treated as requiring decision, not in terms of my Brother MARSHALL's theory of a jurisdictional bar that may be removed only by actions tantamount to voluntary consent, but rather within the bounds of traditional notions of sovereign immunity—an immunity, I repeat, that my Brother MARSHALL agrees the States surrendered, as Hamilton said, 'in the plan of the convention,' at least insofar as Congress conditions a State's engagement in a regulated interstate enterprise upon amenability to suit. Yet, he argues that, while the surrendered immunity cannot arise to defeat a suit in state court under § 16(b), it may be resurrected from the grave solely that it may be waived to lift the purported jurisdictional bar of Art. III to state employees' suits in federal court under § 16(b). That reasoning, I say with all respect, simply defies logic. Indeed, even if Hans is a constitutional decision, and I do not think it is, at most it holds that Art. III is to be read to incorporate the ancient doctrine of sovereign immunity. But my Brother MARSHALL's reliance on Hans would fare no better in such case, for then the surrender of the immunity 'in the plan of the convention' would obviously foreclose assertion of the immunity in suits in both state and federal courts brought under federal statutes founded on the commerce power.
V
72
'We the People' formed the governments of the several States. Under our constitutional system, therefore, a State is not the sovereign of its people. Rather, its people are sovereign. Our discomfort with sovereign immunity, born of systems of divine right that the Framers abhorred, is thus entirely natural. The discomfort has markedly increased since subsidence of the controversy over judicial review of state decisions that was fought out in terms of the amenability of States to suit in federal court. Jacobs, supra, at 41—74. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), substantially eviscerated governmental immunity in holding that individuals might sue in federal court to enjoin state officers from enforcing unconstitutional statutes. Congress, reflecting agreement with the soundness of the view that 'the doctrine of Ex parte Young seems indispensable to the establishment of constitutional government and the rule of law,' C. Wright, Handbook of the Law of Federal Courts 186 (2d ed. 1970), accepted that decision. Perez v. Ledesma, 401 U.S. 82, 104—110, 91 S.Ct. 674, 686—690, 27 L.Ed.2d 701 (opinion of Brennan, J.) In short, the trend since Hans was decided in 1890 has been against enforcement of governmental immunity except when clearly required by explicit textual prohibitions, as in the Eleventh Amendment. Moreover, as Parden illustrates, the trend also is to interpret those prohibitions narrowly and literally. For none can gainsay that a State may grievously hurt one of its citizens. Our expanding concepts of public mortality are thus offended when a State may escape legal redress for its wrongs. I need not address in this case, however, the question whether today's decision constitutes a denial of the Fifth Amendment's counterpart guarantee of due process. See, however, Jacobs, supra, at 163—164. Our constitutional commitment, recited in the Preamble, is to 'establish Justice.' That keystone objective is furthered by the trend toward limitation of the defense of governmental immunity represented by Ex parte Young and Parden. Today, however, the Court and my Brother MARSHALL arrest the trend—the Court by watering down Parden in reliance on the Parden dissent and in its discussion of the inapplicable Eleventh Amendment, and my Brother MARSHALL by rejecting Mr. Chief Justice Marshall's view that no jurisdictional bar may be implied in Art. III.
73
I would reverse the Court of Appeals and remand the case to the District Court with direction to proceed to trial on the complaint.
1
The dissent argues that 'Parden held that a federal court determination of such suits cannot be precluded by the doctrine of sovereign immunity because the States surrendered their sovereignty to that extent when they granted Congress the power to regulate commerce.' Post, at 299. But, the plain language of the Court's opinion in Parden belies this assertion. For example, the Court stated:
'Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State's own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent.' 377 U.S. 184, 192, 84 S.Ct. 1207, 1213. The Court then repeated that '(a) State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court.' Id., at 196, 84 S.Ct., at 1215. As we read these passages, and clearly as the dissent in Parden read them, id., at 198, 84 S.Ct. 1207, they dealt with constitutional constraints on the exercise of the federal judicial power. Moreover, if parden was concerned merely with the surrender of common-law sovereign immunity when the State granted Congress the power to regulate commerce, it would seem unnecessary to reach the question of waiver or consent, for Congress could subject the States to suit by their own citizens whenever it was deemed necessary or appropriate to the regulation of commerce. No more would be required. But, there can be no doubt that the Court's holding in Parden was premised on the conclusion that Alabama, by operating the railroad, had consented to suit in the federal courts under FELA. Id., at 186, 84 S.Ct. 1207.
2
'Few departures from colonial practices occurred in the first forty years after independence; the insane commonly languished in local jails and poorhouses or lived with family and friends. But in the course of the next few decades, in a dramatic transformation, state after state constructed asylums. Budding manufacturing centers like New York and Massachusetts erected institutions in the 1830's, and so did the agricultural states of Vermont and Ohio, Tennessee and Georgia. By 1850, almost every northeastern and midwestern legislature supported an asylum; by 1860, twenty-eight of the thirty-three states had public institutions for the insane. Although not all of the mentally ill found a place within a hospital, and a good number among the aged and chronic poor remained in almshouses and jails, the institutionalization of the insane became the standard procedure of the society during these years. A cult of asylum swept the country.' Ibid.
1
29 U.S.C. §§ 201—219.
2
See ante, at 285.
3
See Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 2—21 (1963).
4
See also § 3(r), 29 U.S.C. § 203(r).
5
See also S.Rep.No.1487, 89th Cong., 2d Sess., 8 (1966), U.S.Code Cong. & Admin.News 1966, p. 3002, which described one of the purposes of the 1966 amendments as being 'to make plain the intent to bring under the coverage of the act employees of hospitals and related institutions, schools for physically or mentally handicapped or gifted children, or institutions of higher education, whether or not any of these hospitals, schools, or institutions are public or private or operated for profit or not for profit.' (Emphasis added.)
6
Section 16(b), 29 U.S.C. § 216(b), provides in relevant part:
'Any employer who violates the provisions of . . . this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.'
7
See The Federalist No. 81 (Hamilton); Hans v. Louisiana, 134 U.S. 18 12—14, 10 S.Ct. 504, 506—507, 33 L.Ed. 842 (1890); 1 C. Warren, The Supreme Court in United States History 91 (Rev.Ed.1937); Cullison, Interpretation of the Eleventh Amendment, 5 Houston L.Rev. 1, 6—9 (1967).
8
My Brother BRENNAN, in dissent, suggests that this case involves only a question of sovereign immunity and does not involve any question as to the limits of the federal judicial power under Art. III and the Eleventh Amendment. He considers this theory to be entirely consistent with the Court's seminal decision in Hans v. Louisiana, supra. As already indicated, there the private party attempted to sue his own State in federal court on the basis of the Contract Clause, not on the basis of a congressionally created cause of action. The Court concluded that the State was immune from such a suit in federal court, absent consent. Apparently, my Brother BRENNAN's view is that the result in Hans was due to the
fact that, unlike the present case, nothing had occurred to lift the State's common-law immunity. But such a reading seems to me at odds with his theory that at the time the Union was formed the States surrendered that portion of their sovereignty which conflicted with the supreme federal powers. For if the only relevant issue in Hans was the State's common-law immunity, such a view would seem to compel the conclusion that the State had also pro tanto surrendered their common-law immunity with respect to any claim under the Contract Clause. After all, the only difference between the Contract Clause and congressionally created causes of action is that the Contract Clause is self-enforcing, see e.g., Sturges v. Crowninshield, 4 Wheat. 122, 197—200, 4 L.Ed. 529 (1819); it requires no congressional act to make its guarantee enforceable in a judicial suit. It seems to me a strange hierarchy that would provide a greater opportunity to enforce congressionally created rights than constitutionally guaranteed rights in federal court. Yet my Brother BRENNAN, given his theory of waiver of common-law immunity plus his theory that no constitutional limitation upon the exercise of the federal judicial power exists in the context of a suit brought against a State by one of its citizens, is forced either to this anomalous position or else to the admission that Hans was incorrectly decided. He apparently chooses the former.
However, if the issue of the limits of the judicial power, as well as of common-law immunity, is considered to be relevant in cases such as Hans and this case, the decision in Hans is sensibly understood as resting on the former basis alone. For, although the State's common-law immunity may have been no defense to a Contract Clause claim, the State had not consented to suit in federal court and therefore it was not susceptible to the exercise of the federal judicial power—regardless of the source of the federal claim. Thus, there seems to me little basis for doubting that Hans rested upon considerations as to constitutional limitations on the reach of the federal judicial power, a view confirmed by the decision's lengthy analysis of the constitutional debates surrounding Art. III, see 134 U.S., at 12—14, 10 S.Ct., at 506—507 and by subsequent decisions of this Court, see, e.g., Ex parte New York No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921); Duhne v. New Jersey, 251 U.S. 311, 313, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 304 n. 13, 72 S.Ct. 321, 324, 96 L.Ed. 335 (1952).
9
Of course, suits brought in federal court against state officers allegedly acting unconstitutionally present a different question, see Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Likewise, suits brought in federal court by the United States against States are within the cognizance of the federal judicial power, for '(t)he submission to judicial solution of controversies arising between these two governments, 'each sovereign, with respect to the objects committed to it, and neither soverign with respect to the objects committed to the other,' . . . but both subject to the supreme law of the land, does no violence to the inherent nature of sovereignty,' United States v. Texas, 143 U.S. 621, 646, 12 S.Ct. 488, 494, 36 L.Ed. 285 (1892). See also United States v. North Carolina, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336 (1890). Moreover, it is unavoidable that in a suit between a State and the United States one sovereign will have to appear in the courts of the other.
10
My Brother BRENNAN argues in his dissent that recognition of a State's power to consent to suit in federal court is inconsistent with any view that the impediment to private federal court suits against a State has constitutional roots in the limited nature of the federal judicial power. He is, of course, correct when he points out that, as a rule, power to hear an action cannot be conferred on a federal court by consent. And, it may be that the recognized power of States to consent to the exercise of federal judicial power over them is anomalous in light of present-day concepts of federal jurisdiction. Yet, if this is the case, it is an anomaly that is well established as a part of our constitutional jurisprudence. For there are decisions by this Court—including at least one joined by my Brother BRENNAN—clearly holding that constitutional limitations
upon the exercise of the federal judicial power over private suits brought against a State may be waived by the State.
Thus, in Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882, 27 L.Ed. 780 (1883), the Court rejected Rhode Island's argument that a claim made against it in federal court by a Connecticut corporation was specifically barred by the Eleventh Amendment in light of the fact that initially the State voluntarily intervened in the action to assert a claim of its own and thereby consented. Similarly, in Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S.. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), which involved a tort suit brought in federal court by a resident of Tennessee (see 254 F.2d 857, 862 (CA8 1958)) against a bi-state corporation formed by Missouri and Tennessee, the Court treated the suit as one against the States, but rejected their argument that the suit was prohibited by the Eleventh Amendment. The Court found that the States had waived their immunity from federal court suit in the compact by which the bi-state corporation was formed. Given the citizenship of the plaintiff in Petty, my Brother BRENNAN, with his literalist view of the Eleventh Amendment, might say that as to Tennessee there was no issue of constitutional magnitude and that the State had simply waived its common-law immunity. But insofar as Missouri was also held to have consented to federal court suit, the Court necessarily dealt with the limits of the federal judicial power since, as to Missouri, the suit was within the literal language of the Eleventh Amendment. See also Missouri v. Fiske, 290 U.S. 18, 54 S.Ct. 18, 78 L.Ed. 145 (1933). In short, I cannot accept my Brother BRENNAN's literalist approach to the Eleventh Amendment in light of prior decisions, and certainly his position is not aided by the clearly erroneous suggestion that any constitutional limitation on the exercise of the federal judicial power over private suits against States would constitute an absolute bar to the prosecution of such suits in federal court.
11
Whether I would reach a different conclusion with respect to a case of this character if the State had commenced operation of the relevant facilities after passage of the 1966 amendments is a question that I need not now decide. Certainly, I do not accept the Court's efforts to distinguish this case from Parden on the basis that there we dealt with a 'proprietary' function, whereas here we deal with a 'governmental' function. See ante, at 284—285. I had thought we had escaped such unenlightening characterizations of States' activities. Cf. Maryland v. Wirtz, 392 U.S. 183, 195, 88 S.Ct. 2017, 2023, 20 L.Ed.2d 1020 (1968); United States v. California, 297 U.S. 175, 183—184, 56 S.Ct. 421, 423—424, 80 L.Ed. 567 (1936).
12
Unlike the Court, I would not pretend to suggest that the power given the Secretary of Labor in § 17 of the FLSA, 29 U.S.C. § 217, to seek restitution on behalf of employees provides an adequate mechanism for safeguarding the interests of state employees such as petitioners. The United States, as amicus curiae, points out:
'In 1971, . . . the (FLSA) covered 45.4 million employees and nearly 2 million establishments; 2.7 million of these employees and 118,000 of these establishments were in the sector of state and local government employment, including state schools and hospitals. Yet, less than 4 percent of these establishments can be investigated by the Secretary each year.' Brief for United States as Amicus Curiae 22—23 (footnotes omitted).
It is obviously unrealistic to expect Government enforcement alone to be sufficient.
13
See Mo.Rev.Stat. § 478.070(2) (1959).
1
That Congress made § 16(b) as fully available to the public employees as to private employees is clear from explicit statements that the amendments were designed 'to make plain the intent to bring under the coverage of the act employees of hospitals and related institutions, schools for physically or mentally handicapped or gifted children, or institutions of higher education, whether or not any of these hospitals, schools, or institutions are public or private or operated for profit or not for profit.' S.Rep.No.1487, 89th Cong., 2d Sess., 8 (1966); U.S.Code Cong. & Admin.News 1966, p. 3010 (emphasis added). And it is stated on the same page:
'These enterprises which are not proprietary, that is, not operated for profit, are engaged in activities which are in substantial competition with similar activities carried on by enterprises organized for a business purpose. Failure to cover all activities of these enterprises will result in the failure to implement one of the basic purposes of the act, the elimination of conditions which 'constitute an unfair method of competition in commerce." (Emphasis added.)
Thus, I agree with the dissenting judges below that there is 'in the circumstances surrounding this legislation a strong inference that Congress intended to afford state employees the same direct right of suit against their employers as is possessed by covered employees of nongovernmental employers.' 452 F.2d 820, 831 (1971) (Bright, J., dissenting).
2
The Court of Appeals for the Tenth Circuit rejected the governmental-proprietary distinction on facts identical to those of the present case. Briggs v. Sagers, 424 F.2d 130, 132—133 (1970). See also Sanitary District v. United States, 266 U.S. 405, 426, 45 S.Ct. 176, 178, 69 L.Ed. 352 (1925); United States v. California, 297 U.S. 175, 183—184, 56 S.Ct. 421, 423—424, 80 L.Ed. 567 (1936); 3 K. Davis, Administrative Law Treatise 459—466 (1958); n. 1, supra.
3
See the comprehensive discussion in Hodgson v. Wheaton Glass Co., 446 F.2d 527 (CA3 1971). See also Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945); Hodgson v. Ricky Fashions, 434 F.2d 1261 (CA5 1970).
4
See the discussion, infra, at 308.
5
The Solicitor General states that: 'In 1971 . . . the Act covered 45.4 million employees and nearly 2 million establishments; 2.7 million of these employees and 118,000 of these establishments were in the sector of state and local government employment, including state schools and hospitals. Yet less than 4 percent of these establishments can be investigated by the Secretary each year.' Brief for United States as Amicus Curiae 22—23.
On this account, it has been suggested that 'the instant case is even more compelling than Parden in asserting that Congress' power to regulate commerce should override sovereign immunity. Since the Supreme Court was willing to find constructive waiver of immunity in order to give protection to a relatively small number of people—employees of state owned railways—even where Congress had not made clear its desire that such protection be given, then a fortiori constructive waiver is applicable where Congress has specifically applied legislation to states as employers, where the class of persons meant to be protected is much greater, and where the purpose and need of regulation is a more fundamental and pressing expression of congressional regulation of commerce.' 17 Vill.L.Rev. 713, 720—721 (1972).
Finally, the Secretary's enforcement powers are discretionary. Thus, '(a) suit by a state employee under § 216(b) represents the only remedial provisions of the Act which assures (a state employee) of the opportunity of having his claim presented to a court.' 452 F.2d, at 833 (Bright, J., dissenting).
6
My Brother MARSHALL disagrees with the Court on this issue. He takes the position that the state courts must entertain suits under the FLSA and, in such case, the State is foreclosed from relying on the protection of the ancient doctrine of sovereign immunity. The Court, on the other hand, although stating that it 'is a question we need not reach,' takes the position that state employees 'arguably' may maintain a § 16(b) suit in the state courts, ante, at 287, thus implying that the States are not necessarily compelled to entertain such suits.
7
In Hans v. Louisiana, a citizen of Louisiana attacked his State's repudiation of its bond obligations in the state constitution as a violation of the Contract Clause prohibition against passage by States of laws impairing the obligation of contracts. The Court held that the action, although arising under the Constitution and laws of the United States within Art. III, was not maintainable against Louisiana without its consent. My Brother MARSHALL argues in n. 8 of his opinion concurring in the result that my view that Hans involved only a question of sovereign immunity is at odds with my view (shared by him at least as to the Commerce Clause) 'that at the time the Union was formed the States surrendered that portion of their sovereignty which conflicted with the supreme federal powers.' The obvious error is in my Brother MARSHALL's premise that 'such a view (as to the commerce power) would seem to compel the conclusion that the States had also pro tanto surrendered their common-law immunity with respect to any claim under the Contract Clause.' That conclusion is not compelled. My Brother MARSHALL's argument implies that Hans, if not read as holding that Art. III created a jurisdictional bar, may be read as holding that Art. III incorporated the ancient doctrine, and as also holding that the States, at least in the case of the Contract Clause, had not surrendered that immunity in forming the Union. I reject, of course, the premise that Hans may be read as a constitutional decision. But assuming a reading as holding that Art. III incorporated the ancient doctrine, there would be no inconsistency in holding that, while the States surrendered that immunity in respect to enumerated powers granted by the States to the National Government, such
as the commerce power, there was no surrender in respect to self-imposed prohibitions, as in the case of the Contract Clause. In other words, my Brother MARSHALL's 'supreme federal powers' are only the enumerated powers whose effective exercise required surrender of the protection of the ancient doctrine. The Commerce Clause is an enumerated power whose effective enforcement required surrender of immunity to empower Congress, when necessary, to subject the States to suit. The Contract Clause, on the other hand, is not an enumerated power and thus not among the 'supreme federal powers.' It is simply a prohibition self-imposed by the States upon themselves and it granted Congress no powers of enforcement by means of subjecting the States to suit or otherwise. In allowing Louisiana the ancient immunity, the Court in Hans took particular care to emphasize that the allowance in no other respect prevented effective enforcement of the prohibitions of the clause. The Court said: 'Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts may be judicially resisted, and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment.' 134 U.S., at 20—21, 10 S.Ct., at 509.
| 67
|
411 U.S. 423
93 S.Ct. 1637
36 L.Ed.2d 366
UNITED STATES, Petitioner,v.Richard RUSSELL.
No. 71—1585.
Argued Feb. 27, 1973.
Decided April 24, 1973.
Syllabus
An undercover narcotics agent investigating respondent and his confederates for illicitly manufacturing a drug, offered them an essential ingredient which was difficult to obtain, though legally available. After the agent had observed the process and contributed the ingredient in return for a share of the finished product, respondent was found guilty by a jury which had been given the standard entrapment instruction. The Court of Appeals reversed, concluding that there had been 'an intolerable degree of governmental participation in the criminal enterprise.' Held: The entrapment defense, which, as explicated in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, prohibits law enforcement officers from instigating criminal acts by otherwise innocent persons in order to lure them to commit crimes and punish them, did not bar the conviction of respondent in view of the evidence of respondent's involvement in making the drug before and after the agent's visits, and respondent's concession 'that he may have harbored a predisposition to commit the charged offenses.' Nor was the agent's infiltration of the drugmaking operation of such a nature as to violate fundamental principles of due process. Pp. 428—436.
459 F.2d 671, reversed.
Philip A. Lacovara, Washington, D.C., for petitioner.
Thomas H. S. Brucker, Seattle, Wash., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent Richard Russell was charged in three counts of a five-count indictment returned against him and codefendants John and Patrick Connolly.1 After a jury trial in the District Court, in which his sole defense was entrapment, respondent was convicted on all three counts of having unlawfully manufactured and processed methamphetamine ('speed') and of having unlawfully sold and delivered that drug in violation of 21 U.S.C. §§ 331(q)(1), (2), 360a(a), (b) (1964 ed., Supp. V). He was sentenced to concurrent terms of two years in prison for each offense, the terms to be suspended on the condition that he spend six months in prison and be placed on probation for the following three years. On appeal, the United States Court of Appeals for the Ninth Circuit, one judge dissenting reversed the conviction solely for the reason that an undercover agent supplied an essential chemical for manufacturing the methamphetamine which formed the basis of respondent's conviction. The court concluded that as a matter of law 'a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.' 459 F.2d 671, 673 (1972). We granted certiorari, 409 U.S. 911, 93 S.Ct. 226, 34 L.Ed.2d 172 (1972), and now reverse that judgment.
2
There is little dispute concerning the essential facts in this case. On December 7, 1969, Joe Shapiro, an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs, went to respondent's home on Whidbey Island in the State of Washington where he met with respondent and his two codefendants, John and Patrick Connolly. Shapiro's assignment was to locate a laboratory where it was believed that methamphetamine was being manufactured illicitly. He told the respondent and the Connollys that he represented an organization in the Pacific Northwest that was interested in controlling the manufacture and distribution of methamphetamine. He then made an offer to supply the defendants with the chemical phenyl-2-propanone, an essential ingredient in the manufacture of methamphetamine, in return for one-half of the drug produced. This offer was made on the condition that Agent Shapiro be shown a sample of the drug which they were making and the laboratory where it was being produced.
3
During the conversation, Patrick Connolly revealed that he had been making the drug since May 1969 and since then had produced three pounds of it.2 John Connolly gave the agent a bag containing a quantity of methamphetamine that he represented as being from 'the last batch that we made.' Shortly thereafter, Shapiro and Patrick Connolly left respondent's house to view the laboratory which was located in the Connolly house on Whidbey Island. At the house, Shapiro observed an empty bottle bearing the chemical label phenyl-2-propanone.
4
By prearrangement, Shapiro returned to the Connolly house on December 9, 1969, to supply 100 grams of propanone and observe the manufacturing process. When he arrived he observed Patrick Connolly and the respondent cutting up pieces of aluminum foil and placing them in a large flask. There was testimony that some of the foil pieces accidentally fell on the floor and were picked up by the respondent and Shapiro and put into the flask.3 Thereafter, Patrick Connolly added all of the necessary chemicals, including the propanone brought by Shapiro, to make two batches of methamphetamine. The manufacturing process having been completed the following morning, Shapiro was given one-half of the drug and respondent kept the remainder. Shapiro offered to buy, and the respondent agreed to sell, part of the remainder for $60.
5
About a month later, Shapiro returned to the Connolly house and met with Patrick Connolly to ask if he was still interested in their 'business arrangement.' Connolly replied that he was interested but that he had recently obtained two additional bottles of phenyl-2-propanone and would not be finished with them for a couple of days. He provided some additional methamphetamine to Shapiro at that time. Three days later Shapiro returned to the Connolly house with a search warrant and, among other items, seized an empty 500-gram bottle of propanone and a 100-gram bottle, not the one he had provided, that was partially filled with the chemical.
6
There was testimony at the trial of respondent and Patrick Connolly that phenyl-2-propanone was generally difficult to obtain. At the request of the Bureau of Narcotics and Dangerous Drugs, some chemical supply firms had voluntarily ceased selling the chemical.
7
At the close of the evidence, and after receiving the District Judge's standard entrapment instruction,4 the jury found the respondent guilty on all counts charged. On appeal, the respondent conceded that the jury could have found him predisposed to commit the offenses, 459 F.2d at 672, but argued that on the facts presented there was entrapment as a matter of law. The Court of Appeals agreed, although it did not find the District Court had misconstrued or misapplied the traditional standards governing the entrapment defense. Rather, the court in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been 'an intolerable degree of governmental participation in the criminal enterprise.' In this case the court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense.
8
This new defense was held to rest on either of two alternative theories. One theory is based on two lower court decisions which have found entrapment, regardless of predisposition, whenever the government supplies contraband to the defendants. United States v. Bueno, 447 F.2d 903 (CA5 1971); United States v. Chisum, 312 F.Supp. 1307 (CDCal.1970). The second theory, a nonentrapment rationale, is based on a recent Ninth Circuit decision that reversed a conviction because a government investigator was so enmeshed in the criminal activity that the prosecution of the defendants was held to be repugnant to the American criminal justice system. Greene v. United States, 454 F.2d 783 (CA9 1971). The court below held that these two rationales constitute the same defense, and that only the label distinguishes them. In any event, it held that '(b)oth theories are premised on fundamental concepts of due process and evince the reluctance of the judiciary to countenance 'overzealous law enforcement." 459 F.2d, at 674, quoting Sherman v. United States, 356 U.S. 369, 381, 78 S.Ct. 819, 825, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring in result).
9
This Court first recognized and applied the entrapment defense in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).5 In Sorrells, a federal prohibition agent visited the defendant while posing as a tourist and engaged him in conversation about their common war experiences. After gaining the defendant's confidence, the agent asked for some liquor, was twice refused, but upon asking a third time the defendant finally capitulated, and was subsequently prosecuted for violating the National Prohibition Act.
10
Mr. Chief Justice Hughes, speaking for the Court, held that as a matter of statutory construction the defense of entrapment should have been available to the defendant. Under the theory propounded by the Chief Justice, the entrapment defense prohibits law enforcement officers from instigating a criminal act by persons 'otherwise innocent in order to lure them to its commission and to punish them.' 287 U.S., at 448, 53 S.Ct., at 215. Thus, the thrust of the entrapment defense was held to focus on the intent or predisposition of the defendant to commit the crime. '(I)f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.' Id., at 451, 53 S.Ct., at 216.
11
Mr. Justice Roberts concerred but was of the view 'that courts must be closed to the trial of a crime instigated by the government's own agents.' Id., at 459, 53 S.Ct., at 219.6 The difference in the view of the majority and the concurring opinions is that in the former the inquiry focuses on the predisposition of the defendant, whereas in the latter the inquiry focuses on whether the government 'instigated the crime.'
12
In 1958 the Court again considered the theory underlying the entrapment defense and expressly reaffirmed the view expressed by the Sorrells majority. Sherman v. United States, supra. In Sherman the defendant was convicted of selling narcotics to a Government informer. As in Sorrells, it appears that the Government agent gained the confidence of the defendant and, despite initial reluctance, the defendant finally acceded to the repeated importunings of the agent to commit the criminal act. On the basis of Sorrels, this Court reversed the affirmance of the defendant's conviction.
13
In affirming the theory underlying Sorrells, Mr. Chief Justice Warren for the Court, held that '(t)o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.' 356 U.S., at 372, 78 S.Ct., at 821. Mr. Justice Frankfurter stated in an opinion concurring in the result that he believed Mr. Justice Roberts had the better view in Sorrells and would have framed the question to be asked in an entrapment defense in terms of 'whether the police conduct revealed in the particular case falls below standards . . . for the proper use of governmental power.' Id., at 382, 78 S.Ct., at 825.7
14
In the instant case, respondent asks us to reconsider the theory of the entrapment defense as it is set forth in the majority opinions in Sorrells and Sherman. His principal contention is that the defense should rest on constitutional grounds. He argues that the level of Shapiro's involvement in the manufacture of the methamphetamine was so high that a criminal prosecution for the drug's manufacture violates the fundamental principles of due process. The respondent contends that the same factors that led this Court to apply the exclusionary rule to illegal searches and seizures. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and confessions, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), should be considered here. But he would have the Court go further in deterring undesirable official conduct by requiring that any prosecution be barred absolutely because of the police involvement in criminal activity. The analogy is imperfect in any event, for the principal reason behind the adoption of the exclusionary rule was the Government's 'failure to observe its own laws.' Mapp v. Ohio, supra, 367 U.S., at 659, 81 S.Ct., at 1694. Unlike the situations giving rise to the holdings in Mapp and Miranda, the Government's conduct here violated no independent constitutional right of the respondent. Nor did Shapiro violate any federal statute or rule or commit any crime in infiltrating the respondent's drug enterprise.
15
Respondent would overcome this basic weakness in his analogy to the exclusionary rule cases by having the Court adopt a rigid constitutional rule that would preclude any prosecution when it is shown that the criminal conduct would not have been possible had not an undercover agent 'supplied an indispensable means to the commission of the crime that could not have been obtained otherwise, through legal or illegal channels.' Even if we were to surmount the difficulties attending the notion that due process of law can be embodied in fixed rules, and those attending respondent's particular formulation, the rule he proposes would not appear to be of significant benefit to him. For, on the record presented, it appears that he cannot fit within the terms of the very rule he proposes.8
16
The record discloses that although the propanone was difficult to obtain, it was by no means impossible. The defendants admitted making the drug both before and after those batches made with the propanone supplied by Shapiro. Shapiro testified that he saw an empty bottle labeled phenyl-2-propanone on his first visit to the laboratory on December 7, 1969. And when the laboratory was searched pursuant to a search warrant on January 10, 1970, two additional bottles labeled phenyl-2-propanone were seized. Thus, the facts in the record amply demonstrate that the propanone used in the illicit manufacture of methamphetamine not only could have been obtained without the intervention of Shapiro but was in fact obtained by these defendants.
17
While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), the instant case is distinctly not of that breed. Shapiro's contribution of propanone to the criminal enterprise already in process was scarcely objectionable. The chemical is by itself a harmless substance and its possession is legal. While the Government may have been seeking to make it more difficult for drug rings, such as that of which respondent was a member, to obtain the chemical, the evidence described above shows that it nonetheless was obtainable. The law enforcement conduct here stops far short of violating that 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960).
18
The illicit manufacture of drugs is not a sporadic, isolated criminal incident, but a continuing, though illegal, business enterprise. In order to obtain convictions for illegally manufacturing drugs, the gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task. Thus in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation; if that be so, then the supply of some item of value that the drug ring requires must, as a general rule, also be permissible. For an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them. Law enforcement tactics such as this can hardly be said to violate 'fundamental fairness' or 'shocking to the universal sense of justice,' Kinsella, supra.
19
Respondent also urges, as an alternative to his constitutional argument, that we broaden the nonconstitutional defense of entrapment in order to sustain the judgment of the Court of Appeals. This Court's opinions in Sorrells v. United States, supra, and Sherman v. United States, supra, held that the principal element in the defense of entrapment was the defendant's predisposition to commit the crime. Respondent conceded in the Court of Appeals, as well he might, 'that he may have harbored a predisposition to commit the charged offenses.' 459 F.2d, at 672. Yet he argues that the jury's refusal to find entrapment under the charge submitted to it by the trial court should be overturned and the views of Justices Roberts and Frankfurter, in Sorrells and Sherman, respectively, which make the essential element of the defense turn on the type and degree of governmental conduct, be adopted as the law.
20
We decline to overrule these cases. Sorrells is a precedent of long standing that has already been once reexamined in Sherman and implicitly there reaffirmed. Since the defense is not of a constitutional dimension, Congress may address itself to the question and adopt any substantive definition of the defense that it may find desirable.9
21
Critics of the rule laid down in Sorrells and Sherman have suggested that its basis in the implied intent of Congress is largely fictitious, and have pointed to what they conceive to be the anomalous difference between the treatment of a defendant who is solicited by a private individual and one who is entrapped by a government agent. Questions have been likewise raised as to whether 'predisposition' can be factually established with the requisite degree of certainty. Arguments such as these, while not devoid of appeal, have been twice previously made to this Court, and twice rejected by it, first in Sorrells and then in Sherman.
22
We believe that at least equally cogent criticism has been made of the concurring views in these cases. Commenting in Sherman on Mr. Justice Roberts' position in Sorrells that 'although the defendant could claim that the Government had induced him to commit the crime, the Government could not reply by showing that the defendant's criminal conduct was due to his own readiness and not to the persuasion of government agents,' Sherman v. United States, 356 U.S., at 376—377, 78 S.Ct., at 823, 2 L.Ed.2d 848, Mr. Chief Justice Warren quoted the observation of Judge Learned Hand in an earlier stage of that proceeding:
23
"Indeed, it would seem probable that, if there were no reply (to the claim of inducement), it would be impossible ever to secure convictions of any offences which consist of transactions that are carried on in secret.' United States v. Sherman, 2 Cir., 200 F.2d 880, 882.' Sherman v. United States, 356 U.S., at 377 n. 7, 78 S.Ct., at 823.
24
Nor does it seem particularly desirable for the law to grant complete immunity from prosecution to one who himself planned to commit a crime, and then committed it, simply because government undercover agents subjected him to inducements which might have seduced a hypothetical individual who was not so predisposed. We are content to leave the matter where it was left by the Court in Sherman:
25
'The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, 'A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Id., at 372, 78 S.Ct., at 820, quoting Sorrells v. United States, 287 U.S., at 442, 53 S.Ct., at 212.
26
Several decisions of the United States district courts and courts of appeals have undoubtedly gone beyond this Court's opinions in Sorrells and Sherman in order to bar prosecutions because of what they thought to be, for want of a better term, 'overzealous law enforcement.' But the defense of entrapment enunciated in those opinions was not intended to give the federal judiciary a 'chancellor's foot' veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations. We think that the decision of the Court of Appeals in this case quite unnecessarily introduces an unmanageably subjective standard which is contrary to the holdings of this Court in Sorrells and Sherman.
27
Those cases establish that entrapment is a relatively limited defense. It is rooted, not in any authority of the Judicial Branch to dismiss prosecutions for what it feels to have been 'overzealous law enforcement,' but instead in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense but was induced to commit them by the Government.
28
Sorrells and Sherman both recognize 'that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,' 287 U.S., at 441, 53 S.Ct., at 212, 356 U.S., at 372, 78 S.Ct., at 820. Nor will the mere fact of deceit defeat a prosecution, see e.g., Lewis v. United States, 385 U.S. 206, 208—209, 87 S.Ct. 424, 425—427, 17 L.Ed.2d 312 (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.
29
Respondent's concession in the Court of Appeals that the jury finding as to predisposition was supported by the evidence is, therefore, fatal to his claim of entrapment. He was an active participant in an illegal drug manufacturing enterprise which began before the Government agent appeared on the scene, and continued after the Government agent had left the scene. He was, in the words of Sherman, supra, not an 'unwary innocent' but an 'unwary criminal.' The Court of Appeals was wrong, we believe, when it sought to broaden the principle laid down in Sorrells and Sherman. Its judgment is therefore reversed.
30
Reversed.
31
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
32
A federal agent supplied the accused with one chemical ingredient of the drug known as methamphetamine ('speed') which the accused manufactured and for which act he was sentenced to prison. His defense was entrapment, which the Court of Appeals sustained and which the Court today disallows. Since I have an opposed view of entrapment, I dissent.
33
My view is that of Mr. Justice Brandeis expressed in Casey v. United States, 276 U.S. 413, 421, 48 S.Ct. 373, 375, 72 L.Ed. 632 (dissent), that of Mr. Justice Frankfurter stated in Sherman v. United States, 356 U.S. 369, 378, 78 S.Ct. 819, 823, 2 L.Ed.2d 848 (concurring in result), and that of Mr. Justice Roberts contained in Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 217, 77 L.Ed. 413 (concurrence).
34
In my view, the fact that the chemical ingredient supplied by the federal agent might have been obtained from other sources is quite irrelevant. Supplying the chemical ingredient used in the manufacture of this batch of 'speed' made the United States an active participant in the unlawful activity. As stated by Mr. Justice Brandeis, dissenting in Casey v. United States, supra, 276 U.S., at 423, 48 S.Ct., at 376:
35
'I am aware that courts—mistaking relative social values and forgetting that a desirable end cannot justify foul means have, in their zeal to punish, sanctioned the use of evidence obtained through criminal violation of property and personal rights or by other practices of detectives even more revolting. But the objection here is of a different nature. It does not rest merely upon the character of the evidence or upon the fact that the evidence was illegally obtained. The obstacle to the prosecution lies in the fact that the alleged crime was instigated by officers of the government; that the act for which the government seeks to punish the defendant is the fruit of their criminal conspiracy to induce its commission. The government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature.'
36
Mr. Justice Frankfurter stated the same philosophy in Sherman v. United States, supra, 356 U.S., at 382—383, 78 S.Ct., at 826: 'No matter what the defendant's past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society.' And he added: 'The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime . . ..' Id., at 384, 78 S.Ct., at 826.
37
Mr. Justice Roberts in Sorrells put the idea in the following words:
38
'The applicable principle is that courts must be closed to the trial of a crime instigated by the government's own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.' 287 U.S., at 459, 53 S.Ct., at 219.
39
May the federal agent supply the counterfeiter with the kind of paper or ink that he needs in order to get a quick and easy arrest? The Court of Appeals in Greene v. United States, 9 Cir., 454 F.2d 783, speaking through Judges Hamley and Hufstedler, said 'no' in a case where the federal agent treated the suspects 'as partners' with him, offered to supply them with a still, a still site, still equipment, and an operator and supplied them with sugar. Id., at 786.
40
The Court of Appeals in United States v. Bueno, 5 Cir., 447 F.2d 903, speaking through Judges Roney, Coleman, and Simpson, held that where an informer purchased heroin for the accused who in turn sold it to a federal agent, there was entrapment because the sale was made 'through the creative activity of the government.' Id., at 906.
41
In United States v. Chisum, D.C., 312 F.Supp. 1307, the federal agent supplied the accused with the counterfeit money, the receipt of which was the charge against him. Judge Ferguson sustained the defense of entrapment saying, 'When the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it.' Id., at 1312.
42
The Court of Appeals in the instant case relied upon this line of decisions in sustaining the defense of entrapment, 459 F.2d 671. In doing so it took the view that the 'prostitution of the criminal law,' as Mr. Justice Roberts described it in Sorrells, 287 U.S., at 457, 53 S.Ct., at 218, was the evil at which the defense of entrapment is aimed.
43
Federal agents play a debased role when they become the instigators of the crime, or partners in its commission, or the creative brain behind the illegal scheme. That is what the federal agent did here when he furnished the accused with one of the chemical ingredients needed to manufacture the unlawful drug.
44
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
45
It is common ground that '(t)he conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents.' Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 1385, 10 L.Ed.2d 462 (1963). For the Government cannot be permitted to instigate the commission of a criminal offense in order to prosecute someone for committing it. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). As Mr. Justice Brandeis put it, the Government 'may not provoke or create a crime and then punish the criminal, its creature.' Casey v. United States, 276 U.S. 413, 423, 48 S.Ct. 373, 376, 72 L.Ed. 632 (1928) (dissenting opinion). It is to prevent this situation from occurring in the administration of federal criminal justice that the defense of entrapment exists. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Sherman v. United States, supra. Cf. Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); Lopez v. United States, supra. But the Court has been sharply divided as to the proper basis, scope, and focus of the entrapment defense, and as to whether, in the absence of a conclusive showing, the issue of entrapment is for the judge or the jury to determine.
46
* In Sorrells v. United States, supra, and Sherman v. United States, supra, the Court took what might be called a 'subjective' approach to the defense of entrapment. In that view, the defense is predicated on an unexpressed intent of Congress to exclude from its criminal statutes the prosecution and conviction of persons, 'otherwise innocent,' who have been lured to the commission of the prohibited act through the Government's instigation. Sorrells v. United States, supra, 287 U.S., at 448, 53 S.Ct., at 215. The key phrase in this formulation is 'otherwise innocent,' for the entrapment defense is available under this approach only to those who would not have committed the crime but for the Government's inducements. Thus, the subjective approach focuses on the conduct and propensities of the particular defendant in each individual case: if he is 'otherwise innocent,' he may avail himself of the defense; but if he had the 'predisposition' to commit the crime, or if the 'criminal design' originated with him, then—regardless of the nature and extent of the Government's participation—there has been no entrapment. Id., at 451, 53 S.Ct., at 216. And, in the absence of a conclusive showing one way or the other, the question of the defendant's 'predisposition' to the crime is a question of fact for the jury. The Court today adheres to this approach.
47
The concurring opinion of Mr. Justice Roberts, joined by Justices Brandeis and Stone, in the Sorrells case, and that of Mr. Justice Frankfurter, joined by Justices Douglas, Harlan, and Brennan, in the Sherman case, took a different view of the entrapment defense. In their concept, the defense is not grounded on some unexpressed intent of Congress to exclude from punishment under its statutes those otherwise innocent persons tempted into crime by the Government, but rather on the belief that 'the methods employed on behalf of the Government to bring about conviction cannot be countenanced.' Sherman v. United States, supra, 356 U.S., at 380, 78 S.Ct., at 324. Thus, the focus of this approach is not on the propensities and predisposition of a specific defendant, but on 'whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.' Id., at 382, 78 S.Ct., at 825. Phrased another way, the question is whether regardless of the predisposition to crime of the particular defendant involved—the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. Under this approach, the determination of the lawfulness of the Government's conduct must be made—as it is on all questions involving the legality of law enforcement methods—by the trial judge, not the jury.
48
In my view, this objective approach to entrapment advanced by the Roberts opinion in Sorrells and the Frankfurter opinion in Sherman is the only one truly consistent with the underlying rationale of the defense.1 Indeed, the very basis of the entrapment defense itself demands adherence to an approach that focuses on the conduct of the governmental agents, rather than on whether the defendant was 'predisposed' or 'otherwise innocent.' I find it impossible to believe that the purpose of the defense is to effectuate some unexpressed congressional intent to exclude from its criminal statutes persons who committed a prohibited act, but would not have done so except for the Government's inducements. For, as Mr. Justice Frankfurter put it, 'the only legislative intention that can with any show of reason be extracted from the statute is the intention to make criminal precisely the conduct in which the defendant has engaged.' Sherman v. United States, supra, at 379, 78 S.Ct., at 824. See also Sorrells v. United States, supra, 287 U.S., at 456, 53 S.Ct., at 218 (Roberts, J., concurring). Since, by definition, the entrapment defense cannot arise unless the defendant actually committed the proscribed act, that defendant is manifestly covered by the terms of the criminal statute involved.
49
Furthermore, to say that such a defendant is 'otherwise innocent' or not 'predisposed' to commit the crime is misleading, at best. The very fact that he has committed an act that Congress has determined to be illegal demonstrates conclusively that he is not innocent of the offense. He may not have originated the precise plan or the precise details, but he was 'predisposed' in the sense that he has proved to be quite capable of committing the crime. That he was induced, provoked, or tempted to do so by government agents does not make him any more innocent or any less predisposed than he would be if he had been induced, provoked, or tempted by a private person—which, of course, would not entitle him to cry 'entrapment.' Since the only difference between these situations is the identity of the tempter, it follows that the significant focus must be on the conduct of the government agents, and not on the predisposition of the defendant.
50
The purpose of the entrapment defense, then, cannot be to protect persons who are 'otherwise innocent.' Rather, it must be to prohibit unlawful governmental activity in instigating crime. As Mr. Justice Brandeis stated in Casey v. United States, supra, 276 U.S., at 425, 48 S.Ct., at 376: 'This prosecution should be stopped, not because some right of Casey's has been denied, but in order to protect the government. To protect it from illegal conduct of its officers. To preserve the purity of its courts.' Cf. Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (Holmes, J., dissenting); id., at 485, 48 S.Ct., at 575 (Brandeis, J., dissenting). If that is so, then whether the particular defendant was 'predisposed' or 'otherwise innocent' is irrelevant; and the important question becomes whether the Government's conduct in inducing the crime was beyond judicial toleration.
51
Moreover, a test that makes the entrapment defense depend on whether the defendant had the requisite predisposition permits the introduction into evidence of all kinds of hearsay, suspicion, and rumor—all of which would be inadmissible in any other context—in order to prove the defendant's predisposition. It allows the prosecution, in offering such proof, to rely on the defendant's bad reputation or past criminal activities, including even rumored activities of which the prosecution may have insufficient evidence to obtain an indictment, and to present the agent's suspicions as to why they chose to tempt this defendant. This sort of evidence is not only unreliable, as the hearsay rule recognizes; but it is also highly prejudicial, especially if the matter is submitted to the jury, for, despite instructions to the contrary, the jury may well consider such evidence as probative not simply of the defendant's predisposition, but of his guilt of the offense with which he stands charged.
52
More fundamentally, focusing on the defendant's innocence or predisposition has the direct effect of making what is permissible or impermissible police conduct depend upon the past record and propensities of the particular defendant involved. Stated another way, this subjective test means that the Government is permitted to entrap a person with a criminal record or bad reputation, and then to prosecute him for the manufactured crime, confident that his record or reputation itself will be enough to show that he was predisposed to commit the offense anyway.
Yet, in the words of Mr. Justice Roberts:
53
'Whatever may be the demerits of the defendant or his previous infractions of law these will not justify the instigation and creation of a new crime, as a means to reach him and punish him for his past misdemeanors. . . . To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction.' Sorrells v. United States, supra, 287 U.S., at 458—459, 53 S.Ct., at 219, 77 L.Ed. 413.
54
And as Mr. Justice Frankfurter pointed out:
55
'Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition. No more does it vary according to the suspicions, reasonable or unreasonable, of the police concerning the defendant's activities.' Sherman v. United States, supra, 356 U.S., at 383, 78 S.Ct., at 826, 2 L.Ed.2d 848.
56
In my view, a person's alleged 'predisposition' to crime should not expose him to government participation in the criminal transaction that would be otherwise unlawful.2
57
This does not mean, of course, that the Government's use of undercover activity, strategy, or deception is necessarily unlawful. Lewis v. United States, 385 U.S. 206, 208—209, 87 S.Ct. 424, 425—427, 17 L.Ed.2d 312 (1966). Indeed, many crimes, especially so-called victimless crimes, could not otherwise be detected. Thus, government agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime an opportunity to do so. Osborn v. United States, 385 U.S. 323, 331—332, 87 S.Ct. 429, 433—434, 17 L.Ed.2d 394 (1966). See also Sherman v. United States, supra, 356 U.S., at 383—384, 78 S.Ct., at 826—827 (Frankfurter, J., concurring).
58
But when the agents' involvement in criminal activities goes beyond the mere offering of such an opportunity and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then regardless of the character or propensities of the particular person induced—I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.3
II
59
In the case before us, I think that the District Court erred in submitting the issue of entrapment to the jury, with instructions to acquit only if it had a reasonable doubt as to the respondent's predisposition to committing the crime. Since, under the objective test of entrapment, predisposition is irrelevant and the issue is to be decided by the trial judge, the Court of Appeals, I believe, would have been justified in reversing the conviction on this basis alone. But since the appellate court did not remand for consideration of the issue by the District Judge under an objective standard, but rather found entrapment as a matter of law and directed that the indictment be dismissed, we must reach the merits of the respondent's entrapment defense.
60
Since, in my view, it does not matter whether the respondent was predisposed to commit the offense of which he was convicted, the focus must be, rather, on the conduct of the undercover government agent. What the agent did here was to meet with a group of suspected producers of methamphetamine, including the respondent; to request the drug; to offer to supply the chemical phenyl-2-propanone in exchange for one-half of the methamphetamine to be manufactured therewith; and, when that offer was accepted, to provide the needed chemical ingredient, and to purchase some of the drug from the respondent.
61
It is undisputed that phenyl-2-propanone is an essential ingredient in the manufacture of methamphetamine; that it is not used for any other purpose; and that, while its sale is not illegal, it is difficult to obtain, because a manufacturer's license is needed to purchase it, and because many suppliers, at the request of the Federal Bureau of Narcotics and Dangerous Drugs, do not sell it at all. It is also undisputed that the methamphetamine which the respondent was prosecuted for manufacturing and selling was all produced on December 10, 1969, and that all the phenyl-2-propanone used in the manufacture of that batch of the drug was provided by the government agent. In these circumstances, the agent's undertaking to supply this ingredient to the respondent, thus making it possible for the Government to prosecute him for manufacturing an illicit drug with it, was, I think, precisely the type of governmental conduct that the entrapment defense is meant to prevent.
62
Although the Court of Appeals found that the phenyl-2-propanone could not have been obtained without the agent's intervention—that 'there could not have been the manufacture, delivery, or sale of the illicit drug had it not been for the Government's supply of one of the essential ingredients,' 459 F.2d 671, 672—the Court today rejects this finding as contradicted by the facts revealed at trial. The record, as the Court states, discloses that one of the respondent's accomplices, though not the respondent himself, had obtained phenyl-2-propanone from independent sources both before and after receiving the agent's supply, and had used it in the production of methamphetamine. This demonstrates, it is said, that the chemical was obtainable other than through the government agent; and hence the agent's furnishing it for the production of the methamphetamine involved in this prosecution did no more than afford an opportunity for its production to one ready and willing to produce it. Cf. Osborn v. United States, supra, 385 U.S., at 331 332, 87 S.Ct., at 433—434. Thus, the argument seems to be, there was no entrapment here, any more than there would have been if the agent had furnished common table salt, had that been necessary to the drug's production.
63
It cannot be doubted that if phenyl-2-propanone had been wholly unobtainable from other sources, the agent's undercover offer to supply it to the respondent in return for part of the illicit methamphetamine produced therewith—an offer initiated and carried out by the agent for the purpose of prosecuting the respondent for producing methamphetamine—would be precisely the type of governmental conduct that constitutes entrapment under any definition. For the agent's conduct in that situation would make possible the commission of an otherwise totally impossible crime, and, I should suppose, would thus be a textbook example of instigating the commission of a criminal offense in order to prosecute someone for committing it.
64
But assuming in this case that the phenyl-2-propanone was obtainable through independent sources, the fact remains that that used for the particular batch of methamphetamine involved in all three counts of the indictment with which the respondent was charged—i.e., that produced on December 10, 1969—was supplied by the Government. This essential ingredient was indisputably difficult to obtain, and yet what was used in committing the offenses of which the respondent was convicted was offered to the respondent by the Government agent on the agent's own initiative, and was readily supplied to the respondent in needed amounts. If the chemical was so easily available elsewhere, then why did not the agent simply wait until the respondent had himself obtained the ingredients and produced the drug, and then buy it from him? The very fact that the agent felt it incumbent upon him to offer to supply phenyl-2-propanone in return for the drug casts considerable doubt on the theory that the chemical could easily have been procured without the agent's intervention, and that therefore the agent merely afforded an opportunity for the commission of a criminal offense.
65
In this case, the chemical ingredient was available only to licensed persons, and the Government itself had requested suppliers not to sell that ingredient even to people with a license. Yet the Government agent readily offered, and supplied, that ingredient to an unlicensed person and asked him to make a certain illegal drug with it. The Government then prosecuted that person for making the drug produced with the very ingredient which its agent had so helpfully supplied. This strikes me as the very pattern of conduct that should be held to constitute entrapment as a matter of law.4
66
It is the Government's duty to prevent crime, not to promote it. Here, the Government's agent asked that the illegal drug be produced for him, solved his quarry's practical problems with the assurance that he could provide the one essential ingredient that was difficult to obtain, furnished that element as he had promised, and bought the finished product from the respondent—all so that the respondent could be prosecuted for producing and selling the very drug for which the agent had asked and for which he had provided the necessary component. Under the objective approach that I would follow, this respondent was entrapped, regardless of his predisposition or 'innocence.'
In the words of Mr. Justice Roberts:
67
'The applicable principle is that courts must be closed to the trial of a crime instigated by the government's own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.' Sorrells v. United States, 287 U.S. supra, at 459, 53 S.Ct. at 219.
68
I would affirm the judgment of the Court of Appeals.
1
John Connolly did not appear for trial. Patrick Connolly was tried with the respondent and found guilty of all five counts against him. The validity of his conviction in not before us in this proceeding.
2
At trial Patrick Connolly admitted making this statement to Agent Shapiro but asserted that the statement was not true.
3
Agent Shapiro did not otherwise participate in the manufacture of the drug or direct any of the work.
4
The District Judge stated the governing law on entrapment as follows: 'Where a person already has the willingness and the readiness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment.' He then instructed the jury to acquit respondent if it had a 'reasonable doubt whether the defendant had the previous intent or purpose to commit the offense . . . and did so only because he was induced or persuaded by some officer or agent of the government.' No exception was taken by respondent to this instruction.
5
The first case to recognize and sustain a claim of entrapment by government officers as a defense was apparently Woo Wai v. United States, 223 F. 412 (CA9 1915).
6
Justices Brandeis and Stone concurred in this analysis.
7
Justices Douglas, Harlan, and Brennan shared the views of entrapment expressed in the Frankfurter opinion.
8
The language quoted above first appeared in the Government's brief at 32, but was subsequently adopted by the respondent. Brief for Respondent 20—21.
9
A bill currently before the Congress contemplates an express statutory formulation of the entrapment defense. S. 1, 93d Cong., 1st Sess., § 1—3B2 (1973).
1
Both the Proposed New Federal Criminal Code (1971), Final Report of the National Commission on Reform of Federal Criminal Laws § 702, and the American Law Institute's Model Penal Code § 2.13 (Proposed Official Draft, 1962), adopt this objective approach.
2
See Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1111 (1951):
'Clearly entrapment is a facet of a broader problem. Along with illegal search and seizures, wire tapping, false arrest, illegal detention and the third degree, it is a type of lawless law enforcement. They all spring from common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals or the 'criminal classes,' justifies the employment of illegal means.'
3
Several federal courts have adopted the objective test advanced by Mr. Justice Roberts and Mr. Justice Frankfurter, or a variant thereof, focusing on the conduct of the government agents, rather than the 'predisposition' of the particular defendant. See, e.g., United States v. McGrath, 468 F.2d 1027, 1030—1031 (CA7 1972); Greene v. United States, 454 F.2d 783, 786—787 (CA9 1971); Carbajal-Portillo v. United States, 396 F.2d 944, 948 (CA9 1968); Smith v. United States, 118 U.S.App.D.c. 38, 44, 46, 331 F.2d 784, 790, 792 (1964) (en banc); United States v. Chisum, 312 F.Supp. 1307 (CD Cal.1970). Cf. United States v. Morrison, 348 F.2d 1003, 1004 (CA2 1965); Accardi v. United States, 257 F.2d 168, 172—173, n. 5 (CA5 1958); United States v. Kros, 296 F.Supp. 972, 979 (ED Pa.1969). Moreover, this objective approach is the one favored by a majority of the commentators. In addition to the Proposed New Federal Criminal Code and the Model Penal Code, supra, n. 1, see Williams, The Defense of Entrapment and Related Problems in Criminal Prosecution, 28 Fordham L.Rev. 399 (1959); Cowen, The Entrapment Doctrine in the Federal Courts, and Some State Court Comparisons, 49 J.Crim.L.C. & P.S. 447 (1959); Donnelly, supra, n. 2; Comment, Entrapment in the Federal Courts, 1 U. San Francisco L.Rev. 177 (1966).
4
Some federal courts have ordered indictments for receipt, possession, or sale of contraband to be dismissed, upon a showing that Government agents themselves had supplied the contraband. See United States v. McGrath, supra; Greene v. United States, supra; United States v. Bueno, 447 F.2d 903 (CA5 1971); United States v. Chisum, supra; United States v. Dillet, 265 F.Supp. 980 (SDNY 1966). The same considerations obtain here.
| 01
|
411 U.S. 356
93 S.Ct. 1652
36 L.Ed.2d 318
Leila MOURNING, Petitioner,v.FAMILY PUBLICATIONS SERVICE, INC.
No. 71—829.
Argued Nov. 9, 1972.
Decided April 24, 1973.
Syllabus
Petitioner, who contracted to purchase magazine subscriptions from respondent, brought this action in District Court, alleging that respondent had failed to comply with the disclosure provisions of the Truth in Lending Act, as implemented by Federal Reserve Board 'Regulation Z.' The District Court found that respondent had failed to comply with Regulation Z, in that respondent had extended credit to petitioner, payable in more than four installments, without making the disclosures required by the Act. The Court of Appeals reversed, holding that the Board had exceeded its statutory authority in issuing Regulation Z since the regulation required disclosure in some credit transactions in which a finance charge had not been made, and, alternatively, that the regulation violated due process by creating a conclusive presumption that credit payments made in more than four installments included a finance charge. Held:
1. The 'Four Installment Rule' of Regulation Z is a valid exercise of the Federal Reserve Board's rulemaking authority under the Truth in Lending Act. Pp. 363—375.
(a) Congress, which was well aware that merchants could evade the disclosure requirements of the Act by concealing credit charges, gave the Board broad rulemaking power to prevent such evasion, and, in the exercise of that power, the Board issued the challenged rule to deal with the practice of concealing finance charges in the cash price of merchandise sold. Pp. 363—369.
(b) No conflict arises from the fact that the Act mentions disclosure only in regard to transactions in which a finance charge is imposed while the disclosure requirements of the rule sometimes apply where no such charge exists, since Congress did not attempt to specify all types of situations under which the Board's regulations might apply, and the deterrent effect of the rule clearly implements the objectives of the Act. Pp. 372—373.
(c) The Board had authority to promulgate a general rule to prevent circumvention, even if the rule embraces some transactions that the provisions of the Act might not on their face reach. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Pp. 373—374.
(d) Existence of penalty provisions in the Act does not require a narrow construction of the Act's nonpenalty provisions. FCC v. American Broadcasting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699, distinguished. Pp. 374—375.
2. Imposition, pursuant to § 130 of the Act, of a minimum penalty of $100 in cases such as this where the finance charge is nonexistent or undetermined, but where disclosure has not been made, is a permissible sanction. P. 376.
3. In imposing a disclosure requirement on all members of a defined class to discourage evasion by a substantial portion of that class, the challenged regulation does not create a conclusive presumption violative of the Fifth Amendment. Pp. 376—377.
5 Cir., 449 F.2d 235, reversed and remanded.
Eric Schnapper, New York City, for petitioner.
A. Raymond Randolph, Jr., Washington, D.C., for United States, as amicus curiae, pro hac vice, by special leave of Court.
Robert S. Rifkind, Washington, D.C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ of certiorari in this case to resolve whether the Federal Reserve Board exceeded its authority under § 105 of the Truth in Lending Act1 in promulgating that portion of Regulation Z commonly referred to as the 'Four Installment Rule.'2
2
Respondent is a Delaware corporation which solicits subscriptions to several well-known periodicals. In 1969, one of respondent's door-to-door salesmen called on the petitioner, a 73-year-old widow residing in Florida, and sold her a five-year subscription to four magazines. Petitioner agreed to pay $3.95 immediately and to remit a similar amount monthly for 30 months. The contract form she signed contained a clause stating that the subscriptions could not be canceled and an acceleration provision similar to that found in many installment undertakings, providing that any default in installment payments would render the entire balance due. The contract did not recite the total purchase price of the subscriptions or the amount which remained unpaid after the initial remittance, and made no reference to service or finance charges. The total debt assumed by the petitioner was $122.45; the balance due after the initial payment was $118.50.
3
Petitioner made the initial payment, began to receive the magazines for which she had contracted, and then defaulted. Respondent declared the entire balance of $118.50 due and threatened legal action. Petitioner brought this suit in United States District Court, alleging that respondent had failed to comply with the disclosure provisions of the Truth in Lending Act. She sought recovery of the statutory penalty and reimbursement for the costs of the litigation, including reasonable attorney's fees.
4
In support of her claim, petitioner submitted to the District Court a series of 'dunning' letters which she had received from respondent. One letter, dated December 16, 1969, stated:
5
'After making the terms of our contract clear to you, we went ahead in good faith and had your subscriptions entered for the entire periods you had agreed to take. The contract you signed is: Not subject to cancellation after acceptance or verification.
6
'Knowing, therefore, the obligations we have incurred in your name, we feel confident that you will continue your magazine subscriptions and make the convenient monthly payments regularly and promptly.'3
7
A second letter, received a week later from respondent's agent, declared:
8
'After an account is three months delinquent it is brought to my attention. I feel that you should realize that you are receiving our merchandise which we have paid for. Had you dealt directly with the publishers yourself, you would have had to pay them in advance for the magazines.
9
'Again, let me remind you that we have ordered these magazines in advance and that you have incurred an obligation to repay us. This is a credit account, and as such must be repaid by you on a monthly basis, much the same as if you had purchased any other type of merchandise on a monthly budget plan. (Emphasis supplied; underlined words are emphasized in the original letter).'4
10
Respondent admitted sending each of the above letters to petitioner.5 In addition, respondent submitted one affidavit to the District Court, describing the nature of the contracts which it offered to its clients. The affidavit stated that a customer who ordered magazine subscriptions from respondent was required to pay for all magazines during the first half of the contract term.6 Thus, according to the affidavit, at all times during the course of contract, a purchaser who has complied with the terms of the contract has paid for more magazines than he has received. Respondent did not, however, submit any affidavit to the court contesting any of the facts stated in its 'dunning' letters. On this record, both parties moved for summary judgment, declaring explicitly that no factual question remained undecided.
11
Section 121 of the Truth in Lending Act requires merchants who regularly extend credit, with attendant finance charges,7 to disclose certain contract information 'to each person to whom consumer credit is extended and upon whom a finance charge is or may be imposed . . .'8 Among other relevant facts, the merchant must, where applicable, list the cash price of the merchandise or service sold, the amount of finance and other charges, and the rate of the charges.9 Failure to disclose renders the seller liable to the consumer for a penalty of twice the amount of the finance charge, but in no event less than $100 or more than $1,000.10 The creditor may also be assessed for the costs of the litigation, including reasonable attorney's fees11 and, in certain circumstances not relevant here, may be the subject of criminal charges.12
Section 105 of the Act13 provides:
12
'The (Federal Reserve) Board shall prescribe regulations to carry out the purposes of (the Act). These regulations may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper to effectuate the purposes of (the Act), to prevent circumvention or evasion thereof, or to facilitate compliance therewith.'
13
Accordingly, the Board has promulgated Regulation Z, which defines the circumstances in which a seller who regularly extends credit must make the disclosures outlined in § 128.14 The regulation provides that disclosure is necessary whenever credit is offered to a consumer 'for which either a finance charge is or may be imposed or which pursuant to an agreement, is or may be payable in more than four installments.'15
14
Relying on the rule governing credit transactions of more than four installments, the District Court granted summary judgment for petitioner. The court found that respondent had extended credit to petitioner,16 which by agreement was payable in more than four installments, but had failed to comply with the disclosure provisions of the Act.
15
The Court of Appeals reversed, holding that the Board had exceeded its statutory authority in promulgating the regulation upon which the District Court relied. The regulation was found to conflict with § 121 of the Act17 since it required that disclosure be made in regard to some credit transactions in which a finance charge had not been imposed. As an alternative ground for its decision, the Court of Appeals held that the regulation created a conclusive presumption that credit payments made in more than four installments included a finance charge. Relying on Schlesinger v. State of Wisconsin, 270 U.S. 230, 46 S.Ct. 260, 70 L.Ed. 557 (1926), and Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932), the court concluded that such an irrebuttable presumption of fact violated the Due Process Clause of the Fifth Amendment.
16
* Passage of the Truth in Lending Act in 1968 culminated several years of congressional study and debate as to the propriety and usefulness of imposing mandatory disclosure requirements on those who extend credit to consumers in the American market. By the time of passage, it had become abundantly clear that the use of consumer credit was expanding at an extremely rapid rate. From the end of World War II through 1967, the amount of such credit outstanding had increased from $5.6 billion to $95.9 billion, a rate of growth more than 4 1/2 times as great as that of the economy.18 Yet, as the congressional hearings revealed, consumers remained remarkably ignorant of the nature of their credit obligations and of the costs of deferring payment.19 Because of the divergent, and at times fraudulent, practices by which consumers were informed of the terms of the credit extended to them, many consumers were prevented from shopping for the best terms available and, at times, were prompted to assume liabilities they could not meet.20 Joseph Barr, then Under Secretary of the Treasury, noted in testifying before a Senate subcommittee that such blind economic activity is inconsistent with the efficient functioning of a free economic system such as ours, whose ability to provide desired material at the lowest cost is dependent on the asserted preferences and informed choices of consumers.21
17
The Truth in Lending Act was designed to remedy the problems which had developed. The House Committee on Banking and Currency reported, in regard to the then proposed legislation:
18
'(B)y requiring all creditors to disclose credit information in a uniform manner, and by requiring all additional mandatory charges imposed by the creditor as an incident to credit be included in the computation of the applicable percentage rate, the American consumer will be given the information he needs to compare the cost of credit and to make the best informed decision on the use of credit.'22
19
This purpose was stated explicitly in § 102 of the legislation enacted:
20
'The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.'23
21
The hearings held by Congress reflect the difficulty of the task it sought to accomplish. Whatever legislation was passed had to deal not only with the myriad forms in which credit transactions then occurred, but also with those which would be devised in the future.24 To accomplish its desired objective, Congress determined to lay the structure of the Act broadly and to entrust its construction to an agency with the necessary experience and resources to monitor its operation. Section 105 delegated to the Federal Reserve Board broad authority to promulgate regulations necessary to render the Act effective. The language employed evinces the awareness of Congress that some creditors would attempt to characterize their transactions so as to fall one step outside whatever boundary Congress attempted to establish. It indicates as well the clear desire of Congress to insure that the Board had adequate power to deal with such attempted evasion. In addition to granting to the Board the authority normally given to administrative agencies to promulgate regulations designed to 'carry out the purposes' of the Act, Congress specifically provided, as noted earlier, that the regulations may define classifications and exceptions to insure compliance with the Act.25 See supra, at 361—362. The Board was thereby empowered to define such classifications as were reasonably necessary to insure that the objectives of the Act were fulfilled, no matter what adroit or unscrupulous practices were employed by those extending credit to consumers.
22
One means of circumventing the objectives of the Truth in Lending Act, as passed by Congress, was that of 'burying' the cost of credit in the price of goods sold. Thus in many credit transactions in which creditors claimed that no finance charge had been imposed, the creditor merely assumed the cost of extending credit as an expense of doing business, to be recouped as part of the price charged in the transaction.26 Congress was well aware, from its extensive studies, of the possibility that merchants could use such devices to evade the disclosure requirements of the Act. The Committee hearings are replete with suggestions that such manipulation would render the Act a futile gesture in the case of goods normally sold by installment contract.27 Opponents of the bill contended that the reporting provisions would actually encourage merchants who had formerly segregated their credit costs not to do so. They predicted that the effect of the Act would thus be to reduce the amount of information available to the consumer, a result directly contrary to that which was intended.28 Proponents of the legislation claimed that the Act would enhance the consumer's ability to make an informed choice even if finance charges were hidden. In response to a claim that credit costs would be incorporated in the price of goods, Senator Douglas, who first proposed the Truth in Lending Act, stated:
23
'I would like to call to your attention, Senator, for purposes of the record, that this bill does not provide for judgment solely on the basis of the . . . annual interest rate or the total finance charges. It also provides that there shall be a statement of the cash price or delivery price of the property or service to be acquired. Both things are to be stated, price and finance charges, and the judgment of the consumer can be on the basis of both of these factors, not merely on one alone; and if a merchant tries to have a low finance charge and bury it in a high cash price or delivered price, then the purchaser can shop on price just as much as on the finance charges.'29
24
It was against this legislative background that the Federal Reserve Board promulgated regulations governing enforcement of the Truth in Lending Act. In September, 1968, with the aid of an advisory board composed of representatives of diverse retail, lending, and consumer groups, the Board compiled and released a draft of proposed regulations.30 Comments and criticisms from interested parties were invited. After more than 1,800 responses were received and considered by the Board, the regulations were reviewed and published in the Federal Register.31
25
The Four Installment Rule was included in the original published draft of the regulations and was not amended prior to its final adoption.32 The Board's objective in promulgating the rule was to prevent the Act from fulfilling the prophecy which its opponents had forecast. As J. L. Robertson, vice chairman of the Board of Governors, stated in an advisory letter issued a year later:
26
'The Board felt that it was imperative to include transactions involving more than four instalments under the Regulation since without this provision the practice of burying the finance charge in the cash price, a practice which already exists in many cases, would have been encouraged by Truth in Lending. Obviously this would have been directly contrary to Congressional intent.'33
27
Furthermore, even as to sales in which it was impossible to determine what, if any, portion of the price recompensed the creditor for deferring payment, the regulation at least required that the consumer be provided with some information which would enable him to make an informed economic choice.34
II
28
The standard to be applied in determining whether the Board exceeded the authority delegated to it under the Truth in Lending Act is well established under our prior cases. Where the empowering provision of a statute states simply that the agency may 'make . . . such rules and regulations as may be necessary to carry out the provisions of this Act,'35 we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 280—281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). See also American Trucking Assns. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953).
29
We have also construed enabling provisions similar to § 105 of the Truth in Lending Act, in which Congress has stressed the agency's power to counteract attempts to evade the purposes of a statute. In Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945), we were asked to determine whether the Administrator of the Wage and Hour Division of the Department of Labor was empowered under the Fair Labor Standards Act of 193836 to prohibit companies from allowing or requiring their employees to do industrial homework. The Act required the Administrator to approve orders which were designed to raise the minimum wage to 40 cents an hour. While the Act did not specifically mention industrial homework, § 8(f) stated that the Administrator's orders
30
'shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein.'37
31
After hearings, the Administrator determined that homework furnished 'a ready means' of evading his orders, and prohibited certain companies subject thereto from employing this means of production. The Court concluded that the Administrator had not exceeded his authority under the Act, noting that a more restrictive interpretation of the enabling provision would have rendered the Act inoperable. Focusing on the mandate provided by § 8(f), the Court stated:
32
'When command is so explicit and, moreover, is reinforced by necessity in order to make it operative, nothing short of express limitation or abuse of discretion in finding that the necessity exists should undermine the action taken to execute it. When neither such limitation nor such abuse exists, but the necessity is conceded to be well founded in fact, there would seem to be an end of the matter.' 324 U.S., at 255, 65 S.Ct., at 612.
33
In light of our prior holdings and the legislative history of the Truth in Lending Act, we cannot agree with the conclusion of the Court of Appeals that the Board exceeded its statutory authority in promulgating the Four Installment Rule. Congress was clearly aware that merchants could evade the reporting requirements of the Act by concealing credit charges. In delegating rulemaking authority to the Board, Congress emphasized the Board's authority to prevent such evasion. To hold that Congress did not intend the Board to take action against this type of manipulation would require us to believe that, despite this emphasis, Congress intended the obligations established by the Act to be open to evasion by subterfuges of which it was fully aware. As in Gemsco, the language of the enabling provision precludes us from accepting so narrow an interpretation of the Board's power.
34
Given that some remedial measure was authorized, the question remaining is whether the measure chosen is reasonably related to its objectives. We see no reason to doubt the Board's conclusion that the rule will deter creditors from engaging in the conduct which the Board sought to eliminate. The burdens imposed on creditors are not severe, when measured against the evils which are avoided. Furthermore, were it possible or financially feasible to delve into the intricacies of every credit transaction, it is clear that many creditors to whom the rule applies would be found to have charged for deferring payment, while claiming they had not. That some other remedial provision might be preferable is irrelevant. We have consistently held that where reasonable minds may differ as to which of several remedial measures should be chosen, courts should defer to the informed experience and judgment of the agency to whom Congress delegated appropriate authority. Northwestern Elec. Co. v. FPC, 321 U.S. 119, 124, 64 S.Ct. 451, 453, 88 L.Ed. 596 (1944); National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 1013, 87 L.Ed. 1344 (1943); American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 236, 57 S.Ct. 170, 172, 81 L.Ed. 142 (1936).
35
Respondent contends, however, that the Four Installment Rule must be abrogated since it is 'inconsistent' with portions of the enabling statute. The purported conflict arises because the statute specifically mentions disclosure only in regard to transactions in which a finance charge is in fact imposed,38 although the rule requires disclosure in some cases in which no such charge exists. Respondent argues that, in requiring disclosure as to some transactions, Congress intended to preclude the Board from imposing similar requirements as to any other transactions.
36
To accept respondent's argument would undermine the flexibility sought in vesting broad rulemaking authority in an administrative agency. In American Trucking Assns. v. United States, supra, we noted that it was not:
37
'a reasonable canon of interpretation that the draftsmen of acts delegating agency powers, as a practical and realistic matter, can or do include specific consideration of every evil sought to be corrected. . . . (N)o great acquaintance with practical affairs is required to know that such prescience, either in fact or in the minds of Congress, does not exist. Its very absence, moreover, is precisely one of the reasons why regulatory agencies such as the Commission are created, for it is the fond hope of their authors that they bring to their work the expert's familiarity with industry conditions which members of the delegating legislatures cannot be expected to possess.' 344 U.S., at 309 310, 73 S.Ct., at 314 (citations omitted).
38
Neither the sections of the Truth in Lending Act which refer specifically to transactions involving finance charges nor any other sections of the Act indicate that Congress attempted to list comprehensively all types of transactions to which the Board's regulations might apply. To the contrary, § 105's broad grant of rulemaking authority reflects an intention to rely on those attributes of agency administration recognized in American Trucking. We cannot then infer that references in the Act to transactions involving credit charges were intended to limit the deterrent measures which the Board might choose.
39
Since the deterrent effect of the challenged rule clearly implements the objectives of the Act, respondent's contention is reduced to a claim that the rule is void because it requires disclosure by some creditors who do not charge for credit and thus need not be deterred. The fact that the regulation may affect such individuals does not impair its otherwise valid purpose. A similar contention was made in Gemsco, and rejected by the Court. Gemsco claimed that the Administrator was not attempting to enforce the requirements of the statute but was attempting to advance 'experimental social legislation' which Congress had not approved. Responding to that argument the Court stated:
40
'Section 8(f), in directing the Administrator to include 'such terms and conditions' as he 'finds necessary to carry out the purposes of such orders,' did not forbid him to take the only measures which would be effective, merely because other consequences necessarily would follow. The language neither states expressly nor implies that he is to do only what will achieve the stated ends and nothing more. The statute does not direct the Administrator to make the rate effective by all necessary means except those which may have other social or economic consequences.' 324 U.S., at 257, 65 S.Ct., at 613.
41
There the Court was referring to the regulation of subject matter not specifically mentioned in the enabling legislation. A similar rule applies when a remedial provision requires some individuals to submit to regulation who do not participate in the conduct the legislation was intended to deter or control. In Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388—389, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926), the Court held that, in defining a class subject to regulation, '(t)he inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity.' See also North American Co. v. SEC, 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945 (1946). Nothing less will meet the demands of our complex economic system. Where, as here, the transactions or conduct which Congress seeks to administer occur in myriad and changing forms, a requirement that a line be drawn which insures that not one blameless individual will be subject to the provisions of an act would unreasonably encumber effective administration and permit many clear violators to escape regulation entirely. That this rationale applies to administrative agencies as well as to legislatures is implicit in both Gemsco and American Trucking Assns. In neither case was every individual engaged in the regulated activity responsible for the specific consequences the agency sought to eliminate.
42
Respondent argues that such an interpretation of the Truth in Lending Act is inconsistent with our holding in FCC v. American Broadcasting Company, 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699 (1954). In that case, the Court considered whether, in establishing regulations to govern programing, the FCC had properly interpreted a criminal provision prohibiting the broadcasting of lotteries. After noting that a given statute could not be construed one way for purposes of an administrative proceeding and another for criminal prosecution, the Court stated:
43
'If we should give (the criminal provision) the broad construction urged by the Commission, the same construction would likewise apply in criminal cases.' Id., at 296, 74 S.Ct., at 600.
44
Since, in drafting its regulation, the Commission had failed to apply the well-established rule that penal provisions must be construed narrowly, the Court held the regulation invalid.
45
Relying on American Broadcasting, respondent contends that the Truth in Lending Act must be construed narrowly since it contains penal provisions,39 and that a narrow interpretation requires that the Board's rule be nullified. We cannot agree, however, that every section of an act establishing a broad regulatory scheme must be construed as a 'penal' provision, as that term is used in American Broadcasting, merely because two sections of the Act provide for civil and criminal penalties. Penal statutes are construed narrowly to insure that no individual is convicted unless 'a fair warning (has first been) given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.' McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931).40 Where, as here, the language of the challenged rule is explicit, that risk is not present. See Kraus & Bros., Inc. v. United States, 327 U.S. 614, 621—622, 66 S.Ct. 705, 707—708, 90 L.Ed. 894 (1946).
46
We are also unable to accept respondent's argument that § 13041 does not allow imposition of a civil penalty in cases where no finance charge is involved but where a regulation requiring disclosure has been violated. Section 130 provides that the penalty assessed shall be twice the amount of the finance charge imposed, but not less than $100. Since the civil penalty prescribed is modest and the prohibited conduct clearly set out in the regulation, we need not construe this section as narrowly as a criminal statute providing graver penalties, such as prison terms. We have noted above that the objective sought in delegating rule making authority to an agency is to relieve Congress of the impossible burden of drafting a code explicitly covering every conceivable future problem. Congress cannot then be required to tailor civil penalty provisions so as to deal precisely with each step which the agency thereafter finds necessary. In light of the emphasis Congress placed on agency rule making and on private and administrative enforcement of the Act, we cannot conclude that Congress intended those who failed to comply with regulations to be subject to no penalty or to criminal penalties alone. As the District Court concluded, imposition of the minimum sanction is proper in cases such as this, where the finance charge is nonexistent or undetermined.
47
Finally, the Four Installment Rule does not conflict with the Fifth Amendment under our holdings in Schlesinger v. State of Wisconsin, 270 U.S. 230, 46 S.Ct. 260, 70 L.Ed. 557 (1926), and Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932). In Schlesinger and Heiner, we held that certain taxing provisions violated the Due Process Clauses of the Fifth and Fourteenth Amendments because they conclusively presumed the existence of determinative facts. The challenged rule contains no comparable presumption. The rule was intended as a prophylactic measure; it does not presume that all creditors who are within its ambit assess finance charges,42 but, rather, imposes a disclosure requirement on all members of a defined class in order to discourage evasion by a substantial portion of that class.
48
The Truth in Lending Act reflects a transition in congressional policy from a philosophy of 'Let the buyer beware' to one of 'Let the seller disclose.' By erecting a barrier between the seller and the prospective purchaser in the form of hard facts, Congress expressly sought 'to . . . avoid the uninformed use of credit.' 15 U.S.C. § 1601. Some may claim that it is a relatively easy matter to calculate the total payments to which petitioner was committed by her contract with respondent; but at the time of sale, such computations are often not encouraged by the solicitor or performed by the purchaser. Congress has determined that such purchasers are in need of protection; the Four Installment Rule serves to insure that the protective disclosure mechanism chosen by Congress will not be circumvented.
49
That the approach taken may reflect what respondent views as an undue paternalistic concern for the consumer is beside the point. The statutory scheme is within the power granted to Congress under the Commerce Clause. It is not a function of the courts to speculate as to whether the statute is unwise or whether the evils sought to be remedied could better have been regulated in some other manner.
50
Reversed and remanded.
51
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST concur, dissenting in part.
52
I have concluded that this is not a proper case for summary judgment under Fed.Rule Civ.Proc. 56(c), which provides that summary judgment only may be granted if there is 'no genuine issue as to any material fact' and 'the moving party is entitled to a judgment as a matter of law.' As I interpret the present record in light of our decisions, see, e.g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142; White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738; United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176, there remains unresolved a genuine issue of material fact. Although I agree with the majority that Regulation Z is valid and accordingly would reverse the decision of the Court of Appeals, I would remand this case to the District Court for resolution of that material issue.
53
The disclosure provisions of the Truth in Lending Act apply only to an extension of 'consumer credit.' 15 U.S.C. § 1631. Thus, in order to assert successfully a claim under the Act for the statutory penalty and reimbursement for the costs of the action, see id., § 1640, petitioner, inter alia, must satisfy her burden of proving that respondent extended consumer credit within the meaning of the Act. Section 103(e) of the Act, 15 U.S.C. § 1602(e), defines 'credit' as 'the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.' In her complaint, petitioner merely alleges that respondent 'extends Consumer Credit as defined in Regulation Z, 12 C.F.R. (s) 226.2 (K) . . ..' Respondent denies in its answer that its contract with petitioner involved a 'credit transaction.' In one paragraph respondent avers: 'Under the contract executed by the customer and Defendant, the customer agrees to pay a stated amount per month for half of the life of the contract and Defendant agrees to supply the magazines for the full term of the contract. At all times the customer has prepaid for the magazines to be delivered. Under its arrangement with most of the publishers, Defendant reimburses the publisher periodically during the full term of the subscription.' In another paragraph it avers: 'At no point during the life of the contract has Defendant paid money to a third person or supplied goods or services to the customer for which reimbursement is expected from the customer in the future.'
54
On the basis solely of these allegations, one would conclude that the contract between the petitioner and the respondent did not constitute a credit transaction. If respondent merely collected $3.95 per month from each customer and sent the receipts periodically to the publisher,1 less the respondent's commission, respondent never would have made any advances for the customer, and the customer would owe nothing to the respondent for the loan of money or, in the words of the Act, as a 'finance charge.' On the other hand, if respondent advanced all or part of the subscription price to the publishers, respondent would be advancing 'credit' for the benefit of the customer.2 The legislative history indicates that 'the disclosure requirement would not apply to transactions which are not commonly thought of as credit transactions . . ..'3 As Professor Corbin has stated: 'A transaction may be an instalment contract without being a credit transaction at all. Both parties may agree to perform in instalments without promising to render any performance in advance of full payment of the price of each instalment so rendered.'4 The Act, in defining 'credit,' refers to the deferred payment of a 'debt.' A debt, however, is more than a binding contractual obligation to pay a sum of money in the future upon the performance of certain conditions by the other party to the contract. It is an unconditional obligation to pay.5 Thus, in my view, a proper resolution of the issue whether respondent extended credit to petitioner depends, at least in part, on the contractual relationships between the respondent and the publishers. The contracts between respondent and the publishers are not in the present record.6
55
The pleadings, of course, are not the only papers to be considered by the District Court in determining whether one party or the other is entitled to summary judgment. Under Rule 56(c) the court must consider 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any . . ..' During the collection period, respondent had sent petitioner a dunning letter reminding her 'that we have ordered these magazines in advance and that you have incurred an obligation to repay us. This is a credit account, and as such must be repaid by you on a monthly basis, much the same as if you had purchased any other type of merchandise on a monthly budget plan.' Respondent formally admitted that it had sent this letter to petitioner. Accordingly, it was properly considered by the District Judge.7 But, I do not view this 'admission' as conclusive or sufficient proof that respondent had extended credit within the meaning of the Act at the time the contract between petitioner and respondent was entered into.8 First, this is not an admission in terms that credit was extended within the meaning of the Act. Second, since petitioner at the time the letter was sent was three months in arrears, it may be that respondent had advanced money on her account only after she failed to meet her contractual obligation. It is settled under our decisions that material lodged by the moving party 'must be viewed in the light most favorable to the opposing party.' Adickes v. Kress & Co., 398 U.S., at 157, 158—159, 90 S.Ct., at 1608; United States v. Diebold, Inc., 369 U.S., at 655, 82 S.Ct., at 994.
56
Respondent is not deprived of the benefit of this principle of interpretation merely because it did not file an affidavit controverting the contents of the letter. Rule 56(e) provides that '(w)hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' The Advisory Committee note on the amendment which added this provision to the Rule, however, stated that '(w)here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.' We cited this comment with approval in Adickes v. Kress & Co., supra, 398 U.S. at 160, 90 S.Ct. at 1609. The moving party, in this case petitioner,9 must meet her burden of showing the absence of a genuine issue as to any material fact. Id., at 157, 90 S.Ct. at 1608. I cannot conclude that she met that burden. The District Judge was not possessed of sufficient information to resolve properly the issue whether credit had been extended. Under these circumstances, he should not have granted summary judgment. Cf. White Motor Co. v. United States, 372 U.S., at 263, 83 S.Ct., at 702.
57
Mr. Justice POWELL, dissenting.
58
I would affirm the judgment of the Court of Appeals on the ground that there was no extension of consumer credit within the meaning of the Truth in Lending Act.1 The majority takes the position that the credit issue is a question of fact properly resolved against respondent on petitioner's motion for summary judgment below. I cannot agree. In my view, the undisputed facts establish as a matter of law that the transaction between petitioner and respondent did not involve an extension of consumer credit. For the same reason, while I am in agreement with much of Mr. Justice DOUGLAS' dissenting opinion, I see no reason to remand the case for the taking of evidence.
59
* Clearly the Act applies only to transactions involving the extension of credit. The congressional declaration of purpose is explicit:
60
'The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit.' 15 U.S.C. § 1601.
61
The phrase 'extension of consumer credit' is not defined in the Act. Nor does the Act's definition of 'credit' provide any enlightenment.2 However, a transaction is commonly understood to involve credit when one party receives value in exchange for his unconditional promise to pay the other party for such value in the future. The mere fact that a party obligates himself in a contract to pay for goods or services in installments over a period of time does not render the contract a credit transaction:
62
'A transaction may be an instalment contract without being a credit transaction at all. Both parties may agree to perform in instalments without promising to render any performance in advance of full payment of the price of each instalment so rendered.' 3A A. Corbin, Contracts § 687, p. 246 (1960).
63
The transaction before the Court may well have been a credit transaction, but it was not respondent that extended the credit. Petitioner obligated herself to pay in advance for the magazines she was to receive. The contract required petitioner to pay equal installments over a 30-month period, but respondent was obligated only to provide magazines over 60 months. In effect, petitioner paid every month for two months' worth of magazines. Until the last magazine had been delivered, petitioner would have paid for more magzines than she received. Thus, the contract called for the extension of credit by petitioner to respondent. For this reason it was not an 'extension of consumer credit' within the meaning of the Act. See 15 U.S.C. § 1602(h).
64
The Federal Reserve Board, upon whose authority to interpret the Act the majority so heavily relies in sustaining Regulation Z, has indicated that a necessary element in a consumer credit transaction is the consumer's obligation to pay after he has received the bargained-for goods or services. In a published Opinion Letter dealing with the practice of assessing obstetrical services in periodic installments, the Board stated that '(a)s long as there are no finance charges assessed, and at no point do the charges for the services rendered exceed the payments to the extent that it would require more than 4 of the periodic instalments to repay the obligation, then the plan would not fall within the provisions of Regulation Z.'3 (Emphasis supplied.) This statement implicitly recognizes that credit is extended only when the value of goods or services provided exceeds the payments made.4
II
65
Implicit in the positions both of Mr. Justice DOUGLAS and of the majority is the assumption that, even admitting petitioner was to pay for each magazine before receiving it, under some factual circumstances respondent might nevertheless have extended credit.5 Thus, Mr. Justice DOUGLAS states that 'if respondent advanced all or part of the subscription price to the publishers, respondent would be advancing 'credit' for the benefit of the customer.' The majority is less clear on this point, stating only that '(i)n some cases in which a consumer pays in installments for a magazine subscription, credit may not have been extended to the consumer.' Ante, at 362 n. 16. The implication, however, is that in some such transactions, though the consumer pays for the magazines in advance, he may be the recipient of credit. I am unable to agree that under any set of circumstances, given the undisputed fact that petitioner agreed to pay in advance for each magazine, respondent might have extended credit. Petitioner did not obtain a loan from respondent which she would be unconditionally obligated to repay. She entered into a contract imposing continuing, mutually dependent obligations on both parties.6 Whether respondent advanced any part of the subscription price to magazine publishers is quite immaterial to a determination of the legal effect of the only transaction involved in this case: whether there was extension of consumer credit by respondent to petitioner. The only contract at issue is that between the parties; how and upon what terms respondent may have arranged to obtain the magazines for delivery to petitioner in fulfillment of its contractual obligations is of no concern to petitioner. Nor can any such arrangement by respondent with a third party change the nature of the transaction between the parties to this litigation.7
66
The controlling facts therefore are not in dispute, having been admitted by the cross-motions for summary judgment, and I can perceive of no way in which they can be construed as an extension of consumer credit by respondent to petitioner. A remand, unnecessarily burdening the parties and the court below, would serve no useful purpose. As a matter of law respondent did not extend credit within the meaning of the Truth in Lending Act. I would affirm the judgment below.
1
82 Stat. 148, 15 U.S.C. § 1604.
2
12 CFR § 226.2(k) (1972 rev.).
3
App. 21.
4
App. 20.
5
Petitioner also submitted to the court a letter sent to her legal counsel by respondent's office manager. The letter stated:
'Whereas, FPS, acts initialy (sic) as agent for the various publishers; upon acceptance of her contract, FPS thereafter acts solely as financier, and coguaranter (sic) of service with the various publishers; whereas, FPS, has fully invested in Mrs. Mourning's contract and does not receive refund in part or full from any, or, all publishers; for said FPS, investment, we therefore, must insist on compliance of your client to the terms of said contract until full-filment (sic) of said terms in the aforementioned contract result (sic) in mutual resolve (sic) of liability.' App. 14.
Respondent admitted that this letter had been written on its stationery by its employee, but denied that the employee was authorized to send it. Consequently, we do not consider the facts stated in the letter to have been admitted by respondent.
6
Affidavit of Stanley R. Swanson, Vice President of Family Publications Service, Inc., Aug. 26, 1970, p. 2 (District Court Record 198, 199). The affidavit also stated that, while customers of respondent were free to pay the entire price of their magazine subscriptions when their contract with respondent was signed, the price charged would be equal to the aggregate of the payments that would have been made had the customer elected to pay in installments. Respondent now admits that this statement was not true. In some cases, customers who agreed to pay the entire contract price immediately were charged less than the aggregate amount of the installment payments.
7
§ 103(f), 15 U.S.C. § 1602(f). Certain transactions, not here relevant, are exempt under § 104, 15 U.S.C. § 1603.
8
15 U.S.C. § 1631.
9
§ 128, 15 U.S.C. § 1638.
10
§ 130, 15 U.S.C. § 1640.
11
Ibid.
12
§ 112, 15 U.S.C. § 1611.
13
15 U.S.C. § 1604.
14
15 U.S.C. § 1638.
15
12 CFR § 226.2(k) (1972 rev.).
16
Respondent challenges the finding of the District Court that credit was extended to petitioner. In some cases in which a consumer pays in installments for a magazine subscription, credit may not have been extended to the consumer. However, in view of the admissions by respondent which were before the District Court, respondent's failure to controvert those admissions by affidavit, and the litigation posture which respondent has consistently maintained beginning in the District Court, i.e., that no factual matters remained unresolved, we conclude that summary judgment on this issue was properly granted. Fed.Rule Civ.Proc. 56(e).
17
15 U.S.C. § 1631.
18
H.R.Rep.No.1040, 90th Cong., 1st Sess., 10—11 (1967).
19
Id., at 13; S.Rep.No.392, 90th Cong., 1st Sess., 2—3 (1967).
20
H.R.Rep.No.1040, supra, n. 18, at 13; S.Rep.No.392, supra, n. 19, at 1—2.
21
Hearings on H.R. 11601 before the Subcommittee on Consumer Affairs of the House Committee on Banking and Currency, 90th Cong., 1st Sess., pt. 1, p. 76 (1967).
22
H.R.Rep.No.1040, supra, n. 18, at 13.
23
15 U.S.C. § 1601.
24
See letter from Paul R. Dixon, Chairman of the Federal Trade Commission, to Senator A. Willis Robertson, Chairman of the Senate Committee on Banking and Currency, Feb. 18, 1964, in Hearings on S. 750 before the Subcommittee on Production and Stabilization of the Senate Committee on Banking and Currency, 88th Cong., 1st and 2d Sess., pt. 2, p. 1303 (1963—1964).
25
15 U.S.C. § 1604.
26
For example, two merchants might buy watches at wholesale for $20 which normally sell at retail for $40. Both might sell immediately to a consumer who agreed to pay $1 per week for 52 weeks. In one case, the merchant might claim that the price of the watch was $40 and that the remaining $12 constituted a charge for extending credit to the consumer. From the consumer's point of view, the credit charge represents the cost which he must pay for the privilege of deferring payment of the debt he has incurred. From the creditor's point of view, much simplified, the charge may represent the return which he might have earned had he been able to invest the proceeds from the sale of the watch from the date of the sale until the date of payment. The second merchant might claim that the price of the watch was $52 and that credit was free. The second merchant, like the first, has forgone the profits which he might have achieved by investing the sale proceeds from the day of the sale on. The second merchant may be said to have 'buried' this cost in the price of the item sold. By whatever name, the $12 differential between the total payments and the price at which the merchandise could have been acquired is the cost of deferring payment.
27
Hearings on S. 1740 before the Subcommittee on Production and Stabilization of the Senate Committee on Banking and Currency, 87th Cong., 1st Sess., 49, 56—57, 127, 389—390, 447—448, 563, 1155 1156 (1961); Hearings on S. 1740 before the Subcommittee on Production and Stabilization of the Senate Committee on Banking and Currency, 87th Cong., 2d Sess., 16, 45, 265, 267—268, 287, 341 342, 360—361, 365—367, 376, 407, 415 (1962); Senate Hearings on S. 750, 88th Cong., 1st and 2d Sess., supra, n. 24, pts. 1 and 2, pp. 13—14, 749, 1284—1285; Hearings on S. 5 before the Subcommittee on Financial Institutions of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 41—42, 123—134, 377—379, 513, 699 (1967); House Hearings on H.R. 11601, 90th Cong., 1st Sess., supra, n. 21, pts. 1 and 2, pp. 583, 590—591, 802, 825—826.
28
Senate Hearings on S. 1740, 87th Cong., 2d Sess., supra, n. 27, at 287; Senate Hearings on S. 750, 88th Cong., 1st and 2d Sess., supra, n. 24, pt. 1, pp. 13—14; House Hearings on H.R. 11601, 90th Cong., 1st Sess., supra, n. 21, pt. 2, p. 596.
29
Senate Hearings on S. 1740, 87th Cong., 1st Sess., supra, n. 27, at 447—448. See also Senate Hearings on S. 1740, 87th Cong., 2d Sess., supra, n. 27, at 45.
30
33 Fed.Reg. 15506—15516 (1968).
31
34 Fed.Reg. 2002—2011 (1969).
32
Compare § 226.2(h), 33 Fed.Reg. 15507 (1968), with § 226.2(k), 34 Fed.Reg. 2003 (1969).
33
Federal Reserve Board Advisory Letter of Mar. 3, 1970, by J. L. Robertson. See also Federal Reserve Board Advisory Letter of Aug. 26, 1969, by J. L. Robertson.
34
Statement of J. L. Robertson, Vice Chairman, Board of Governors of the Federal Reserve System, in Hearings on Consumer Credit Regulations before the Subcommittee on Consumer Affairs of the House Committee on Banking and Currency, 91st Cong., 1st Sess., pt. 2, pp. 380—381 (1969).
35
E.g., § 8 of the United States Housing Act of 1937, as amended, 42 U.S.C. § 1408.
36
52 Stat. 1060.
37
52 Stat. 1065.
38
§ 103(f), 15 U.S.C. § 1602(f); § 121, 15 U.S.C. § 1631; § 130(a), 15 U.S.C. § 1640(a).
39
§ 112, 15 U.S.C. § 1611; § 130, 15 U.S.C. § 1640.
40
See Kordel v. United States, 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52 (1948). See also W. LaFave & A. Scott, Criminal Law 72 (1972).
41
15 U.S.C. § 1640. This section refers only to the failure to provide 'information required under this part to be disclosed . . ..' (Emphasis supplied.) The italicized language was added to the statute to distinguish disclosure required in regard to sales transactions from that required in regard to advertising. H.R.Rep.No.1040, supra, n. 18, at 19, 30. The penalty provision applies both to the failure to disclose information specifically required by the statute and to the failure to abide by regulations promulgated by the Board to govern such disclosure.
42
In regard to some transactions to which the Four Installment Rule applies, merchants need not report the amount and rate of finance charges. Federal Reserve Board Advisory Letter of July 24, 1969, by J. L. Robertson; Federal Reserve Board Letter No. 30, July 8, 1969, by Frederic Solomon.
1
There are suggestions in the record that respondent is a wholly owned subsidiary of Time, Inc. Respondent, however, sold not only Life, a Time, Inc., publication, but magazines of other publishers.
2
In a free-enterprise system, one must presume that there is a 'finance charge' for the advance of credit. It would nonetheless be a 'finance charge' although it were wholly undisclosed or not separately stated in an account rendered to the customer.
3
S.Rep.No.392, 90th Cong., 1st Sess., 14; H.R.Rep.No.1040, 90th Cong., 1st Sess., 25.
4
3A A. Corbin, Contracts § 687, p. 246 (1960). A published opinion of the Federal Reserve Board recognizes that installment payment plans may not involve an extension of credit when charges for services rendered do not exceed prior payments. FRB Opinion Letter No. 262 (1970).
5
3A A. Corbin, Contracts § 691 (1960).
6
My Brother POWELL asserts that, given the undisputed fact that petitioner agreed to pay in advance, respondent as a matter of law could not have extended credit. Post, at 383—384. We do not, however, know what the financial relationships in this tripartite arrangement are. For example, it may be that respondent advances the full five-year subscription price to the publisher on the subscriber's behalf when the contract between the subscriber and respondent is executed. If that is so, the subscriber may receive an unconditional right to receive magazines from the publisher over the five-year period, whether or not he meets his contractual obligations with respondent. Under these circumstances, respondent will be acting as a financier, enabling the subscriber to take advantage of the publisher's five-year subscription offer, but yet to defer payment on the subscription price. Any 'profit' respondent receives will be largely attributable to its services as a financier. I do not see that such a financial arrangement differs substantially from the case where a subscriber borrows the full subscription price from a bank and pays the publisher directly, obligating himself to repay the bank in equal installments, with interest, over two and one-half years. As my Brother POWELL argues, the subscriber under those circumstances will be advancing credit to the publisher because he has paid for all magazines in advance, but it cannot be doubted that at the same time the bank has advanced credit to the subscriber.
7
Respondent mailed another letter to petitioner which stated:
'Whereas, FPS, acts initialy (sic) as agent for the various publishers; upon acceptance of her contract, FPS thereafter acts solely as financier, and co-guaranter (sic) of service with the various publishers; whereas, FPS, has fully invested in Mrs. Mourning's contract and does not receive refund in part or full from any, or, all publishers; for said FPS, investment, we therefore, must insist on compliance of your client to the terms of said contract . . ..'
Although respondent admitted that the letter appeared on its stationery and was written by an employee, it denied that the employee was authorized to send the letter. Accordingly, since there was an issue of fact whether the letter was authorized and thus a binding admission, the letter could not be considered properly on petitioner's motion for summary judgment. Cf. 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1231, p. 75 (1971 Supp.).
8
We need not resolve here whether, if the contract was not originally a credit transaction, petitioner's own breach could have converted it retroactively into a credit transaction within the meaning of the Act.
9
Both parties moved for summary judgment. That does not relieve the District Judge of his responsibility to consider each motion separately in light of the theories advanced by each party and to proceed to trial if he concludes that there is a genuine issue of material fact to be resolved. See 6 J. Moore, Federal Practice 56.13 (2d ed. 1972).
1
Having this view of the case, I find it unnecessary to address the other two issues, namely: (i) whether the Federal Reserve Board exceeded its authority in adopting Regulation Z, which extends the coverage of the Act to transactions in which no finance charge can be identified; and (ii) whether the civil penalty provision of 15 U.S.C. § 1640(a) may validly be imposed in a case where, by concession of the parties on cross-motions for summary judgment, the transaction does not involve a finance charge.
2
'The term 'credit' means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.' 15 U.S.C. § 1602(e). The Act provides no gloss on the terms 'debtor' and 'debt,' and the definition of 'creditor' is limiting rather than explanatory. ('The term 'creditor' refers only to creditors who regularly extend, or arrange for the extension of, credit for which the payment of a finance charge is required . . ..' 15 U.S.C. § 1602(f).)
3
FRB Opinion Letter No. 262 (1970); 4 CCH Consumer Credit Guide 30,516.
4
Legislative history bolsters the view that Congress assumed 'credit' meant the receipt of goods or services in advance of paying for them. In earlier versions of the Act, the definition of credit included 'any contract . . . of sale of property or services, either for present or future delivery, under which part or all of the price is payable subsequent to the making of such sale or contract; . . . any contract or arrangement for the hire, bailment, or leasing of property . . ..' S. 1740, 87th Cong., 1st Sess.; S. 5, 90th Cong., 1st Sess. (as introduced Jan. 11, 1967). During the Senate hearings, a question was raised as to whether any finance charge would be attributable to certain included transactions, particularly ordinary bailment and lease arrangements. Hearings on S. 5 before the Subcommittee on Financial Institutions of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 663 (1967) (statement of J. L. Robertson, Vice Chairman, Board of Governors of the Federal Reserve System). This criticism was heeded and the final version of the bill substituted the language now found in the Act (15 U.S.C. § 1602(e)) with the following explanation: 'The original S. 5 language was deleted because it was somewhat cumbersome and sweeping and referred to various types of lease situations which might not be true extensions of credit.' S.Rep.No.392, 90th Cong., 1st Sess., 12 (1967). In fact a lease, like the 'paid during service' magazine contracts offered by respondent, often imposes a noncancellable obligation on the lessee or consumer to pay in a series of installments. Yet the lessor does not extend credit because the lessee ordinarily pays in advance for each period during which he enjoys the use of the property. Petitioner, by the same reasoning, was no more the recipient of credit than is the ordinary lessee or bailee. It would be inconsistent with this legislative history to read 'extension of credit' to include every noncancellable installment obligation.
5
The District Court found that there was no issue as to any material fact in this case. The Court of Appeals did not disturb this finding. Whether one agrees with this finding as does the majority or disagrees for reasons stated by Mr. Justice DOUGLAS, the District Court's conclusion that the uncontroverted facts establish a consumer credit transaction is clearly a conclusion of law and therefore is entitled to no presumption of correctness. Nor do respondent's dunning letters to petitioner describing her obligation as a credit account create any such presumption. Again, such statements only express a legal conclusion and do not establish the existence of a consumer credit transaction within the meaning of the Act.
6
If respondent failed to deliver the magazines as agreed prior to completion of the specified payments, petitioner would have no further obligation to pay:
'A contract for the sale of goods may be an instalment contract with respect to the goods sold as with respect to payments of the price. The non-delivery of an instalment or delivery of a nonconforming instalment when required by the contract is a breach for which an action can be maintained at once. There is no doubt also that the buyer is privileged to withhold payment of the price of the undelivered instalment or of a nonconforming instalment that is rightfully rejected. . . . (T)he buyer does not have to extend such credit (beyond that which was agreed upon) to the seller by making payments without receiving the agreed goods.' 3A A. Corbin, Contracts § 691, p. 264 (1960). See Fla.Stat.Ann. §§ 672.2—612, 672.2—711, 672.2—717 (1966).
7
Indeed, petitioner's complaint avers that the installment contract for the purchase and sale of the magazines is 'the only instrument executed and existing between the parties,' and that respondent thereby 'extend(ed) Consumer Credit as defined in Regulation Z . . ..' There is no allegations as to extension of credit by the publishers or by any third person. Second Amended Complaint, App. 3, 4.
| 78
|
411 U.S. 389
93 S.Ct. 1670
36 L.Ed.2d 342
Roosevelt F. PALMORE, Appellant,v.UNITED STATES.
No. 72—11.
Argued Feb. 21, 1973.
Decided April 24, 1973.
Syllabus
Palmore was convicted of a felony in violation of the District of Columbia Code by the Superior Court of the District of Columbia. The District of Columbia Court of Appeals, rejecting Palmore's contention that he was entitled to be tried by an Art. III judge with lifetime tenure and salary protection, affirmed, concluding that under the plenary power to legislate for the District of Columbia conferred by Art. I, § 8, cl. 17, of the Constitution, Congress had 'constitutional power to proscribe certain criminal conduct only in the District and to select the appropriate court, whether it is created by virtue of article III or article I, to hear and determine . . . particular criminal cases within the District.' Palmore seeks to invoke this Court's appellate jurisdiction on the basis of 28 U.S.C. § 1257(2), which provides for an appeal to this Court from a final judgment upholding the validity of 'a statute of any state' against a claim that it is repugnant to the Constitution. Held:
1. The District of Columbia Code is not a state statute for purposes of § 1257(2), and the lower court's upholding of the federal statute is therefore not reviewable by appeal but by certiorari. Pp. 394—397.
2. Not every judicial proceeding that implicates a charge, claim, or defense based on an Act of Congress or a law made under its authority must be presided over by an Art. III judge. Pp. 397 410.
(a) The jurisdictional grant respecting 'such inferior Courts as the Congress may from time to time ordain and establish' requires neither that only Art. III courts hear and decide cases within the judicial power of the United States nor that each inferior court be invested with all the jurisdiction flowing from Art. III, and federal criminal laws have been enforced by state, territorial, and military courts and judges who did not enjoy the Art. III protections. Pp. 397—404.
(b) The strictly local court system consisting of the Superior Court and the Court of Appeals for the District of Columbia was created by the District of Columbia Court Reform and Criminal Procedure Act of 1970 pursuant to Congress' plenary Art. I power to legislate for the District of Columbia, and was intended to relieve the Art. III courts of the burdens of local civil and criminal litigation. O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356, distinguished. Pp. 405—407.
Appeal dismissed and certiorari granted in part; 290 A.2d 573, affirmed.
Frank F. Flegal, Washington, D.C., for appellant.
Sol. Gen. Erwin N. Griswold, for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
Aside from an initial question of our appellate jurisdiction under 28 U.S.C. § 1257(2), this case requires us to decide whether a defendant charged with a felony under the District of Columbia Code may be tried by a judge who does not have protection with respect to tenure and salary under Art. III of the Constitution. We hold that under its Art. I, § 8, cl. 17, power to legislate for the District of Columbia, Congress may provide for trying local criminal cases before judges who, in accordance with the District of Columbia Code, are not accorded life tenure and protection against reduction in salary. In this respect, the position of the District of Columbia defendant is similar to that of the citizen of any of the 50 States when charged with violation of a state criminal law: Neither has a federal constitutional right to be tried before judges with tenure and salary guarantees.
2
* The facts are uncomplicated. In January 1971, two officers of the District of Columbia Metropolitan Police Department observed a moving automobile with license tags suggesting that it was a rented vehicle. Although no traffic or other violation was then indicated, the officer stopped the vehicle for a spot-check of the driver's license and carrental agreement. Palmore, the driver of the vehicle, produced a rental agreement from the glove compartment of the car and explained why the car appeared to be, but was not, overdue. During this time, one of the officers observed the hammer mechanism of a gun protruding from under the armrest in the front seat of the vehicle. Palmore was arrested and later charged with the felony of carrying an unregistered pistol in the District of Columbia after having been convicted of a felony, in violation of the District of Columbia Code, § 22—3204 (1967).1 He was tried and found guilty in the Superior Court of the District of Columbia.
3
Under Title I of the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473 (Reorganization Act),2 the judges of the Superior Court are appointed by the President and serve for terms of 15 years. D.C.Code Ann. §§ 11—1501(a), 11—1502 (Supp. V, 1972).3 Palmore moved to dismiss the indictment against him, urging that only a court 'ordain(ed) and established(ed)' in accordance with Art. III of the United States Constitution could constitutionally try him for a felony prosecution under the District of Columbia Code. He also moved to suppress the pistol as the fruit of an illegal search and seizure. The motions were denied in the Superior Court, and Palmore was convicted.
4
The District of Columbia Court of Appeals affirmed concluding that under the plenary power to legislate for the District of Columbia, conferred by Art. I, § 8, cl. 17, of the Constitution, Congress had 'constitutional power to proscribe certain criminal conduct only in the District and to select the appropriate court, whether it is created by virtue of article III or article I, to hear and determine these particular criminal cases within the District.' 290 A.2d 573, 576—577 (1972). Palmore filed a notice of appeal with the District of Columbia Court of Appeals and his jurisdictional statement here, purporting to perfect an appeal under 28 U.S.C. § 1257(2). We postponed further consideration of our jurisdiction to review this case by way of appeal to the hearing on the merits. 409 U.S. 840, 93 S.Ct. 66, 34 L.Ed.2d 79 (1972).
II
5
Title 28 U.S.C. § 12574 specifies the circumstances under which the final judgments of the highest court of a State may be reviewed in this Court by way of appeal or writ of certiorari. As amended in 1970 by § 172(a)(1) of the Reorganization Act, 84 Stat. 590, the term 'highest court of a State' as used in § 1257 includes the District of Columbia Court of Appeals. Appeal lies from such courts only where a statute of the United States is struck down, 28 U.S.C. § 1257(1), or where a statute of a State is sustained against federal constitutional attack, id., § 1257(2). Because the statute at issue was upheld in this case, an appeal to this Court from that judgment lies only if the statute was a 'statute of any state' within the meaning of § 1257(2). Palmore insists that it is, but we cannot agree.
6
The 1970 amendment to § 1257 plainly provided that the District of Columbia Court of Appeals should be treated as the 'highest court of a State,' but nowhere in § 1257, or elsewhere, has Congress provided that the words 'statute of any state,' as used in § 1257(2), are to include the provisions of the District of Columbia Code. A reference to 'state statutes' would ordinarily not include provisions of the District of Columbia Code, which was enacted, not by a state legislature, but by Congress, and which applies only within the boundaries of the District of Columbia. The District of Columbia is constitutionally distinct from the States, Hepburn & Dundas v. Ellzey, 2 Cranch 445, 2 L.Ed. 332 (1805); cf. National Mutual Ins. Co. of Dist. of Col. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949). Nor does it follow from the decision to treat the District of Columbia Court of Appeals as a state court that the District Code was to be considered a state statute for the purposes of § 1257. We are entitled to assume that in amending § 1257, Congress legislated with care, and that had Congress intended to equate the District Code and state statutes for the purposes of § 1257, it would have said so expressly, and not left the matter to mere implication.5
7
Jurisdictional statutes are to be construed 'with precision and with fidelity to the terms by which Congress has expressed its wishes,' Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968); and we are particularly prone to accord 'strict construction of statutes authorizing appeals' to this Court. Fornaris v. Ridge Tool Co., 400 U.S. 41, 42 n. 1, 91 S.Ct. 156, 157, 27 L.Ed.2d 174 (1970). We will not, therefore, hold that Congress intended to treat the District of Columbia Code as a state statute for the purposes of § 1257(2). Cf. Farnsworth v. Territory of Montana, 129 U.S. 104, 112—114, 9 S.Ct. 253, 254 255, 32 L.Ed. 616 (1889).
8
Palmore relies on Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922), where an enactment of the territorial legislature of Puerto Rico was held to be a statute of a State within the meaning of the then-applicable statutory provisions governing appeals to this Court. That result has been codified in 28 U.S.C. § 1258; but, even so, the Balzac rationale was severely undermined in Fornaris, where we held that a statute passed by the legislature of Puerto Rico is not 'a State statute' within the meaning of 28 U.S.C. § 1254(2), and that it should not be treated as such in the absence of more definitive guidance from Congress.
9
We conclude that we do not have jurisdiction of the appeal filed in this case. Palmore presents federal constitutional issues, however, that are reviewable by writ of certiorari under § 1257(3); and treating the jurisdictional statement as a petition for writ of certiorari, cf. 28 U.S.C. § 2103, we grant the petition limited to the question of whether Palmore was entitled to be tried by a court ordained and established in accordance with Art. III, § 1, of the Constitution.6 It is to this issue that we now turn.
III
10
Art. I, § 8, cl. 17, of the Constitution provides that Congress shall have power '(t)o exercise exclusive Legislation in all Cases whatsoever, over' the District of Columbia. The power is plenary. Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes. Congress 'may exercise within the District all legislative powers that the legislature of a state might exercise within the State, and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the constitution of the United States.' Capital Traction Co. v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 582, 43 L.Ed. 873 (1899). This has been the characteristic view in this Court of congressional powers with respect to the District.7 It is apparent that the power of Congress under Clause 17 permits it to legislate for the District in a manner with respect to subjects that would exceed its powers, or at least would be very unusual, in the context of national legislation enacted under other powers delegated to it under Art. I, § 8. See Gibbons v. District of Columbia, 116 U.S. 404, 408, 6 S.Ct. 427, 429, 29 L.Ed. 680 (1886).
11
Pursuant to its Clause 17 authority, Congress has from time to time enacted laws that compose the District of Columbia Code. The 1970 Reorganization Act amended the Code by creating the Superior Court of the District of Columbia and the District of Columbia Court of Appeals, the courts being expressly 'established pursuant to article I of the Constitution.' D.C.Code Ann. § 11 101(2) (Supp. V, 1972). See n. 2, supra. The Superior Court, among other things, was vested with jurisdiction to hear criminal cases involving alleged violations of the criminal laws applicable only to the District of Columbia, id., § 11—923; the District of Columbia Court of Appeals, with jurisdiction to hear appeals in such cases. Id., § 11—721. At the same time, Congress exercised its powers under Art. I, § 8, cl. 9, and Art. III to redefine the jurisdiction of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit. Id., §§ 11—301, 11—501, and 11—502. As the Committee on the District of Columbia said, H.R.Rep.No.91 907, p. 44:
12
'This title makes clear (section 11—101) that the District of Columbia Courts (the District of Columbia Court of Appeals, and the Superior Court of the District of Columbia) are Article I courts, created pursuant to Art. I, section 8 clause 17 of the United States Constitution, and not Article III courts. The authority under which he local courts are established has not been statutorily provided in prior law; the Supreme Court of the United States has not declared the local system to be either Article I or Article III courts, decisions having indicated that the District of Columbia courts are, in this respect, both fish and fowl. This expression of the intent of the Congress clarifies the status of the local courts.'
13
It was under the judicial power conferred on the Superior Court by the 1970 Reorganization Act that Palmore was convicted of violation of § 22—3204 of the District of Columbia Code (1967). The conviction was clearly within the authority granted Congress by Art. I, § 8, cl. 17, unless, as Palmore contends, Art. III of the Constitution requires that prosecution for District of Columbia felonies must be presided over by a judge having the tenure and salary protections provided by Art. III.8 Palmore's argument is straightforward: Art. III vests the 'judicial Power' of the United States in courts with judges holding office during good behavior and whose salary cannot be diminished; the 'judicial Power' that these courts are to exercise 'shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .'; the District of Columbia Code, having been enacted by Congress, is a law of the United States; his prosecution for violation of § 22—3204 of the Code is therefore a case arising under the laws of the United States, involves an exercise of the 'judicial Power' of the United States, and must therefore be tried by an Art. III judge.
14
This position ultimately rests on the proposition that an Art. III judge must preside over every proceeding in which a charge, claim, or defense is based on an Act of Congress or a law made under its authority. At the very least, it asserts that criminal offenses under the laws passed by Congress may not be prosecuted except in courts established pursuant to Art. III. In our view, however, there is no support for this view in either constitutional text or in constitutional history and practice.
15
Article III describes the judicial power as extending to all cases, among others, arising under the laws of the United States; but, aside from this Court, the power is vested 'in such inferior Courts as the Congress may from time to time ordain and establish.' The decision with respect to inferior federal courts, as well as the task of defining their jurisdiction, was left to the discretion of Congress. That body was not constitutionally required to create inferior Art. III courts to hear and decide cases within the judicial power of the United States, including those criminal cases arising under the laws of the United States. Nor, if inferior federal courts were created, was it required to invest them with all the jurisdiction it was authorized to bestow under Art. III. '(T)he judicial power of the United States . . . is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) . . . and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.' Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576 (1845).9 Congress plainly understood this, for until 1875 Congress refrained from providing the lower federal courts with general federal-question jurisdiction. Until that time, the state courts provided the only forum for vindicating many important federal claims. Even then, with exceptions, the state courts remained the sole forum for the trial of federal cases not involving the required jurisdictional amount, and for the most part retained concurrent jurisdiction of federal claims properly within the jurisdiction of the lower federal courts.
16
It was neither the legislative nor judicial view, therefore, that trial and decision of all federal questions were reserved for Art. III judges. Nor, more particularly has the enforcement of federal criminal law been deemed the exclusive province of federal Art. III courts. Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III. See Warren, Federal Criminal Laws and the State Courts, 38 Harv.L.Rev. 545, 551—553, 570—572 (1925); F. Frankfurter & J. Landis, The Business of the Supreme Court 293 (1927); Note, Utilization of State Courts to Enforce Federal Penal and Criminal Statutes: Development in Judicial Federalism, 60 Harv.L.Rev. 966 (1947). More recently, this Court unanimously held that Congress could constitutionally require state courts to hear and decide Emergency Price Control Act cases involving the enforcement of federal penal laws; the fact 'that Rhode Island has an established policy against enforcement by its courts of statutes of other states and the United States which it deems penal, cannot be accepted as a 'valid excuse." Testa v. Katt, 330 U.S. 386, 392, 67 S.Ct. 810, 814, 91 L.Ed. 967 (1947). Although recognizing the contrary sentiments expressed in Prigg v. Pennsylvania, 16 Pet. 539, 615—616, 10 L.Ed. 1060 (1842), and other cases, the sense of the Testa opinion was that it merely reflected longstanding constitutional decision and policy represented by such cases as Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833 (1876), and Mondou v. New York N.H. & H.R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912).
17
It is also true that throughout our history, Congress has exercised its power under Art. IV to 'make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States' by creating territorial courts and manning them with judges appointed for a term of years. These courts have not been deemed subject to the strictures of Art. III, even though they characteristically enforced not only the civil and criminal laws of Congress applicable throughout the United States, but also the laws applicable only within the boundaries of the particular territory. Speaking for a unanimous Court in American Ins. Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242 (1828). Mr. Chief Justice Marshall held that the territorial courts of Florida, although not Art. III courts, could hear and determine cases governed by the admiralty and maritime law that ordinarily could be heard only by Art. III judges. '(T)he same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government.' Id., at 546. This has been the consistent view of this Court.10 Territorial courts, therefore, have regularly tried criminal cases arising under the general laws of Congress,11 as well as those brought under territorial laws.12
18
There is another context in which criminal cases arising under federal statutes are tried, and defendants convicted, in non-Art. III courts. Under its Art. I, § 8, cl. 14, power '(t)o make Rules for the Government and Regulation of the land and naval Forces,' Congress has declared certain behavior by members of the Armed Forces to be criminal and provided for the trial of such cases by court-martial proceedings in the military mode, not by courts ordained and established under Art. III. Within their proper sphere, courts-martial are constitutional instruments to carry out congressional and executive well. Dynes v. Hoover, 20 How. 65, 79, 82, 15 L.Ed. 838 (1857). The 'exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply,' O'Callahan v. Parker, 395 U.S. 258, 261, 89 S.Ct. 1683, 1685, 23 L.Ed.2d 291 (1969); and 'the Constitution does not provide life tenure for those performing judicial functions in military trials,' U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955).
19
'The same confluence of practical considerations that dictated the result in (American Ins. Co. v. Canter, supra), has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure,' Glidden Co. v. Zdanok, 370 U.S. 530, 547, 82 S.Ct. 1459, 1471, 8 L.Ed.2d 671 (1962), such as the Court of Private Land Claims, United States v. Coe, 155 U.S. 76, 85—86, 15 S.Ct. 16, 19, 39 L.Ed. 76 (1894); the Choctaw and Chickasaw Citizenship Court, Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041 (1899); Ex parte Joins, 191 U.S. 93, 24 S.Ct. 27, 48 L.Ed. 110 (1903); Wallace v. Adams, 204 U.S. 415, 27 S.Ct. 363, 51 L.Ed. 547 (1907); courts created in unincorporated districts outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266—267, 21 S.Ct. 770, 778—779, 45 L.Ed. 1088 (1901); Balzac v. Porto Rico, 258 U.S., at 312—313, 42 S.Ct., at 348—349, and the Consular Courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464—465, 480, 11 S.Ct. 897, 900—901, 905, 35 L.Ed. 581 (1891).
IV
20
Whatever may be true in other instances, however, it is strongly argued that O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), constrains us to hold that all of the courts of the District of Columbia must be deemed Art. III courts and that the judges presiding over them must be appointed to serve during their good behavior in accordance with the requirements of Art. III. O'Donoghue involved the question whether the judges of the District of Columbia's Supreme Court and Court of Appeals were constitutionally protected from having their salaries reduced by an Act of Congress. This Court, over three dissents and contrary to extensive prior dicta, see Ex parte Bakelite Corp., 279 U.S. 438, 450, 49 S.Ct. 411, 413, 73 L.Ed. 789 (1929); Butterworth v. Hoe, 112 U.S. 50, 5 S.Ct. 25, 28 L.Ed. 656 (1884); Keller v. Potomac Electric Power Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731 (1923); Federal Radio Comm'n v. General Electric Co., 281 U.S. 464, 50 S.Ct. 389, 74 L.Ed. 969 (1930), held that the two courts under consideration were constitutional courts exercising the judicial power of the United States and that the judges in question were not subject to the salary reduction legislation as they would have been had they been judges of legislative courts.
21
We cannot agree that O'Donoghue governs this case.13 The District of Columbia courts there involved, the Supreme Court and the Court of Appeals, had authority not only in the District, but also over all those controversies, civil and criminal, arising under the Constitution and the statutes of the United States and having nationwide application. These courts, as this Court noted in its opinion, were 'of equal rank and power with those of other inferior courts of the fedthose of other inferior courts of the federal system . . ..' O'Donoghue, supra, 289 U.S., at 534, 53 S.Ct., at 744. Relying heavily on congressional intent, the Court considered that Congress, by consistently providing the judges of these courts with lifetime tenure, had indicated a 'congressional practice from the beginning (which) recognize(d) a complete parallelism between the courts of the District (of Columbia) and the District and Circuit Courts of Appeals of the United States.' Id., at 549, 53 S.Ct., at 750. Moreover, these courts, constituted as they were, and being closer to the legislative department, 'exercise a more extensive jurisdiction in cases affecting the operations of the general government and its various departments,' id., at 535, 53 S.Ct., at 744, and were the only courts within the District in which District inhabitants could exercise their 'right to have their cases arising under the Constitution heard and determined by federal courts created under, and vested with the judicial power conferred by, Art. III.' Id., at 540, 53 S.Ct., at 746.
22
The case before us is a far cry from O'Donoghue. Here Congress has expressly created two systems of courts in the District. One of them is made up of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit, which are constitutional courts manned by Art. III judges to which the citizens of the District must or may resort for consideration of those constitutional and statutory matters of general concern which so moved the Court in O'Donoghue. The other system is made up of strictly local courts, the Superior Court and the District of Columbia Court of Appeals. These courts were expressly created pursuant to the plenary Art. I power to legislate for the District of Columbia. D.C.Code Ann. § 11—101(2) (Supp. V, 1972), and to exercise the 'powers of . . . a state government in all cases where legislation is possible.' Stoutenburgh v. Hennick, 129 U.S. 141, 147, 9 S.Ct. 256, 257, 32 L.Ed. 637 (1889).
23
The O'donoghue Court had before it District of Columbia courts in which the consideration of 'purely local affairs (was) obviously subordinate and incidental.' O'Donoghue, supra, 289 U.S., at 539, 53 S.Ct. at 740. Here, on the other hand, we have courts the focus of whose work is primarily upon cases arising under the District of Columbia Code and to other matters of strictly local concern. They handle criminal cases only under statutes that are applicable to the District of Columbia alone. O'Donoghue did not concern itself with courts like these, and it is not controlling here.
V
24
It is apparent that neither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law, or even every criminal prosecution for violating an Act of Congress, to be tried in an Art. III court before a judge enjoying lifetime tenure and protection against salary reduction. Rather, both Congress and this Court have recognized that state courts are appropriate forums in which federal questions and federal crimes may at times be tried; and that the requirements of Art. III, which are applicable where law of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment. Here, Congress reorganized the court system in the District of Columbia and established one set of courts in the District with Art. III characteristics and devoted to matters of national concern. It also created a wholly separate court system designed primarily to concern itself with local law and to serve as a local court system for a large metropolitan area.
25
From its own studies, Congress had concluded that there was a crisis in the judicial system of the District of Columbia, that case loads had become unmanageable, and that neither those matters of national concern nor those of strictly local cognizance were being promptly tried and disposed of by the existing court system. See, e.g., 115 Cong.Rec. 25538 (1969); 116 Cong.Rec. 8091—8092 (1970).14 The remedy in part, was to relieve the regular Art. III courts, that is, the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit, from the smothering responsibility for the great mass of litigation, civil and criminal, that inevitably characterizes the court system in a major city and to confine the work of those courts to that which, for the most part, they were designed to do, namely, to try cases arising under the Constitution and the nationally applicable laws of Congress. The other part of the remedy, equally essential, was to establish an entirely new court system with functions essentially similar to those of the local courts found in the 50 States of the Union with responsibility for trying and deciding those distinctively local controversies that arise under local law, including local criminal laws having little, if any, impact beyond the local jurisdiction. S.Rep. No. 91—405, pp. 1—3, 5, 18; H.R.Rep. No. 91—907, pp. 23—24, 33.
26
Furthermore, Congress, after careful consideration, determined that it preferred, and had the power to utilize, a local court system staffed by judges without lifetime tenure. S.Rep. No. 91—405, supra, at 17—18; H.R.Rep. No. 91—907, supra, at 44. Congress made a deliberate choice to create judgeships with terms of 15 years, D.C.Code Ann. § 11—1502 (Supp. V, 1972), and to subject judges in those positions to removal or suspension by a judicial commission under certain established circumstances. Id., §§ 11—1502, 11—1521 et seq. It was thought that such a system would be more workable and efficient in administering and discharging the work of a multifaceted metropolitan court system. See S.Rep. No. 91—405, supra, at 8—11; H.R.Rep. No. 91—907, supra, at 35—39.
27
In providing for fixed terms of office, Congress was cognizant of the fact that 'virtually no State has provided' for tenure during good behavior, S.Rep. No. 91—405, supra, at 8, see H.R.Rep. No. 91—907, supra, at 38, the District of Columbia Court of Appeals noting that 46 of the 50 States have not provided life tenure for trial judges who hear felony cases, 290 A.2d, at 578 n. 12, and the provisions of the Act, with respect to court administration and to judicial removal and suspension, were considered by some as a model for the States. 115 Cong.Rec. 25538 (1969). See Hearings on H.R. 13689 and 12854 before Subcommittee No. 1 of the House Committee on the District of Columbia, 91st Cong., 1st Sess., pt. 1, pp. 69, 71 (1969).
28
We do not discount the importance attached to the tenure and salary provisions of Art. III, but we conclude that Congress was not required to provide an Art. III court for the trial of criminal cases arising under its laws applicable only within the District of Columbia. Palmore's trial in the Superior Court was authorized by Congress' Art. I power to legislate for the District in all cases whatsoever. Palmore was no more disadvantaged and no more entitled to an Art. III judge than any other citizen of any of the 50 States who is tried for a strictly local crime. Nor did his trial by a nontenured judge deprive him of due process of law under the Fifth Amendment any more than the trial of the citizens of the various States for local crimes by judges without protection as to tenure deprives them of due process of law under the Fourteenth Amendment.
29
The judgment of the District of Columbia Court of Appeals is affirmed.
30
So ordered.
31
Affirmed.
32
Mr. Justice DOUBLAS, dissenting.
33
Appellant, indicted for carrying a dangerous weapon in violation of D.C.Code Ann. § 22—3204, was tried and convicted in the Superior Court of the District of Columbia, an Art. I court created by Congress1 under the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473. His timely objection is that he was tried, convicted, and sentenced by a court not established under Art. III.
The judges of the court that convicted him
34
—hold office for a term of fifteen years,2 not for lie as do Art. III judges;
35
—unlike Art. III judges,3 their salaries are not protected from diminishment during their continuance in office;
36
—unlike Art. III judges, they can be removed from office by a five-member Commission4 through less formidable means of procedure than impeachment. While two of the five members must be lawyers (one a member of the District Bar in active practice for at least five of the ten years prior to his appointment and one an active or retired federal judge serving in the District) the other three may be laymen. One of the three must be a layman. D.C.Code Ann. § 11 1522 (Supp. V, 1972).
37
In other words, these Superior Court judges are not members of the independent judiciary which has been one of our proudest boasts, by reason of Art. III. The safeguards accorded Art. III judges were designed to protect litigants with unpopular or minority causes or litigants who belong to despised or suspect classes. The safeguards surround the judge and give him a measure of protection against the hostile press, the leftist or rightist demands of the party in power, the glowering looks of those in the top echelon in whose hands rest the power of reappointment.
38
In the Constitutional Convention of 1787 it was proposed that judges 'may be removed by the Executive on the application by the Senate and House of Representatives.' The proposal was defeated only Connecticut voting for it. Wilson apparently expressed the common sentiment: 'The Judges would be in a bad situation if made to depend on any gust of faction which might prevail in the two branches of our Government.'5
39
Without the independence granted and enjoyed by Art. III judges, a federal judge could more easily become the tool of a ravenous Executive Branch. This idea was reflected in Reports by Congress in 1965 and 1966,6 sponsoring a law that would give lifetime tenure to federal judges in Puerto Rico. The House Report stated:7
40
'. . . Federal litigants in Puerto Rico should not be denied the benefit of judges made independent by life tenure from the pressures of those who might influence his chances of reappointment, which benefits the Constitution guarantees to the litigants in all other Federal courts.'
41
Art. I, § 8, cl. 17, of the Constitution provides: 'The Congress shall have Power . . . To exercise exclusive Legislation . . . over such District . . . as may . . . become the Seat of the Government of the United States . . ..' This legislative power is plenary, giving Congress authority to establish the method by which the District of Columbia will be governed, and to alter from time to time the form of that government. District of Columbia v. Thompson Co., 346 U.S. 100, 104—110, 73 S.Ct. 1007, 1009—1012, 97 L.Ed. 1480.
42
Legislative courts may be given executive and administrative duties, the examples being well known. But if they are given 'judicial Power,' as are the judges of the present Superior Court of the District, those trials have guarantees that are prescribed by the Constitution and Bill of Rights. First, as to jury trial, Art. III says: 'The Trial, of all Crimes . . . shall be by Jury.' But trial by jury is also guaranteed by the Sixth Amendment in all criminal prosecutions. Even Mr. Justice McReynolds and Mr. Justice Butler, not known as Libertarians, thought 'all' meant 'all,' not permitting the exclusions of so-called 'petty' offenses. District of Columbia v. Clawans, 300 U.S. 617, 633, 57 S.Ct. 660, 665, 81 L.Ed. 843. Congress may not deprive an accused of that protection in a District of Columbia trial. District of Columbia v. Colts, 282 U.S. 63, 74, 51 S.Ct. 52, 53, 75 L.Ed. 177; Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223.
43
The Fifth Amendment provides for the right to indictment; and Congress may not dispense with that right for a local criminal offense in the District of Columbia. United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed. 700.
44
The Sixth Amendment's guarantee extends to speedy and public trials, the right of confrontation compulsory process and the assistance of counsel '(i)n all criminal prosecutions.'
45
The Fifth Amendment guarantees one against double jeopardy and gives the privilege against self-incrimination 'in any criminal case,' and guarantees that no one shall 'be deprived of life, liberty, or property, without due process of law.'
46
The Fourth Amendment protects '(t)he right of the people to be secure . . . against unreasonable searches and seizures . . ..'
47
The Eighth Amendment says that 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'
48
Few, if any, of these guarantees, I assume, would be applicable to Art. I tribunals exercising legislative or administrative functions. But are any of them inapplicable in criminal prosecutions where the 'judicial Power' of the United States is exercised?
49
I have been unable to see how that is possible. Yet if those aspects of 'judicial Power,' as the term is used in Art. III, are all applicable, how can the requirements for an independent judiciary be made an exception? For it is as clearly required by Art. III for any exercise of 'judicial Power' as are the other guarantees.
50
The legislative history of the District of Columbia Court Reform and Criminal Procedure Act of 1970 makes abundantly clear that one main purpose was the creation of some political leverage over Superior Court judges. As the Senate Report states:
51
'In drafting the tenure provision of the amended bill, the committee was conscious both of the inexactness of the art of judicial selection and of the importance of tenure in attracting the most competent men to the bench. The committee recognized that the constitutional requirement of 'good behavior' tenure has played a significant role in the historic high quality of the Federal bench. On the other hand, the committee was aware that virtually no State has provided such tenure for its judges, an apparent recognition that the opportunity to review the quality of a judge's performance also has its obvious advantages. The committee, therefore, sought a tenure provision that would combine the attractiveness of the federal system with the opportunity for some review of the judge's work.
52
'At present, the only means available to rid the local bench of a sick or venal judge is through the process of impeachment by the House of Representatives and trial by the U.S. Senate. To believe that the Congress at this time in our history has the time to police the local judiciary through the impeachment process is just not realistic. That process has not even proven viable when the conduct of Federal, good-behavior tenure judges is drawn into question.' S.Rep. No. 91—405, pp. 8, 11.
53
In O'Dodoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356, the Court held unconstitutional an Act of Congress reducing the salaries of trial and appellate judges in the District of Columbia. It held that inherent in the separation of powers was the idea that 'the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments.' Id., at 530, 53 S.Ct., at 743. Since the District was formed of portions of two of the original States, the Court concluded it was 'not reasonable to assume that the cession stripped them of these (rights, guarantees and immunities of the Constitution), and that it was intended that at the very seat of the national government the people should be less fortified by the guaranty of an independent judiciary than in other parts of the Union.' Id., at 540, 53 S.Ct., at 744. The Court concluded that while Congress could not confer administrative or legislative functions on Art. III courts, it could grant such functions to District courts by reason of Art. I. Id., at 546, 53 S.Ct., at 749. But that power, it held, may not be used 'to destroy the operative effect of the judicial clause within the District.' Ibid. The present Act does precisely that. Hence today we make a major retreat from O'Donoghue.
54
Much is made of the fact that many States (about three-fourths of them) have their judges at all levels elected by the people. That was one of the basic Jacksonian principles. But the principle governing federal judges is strongly opposed.8 Hamilton stated the proposition in No. 79 of the Federalist (J. Cooke ed. 1961):
55
'Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the president, is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realised in practice the complete separation of the judicial from the legislative power, in any system, which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government, in every state, have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. Some of these indeed have declared that permanent salaries should be established for the judges; but the experiment has in some instances shewn that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided, that the judges of the United States 'shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office.'
56
'This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood, that the fluctuations in the value of money, and in the state of society, rendered a fixed rate of compensation in the constitution inadmissible. What might be extravagant to day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances; yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial offices may from time to time be altered, as occasion shall require yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him.'
57
That theory is opposed to the Jacksonian philosophy concerning election of state judges. But the present statutory scheme for control over Superior Court judges is even opposed to the Jacksonian theory. In the District of Columbia the people do not elect these Art. I judges. Nor do they 'recall' them as is done in some States. The Superior Court judges are named by the President and confirmed by the Senate and they are removable by a commission appointment by the President. The Superior Court judge has no opportunity to put his problems, his conduct, his behavior on the bench to the people. The gun of the commission is held at his head. All of the normal vices of a dependent, removable judiciary are accentuated in the District of Columbia.
58
The matter of 'law and order' naturally assumes in the minds of a majority of the people in the District an acute and special problem. A minority, however, sits as overlord, causing tensions to mount. The case of Harry Alexander, a judge on the Superior Court, has become prominent. Great pressures have been put on him to conform—or else. The problem goes not only to the viability of life in the District but to the vitality of the guarantees in Art. III and in the Bill of Rights. Those guarantees run to every 'person'; and the judges on the Art. III courts who sit in the District dispense justice evenly and never undertake to ration it. But some judges, like the Bill of Rights, are in the minds of some a threat to our security.
59
They, however, insure our security by administering justice evenhandedly. The ideals of Art. III and the Bill of Rights provide the mucilage which holds majorities and minorities together in the federal segment of our Nation, and make tolerable the existence of nonconformists who do not walk to the measure of the beat of the Chief Drummer.
60
We take a great step backward today when we deprive our federal regime in the District of that judicial independence which helps insure fearless and evenhanded dispensation of justice. No federal court exercising Art. III judicial power should be made a minion of any cabal that from accidents of politics comes into the ascendancy as an overlord of the District of Columbia. That effort unhappily succeeds today and is in disregard of one of our most cherished constitutional provisions.
61
As Mr. Justice Black and I put it in our dissent in Glidden Co. v. Zdanok, 370 U.S. 530, 589, 598, 82 S.Ct. 1459, 1493, 1498, 8 L.Ed.2d 671, the essential problem in dealing with a 'judicial' function exercised by an Art. I court concerns the standards and procedures employed. If the power exercised is 'judicial power' defined in Art. III, as was true in the present case, then the standards and procedures must conform to Art. III, one of which is an independent judiciary.
62
There have been many proposals in our history that are kin to those approved today; and the important ones are reviewed by Prof. Kurland.9 To date efforts to tamper with the federal judiciary have not been successful, unless it be the bizarre decision of this Court in Chandler v. Judicial Council, 382 U.S. 1003, 1004, 86 S.Ct. 610, 15 L.Ed.2d 494, in which Mr. Justice Black and I dissented. The States, of course, have mostly gone the other way.10 But as Prof. Kurland observed:11
63
'(T)he various devices that the States have recently adopted for policing their judiciaries are little more than polite blackmail, suggestions that the bar is unhappy with the judge's behavior and he'd better shape up or else. I shudder to think how (easily) the federal courts might have been deprived of the services of Judge Learned Hand under such a system as California's. For politeness to counsel and a willingness to tolerate fools gladly were not among his virtues, and it is only such virtues and that of regular attendance at the court house that the policing systems seem capable of evoking from timid judges.'
64
The way to achieve what is done today is by constitutional amendment. President Andrew Johnson in 1868 said;12
65
'It is strongly impressed on my mind that the tenure of office by the judiciary of the United States during good behavior for life is incompatible with the spirit of republican government, and in this opinion I am fully sustained by the evidence of popular judgment upon this subject in the different States of the Union.
66
'I therefore deem it my duty to recommend an amendment to the Constitution by which the terms of the judicial officers would be limited to a period of years, and I herewith present it in the hope that Congress will submit it to the people for their decision.'
67
Manipulated judiciaries are common across the world, especially in communist and fascist nations. The faith in freedom which we profess and which is opposed to those ideologies assumes today an ominous cast. It is ominous because it indirectly associates the causes of crime with the Bill of Rights rather than with the sociological factors of poverty caused by unemployment and disemployment, the abrasive political tactics used against minorities, the blight of narcotics and the like. Those who holds the gun at the heads of Superior Court judges can retaliate against those who respect the spirit of the Fourth Amendment and the Fifth Amendment and who stand firmly against the ancient practice of using the third degree to get confessions and who fervently believe that the end does not justify the means.
68
I would reverse the judgment below.
1
The section provided:
'No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in section 22—3215, unless the violation occurs after he has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or in another jurisdiction, in which case he shall be sentenced to imprisonment for not more than ten years.'
2
Before passage of the District of Columbia Court Reform and Criminal Procedure Act of 1970, the local court system consisted of one appellate court and three trial courts, two of which, the juvenile court and the tax court, were courts of special jurisdiction. The third trial court, the District of Columbia Court of General Sessions, was one of quite limited jurisdiction, its criminal jurisdiction consisting solely of that exercised concurrently with the United States District Court over misdemeanors and petty offenses, D.C.Code Ann. § 11—963 (1967). The court's civil jurisdiction was restricted to cases where the amount in controversy did not exceed $10,000, and it had jurisdiction over cases involving title to real property only as part of a divorce action. Id., §§ 11—961 and 11—1141. The judgments of the appellate court, the District of Columbia Court of Appeals, were subject to review by the United States Court of Appeals for the District of Columbia Circuit. Id., § 11—321.
The United States District Court for the District had concurrent jurisdiction with the Court of General Sessions over most of the criminal and civil matters handled by that court, id., §§ 11—521, 11—522, and 11—523, and had exclusive jurisdiction over felony offenses, even though committed in violation of locally applicable laws, id., § 11—521. Thus, the District Court was filling the role of both a local and federal court.
Seeking to improve the performance of the court system, Congress, in Title I of the Reorganization Act, invested the local courts with jurisdiction equivalent to that exercised by state courts. S.Rep.No. 91—405, pp. 2—3; H.R.Rep.No.91—907, pp. 23—24. The three former trial courts were combined into the new Superior Court of the District of Columbia, D.C.Code Ann. § 11—901 (Supp. V, 1972), which was vested, with a minor exception, id., § 11 502(3), with exclusive jurisdiction over all criminal cases, including felonies, brought under laws applicable exclusively to the District, id., § 11—923(b). Its civil jurisdiction reached all civil actions and any other matter at law or in equity, brought in the District of Columbia, except those in which exclusive jurisdiction was vested in the United States District Court. Id., § 11—921. The local appeals court, the District of Columbia Court of Appeals, would ultimately not be subject to review by the United States Court of Appeals, id., § 11—301, and was declared to be the 'highest court of the District of Columbia' for purposes of further review by this Court. Id., § 11—102.
In addition to the shift in jurisdiction, the number of local judges was increased, their tenure was lengthened from 10 to 15 years, and their salaries were increased and fixed at a percentage of that of judges of the United States courts. Id., §§ 11—702, 11 703, 11—903, 11—904, and 11—1502; D.C.Code Ann. §§ 11—702, 11—902, 11—1502, 47—2402 (1967). The Reorganization Act established a Commission on Judicial Disabilities and Tenure to deal with suspension, retirement, or removal of local judges, D.C.Code Ann. § 11—1521 et seq. (Supp. V, 1972). It also provided for improved administration of the local courts, id., § 11—1701 et seq., including authorization for an Executive Officer responsible for the administration of the local court system. Id., § 11—1703.
3
The 15-year term is subject to the provision for mandatory retirement at age 70. D.C.Code Ann. § 11—1502 (Supp. V, 1972).
4
Title 28 U.S.C. § 1257 provides:
'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
'(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
'(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
'(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
'For the purposes of this section, the term 'highest court of a State' includes the District of Columbia Court of Appeals.'
5
An express provision 'would have been easy,' Farnsworth v. Territory of Montana, 129 U.S. 104, 113, 9 S.Ct. 253, 255, 32 L.Ed. 616 (1889), as demonstrated by specific provisions in the United States Code concerning the District of Columbia. Cf. 28 U.S.C. § 1363, added to the United States Code by § 172(c)(1) of the Reorganization Act, 84 Stat. 590, where for purposes of c. 85 dealing with the jurisdiction of the United States District Courts, it is provided that 'references to laws of the United States of Acts of Congress do not include laws applicable exclusively to the District of Columbia.' See also the treatment of the District of Columbia as a 'State' for purposes of diversity jurisdiction, 28 U.S.C. § 1332(d), and the equally discrete provision of 28 U.S.C. § 1451, added to the Code by § 172(d)(1) of the Reorganization Act, 84 Stat. 591, which provides that for purposes of the removal provisions, the Superior Court of the District of Columbia is to be considered a 'State court'; and the District of Columbia is deemed to be a 'State.'
6
Because we postponed the question of our jurisdiction over this appeal to consideration of the merits, rather than entering an unrestricted notation of probable jurisdiction, there is no basis for inferring, from our finding this appeal improper, that our initial order must nevertheless be taken as having granted certiorari on any of the issues presented. Hence, our denial of the writ with respect to the Fourth Amendment claim, rather than a dismissal, is proper. Cf. Mishkin v. New York, 383 U.S. 502, 512 513, 86 S.Ct. 958, 965—966, 16 L.Ed.2d 56 (1966).
7
Kendall v. United States, 12 Pet. 524, 619, 9 L.Ed. 1181 (1838); Mattingly v. District of Columbia, 97 U.S. 687, 690, 24 L.Ed. 1098 (1878); Gibbons v. District of Columbia, 116 U.S. 404, 407, 6 S.Ct. 427, 428, 29 L.Ed. 680 (1886); Shoemaker v. United States, 147 U.S. 282, 300, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932); O'Donoghue v. United States, 289 U.S. 516, 545, 53 S.Ct. 740, 748, 77 L.Ed. 1356 (1933).
8
Sections 1 and 2 of Art. III state:
'Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordian and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
'Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
'In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.'
9
This was the view of the Court prior to Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816). Turner v. Bank of North America, 4 Dall. 7, 1 L.Ed. 718 (1799); United States v. Hudson, 7 Cranch 32, 3 L.Ed. 259 (1812). And the contrary statements in Hunter's Lessee, supra, at 327—339, did not survive later cases. See for example, in addition to Cary v. Curtis, 3 How. 236, 11 L.Ed. 576 (1845), quoted in the text, Rhode Island v. Massachusetts, 12 Pet. 657, 721—722, 9 L.Ed. 1233 (1838); Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147 (1850); Case of Sewing Machine Companies, 18 Wall. 553, 577—578, 21 L.Ed. 914 (1874); Kline v. Burke Construction Co., 260 U.S. 226, 233—234, 43 S.Ct. 79, 82—83, 67 L.Ed. 226 (1922).
10
Clinton v. Englebrecht, 13 Wall. 434, 447, 20 L.Ed. 659 (1872); Hornbuckle v. Toombs, 18 Wall. 648, 655—656, 21 L.Ed. 966 (1874); Reynolds v. United States, 98 U.S. 145, 154, 25 L.Ed. 244 (1879); The City of Panama, 101 U.S. 453, 460, 25 L.Ed. 1061 (1880); McAllister v. United States, 141 U.S. 174, 180—184, 11 S.Ct. 949, 951—952, 35 L.Ed. 693 (1891); United States v. McMillan, 165 U.S. 504, 510, 17 S.Ct. 395, 398, 41 L.Ed. 805 (1897); Romeu v. Todd, 206 U.S. 358, 369, 27 S.Ct. 724, 728, 51 L.Ed. 1093 (1907); Glidden Co. v. Zdanok, 370 U.S. 530, 544—548, 82 S.Ct. 1459, 1469—1471, 8 L.Ed.2d 671 (1962).
11
See, e.g., Baker v. United States, 1 Pinney (Wis.) 641 (1846); United States v. Tom, 1 Or. 26 (1853); Franklin v. United States, 1 Colo. 35 (1867); Pickett v. United States, 1 Idaho 523 (1874); United States v. Reynolds, 1 Utah 226 (1875); Fisher v. United States, 1 Okl. 252, 31 P. 195 (1892).
12
See, e.g., Territory of Oregon v. Coleman, 1 Or. 191 (1855); Gile v. People, 1 Colo. 60 (1867); People v. Waters, 1 Idaho 560 (1874); People v. Shafer, 1 Utah 260 (1875); Ex parte Larkin, 1 Okl. 53, 25 P. 745 (1891).
13
We should note here that in Glidden Co. v. Zdanok, supra, it was urged that Art. III forbade the assignment of a judge of the Court of Customs and Patent Appeals to try a criminal case arising under the District of Columbia Code. The Court of Appeals ruled that even if the judge in question was not an Art. III judge, Art. I, § 8, cl. 17, was sufficient authority for his assignment to try cases in the District. The United States there urged that this was true at least with respect to laws arising under the District of Columbia Code rather than under a law of national application. Mr. Justice Harlan, for himself and Justices Brennan and Stewart, found it unnecessary to reach this question, but considered it an open one, for he expressly reserved 'intimating any view as to the correctness of the holding below . . ..' 370 U.S., at 538, 82 S.Ct., at 1466. Apparently, for him, O'Donoghue had not foreclosed the issue with respect to the trial of the criminal case under the District of Columbia Code. Mr. Justice Clark, for himself and the Chief Justice, also thought the question open. See id., at 589 n. 4, 82 S.Ct., at 1493.
14
The Senate Committee noted that notwithstanding the visiting judge program, 'an unsurpassed number of days on the bench per district court judge,' and as many as 12 out of the 14 District Court judges being 'assigned full time to the trial of local felony offenses,' the backlog of criminal cases in the United States District Court numbered 1,669, and the median time lapse from filing to final disposition in felony trials in that court was more than triple that in other district courts. Additionally, the median time for civil jury trial in the District Court was nearly double that in other district courts. Though there had been an increase in the number of felonies committed in the District of Columbia, there was a concomitant decrease in the number of felonies prosecuted. S.Rep.No.91—405, supra. at 2—3.
1
D.C.Code Ann. § 11—101 (Supp. V, 1972) provides, 'The judicial power in the District of Columbia is vested in . . . (2) The following District of Columbia courts established pursuant to article I of the Constitution: (A) The District of Columbia Court of Appeals. (B) The Superior Court of the District of Columbia.'
2
D.C.Code Ann. § 11—502 (Supp. V, 1972).
3
By Art. III, § 1, federal judges 'hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.'
4
A Commission on Judicial Disabilities and Tenure is established with the power 'to suspend, retire, or remove' one of these judges. D.C.Code Ann. § 11—1521 (Supp. V, 1972). The President names three members, the Commissioner of the District names one, and the Chief Judge of the District Court names the fifth. There are three alternate members. The President names the Chairman. Id., § 11—1522. All members are appointed for a term of six years. Id., § 11—1523. A judge must be removed if he has committed a felony and been finally convicted. Id., § 11 1526(a)(1). He shall be removed if the Commission finds
'(A) willful misconduct in office,
'(B) willful and persistent failure to perform judicial duties, or
'(C) any other conduct which is prejudicial to the administration of justice or which brings the judicial office into disrepute.' Ibid.
He shall be involuntarily retired if '(1) the Commission determines that the judge suffers from a mental or physical disability (including habitual intemperance) which is or is likely to become permanent and which prevents, or seriously interferes with, the proper performance of his judicial duties, and (2) the Commission files in the District of Columbia Court of Appeals an order of involuntary retirement and the order is affirmed on appeal or the time within which an appeal may be taken from the order has expired.' Id., § 11—1526(b).
The Act also contains elaborate provisions for the suspension of the judge without salary, or with retirement salary, or with salary dependent on the circumstances described in §§ 11 1526(c)(1), (2), and (3). The Act contains the procedure which the Commission must follow and the notice and hearing to which the judge is entitled. Id., § 11—1527.
5
Madison, 2 Journal of the Federal Convention 257 (G. Hunt ed. 1908).
6
H.R.Rep.No.135, 89th Cong., 1st Sess.; S.Rep.No.1504, 89th Cong., 2d Sess.
7
H.R.Rep.No.135, supra, n. 6, at 2.
8
See Brown, The Rent in Our Judicial Armor, 10 Geo.Wash.L.Rev. 127 (1941); Hyde, Judges: Their Selection and Tenure, 22 N.Y.U.L.Q.Rev. 389 (1949); E. Haynes, Selection and Tenure of Judges (1944); Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U.Chi.L.Rev. 665 (1969).
James Bryce, writing in 1888, said:
'Any one of the three phenomena I have described—popular elections, short terms, and small salaries—would be sufficient to lower the character of the judiciary. Popular elections throw the choice into the hands of political parties, that is to say, of knots of wirepullers inclined to use every office as a means of rewarding political services, and garrisoning with grateful partisans posts which may conceivably become of political importance. Short terms . . . oblige the judge to remember and keep on good terms with those who have made him what he is, and in whose hands his fortunes lie. They induce timidity, they discourage independence.' 1 American Commonwealth, c. 42, p. 507 (3d ed. 1905).
9
Kurland, supra, n. 8.
10
The California system is discussed by Jack E. Frankel, Executive Secretary of the California Commission On Judicial Qualifications, in Removal of Judges: California Tackles an Old Problem, 49 A.B.A.J. 166 (1963). Mr. Frankel was quoted with approval in the Senate Report proposing the District of Columbia Court Reform and Criminal Procedure Act of 1970. S.Rep.No.91—405, p. 11.
11
Kurland, supra, n. 8, at 668.
12
8 Messages and Papers of the Presidents 3841 (J. Richardson ed. 1897.)
| 89
|
411 U.S. 451
93 S.Ct. 1941
36 L.Ed.2d 385
Leonard TONASKET, Appellant,v.WASHINGTON et al.
No. 71-1031.
Supreme Court of the United States
April 24, 1973
Robert L. Pirtle, Seattle, Wash., for appellant.
Alvin J. Ziontz, Seattle, Wash., for Confederated Tribes of the Colville Reservation, Washington, and others, as amici curiae, by special leave of Court.
Slade Gorton, Atty. Gen., for appellees.
PER CURIAM.
1
The judgment of the Supreme Court of Washington is vacated, and the case is remanded to that Court for reconsideration in light of §§ 6 and 7 of c. 157, 1972 Extraordinary Session Laws of the State of Washington, and this Court's decision in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973).
| 12
|
36 L.Ed.2d 528
93 S.Ct. 1713
411 U.S. 546
UNITED STATES, Petitioner,v.Douglas B. CARTWRIGHT, as Executor of the Estate of Ethel B. Bennett.
No. 71—1665.
Argued Jan. 16, 1973.
Decided May 7, 1973.
Syllabus
Shares in mutual funds can be 'sold' by the shareholder only back to the fund and only at a set redemption price. Treas.Reg. § 20.2031—8(b), requiring that such shares be valued for federal estate tax purposes at the current public offering ('asked') price, which is determined by adding a load or sales charge to the net asset value, is clearly inconsistent with the Investment Company Act of 1940, and is therefore invalid. Pp. 550—557.
2 Cir., 457 F.2d 567, affirmed.
Sol. Gen. Erwin N. Griswold for petitioner.
Ralph J. Gregg, Buffalo, N.Y., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Internal Revenue Code of 1954 requires that, for estate tax purposes, the 'value' of all property held by a decedent at the time of death be included in the gross estate. 26 U.S.C. § 2031. By regulation, the Secretary of the Treasury has determined that shares in open-end investment companies, or mutual funds, are to be valued at their public offering price or 'asked' price at the date of death. Treas.Reg. on Estate Tax § 20.2031—8(b) (1963). The question this case presents is whether that determination is reasonable in the context of the market for mutual fund shares.
2
At the time of her death in 1964, Ethel B. Bennett owned approximately 8,700 shares of three mutual funds that are regulated by the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U.S.C. § 80a—1 et seq.1 The 1940 Act seeks generally to regulate publicly held companies that are engaged in investing in securities. Open-end investment companies, or mutual funds, 'dominate' this industry. 1966 SEC Report 43. Unquestionably, the unique characteristic of mutual funds is that they are permitted, under the Act, to market their shares continuously to the public, but are required to be prepared to redeem outstanding shares at any time. § 80a—22(e). The redemption 'bid' price that a shareholder may receive is set by the Act at approximately the fractional value per share of the fund's net assets at the time of redemption. § 80a—2(a)(32). In contrast, the 'asked' price, or the price at which the fund initially offers its shares to the public, includes not only the net asset value per share at the time of sale, but also a fixed sales charge or 'sales load' assessed by the fund's principal underwriter who acts as an agent in marketing the fund's shares. § 80a—2(a) (35).2 Sales loads vary within fixed limits from mutual fund to mutual fund, but all are paid to the funds' underwriters; the charges do not become part of the assets of the fund.3 The sales loads of the funds held by the decedent ranged from seven and eight percent to one percent of the fractional net asset value of the funds' shares.
3
Private trading in mutual fund shares is virtually nonexistent.4 Thus, at any given time, under the statutory scheme created by the Investment Company Act, shares of any open-end mutual fund with a sales load are being sold at two distinct prices. Initial purchases by the public are made from the fund, at the 'asked' price, which includes the load. But shareholders 'sell' their shares back to the fund at the statutorily defined redemption or bid price.
4
Respondent is the executor of the decedent's estate. On the federal estate tax return, he reported the value of the mutual fund shares held by the decedent at their redemption price, which amounted to about $124,400. The Commissioner assessed a deficiency based upon his valuation of the shares at their public offering or asked price, pursuant to Treas.Reg. § 20.2031—8(b).5 Valued on that basis, the shares were worth approximately $133,300. Respondent paid the deficiency of about $3,100, including interest, filed a timely claim for a refund, and, when that claim was denied, commenced a refund action in Federal District Court on the ground that the valuation based on § 20.2031—8(b) was unreasonable. The District Court agreed with respondent and held the Regulation invalid. 323 F.Supp. 769. The Court of Appeals affirmed. 2 Cir., 457 F.2d 567. We granted the Government's petition for certiorari, 409 U.S. 840, 93 S.Ct. 61, 34 L.Ed.2d 79, because of the conflict among the circuits.6
5
We recognize that this Court is not in the business of administering the tax laws of the Nation. Congress has delegated that task to the Secretary of the Treasury, 26 U.S.C. § 7805(a), and regulations promulgated under his authority, if found to 'implement the congressional mandate in some reasonable manner,' must be upheld. United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449, 19 L.Ed.2d 537 (1967). See Bingler v. Johnson, 394 U.S. 741, 749—751, 89 S.Ct. 1439, 1444, 22 L.Ed.2d 695 (1969); Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831 (1948). But that principle is to set the framework for judicial analysis; it does not displace it. We find that the contested regulation is unrealistic and unreasonable, and therefore affirm the judgment of the Court of Appeals.
6
In implementing 26 U.S.C. § 2031, the general principle of the Treasury Regulations is that the value of property is to be determined by its fair market value at the time of the decedent's death. 'The fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.' Treas.Reg. § 20.2031—1(b). The willing buyer-willing seller test of fair market value is nearly as old as the federal income, estate, and gifts taxes themselves, and is not challenged here.7 Under this test, is is clear that if the decedent had owned ordinary corporate stock listed on an exchange, its 'value' for estate tax purposes would be the price the estate could have obtained if it had sold the stock on the valuation date, that price being, under Treas. Reg. § 20.2031—2(b), the mean between the highest and lowest quoted selling prices on that day. Respondent urges that similar treatment be given mutual fund shares and that, accordingly, their value be measured by the redemption price at the date of death, the only price that the estate could hope to obtain if the shares had been sold.
7
Respondent's argument has the clear ring of common sense to it, but the United States maintains that the redemption price does not reflect the price that a willing buyer would pay, inasmuch as the mutual fund is under a statutory obligation to redeem outstanding shares whenever they are offered. According to the Government, the only market for mutual fund shares that has both willing buyers and willing sellers is the public offering market. Therefore, the price in that market, the asked price, is an appropriate basis for valuation. The central difficulty with this argument is that it unrealistically bifurcates the statutory scheme for the trading in mutual fund shares. To be sure, the fund is under an obligation to redeem its shares at the stated price. 15 U.S.C. § 80a—22(e). But, at the time of the original purchases, both the fund and the purchasers are aware of that duty and both willingly enter into the sale transactions nonetheless. As Judge Winner correctly observed in Hicks v. United States, 335 F.Supp. 474, 481 (Colo.1971):
8
'Viewing the contract in this light meets every test of the 'willing buyer-willing seller' definition usually applied in the determination of market value. The 'willing buyer' is the fully informed person who agrees to buy the shares, agreeing at that time to sell them to the fund—the only available repurchaser—at the redemption price. The 'willing seller' is the fund which sells the shares at market value plus a load charge, and which agrees to buy the shares back at market less the load charge. That is the market, and it is the only market. It is a market made up of informed buyers and an informed seller, all dealing at arm's length.'
9
In the context of the Investment Company Act, the redemption price may thus be properly viewed only as the final step in a voluntary transaction between a willing buyer and a willing seller. As a matter of statutory law, holders of mutual fund shares cannot obtain the 'asked' price from the fund. That price is never paid by the fund; it is used by the fund when selling its shares to the public—and even then the fund receives merely the net asset value per share from the sale, with the sales load being paid directly to the underwriter. In short, the only price that a shareholder may realize and that the fund—the only buyer—will pay is the redemption price. In the teeth of this fact, Regulation § 20.2031—8(b) purports to assign a value to mutual fund shares that the estate could not hope to obtain and that the fund could not offer.
10
In support of the Regulation, the Government stresses that many types of property are taxed at values above those which could be realized during an actual sale. For example, ordinary corporate stock is valued at its fair market price without taking into account the brokerage commission that a seller must generally pay in order to sell the stock. Respondent does not contend that that approach is inappropriate or that, for example, the value of ordinary stock in an estate should be the market price at the time less anticipated brokerage fees. But § 20.2031—8(b) operates in an entirely different fashion. The regulation includes as an element of value the commission cost incurred in the hypothetical purchase of the mutual fund shares already held in the decedent's estate. If that principle were carried over to the ordinary stock situation, then a share traded at $100 on the date of death would be valued, not at $100 as it now is, but at, say, $102, representing the 'value' plus the fee that a person buying the stock on that day would have to pay. It hardly need be said that such a valuation method is at least inconsistent with long-established Treasury practice and would appear at odds with the basic notions of valuation embodied in the Internal Revenue Code.8 See Estate of Wells v. Commissioner, 50 T.C. 871, 880 (1968) (Tannenwald, J., dissenting).
11
Even if it were assumed that the public offering price were somehow relevant to the value of mutual fund shares privately held, there would still be the difficulty that shares so held are, in important respects, similar to ordinary corporate stock held subject to a restrictive agreement (such as a first-refusal right at a specified price). With respect to the value of such stock, the Treasury Regulations have provided that the price that may be obtained in the marketplace does not control. Rather, so long as the restriction is a bona fide one, the value of the shares in the hands of the restricted stockholder is determined in accordance with the terms of the restriction. Treas.Reg. § 20.2031—2(h). Outstanding mutual funds share are likewise held subject to a restriction, as the Court of Appeals noted. 457 F.2d at 571. Those shares may not be 'sold' at the public offering price. By statute, they may be 'sold' back to the mutual fund only at the redemption price. We see no valid justification for disregarding this reality connected with the ownership of mutual fund shares.
12
The Government nevertheless argues that Treas.Reg. § 20.2031 8(b) reasonably values the 'bundle of rights' that is transferred with the ownership of the mutual fund shares.9 For this argument, heavy reliance is placed on this Court's decisions in Guggenheim v. Rasquin, 312 U.S. 254, 61 S.Ct. 507, 85 L.Ed. 813 (1941); Powers v. Commissioner, 312 U.S. 259, 61 S.Ct. 509, 85 L.Ed. 817 (1941); United States v. Ryerson, 312 U.S. 260, 61 S.Ct. 479, 85 L.Ed. 819 (1941), which held that the cash-surrender value of a single-premium life insurance policy did not necessarily represent its only taxable value for federal gift tax purposes.10 In Guggenheim, the lead case, the taxpayer purchased single-premium life insurance policies with an aggregate face value of one million dollars for approximately $852,000 and, shortly thereafter, gave the policies to her children. On the gift tax return, the policies were listed at their cash-surrender value of about $717,000—admittedly the only amount the donor or the donees could receive, if the policies were surrendered. But the Commissioner valued the gift at the cost of the policies, and this Court upheld that valuation: 'the owner of a fully paid life insurance policy has more than the mere right to surrender it; he has the right to retain it for its investment virtues and to receive the face amount of the policy upon the insured's death. That these latter rights are deemed by purchasers of insurance to have substantial value is clear from the difference between the cost of a single-premium policy and its immediate or early cash-surrender value . . ..' 312 U.S., at 257, 61 S.Ct. at 509. Because the 'entire bundle of rights in a single-premium policy' is so difficult to give a realistic value to, the Court deferred to the Commissioner's determination and permitted valuation to be based on cost: 'Cost is cogent evidence of value.' Id., at 258, 61 S.Ct. at 509. But as the District Court observed, 323 F.Supp., at 773, shares in mutual funds are quite unlike insurance policies, particularly in light of the policyowner's right to receive the full face value of the policy upon the insured's death. Moreover, mutual fund shares present no analogous difficulties in valuation. On any given day, their commercial value may be determined by turning to the financial pages of a newspaper. Obviously, with respect to mutual funds, there are 'investment virtues' and the prospects of capital gains or dividends. But that is true of any corporate security. Nonetheless, shareholders in mutual funds are singled out by the Regulation and their holdings valued at an unrealistic replacement cost—which includes 'brokers' commissions'—while other shareholdings are valued without regard to such commissions.
13
The unrealistic nature of this difference in treatment may be demonstrated by comparing the treatment of shares in load funds, such as the decedent's with shares in no-load funds. Obviously, even if it could be argued that there are relevant differences between mutual fund shares generally and corporate stock, there are no differences in terms of 'investment virtues' or related interests between no-load and load fund shares. Indeed, as the terms imply, the only real distinction between the two is that one imposes an initial sales charge and the other does not.11 Nonetheless, under the Regulation, a share in a noload fund is valued at its net asset value while a share in a load fund is valued at net asset value plus sales charge. To further illustrate, consider a decedent who had purchased one share in each of two no-load mutual funds, at $100 per share. The decedent died before either appreciated, but after one of the funds had changed to a load fund. Although both shares are still worth $100, and could be redeemed for only that amount, the Regulation would require that one be valued at $100 and the other at $100 plus the new load charge. A regulation that results in such differing treatment of identical property should be supported by something more than a transparent analogy to life insurance.
14
We recognize that normally 'Treasury regulations must be sustained unless unreasonable and plainly inconsistent with the revenue statutes.' Commissioner v. South Texas Lumber Co., 333 U.S., at 501, 68 S.Ct., at 698. But even if the Regulation contested here is not, on its face, technically inconsistent with § 2031 of the Internal Revenue Code, it is manifestly inconsistent with the most elementary provisions of the Investment Company Act of 1940 and operates without regard for the market in mutual fund shares that the Act created and regulates. Cf. L. E. Shunk Latex Products, Inc. v. Commissioner, 18 T.C. 940 (1952). Congress surely could not have intended § 2031 to be interpreted in such a manner. The Regulation also imposes an unreasonable and unrealistic measure of value. We agree with Judge Tannenwald, who stated at the very outset of the dispute over Regulation § 20.2031-8(b), that 'it does not follow that, because (the Commissioner) has a choice of alternatives, his choice should be sustained where the alternative chosen is unrealistic. In such a situation the regulations embodying that choice should be held to be unreasonable.' Estate of Wells v. Commissioner, 50 T.C., at 878 (dissenting opinion).
15
The judgment of the Court of Appeals is affirmed.
16
It is so ordered.
17
Judgment affirmed.
18
Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
19
This case presents a narrow issue of law regarding the valuation of certain assets—shares in an open-end investment company or 'mutual fund'—for purposes of the federal estate tax. The case turns upon a single question of law: whether or not § 20.2031—8(b) of the Treasury Regulations, which provides a specific method for valuing such shares, represents a reasonable implementation of the legislation enacted by Congress.
20
On December 4, 1964, Mrs. Ethel Bennett died testate leaving, among other property several thousand shares in three separate mutual funds. Each of the funds in question is managed by a firm known as Investors Diversified Services, Inc., and all are subject to regulation by the Securities and Exchange Commission under the Investment Company Act of 1940. In his tax return for the estate, the respondent, Mrs. Bennett's executor, valued these shares at their so-called 'net asset value,' that is, the amount at which the estate is entitled, as a matter of law, to have the shares redeemed by the issuer. The net asset value of a mutual fund share is calculated daily by the issuing company, and is equivalent to the fractional value per share of the fund's total net assets on that day. In addition to serving as a gauge for the redemption value of fund shares already issued, net asset value is also employed by the issuing companies in determining the price at which they will offer new shares in the fund to the public on any given day. In general, such shares are sold to the public at their net asset value plus a sales charge or 'load.' The load is a varying percentage of the value of the shares sold, and fluctuates in accordance with the size of the purchase. In the case of Mrs. Bennett's shares, the maximum allowable sales load at the time of her death ranged between 7% and 8%, and the minimum was 1%.
21
Upon receipt of respondent's return, the Commissioner, acting in accordance with Treas.Reg. § 20.2031—8(b),* assessed a deficiency, contending that the value of Mrs. Bennett's shares for federal estate tax purposes was their public offering price on the date of her death, that is, the price which a member of the public would have had to pay to acquire similar shares from the issuer. This price would, of course, encompass not only the net asset value of the shares, but also the applicable sales load. Such a method of valuation for mutual fund shares is expressly prescribed by the Treasury Regulation noted above. Thus, the sole question before us is whether that Regulation constitutes a reasonable exercise by the Commissioner of his statutory power to prescribe 'all needful rules' for the proper enforcement of the tax laws, see 26 U.S.C. § 7805, or whether the Regulation is so inherently unreasonable and inconsistent with the statute as to be invalid. United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537; Bingler v. Johnson, 394 U.S. 741, 89 S.Ct. 1439, 22 L.Ed.2d 695. Upon the facts presented by this case, I cannot say that the Commissioner's Regulation is invalid, and I therefore dissent from the decision of the Court.
22
At the outset, it may be well to note the basic general rule with respect to valuation that prevails under our estate tax laws. This rule is embodied in Treas.Reg. § 20.2031—1(b), and provides that the value of property includable in a decedent's estate shall be the fair market value of such property at the date of the decedent's death. 'The fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.' 26 CFR § 20 2031—1(b).
23
The difficulty in applying this rule to mutual fund shares—a difficulty which, no doubt, led the Commissioner to promulgate Regulation § 20.2031—8(b)—is that such shares once issued are not subject to disposition in a market of 'willing buyers' and 'willing sellers.' Indeed, as both the District Court and the Court of Appeals noted, the only practical means of disposing of mutual fund shares once acquired is redemption, and redemption cannot be deemed a sale of the sort described in the general rule (26 CFR § 20.2031 1(b)), since the party purchasing (the issuing company) is under an absolute obligation to redeem the shares when tendered, and the party selling has no practical alternative, if he wishes to liquidate his holdings, other than to offer them to the issuing company for redemption.
24
This being the case, the Commissioner was faced with the problem of establishing a method of valuing the shares most nearly equal to their inherent worth. In doing so, he chose not to treat their redemption value as dispositive of this question. In promulgating his Regulation, he might rationally have considered that 'on demand' redemption at net asset value is but one of many rights incident to the ownership of mutual fund shares.
25
For example, in the case of Mrs. Bennett's shares, her estate had not only the right to redeem them 'on demand,' but also to retain them; and if it had done so it would have possessed not only the normal dividend and capital gains rights associated with most investments, but also the right to have such dividends and capital gains as accrued applied toward the purchase of additional shares at a price below that which a member of the general public would have had to pay for such shares. In addition, under the investment contracts involved here, Mrs. Bennett's estate would have had the right to exchange her shares in any one of the three mutual funds involved for those of either or both of the other funds managed by Investors Diversified Services, Inc.—without paying the usual sales charge or load.
26
The Commissioner has determined that the proper method of valuing all the rights, both redemptive and otherwise, incident to the ownership of mutual fund shares is to determine what a member of the general public, acting under no constraints, would have had to pay for these rights if purchased on the open market. And, as noted earlier, although no such market exists for mutual fund shares once issued to an investor, a perfectly normal market of willing buyers and sellers does exist with respect to such shares prior to their issuance. Thus, the Commissioner took the price at which the shares would have sold on this market as fairly reflective of their inherent worth. I cannot say that this method of valuation adopted by the Commissioner, and embodied in Regulation § 20.2031 8(b), is so unreasonable and inconsistent with the statute as to render it invalid.
27
The respondent's claim that the regulation is invalid is grounded upon two principal arguments. First, he says, the estate is being taxed on an amount in excess of what it can, as a practical matter, realize from the disposition of the mutual fund shares. But this is equally true of many other assets subject to taxation under our estate tax laws. For example, real property passing into an estate is taxed upon its full fair market value, despite the fact that as a practical matter the estate must usually pay some percentage of that sum in brokerage fees if it wishes to dispose of the property and receive cash in its stead. This attack upon the Regulation thus amounts to no less than an attack upon the whole system of valuation embodied in the Treasury Regulations on Estate Tax, based as it is upon fair value in an open market. I am not ready to hold that this long-established and long-accepted system is basically invalid.
28
The respondent's second argument is that the Regulation places a higher valuation on mutual fund shares than is placed upon registered common stock shares and other similarly traded securities. This argument assumes that the redemption or net asset value of a mutual fund share is identical to the fair market value of a traded security, and, by a parity of reasoning, that the sales charge or load associated with mutual fund purchases is equivalent to the commission that a stockbroker charges a purchaser of securities. Under this view, the Commissioner would be entitled to tax mutual fund shares passing into an estate only on their net asset value, since in the allegedly comparable situation of common stock shares no consideration may be given to brokers' commissions in arriving at an appropriate valuation for estate tax purposes. See 26 CFR § 20.2031—2(b).
29
Although this argument has a certain superficial appeal, the analogy on which it relies is hardly an exact one. For an estate in disposing of marketable securities must pay a brokerage commission on their sale, and will thus realize less than the amount at which the securities have been valued, while an estate turning in mutual fund shares for redemption pays no commission or other surcharge whatever. Moreover, unlike traditional securities, there is no open trading market for mutual fund shares once issued and in the hands of an investor. If such a market of willing buyers and sellers did exist, the Commissioner would doubtless be bound to treat mutual fund shares exactly like other securities. But where no market for an asset exists, there simply is no market price to provide a readily identifiable standard for valuation. Under these circumstances, it is the Commissioner's duty under the statute to establish criteria for determining the true worth of the totality of rights and benefits incident to ownership of the asset. This the Commission has done in Regulation § 20.2031—8(b) by providing that the value of a mutual fund share for federal estate tax purposes shall be the price a member of the general public would have to pay to acquire such share. Such an approach to the valuation of assets not regularly traded in a market of willing buyers and sellers has already been sustained by this Court in a case closely akin to the case before us. See Guggenheim v. Rasquin, 312 U.S. 254, 61 S.Ct. 507, 85 L.Ed. 813.
30
Given the peculiar characteristics of mutual fund shares, it is arguable that the Commissioner might reasonably have adopted a method of valuation different from that which he has chosen. But that is a question that is not for us to decide. '(We) do not sit as a committee of revision to perfect the administration of the tax laws. Congress has delegated to the Commissioner, not to the courts, the task of prescribing 'all needful rules and regulations for the enforcement' of the Internal Revenue Code. 26 U.S.C. § 7805(a). In this area of limitless factual variations, 'it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments." United States v. Correll, 389 U.S., at 306—307, 88 S.Ct., at 449. See Bingler v. Johnson, 394 U.S., at 750, 89 S.Ct., at 1445.
31
I would reverse the judgment of the Court of Appeals and sustain the validity of the Regulation.
1
The decedent owned 2,568.422 shares of Investors Mutual, Inc., in her own name, and 2,067.531 shares as trustee for her daughter. The decedent also owned 2,269.376 shares of Investors Stock Fund, Inc., and 1,869.159 shares of Investors Selective Fund, Inc.
For thorough discussions of the operations of open-end investment companies, see SEC Report on Public Policy Implications of Investment Company Growth, H.R.Rep.No.2337, 89th Cong., 2d Sess. (1966) (hereinafter 1966 SEC Report); SEC Report of Special Study of Securities Markets, c. XI, Open-End Investment Companies (Mutual Funds), H.R.Doc.No. 95, pt. 4, 88th Cong., 1st Sess. (1963) (hereinafter 1963 Special Study).
2
A number of mutual funds are so-called 'no-load funds'; in such cases the bid and asked prices are the same. See 1966 SEC Report 58—59. The underwriter for all three funds involved in this case is Investors Diversified Services, Inc. (IDS), which is not itself an open-end investment company. IDS also serves as the investment manager of the funds, for which it receives separate management fees. See 15 U.S.C. § 80a—15.
3
The 1963 Special Study 96—97 explained the trading in mutual fund shares as follows:
'Mutual fund shares are not traded on exchanges or generally in the over-the-counter market, as are other securities, but are sold by the fund through a principal underwriter, and redeemed by the fund, at prices which are related to 'net asset value.' The net asset value per share is normally computed twice daily by taking the market value at the time of all portfolio securities, adding the value of other assets and subtracting liabilities, and dividing the result by the number of shares outstanding. Shares of most funds are sold for a price equal to their asset value plus a sales charge or commission, commonly referred to as the 'sales load,' and usually ranging from 7.5 to 8.5 percent of the amount paid, or 8.1 to 9.3 percent of the amount invested. A few funds, however, known as 'no-load' funds, offer their shares for sale at net asset value without a sales charge. Shares of most funds are redeemed or repurchased by the funds at their net asset value, although a few funds charge a small redemption fee. The result of this pricing system, it is apparent, is that the entire cost of selling fund shares is generally borne exclusively by the purchaser of new shares and not by the fund itself. In this respect the offering of mutual fund shares differs from, say, the offering of new shares by a closed-end investment company or an additional offering 'at the market' of shares of an exchange-listed security, where at least a portion of the selling cost is borne by the company selling the shares.' (Footnote omitted.)
4
See Estate of Wells v. Commissioner, 50 T.C. 871, 873 (1968), aff'd sub nom. Ruehlmann v. Commissioner, 418 F.2d 1302 (CA6 1969), cert. denied, 398 U.S. 950, 90 S.Ct. 1869, 26 L.Ed.2d 290 (1970); 1966 SEC Report 42; and 1963 Special Study 96.
5
The regulation reads, in part, as follows:
'(b) Valuation of shares in an openend investment company. (1) The fair market value of a share in an open-end investment company (commonly known as a 'mutual fund') is the public offering price of a share, adjusted for any reduction in price available to the public in acquiring the number of shares being valued. In the absence of an affirmative showing of the public offering price in effect at the time of death, the last public offering price quoted by the company for the date of death shall be presumed to be the applicable public offering price. . . .
'(2) The provisions of this paragraph shall apply with respect to estates of decedents dying after October 10, 1963.'
This regulation was promulgated in 1963, T.D. 6680, 28 Fed.Reg. 10872, after some years of confusion within the Treasury Department and between that Department and the Department of Justice. See the District Court's opinion, 323 F.Supp. 769, 777. A corresponding regulation was adopted for gift tax purposes. Treas.Reg. § 25.2512—6(b).
6
In Estate of Wells v. Commissioner, supra, the Tax Court sustained the regulation, with six judges dissenting. That decision was affirmed by the Sixth Circuit in Ruehlmann v. Commissioner, 418 F.2d 1302 (1966), cert. denied, 398 U.S. 950, 90 S.Ct. 1869, 26 L.Ed.2d 290 (1970). The companion gift tax regulation was upheld in Howell v. United States, 414 F.2d 45 (CA7 1969). Regulation § 20.2031—8(b) was held invalid in Davis v. United States, 460 F.2d 769 (CA9 1972), aff'g 306 F.Supp. 949 (CDCal.1969). See also Hicks v. United States, 335 F.Supp. 474 (Colo.1971), appeal pending in the Tenth Circuit, No. 72—1360.
7
See Treas.Reg. 63 Relating to Estate Tax Under the Revenue Act of 1921, Art. 13 (1922 ed.) ('The criterion of such value is the price which a willing buyer will pay to a willing seller for the property in question under the circumstances existing at the date of the decedent's death . . .'); Treas.Reg. 105 Relating to the Estate Tax Under the Internal Revenue Code (of 1939), § 81.10 (1942).
8
Whatever the situations may be where it is realistic and appropriate under Treas.Reg. § 20.2031—1(b) to use a standardized retail price to measure value for estate tax purposes, it is sufficient to note here that for the reasons given, the valuation of mutual fund shares does not present one of those situations.
9
The Government argues that, as a practical matter, an estate would rarely be hurt by valuation of mutual fund shares at the asked price, because Treas.Reg. § 20.2053—3(d)(2) permits an estate to deduct the difference between the asked and bid prices if the shares are sold to pay certain enumerated expenses. By its terms, however, that regulation applies only if 'the sale is necessary' to pay those expenses. (Emphasis added.) In any event, the regulation is inapplicable altogether if the shares are transferred in kind to an heir or legatee.
10
It is coincidence that the contested regulation was placed in Treas.Reg. § 20.2031—8, which deals with '(v)aluation of certain life insurance and annuity contracts . . ..' But we agree with Judge Winner:
'The Commissioner cannot cross-breed life insurance and investment trust shares by the simple expedient of discussing them in separate paragraphs of a single regulation.' Hicks v. United States, 335 F.Supp., at 482.
11
See 1966 SEC Report 51—59.
*
The text of the regulation, insofar as relevant here, reads as follows: 'The fair market value of a share in an open-end investment company (commonly known as a 'mutual fund') is the public offering price of a share, adjusted for any reduction in price available to the public in acquiring the number of shares being valued. . . .' There is a companion Gift Tax Regulation of identical import. See 26 CFR § 25.2512-6(b).
| 1112
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411 U.S. 526
93 S.Ct. 1702
36 L.Ed.2d 472
GEORGIA et al., Appellants,v.UNITED STATES.
No. 72—75.
Argued Feb. 21 and 22, 1973.
Decided May 7, 1973.
Syllabus
On November 5, 1971, the State of Georgia submitted to the Attorney General for consideration under § 5 of the Voting Rights Act its 1971 House reapportionment plan. Two weeks later, the Attorney General requested additional information, which was received on January 6, 1972. On March 3, the Attorney General, after citing the combination, inter alia, of multimember districts, majority runoff elections, and numbered posts, objected to the plan, being unable to conclude that it did not have a discriminatory racial effect on voting. The state legislature then enacted its superseding 1972 plan, which was submitted on March 15 and rejected by the Attorney General on March 24 as not overcoming previous objections. The United States brought this suit to enjoin the holding of elections under the 1972 plan after the legislature decided against a new reapportionment. A three-judge District Court held that the 1972 plan came under § 5 of the Act and issued an injunction. Hedl:
1. Georgia's 1972 reapportionment changes, which have the potential for diluting Negro voting power, are 'standards, practices, or procedures with respect to voting' within the meaning of § 5 of the Voting Rights Act, cf. Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1. Pp. 531 535.
2. The Attorney General, applying a permissible regulation, placed the burden on Georgia as the submitting party to prove that the plan did not have a racially discriminatory purpose or effect on voting, and the State failed to meet that burden. Pp. 536—539.
3. Georgia's claim that the Attorney General did not seasonably object to the 1971 plan may well be moot in view of his timely objection to the superseding 1972 plan, but in any event that claim lacks merit as the Attorney General's regulation that the statutory 60-day period begins to run from the time that necessary information is furnished is reasonable and comports with the Act. Pp. 539—541.
4. Elections having been conducted under the 1972 plan under this Court's stay order, new elections are not required, but future elections under that plan will be enjoined until a plan withstanding § 5 clearance procedures is submitted. P. 541.
351 F.Supp. 444, affirmed and remanded.
Harold N. Hill, Jr., Atlanta, Ga., for appellants.
Lawrence G. Wallace, Washington, D.C., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
The Attorney General of the United States brought this suit under § 12(d) of the Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973j(d), to enjoin the State of Georgia from conducting elections for its House of Representatives under the 1972 legislative reapportionment law. A three-judge District Court in the Northern District of Georgia agreed that certain aspects of the reapportionment law came within the ambit of § 5 of the Act, 42 U.S.C. § 1973c, and that the State, which is subject to the provisions of § 5,1 had not obtained prior clearance from either the Attorney General or the District Court for the District of Columbia. Accordingly, and without reaching the question whether the reapportionment plan had the purpose or effect of 'denying or abridging the right to vote on account of race or color,' 42 U.S.C. § 1973c, the District Court issued the requested injunction.2 The State brought this appeal. We noted probable jurisdiction, staying enforcement of the District Court judgment pending disposition of the appeal. 409 U.S. 911, 93 S.Ct. 232, 34 L.Ed.2d 172.
2
Following the 1970 Census, the Georgia Legislature set out to reapportion its State House of Representatives, State Senate, and federal congressional electoral districts. We are here concerned only with the reapportionment plan for the State House of Representatives.3 The result of the legislature's deliberations was a plan (hereinafter the 1971 plan) that, as compared with the prior 1968 scheme, decreased the number of districts from 118 to 105, and increased the number of multimember districts from 47 to 49. Whereas the prior apportionment plan had generally preserved county lines, the 1971 plan did not: 31 of the 49 multimember districts and 21 of the 56 single-member districts irregularly crossed county boundaries. The boundaries of nearly all districts were changed, and in many instances the number of representatives per district was altered. Residents of some 31 counties formerly in single-member districts were brought into multimember districts. Under continuing Georgia law, a candidate receiving less than a majority of the votes cast for a position was required to participate in a majority runoff election. Ga.Code Ann. § 34 1513. And in the multimember districts, each candidate was required to designate the seat for which he was running, referred to as the 'numbered post.' Ga.Code Ann. § 34—1015.
3
Section 5 of the Voting Rights Act forbids States subject to the Act from implementing any change in a 'voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting' without first obtaining a declaratory judgment from the District Court for the District of Columbia that the proposed change 'does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color,' or submitting the plan to the Attorney General of the United States and receiving no objection within 60 days. 42 U.S.C. § 1973c. Pursuant to this requirement, the State of Georgia submitted the 1971 plan to the Attorney General on November 5, 1971. Two weeks later, a representative of the Department of Justice wrote to the State Attorney General, requesting further information needed to assess the racial impact of the tendered plan.4 This information was received on January 6, 1972, and on March 3, 1972, the Attorney General of the United States formally objected to the State's plan. The objection letter cited the combination of multimember districts, numbered posts, majority runoff elections, and the extensive departure from the State's prior policy of adhering to county lines. On the basis of these changes, plus particular changes in the structure of potential black majority single-member districts, the Attorney General was 'unable to conclude that the plan does not have a discriminatory racial effect on voting.' The letter stated that the Attorney General therefore felt obligated to 'interpose an objection to changes submitted by these reapportionment plans.'
4
The State Legislature immediately enacted a new reapportionment plan and repealed its predecessor. The 1972 plan increased the number of districts from 105 to 128, and decreased the number of multimember districts from 49 to 32. Twenty-two of the multimember districts and 37 of the single-member districts still crossed county boundaries.
5
This 1972 plan was submitted to the Attorney General on March 15, and he objected on March 24. The Assistant Attorney General's letter stated, in part:
6
'After a careful analysis of the Act redistricting the Georgia House of Representatives, I must conclude that this reapportionment does not satisfactorily remove the features found objectionable in your prior submission, namely, the combination of multi-member districts, numbered posts, and a majority (runoff) requirement discussed in my March 3, 1972, letter to you interposing an objection to your earlier Section 5 submission. Accordingly, and for the reasons enunciated in my March 3, 1972, letter I must, on behalf of the Attorney General, object to S.B. 690 reapportioning the Georgia House of Representatives.'
7
When the Georgia Legislature resolved that it would take no further steps to enact a new plan, the Attorney General brought the present lawsuit.
8
The State of Georgia claims that § 5 is inapplicable to the 1972 House plan, both because the Act does not reach 'reapportionment' and because the 1972 plan does not constitute a change from procedures 'in force or effect on November 1, 1964.' If applicable, the Act is claimed to be unconstitutional as applied. The State also challenges two aspects of the Attorney General's conduct of the § 5 objection procedure, claiming, first, that the Attorney General cannot object to a state plan without finding that it in fact has a discriminatory purpose or effect, and, second, that the Attorney General's objection to the 1971 plan was not made within the 60-day time period allowed for objection under the Act.
9
* Despite the fact that multimember districts, numbered posts, and a majority runoff requirement were features of Georgia election law prior to November 1, 1964, the changes that followed from the 1972 reapportionment are plainly sufficient to invoke § 5 if that section of the Act reaches the substance of those changes. Section 5 is not concerned with a simple inventory of voting procedures, but rather with the reality of changed practices as they affect Negro voters. It seems clear that the extensive reorganization of voting districts and the creation of multimember districts in place of single-member districts in certain areas amounted to substantial departures from the electoral state of things under previous law. The real question is whether the substance of these changes undertaken as part of the state reapportionment are 'standards, practices, or procedures with respect to voting' within the meaning of § 5.
10
The prior decisions of this Court compel the conclusion that changes of the sort included in Georgia's 1972 House reapportionment plan are cognizable under § 5. In South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769, we upheld the basic constitutionality of the Voting Rights Act. Mr. Justice Black dissented from that judgment to the extent that it held every part of § 5 is constitutional, precisely describing the broad sweep of § 5:
11
'Section 5 goes on to provide that a State covered by § 4(b) can in no way amend its constitution or laws relating to voting without first trying to persuade the Attorney General of the United States or the Federal District Court for the District of Columbia that the new proposed laws do not have the purpose and will not have the effect of denying the right to vote to citizens on account of their race or color.' 383 U.S., at 356, 86 S.Ct., at 833 (concurring and dissenting opinion).
12
The applicability of § 5 to election law changes such as those enacted by Georgia in its 1972 plan was all but conclusively established by the opinion of this Court in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1. The Allen opinion, dealing with four companion cases, held that § 5 applied to a broad range of voting law changes, and was constitutional as applied. With respect to the reach of § 5, we held that '(t)he legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way.' Id., at 566, 89 S.Ct., at 832. One of the companion cases, Fairley v. Patterson, involved a claim that a change from district to at-large voting for county supervisor was a change in a 'standard, practice, or procedure with respect to voting.' The challenged procedure was held to be covered by § 5. We noted that '(t)he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964).' Id., at 569, 89 S.Ct., at 833. In holding that § 5 reached voting law changes that threatened to dilute Negro voting power, and in citing Reynolds v. Sims, we implicitly recognized the applicability of § 5 to similar but more sweeping election law changes arising from the reapportionment of state legislatures. 393 U.S., at 565—566, 583—586, 89 S.Ct., at 831—832, 840—842 (Harlan, J., concurring and dissenting).
13
Had Congress disagreed with the interpretation of § 5 in Allen, it had ample opportunity to amend the statute. After extensive deliberations in 1970 on bills to extend the Voting Rights Act, during which the Allen case was repeatedly discussed,5 the Act was extended for five years, without any substantive modification of § 5. Pub.L. 91—285, 84 Stat. 314, 315. We can only conclude, then, that Allen correctly interpreted the congressional design when it held that 'the Act gives a broad interpretation to the right to vote, recognizing that voting includes 'all action necessary to make a vote effective." 393 U.S., at 565—566, 89 S.Ct., at 832.
14
Another measure of the decisiveness with which Allen controls the present case is the actual practice of covered States since the Allen case was decided. Georgia, for example, submitted its 1971 plan to the Attorney General because it clearly believed that plan was covered by § 5. Its submission was 'made pursuant to § 5,' and the State Attorney General explained in his submission that the 1968 reapportionment of the Georgia House of Representatives 'was not submitted because at that time, prior to Allen v. State Board of Elections, . . . it was believed to be unnecessary to submit reapportionment plans to the United States Attorney General pursuant to the Voting Rights Act of 1965.' When the Attorney General objected, Georgia changed its House plan and resubmitted it pursuant to § 5. Other States covered by the Act have also read Allen as controlling. The brief for the United States advises us that as of December 1, 1972, 381 post-Allen reapportionment plans had been presented to the Attorney General by various States for § 5 approval.
15
In the present posture of this case, the question is not whether the redistricting of the Georgia House, including extensive shifts from single-member to multimember districts, in fact had a racially discriminatory purpose or effect. The question, rather, is whether such changes have the potential for diluting the value of the Negro vote and are within the definitional terms of § 5. It is beyond doubt that such a potential exists, cf. Whitcomb v. Chavis, 403 U.S. 124, 141—144, 91 S.Ct. 1858, 1867—1869, 29 L.Ed.2d 363. In view of the teaching of Allen,6 reaffirmed in Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476, we hold that the District Court was correct in deciding that the changes enacted in the 1972 reapportionment plan for the Georgia House of Representatives were within the ambit of § 5 of the Voting Rights Act.7 And for the reasons stated at length in South Carolina v. Katzenbach, 383 U.S., at 308—337, 86 S.Ct., at 808—823, we reaffirm that the Act is a permissible exercise of congressional power under § 2 of the Fifteenth Amendment.
II
16
By way of implementing the performance of his obligation to pass on state submissions under § 5, the Attorney General has promulgated and published in the Federal Register certain administrative regulations, 28 CFR Part 51. The appellants claim these regulations are without legislative authorization, and object in particular to the application in the present case of two regulations which set forth the standards for decision on submissions and more fully define the 60-day time period provided in the Act.
17
It is true, as the appellant contends, that § 5 itself does not authorize the Attorney General to promulgate any regulations. But § 5 is also silent as to the procedures the Attorney General is to employ in deciding whether or not to object to state submissions, as to the standards governing the contents of those submissions, and as to the meaning of the 60-day time period in which the Attorney General is to object, if at all. Rather than reading the statute to grant him unfettered discretion as to procedures, standards, and administration in this sensitive area, the Attorney General has chosen instead to formulate and publish objective ground rules. If these regulations are reasonable and do not conflict with the Voting Rights Act itself, then 5 U.S.C. § 301, which gives to '(t)he head of an Executive department' the power to 'prescribe regulations for the government of his department, . . . (and) the distribution and performance of its business . . .,' is surely ample legislative authority for the regulations. See United States v. Morehead, 243 U.S. 607, 37 S.Ct. 458, 61 L.Ed. 926; Smith v. United States, 170 U.S. 372, 18 S.Ct. 626, 42 L.Ed. 1074.
18
In 28 CFR § 51.19, the Attorney General has set forth the standards to be employed in deciding whether or not to object to a state submission. The regulation states that the burden of proof is on the submitting party, and that the Attorney General will refrain from objecting only if his review of the material submitted satisfies him that the proposed change does not have a racially discriminatory purpose or effect. If he is persuaded to the contrary, or if he cannot within the 60-day time period satisfy himself that the change is without a discriminatory purpose or effect, the regulation states that the Attorney General will object to the submission.8 In objecting to the 1971 plan, the Assistant Attorney General wrote that he was 'unable to conclude that the plan does not have a discriminatory racial effect on voting.' The objection letter to the 1972 plan did not specify a degree of certainty as to the plan's discriminatory impact, but instead stated that the new plan had not remedied the features found objectionable in its predecessor.
19
Although both objections were consistent with the Attorney General's regulations, the appellants in effect attack the legitimacy of the regulation described above in contending that the Attorney General is without power to object unless he has actually found that the changes contained in a submission have a discriminatory purpose or effect.
20
In assessing this claim, it is important to focus on the entire scheme of § 5. That portion of the Voting Rights Act essentially freezes the election laws of the covered States unless a declaratory judgment is obtained in the District Court for the District of Columbia holding that a proposed change is without discriminatory purpose or effect. The alternative procedure of submission to the Attorney General 'merely gives the covered State a rapid method of rendering a new state election law enforceable.' Allen v. State Board of Elections, 393 U.S., at 549, 89 S.Ct., at 823.
21
It is well established that in a declaratory judgment action under § 5, the plaintiff State has the burden of proof.9 What the Attorney General's regulations do is to place the same burden on the submitting party in a § 5 objection procedure. Though the choice of language in the objection letter sent to the State of Georgia was not a model of precision, in the context of the promulgated regulations the letter surely notified the State with sufficient clarity that it had not sustained its burden of proving that the proposed changes were free of a racially discriminatory effect. It is not necessary to hold that this allocation of the burden of proof by the Attorney General was his only possible choice under the Act, in order to find it a reasonable means of administering his § 5 obligation. Any less stringent standard might well have rendered the formal declaratory judgment procedure a dead letter by making available to covered States a far smoother path to clearance. The Attorney General's choice of a proof standard was thus at least reasonable and consistent with the Act, and we hold that his objection pursuant to that standard was lawful and effective.
22
The appellant's final contention is that the Attorney General's objection to the 1971 plan was untimely, and so the submitted plan should have been held by the District Court to have gone into effect. It is far from clear that this claim is not simply moot, since the state enactment establishing the 1972 plan explicitly repealed the 1971 plan,10 and the objection to the 1972 plan was clearly within the statutory time period. In any event, the claim is without merit.
23
In promulgating regulations, the Attorney General dealt with several aspects of the 60-day time limit established by § 5 of the Act. The regulations provide that all calendar days count as part of the allotted period, that parties whose submissions are objected to may seek reconsideration on the basis of new information and obtain a ruling within 60 days of that request, and that the 60-day period shall commence from the time the Department of Justice receives a submission satisfying the enumerated requirements. 28 CFR § 51.3(b)—(d).
24
In the present case, the Attorney General found the initial submission of the 1971 plan incomplete under the regulations. Two weeks after receiving it, he requested additional information.11 His letter referred to 28 CFR s 51.18, a regulation providing for a request for additional information, and noted the additional regulatory provision that the 60-day period would not commence until the information was received. The State did not submit the requested data until January 6, 1972. Under the above-mentioned regulation the 60-day period commenced on that date, and the Department of Justice made its objection within 60 days—on March 3.
25
The appellants argue that the Attorney General has granted himself more time than the statute provides by promulgating regulations suspending the time period until a complete submission is received. Here again, the question is whether the regulation is a reasonable administrative effectuation of § 5 of the Act. The judgment that the Attorney General must make is a difficult and complex one, and no one would argue that it should be made without adequate information. There is no serious claim in this case that the additional information requested was unnecessary or irrelevant to § 5 evaluation of the submitted reapportionment plan.12 Yet, if the Attorney General were denied the power to suspend the 60-day period until a complete submission were tendered, his only plausible response to an inadequate or incomplete submission would be simply to object to it. He would then leave it to the State to submit adequate information if it wished to take advantage of this means of clearance under § 5. This result would only add acrimony to the administration of § 5. We conclude, therefore, that this facet of the Attorney General's regulations is wholly reasonable and consistent with the Act.13
III
26
For the foregoing reasons, the judgment of the District Court is affirmed. Since, however, elections were conducted under the disputed 1972 plan by reason of this Court's stay order, it would be inequitable to require new elections at this time.
27
The case is remanded to the District Court with instructions that any future elections under the Georgia House reapportionment plan be enjoined unless and until the State, pursuant to § 5 of the Voting Rights Act, tenders to the Attorney General a plan to which he does not object, or obtains a favorable declaratory judgment from the District Court for the District of Columbia.
28
Affirmed and remanded with instructions.
29
Mr. Chief Justice BURGER, concurring in the result.
30
I concur in the result reached by the Court but I do so under the mandate of Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). I have previously expressed my reservations as to the correctness of that holding. See Perkins v. Matthews, 400 U.S. 379, 397, 91 S.Ct. 431, 441, 27 L.Ed.2d 476 (1971) (Blackmun, J., concurring in judgment).
31
Mr. Justice WHITE, with whom Mr. Justice POWELL and Mr. Justice REHNQUIST join, dissenting.
32
Section 5 of the Voting Rights Act of 1965 provides that a covered State may not put into effect any change in voting qualifications or voting standards, practices, or procedures until it either procures a declaratory judgment from the United States District Court for the District of Columbia to the effect that the alteration does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or submits the alteration to the Attorney General and an objection has not been interposed by that official during the ensuing 60 days. In this case, the Attorney General interposed an objection on March 24, 1972, to the March 9 reapportionment plan of the Georgia House of Representatives and shortly thereafter sued to enjoin the use of that plan on the ground that the State had obtained neither the approval of the Attorney General nor a declaratory judgment. The District Court held § 5 was applicable to changes in state apportionment plans and that the section prevented the March 9 reapportionment from going into effect.
33
I agree that in the light of our prior cases and congressional re-enactment of § 5, that section must be held to reach state reapportionment statutes. Contrary to the Court, however, it is my view that the Attorney General did not interpose an objection contemplated by § 5 and that there was therefore no barrier to the March 9 reapportionment going into effect.
34
It is arguable from the sparse language of the Act, which merely says that the State's modification will go into effect unless the Attorney General enters an objection, that any objection whatsoever filed by that official will suffice to foreclose effectiveness of the new legislation and force the State into the District Court with the burden of proving that its law is not unconstitutional. I cannot believe, however, that Congress intended to visit upon the States the consequences of such uncontrolled discretion in the Attorney General. Surely, objections by the Attorney General would not be valid if that officer considered himself too busy to give attention to § 5 submissions and simply decided to object to all of them, to one out of 10 of them or to those filed by States with governors of a different political persuasion. Neither, I think, did Congress anticipate that the Attorney General could discharge his statutory duty by simply stating that he had not been persuaded that a proposed change in election procedures would not have the forbidden discriminatory effect. It is far more realistic and reasonable to assume that Congress expected the Attorney General to give his careful and good-faith consideration to § 5 submissions and, within 60 days after receiving all information he deemed necessary, to make up his mind as to whether the proposed change did or did not have a discriminatory purpose or effect, and if it did, to object thereto.
35
Although the constitutionality of § 5 has long since been upheld, South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), it remains a serious matter that a sovereign State must submit its legislation to federal authorities before it may take effect. It is even more serious to insist that it initiate litigation and carry the burden of proof as to constitutionality simply because the State has employed a particular test or device and a sufficiently low percentage of its citizens has voted in its elections. And why should the State be forced to shoulder that burden where its proposed change is so colorless that the country's highest legal officer professes his inability to make up his mind as to its legality? If he is to object, must he not himself conclude that the proposed change will have the forbidden purpose or effect? Given such a proper objection, the matter would take on a familiar adversary cast; and there would then appear to be a solid basis—at least the probable cause that a federal charge usually imports—for insisting on judicial clearance. Moreover, the issues between the State and the United States, as well as the litigative burden the State would have to bear, could be known and examined and intelligent decision made as to whether to institute suit in the District Court. As it is, the State may be left more or less at sea; for the Attorney General need merely announce that he is not at all convinced that the law submitted to him is not discriminatory.
36
My idea as to the obligation of the Department of Justice with respect to a submission under § 5 is similar to what Congress itself has provided in § 4, 42 U.S.C. § 1973b(a). Under that provision, a State otherwise covered by the Act can terminate coverage as to it by securing a declaratory judgment that no discriminatory test or device has been used during the past 10 years. In that litigation, the section goes on to provide, the Attorney General must consent to the entry of such a judgment if 'he has no reason to believe' that a discriminatory test or device has been used during the 10 years preceding the filing of the action. Thus, in even the far more important context of determining whether a State is in any respect covered by the Act, the Attorney General, if he is to object to a decree favorable to the State, must have reason to believe, and so state, that tests or devices with the prohibited effect have been employed in the past. Surely, where the issue is not termination vel non, but the purpose and effect of a single statute, regulation, or other modification of voting procedures, it is not untoward to insist that the Attorney General not object to the implementation of the change until and unless he has reason to believe that the amendment has the prohibited purpose or effect. He should not be able to object by simply saying that he cannot make up his mind or that the evidence is in equipoise.
37
Mr. Justice POWELL, dissenting.
38
For the reasons stated in his opinion, I agree with Mr. Justice WHITE that the Attorney General did not comply with § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, and that therefore Georgia's reapportionment act should have been allowed to go into effect. It is indeed a serious intrusion, incompatible with the basic structure of our system, for federal authorities to compel a State to submit its legislation for advance review.* As a minimum, assuming the constitutionality of the Act, the Attorney General should be required to comply with it explicitly and to invoke its provisions only when he is able to make an affirmative finding rather than an ambivalent one.
1
A State is subject to § 5 if it qualifies under § 4(b), 42 U.S.C. § 1973b(b). Covered States are those which on November 1, 1964, employed any of several enumerated tests or devices as a prerequisite to voting, and in which less than 50% of eligible voters were registered to vote or actually voted in the November 1964 presidential election. States that meet identical criteria with respect to the 1968 presidential election are also covered under the amended Act. It is stipulated that Georgia is covered under § 4(b).
2
351 F.Supp. 444, 446—447.
3
No objection was interposed with respect to the State Senate or federal congressional districts.
4
The Justice Department asked for census maps of the 1964 and 1968 House districts; the distribution of white and non-white population within the 1964, 1968, and 1971 districts; a history of the primary and general elections in which Negro candidates ran; data, including race, with respect to all elected state representatives; and the legislative history of all redistricting bills.
5
See, e.g., Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on H.R. 4249, H.R. 5538, and Similar Proposals, 91st Cong., 1st Sess., 1, 4, 18, 83, 130—131, 133, 147 149, 154—155, 182—184, 402—454; Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on Bills to Amend the Voting Rights Act of 1965, 91st Cong., 1st and 2d Sess., 48, 195—196, 369—370, 397—398, 426—427, 469. David L. Norman, then Deputy Assistant Attorney General, Civil Rights Division, testified that, 'from court decisions, all these redistricting plans are going to have to be submitted to the Attorney General for his approval because they are voting changes.' Senate Hearings, supra, at 507.
6
The appellants point to language in the Allen opinion that, they say, left open the question of the applicability of § 5 to a state reapportionment law. The cited passage in Allen is as follows:
'Appellees in No. 25 (Fairley v. Patterson) also argue that § 5 was not intended to apply to a change from district to atlarge voting, because application of § 5 would cause a conflict in the administration of reapportionment legislation. They contend that under such a broad reading of § 5, enforcement of a reapportionment plan could be enjoined for failure to meet the § 5 approval requirements, even though the plan had been approved by a federal court. Appellees urge that Congress could not have intended to force the States to submit a reapportionment plan to two different courts.
'We must reject a narrow construction that appellees would give to § 5. . . .
'. . . The argument that some administrative problem might
arise in the future does not establish that Congress intended that § 5 have a narrow scope; we leave to another case a consideration of any possible conflict.' 393 U.S. 544, 564—565, 569, 89 S.Ct. 817, 831, 833, 22 L.Ed.2d 1. The caveat implicit in this language would support the appellants' position only if practical problems of administration had emerged in the period that has elapsed since Allen was decided. This does not appear to have been the case. The brief of the United States advises us that the Department of Justice has adopted procedures designed to minimize any conflicts between § 5 administrative review and federal court litigation based on Fourteenth or Fifteenth Amendment attacks upon state reapportionment plans. Where a reapportionment plan has been prescribed by federal judicial decree, the Attorney General does not review it. See Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 1761, 29 L.Ed.2d 268. Where a plan has been submitted to the Attorney General and is at the same time being litigated with respect to a Fifteenth Amendment claim, the Attorney General has deferred to the judicial determination regarding racial discrimination. Finally, the number of instances presenting an administrative-judicial overlap has been small. Of the 381 reapportionments submitted to the Attorney General, only 19 of the objected-to submissions were involved in litigation when submitted.
7
Georgia has argued that § 5 approval is needed only with respect to those electoral districts in which a change in a 'standard, practice, or procedure with respect to voting' occurred. In an appropriate case, a State might establish that a reapportionment plan left some districts unaffected by even a minor change with the potential for diluting the value of the Negro vote. We do not decide whether Georgia could show the existence of any unaffected districts in this case, and we leave that issue for consideration by the District Court on remand.
8
Title 28 CFR § 51.19, in pertinent part, states that: 'the burden of proof on the submitting authority is the same in submitting changes to the Attorney General as it would be in submitting changes to the District Court for the District of Columbia. . . . If the Attorney General is satisfied that the submitted change does not have a racially discriminatory purpose or effect, he will not object to the change and will so notify the submitting authority. If the Attorney General determines that the submitted change has a racially discriminatory purpose or effect, he will enter an objection and will so notify the submitting authority. If the evidence as to the purpose or effect of the change is conflicting, and the Attorney General is unable to resolve the conflict within the 60-day period, he shall, consistent with the above-described burden of proof applicable in the District Court, enter an objection and so notify the submitting authority.'
9
The very effect of § 5 was to shift the burden of proof with respect to racial discrimination in voting. Rather than requiring affected parties to bring suit to challenge every changed voting practice, States subject to § 5 were required to obtain prior clearance before proposed changes could be put into effect. The burden of proof is on 'the areas seeking relief.' South Carolina v. Katzenbach, 383 U.S. 301, 335, 86 S.Ct. 803, 822, 15 L.Ed.2d 769.
10
See Ga.Senate Bill 690, Mar. 9, 1972.
11
The letter sent to the Attorney General of Georgia stated that a 'preliminary examination' of the materials submitted led the Department of Justice to conclude 'that the data sent to the Attorney General are insufficient to evaluate properly the changes you have submitted. In accordance with Sections 51.10(a)(6) and 51.18(a) of the Procedures for the Administration of Section 5 of the Voting Rights Act of 1965 . . . would you please assist us by providing this Department the following additional information: . . ..'
The promulgated regulations define in 28 CFR § 51.10 the contents of a submission. Section 51.10(a)(6) states:
'With respect to redistricting, annexation, and other complex changes, other information which the Attorney General determines is required to enable him to evaluate the purpose or effect of the change. Such other information may include items listed under paragraph (b) of this section. When such other information is required, the Attorney General shall notify the submitting authority in the manner provided in § 51.18(a).'
Section 51.10(b) 'strongly urges' submitting authorities to produce the information enumerated to the extent it is available and relevant to the submitted changes. Virtually all of the information requested in this case, see n. 4, supra, falls within the enumerated categories of § 51.10(b).
12
See n. 4, supra.
13
The appellants contend that to allow the Attorney General to promulgate this regulation is to open the way to frivolous and repeated delays by the Justice Department of laws of vital concern to the covered States. No such conduct by the Attorney General is presented here, and by upholding the basic validity of the regulation we most assuredly do not prejudge any case in which such unwarranted administrative conduct may be shown. Furthermore, a submission to the Attorney General is not the exclusive mode of preclearance under § 5. If a State finds the Attorney General's delays unreasonable, or if he objects to the submission, the State 'may still enforce the legislation upon securing a declaratory judgment in the District Court for the District of Columbia.' Allen v. State Board of Elections, 393 U.S., at 549, 89 S.Ct., at 823.
*
As Mr. Justice Black stated, the power vested in federal officials under § 5 of the Act to veto state laws in advance of their effectiveness 'distorts our constitutional structure of government.' South Carolina v. Katzenbach, 383 U.S. 301, 358, 86 S.Ct. 803, 834, 15 L.Ed.2d 769 (1966) (concurring and dissenting). A similar appraisal was made by Mr. Justice Harlan, who characterized § 5, as construed by the Court, as 'a revolutionary innovation in American government.' Allen v. State Board of Elections, 393 U.S. 544, 585, 89 S.Ct. 817, 841, 22 L.Ed.2d 1 (1969) (concurring and dissenting). I have no doubt as to the power of the Congress under the Fifteenth Amendment to enact appropriate legislation to assure that the rights of citizens to vote shall not be denied, abridged, or infringed in any way 'on account of race, color, or previous condition of servitude.' Indeed, in my view there is more than a power to enact such legislation, there is a duty. My disagreement is with the unprecedented requirement of advance review of state or local legislative acts by federal authorities, rendered the more noxious by its selective application to only a few States.
| 12
|
411 U.S. 582
93 S.Ct. 1736
36 L.Ed.2d 503
KERN COUNTY LAND COMPANY, Petitioner,v.OCCIDENTAL PETROLEUM CORPORATION.
No. 71—1059
Argued Dec. 5 and 6, 1972.
Decided May 7, 1973.
Syllabus
During a tender-offer campaign, respondent bought more than 10% of the outstanding stock of petitioner's predecessor (Old Kern). Respondent was blocked in its takeover efforts by a defensive merger between Old Kern and Tenneco, in which Old Kern stockholders were to receive new Tenneco stock on a share-for-share basis. Less than a month after its initial tender offer, respondent thereupon negotiated a binding option to sell to Tenneco at a date over six months after the tender offer expired all the new Tenneco stock to which respondent would be entitled when the merger took place. Sale of the postmerger stock yielded respondent a profit of some $19 million, which petitioner sought to recover by a suit under § 16(b) of the Securities Exchange Act of 1934, prohibiting profitable short-swing speculation by statutory insiders. The District Court's summary judgment for petitioner was reversed by the Court of Appeals. Held: The transactions, which were not based on a statutory insider's information and were not susceptible of the speculative abuse that § 16(b) was designed to prevent, did not constitute 'sales' within the meaning of that provision. Pp. 591—604.
(a) There was nothing in connection with respondent's tender-offer acquisition of Old Kern stock or the exchange thereof for the Tenneco stock that gave respondent 'inside information,' and once the merger, which respondent did not engineer, was approved the Old Kern-Tenneco stock exchange was involuntary. Pp. 596—600.
(b) The option agreement was not of itself a 'sale'; the option was grounded on the mutual advantages to respondent as a minority stockholder that wanted to terminate an investment it had not chosen to make and Tenneco whose management did not want a potentially troublesome minority stockholder; and the option was not a source of potential speculative abuse, since respondent had no inside information about Tenneco or its new stock. Pp. 601—604.
450 F.2d 157, affirmed.
David R. Hyde, New York City, for petitioner.
Whitney North Seymour, New York City, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Section 16(b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U.S.C. § 78p(b),1 provides that officers, directors, and holders of more than 10% of the listed stock of any company shall be liable to the company for any profits realized from any purchase and sale or sale and purchase of such stock occurring within a period of six months. Unquestionably, one or more statutory purchases occur when one company, seeking to gain control of another, acquires more than 10% of the stock of the latter through a tender offer made to its shareholders. But is it a § 16(b) 'sale' when the target of the tender offer defends itself by merging into a third company and the tender offeror then exchanges his stock for the stock of the surviving company and also grants an option to purchase the latter stock that is not exercisable within the statutory six-month period? This is the question before us in this case.
2
* On May 8, 1967, after unsuccessfully seeking to merge with Kern County Land Co. (Old Kern),2 Occidental Petroleum Corp. (Occidental)3 announced an offer, to expire on June 8, 1967, to purchase on a first-come, first-served basis 500,000 shares of Old Kern common stock4 at a price of $83.50 per share plus a brokerage commission of $1.50 per share.5 By May 10, 1967, 500,000 shares, more than 10% of the outstanding shares of Old Kern,6 had been tendered. On May 11, Occidental extended its offer to encompass an additional 500,000 shares. At the close of the tender offer, on June 8, 1967, Occidental owned 887,549 shares of Old Kern.7
3
Immediately upon the announcement of Occidental's tender offer, the Old Kern management undertook to frustrate Occidental's takeover attempt. A management letter to all stockholders cautioned against tender and indicated that Occidental's offer might not be the best available, since the management was engaged in merger discussions with several companies. When Occidental extended its tender offer, the president of Old Kern sent a telegram to all stockholders again advising against tender. In addition, Old Kern undertook merger discussions with Tenneco, Inc. (Tenneco),8 and, on May 19, 1967, the Board of Directors of Old Kern announced that it had approved a merger proposal advanced by Tenneco.9 Under the terms of the merger, Tenneco would acquire the assets, property, and goodwill of Old Kern, subject to its liabilities, through 'Kern County Land Co.' (New Kern),10 a new corporation to be formed by Tenneco to receive the assets and carry on the business of Old Kern. The shareholders of Old Kern would receive a share of Tenneco cumulative convertible preference stock in exchange for each share of Old Kern common stock which they owned. On the same day, May 19, Occidental, in a quarterly report to stockholders, appraised the value of the new Tenneco stock at $105 per share.11
4
Occidental, seeing its tender offer and takeover attempt being blocked by the Old Kern-Tenneco 'defensive' merger, countered on May 25 and 31 with two mandamus actions in the California courts seeking to obtain extensive inspection of Old Kern books and records.12 Realizing that, if the Old Kern-Tenneco merger were approved and successfully closed, Occidental would have to exchange its Old Kern shares for Tenneco stock and would be locked into a minority position in Tenneco, Occidental took other steps to protect itself. Between May 30 and June 2, it negotiated an arrangement with Tenneco whereby Occidental granted Tenneco Corp., a subsidiary of Tenneco, an option to purchase at $105 per share all of the Tenneco preference stock to which Occidental would be entitled in exchange for its Old Kern stock when and if the Old Kern-Tenneco merger was closed.13 The premium to secure the option at $10 per share, totaled $8,866,230 and was to be paid immediately upon the signing of the option agreement.14 If the option were exercised option were exercised, the premium was to be applied to the purchase price. By the terms of the option agreement, the option could not be exercised prior to December 9, 1967, a date six months and one day after expiration of Occidental's tender offer. On June 2, 1967, within six months of the acquisition by Occidental of more than 10% ownership of Old Kern, Occidental and Tenneco Corp. executed the option.15 Soon thereafter, Occidental announced that it would not oppose the Old Kern-Tenneco merger and dismissed its state court suits against Old Kern.16
5
The Old Kern-Tenneco merger plan was presented to and approved by Old Kern shareholders at their meeting on July 17, 1967. Occidental refrained from voting its Old Kern shares, but in a letter read at the meeting Occidental stated that it had determined prior to June 2 not to oppose the merger and that it did not consider the plan unfair or inequitable.17 Indeed, Occidental indicated that, had it been voting, it would have voted in favor of the merger.
6
Meanwhile, the Securities and Exchange Commission had refused Occidental's request to exempt from possible § 16(b) liability Occidental's exchange of its Old Kern stock for the Tenneco preference shares that would take place when and if the merger transaction were closed. Various Old Kern stockholders, with Occidental's interests in mind, thereupon sought to delay consummation of the merger by instituting various lawsuits in the state and federal courts.18 These attempts were unsuccessful, however, and preparations for the merger neared completion with an Internal Revenue Service ruling that consummation of the plan would result in a tax-free exchange with no taxable gain or loss to Old Kern shareholders, and with the issuance of the necessary approval of the merger closing by the California Commissioner of Corporations.
7
The Old Kern-Tenneco merger transaction was closed on August 30. Old Kern shareholders thereupon became irrevocably entitled to receive Tenneco preference stock, share for share in exchange for their Old Kern stock. Old Kern was dissolved and all of its assets, including 'all claims, demands, rights and choses in action accrued or to accrue under and by virtue of the Securities Exchange Act of 1934 . . .,' were transferred to New Kern.
8
The option granted by Occidental on June 2, 1967, was exercised on December 11, 1967. Occidental, not having previously availed itself of its right, exchanged certificates representing 887,549 shares of Old Kern stock for a certificate representing a like number of shares of Tenneco preference stock. The certificate was then endorsed over to the optionee-purchaser, and in return $84,229,185 was credited to Occidental's accounts at various banks. Adding to this amount the $8,886,230 premium paid in June, Occidental received $93,905,415 for its Old Kern stock (including the 1,900 shares acquired prior to issuance of its tender offer). In addition, Occidental received dividends totaling $1,793,439.22. Occidental's total profit was $19,506,419.22 on the shares obtained through its tender offer.
9
On October 17, 1967, New Kern instituted a suit under § 16(b) against Occidental to recover the profits which Occidental had realized as a result of its dealings in Old Kern stock. The complaint alleged that the execution of the Occidental-Tenneco option on June 2, 1967, and the exchange of Old Kern shares for shares of Tenneco to which Occidental became entitled pursuant to the merger closed on August 30, 1967, were both 'sales' within the coverage of § 16(b). Since both acts took place within six months of the date on which Occidental became the owner of more than 10% of the stock of Old Kern, New Kern asserted that § 16(b) required surrender of the profits realized by Occidental.19 New Kern eventually moved for summary judgment, and, on December 27, 1970, the District Court granted summary judgment in favor of New Kern. Abrams v. Occidental Petroleum Corp., 323 F.Supp. 570 (SDNY 1970). The District Court held that the execution of the option on June 2, 1967, and the exchange of Old Kern shares for shares of Tenneco on August 30, 1967, were 'sales' under § 16(b). The Court ordered Occidental to disgorge its profits plus interest. In a supplemental opinion, Occidental was also ordered to refund the dividends which it had received plus interest.
10
On appeal, the Court of Appeals reversed and ordered summary judgment entered in favor of Occidental. Abrams v. Occidental Petroleum Corp., 450 F.2d 157 (CA2 1971). The Court held that neither the option nor the exchange constituted a 'sale' within the purview of s 16(b).20 We granted certiorari. 405 U.S. 1064, 92 S.Ct. 1498, 31 L.Ed.2d 793 (1972). We affirm.
II
11
Section 16(b) provides, inter alia, that a statutory insider21 must surrender to the issuing corporation 'any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security22 of such issuer . . . within any period of less than six months.' As specified in its introductory clause, § 16(b) was enacted '(f)or the purpose of preventing the unfair use of information which may have been obtained by (a statutory insider) . . . by reason of his relationship to the issuer.' Congress recognized that shortswing speculation by stockholders with advance, inside information would threaten the goal of the Securities Exchange Act to 'insure the maintenance of fair and honest markets.' 15 U.S.C. § 78b. Insiders could exploit information not generally available to others to secure quick profits. As we have noted, 'the only method Congress deemed effective to curb the evils of insider trading was a flat rule taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great.' Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 422, 92 S.Ct. 596, 599, 30 L.Ed.2d 575 (1972). As stated in the report of the Senate Committee, the bill aimed at protecting the public 'by preventing directors, officers, and principal stockholders of a corporation . . . from speculating in the stock on the basis of information not available to others.' S.Rep.No.792, 73d Cong., 2d Sess., 9 (1934).23
12
Although traditional cash-for-stock transactions that result in a purchase and sale or a sale and purchase within the six-month, statutory period are clearly within the purview of § 16(b), the courts have wrestled with the question of inclusion or exclusion of certain 'unorthodox' transactions.24 The statutory definitions of 'purchase' and 'sale' are broad and, at least arguably, reach many transactions not ordinarily deemed a sale or purchase.25 In deciding whether borderline transactions are within the reach of the statute, the courts have come to inquire whether the transaction may serve as a vehicle for the evil which Congress sought to prevent—the realization of short-swing profits based upon access to inside information26—thereby endeavoring to implement congressional objectives without extending the reach of the statute beyond its intended limits. The statute requires the inside, short-swing trader to disgorge all profits realized on all 'purchases' and 'sales' within the specified time period, without proof of actual abuse of insider information, and without proof of intent to profit on the basis of such information. Under these strict terms, the prevailing view is to apply the statute only when its application would serve its goals. '(W)here alternative constructions of the terms of § 16(b) are possible, those terms are to be given the construction that best serves the congressional purpose of curbing short-swing speculation by corporate insiders.' Reliance Electric Co. v. Emerson Electric Co., 404 U.S., at 424, 92 S.Ct., at 600. See Blau v. Lamb, 363 F.2d 507 (CA2 1966), cert. denied, 385 U.S. 1002, 87 S.Ct. 707, 17 L.Ed.2d 542 (1967). Thus, '(i)n interpreting the terms 'purchase' and 'sale,' courts have properly asked whether the particular type of transaction involved is one that gives rise to speculative abuse.' Reliance Electric Co. v. Emerson Electric Co., supra, 404 U.S., at 424 n. 4, 92 S.Ct., at 600.27
13
In the present case, it is undisputed that Occidental became a 'beneficial owner' within the terms of § 16(b) when, pursuant to its tender offer, it 'purchased' more than 10% of the outstanding shares of Old Kern. We must decide, however, whether a 'sale' within the ambit of the statute took place either when Occidental became irrevocably bound to exchange its shares of Old Kern for shares of Tenneco pursuant to the terms of the merger agreement between Old Kern and Tenneco or when Occidental gave an option to Tenneco to purchase from Occidental the Tenneco shares so acquired.28
III
14
On August 30, 1967, the Old Kern-Tenneco merger agreement was signed, and Occidental became irrevocably entitled to exchange its shares of Old Kern stock for shares of Tenneco preference stock. Concededly, the transaction must be viewed as though Occidental had made the exchange on that day. But, even so, did the exchange involve a 'sale' of Old Kern shares within the meaning of § 16(b)? We agree with the Court of Appeals that it did not, for we think it totally unrealistic to assume or infer from the facts before us that Occidental either had or was likely to have access to inside information, by reason of its ownership of more than 10% of the outstanding shares of Old Kern, so as to afford it an opportunity to reap speculative, short-swing profits from its disposition within six months of its tender-offer purchases.
15
It cannot be contended that Occidental was an insider when, on May 8, 1967, it made an irrevocable offer to purchase 500,000 shares of Old Kern stock at a price substantially above market. At that time, it owned only 1,900 shares of Old Kern stock, far fewer than the 432,000 shares needed to constitute the 10% ownership required by the statute. There is no basis for finding that, at the time the tender offer was commenced, Occidental enjoyed an insider's opportunity to acquire information about Old Kern's affairs.
16
It is also wide of the mark to assert that Occidental, as a sophisticated corporation knowledgeable in matters of corporate affairs and finance, knew that its tender offer would either succeed or would be met with a 'defensive merger.' If its takeover efforts failed, it is argued, Occidental knew it could sell its stock to the target company's merger partner at a substantial profit. Calculations of this sort, however, whether speculative or not and whether fair or unfair to other stockholders or to Old Kern, do not represent the kind of speculative abuse at which the statute is aimed, for they could not have been based on inside information obtained from substantial stockholdings that did not yet exist. Accepting both that Occidental made this very prediction and that it would recurringly be an accurate forecast in tender-offer situations,29 we nevertheless fail to perceive how the fruition of such anticipated events would require, or in any way depend upon, the receipt and use of inside information. If there are evils to be redressed by way of deterring those who would make tender offers, s 16(b) does not appear to us to have been designed for this task.
17
By May 10, 1967, Occidental had acquired more than 10% of the outstanding shares of Old Kern. It was thus a statutory insider when, on May 11, it extended its tender offer to include another 500,000 shares. We are quite unconvinced, however, that the situation had changed materially with respect to the possibilities of speculative abuse of inside information by Occidental. Perhaps Occidental anticipated that extending its offer would increase the likelihood of the ultimate success of its takeover attempt or the occurrence of a defensive merger. But, again, the expectation of such benefits was unrelated of the use of information unavailable to other stockholders or members of the public with sufficient funds and the intention to make the purchases Occidental had offered to make before June 8, 1967.
18
The possibility that Occidental had, or had the opportunity to have, any confidential information about Old Kern before or after May 11, 1967, seems extremely remote. Occidental was, after all, a tender offeror, threatening to seize control of Old Kern, displace its management, and use the company for its own ends. The Old Kern management vigorously and immediately opposed Occidental's efforts. Twice it communicated with its stockholders, advising against acceptance of Occidental's offer and indicating prior to May 11 and prior to Occidental's extension of its offer, that there was a possibility of an imminent merger and a more profitable exchange. Old Kern's management refused to discuss with Occidental officials the subject of an Old Kern-Occidental merger. Instead, it undertook negotiations with Tenneco and forthwith concluded an agreement, announcing the merger terms on May 19. Requests by Occidental for inspection of Old Kern records were sufficiently frustrated by Old Kern's management to force Occidental to litigate to secure the information it desired.
19
There is, therefore, nothing in connection with Occidental's acquisition of Old sought to be classified a 'sale' under § to indicate either the possibility of inside information being available to Occidental by virtue of its stock ownership or the potential for speculative abuse of such inside information by Occidental. Much the same can be said of the events leading to the exchange of Occidental's Old Kern stock for Tenneco preferred, which is one of the transactions that is wought to be classified a 'sale' under § 16(b). The critical fact is that the exchange took place and was required pursuant to a merger between Old Kern and Tenneco. That merger was not engineered by Occidental but was sought by Old Kern to frustrate the attempts of Occidental to gain control of Old Kern. Occidental obviously did not participate in or control the negotiations or the agreement between Old Kern and Tenneco. Cf. Newmark v. RKO General, 425 F.2d 348 (CA2), cert. denied, 400 U.S. 854, 91 S.Ct. 64, 27 L.Ed.2d 91 (1970); Park and Tilford v. Schulte, 160 F.2d 984 (CA2), cert. denied, 332 U.S. 761, 68 S.Ct. 64, 92 L.Ed. 347 (1947). Once agreement between those two companies crystallized, the course of subsequent events was out of Occidental's hands. Old Kern needed the consent of its stockholders, but as it turned out, Old Kern's management had the necessary votes without the affirmative vote of Occidental. The merger agreement was approved by a majority of the stockholders of Old Kern, excluding the votes to which Occidental was entitled by virtue of its ownership of Old Kern shares. See generally Ferraiolo v. Newman, 259 F.2d 342 (CA6 1958), cert. denied, 359 U.S. 927, 79 S.Ct. 606, 3 L.Ed.2d 629 (1959); Roberts v. Eaton, 212 F.2d 82 (CA2 1954). Occidental, although registering its opinion that the merger would be beneficial to Old Kern shareholders, did not in fact vote at the stockholders' meeting at which merger approval was obtained. Under California law, its abstention was tantamount to a vote against approval of the merger. Moreover, at the time of stockholder ratification of the merger, Occidental's previous dealing in Old Kern stock was, as it had always been, fully disclosed.
20
Once the merger and exchange were approved, Occidental was left with no real choice with respect to the future of its shares of Old Kern. Occidental was in no position to prevent the issuance of a ruling by the Internal Revenue Service that the exchange of Old Kern stock for Tenneco preferred would be tax free; and, although various lawsuits were begun in state and federal courts seeking to postpone the merger closing beyond the statutory six-month period, those efforts were futile. The California Corporation Commissioner issued the necessary permits for the closing that took place on August 30, 1967. The merger left no right in dissenters to secure appraisal of their stock. Occidental could, of course, have disposed of its shares of Old Kern for cash before the merger was closed. Such an act would have been a § 16(b) sale and would have left Occidental with a prima facie § 16(b) liability. It was not, therefore, a realistic alternative for Occidental as long as it felt that it could successfully defend a suit like the present one. See generally Petteys v. Butler, 367 F.2d 528 (CA8 1966), cert. denied, 385 U.S. 1006, 87 S.Ct. 712, 17 L.Ed.2d 545 (1967); Ferraiolo v. Newman, supra; Lynam v. Livingston, 276 F.Supp. 104 (Del.1967); Blau v. Hodgkinson, 100 F.Supp. 361 (SDNY 1951). We do not suggest that an exchange of stock pursuant to a merger may never result in § 16(b) liability. But the involuntary nature of Occidental's exchange, when coupled with the absence of the possibility of speculative abuse of inside information, convinces us that § 16(b) should not apply to transactions such as this one.
IV
21
Petitioner also claims that the Occidental-Tenneco option agreement should itself be considered a sale, either because it was the kind of transaction the statute was designed to prevent or because the agreement was an option in form but a sale in fact. But the mere execution of an option to sell is not generally regarded as a 'sale.' See Booth v. Varian Associates, 334 F.2d 1 (CA1 1964), cert. denied, 379 U.S. 961, 85 S.Ct. 651, 13 L.Ed.2d 556 (1965); Allis-Chalmers Mfg. Co. v. Gulf & Western Industries, 309 F.Supp. 75 (ED Wis.1970); Marquette Cement Mfg. Co. v. Andreas, 239 F.Supp. 962 (SDNY 1965). And we do not find in the execution of the Occidental-Tenneco option agreement a sufficient possibility for the speculative abuse of inside information with respect to Old Kern's affairs to warrant holding that the option agreement was itself a 'sale' within the meaning of § 16(b). The mutual advantages of the arrangement appear quite clear. As the District Court found, Occidental wanted to avoid the position of a minority stockholder with a huge investment in a company over which it had no control and in which it had not chosen to invest. On the other hand, Tenneco did not want a potentially troublesome minority stockholder that had just been vanquished in a fight for the control of Old Kern. Motivations like these do not smack of insider trading; and it is not clear to us, as it was not to the Court of Appeals, how the negotiation and execution of the option agreement gave Occidental any possible opportunity to trade on inside information it might have obtained from its position as a major stockholder of Old Kern. Occidental wanted to get out, but only at a date more than six months thence. It was willing to get out at a price of $105 per share, a price at which it had publicly valued Tenneco preferred on May 19 when the Tenneco-Old Kern agreement was announced. In any event, Occidental was dealing with the putative new owners of Old Kern, who undoubtedly knew more about Old Kern and Tenneco's affairs than did Occidental. If Occidental had leverage in dealing with Tenneco, it is incredible that its source was inside information rather than the fact of its large stock ownership itself.
22
Neither does it appear that the option agreement, as drafted and executed by the parties, offered measurable possibilities for speculative abuse. What Occidental granted was a 'call' option. Tenneco had the right to buy after six months, but Occidental could not force Tenneco to buy. The price was fixed at $105 for each share of Tenneco preferred. Occidental could not share in a rising market for the Tenneco stock. See Silverman v. Landa, 306 F.2d 422 (CA2 1962). If the stock fell more than $10 per share, the option might not be exercised, and Occidental might suffer a loss if the market further deteriorated to a point where Occidental was forced to sell. Thus, the option, by its very form, left Occidental with no choice but to sell if Tenneco exercised the option, which it was almost sure to do if the value of Tenneco stock remained relatively steady. On the other hand, it is difficult to perceive any speculative value to Occidental if the stock declined and Tenneco chose not to exercise its option. See generally Note, Put and Call Options Under Section 16 of the Securities Exchange Act, 69 Yale L.J. 868 (1960); H. Filer, Understanding Put and Call Options 96—111 (1959); G. Leffler, The Stock Market 363—378 (2d ed. 1957).
23
The option, therefore, does not appear to have been an instrument with potential for speculative abuse, whether or not Occidental possessed inside information about the affairs of Old Kern. In addition, the option covered Tenneco preference stock, a stock as yet unissued, unregistered, and untraded. It was the value of this stock that underlay the option and that determined whether the option would be exercised, whether Occidental would be able to profit from the exercise, and whether there was any real likelihood of the exploitation of inside information. If Occidental had inside information when it negotiated and signed the option agreement, it was inside information with respect to Old Kern. Whatever it may have known or expected as to the future value of Old Kern stock, Occidental had no ownership position in Tenneco giving it any actual or presumed insights into the future value of Tenneco stock. That was the critical item of intelligence if Occidental was to use the option for purposes of speculation. Also, the date for exercise of the option was over six months in the future, a period that, under the statute itself, is assumed to dissipate whatever trading advantage might be imputed to a major stockholder with inside information. See Comment, Stock Exchanges Pursuant to Corporate Consolidation: A Section 16(b) 'Purchase or Sale?,' 117 U.Pa.L.Rev. 1034, 1054 (1969); Silverman v. Landa, supra. By enshrining the statutory period into the option, Occidental also, at least if the statutory period is taken to accomplish its intended purpose, limited its speculative possibilities. Nor should it be forgotten that there was no absolute assurance that the merger, which was not controlled by Occidental, would be consummated. In the event the merger did not close, the option itself would become null and void.
24
Nor can we agree that we must reverse the Court of Appeals on the ground that the option agreement was in fact a sale because the premium paid was so large as to make the exercise of the option almost inevitable, particularly when coupled with Tenneco's desire to rid itself of a potentially troublesome stockholder. The argument has force, but resolution of the question is very much a matter of judgment, economic and otherwise, and the Court of Appeals rejected the argument. That court emphasized that the premium paid was what experts had said the option was worth, the possibility that the market might drop sufficiently in the six months following execution of the option to make exercise unlikely, and the fact that here, unlike the situation in Bershad v. McDonough, 428 F.2d 693 (CA7 1970), the optionor did not surrender practically all emoluments of ownership by executing the option. Nor did any other special circumstances indicate that the parties understood and intended that the option was in fact a sale.30 We see no satisfactory basis or reason for disagreeing with the judgment of the Court of Appeals in this respect.31
25
The judgment of the Court of Appeals is affirmed.
26
So ordered.
27
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice STEWART concur, dissenting.
28
The Court, in resorting to an ad hoc analysis of the 'possibility for the speculative abuse of inside information,' charts a course for the interpretation of § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), that in my mind undermines the congressional purpose. I respectfully dissent.
29
* 'The statute is written broadly, and the liability it imposes is strict.' Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 431, 92 S.Ct. 596, 603, 30 L.Ed.2d 575 (Douglas, J., dissenting). Except for narrowly drawn exceptions, it is all-inclusive.1 The operative language provides:
30
'(A)ny profit realized by (a beneficial owner, director, or officer) from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months.' (Emphasis added.)
31
By its own terms, the section subsumes all transactions that are technically purchases and sales and applies irrespective of any actual or potential use of inside information to gain a trading advantage. See Feder v. Martin Marietta Corp., 406 F.2d 260, 262 (CA2 1969). The conclusion seems inescapable that Occidental Petroleum Corp. (Occidental) purchased and sold shares of Kern County Land Co. (Old Kern) within a six-month period and that this 'round trip' in Old Kern stock is covered by the literal terms of § 16(b).
32
Occidental, pursuant to a cash tender offer, acquired in excess of 880,000 shares of Old Kern during May and June 1967. It is undisputed that these acquisitions were purchases within the meaning of the section.2 On August 30, 1967, Old Kern sold its assets to a newly formed subsidiary of Tenneco Corp., Kern County Land Co. (New Kern), in exchange for cumulative convertible preference stock of Tenneco, Inc. (Tenneco), Tenneco Corporation's parent. Old Kern was dissolved in October 1967 (within six months of the tender offer), and each shareholder became irrevocably entitled to receive, share for share, for his Old Kern stock the cumulative convertible preference stock of Tenneco.
33
The question presented to us is whether this exchange of shares constituted a 'sale' of the Old Kern shares. The term 'sale,' as used in the Securities Exchange Act, includes 'any contract to sell or otherwise dispose of.' 15 U.S.C. § 78c(a)(14). Clearly, Occidental 'disposed' of its Old Kern shares through the Old Kern-Tenneco consolidation. Its status as a shareholder of Old Kern terminated, and it became instead a shareholder of Tenneco, privy to all the rights conferred by the Tenneco shares.3 See Newmark, v. RKO General, 425 F.2d 348 (CA2 1970); Park & Tilford v. Schulte, 160 F.2d 984 (CA2 1947).4 In my view, we need look no further. As my Brother Blackmun, then Circuit Judge, stated in dissent in Petteys v. Butler, 367 F.2d 528, 538 (CA8 1966):
34
'My own reaction is that either the statute means what it literally says or that it does not; that if the Congress intended to provide additional exceptions, it would have done so in clear language; and that the recognized purpose and aim of the statute are more consistently and protectively to be served if the statute is construed literally and objectively rather than non-literally and subjectively on a case-by-case application. The latter inevitably is a weakening process.'
35
The majority finesses the literal impact of § 16(b) by examining Occidental's willfulness and its access to inside information. It concludes: 'But the involuntary nature of Occidental's exchange, when coupled with the absence of the possibility of speculative abuse of inside information, convinces us that § 16(b) should not apply to transactions such as this one.' Ante, at 600. This approach is plainly contrary to the legislative purpose.
36
The purpose of § 16(b) is stated in its preamble: 'preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer . . ..' The congressional investigations that led to the enactment of the Securities Exchange Act revealed widespread use of confidential information by corporate insiders to gain an unfair advantage in trading their corporations' securities.5 Unlike other remedial provisions of the Act, the most noteworthy being § 10(b), 15 U.S.C. § 78j(b), Congress drafted § 16(b) as an objective rule, designed to have a clearly 'prophylactic' effect. Blau v. Lehman, 368 U.S. 403, 414, 82 S.Ct. 451, 457, 7 L.Ed.2d 403. See Heli-Coil Corp. v. Webster, 352 F.2d 156, 165—166 (CA3 1965); Smolowe v. Delendo Corp., 136 F.2d 231, 235 (CA2 1943). As Thomas Corcoran, a principal drafts man of the Act, explained to Congress:
37
'You hold the director, irrespective of any intention or expectation to sell the security within 6 months after, because it will be absolutely impossible to prove the existence of such intention or expectation, and you have to have this crude rule of thumb, because you cannot undertake the burden of having to prove that the director intended, at the time he bought, to get out on a short swing.'6
38
In Reliance Electric, supra, the Court noted that 'the only method Congress deemed effective to curb the evils of insider trading was a flat rule taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great.' 404 U.S., at 422, 92 S.Ct. at 599 (emphasis added). Certainly, mergers are such a class of transactions.7 In Newmark v. RKO General, supra, for example, RKO signed an option contract to purchase shares of the company which was to be merged into a subsidiary of RKO. When the merger was approved by the necessary parties, RKO exercised its option and the merger was consummated. The court found that RKO 'not only acquired knowledge of what would transpire but also could exercise substantial influence over the course of events.' 425 F.2d, at 353. 'In sum,' the court concluded, 'the purchase and subsequent exchange of Central shares were fraught with opportunities for the kind of speculative abuse section 16(b) was intended to abort.' Id., at 354.
39
The Securities and Exchange Commission has resisted a rule that would exempt mergers as a class from the operation of § 16(b). It responded as follows to a proposal of the Special Committee on Securities Regulation of the Association of the Bar of the City of New York:8
40
'We concluded, however, that removing the 'teeth' of Section 16(b) to discourage the use of inside information would allow insiders to create and take advantage of speculative opportunities during the time surrounding such significant corporate events which outweighed this potential conflict. Also, we know that some persons are unwittingly caught by the section in these as in other situations falling within the provisions of Section 16(b), but in our opinion the public interest and the interest of investors are better served in this area by the unrestricted operation of the section.'
41
It is true that in some cases an insider may be required to disgorge profits even though his transactions do not lend themselves to the abuses that underlay the enactment of § 16(b). The draftsmen carefully weighed this eventuality and opted for a bright-line rule. As Thomas Corcoran stated: 'You have to have a general rule. In particular transactions it might work a hardship, but those transactions that are a hardship represent the sacrifice to the necessity of having a general rule.'9
42
The very construction of § 16(b) reinforces the conclusion that the section is based in the first instance10 on a totally objective appraisal of the relevant transactions.11 See Smolowe v. Delendo Corp., supra, at 236. Had the draftsmen intended that the operation of the section hinge on abuse of access to inside information it would have been anomalous to limit the section to purchases and sales occurring within six months.12 Indeed, the purpose of the six-month limitation, coupled with the definition of an insider, was to create a conclusive presumption that an insider who turns a short-swing profit in the stock of his corporation had access to inside information and capitalized on that information by speculating in the stock. But, the majority departs from the benign effects of this presumption when it assumes that it is 'totally unrealistic to assume or infer from the facts before us that Occidental either had or was likely to have access to inside information . . ..' Ante, at 596. The majority abides by this assumption even for that period after which Occidental became a 10% shareholder and then extended its tender offer in order to purchase additional Old Kern shares.
43
The majority takes heart from those decisions of lower federal courts which endorse a 'pragmatic' approach to s 16(b). Many involved the question whether a conversion of one security of an issuer into another security of the same issuer constituted a purchase or a sale.13It would serve no purpose to parse their holdings because, as Louis Loss describes, they have a 'generalization-defying nature.'14In 1966 the Securities and Exchange Commission exercised its exemptive power under § 16(b) to adopt Rule 16b—9,15 which under specified conditions excludes a conversion from the operation of § 16(b). This rule will relieve the courts of much of the burden that had developed from ad hoc analyses in this narrow area. But, by sanctioning the approach of these cases, the majority brings to fruition Louis Loss' prophecy that they will 'continue to rule us from their graves,'16 for henceforth they certainly will be applied by analogy to the area of mergers and other consolidations.
44
Thus, the courts will be caught up in an ad hoc analysis of each transaction, determining both from the economics of the transaction and the modus operandi of the insider whether there exists the possibility of speculative abuse of inside information. Instead of a section that is easy to administer and by its clearcut terms discourages litigation, we have instead a section that fosters litigation because the Court's decision holds out the hope for the insider that he may avoid § 16(b) liability. In short, the majority destroys much of the section's prophylactic effect. I would be the first to agree that '(e)very transaction which can reasonably be defined as a purchase (should) be so defined, if the transaction is of a kind which can possibly lend itself to the speculation encompassed by Section 16(b).' Ferraiolo v. Newman, 259 F.2d 342, 345 (CA6, 1958) (Stewart, J., then Circuit Judge). See also Reliance Electric Co. v. Emerson Electric Co., 404 U.S., at 424, 92 S.Ct., at 600. Certainly we cannot allow transactions which present the possibility of abuse but do not fall within the classic conception of a purchase or sale to escape the confines of § 16(b). It is one thing to interpret the terms 'purchase' and 'sale' liberally in order to include those transactions which evidence the civil Congress sought to eliminate; it is quite another to abandon the bright-line test of § 16(b) for those transactions which clearly fall within its literal bounds. Section 16(b), because of the six-month limitation, allows some to escape who have abused their inside information. It should not be surprising, given the objective nature of the rule, if some are caught unwillingly.
45
In Reliance Electric, supra, at 422, 92 S.Ct. at 599, the Court quoted with approval the following language from Bershad v. McDonough, 428 F.2d 693, 696 (CA7 1970):
46
'In order to achieve its goals, Congress chose a relatively arbitrary rule capable of easy administration. The objective standard of Section 16(b) imposes strict liability upon substantially all transactions occurring within the statutory time period, regardless of the intent of the insider or the existence of actual speculation. This approach maximized the ability of the rule to eradicate speculative abuses by reducing difficulties in proof. Such arbitrary and sweeping coverage was deemed necessary to insure the optimum prophylactic effect.'
47
It is this 'objective standard' that the Court hung to so tenaciously in Reliance Electric, but now apparently would abandon to a large extent. In my view, the Court improperly takes upon itself the task of refashioning the contours of § 16(b)17 and changing its essential thrust.
II
48
Although I conclude that the judgment below should be reversed on the grounds that the exchange of shares constituted a sale, I could not conclude that it was proper for the Court of Appeals to direct entry of summary judgment in favor of Occidental even if I accepted the majority approach to § 16(b). It did this notwithstanding the failure of Occidental to move for summary judgment in the District Court. To say the least, this is an extroardinary procedure.18 Even if it can be justified in the most limited circumstances—for example, where the record below left no doubt whatsoever that the nonmoving party was entitled to summary judgment as a matter of law—this is not such a case.
49
The District Court concluded that '(i)n consequence of the option agreement, Occidental disposed of its holdings in Old Kern stock at a profit of about $20 per share . . .. This profit falls within the meaning and purview of Section 16(b) . . ..' 323 F.Supp. 570, 579—580. Since the actual sale pursuant to the exercise of the option did not occur within the six-month period, the only reasonable interpretation of this conclusion of law is that the District Court found that the execution of the option was in fact and substance a sale. The majority does not contest that an option agreement may be in economic reality a sale. See Bershad v. McDonough, supra. It distinguishes but does not reject Bershad. Rather, the majority can 'see no satisfactory basis or reason for disagreeing' with the Court of Appeals, which concluded that there is 'no basis' for a finding that Occidental's Old Kern stock was 'sold' upon execution of the option.19 I cannot agree.
50
In Bershad, the defendants, who had purchased approximately 18% of the outstanding shares of Cudahy Co. at $6.75 per share, executed an option obligating themselves to sell the shares at $9 per share. The market price of the shares was then $9.125. The optionee paid $350,000 (14% of the purchase price) for the option, to be applied against the purchase price in the event of exercise and forfeited in the event of nonexercise. In addition, defendants gave the optionee an irrevocable proxy with respect to the optioned stock, and defendant McDonough and his colleagues resigned from the Cudahy board of directors. The Court of Appeals also found that '(t)he circumstances of the transactions clearly indicate that the stock was effectively transferred, for all practical purposes, long before the exercise of the option.' 428 F.2d, at 698.
51
By comparison, the exercise price here was $105, and the premium to secure the option was $10 per share, or $8,866,230, also to be credited against the purchase price if the option were exercised and forfeited in the event of nonexercise if the merger was consummated. Thus, the effective exercise price was nearly 10% below the estimated value of the Tenneco shares to be received in the consolidation.20 When the option was executed, Occidental's attorney was authorized to vote Occidental's Old Kern shares in favor of the Tenneco acquisition, and it was not until it was apparent that Occidental's vote was not needed that Occidental's attorney was relieved of his obligation. Occidental also abandoned its demand for two seats on Old Kern's board, as well as its litigation for inspection of Old Kern's books and records.
52
In concluding that this case was not controlled by Bershad, the Court of Appeals emphasized the undisputed testimony21 that the forfeitable down payment was a reasonable, noncoercive price. The basis for this was the deposition of one of Occidental's vice presidents stating that a New York investment firm had advised him that $9 to $12 per share was a reasonable premium for an option on stock selling at $95. This deposition should not suffice to support summary judgment. First, it is not clear what assumptions the investment firm had made in giving this advice. Second, while it may be that $10 per share premium was a reasonable price for an option based upon factors available to the general investing public, it is by no means clear that an option executed by two parties privy to inside information should be judged on the same terms.22 It may be that under the circumstances present here the eventual exercise of the option was a 'sure thing.' In short, Occidental may have known that it was 'locked into' a $17 million profit.23 Finally, it has not been determined what effect, if any, the very size of the down payment—nearly $9 million—had on the eventual exercise. With these uncertainties and in view of the holding of the District Court that the option agreement constituted a sale, at the very least the case should have been remanded to the District Court for a hearing on whether the terms of the option 'compelled' its exercise. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, at 383, 93 S.Ct. 1652, at 1667, 36 L.Ed.2d 318, (Douglas, J., dissenting); White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738; 6 J. Moore, Federal Practice 56.12, p. 2243 (2d ed. 1972).
1
'For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.' 15 U.S.C. § 78p(b).
2
Old Kern was a California corporation having substantial real estate holdings, including oil-producing lands, oil-exploration activities, cattle ranching, cattle-feeding operations, and interests in the manufacture of automotive parts, electronic systems and devices, and farm machinery and construction equipment. After the reorganization described in the text, Old Kern became known as the 600 California Corporation until its eventual dissolution under California law on October 6, 1967.
3
Occidental is the respondent in this Court. A California corporation with its principal place of business in California, Occidental is engaged in the production and sale of oil, gas, coal, sulphur, and fertilizers.
4
The Old Kern stock was registered pursuant to § 12 of the Securities Exchange Act of 1934, as amended, 15 U.S.C. § 78l. The stock was a nonexempt, equity security for purposes of § 16(b).
5
The Old Kern stock closed at 63 5/8 on Friday, May 8, 1967, the last trading day prior to the announcement of the tender offer. It had reached a high of 64 7/8 and a low of 57 3/8 in 1967, a high of 76 1/4 and a low of 51 3/4 in 1966, a high of 71 5/8 and a low of 56 in 1965, and a high of 70 3/8 and a low of 56 5/8 in 1964. Thus, the $85-per-share tender-offer price represented a substantial profit for shareholders of Old Kern.
6
On May 10, Old Kern had 4,328,000 shares outstanding.
7
On May 18, 1967, Occidental filed a Form 3, Initial Statement of Beneficial Ownership of Securities, with the Securities and Exchange Commission indicating direct ownership of 507,055 shares of Old Kern stock; on June 9, 1967, Occidental filed a Form 4, Statement of Changes in Beneficial Ownership of Securities, for the month of May, indicating the purchase of an additional 376,326 shares of Old Kern stock, for a total ownership as of May 31, 1967, of 883,381 shares. An additional, 4,168 shares were purchased by June 8, 1967, so that as of June 30, 1967, Occidental held 887,549 shares of Old Kern stock. This figure included 1,900 shares which Occidental purchased on the open market in April 1967. Section 16(b) liability is not asserted with respect to these shares, because these purchases did not make Occidental a 'beneficial owner' for purposes of § 16(b).
8
Tenneco, a Delaware corporation, is a diversified industrial company with operations in natural gas transmission, oil and gas, chemicals, packaging, manufacturing, and shipbuilding. Tenneco is not a party to this litigation.
9
Although technically a sale of assets, the corporate combination has been consistently referred to by the parties as a 'merger' and will be similarly denominated in this opinion. The only significance of the characterization is the fact that a sale of assets required, under California law, approval of only a majority of the Old Kern shareholders and provided no appraisal rights for dissenters.
10
New Kern, a Delaware corporation with its principal place of business in California, is the petitioner in this Court and is a wholly owned subsidiary of Tenneco Corp. Tenneco Corp. is, in turn, a wholly owned subsidiary of Tenneco and owns all of the capital stock or controlling interests in most of Tenneco's nonpipeline operating subsidiaries. When first incorporated, New Kern was known as KCL Corp.
11
The annual dividend of $5.50 per share on the new Tenneco stock would be more than double the current annual dividend of $2.60 per share on the Old Kern stock. Each share of the new Tenneco preference stock was convertible into 3.6 shares of Tenneco common stock. During 1967, Tenneco common stock had sold at a high of 32 1/2 and a low of 20 7/8. Moreover, in contrast to Occidental's cash offer, the Tenneco exchange was expected to be, and was ultimately approved by the Internal Revenue Service as, free of capital gains tax.
12
Prior to any court ruling on Occidental's mandamus petitions, Old Kern voluntarily permitted inspection of Old Kern's general ledger, consolidated financial statements, consolidated journal entries, details of cash receipts from oil operations, supporting trial balances, and other records over a six-day period. A list of stockholders, however, was withheld.
13
The agreement covered 886,623 shares. This figure is 926 shares less than the number of Old Kern shares ultimately owned by Occidental. This discrepancy apparently results from uncertainty as to the number of shares tendered.
14
An outside investment banking firm in New York had determined that between $9 and $12 per share was a fair premium on an option on the Old Kern stock.
15
On that date, and on the date of the exercise of the option, Old Kern common stock was selling at approximately $95 per share.
16
Seeking to prevent its acquisition of Tenneco shares pursuant to the merger from being matched with the sale of those shares upon exercise of the option for purposes of establishing § 16(b) liability, Occidental asked that the new Tenneco stock not be immediately registered pursuant to § 12 of the Securities Exchange Act of 1934, 15 U.S.C. § 78l. See 450 F.2d 157, 160 n. 6.
17
The letter indicated that Occidental 'did not consider it to be in its best interest, or the best interest of its shareholders, or the best interest of KCL Shareholders generally for it to (oppose) the transaction.' However, Occidental stated that '(i)n view of the fact that we would rather have worked out our own transaction with KCL, we shall not vote our KCL shares at the KCL Shareholder's Meeting on July 17, 1967.' Under applicable California law, the abstention from voting was tantamount to opposing the merger.
18
This history of this litigation is reviewed in 600 California Corp. v. Harjean Co., 284 F.Supp. 843 (N.D.Tex.1968).
19
Occidental answered asserting various affirmative defenses and counterclaims. Two suits had already been instituted by Old Kern shareholders, and one was subsequently begun. The four suits were consolidated.
20
In view of its disposition, the Court of Appeals did not reach Occidental's contentions that only the purchases in excess of 10% of Old Kern's stock, rather than all purchases made pursuant to the tender offer, should be included in calculating liability and that the awards of prejudgment interest and dividends were improper. Occidental also appealed from the dismissal of its counterclaims. The Court of Appeals dismissed Occidental's appeal as moot.
21
For purposes of § 16(b), a statutory insider includes a 'beneficial owner, director, or officer.' 15 U.S.C. § 78p(b). The term 'beneficial owner' refers to one who owns 'more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section 75l (§ 12) of this title.' 15 U.S.C. § 78p(a).
22
The term 'equity security' is defined to include 'any stock or similar security; or any security convertible, with or without consideration, into such a security, or carrying any warrant or right to subscribe to or purchase such a security; or any such warrant or right; or any other security which the Commission shall deem to be of similar nature and consider necessary or appropriate, by such rules and regulations as it may prescribe in the public interest or for the protection of investors, to treat as an equity security.' 15 U.S.C. § 78c(a)(11).
23
The legislative history of § 16(b) reveals a congressional effort to curb short-swing trading by insiders whose position gives them access to information not available to the investing public and the ability to influence corporate policy.
'Among the most vicious practices unearthed at the hearings before the subcommittee was the flagrant betrayal of their fiduciary duties by directors and officers of corporations who used their positions of trust and the confidential information which came to them in such positions, to aid them in their market activities. Closely allied to this type of abuse was the unscrupulous employment of inside information by large stockholders who, while not directors and officers, exercised sufficient control over the destinies of their companies to enable them to acquire and profit by information not available to others.' S.Rep.No.1455, 73d Cong., 2d Sess., 55 (1934).
See also 10 S.E.C.Ann.Rep. 50 (1944); S.Rep.No.792, 73d Cong., 2d Sess., 9 (1934).
'The Securities Exchange Act of 1934 aims to protect the interests of the public against the predatory operations of directors, officers, and principal stockholders of corporations by preventing them from speculating in the stock of the corporations to which they owe a fiduciary duty. . . . By this section (16(b)) it is rendered unlawful for persons intrusted with the administration of corporate affairs or vested with substantial control over corporations to use inside infor-
mation for their own advantage.' S.Rep.No.1455, 73d Cong., 2d Sess., 68 (1934).
The purpose and operation of § 16(b) were explained as follows by one of its draftsmen.
'(Section 16(b)) is to prevent directors receiving the benefits of short-term speculative swings on the securities of their own companies, because of inside information. The profit on such transaction under the bill would go to the corporation. You hold the director, irrespective of any intention or expectation to sell the security within 6 months after, because it will be absolutely impossible to prove the existence of such intention or expectation, and you have to have this crude rule of thumb, because you cannot undertake the burden of having to prove that the director intended, at the time he bought, to get out on a short swing.' Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency, 73d Cong., 2d Sess., pt. 15, p. 6557 (1934).
See generally Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 85 (1934); Hearings on Stock Exchange Practices, supra, at 6463—6581 (1934); S.Rep.No.792, 73d Cong., 2d Sess., 7—9 (1934); S.Rep.No.1455, 73d Cong., 2d Sess., 55—68 (1934); H.R.Rep.No.1383, 73d Cong., 2d Sess., 13—14 (1934). See also Blau v. Lamb, 363 F.2d 507 (CA2 1966), cert. denied, 385 U.S. 1002, 87 S.Ct. 707, 17 L.Ed.2d 542 (1967); Smolowe v. Delendo Corp., 136 F.2d 231 (CA2 1943), cert. denied, 320 U.S. 751, 64 S.Ct. 46, 88 L.Ed. 446 (1943); Yourd, Trading in Securities by Directors, Officers and Stockholders: Section 16 of the Securities Exchange Act, 38 Mich.L.Rev. 133 (1939); Meeker & Cooney, The Problem of Definition in Determining Insider Liabilities Under Section 16(b), 45 Va.L.Rev. 949 (1959); Comment, Stock Exchanges Pursuant to Corporate Consolidation: A Section 16(b) 'Purchase or Sale?,' 117 U.Pa.L.Rev. 1034 (1969).
24
The term, see 2 L. Loss, Securities Regulation 1069 (2d ed. 1961), has been applied to stock conversions, exchanges pursuant to mergers and other corporate reorganizations, stock reclassifications, and dealings in options, rights, and warrants.
25
'When used in this chapter, unless the context otherwise requires—
'(13) The terms 'buy' and 'purchase' each include any contract to buy, purchase, or otherwise acquire.
'(14) The terms 'sale' and 'sell' each include any contract to sell or otherwise dispose of.' 15 U.S.C. § 78c(a)(13), (14).
26
Several decisions have been read as to apply a so-called 'objective' test in interpreting and applying § 16(b). See, e.g., Smolowe v. Delendo Corp., supra; Park and Tilford v. Schulte, 160 F.2d 984 (CA2), cert. denied, 332 U.S. 761, 68 S.Ct. 64, 92 L.Ed. 347 (1947); Heli-Coil Corp. v. Webster, 352 F.2d 156 (CA3 1965). Under some broad language in those decisions, § 16(b) is said to be applicable whether or not the transaction in question could possibly lend itself to the types of speculative abuse that the statute was designed to prevent. By far the greater weight of authority is to the effect that a 'pragmatic' approach to § 16(b) will best serve the statutory goals. See, e.g., Roberts v. Eaton, 212 F.2d 82 (CA2), cert. denied, 348 U.S. 827, 75 S.Ct. 44, 99 L.Ed. 652 (1954); Ferraiolo v. Newman, 259 F.2d 342 (CA6 1958), cert. denied, 359 U.S. 927, 79 S.Ct. 606, 3 L.Ed.2d 629 (1959); Blau v. Max Factor & Co., 342 F.2d 304 (CA9), cert. denied, 382 U.S. 892, 86 S.Ct. 180, 15 L.Ed.2d 150 (1965); Blau v. Lamb, supra; Petteys v. Butler, 367 F.2d 528 (CA8 1966), cert. denied, 385 U.S. 1006, 87 S.Ct. 712, 17 L.Ed.2d 545 (1967). For a discussion and critical appraisal of the various 'approaches' to the interpretation and application of § 16(b), see Lowenfels, Section 16(b): A New Trend in Regulating Insider Trading, 54 Cornell L.Q. 45 (1968); Comment, Stock Exchanges Pursuant to Corporate Consolidation: A Section 16(b) 'Purchase or Sale?,' 117 U.Pa.L.Rev. 1034 (1969); Note, Reliance Electric and 16(b) Litigation: A Return to the Objective Approach?, 58 Va.L.Rev. 907 (1972); Gadsby & Treadway, Recent Developments Under Section 16(b) of the Securities Exchange Act of 1934, 17 N.Y.L.F. 687 (1971).
27
Our differences with the dissent as to the reach and scope of congressional intent and purpose are clear. If we are mistaken, or if Congress would now mandate a different result, the statutory remedy would not be difficult to fashion.
28
Both events occurred within six months of Occidental's first acquisition of Old Kern shares pursuant to its tender offer. Although Occidental did not exchange its Old Kern shares until December 11, 1967, it is not contended that that date, rather than the date on which Occidental became irrevocably bound to do so, should control. Similarly, although the option was not exercised until December 11, 1967, no liability is asserted with respect to that event, because it occurred more than six months after Occidental's last acquisition of Old Kern stock.
29
Although a 'defensive merger' is one tactic available to incumbent management in its arsenal of antitender-offer weapons, it is by no means a foregone conclusion that it is the response that will be most often, much less invariably, employed. Incumbent management might, for instance, choose to exhort shareholders not to tender, employ various techniques to elevate the market price of the company's stock in order to make the tender offer less attractive, institute legal proceedings, or increase the company's outstanding stock. Any one of these devices might prove more attractive to incumbent management than a defensive merger which could prove to be highly detrimental to the enterprise. See Note, Defensive Tactics Employed by Incumbent Managements in Contesting Tender Offers, 21 Stan.L.Rev. 1104 (1969).
30
In Bershad v. McDonough, 428 F.2d 693 (CA7 1970), the defendants were directors and greater-than-ten-percent stockholders of Cudahy Co. The defendants, within six months of their acquisition of beneficial ownership of Cudahy, granted an option to Smelting Refining and Mining Co. to purchase their Cudahy stock. The Seventh Circuit held that the grant of the option was a § 16(b) 'sale' of the Cudahy stock. The Court of Appeals in the present case distinguished Bershad as follows:
'That case came before the court of appeals on a finding by the district court that, under the circumstances there presented, the stock had in fact been sold within the six months period, although the option was not formally exercised until later. The district court had relied on a number of circumstances, the most significant being that the optionor gave the optionee an irrevocable proxy to vote the shares and that the optionor and one of his associate directors resigned as directors within a few days after the grant of the option and were replaced by officers of the optionee. In other words, the district court found in effect that the 'option' was accompanied by a wink of the eye, and the court of appeals sustained this. Here there is no such finding, and no basis for one.' 450 F.2d, at 165.
31
With respect to entering judgment for Occidental, the dissent simply has a different, but insufficiently persuasive, view of the facts from that of Judge Friendly and his colleagues.
1
Section 16(b) provides in full:
'For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.' 15 U.S.C. § 78p(b).
2
The term 'purchase' includes 'any contract to buy, purchase, or otherwise acquire.' 15 U.S.C. § 78c(a)(13). A 'beneficial owner' is one who owns 'more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section 78l (§ 12) of this title.' 15 U.S.C. § 78p(a). The District Court held that '(t)he tender offer constituted a single act of Occidental, whereby the company became a beneficial owner of more than 10 percent of Old Kern's capital stock.' 323 F.Supp. 570, 579. Thus, the District Court ruled that the profit made on all stock purchased in the tender offer, not only the profit on the purchases in excess of 10%, would have to be surrendered. The Court of Appeals did not reach this issue.
3
This is not a case where the stock surrendered and the stock received in the exchange were economic equivalents. Cf., e.g., Blau v. Lamb, 363 F.2d 507, 523—525 (CA2 1966); Blau v. Max Factor & Co., 342 F.2d 304, 308—309 (CA9 1965).
An exchange of securities in different companies is a 'purchase' or 'sale' for purposes of § 10(b). E.g., SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668; Dasho v. Susquehanna Corp., 380 F.2d 262 (CA7 1967).
4
Judge Clark, in Park & Tilford v. Schulte, adopted a straightforward approach to defining 'acquisition': 'Defendants did not own the common stock in question before they exercised their option to convert; they did afterward. Therefore they acquired the stock, within the meaning of the Act.' 160 F.2d 984, 987. The same analysis holds for 'disposition.'
5
Examples of this practice are chronicled elsewhere. See, e.g., Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 429—430, 92 S.Ct. 596, 602—603, 30 L.Ed.2d 575 and nn. 3—6 (Douglas, J., dissenting) and sources cited therein. It would serve no purpose to recount them here.
6
Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency, 73d Cong., 2d Sess., pt. 15, p. 6557 (1934).
7
See Recent Cases, 84 Harv.L.Rev. 1012, 1018 (1971).
8
Letter of Nov. 24, 1965.
9
Hearings, supra, n. 6, at 6558.
10
The objective approach may have to yield to a more flexible interpretation of the terms 'purchase' and 'sale' to include transactions which present the evil Congress sought to eliminate or transactions which are designed to evade § 16(b). See discussion, infra, at 612—613.
11
The preamble of the section, which expresses the purpose of the section, was intended to aid in establishing the constitutionality of the section and guiding the Commission's rulemaking authority. See Smolowe v. Delendo Corp., 136 F.2d 231, 236 (CA2 1943); 2 L. Loss, Securities Regulation 1041 (2d ed. 1961).
12
In addition, there would have been no reason to exempt transactions wherein the 'security was acquired in good faith in connection with a debt previously contracted . . ..'
13
See, e.g., Roberts v. Eaton, 212 F.2d 82 (CA2 1954); Ferraiolo v. Newman, 259 F.2d 342 (CA6 1958); Blau v. Max Factor & Co., 342 F.2d 304 (CA9 1965); Blau v. Lamb, 363 F.2d 507 (CA2 1966); Petteys v. Butler, 367 F.2d 528 (CA8 1966).
14
5 L. Loss, Securities Regulation 3029 (Supp. to 2d ed. 1969).
15
Securities Exchange Act Release 7826.
16
5 L. Loss, Securities Regulation 3029 (Supp. to 2d ed. 1969).
17
Occidental unsuccessfully sought to have the Securities and Exchange Commission adopt a rule which would have exempted this exchange. No inferences should be drawn from this refusal. But, I do believe that, given the structure and policies of § 16(b), any 'exempting' is best left to the Commission and Congress. See Heli-Coil Corp. v. Webster, 352 F.2d 156, 165—166 (CA3 1965).
18
See generally 6 J. Moore, Federal Practice 56.12 (2d ed. 1972).
19
The Court of Appeals also concluded that the District Court had made no such finding. For the reasons indicated above, I do not agree. In any event, I presume that the Court of Appeals, had it confronted such a finding, would have determined that it was clearly erroneous.
20
Respondent argues that, unlike Bershad, the effective exercise price was not below the current market value because the Old Kern shares never sold for more than $94.75. It contends that this trading price reflected the Kern board's acceptance of the proposed consolidation. But, it is common for a stock which may be exchanged to sell at a discount from the stock to be received until the exchange becomes a certainty. This discount reflects the risk that the exchange may not be consummated. The option agreement provided that the premium would be returned if there were no exchange. Thus, we must appraise this transaction on the assumption that the consolidation would be approved and accomplished.
21
Petitioner contends here that it did not believe that it was necessary to rebut this hearsay testimony in order to prevail on its motion for summary judgment; moreover, it was not faced with a cross-motion.
22
Although Occidental may not have been Tenneco's 'ally,' as the majority indicates, it was in their mutual interest to arrange for a satisfactory option agreement.
23
Shortly after the option was exercised, Armand Hammer, the President of Occidental, commented on the profit of $17 million that Occidental expected. In his mind, it was 'not had for two weeks' work.'
| 78
|
411 U.S. 475
93 S.Ct. 1827
36 L.Ed.2d 439
Peter PREISER, Commissioner of Correctional Services, et al., Petitioners,v.Eugene RODRIGUEZ et al.
No. 71—1369.
Argued Jan. 9, 1973.
Decided May 7, 1973.
Syllabus
Respondents were state prisoners who had elected to participate in New York's conditional-release program, by which a prisoner serving an indeterminate sentence may earn up to 10 days per month good-behavior-time credits toward reduction of his maximum sentence. For in-prison disciplinary reasons the good-time credits of each were canceled. Each respondent brought a civil rights action under 42 U.S.C. § 1983, in conjunction with a habeas corpus action, claiming that his credits were unconstitutionally canceled and seeking their restoration. The District Court in each case viewed the habeas corpus claim merely as an adjunct to the civil rights action, thus obviating the need for exhaustion of state remedies, and on the merits ruled for the respondent, a ruling that in each case entitled him to immediate release on parole. The Court of Appeals consolidated the actions and affirmed. Held: When a state prisoner challenges the fact or duration of his physical imprisonment and by way of relief seeks a determination that he is entitled to immediate release or a speedier release, his sole federal remedy is a writ of habeas corpus. Pp. 488—499.
(a) Although the broad language of § 1983 seems literally to apply, Congress' enactment of the specific federal habeas corpus statute, with its requirement that a state prisoner exhaust state remedies, was intended to provide the exclusive means of relief in this type of situation. Pp. 488—490.
(b) The policy of exhaustion in federal habeas corpus actions, which is rooted in considerations of federal-state comity, has as much relevance in an attack on the actions of the state prison administration as it does in an attack on the actions of a state court; and that policy applies here where respondents sought no damages, but only a ruling that they were entitled to immediate release or a speedier release. Pp. 490—494.
(c) Recent decisions of the Court relied on by respondents, upholding state prisoners' civil rights actions, are inapposite to the situation here, for the prisoners in those cases challenged only the conditions of their confinement, not the fact or duration of that confinement itself. Pp. 498—499.
456 F.2d 79, reversed.
Lillian Z. Cohen, New York City, for petitioners.
Herman Schwartz, New York City, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondents in this case were state prisoners who were deprived of good-conduct-time credits by the New York State Department of Correctional Services as a result of disciplinary proceedings. They then brought actions in a federal district court, pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. Alleging that the Department had acted unconstitutionally in depriving them of the credits, they sought injunctive relief to compel restoration of the credits, which in each case would result in their immediate release from confinement in prison. The question before us is whether state prisoners seeking such redress may obtain equitable relief under the Civil Rights Act, even though the federal habeas corpus statute, 28 U.S.C. § 2254, clearly provides a specific federal remedy.
2
The question is of considerable practical importance. For if a remedy under the Civil Rights Act is available, a plaintiff need not first seek redress in a state forum. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 671, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); King v. Smith, 392 U.S. 309, 312 n. 4, 88 S.Ct. 2128, 2131, 20 L.Ed.2d 1118 (1968); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). If, on the other hand, habeas corpus is the exclusive federal remedy in these circumstances, then a plaintiff cannot seek the intervention of a federal court until he has first sought and been denied relief in the state courts, if a state remedy is available and adequate. 28 U.S.C. § 2254(b).
3
The present consolidated case originated in three separate actions, brought individually by the three respondents. The respondent Rodriguez, having been convicted in a New York state court of perjury and attempted larceny, was sentenced to imprisonment for an indeterminate term of from one and one-half to four years. Under New York Correction Law § 803, McKinney's Consol.Laws, c. 43, and Penal Law §§ 70.30(4)(a), 70.40(1)(b), McKinney's Consol.Laws, c. 40, a prisoner serving an indeterminate sentence may elect to participate in a conditional-release program by which he may earn up to 10 days per month good-behavior-time credit toward reduction of the maximum term of his sentence. Rodriguez elected to participate in this program. Optimally, such a prisoner may be released on parole after having served approximately two-thirds of his maximum sentence (20 days out of every 30); but accrued good-behavior credits so earned may at any time be withdrawn, in whole or in part, for bad behavior or for violation of the institutional rules. N.Y. Correction Law § 803(1).
4
Rodriguez was charged in two separate disciplinary action reports with possession of contraband material in his cell. The deputy warden determined that as punishment, 120 days of Rodriguez' earned good-conduct-time credits should be canceled, and that Rodriguez should be placed in segregation, where he remained for more than 40 days. In the 'Remarks' section of the deputy warden's determination was a statement that Rodriguez had refused to disclose how he had managed to obtain possession of the items in question.
5
Rodriguez then filed in the District Court a complaint pursuant to § 1983, combined with a petition for a writ of habeas corpus. He asserted that he was not really being punished for possession of the contraband material, but for refusal to disclose how he had obtained it, and that he had received no notice or hearing on the charges for which he had ostensibly been punished. Thus, he contended that he had been deprived of his good-conduct-time credits without due process of law.
6
After a hearing, the District Court held that Rodriguez' suit had properly been brought under the Civil Rights Act, that the habeas corpus claim was 'merely a proper adjunct to insure full relief if (Rodriguez) prevails in the dominant civil rights claim,' 307 F.Supp. 627, 628—629 (1969), and that therefore Rodriguez was not required to exhaust his state remedies, as he would have had to do if he had simply filed a petition for habeas corpus. On the merits, the District Court agreed with Rodriguez that the questioning of him by prison officials related solely to the issue of how he had obtained the contraband materials, and that he had been ostensibly punished for something different possession of the materials—on which he had had no notice or opportunity to answer. This, the court found, denied him due process of law, particularly in light of the fact that the prison regulations prescribed no penalty for failure to inform. The District Court further found that the Prison Commutation Board had failed to forward to the Commissioner of Correction written reasons for the cancellation of Rodriguez' good-conduct time, as required by former N.Y. Correction Law § 236, and that this, too, had deprived Rodriguez of due process and equal protection of the laws. Accordingly, the court declared the cancellation of 120 days' good-behavior-time credits unconstitutional and directed the Commissioner of Correction to restore those credits to Rodriguez. Since, at that time Rodriguez' conditional-release date had already passed, the District Court's order entitled him to immediate release from prison on parole.
7
The Court of Appeals reversed this decision by a divided vote. The appellate court not only disagreed with the District Court on the merits, but also held that Rodriguez' action was really a petition for habeas corpus and, as such, should not have been entertained by the District Court because Rodriguez had not exhausted his state remedies in accordance with § 2254(b). As the Court of Appeals put it:
8
'The present application, since it seeks release from custody, is in fact an application for habeas corpus. '(R)elease from penal custody is not an available remedy under the Civil Rights Act.' Peinado v. Adult Authority, of Dept. of Corrections, 405 F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U.S. 968, 89 S.Ct. 2116, 23 L.Ed.2d 755 (1969). In Johnson v. Walker, 317 F.2d 418, 419—420 (5th Cir. 1963) the court said: 'Use of the Civil Rights Statutes to secure release of persons imprisoned by State Courts would thus have the effect of repealing 28 U.S.C. § 2254; of course, such was not the intent of Congress." Rodriguez v. McGinnis, 451 F.2d 730, 731 (1971).
9
The judgment of the Court of Appeals was subsequently set aside, and the case was reheard en banc, as explained below.
10
The respondent Katzoff, who was serving a sentence of one to three years in prison following his conviction for possession of a dangerous weapon, also elected to participate in New York's conditional-release program. Disciplinary charges were brought against him for making derogatory comments about prison officials in his diary. As punishment, the deputy warden deprived him of 30 days' good-conduct time for these diary entries and confined him in segregation for 57 days. Katzoff ultimately lost 50 days' good-behavior-time credits—30 days directly and 20 additional days because he was unable to earn any good-conduct time while in segregation. He brought a civil rights complaint under § 1983, joined with a petition for habeas corpus, in Federal District Court, alleging that the prison officials had acted unconstitutionally.
11
The District Court held, in an unreported opinion, that Katzoff's failure to exhaust state remedies was no bar to his suit, since it was a civil rights action and the petition for a writ of habeas corpus was only an incidental adjunct to assure enforcement of the judgment. On the merits, the District Court found that there was no prison regulation against the keeping of a diary; that punishment for entries in a private diary violated Katzoff's constitutional rights to due process, equal protection, and freedom of thought; and that confining Katzoff in segregation for this offense constituted cruel and unusual punishment. The court, therefore, ordered that the 50 days' good-behavior-time credits be restored to Katzoff, and since this restoration entitled him to immediate release on parole, the court ordered such release.
12
The Court of Appeals reversed by a divided vote. Without reaching the merits of Katzoff's complaint, the appellate court held that his action was in essence an application for habeas corpus since it sought and obtained his immediate release from custody, and that therefore his complaint should have been dismissed because Katzoff had sought no relief whatever in the state courts and had made no showing that an adequate state remedy was unavailable. United States ex rel. Katzoff v. McGinnis, 441 F.2d 558 (1971). This judgment of the Court of Appeals was subsequently set aside, and the case was reheard en banc, as explained below.
13
The respondent Kritsky's case is similar. While serving a prison sentence of 15 to 18 years under a state court conviction for armed robbery, he was charged by prison officials with being a leader in a prison-wide protest demonstration and with advocating insurrection during that demonstration. When brought before the warden and asked how he would plead, Kritsky stated 'Not guilty.' The warden then immediately and summarily imposed punishment on him—deprivation of 545 days' good-conduct-time credits, and confinement in segregation for four and one-half months, where he lost another 45 days' good time.
14
Kritsky subsequently filed a civil rights action, combined with a petition for habeas corpus, in Federal District Court, alleging that his summary punishment had deprived him of his good-time credits without due process of law. The District Court found Kritsky's complaint to be a proper civil rights action, and went on to rule that he had been denied due process by the imposition of summary punishment and by the failure of the Prison Commutation Board to file with the Commissioner written reasons for cancellation of Kritsky's good-time credits, as required by New York law. Kritsky v. McGinnis, 313 F.Supp. 1247 (1970). Accordingly, the court ordered restoration of the 590 days' good-conduct-time credits, which entitled Kritsky to immediate release on parole.
15
An appeal was argued before a panel of the Court of Appeals; but, before decision, that Court ordered the case to be reheard en banc, together with the Rodriguez and Katzoff cases. After rehearing en banc of the three now-consolidated cases, the Court of Appeals, with three dissents, affirmed the judgments of the District Court in all of the cases 'upon consideration of the merits and upon the authority of Wilwording v. Swenson, (404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418) decided by the Supreme Court of the United States on December 14, 1971.' Rodriguez v. McGinnis, 456 F.2d 79, 80 (1972). Although eight judges wrote separate opinions, it is clear that the majority of the Court relied primarily on our opinion in the Wilwording case, holding that complaints of state prisoners relating to the conditions of their confinement were cognizable either in federal habeas corpus or under the Civil Rights Act, and that as civil rights actions they were not subject to any requirement of exhaustion of state remedies.
16
We granted certiorari, sub nom. Oswald v. Rodriguez, 407 U.S. 919, 92 S.Ct. 2459, 32 L.Ed.2d 805, in order to consider the bearing of the Wilwording decision upon the situation before us where state prisoners have challenged the actual duration of their confinement on the ground that they have been unconstitutionally deprived of good-conduct-time credits, and where restoration of those credits would result in their immediate release from prison or in shortening the length of their confinement. In that context, the question whether a state prisoner may bring an action for equitable relief pursuant to § 1983, or whether he is limited to the specific remedy of habeas corpus, presents an unresolved and important problem in the administration of federal justice.
17
The problem involves the interrelationship of two important federal laws. The relevant habeas corpus statutes are 28 U.S.C. §§ 2241 and 2254. Section 2241(c) provides that '(t)he writ of habeas corpus shall not extend to a prisoner unless . . . (3) (h)e is in custody in violation of the Constitution or laws or treaties of the United States . . ..' Section 2254 provides in pertinent part:
18
'(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
19
'(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
20
'(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.'1
21
The Civil Rights Act, 42 U.S.C. § 1983, provides:
22
'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 . . . or other person . . . 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.'
23
It is clear, not only from the language of §§ 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody. By the end of the 16th century, there were in England several forms of habeas corpus, of which the most important and the only one with which we are here concerned was habeas corpus ad subjiciendum the writ used to 'inquir(e) into illegal detention with a view to an order releasing the petitioner.' Fay v. Noia, 372 U.S. 391, 399 n. 5, 83 S.Ct. 822, 827, 9 L.Ed.2d 837 (1963).2 Whether the petitioner had been placed in physical confinement by executive direction alone,3 or by order of a court,4 or even by private parties,5 habeas corpus was the proper means of challenging that confinement and seeking release. Indeed, in 1670, the Chief Justice of the Common Pleas was able to say, in ordering the immediate discharge of a juror who had been jailed by a trial judge for bringing in a verdict of not guilty, that '(t)he writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it.' Bushell's Case, Vaughan 135, 136, 124 Eng.Rep. 1006, 1007.
24
By the time the American Colonies achieved independence, the use of habeas corpus to secure release from unlawful physical confinement, whether judicially imposed or not, was thus an integral part of our common-law heritage. The writ was given explicit recognition in the Suspension Clause of the Constitution, Art. I, § 9, cl. 2;6 was incorporated in the first congressional grant of jurisdiction to the federal courts, Act of Sept. 24, 1789, c. 20, § 14, 1 Stat. 81—82; and was early recognized by this Court as a 'great constitutional privilege.' Ex parte Bollman, 4 Cranch 75, 95, 2 L.Ed. 554 (1807). See Fay v. Noia, supra, at 399 415 of 372 U.S., 83 S.Ct. at 827—836.
25
The original view of a habeas corpus attack upon detention under a judicial order was a limited one. The relevant inquiry was confined to determining simply whether or not the committing court had been possessed of jurisdiction. E.g., Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391 (1822); Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650 (1830). But, over the years, the writ of habeas corpus evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law, even though imposed pursuant to conviction by a court of competent jurisdiction. See Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880); Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89 (1885); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); and Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942). See also Fay v. Noia, supra, at 405—409 of 372 U.S., 83 S.Ct. at 830—832 and cases cited at 409 n. 17, 83 S.Ct. at 832. Thus, whether the petitioner's challenge to his custody is that the statute under which he stands convicted is unconstitutional, as in Ex parte Siebold, supra; that he has been imprisoned prior to trial on account of a defective indictment against him, as in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); that he is unlawfully confined in the wrong institution, as in In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149 (1894), and Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); that he was denied his constitutional rights at trial, as in Johnson v. Zerbst, supra; that his guilty plea was invalid, as in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); that he is being unlawfully detained by the Executive or the military, as in Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972); or that his parole was unlawfully revoked, causing him to be reincarcerated in prison, as in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)—in each case his grievance is that he is being unlawfully subjected to physical restraint, and in each case habeas corpus has been accepted as the specific instrument to obtain release from such confinement.7
26
In the case before us, the respondents' suits in the District Court fell squarely within this traditional scope of habeas corpus. They alleged that the deprivation of their good-conduct-time credits was causing or would cause them to be in illegal physical confinement, i.e., that once their conditional-release date had passed, any further detention of them in prison was unlawful; and they sought restoration of those good-time credits, which, by the time the District Court ruled on their petitions, meant their immediate release from physical custody.
27
Even if the restoration of the respondents' credits would not have resulted in their immediate release, but only in shortening the length of their actual confinement in prison, habeas corpus would have been their appropriate remedy. For recent cases have established that habeas corpus relief is not limited to immediate release from illegal custody, but that the writ is available as well to attack future confinement and obtain future releases. In Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), the Court held that a prisoner may attack on habeas the second of two consecutive sentences while still serving the first. The Court pointed out that the federal habeas corpus statute 'does not deny the federal courts power to fashion appropriate relief other than immediate release. Since 1874, the habeas corpus statute has directed the courts to determine the facts and dispose of the case summarily, 'as law and justice require.' Rev.Stat. § 761 (1874), superseded by 28 U.S.C. § 2243.' Id., at 66—67, 88 S.Ct., at 1556. See also Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968); Carafas v. LaVallee, 391 U.S. 234, 239, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). So, even if restoration of respondents' good-time credits had merely shortened the length of their confinement, rather than required immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself. It is beyond doubt, then, that the respondents could have sought and obtained fully effective relief through federal habeas corpus proceedings.8
28
Although conceding that they could have proceeded by way of habeas corpus, the respondents argue that the Court of Appeals was correct in holding that they were nonetheless entitled to bring their suits under § 1983 so as to avoid the necessity of first seeking relief in a state forum. Pointing to the broad language of § 1983,9 they argue that since their complaints plainly came within the literal terms of that statute, there is no justifiable reason to exclude them from the broad remedial protection provided by that law. According to the respondents, state prisoners seeking relief under the Civil Rights Act should be treated no differently from any other civil rights plaintiffs, when the language of the Act clearly covers their causes of action.
29
The broad language of § 1983, however, is not conclusive of the issue before us. The statute is a general one, and, despite the literal applicability of its terms, the question remains whether the specific federal habeas corpus statute, explicitly and historically designed to provide the means for a state prisoner to attack the validity of his confinement, must be understood to be the exclusive remedy available in a situation like this where it so clearly applies. The respondents' counsel acknowledged at oral argument that a state prisoner challenging his underlying conviction and sentence on federal constitutional grounds in a federal court is limited to habeas corpus. It was conceded that he cannot bring a § 1983 action, even though the literal terms of § 1983 might seem to cover such a challenge, because Congress has passed a more specific act to cover that situation, and, in doing so, has provided that a state prisoner challenging his conviction must first seek relief in a state forum, if a state remedy is available. It is clear to us that the result must be the same in the case of a state prisoner's challenge to the fact or duration of his confinement, based, as here, upon the alleged unconstitutionality of state administrative action. Such a challenge is just as close to the core of habeas corpus as an attack on the prisoner's conviction, for it goes directly to the constitutionality of his physical confinement itself and seeks either immediate release from that confinement or the shortening of its duration.
30
In amending the habeas corpus laws in 1948, Congress clearly required exhaustion of adequate state remedies as a condition precedent to the invocation of federal judicial relief under those laws. It would wholly frustrate explicit congressional intent to hold that the respondents in the present case could evade this requirement by the simple expedient of putting a different label on their pleadings. In short, Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983.
31
The policy reasons underlying the habeas corpus statute support this conclusion. The respondents concede that the reason why only habeas corpus can be used to challenge a state prisoner's underlying conviction is the strong policy requiring exhaustion of state remedies in that situation—to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors. Fay v. Noia, supra, at 419—420 of 372 U.S., 83 S.Ct. at 838—839. But they argue that this concern applies only to federal interference with state court convictions; and to support this argument, they quote from Ex parte Royall, supra, the case that first mandated exhaustion of state remedies as a precondition to federal habeas corpus:
32
'The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution.' 117 U.S., at 251, 6 S.Ct. at 740 (emphasis added).
33
In the respondents' view, the whole purpose of the exhaustion requirement, now codified in § 2254(b), is to give state courts the first chance at remedying their own mistakes, and thereby to avoid 'the unseemly spectacle of federal district courts trying the regularity of proceedings had in courts of coordinate jurisdiction.' Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 172—173 (1948) (emphasis added). This policy, the respondents contend, does not apply when the challenge is not to the action of a state court, but, as here, to the action of a state administrative body. In that situation, they say, the concern with avoiding unnecessary interference by one court with the courts of another sovereignty with concurrent powers, and the importance of giving state courts the first opportunity to correct constitutional errors made by them, do not apply; and hence the purpose of the exhaustion requirement of the habeas corpus statute is inapplicable.
34
We cannot agree. The respondents, we think, view the reasons for the exhaustion requirement of § 2254(b) far too narrowly. The rule of exhaustion in federal habeas corpus actions is rooted in considerations of federal-state comity. That principle was defined in Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), as 'a proper respect for state functions,' and it has as much relevance in areas of particular state administrative concern as it does where state judicial action is being attacked. That comity considerations are not limited to challenges to the validity of state court convictions is evidenced by cases such as Morrissey v. Brewer, supra, where the petitioners' habeas challenge was to a state administrative decision to revoke their parole, and Braden v. 30th Judicial Circuit Court of Kentucky, supra, where the petitioner's habeas attack was on the failure of state prosecutorial authorities to afford him a speedy trial.
35
It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons. The relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen. For state prisoners, eating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State, and so the possibilities for litigation under the Fourteenth Amendment are boundless. What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State. Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the correction of those problems. Moreover, because most potential litigation involving state prisoners arises on a day-to-day basis, it is most efficiently and properly handled by the state administrative bodies and state courts, which are, for the most part, familiar with the grievances of state prisoners and in a better physical and practical position to deal with those grievances. In New York, for example, state judges sit on a regular basis at all but one of the State's correctional facilities, and thus inmates may present their grievances to a court at the place of their confinement, where the relevant records are available and where potential witnesses are located. The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.10
36
Requiring exhaustion in situations like that before us means, of course, that a prisoner's state remedy must be adequate and available, as indeed § 2254(b) provides. The respondents in this case concede that New York provided them with an adequate remedy for the restoration of their good-time credits, through § 79—c of the New York Civil Rights Law, McKinney's Consol.Laws, c. 6, which explicitly provides for injunctive relief to a state prisoner 'for improper treatment where such treatment constitutes a violation of his constitutional rights.' (Supp. 1972—1973.)
37
But while conceding the availability in the New York courts of an opportunity for equitable relief, the respondents contend that confining state prisoners to federal habeas corpus, after first exhausting state remedies, could deprive those prisoners of any damages remedy to which they might be entitled for their mistreatment, since damages are not available in federal habeas corpus proceedings, and New York provides no damages remedy at all for state prisoners. In the respondents' view, if habeas corpus is the exclusive federal remedy for a state prisoner attacking his confinement, damages might never be obtained, at least where the State makes no provision for them. They argue that even if such a prisoner were to bring a subsequent federal civil rights action for damages, that action could be barred by principles of res judicata where the state courts had previously made an adverse determination of his underlying claim, even though a federal habeas court had later granted him relief on habeas corpus.
38
The answer to this contention is that the respondents here sought no damages, but only equitable relief—restoration of their good-time credits—and our holding today is limited to that situation. If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Accordingly, as petitioners themselves concede, a damages action by a state prisoner could be brought under the Civil Rights Act in federal court without any requirement of prior exhaustion of state remedies. Cf. Ray v. Fritz, 468 F.2d 586 (CA2 1972).
39
The respondents next argue that to require exhaustion of state remedies in a case such as the one at bar would deprive a state prisoner of the speedy review of his grievance which is so often essential to any effective redress. They contend that if, prior to bringing an application for federal habeas corpus, a prisoner must exhaust state administrative remedies and then state judicial remedies through all available appeals, a very significant period of time might elapse before the prisoner could ever get into federal court. By that time, no matter how swift and efficient federal habeas corpus relief might be, the prisoner might well have suffered irreparable injury and his grievances might no longer be remediable.
40
It is true that exhaustion of state remedies takes time, but there is no reason to assume that state prison administrators or state courts will not act expeditiously. Indeed, new regulations established by the New York Department of Correctional Services provide for administrative review of a prisoner's record in the institution shortly before the earliest possible release date, 7 N.Y. Codes, Rules & Regulations § 261.3(b),11 and, as previously noted, state judges in New York actually sit in the institutions to hear prisoner complaints. Moreover, once a state prisoner arrives in federal court with his petition for habeas corpus, the federal habeas statute provides for a swift, flexible, and summary determination of his claim. 28 U.S.C. § 2243.12 See also Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969); and Hensley v. Municipal Court, 411 U.S., at 349—350, 93 S.Ct., at 1573 1574. By contrast, the filing of a complaint pursuant to § 1983 in federal court initiates an original plenary civil action, governed by the full panoply of the Federal Rules of Civil Procedure. That such a proceeding, with its discovery rules and other procedural formalities, can take a significant amount of time, very frequently longer than a federal habeas corpus proceeding, is demonstrated by the respondents' actions in the present case. Although both Rodriguez and Kritsky initiated their actions before their conditional-release dates, the District Court did not reach its decisions until three and 10 months later, respectively—in both cases well after the conditional-release dates had passed. Only in Katzoff's case was there a speedy determination, and his action was not initiated until after his alleged release date.
41
In any event, the respondents' time argument would logically extend to a state prisoner who challenges the constitutionality of a conviction that carried a relatively short sentence; and yet such a prisoner is clearly covered by § 2254(b). Arguably, in either case, if the prisoner could make out a showing that, because of the time factor, his otherwise adequate state remedy would be inadequate, a federal court might entertain his habeas corpus application immediately, under § 2254(b)'s language relating to 'the existence of circumstances rendering such (state) process ineffective to protect the rights of the prisoner.' But we need not reach that issue here.
42
Principles of res judicata are, of course, not wholly applicable to habeas corpus proceedings. 28 U.S.C. § 2254(d). See Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989 (1924). Hence, a state prisoner in the respondents' situation who has been denied relief in the state courts is not precluded from seeking habeas relief on the same claims in federal court. On the other hand, res judicata has been held to be fully applicable to a civil rights action brought under § 1983. Coogan v. Cincinnati Bar Assn., 431 F.2d 1209, 1211 (CA6 1970); Jenson v. Olson, 353 F.2d 825 (CA8 1965); Rhodes v. Meyer, 334 F.2d 709, 716 (CA8 1964); Goss v. Illinois, 312 F.2d 257 (CA7 1963). Accordingly, there would be an inevitable incentive for a state prisoner to proceed at once in federal court by way of a civil rights action, lest he lose his right to do so. This would have the unfortunate dual effect of denying the state prison administration and the state courts the opportunity to correct the errors committed in the State's own prisons, and of isolating those bodies from an understanding of and hospitality to the federal claims of state prisoners in situations such as those before us.13 Federal habeas corpus, on the other hand, serves the important function of allowing the State to deal with these peculiarly local problems on its own, while preserving for the state prisoner an expeditious federal forum for the vindication of his federally protected rights, if the State has denied redress.
43
The respondents place a great deal of reliance on our recent decisions upholding the right of state prisoners to bring federal civil rights actions to challenge the conditions of their confinement. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). But none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement—the heart of habeas corpus. In Cooper, the prisoner alleged that, solely because of his religious beliefs, he had been denied permission to purchase certain religious publications and had been denied other privileges enjoyed by his fellow prisoners. In Houghton, the prisoner's contention was that prison authorities had violated the Constitution by confiscating legal materials which he had acquired for pursuing his appeal, but which, in violation of prison rules, had been found in the possession of another prisoner. In Wilwording, the prisoners' complaints related solely to their living conditions and disciplinary measures while confined in maximum security. And in Haines, the prisoner claimed that prison officials had acted unconstitutionally by placing him in solitary confinement as a disciplinary measure, and he sought damages for claimed physical injuries sustained while so segregated. It is clear, then, that in all those cases, the prisoners' claims related solely to the States' alleged unconstitutional treatment of them while in confinement. None sought, as did the respondents here, to challenge the very fact or duration of the confinement itself. Those cases, therefore, merely establish that a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. Upon that understanding, we reaffirm those holdings. Cf. Humphrey v. Cady, 405 U.S., at 516 517, n. 18, 92 S.Ct., at 1056.14
44
This is not to say that habeas corpus may not also be available to challenge such prison conditions. See Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Wilwording v. Swenson, supra, at 251 of 404 U.S., 92 S.Ct. at 409. When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal. See Note, Developments in the Law—Habeas Corpus, 83 Harv.L.Rev. 1038, 1084 (1970).15
45
But we need not in this case explore the appropriate limits of habeas corpus as an alternative remedy to a proper action under § 1983. That question is not before us. What is involved here is the extent to which § 1983 is a permissible alternative to the traditional remedy of habeas corpus. Upon that question, we hold today that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Accordingly, we reverse the judgment before us.
46
It is so ordered.
47
Reversed.
48
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
49
The question presented by this case is one that I, like the Court of Appeals, had thought already resolved by our decision last Term in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). We held there that the Ku Klux Klan Act of 1871,1 42 U.S.C. § 1983; 28 U.S.C. § 1343(3), confers jurisdiction on the United States District Courts to entertain a state prisoner's application for injunctive relief against allegedly unconstitutional conditions of confinement. See also Humphrey v. Cady, 405 U.S. 504, 516—517, n. 18, 92 S.Ct. 1048, 1056, 31 L.Ed.2d 394 (1972); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). At the same time, we held that '(t)he remedy provided by these Acts 'is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.' Monroe v. Pape, 365 U.S. 167, 183 (81 S.Ct. 473, 482, 5 L.Ed.2d 492) (1961); McNeese v. Board of Education, 373 U.S. 668 (83 S.Ct. 1433, 10 L.Ed.2d 622) (1963); Damico v. California, 389 U.S. 416 (88 S.Ct. 526, 19 L.Ed.2d 647) (1967). State prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs.' Wilwording v. Swenson, supra, at 251 of 404 U.S., 92 S.Ct. at 409.
50
Regrettably, the Court today eviscerates that proposition by drawing a distinction that is both analytically unsound and I fear, unworkable in practice. The net effect of the distinction is to preclude respondents from maintaining these actions under § 1983, leaving a petition for writ of habeas corpus the only available federal remedy. As a result, respondents must exhaust state remedies before their claims can be heard in a federal district court. I remain committed to the principles set forth in Wilwording v. Swenson, and I therefore respectfully dissent.
51
Respondents are three New York state prisoners who were placed in segregation and deprived of good-conduct-time credits as a result of prison disciplinary proceedings.2 Each of the respondents commenced a pro se action in the United States District Court for the Northern District of New York by filing a combined civil rights complaint and petition for habeas corpus. In each case the District Court concluded that since the action was properly brought under § 1983, the prisoner was not bound by the exhaustion - of - state - remedies requirement of the federal habeas corpus statute.3 On the merits of the three cases, the District Court held that state correctional authorities had deprived each respondent of rights guaranteed by the Fourteenth Amendment, and directed petitioner, the Commissioner of Correction, to restore the good-conduct-time credits that each of the respondents had lost.
52
By divided vote, two separate panels of the United States Court of Appeals for the Second Circuit reversed the judgments of the District Court with respect to respondents Rodriguez and Katzoff. Prior to decision in the case of respondent Kritsky, the Court of Appeals vacated the two earlier decisions and set all three cases for rehearing en banc. By a vote of 9—3, the Court affirmed the judgments of the District Court 'upon consideration of the merits and upon the authority of Wilwording v. Swenson,' decided by this Court while rehearing en banc was pending in the Court of Appeals. 456 F.2d 79, 80 (1972). Although several of the judges who concurred in the decision candidly stated their misgivings about our holding in Wilwording, they felt 'constrained,' nonetheless, 'to concur in affirming the orders of the district court.' 456 F.2d, at 81 (Friendly, C.J., concurring).4
53
The Court's conclusion that Wilwording is not controlling is assertedly justified by invocation of a concept, newly invented by the Court today, variously termed the 'core of habeas corpus,' the 'heart of habeas corpus,' and the 'essence of habeas corpus.' Ante, at 489, 498, and 484. In the Court's view, and action lying at the 'core of habeas corpus' is one that 'goes directly to the constitutionality of (the prisoner's) physical confinement itself and seeks either immediate release from that confinement or the shortening of its duration.' Id., at 489. With regard to such actions, habeas corpus is now considered the prisoner's exclusive remedy. In short, the Court does not graft the habeas corpus exhaustion requirement onto prisoner actions under the Ku Kulx Klan Act, but it reaches what is functionally the same result by holding that the District Court's jurisdiction under the Act is in some instances displaced by the habeas corpus remedy. Henceforth, in such cases a prisoner brings an action in the nature of habeas corpus—or he brings no federal court action at all.
54
At bottom, the Court's holding today rests on an understandable apprehension that the no-exhaustion rule of § 1983 might, in the absence of some limitation, devour the exhaustion rule of the habeas corpus statute. The problem arises because the two statutes necessarily overlap. Indeed, every application by a state prisoner for federal habeas corpus relief against his jailers could, as a matter of logic and semantics, be viewed as an action under the Ku Klux Klan Act to obtain injunctive relief against 'the deprivation,' by one acting under color of state law, 'of any rights, privileges, or immunities secured by the Constitution and laws' of the United States. 42 U.S.C. § 1983. To prevent state prisoners from nullifying the habeas corpus exhaustion requirement by invariably styling their petitions as pleas for relief under § 1983, the Court today devises an ungainly and irrational scheme that permits some prisoners to sue under § 1983, while others may proceed only by way of petition for habeas corpus. And the entire scheme operates in defiance of the purposes underlying both the exhaustion requirement of habeas corpus and the absence of a comparable requirement under § 1983.
55
* At the outset, it is important to consider the nature of the line that the Court has drawn. The Court holds today that 'when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.' Ante, at 500. But, even under the Court's approach, there are undoubtedly some instances where a prisoner has the option of proceeding either by petition for habeas corpus or by suit under § 1983.
56
In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), we held that the writ of habeas corpus could be used to challenge allegedly unconstitutional conditions of confinement. Cf. Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941). And in Wilwording v. Swenson, supra, where the petitioners challenged 'only their living conditions and disciplinary measures while confined in maximum security at Missouri State Penitentiary,' id. at 249 of 404 U.S., 92 S.Ct. at 408, we held explicitly that their claims were cognizable in habeas corpus. These holdings illustrate the general proposition that '(a)ny unlawful restraint of personal liberty may be inquired into on habeas corpus. . . . This rule applies although a person is in lawful custody. His conviction and incarceration deprive him only of such liberties as the law has ordained he shall suffer for his transgressions.' Coffin v. Reichard, 143 F.2d 443, 445 (CA6 1944); cf. In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149 (1894).5
57
Yet even though a prisoner may challenge the conditions of his confinement by petition for writ of habeas corpus, he is not precluded by today's opinion from raising the same or similar claim, without exhaustion of state remedies, by suit under the Ku Klux Klan Act, provided he attacks only the conditions of his confinement and not its fact or duration. To that extent, at least, the Court leaves unimpaired our holdings in Wilwording v. Swenson, supra, and the other cases in which we have upheld the right of prisoners to sue their jailers under § 1983 without exhaustion of state remedies.6 Humphrey v. Cady, 405 U.S., at 516 517, n. 18, 92 S.Ct., at 1056; Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968).7 Nor do I read today's opinion as rejecting, or even questioning, the rationale of numerous lower court decisions authorizing challenges to prison conditions by suit under § 1983.8
58
Accordingly, one can only conclude that some instances remain where habeas corpus provides a supplementary but not an exclusive remedy—or, to put it another way, where an action may properly be brought in habeas corpus, even though it is somehow sufficiently distant from the 'core of habeas corpus' to avoid displacing concurrent jurisdiction under the Ku Klux Klan Act. In such a case, a state prisoner retains the option of foregoing the habeas corpus remedy in favor of suit under § 1983.
II
59
Putting momentarily to one side the grave analytic shortcomings of the Court's approach, it seems clear that the scheme's unmanageability is sufficient reason to condemn it. For the unfortunate but inevitable legacy of today's opinion is a perplexing set of uncertainties and anomalies. And the nub of the problem is the definition of the Court's new-found and essentially ethereal concept, the 'core of habeas corpus.'9
60
A prisoner is unlucky enough to have his action fall within the core of habeas corpus whenever he challenges the fact or duration of his confinement. For example, an attack on the validity of conviction or sentence is plainly directed at the fact or duration of confinement, and the prisoner can therefore proceed only by petition for habeas corpus. Similarly, where prisoners alleged, as here, that 'the deprivation of their good-conduct-time credits (is) causing or (will) cause them to be in illegal physical confinement, i.e., that once their conditionalrelease date (has) passed, any further detention of them in prison (will be) unlawful,' their claim falls within the core. And '(e)ven if the restoration of the respondents' credits would not have resulted in their immediate release, but only in shortening the length of their actual confinement in prison,' jurisdiction under § 1983 is displaced by the habeas corpus remedy. Ante, at 487.
61
At the opposite end of the spectrum from an attack on the conviction itself or on the deprivation of good-time credits is a prisoner's action for monetary damages against his jailers. 'If a state prisoner is seeking damages,' the Court makes clear, he is seeking 'something other than immediate or more speedy release—the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Accordingly, as petitioners themselves concede, a damages action by a state prisoner could be brought under (§ 1983) in federal court without any requirement of prior exhaustion of state remedies.' Ante, at 494 (emphasis in original).
62
Between a suit for damages and an attack on the conviction itself or on the deprivation of good-time credits are cases where habeas corpus is an appropriate and available remedy, but where the action falls outside the 'core of habeas corpus' because the attack is directed at the conditions of confinement, not at its fact or duration. Notwithstanding today's decision, a prisoner may challenge, by suit under § 1983, prison living conditions and disciplinary measures,10 or confiscation of legal materials,11 or impairment of the right to free exercise of religion,12 even though federal habeas corpus is available as an alternative remedy. It should be plain enough that serious difficulties will arise whenever a prisoner seeks to attack in a single proceeding both the conditions of his confinement and the deprivation of goodtime credits. And the addition of a plea for monetary damages exacerbates the problem.
63
If a prisoner's sole claim is that he was placed in solitary confinement pursuant to an unconstitutional disciplinary procedure,13 he can obtain federal injunctive relief and monetary damages in an action under § 1983. The unanswered question is whether he loses the right to proceed under § 1983 if, as punishment for his alleged misconduct, his jailers have not only subjected him to unlawful segregation and thereby inflicted an injury that is compensable in damages, but have compounded the wrong by improperly depriving him of good-time credits. Three different approaches are possible.
64
First, we might conclude that jurisdiction under § 1983 is lost whenever good-time credits are involved, even where the action is based primarily on the need for monetary relief or an injunction against continued segregation. If that is the logic of the Court's opinion, then the scheme creates an undeniable, and in all likelihood irresistible, incentive for state prison officials to defeat the jurisdiction of the federal courts by adding the deprivation of good-time credits to whatever other punishment is imposed. And if all of the federal claims must be held in abeyance pending exhaustion of state remedies, a prisoner's subsequent effort to assert a damages claim under § 1983 might arguably be barred by principles of res judicata.14 To avoid the loss of his damages claim, a prisoner might conclude that he should make no mention of the good-time issue and instead seek only damages in a § 1983 action. That approach (assuming it would not be disallowed as a subterfuge to circumvent the exhaustion requirement) creates its own distressing possibilities. For, having obtained decision in federal court on the issue of damages, the prisoner would presumably be required to repair to state court in search of his lost goodtime credits, returning once again to federal court if his state court efforts should prove unavailing.
65
Moreover, a determination that no federal claim can be raised where good-time credits are at stake would give rise to a further anomaly. If the prisoner is confined in an institution that does not offer good-time credits, and therefore cannot withdraw them,15 his prisonconditions claims could always be raised in a suit under § 1983. On the other hand, an inmate in an institution that uses good-time credits as reward and punishment, who seeks a federal hearing on the identical legal and factual claims, would normally be required to exhaust state remedies and then proceed by way of federal habeas corpus. The rationality of that difference in treatment is certainly obscure. Yet that is the price of permitting the availability of a federal forum to be controlled by the happenstance (or stratagem) that good-time credits are at stake.
66
As an alternative, we might reject outright the premises of the first approach and conclude that a plea for money damages or for an injunction against continued segregation is sufficient to bring all related claims, including the question of good-time credits, under the umbrella of § 1983. That approach would, of course, simplify matters considerably. And it would make unnecessary the fractionation of the prisoner's claims into a number of different issues to be resolved in duplicative proceedings in state and federal courts. Nevertheless, the approach would seem to afford a convenient means of sidestepping the basic thrust of the Court's opinion, and we could surely expect state prisoners routinely to add to their other claims a plea for monetary relief. So long as the prisoner could formulate at least a colorable damages claim, he would be entitled to litigate all issues in federal court without first exhausting state remedies.
67
In any event, the Court today rejects, perhaps for the reasons suggested above, both of the foregoing positions. Instead, it holds that insofar as a prisoner's claim relates to good-time credits, he is required to exhaust state remedies; but he is not precluded from simultaneously litigating in federal court, under § 1983, his claim for monetary damages or an injunction against continued segregation. Ante, at 499 n. 14. Under that approach state correctional authorities have no added incentive to withdraw good-time credits, since that action cannot, standing alone, keep the prisoner out of federal court. And, at the same time, it does not encourage a prisoner to assert an unnecessary claim for damages or injunctive relief as a means of bringing his good-time claim under the purview of § 1983. Nevertheless, this approach entails substantial difficulties—perhaps the greatest difficulties of the three. In the first place, its extreme inefficiency is readily apparent. For in many instances a prisoner's claims will be under simultaneous consideration in two distinct forums, even though the identical legal and factual questions are involved in both proceedings. Thus, if a prisoner's punishment for some alleged misconduct is both a term in solitary and the deprivation of good-time credits, and if he believes that the punishment was imposed pursuant to unconstitutional disciplinary procedures, he can now litigate the legality of those procedures simultaneously in state court (where he seeks restoration of good-time credits) and in federal court (where he seeks damages or an injunction against continued segregation). Moreover, if the federal court is the first to reach decision, and if that court concludes that the procedures are, in fact, unlawful, then the entire state proceeding must be immediately aborted, even though the state court may have devoted substantial time and effort to its consideration of the case. By the same token, if traditional principles of res judicata are applicable to suits under § 1983, see supra, at 509 n. 14, the prior conclusion of the state court suit would effectively set at naught the entire federal court proceeding. This is plainly a curious prescription for improving relations between state and federal courts.
68
Since some of the ramifications of this new approach are still unclear, the unfortunate outcome of today's decision—an outcome that might not be immediately surmised from the seeming simplicity of the basic concept, the 'core of habeas corpus'—is almost certain to be the further complication of prison-conditions litigation. In itself that is disquieting enough. But it is especially distressing that the remaining questions will have to be resolved on the basis of pleadings, whether in habeas corpus or suit under § 1983, submitted by state prisoners, who will often have to cope with these questions without even minimal assistance of counsel.
III
69
The Court's conclusion that respondents must proceed by petition for habeas corpus is unfortunate, not only because of the uncertainties and practical difficulties to which the conclusion necessarily gives rise, but also because it derives from a faulty analytic foundation. The text of § 1983 carries no explanation for today's decision; prisoners are still, I assume, 'persons' within the meaning of the statute. Moreover, prior to our recent decisions expanding the definition of 'custody,'16 and abandoning the 'prematurity' doctrine,17 it is doubtful that habeas corpus would even have provided them a remedy. Since their claims could not, in all likelihood, have been heard on habeas corpus at the time the present habeas corpus statute was enacted in 1867,18 or at the time the exhaustion doctrine was first announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), or at the time the requirement was codified in 1948,19 it is surely hard to view these acts as a determination to preclude suit under § 1983 and leave habeas corpus the prisoner's only remedy. Nevertheless, to prevent state prisoners from invoking the jurisdictional grant of § 1983 as a means of circumventing the exhaustion requirement of the habeas corpus statute, the Court finds it necessary to hold today that in this one instance jurisdiction under § 1983 is displaced by the habeas corpus remedy.
70
The concern that § 1983 not be used to nullify the habeas corpus exhaustion doctrine is, of course, legitimate. But our effort to preserve the integrity of the doctrine must rest on an understanding of the purposes that underlie it. In my view, the Court misapprehends these fundamental purposes and compounds the problem by paying insufficient attention to the reasons why exhaustion of state remedies is not required in suits under § 1983. As a result, the Court mistakenly concludes that allowing suit under § 1983 would jeopardize the purposes of the exhaustion rule.
71
By enactment of the Ku Klux Klan Act in 1871, and again by the grant in 1875 of original federal-question jurisdiction to the federal courts,20 Congress recognized important interests in permitting a plaintiff to choose a federal forum in cases arising under federal law. 'In thus expanding 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).' Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967).
72
This grant of jurisdiction was designed to preserve and enhance the expertise of federal courts in applying federal law; to achieve greater uniformity of results, cf. Martin v. Hunter's Lessee, 1 Wheat. 304, 347—348, 4 L.Ed. 97 (1816); and, since federal courts are 'more likely to apply federal law sympathetically and understandingly than are state courts,' ALI, Study of the Division of Jurisdiction Between State and Federal Courts 166 (1969), to minimize misapplications of federal law. See generally id., at 165—167, 4 L.Ed. 97.
73
In the service of the same interests, we have taken case to emphasize that there are
74
'fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court's determination of those claims. Such a result would be at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred specific categories of jurisdiction upon the federal courts, and with the principle that 'When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction . . .. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.' Willcox v. Consolidated Gas Co., 212 U.S. 19, 40 (29 S.Ct. 192, 53 L.Ed. 382).' England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 464, 11 L.Ed.2d 440 (1964).
75
We have also recognized that review by this Court of state decisions, 'even when available by appeal rather that only by discretionary writ of certiorari, is an inadequate substitute for the initial District Court determination . . . to which the litigant is entitled in the federal courts.' Id., at 416, 84 S.Ct., at 465. The federal courts are, in short, the 'primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.' F. Frankfurter & J. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65 (1928). See England v. Louisiana State Board of Medical Examiners, supra, at 415, 84 S.Ct. at 464.
76
These considerations, applicable generally in cases arising under federal law, have special force in the context of the Ku Klux Klan Act of 1871. In a suit to enforce fundamental constitutional rights, the plaintiff's choice of a federal forum has singular urgency.21 The statutory predecessor to § 1983 was, after all, designed 'to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.' Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1961). And the statute's legislative history
77
'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. . . . 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 exexecutive, legislative or judicial.' Ex parte Virginia (100 U.S. (10 Otto.) 339, 346, 25 L.Ed. 676 (1880)).' Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972).
78
See also District of Columbia v. Carter, 409 U.S. 418, 426 428, 93 S.Ct. 602, 607—608, 34 L.Ed.2d 613 (1973).22
79
It is against this background that we have refused to require exhaustion of state remedies by civil rights plaintiffs.23 Plainly, '(W)e would defeat (the purposes of § 1983) if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court.' McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 1436, 10 L.Ed.2d 622 (1963). 'We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.' Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.C.Kan.1945); quoted with approval in Zwickler v. Koota, 389 U.S., at 248, 88 S.Ct., at 395; and McNeese v. Board of Education, supra, at 674 n. 6, 83 S.Ct., at 1437. See also Monroe v. Pape, supra, 365 U.S., at 183, 81 S.Ct., at 481; Moreno v. Henckel, 431 F.2d 1299, 1303—1307 (CA5 1970); H. Friendly, Federal Jurisdiction: A General View 102 103 (1973).
80
Our determination that principles of federalism do not require the exhaustion of state remedies in cases brought under the Ku Klux Klan Act holds true even where the state agency or process under constitutional attack is intimately tied to the state judicial machinery. Cf. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). Indeed, only last Term we held in Mitchum v. Foster, supra, that § 1983 operates as an exception to the federal anti-injunction statute, 28 U.S.C. § 2283, which prohibits federal court injunctions against ongoing state judicial proceedings and which is designed to prevent 'needless friction between state and federal courts.' Oklahoma Packing Co. v. Gas Co., 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 447, 537 (1940). Although the anti-injunction statute rests in part on considerations as fundamental as the 'constitutional independence of the States and their courts,' Atlantic C.L.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970), and although exceptions will 'not be enlarged by loose statutory construction,' ibid., we nevertheless unanimously concluded that § 1983 is excepted from the statute's prohibition—that the anti-injunction statute does not, in other words, displace federal jurisdiction under the Ku Klux Klan Act.
81
In sum, the absence of an exhaustion requirement in § 1983 is not an accident of history or the result of careless oversight by Congress or this Court. On the contrary, the no-exhaustion rule is an integral feature of the statutory scheme. Exhaustion of state remedies is not required precisely because such a requirement would jeopardize the purposes of the Act. For that reason, the imposition of such a requirement, even if done indirectly by means of a determination that jurisdiction under § 1983 is displaced by an alternative remedial device, must be justified by a clear statement of congressional intent, or, at the very least, by the presence of the most persuasive considerations of policy. In my view, no such justification can be found.
82
Crucial to the Court's analysis of the case before us is its understanding of the purposes that underlie the habeas corpus exhaustion requirement. But just as the Court pays too little attention to the reasons for a no-exhaustion rule in actions under § 1983, it also misconceives the purposes of the exhaustion requirement in habeas corpus. As a result, the Court reaches what seems to me the erroneous conclusion that the purposes of the exhaustion requirement are fully implicated in respondents' actions, even though respondents sought to bring these actions under § 1983.
83
'The rule of exhaustion in federal habeas corpus actions is,' according to today's opinion, 'rooted in considerations of federal-state comity. That principle was defined in Younger v. Harris, 401 U.S. 37, 44 (91 S.Ct. 746, 27 L.Ed.2d 669) (1971), as 'a proper respect for state functions,' and it has as much relevance in areas of particular state administrative concern as it does where state judicial action is being attacked.' Ante, at 419. Moreover, the Court reasons that since the relationship between state prisoners and state officers is especially intimate, and since prison issues are peculiarly within state authority and expertise, 'the States have an important interest in not being bypassed in the correction of those problems.' Ante, at 492. With all respect, I cannot accept either the premises or the reasoning that lead to the Court's conclusion.
84
Although codified in the habeas corpus statute in 1948, 28 U.S.C. § 2254(b), the exhaustion requirement is a 'judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a 'swift and imperative remedy in all cases of illegal restraint or confinement.' Secretary of State for Home Affairs v. O'Brien, (1923) A.C. 603, 609 (H.L.).' Braden v. 30th Judicial Circuit, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973). The indisputable concern of all our decisions concerning the doctrine has been the relationship 'between the judicial tribunals of the Union and of the states . . .. (T)he public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution.' Ex parte Royall, 117 U.S., at 251, 6 S.Ct., at 740 (emphasis added). Ex parte Royall is, of course, the germinal case, and its concern with the relations between state and federal courts is mirrored in our subsequent decisions. See, e.g., Braden v. 30th Judicial Circuit, supra, 410 U.S., at 489 490, 93 S.Ct.At 1127; Baker v. Grice, 169 U.S. 284, 291, 18 S.Ct. 323, 326, 42 L.Ed. 748 (1898); Ex parte Hawk, 321 U.S. 114, 116 117, 64 S.Ct. 448, 449—450, 88 L.Ed. 572 (1944); cf. Sostre v. McGinnis, 442 F.2d 178, 182 (CA2 1971); Edwards v. Schmidt, 321 F.Supp. 68, 74—75 (W.D.Wis.1971). We have grounded the doctrine squarely on the view that 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.' Fay v. Noia, 372 U.S. 391, 419—420, 83 S.Ct. 822, 838, 9 L.Ed.2d 837 (1963) (emphasis added), quoting from Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). See Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 172—173 (1948).
85
That is not to say, however, that the purposes of the doctrine are implicated only where an attack is directed at a state court conviction or sentence. Ex parte Royall itself did not involve a challenge to a state conviction, but rather an effort to secure a prisoner's release on habeas corpus 'in advance of his trial in the (state) court in which he (was) indicted.' 117 U.S., at 253, 6 S.Ct., at 741. But there, too, the focus was on relations between the state and federal judiciaries. It is a fundamental purpose of the exhaustion doctrine to preserve the 'orderly administration of state judicial business, preventing the interruption of state adjudication by federal habeas proceedings. It is important that petitioners reach state appellate courts, which can develop and correct errors of state and federal law and most effectively supervise and impose uniformity on trial courts.' Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094 (1970). Significantly, the identical interest in preserving the integrity and orderliness of judicial proceedings gives rise to the application of the exhaustion doctrine even where a federal prisoner attacks the action of a federal court. Id., at 1094—1095. See, e.g., Bowen v. Johnston, 306 U.S. 19, 26—27, 59 S.Ct. 442, 445—446, 83 L.Ed. 455 (1939). In such a case, considerations of federalism obviously do not come into play. Yet the exhaustion requirement is nevertheless applied in order to prevent the disruption of the orderly conduct of judicial administration.
86
With these considerations in mind, it becomes clear that the Court's decision does not serve the fundamental purposes behind the exhaustion doctrine. For although respondents were confined pursuant to the judgment of a state judicial tribunal, their claims do not relate to their convictions or sentences, but only to the administrative action of prison officials who subjected them to allegedly unconstitutional treatment, including the deprivation of good-time credits. This is not a case, in other words, where federal intervention would interrupt a state proceeding or jeopardize the orderly administration of state judicial business. Nor is it a case where an action in federal court might imperil the relationship between state and federal courts. The 'regularity of proceedings had in courts of coordinate jurisdiction,' Parker, supra, 8 F.R.D., at 172—173, is not in any sense at issue.
87
To be sure, respondents do call into question the constitutional validity of action by state officials, and friction between those officials and the federal court is by no means an inconceivable result. But standing alone, that possibility is simply not enough to warrant application of an exhaustion requirement. First, while we spoke in Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), of the need for federal courts to maintain a 'proper respect for state functions,' neither that statement nor our holding there supports the instant application of the exhaustion doctrine. Our concern in Younger v. Harris was the 'longstanding public policy against federal court interference with state court proceedings,' id., at 43, 91 S.Ct., at 750 (emphasis added), by means of a federal injunction against the continuation of those proceedings. Younger is thus an instructive illustration of the very proposition that the Court regrettably misconstrues. It does not in any sense demand, or even counsel, today's decision.
88
Second, the situation that exists in the case before us—an attack on state administrative rather than judicial action—is the stereotypical situation in which relief under § 1983 is authorized. See, e.g., McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963) (attack on school districting scheme); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967) (attack on welfare requirements); Monroe v. Pape, 365 U.S., at 183, 81 S.Ct., at 482 (attack on police conduct). In each of these cases the exercise of federal jurisdiction was potentially offensive to the State and its officials. In each of these cases the attack was directed at an important state function in an area in which the State has wide powers of regulation. Yet in each of these cases we explicitly held that exhaustion of state remedies was not required. And in comparable cases we have taken pains to insure that the abstention doctrine is not used to defeat the plaintiff's initial choice of a federal forum, see, e.g., Zwickler v. Koota, 389 U.S., at 249, 88 S.Ct., at 396, even though the plaintiff could reserve the right to litigate the federal claim in federal court at the conclusion of the state proceeding. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). Like Judge Kaufman, who concurred in the affirmance of the cases now before us, 'I cannot believe that federal jurisdiction in cases involving prisoner rights is any more offensive to the state than federal jurisdiction in the areas' where the exhaustion requirement has been explicitly ruled inapplicable. 456 F.2d, at 82.
89
Third, if the Court is correct in assuming that the exhaustion requirement must be applied whenever federal jurisdiction might be a source of substantial friction with the State, then I simply do not understand why the Court stops where it does in rolling back the district courts' jurisdiction under § 1983. Application of the exhaustion doctrine now turns on whether or not the action is directed at the fact or duration of the prisoner's confinement. It seems highly doubtful to me that a constitutional attack on prison conditions is any less disruptive of federal-state relations than an attack on prison conditions joined with a plea for restoration of good-time credits. Chief Judge Friendly expressed the view, as did the judges in dissent below, that 'petitions of state prisoners complaining of the time or conditions of their confinement have the same potentialities for exacerbating federal-state relations as petitions attacking the validity of their confinement—perhaps even more.' 456 F.2d at 80. Yet the Court holds today that exhaustion is required where a prisoner attacks the deprivation of good-time credits, but not where he challenges only the conditions of his confinement. It seems obvious to me that both of those propositions cannot be correct.
90
Finally, the Court's decision may have the ironic effect of turning a situation where state and federal courts are not initially in conflict into a situation where precisely such conflict does result. Since respondents' actions would neither interrupt a state judicial proceeding nor, even if successful, require the invalidation of a state judicial decision, '(t)he question is simply whether one court or another is going to decide the case.' Note, Exhaustion of State Remedies Under the Civil Rights Act, 68 Col.L.Rev. 1201, 1205—1206 (1968). If we had held, consistently with our prior cases, that the plaintiff has the right to choose a federal forum, the exercise of that right would not offend or embarrass a state court with concurrent jurisdiction. Now, however, a prisoner who seeks restoration of good-time credits must proceed first in state court, although he has the option of petitioning the federal court for relief if his state suit is unsuccessful. If the prisoner does resort to a federal habeas corpus action, the potential for friction with the State is certain to increase. The State is likely, after all, to derive little pleasure from the federal court's effort to determine whether there was 'either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.' 28 U.S.C. § 2254(b). And since it is the validity of the state court's decision that is placed in issue, the State will have to endure a federal court inquiry into whether the State's factfinding process was adequate to afford a full and fair hearing, 28 U.S.C. § 2254(d)(2), whether the petitioner was denied due process of law in the state court proceeding, id., § 2254(d)(7), and whether the state court's factual determinations were fairly supported by the record, id., § 2254(d)(8). Cf. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Since none of these questions would even arise if the Court had held these actions properly brought under § 1983, it seems a good deal premature to proclaim today's decision a major victory in our continuing effort to achieve a harmonious and healthy federal-state system.
IV
91
In short, I see no basis for concluding that jurisdiction under § 1983 is, in this instance, pre-empted by the habeas corpus remedy. Respondents' effort to bring these suits under the provisions of the Ku Klux Klan Act should not be viewed as an attempted circumvention of the exhaustion requirement of the habeas corpus statute, for the effort does not in any sense conflict with the policies underlying that requirement.24 By means of these suits, they demand an immediate end to action under color of state law that has the alleged effect of violating fundamental rights guaranteed by the Federal Constitution. The Ku Klux Klan Act was designed to afford an expeditious federal hearing for the resolution of precisely such claims as these. Since I share the Court's view that exhaustion of state judicial remedies is not required in any suit properly brought in federal court under § 1983, ante, at 477, and since I am convinced that respondents have properly invoked the jurisdictional grant of § 1983, I would affirm the judgment of the Court of Appeals.
1
See also 28 U.S.C. § 2243, quoted in n. 12, infra.
2
Other forms of habeas corpus include habeas corpus ad respondendum; ad satisfaciendum; ad prosequendum, testificandum, deliberandum; and ad faciendum et recipiendum. See Fay v. Noia, 372 U.S. 391, at 399 n. 5, 83 S.Ct. at 827 (1963). But when the words 'habeas corpus' are used alone, they have been considered a generic term understood to refer to the common-law writ of habeas corpus ad subjiciendum, which was the form termed the 'great writ.' Ex parte Bollman, 4 Cranch 75, 95, 2 L.Ed. 554 (1807).
3
See, e.g., Darnel's Case, 3 How.St.Tr. 1—59 (K.B.1627); Petition of Right, 3 Car. 1, c. 1 (1627); Habeas Corpus Act, 16 Car. 1, c. 10, §§ 3, 8 (1640). See also Ex parte Wells, 18 How. 307, 15 L.Ed. 421 (1856); Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866); Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972).
4
See, e.g., Bushell's Case, Vaughan, 135, 124 Eng.Rep. 1006 (1670); Fay v. Noia, supra.
5
See, e.g., Rex v. Clarkson, 1 Strange 444, 93 Eng.Rep. 625 (K.B.1721); Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962).
6
'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.'
7
It was not until quite recently that habeas corpus was made available to challenge less obvious restraints. In 1963, the Court held that a prisoner released on parole from immediate physical confinement was nonetheless sufficiently restrained in his freedom as to be in custody for purposes of federal habeas corpus. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed. 285. In Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), the Court for the first time decided that once habeas corpus jurisdiction has attached, it is not defeated by the subsequent release of the prisoner. And just this Term, in Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), we held that a person, who, after conviction, is released on bail or on his own recognizance, is 'in custody' within the meaning of the federal habeas corpus statute. Put those cases marked no more than a logical extension of the traditional meaning and purpose of habeas corpus—to effect release from illegal custody.
8
Our Brothers in dissent state that the respondents' claims 'could not, in all likelihood, have been heard on habeas corpus at the time the present habeas corpus statute was enacted in 1867, or at the time the exhaustion doctrine was first announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), or at the time the requirement was codified in 1948 . . ..' Post, at 1848. (Footnotes omitted.) This statement is apparently based on the assumption that, in those years, the respondents' habeas actions would have been barred by the 'prematurity' doctrine, which precluded habeas relief that would have merely reduced the length of the prisoner's confinement rather than resulting in his immediate release, and which was not rejected until 1968, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426. We note, however, that the respondent Katzoff initiated his action more than a month after his alleged release date, and thus his claim, if accepted, entitled him to immediate release even as of the date on which he brought suit. Although Rodriguez initiated his action 15 days before his alleged release date, and Kritsky six months before such date, in both cases those dates had long passed at the time of the District Court's decisions, and these respondents were thus entitled to immediate release at that time. In any event, the nature of the respondents' suits was an attack on the legality of their physical confinement itself; and to deal with such attacks on physical custody, however imposed and whether or not related to conviction by a court, is the long-established function of habeas corpus. See supra, at 484—486.
9
See supra, at 483—484.
10
The dissent argues that the respondents' attacks on the actions of the prison administration here are no different, in terms of the potential for exacerbating federal-state relations, from the attacks made by the petitioners in McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), on the various state administrative actions there. Thus, it is said, since exhaustion of state remedies was not required in those cases, it is anomalous to require it here. Post, at 522. The answer, of course, is that in those cases, brought pursuant to § 1983, no other, more specific federal statute was involved that might have reflected a different congressional intent. In the present case, however, the respondents' actions fell squarely within the traditional purpose of federal habeas corpus, and Congress has made the specific determination in § 2254(b) that requiring the exhaustion of adequate state remedies in such cases will best serve the policies of federalism.
11
That section provides that each inmate's file 'shall be considered not more than three nor less than two months before the earliest possible date he would be entitled to consideration for parole or conditional or other release if that date depends upon the amount of good behavior allowance to be granted (based upon the assumption that he has earned all good behavior allowances that can be granted).'
12
That section provides
'A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
'The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.
'The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.
'When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed.
'Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.
'The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts.
'The return and all suggestions made against it may be amended, by leave of court, before or after being filed.
'The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.'
See also 28 U.S.C. § 2254(e):
'If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination.'
13
This isolation, of course, will not occur if the prisoner is required to proceed by way of federal habeas corpus, with its exhaustion requirement. For 'exhaustion preserves the role of the state courts in the application and enforcement of federal law: Early federal intervention in state . . . proceedings would tend to remove federal questions from the state courts, isolate those courts from constitutional issues, and thereby remove their understanding of and hospitality to federally protected interests.' Note, Developments in the Law—Habeas Corpus, 83 Harv.L.Rev. 1038, 1094 (1970).
14
If a prisoner seeks to attack both the conditions of his confinement and the fact or length of that confinement, his latter claim, under our decision today, is cognizable only in federal habeas corpus, with its attendant requirement of exhaustion of state remedies. But, consistent with our prior decisions, that holding in no way precludes him from simultaneously litigating in federal court, under § 1983, his claim relating to the conditions of his confinement.
15
The parties disagree as to the original reason for the emergence of concurrent federal remedies in prison condition cases. According to the petitioners, the parallel development reflects the fact that prior to the Court's decisions in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), the limits of the concept of custody for purposes of habeas corpus were uncertain, and so the clearest remedy for prisoners challenging their conditions was through a civil rights action. The respondents take the converse position that habeas corpus may originally have been made available for these challenges because there was no other remedy for inprison abuses before the resurrection of § 1983 in Monroe v. Pape, supra, and the affirmation of its availability for prisoners in Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), and Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968).
1
Act of April 20, 1871, c. 22, § 1, 17 Stat. 13, Rev.Stat. § 1979.
2
In his complaint, respondent Rodriguez alleged that correctional authorities had unlawfully canceled four months and 14 days of good-conduct-time credits, (w)ithout affording plaintiff notice of any charges or a fair hearing at which plaintiff would have the assistance of counsel and the opportunity to confront witnesses, present evidence on his own behalf; and a specification of the grounds and underlying facts upon which the (authorities') determination was based.' App. 12a. And, further, that the cancellation was an act of harassment and persecution against him because of his failure to provide the authorities with certain information. Id., at 13a.
Respondent Katzoff alleged that he was wrongfully placed in solitary confinement and deprived of good-conduct-time as punishment for certain entries he had made in his diary. According to an affidavit he filed in District Court, the entries in question included a reference to one prison official as 'a cigarsmoking S.O.B.,' and to another as a 'creep.' App. 54a.
Respondent Kritsky stated in his complaint that correctional authorities had deprived him of good-time credits without notice of charges or a fair hearing, and as part of a 'program of harassment and oppression directed at the plaintiff for having participated in a peaceful and non-violent work strike which ultimately culminated in legislation being passed . . ..' App. 100a.
3
Title 28 U.S.C. § 2254(b) provides:
'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.'
4
Indeed, Chief Judge Friendly suggested that the 'proper course for the in banc court (would be) to affirm the orders of the district court without writing opinions.' 456 F.2d 79, 80. Judge Kaufman, who expressed no misgivings about our holding in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), indicated in his concurring opinion that he, too, thought the judgments of the District Court should have been summarily affirmed. Id., at 82.
5
See Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1079—1087 (1970).
6
Indeed, the Court expressly views our prior cases as establishing 'that a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. Upon that understanding, we reaffirm those holdings.' Ante, at 499.
7
In addition to the cases cited in text, in which we explicitly indicated that a prisoner might proceed under § 1983 without exhausting state remedies, we have also repeatedly upheld a prisoner's right to challenge the conditions of his confinement under § 1983, without any suggestion that exhaustion of state remedies is a necessary precondition to the bringing of the suit. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971); Cruz v. Hauck, 404 U.S. 59, 92 S.Ct. 313, 30 L.Ed.2d 217 (1971); McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); 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).
8
See, e.g., Sostre v. McGinnis, 442 F.2d 178, 182 (CA2 1971) (conditions of segregated confinement); Jackson v. Bishop, 404 F.2d 571 (CA8 1968) (cruel and unusual punishment); Hirons v. Director, 351 F.2d 613 (CA4 1965) (medical treatment); Pierce v. LaVallee, 293 F.2d 233 (CA2 1961) (religious freedom); Edwards v. Schmidt, 321 F.Supp. 68 (W.D.Wis. 1971) (transfer of juveniles to adult facility); Hancock v. Avery, 301 F.Supp. 786 (M.D.Tenn.1969) (solitary confinement).
9
Indeed, one must inevitably wonder whether the 'core' of habeas corpus will not prove as intractable to definition as the 'core' of another concept that some of us have struggled to define. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring).
10
E.g., Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971).
11
E.g., Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968).
12
E.g., Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).
13
E.g., Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
14
That assumes, of course, that a damages claim cannot be raised on habeas corpus, ante, at 494, and that the special res judicata rules of habeas corpus would not apply. In any case, we have never held that the doctrine of res judicata applies, in whole or in part, to bar the relitigation under § 1983 of questions that might have been raised, but were not, or that were raised and considered in state court proceedings. The Court correctly notes that a number of lower courts have assumed that the doctrine of res judicata is fully applicable to cases brought under § 1983. But in view of the purposes underlying enactment of the Act—in particular, the congressional misgivings about the ability and inclination of state courts to enforce federally protected rights, see infra, at 515—518—that conclusion may well be in error.
15
Brief for Respondents 25, citing N.Y. Penal Law § 75.00 and N.Y.Correc. Law §§ 803, 804 (reformatory-sentenced prisoners).
16
See, e.g., Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); 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). These decisions have established habeas corpus as an available and appropriate remedy in situations where the petitioner's challenge is not merely to the fact of his confinement.
17
See Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), overruling McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934). Under the prematurity doctrine, a prisoner could not have attacked the deprivation of good-conduct-time credits where restoration of the credits would shorten the length of his confinement but not bring it immediately to an end.
18
Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385, now 28 U.S.C. § 2241(c) (3). Prior to that enactment, the writ was made available to special categories of state prisoners. Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1048 n. 46 (1970).
19
Act of June 25, 1948, c. 646, 62 Stat. 967, now 28 U.S.C. § 2254(b), (c). It is agreed that the purpose of the 1948 enactment was to codify the doctrine as formulated in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944), and other decisions of this Court.
20
Act of Mar. 3, 1875, c. 137, § 1, 18 Stat. 470, now 28 U.S.C. § 1331.
21
See generally Chevigny, Section 1983 Jurisdiction: A Reply, 83 Harv.L.Rev. 1352, 1356—1358 (1970).
22
See e.g., remarks of Rep. Coburn:
'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).
And the remarks of Sen. Pratt:
'(O)f the hundreds of outrages committed upon loyal people through the agency of this Ku Klux organization not one has been punished. This defect in the administration of the laws does not extend to other cases. Vigorously enough are the laws enforced against Union people. They only fail in efficiency when a man of known Union sentiments, white or black, invokes their aid. Then Justice closes the door of her temples.' Id., at 505.
23
See, e.g., Wilwording v. Swenson, supra; King v. Smith, 392 U.S. 309, 312 n. 4, 88 S.Ct. 2128, 2131, 20 L.Ed.2d 1118 (1968); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Bacon v. Rutland R. Co., 232 U.S. 134, 34 S.Ct. 283, 58 L.Ed. 538 (1914); cf. Note, Exhaustion of State Remedies Under the Civil Rights Act, 68 Col.L.Rev. 1201 (1968).
24
In a case where the habeas corpus statute does provide an available and appropriate remedy, and where a prisoner's selection of an alternative remedy would undermine and effectively nullify the habeas corpus exhaustion requirement, it would, of course, be possible to view the suit as an impermissible attempt to circumvent that requirement. But by the same token, if a prisoner seeks to challenge only the conditions of his confinement—in which case the purposes underlying the exhaustion rule do not come into play—his filing should be considered a complaint under § 1983 even if the prisoner terms it a petition for habeas corpus. That result is consistent with the view that prisoner petitions should be liberally considered, Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), and it represents no threat to the integrity of the exhaustion doctrine. Nothing in today's decision suggests that the district courts should follow any other practice.
| 01
|
411 U.S. 619
93 S.Ct. 1700
36 L.Ed.2d 543
NEW JERSEY WELFARE RIGHTS ORGANIZATION et al.,v.William T. CAHILL, etc., et al.
No. 72—6258.
May 7, 1973.
On
appeal from the United States District Court for the District of New Jersey.
PER CURIAM.
1
This case presents the question of the constitutionality under the Equal Protection Clause of the Fourteenth Amendment of the New Jersey 'Assistance to Families of the Working Poor' program, N.J.Stat.Ann. § 44:13—1 et seq., that allegedly discriminates against illegitimate children in the provision of financial assistance and other services. Specifically, appellants challenge that aspect of the program that limits benefits to only those otherwise qualified families 'which consist of a household composed of two adults of the opposite sex ceremonially married to each other who have at least one minor child . . . of both, the natural child of one and adopted by the other, or a child adopted by both . . ..' N.J.Stat.Ann. § 44:13—3(a). Appellants do not challenge the statute's 'household' requirement. Rather, they argue that although the challenged classification turns upon the marital status of the parents as well as upon the parent-child relationship, in practical effect it operates almost invariably to deny benefits to illegitimate children while granting benefits to those children who are legitimate. Although apparently conceding the correctness of this position, the United States District Court for the District of New Jersey, sitting as a three-judge court,* upheld the statutory scheme on the ground that it was designed 'to preserve and strengthen traditional family life.' 349 F.Supp. 491, 496 (1972).
2
Confronted with similar arguments in the past, we have specifically declared that:
3
'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. 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.' Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972).
4
Thus, in Weber we held that under the Equal Protection Clause a State may not exclude illegitimate children from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their parent. Similarly, in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), we held that a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. And only this Term, in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), we held that once a State posits a judicially enforceable right on behalf of children to needed support from their natural father, there is no constitutionally sufficient justification for denying such an essential right to illegitimate children. See also Davis v. Richardson, 342 F.Supp. 588 (D.C.Conn.), aff'd 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972); Griffin v. Richardson, 346 F.Supp. 1226 (D.C.Md.), aff'd, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972).
5
Those decisions compel the conclusion that appellants' claim of the denial of equal protection must be sustained, for there can be no doubt that the benefits extended under the challenged program are as indispensable to the health and well-being of illegitimate children as to those who are legitimate. Accordingly, we grant the motion for leave to proceed in forma pauperis, reverse the judgment of the District Court, and remand for further proceedings consistent with this opinion.
6
Reversed and remanded.
7
THE CHIEF JUSTICE concurs in the result.
8
Mr. Justice REHNQUIST, dissenting.
9
The New Jersey Legislature has enacted a statute entitled 'Assistance to Families of the Working Poor,' which is designed to provide grants to supplement the income of a discrete class of families with children when independent sources of income are inadequate to support the family unit. The program is completely financed by the State, and therefore need not conform to any of the strictures of the Social Security Act. The New Jersey program for assistance to the working poor does not provide financial grants to classes of children as such, as is the case under various federal plans. Instead, it provides grants to classes of families as units. The Court holds that because benefits are limited to families 'which consist of a household composed of two adults of the opposite sex ceremonially married to each other who have at least one minor child . . . of both, the natural child of one and adopted by the other, or a child adopted by both,' the legislative scheme violates the Equal Protection Clause of the Fourteenth Amendment.
10
The Court relies on Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), where a Louisiana statute that denied workmen's compensation benefits to an illegitimate child was invalidated. But the very language that the Court quotes from Weber shows how different this case is from that. There a disability was visited solely on an illegitimate child. Here the statute distinguishes among types of families. While the classification adopted by the New Jersey Legislature undoubtedly results in denying benefits to 'families' consisting of a mother and father not ceremonially married who are living with natural children, whatever denial of benefits the classification makes is imposed equally on the parents as well as the children.
11
Here the New Jersey Legislature has determined that special financial assistance should be given to family units that meet the statutory definition of 'working poor.' It does not seem to me irrational in establishing such a special program to condition the receipt of such grants on the sort of ceremonial marriage that could quite reasonably be found to be an essential ingredient of the family unit that the New Jersey Legislature is trying to protect from dissolution due to the economic vicissitudes of modern life. The Constitution does not require that special financial assistance designed by the legislature to help poor families be extended to 'communes' as well.
12
In the area of economics and social welfare the Equal Protection Clause does not prohibit a State from taking one step at a time in attempting to overcome a social ill, provided only that the classifications made by the State are rational. Here the classification is based on a particular type of family unit, one of, if not the, core units of our social system. There being a rational basis for the legislative classification, the constitutionality of the law is governed by Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), rather than by Weber.
13
I would affirm the judgment of the District Court.
*
In prior proceedings in this case, a single judge of the United States District Court for the District of New Jersey, in an unreported opinion, denied appellants' petition to convene a three-judge court on the ground that no substantial constitutional question was presented, and dismissed the complaint. On appeal, the United States Court of Appeals for the Third Circuit held that a substantial constitutional claim had been presented and therefore remanded the case with directions to convene a three-judge court. 448 F.2d 1247, 1248 (1971).
| 12
|
411 U.S. 458
93 S.Ct. 1723
36 L.Ed.2d 426
FEDERAL POWER COMMISSION, Petitioner,v.MEMPHIS LIGHT, GAS AND WATER DIVISION, et al. TEXAS GAS TRANSMISSION CORPORATION, Petitioner, v. MEMPHIS LIGHT, GAS AND WATER DIVISION, et al.
Nos. 72—486, 72—488.
Argued March 27, 1973.
Decided May 7, 1973.
Syllabus
Section 441 of the Tax Reform Act of 1969 does not deprive the Federal Power Commission of the Authority to permit a utility that is subject to its jurisdiction under the Natural Gas Act to change the depreciation method that it uses for purposes of rate-making from accelerated depreciation with 'flow through' of the utility's tax savings to customers to accelerated depreciation with normalization (where the income tax expense allowed in the cost of service is computed on a straight-line depreciation basis) with respect to pre-1970 property as well as replacement property. Pp. 465—474.
149 U.S.App.D.C. 238, 462 F.2d 853 and 865, reversed and remanded.
1
Samuel Huntington, Washington, D.C., for F.P.C.
2
Christopher T. Boland, Washington, D.C., for Texas Gas Transmission Corp.
3
George E. Morrow Memphis, Tenn., for Memphis Light, Gas and Water Div.
4
Richard A. Solomon, Washington, D.C., for Public Service Comm. of New York.
5
Mr. Justice DOUGLAS delivered the opinion of the Court.
6
We granted certiorari in these cases to determine whether § 441 of the Tax Reform Act of 1969, 26 U.S.C. § 167(l), circumscribes the authority of the Federal Power Commission under the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq., to permit a regulated utility to change its method of computing depreciation for rate-making purposes from 'flow-through' to 'normalization' with respect to property acquired prior to 1970 as well as 'replacement' property.
7
Since the resolution of this issue depends largely on the background and history of § 441 and the Commission's regulatory powers, a brief review is in order at the outset. Section 167 of the Internal Revenue Code authorized taxpayers, including regulated utilities, to use accelerated or liberalized depreciation in calculating their federal income taxes.1 The Commission retained jurisdiction to prescribe the depreciation method to be used by regulated utilities in calculating their federal income tax expense for ratemaking purposes.2 Initially, the Commission required utilities to compute their cost of service, which includes federal income taxes, as if they were using straight-line depreciation. This method, referred to as 'normalization,' was designed to avoid giving the present customers of a utility the benefits of tax deferral attributable to accelerated depreciation. If a utility used accelerated depreciation in determining its actual tax liability, the difference between the taxes actually paid and the higher taxes reflected as a cost of service for ratemaking purposes was required to be placed in a deferred tax reserve account. See Amere Gas Utilities Co., 15 F.P.C. 760.
8
It soon became apparent that accelerated depreciation in practice resulted in permanent tax savings. Because most utilities had growing or at least stable plant investments, the depreciation allowances from additional and replacement equipment offset the declining depreciation allowance on existing property. Accordingly, the Commission required utilities using accelerated depreciation for tax purposes to use the same method for calculating their cost of service and, thus, to 'flow through' any tax savings to their customers. Alabama-Tennessee Natural Gas Co., 31 F.P.C. 208, aff'd sub nom. Alabama Tennessee Natural Gas Co. v. FPC, 359 F.2d 318 (CA5). Subsequently, the Commission decided that it would impute the use of accelerated depreciation for ratemaking purposes regardless of the method used for computing actual taxes. Midwestern Gas Transmission Co., 36 F.P.C. 61, aff'd sub nom. Midwestern Gas Transmission Co. v. FPC, 388 F.2d 444 (CA7).
9
When the House and Senate considered tax reform legislation in 1969, both were concerned with the loss of tax revenues that stemmed from the combined effect of accelerated depreciation for computing federal taxes (leading to higher deductions) and flow-through for fixing rates (leading to lower rates and thus lower gross revenues).3 Section 441 of the Tax Reform Act, which added § 167(l) to the Internal Revenue Code, was designed in general to 'freeze' existing depreciation practices.4 As passed by the House, § 441 would have established three rules with respect to existing depreciable property:5
10
'(1) If straight line depreciation is presently being taken, then no faster depreciation is to be permitted as to that property.
11
'(2) If the taxpayer is taking accelerated depreciation and is (normalizing' its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property.
12
'(3) If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the tax-payer must continue to do so, unless the appropriate regulatory agency permits a change as to that property.'
13
The Senate bill as passed was similar to that of the House, except that utilities on flow-through were given the right to elect within 180 days 'to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or . . . with the permission of the regulatory agency to shift to the normalization method . . ..'6 This election was to apply both to new and existing property. In conference, however, it was agreed that this right of election would apply only to property acquired by the utility after 1969 to expand its facilities.7
14
Thus, as added to the Internal Revenue Code in 1969, § 167(l) distinguishes between two basic types of 'public utility property':8 'pre-1970 property,' which is property acquired by the taxpayer before January 1, 1970 (§ 167(l)(3) (B)), and all other property, referred to as 'post-1969 property' (§ 167(l)(3) (C)). A further distinction is drawn between post-1969 property 'which increases the productive or operational capacity of the taxpayer' (expansion property) and post-1969 property which merely replaces existing property (§ 167(l)(4)(A)). With respect to pre-1970 property, a utility may use (1) straight-line depreciation, (2) the method used prior to August 1969 if it also employs normalization, or (3) accelerated depreciation with flow-through, but only if that method was used prior to August 1969 (§ 167(l)(1)). With respect to post-1969 property, a utility may use (1) straight-line depreciation, (2) accelerated depreciation with normalization, or (3) accelerated depreciation with flow-through if the utility used flow-through prior to August 1969 (§ 167(l)(2)). In addition, under § 167(l)(4)(A), a utility may elect to abandon accelerated depreciation with flow-through with respect to post-1969 expansion property.
15
The proceedings in issue here involve Texas Gas Transmission Corp., the operator of a major interstate pipeline system certificated by the Federal Power Commission. Although Texas Gas utilized accelerated depreciation with flow-through prior to the adoption of the Tax Reform Act, it filed a proposed rate increase with the Commission on June 27, 1969, based upon 'the proposed discontinuance of the use of liberalized depreciation and the revision to a straight-line method of tax depreciation.' After § 167(l) was enacted, Texas Gas advised the Commission that it intended to exercise the election provided in § 167(l)(4)(A) and sought permission to use accelerated depreciation with normalization with respect to its post-1969 expansion property.9 It also sought assurance, before it made the election, that it would be able to change from flow-through to straight-line or, preferably, accelerated depreciation with normalization with respect to its pre-1970 property and post-1969 replacement property.
16
The Commission, holding that its authority 'to determine whether a company may effect such a change is not diminished' under the Tax Reform Act, permitted Texas Gas to change from flow-through to normalization for ratemaking purposes. Opinion No. 578, 43 F.P.C. 824, 828, rehearing denied, 44 F.P.C. 140.10 The Commission reasoned that the basis of its decisions in Alabama-Tennessee and Midwestern would no longer be applicable if Texas Gas were to switch to normalization with respect to post-1969 expansion property. In that event, the tax savings resulting from the deferral attributable to accelerated depreciation would not be permanent. Rather, if Texas Gas were required to continue flow-through for all but its new expansion property, it would be faced with a steadily increasing cost of service which would necessitate repeated rate increases. Under these circumstances, the Commission concluded: 'Texas Gas is correct in contending that normalization in computing the tax allowance for rate purposes with respect to its pre-1970 faciities offers more hope for stability of rates for its customers and more assurance that the company can earn its fair rate of return without future rate increases. Further benefits of normalization are that it will improve the company's before tax coverage of interest, thereby enhancing the quality of its securities, and that it will help alleviate present day cash shortages.' Id., at 829—830.
17
The Court of Appeals, on petitions for review, reversed the Commission's order.11 149 U.S.App.D.C. 238, 462 F.2d 853, rehearing denied, id., at 250, 462 F.2d, at 865. Although the court recognized that the version of the Tax Reform Act passed by the House would have supported the Commission's order, it held that the limited nature of the election provision as finally passed deprived the Commission of authority to permit regulated utilities to abandon flow-through with respect to their existing and replacement property. We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.
18
The present cases concern solely the depreciation methods used by utilities in calculating their federal income tax expenses for ratemaking purposes.
19
In § 441 of the Tax Reform Act of 1969, Congress dealt primarily with a revenue measure under the tax laws and only indirectly with the regulatory power of the Commission under the Natural Gas Act. We have had before us on numerous occasions cases arising under the Natural Gas Act. In the early case of FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333, we emphasized two aspects of the power of the Commission to fix 'just and reasonable' rates under 15 U.S.C. § 717. First, was the desire 'to protect consumers against exploitation,' 320 U.S., at 610, 64 S.Ct., at 291, and second, was the aim to promote the 'financial integrity' of the natural gas companies as measured, not only by revenues sufficient to recover operating expenses and capital costs, id., at 603, 64 S.Ct., at 288, but also by revenues 'sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.' Ibid. We mention those matters because (1) the treatment of depreciation bears on rates and (2) there is no indication in the legislative history of this tax measure that Congress desired to modify, as respects the precise issue involved here, the broad discretion of the Commission delineated in Hope Natural Gas and in other rate cases.
20
Under § 4(a) of the Natural Gas Act, 15 U.S.C. § 717c(a), all rates and charges made by a natural gas company subject to the Commission's jurisdiction must be 'just and reasonable.' Section 4(e), 15 U.S.C. § 717c(e), sets forth the procedures whereby the Commission can determine whether a proposed rate schedule is lawful, and § 5, 15 U.S.C. § 717d, gives the Commission certain powers to fix rates and charges. Finally, under § 9(a), 15 U.S.C. § 717h(a), the Commission may 'require natural-gas companies to carry proper and adequate depreciation and amortization accounts in accordance with such rules, regulations, and forms of account as the Commission may prescribe.' In FPC v. United Gas Pipe Line Co., 386 U.S. 237, 243, 87 S.Ct. 1003, 1007, 18 L.Ed.2d 18, the Court stated:
21
'One of (the Commission's) statutory duties is to determine just and reasonable rates which will be sufficient to permit the company to recover its costs of service and a reasonable return on its investment. Cost of service is therefore a major focus of inquiry. Normally included as a cost of service is a proper allowance for taxes, including federal income taxes. The determination of this allowance, as a general proposition, is obviously within the jurisdiction of the Commission.'
22
The lower courts have allowed the Commission broad discretion in determining proper depreciation methods for rate-making purposes. See, e.g., Alabama-Tennessee Natural Gas Co. v. FPC, 359 F.2d 318; Midwestern Gas Transmission Co. v. FPC, 388 F.2d 444.
23
Section 167(l), to be sure, does not leave this discretion untouched. For example, a utility using straightline depreciation with respect to its pre-1970 property could not switch to accelerated depreciation, nor could a utility be required to switch to flow-through with respect to pre-1970 property. See § 167(l)(1). But § 167(l) on its face does not preclude the Commission from exercising its statutory powers to permit a utility to abandon flow-through. Section 167(l)(1)(B) provides that '(i)n the case of any pre-1970 public utility property, the taxpayer may use the applicable 1968 method for such property if (i) the taxpayer used a flow-through method of accounting' prior to August 1969. (Emphasis added.)
24
The Court of Appeals, however, found error in the Commission's action based on its detailed and considered analysis of the legislative history of § 167(l). It concluded that 'the final version of the bill limits the applicability of the right of election to post-1969 expansion (non-replacement) property alone.' 149 U.S.App.D.C., at 246, 462 F.2d, at 861 (emphasis in original). It reasoned as follows. At the House stage the action of the Commission would have been justified to switch to normalization because, as already noted, the House Report stated:12
25
'Your committee's bill provides that, in the case of existing property, the following rules are to apply: '(1) If straight line depreciation is presently being taken, then no faster depreciation is to be permitted as to that property.
26
'(2) If the taxpayer is taking accelerated depreciation and is 'normalizing' its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property.
27
'(3) If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property.' (Emphasis added.)
28
The word 'existing' property as used in that Report included 'replacement' property in the mind of the Court of Appeals.
29
The Senate version of the bill13 would have permitted Texas Gas to shift from liberalized depreciation with flow-through either to straight-line depreciation or with the Commission's approval to liberalized depreciation with normalization. 149 U.S.App.D.C., at 247, 462 F.2d, at 862.
30
The Court of Appeals, however, concluded that because the right of election was restricted while the bill was in conference to apply only to post-1969 expansion property, the Commission could not permit a utility to change its method with respect to existing or replacement property. Ibid. It relied on the following four paragraphs from the Conference Report.14
31
'The House bill provides that in the case of certain listed regulated industries (the furnishing or sale of . . . gas through a local distribution system, . . . and transportation of gas by pipeline) a taxpayer is not permitted to use accelerated depreciation unless it 'normalizes' the current income tax reduction resulting from the use of such accelerated depreciation. . . .
32
'This rule is not to apply in the case of a taxpayer that is at present flowing through the tax reduction to earnings for purposes of computing its allowable expenses on its regulated books of account. Also, if the taxpayer is now using straight line depreciation as to any public utility property it may not change to accelerated depreciation as to that property.
33
'The Senate amendment makes the following changes in the House bill: . . . (d) an election is permitted to be made within 180 days after the date of enactment by a company at present on flow-through to come under the rules of the bill . . ..
34
'The conference substitute (sec. 441 of the substitute and sec. 167(l) of the code) follows the Senate amendment except that the special provision referred to in (e) above is stricken and the 180-day election (item (d), above) is modified to apply to new property and not to replacement property.
35
Even in the case of new property, however, the right to change over from the flowthrough method is to be available only to the extent the new property increases the productive or operational capacity of the company.' (Emphasis added.)
36
From these four paragraphs the Court of Appeals concluded that the second paragraph of the Conference Report prohibits Texas Gas from abandoning liberalized depreciation with flow-through and that the right of election was restricted to post-1969 expansion property only.
37
The second paragraph, however, as we read it, when it uses the words 'This rule' refers, not to the final bill, but to the initial House bill. That initial bill, as summarized in the House Report, as already noted,15 had somewhat different provisions for depreciation. The first paragraph of the quotation from the Conference Report in our view summarized the House's proposed second rule. The words 'This rule' in the second paragraph, therefore, refer to the House's proposed second rule.16 Only the third paragraph of the excerpt reached the changes made by the Senate. Only the fourth paragraph resolved the differences between the two bills. There is nothing in either the third or the fourth paragraph to indicate that the election authorized by the Conference Report was to limit or replace the three general rules proposed by the House, the third House-proposed rule17 authorizing precisely what the Commission allowed in this case. The second paragraph, read in the context of the Conference Report, does not state that the Commission lacks authority to permit a company on flow-through to abandon it with respect to existing property. It only states that a company on flow-through may remain on flow-through. Thus, it is solely a limitation on the requirement that a company must normalize if it wants to continue accelerated depreciation with respect to pre-1970 property. This is entirely consistent with the structure of § 167(l)(1).
38
Nor is the extension of the 180-day election to post-1969 expansion property a limiting factor. The 'reasonable' allowance for depreciation of post-1969 property as used in § 167(l)(2) includes in subparagraph (C) 'the applicable 1968 method, if, with respect to its pre-1970 public utility property of the same (or similar) kind most recently placed in service, the taxpayer used a flow-through method of accounting for its July 1969 accounting period.' But § 167(l)(4)(A) provides that where the taxpayer makes an election within the 180-day period, paragraph (2)(C) shall not apply with respect to any post-1969 public utility property 'to the extent that such property constitutes property which increases the productive or operational capacity of the taxpayer' and does not represent 'the replacement of existing capacity.'
39
Thus, the Act recognizes ways for a utility to abandon flow-through with respect to existing property. A utility cannot do so on its own; the overriding authority is in the Federal Power Commission. The staff of the Joint Committee on Internal Revenue Taxation prepared a General Explanation of this tax measure18 in which it stated:
40
'If the taxpayer was taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes as of August 1, 1969, then the taxpayer would continue to do so (except for a special election procedure discussed below), unless the appropriate regulatory agency permits a change as to that property.'
41
This document goes on to state19 that as respects new property a utility on flow-through must remain on flow-through 'unless the regulatory agency permits it to change (or unless the election below applies).'
42
This document provides a compelling contemporary indication that the Federal Power Commission was not deprived of its authority to permit abandonment of flow-through, even though utilities had the right not to have flow-through apply to their expansion property.
43
The Court of Appeals relied on comments both in the House20 and in the Senate21 Reports of the desire of Congress to 'freeze' the current practices relating to depreciation especially as respects 'the more flourishing utility industries.'22
44
As we read the Reports, the purpose was to forestall switches to faster methods of depreciation, to guard against widespread rate increases, and to avoid putting some utilities at a competitive disadvantage. But the 'freeze' was not put in absolute terms. Shifts from straight-line to accelerated depreciation were outlawed, as were shifts from normalization to flow-through on existing property. We find no trace of a suggestion that the Federal Power Commission was denied authority to determine whether on particular facts the abandonment of flow-through by a utility within the parameter of the Tax Reform Act of 1969 would be in the public interest as envisaged by the Natural Gas Act, even though it might increase rates. The 'freeze' certainly was designed to cover changes to faster methods of tax depreciation but not changes to slower methods of tax depreciation that the Commission might permit.
45
The Court of Appeals sustained the Commission as respects the post-1969 expansion property of Texas Gas, and reversed it as respects the pre-1970 and post-1969 nonexpansion property. The Court of Appeals did not reach the validity of the Commission's order, assuming the Commission was correct in its reading of the Tax Reform Act of 1969, as we think it was. The Court of Appeals did, however, state that § 167(l) 'should not be construed to prevent' the Commission from finding in 'extraordinary circumstances' that consumer interests 'would be furthered by permitting the abandonment of flow-through.' But it added: 'It is clear, however, that such consumer interests would not be furthered by permitting Texas Gas to abandon flow-through in the circumstances presented by the case at bar.' 149 U.S.App.D.C., at 250, 462 F.2d, at 865. The Commission in its petition for certiorari states that in connection with the main question raised it would argue, if the petition were granted, that its decision on the merits was correct in all respects. And in its brief on the merits it urges us to decide the merits. But by statute23 the Court of Appeals is the tribunal where review must be sought; and we remand the cases to it for proceedings consistent with this opinion. We note in closing, however, that the judgment of the Court of Appeals is reversed in toto. Its holding that the consumer interests were not furthered by the Commission's action is short of the application of the appropriate standard for review. As already noted, under Hope Natural Gas rates are 'just and reasonable' only if consumer interests are protected and if the financial health of the pipeline in our economic system remains strong.
46
Reversed and remanded.
1
Section 167(a) provides that '(t)here shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)' of qualified property. Section 167(b) defines 'reasonable allowance' to include an allowance computed under the declining balance method and the sum-of-the-years-digits method, as well as the straight-line method. Under the declining-balance and sum-of-the-years-digits method, both commonly referred to as accelerated or liberalized depreciation methods, depreciation allowances in the early years are higher than under the straight-line method, but steadily decrease over the useful life of the asset. Under the straight-line method, the depreciation allowance for an asset remains equal over its useful life.
2
Federal income taxes are properly included as an expense under the cost-of-service ratemaking utilized by the Commission in the regulation of rates for sales of natural gas subject to its jurisdiction under the Natural Gas Act, 15 U.S.C. § 717 et seq. See FPC v. United Gas Pipe Line Co., 386 U.S. 237, 243, 87 S.Ct. 1003, 1007, 18 L.Ed.2d 18.
3
See H.R.Rep.No.91—413, pt. 1, pp. 131—132; S.Rep.No.91 552, p. 172, U.S.Code Cong. & Admin.News 1969, p. 1645.
4
See H.R.Rep.No.91—413, pt. 1, pp. 132—133; S.Rep.No.91 552, p. 172.
5
H.R.Rep.No.91—413, pt. 1, p. 133, U.S. Code Cong. & Admin.News 1969, p. 1783.
6
S.Rep.No.91—552, p. 173, U.S.Code Cong. & Admin.News 1969, p. 2206.
7
See H.R.Conf.Rep.No.91—782, p. 313.
8
Section 167(l)(3)(A) provides:
'The term 'public utility property' means property used predominantly in the trade or business of the furnishing or sale of—
'(i) electrical energy, water, or sewage disposal services,
'(ii) gas or steam through a local distribution system,
'(iii) telephone services, or other communication services if furnished or sold by the Communications Satellite Corporation for purposes authorized by the Communications Satellite Act of 1962 (47 U.S.C. (s) 701), or
'(iv) transportation of gas or steam by pipeline,
'If the rates for such furnishing or sale, as the case may be, have been established or approved by a State or political subdivision thereof, by any agency or instrumentality of the United States, or by a public service or public utility commission or other similar body of any State or political subdivision thereof.'
9
In Order No. 404, 43 F.P.C. 740, rehearing denied, 44 F.P.C. 16, the Commission announced that as a general policy it would permit utilities making the election under § 167(l)(4)(A) to use accelerated depreciation with normalization with respect to their expansion property. The Court of Appeals, in the same decision under review here, affirmed this order. 149 U.S.App.D.C. 238, 250, 462 F.2d 853, 865. That part of the court's decision is not before us.
10
The Commission's order reads:
'(A) In the computation of its Federal Income Tax allowance for ratemaking purposes as well as for accounting purposes, Texas Gas is permitted to use liberalized depreciation with normalization with respect to its property other than that subject to election under Section 167(l)(4)(A) of the Internal Revenue Code as amended by Section 441 of the Tax Reform Act of 1969. Such election applies to property constructed or acquired on or after January 1, 1970, to the extent it increases the productive or operational capacity of the company and does not represent the replacement of existing capacity. Texas Gas may reflect any such change in its rates, as well as any change in costs arising from its proposed election. In computing its cost-of-service for ratemaking purposes balances in Account 282 (deferred tax reserve account) should continue to be deducted from the rate base.' 43 F.P.C. 824, 831.
11
Memphis Light, Gas & Water Division, a municipally owned distributor of natural gas and a city-gate customer of Texas Gas, and the Public Service Commission of the State of New York petitioned the Court of Appeals for review of the Commission's Opinion No. 578. Each had filed an application for rehearing before the Commission which was denied in Opinion No. 578—A. Both the Federal Power Commission (in No. 72—486) and Texas Gas (in No. 72—488) petitioned this Court for a writ of certiorari.
12
H.R.Rep.No.91—413, p. 133, U.S.Code Cong. & Admin.News 1969, p. 1783.
13
S.Rep.No.91—552, pp. 173—174, U.S.Code Cong. & Admin.News 1969, p. 2206.
'The (Senate) committee amendments, while in most respects the same as the House provisions, differ in one principal area. The amendments permit an election to be made within 180 days after the date of enactment of the bill for a utility covered by this provision to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or permit it with the permission of the regulatory agency to shift to the normalization method (that is, to come under general rules of the bill).
'This election applies both as to new and existing property. . . . Since the company would no longer be permitted to use accelerated depreciation (unless the agency later permits it to normalize), the agency would not be able to impute the use of accelerated depreciation with flow-through.' (Emphasis added.)
14
H.R.Conf.Rep.No.91—782, pp. 312—313, U.S.Code Cong. & Admin.News 1969, p. 2427.
15
H.R.Rep.No.91—413, pt. 1, p. 133, U.S.Code Cong. & Amin.News 1969, p. 1783.
16
The second rule, as noted, provided, 'If the taxpayer is taking accelerated depreciation and is 'normalizing' its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property.' Ibid.
17
The third rule, as noted, provided, 'If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate requalatory agency permits a change as to that property.' Ibid.
18
General Explanation of the Tax Reform Act of 1969, H.R. 13270, 91st Cong., p. 151.
19
Ibid.
20
H.R.Rep.No.91—413, pt. 1, pp. 132—133.
21
S.Rep.No.91—552, p. 172.
22
Ibid.
23
Section 19(b) of the Natural Gas Act, 15 U.S.C. § 717r(b), provides:
'Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia (Circuit) . . ..'
| 78
|
411 U.S. 564
93 S.Ct. 1689
36 L.Ed.2d 488
Thomas S. GIBSON et al., Appellants,v.L. M. BERRYHILL et al.
No. 71—653.
Argued Jan. 9 and 10, 1973.
Decided May 7, 1973.
Syllabus
Appellees, licensed optometrists employed by Lee Optical Co., who were not members of the Alabama Optometric Association (Association), were charged by the Association with unprofessional conduct within the meaning of the state optometry statute because of their employment with the company. The complaint was filed with the Alabama Board of Optometry (Board), all members of which were Association members. The Board deferred proceedings while a suit it had brought against Lee Optical and optometrists employed by it to enjoin the company from practicing optometry was litigated in the state trial court. The charges against the individual defendants were dismissed but the court enjoined Lee Optical from engaging in the practice of optometry. The company appealed. When the Board revived the Association's charges against appellees, they sought an injunction in the Federal District Court under the Civil Rights Act claiming that the Board was biased. The court concluded that it was not barred from acting by the federal anti-injunction statute since only administrative proceedings were involved and that exhaustion of administrative remedies was not mandated where the administrative process was biased in that the Board by its litigation in the state courts had prejudged the case against appellees and the Board members had an indirect pecuniary interest in the outcome. The District Court enjoined the Board proceedings but thereafter and before this appeal was taken, the State's highest court reversed the judgment against Lee Optical and held that the optometry law did not prohibit a licensed optometrist from working for a corporation. Held:
1. The anti-injunction statute did not bar the District Court from issuing the injunction since appellees brought suit under the Civil Rights Act, 42 U.S.C. § 1983. Pp. 572—575.
2. Nor did the rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 or principles of comity require the District Court to dismiss appellees' suit in view of the pending Board proceeding since the appellees alleged and the District Court concluded that the Board's bias rendered it incompetent to adjudicate the issues. Pp. 575—577.
3. Since the board was composed solely of private practitioners and the corporate employees it sought to bar from practice constituted half the optometrists in the State, the District Court was warranted in concluding that the Board members' pecuniary interest disqualified them from passing on the issues. Pp. 578—579.
4. Though the District Court did not abuse its discretion in not abstaining until the Lee Optical decision was rendered by the Alabama Supreme Court, the principles of equity, comity, and federalism warrant reconsideration of this case in the light of that decision. Pp. 579—581.
331 F.Supp. 122, vacated and remanded.
Richard A. Billups, Jr., Jackson, Miss., for appellants.
Harry Cole, Montgomery, Ala., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
Prior to 1965, the laws of Alabama relating to the practice of optometry permitted any person, including a business firm or corporation, to maintain a department in which 'eyes are examined or glasses fitted,' provided that such department was in the charge of a duly licensed optometrist. The permission was expressly conferred by § 210 of Title 46 of the Alabama Code of 940, and also inferentially by § 211 of the Code which regulates the advertising practices of optometrists, and which, until 1965, appeared to contemplate the existence of commercial stores with optical departments.1 In 1965, § 210 was repealed in its entirety by the Alabama Legislature, and § 211 was amended so as to eliminate any direct reference to optical departments maintained by corporations or other business establishments under the direction of employee optometrists.2
2
Soon after these statutory changes, the Alabama Optometric Association, a professional organization whose membership is limited to independent practitioners of optometry not employed by others, filed charges against various named optometrists, all of whom were duly licensed under Alabama law but were the salaried employees of Lee Optical Co. The charges were filed with the Alabama Board of Optometry, the statutory body with authority to issue, suspend, and revoke licenses for the practice of optometry. The gravamen of these charges was that the named optometrists, by accepting employment from Lee Optical, a corporation, had engaged in 'unprofessional conduct' within the meaning of § 206 of the Alabama optometry statute and hence were practicing their profession unlawfully.3 More particularly, the Association charged the named individuals with, among other things, aiding and abetting a corporation in the illegal practice of optometry; practicing optometry under a false name, that is, Lee Optical Co.; unlawfully soliciting the sale of glasses; lending their licenses to Lee Optical Co.; and splitting or dividing fees with Lee Optical.4 It was apparently the Association's position that, following the repeal of § 210 and the amendment of § 211, the practice of optometry by individuals as employees of business corporations was no longer permissible in Alabama, and that, by accepting such employment the named optometrists had violated the ethics of their profession. It was prayed that the Board revoke the licenses of the individuals charged following due notice and a proper hearing.
3
Two days after these charges were filed by the Association in October 1965, the Board filed a suit of its own in state court against Lee Optical, seeking to enjoin the company from engaging in the 'unlawful practice of optometry.' The Board's complaint also named 13 optometrists employed by Lee Optical as parties defendant, charging them with aiding and abetting the company in its illegal activities, as well as with other improper conduct very similar to that charged by the Association in its complaint to the Board.
4
Proceedings on the Association's charges were held in abeyance by the Board while its own state court suit progressed. The individual defendants in that suit were dismissed on grounds that doi not adequately appear in the record before us; and, eventually, on March 17, 1971, the state trial court rendered judgment for the Board, and enjoined Lee Optical both from practicing optometry without a license and from employing licensed optometrists.5 The company appealed this judgment.
5
Meanwhile, following its victory in the trial court, the Board reactivated the proceedings pending before it since 1965 against the individual optometrists employed by Lee, noticing them for hearings to be held on May 26 and 27, 1971. Those individuals countered on May 14, 1971, by filing a complaint in the United States District Court naming as defendants the Board of Optometry and its individual members, as well as the Alabama Optometric Association and other individuals. The suit, brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983, sought an injunction against the scheduled hearings on the grounds that the statutory scheme regulating the practice of optometry in Alabama6 was unconstitutional insofar as it permitted the Board to hear the pending charges against the individual plaintiffs in the federal suit.7 The thrust of the complaint was that the Board was biased and could not provide the plaintiffs with a fair and impartial hearing in conformity with due process of law.
6
A three-judge court was convened in August 1971, and shortly thereafter entered judgment for plaintiffs, enjoining members of the State Board and their successors 'from conducting a hearing on the charges heretofore preferred against the Plaintiffs' and from revoking their licenses to practice optometry in the State of Alabama.
7
In its supporting opinion, 331 F.Supp. 122, the District Court first considered whether it should stay its hand and defer to the then-pending state proceedings—that is, whether the situation presented was one which would permit of immediate federal intervention to restrain the actions of a state administrative body. That question was answered in the affirmative, the court holding that 28 U.S.C. § 2283, the federal antiinjunction statute, was not applicable to state administrative proceedings even where those proceedings were adjudicatory in character. Moreover, the District Court also held that neither Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), nor the doctrine normally requiring exhaustion of administrative remedies forbade a federal injunction where, as the court found to be true here, the administrative process was so defective and inadequate as to deprive the plaintiffs of due process of law.
8
This conclusion with respect to the deficiencies in the pending proceedings against plaintiffs, although an amalgam of several elements, amounted basically to a sustaining of the plaintiffs' allegation of bias. For the District Court, the inquiry was not whether the Board members were 'actually biased but whether, in the natural course of events, there is an indication of a possible temptation to an average man sitting as a judge to try the case with bias for or against any issue presented to him.' 331 F.Supp., at 125. Such a possibility of bias was found to arise in the present case from a number of factors. , first, was the fact that the Board, which acts as both prosecutor and judge in delicensing proceedings, had previously brought suit against the plaintiffs on virtually identical charges in the state courts. This the District Court took to indicate that members of the Board might have 'preconceived opinions' with regard to the cases pending before them. Second, the court found as a fact that Lee Optical Co. did a large business in Alabama, and that if it were forced to suspend operations the individual members of the Board, along with other private practitioners of optometry, would fall heir to this business. Thus, a serious question of a personal financial stake in the matter in controversy was raised. Finally, the District Court appeared to regard the Board as a suspect adjudicative body in the cases then pending before it, because only members of the Alabama Optometric Association could be members of the Board, and because the Association excluded from membership optometrists such as the plaintiffs who were employed by other persons or entities. The result was that 92 of the 192 practicing optometrists in Alabama were denied participation in the governance of their own profession.
9
The court's ultimate conclusion was 'that to require the Plaintiffs to resort to the protection offered by state law in these cases would effectively deprive them of their property, that is, their right to practice their professions, without due process of law and that irreparable injury would follow in the normal course of events.'8 331 F.Supp., at 126.
10
Appeal was taken to this Court and probable jurisdiction noted on June 26, 1972. 408 U.S. 920, 92 S.Ct. 2487, 33 L.Ed.2d 331. Meanwhile, on March 30, 1972, the Supreme Court of Alabama reversed the judgment of the state trial court in the Lee Optical Co. case,9 holding that nothing in the Alabama statutes pertaining to optometry evidenced 'a legislative policy that an optometrist duly qualified and licensed under the laws of this state, may not be employed by another to examine eyes for the purpose of prescribing eyeglasses.'10 288 Ala. 338, 346, 261 So.2d 17, 24.
11
It is against this procedural background that we turn to a consideration of the issues presented by this appeal.
12
* We agree with the District Court that neither statute nor case law precluded it from adjudicating the issues before it and from issuing the injunction if its decision on the merits was correct.
13
Title 28 U.S.C. § 2283, the anti-injunction statute, prohibits federal courts from enjoining state court proceedings, but the statute excepts from its prohibition injunctions which are 'expressly authorized' by another Act of Congress.11 Last Term, after the District Court's decision here, this Court determined that actions brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983, were within the 'expressly authorized' exception to the ban on federal injunctions.12 Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 1 (1972).
14
Our decision in Mitchum, however, held only that a district court was not absolutely barred by statute from enjoining a state court proceeding when called upon to do so in a § 1983 suit. As we expressly stated in Mitchum, nothing in that decision purported to call into question the established principles of equity, comity, and federalism which must, under appropriate circumstances, restrain a federal court from issuing such injunctions. Id., at 243, 92 S.Ct. 2151, 2162, 2163. These principles have been emphasized by this Court many times in the past, albeit under a variety of different rubrics. First of all, there is the doctrine, usually applicable when an injunction is sought, that a party must exhaust his available administrative remedies before invoking the equitable jurisdiction of a court. See, e.g., Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908); Illinois Commerce Comm'n v. Thomson, 318 U.S. 675, 63 S.Ct. 834, 87 L.Ed. 1075 (1943). Secondly, there is the basic principle of federalism, restated as recently as 1971 in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, that a federal court may not enjoin a pending state criminal proceeding in the absence of special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate. And finally, there is the doctrine, developed in our cases at least since Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), that when confronted with issues of constitutional dimension which implicate or depend upon unsettled questions of state law, a federal court ought to abstain and stay its proceedings until those state law questions are definitively resolved.
15
In the instant case the matter of exhaustion of administrative remedies need not detain us long. Normally when a State has instituted administrative proceedings against an individual who then seeks an injunction in federal court, the exhaustion doctrine would require the court to delay action until the administrative phase of the state proceedings is terminated, at least where coverage or liability is contested and administrative expertise, discretion, or factfinding is involved.13 But this Court has expressly held in recent years that state administrative remedies need not be exhausted where the federal court plaintiff states an otherwise good cause of action under 42 U.S.C. § 1983. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). Whether this is invariably the case even where, as here, a license revocation proceeding has been brought by the State and is pending before one of its own agencies and where the individual charged is to be deprived of nothing until the completion of that proceeding, is a question we need not now decide; for the clear purport of appellees' complaint was that the State Board of Optometry was unconstitutionally constituted and so did not provide them with an adequate administrative remedy requiring exhaustion. Thus, the question of the adequacy of the administrative remedy, an issue which under federal law the District Court was required to decide, was for all practical purposes identical with the merits of appellees' lawsuit.14
II
16
This brings us to the question of whether Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 741 (1971), or the principles of equity, comity, and federalism for which those cases stand, precluded the District Court from acting, in view of the fact that proceedings against appellees were pending before the Alabama Board of Optometry. Those cases and principles would, under ordinary circumstances, forbid either a declaratory judgment or injunction with respect to the validity or enforcement of a state statute when a criminal proceeding under the statute has been commenced. Whether a like rule obtains where state civil proceedings are pending was left open in Younger and its companion cases.
17
Appellants now insist, not only that the issue is posed here by the pendency of proceedings before the state board, but also that the issue was actually decided following Younger by our summary affirmance in the case of Geiger v. Jenkins, 401 U.S. 985, 91 S.Ct. 1236, 28 L.Ed.2d 525 (1971). In that case, the State Medical Board of Georgia noticed hearings on charges filed against a medical practitioner who immediately brought suit in federal court under § 1983 seeking an injunction on the ground that the underlying statute the Medical Board sought to enforce was unconstitutional. The District Court dismissed the action without reaching the merits, holding that the state proceedings were 'in the nature of criminal proceedings,' sufficiently so in any event to trigger the 28 U.S.C. § 2283 bar to federal intervention. 316 F.Supp. 370, 372 (ND Ga.1970). The decision was appealed to this Court and summarily affirmed without opinion but with citation to Younger and Mackell.
18
As frequently occurs in the case of summary affirmance, the decision in Geiger is somewhat opaque. We doubt, however, that it is controlling here. First of all, it apears from the jurisdictional statement and motion to affirm in Geiger that state criminal proceedings were pending at the time of the challenged dismissal of the federal case. Moreover, it also appears that subsequent to that dismissal the State Medical Board completed its proceedings and revoked Geiger's license, and that judicial proceedings to review that order were already under way in the state courts. Secondly, there is no judicial finding here as there was in Geiger that under applicable state law license revocation proceedings are quasi-criminal in nature; nor is the Alabama case law now cited for this proposition persuasive. See State v. Keel, 33 Ala.App. 609, 35 So.2d 625 (1948). Finally, although it is apparent from Geiger that administrative proceedings looking toward the revocation of a license to practice medicine may in proper circumstances command the respect due court proceedings, there remains the claim here, not present in Geiger, that the administrative body itself was unconstitutionally constituted, and so not entitled to hear the charges filed against the appellees.
19
Unlike those situations where a federal court merely abstains from decision on federal questions until the resolution of underlying or related state law issues15—a subject we shall consider shortly in the context of the present case—Younger v. Harris contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts. Such a course naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved. Here the predicate for a Younger v. Harris dismissal was lacking, for the appellees alleged, and the District Court concluded, that the State Board of Optometry was incompetent by reason of bias to adjudicate the issues pending before it. If the District Court's conclusion was correct in this regard, it was also correct that it need not defer to the Board. Nor, in these circumstances, would a different result be required simply because judicial review, de novo or otherwise, would be forthcoming at the conclusion of the administrative proceedings.16 Cf. Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972).
III
20
It is appropriate, therefore, that we consider the District Court's conclusions that the State Board of Optometry was so biased by prejudgment and pecuniary interest that it could not constitutionally conduct hearings looking toward the revocation of appellees' licenses to practice optometry. We affirm the District Court in this respect.
21
The District Court thought the Board to be impermissibly biased for two reasons. First, the Board had filed a complaint in state court alleging that appellees had aided and abetted Lee Optical Co. in the unlawful practice of optometry and also that they had engaged in other forms of 'unprofessional conduct' which, if proved, would justify revocation of their licenses. These charges were substantially similar to those pending against appellees before the Board and concerning which the Board had noticed hearings following its successful prosecution of Lee Optical in the state trial court.
22
Secondly, the District Court determined that the aim of the Board was to revoke the licenses of all optometrists in the State who were employed by business corporations such as Lee Optical, and that these optometrists accounted for nearly half of all the optometrists practicing in Alabama. Because the Board of Optometry was composed solely of optometrists in private practice for their own account, the District Court concluded that success in the Board's efforts would possibly redound to the personal benefit of members of the Board, sufficiently so that in the opinion of the District Court the Board was constitutionally disqualified from hearing the charges filed against the appellees.
23
The District Court apparently considered either source of possible bias—prejudgment of the facts or personal interest sufficient to disqualify the members of the Board. Arguably, the District Court was right on both scores, but we need reach, and we affirm, only the latter ground of possible personal interest.17
24
It is sufficiently clear from our cases that those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). And Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), indicates that the financial stake need not be as direct or positive as it appeared to be in Tumey. It has also come to be the prevailing view that '(m)ost of the law concerning disqualification because of interest applies with equal force to . . . administrative adjudicators.' K. Davis, Administrative Law Text § 12.04, p. 250 (1972), and cases cited. The District Court proceeded on this basis and, applying the standards taken from our cases, concluded that the pecuniary interest of the members of the Board of Optometry had sufficient substance to disqualify them, given the context in which this case arose. As remote as we are from the local realities underlying this case and it being very likely that the District Court has a firmer grasp of the facts and of their significance to the issues presented, we have no good reason on this record to overturn its conclusion and we affirm it.
IV
25
Finally, we do not think that the doctrine of abstention, as developed in our cases from Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), to Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972), required the District Court to stay its proceedings until the appellees had presented unsettled questions of state law to the state courts. Those questions went to the reach and effect of the state optometry law and concerned the merits of the charges pending against the appellees, at the heart of which was the issue whether Alabama law permitted licensed optometrists to be employed by business corporations and others. That central question was pending in the Alabama Supreme Court in the Lee Optical Co. case at the time the District Court entered its order. As was noted earlier, however, appellees here had been dismissed from that case by the state trial court, and it was only after this dismissal, and after the Board had reactivated its charges against them, that appellees sought relief in federal court.
26
Arguably, the District Court should have awaited the outcome of the Lee Optical Co. appeal, a decision which might have obviated the need for an injunction in this case.18 But the Board was pressing its charges against appellees without awaiting that outcome and, in any event, it appears that at least some of the charges pending against appellees might have survived a reversal of the state trial court's judgment by the Alabama Supreme Court. Under these circumstances, it was not an abuse of discretion for the District Court to proceed as it did.
27
Nevertheless, the Alabama Supreme Court has since rendered its decision, not only in the Lee Optical Co. case, but also in a companion case, House of $8.50 Eyeglasses v. State Board of Optometry, 288 Ala. 349, 261 So.2d 27 (1972). See n. 10, supra. Individual optometrists were parties to that latter case, and the Alabama Supreme Court entered judgment in their behalf, holding that nothing in the State's optometry law prohibited a licensed optometrist from accepting employment from a business corporation. Whether this judgment substantially devitalizes the position of the Board with respect to the appellees here, or in any way makes unnecessary or removes the 'equity' from the injunction entered by the District Court, we are unable to determine. But we do think that considerations of equity, comity, and federalism warrant vacating the judgment of the District Court and remanding the case to that court for reconsideration in light of the Alabama Supreme Court's judgments in the Lee Optical Co. and House of $8.50 Eyeglasses cases. We in no way intimate whether or not the injunction should be reinstated by the District Court.
28
It is so ordered.
29
Vacated and remanded.
30
Mr. Chief Justice BURGER, concurring.
31
I concur, although in my view the three-judge District Court would have been better advised, as a matter of sound judicial discretion, to have refrained from acting until the outcome of the Lee Optical appeal. See my dissenting opinion in Wisconsin v. Constantineau, 400 U.S. 433, 443, 91 S.Ct. 507, 513, 27 L.Ed.2d 515 (1971).
32
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring.
33
I join the opinion of the Court except insofar as it suggests that the question remains open whether plaintiffs in some suits brought under 42 U.S.C. § 1983 may have to exhaust administrative remedies. See ante, at 574—575. In my opinion, the inapplicability of the exhaustion requirement to any suit brought under § 1983 has been firmly settled by this Court's prior decisions, McNeese v. Board of Education, 373 U.S. 668, 671—672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963). See also Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); King v. Smith, 392 U.S. 309, 312 n. 4, 88 S.Ct. 2128, 2131, 20 L.Ed.2d 1118 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967).
1
Sections 210 and 211 of c. 11, Tit. 46, of the Code of Alabama, 1940, provided, prior to 1965, as follows:
§ 210. Store where glasses are sold; how department conducted.—Nothing in this chapter shall be so construed as to prevent any person, firm, or corporation from owning or operating a store or business establishment wherein eyes are examined or glasses fitted; provided, that such store, establishment, or optometric department shall be in charge of a duly licensed optometrist, whose name must appear on and in all optometry advertising of whatsoever nature done by said person, firm or corporation.'
§ 211. False or misleading statements in advertisements or stores having optometry department.—It shall be unlawful for any person, firm or corporation, engaged in the practice of optometry in this state, to print or cause to be printed, or circulate or cause to be circulated, or publish, by any means whatsoever, any advertisement or circular in which appears any untruthful, impossible, or improbable or misleading statement or statements, or anything calculated or intended to mislead or deceive the public. And it shall be unlawful for any individual, firm or corporation, engaged in the sale of goods, wares or merchandise who maintains or operates, or who allows to be maintained and operated in connection with said mercantile business an optometry department; or who rents or subleases to any person or persons for the purpose of engaging in the practice of optometry therein, any portion of or space in said store, premises or establishment in which such person, firm or corporation is engaged in said mercantile business, to publish, or circulate, or print or cause to be printed, by any means whatsoever, any advertisement or notice of the optometry department maintained, operated, or conducted in said establishment or place of business, in which said advertisement or notice appear any untruthful, improbable, impossible, or misleading statement or statements, or anything calculated to mislead or deceive the public.'
Sections 190—213, regulating the practice of optometry in Alabama, were originally adopted in 1919.
2
Section 211, as amended, reads as follows:
§ 211. False or misleading statements in advertisements or circulars.—It shall be unlawful for any person engaged in the practice of optometry in this state to print or cause to be printed, or circulate or cause to be circulated, or published, by any means whatsoever, any advertisement or circular in which appears any untruthful, impossible, or improbable or misleading statement or statements, or anything calculated or intended to mislead or deceive the public.
3
Section 206, insofar as relevant here, provides as follows:
§ 206. License may be suspended or revoked.—A license issued to any person may be suspended for a definite period of time, or revoked by the state board of optometry for any of the following reasons; to-wit: . . . For unprofessional conduct. 'Unprofessional conduct' shall be defined to mean any conduct of a character likely to deceive or defraud the public, lending his license by any licensed optometrist to any person, the employment of 'cappers,' or 'steerers' to that do not adequately appear in the fee with any person or persons, the obtaining of any fee or compensation by fraud or misrepresentation, employing directly or indirectly any suspended or unlicensed optometrist to do any optometrical work, by use of any advertising, carrying the advertising of articles not connected with the profession, the employment of any drugs or medicines in his practice unless authorized to do so by the laws covering the practice of medicine of this state, or the doing or performing of any acts in his profession declared by the Alabama Optometric Association to be unethical or contrary to good practice.'
The section also provides for a hearing before the Board upon due notice of an accused license holder. At such a hearing the accused is entitled to be represented by counsel, to cross-examine the witnesses against him, and to have all testimony taken down by a stenographer.
4
Some of the charges leveled against the named optometrists are covered by sections of the Alabama optometry statute other than § 206, e.g., 'practicing optometry under a false name' (§ 191), 'unlawfully soliciting the sale of glasses' (§ 203), etc.
5
A period of nearly five and one-half years passed between the filing of the Board's complaint against Lee Optical and the decision of the state trial court. Much of this delay appears to be attributable to certain procedural wranglings in the court concerning whether the Board had the power to bring an injunctive action against those it believed to be practicing optometry unlawfully. During the pendency of the litigation, the Alabama Legislature passed a statute expressly conferring such power, both prospectively and retroactively, on state licensing boards, and the suit appears to have proceeded expeditiously thereafter.
6
§§ 190—213 of c. 11, Tit. 46, of the Alabama Code of 1940.
7
More specifically, the plaintiffs attacked §§ 206 and 192 of the statute which provide, respectively, that the Board shall have the power to entertain delicensing proceedings and that its membership shall be limited to members of the Alabama Optometric Association.
8
The District Court also dismissed, without prejudice, the Board's counterclaim in the present suit which sought a judgment barring the plaintiffs from practicing optometry in Alabama.
9
See Lee Optical Co. of Alabama v. State Board of Optometry, 288 Ala. 338, 261 So.2d 17, rehearing denied Apr. 27, 1972.
10
In a companion case, House of $8.50 Eyeglasses v. State Board of Optometry, 288 Ala. 349, 261 So.2d 27 (1972), the Alabama Supreme Court reversed the judgment of another lower state court which had enjoined a corporation from unlawfully practicing optometry through its optometrist employees. In that case, the individual optometrists involved were also enjoined from unlawfully practicing their profession. Both injunctions were dissolved by the Alabama Supreme Court.
11
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.'
12
The District Court held § 2283 inapplicable in the present case because the plaintiffs sought an injunction against a state administrative body and not a state court. Whether this distinction is tenable in all circumstances—even where the administrative proceeding is adjudicatory or quasi-judicial in character—we need not decide here since the present action was brought under 42 U.S.C. § 1983.
13
This exhaustion requirement does not apply generally to state 'judicial,' as opposed to 'administrative,' remedies. See Bacon v. Rutland R. Co., 232 U.S. 134, 34 S.Ct. 283, 58 L.Ed. 538 (1914); City Bank Farmers Trust Co. v. Schnader, 291 U.S. 24, 54 S.Ct. 259, 78 L.Ed. 628 (1934). The doctrine of exhaustion of administrative remedies should, however, be kept distinct from other equitable doctrines such as those exemplified in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), which do require a federal court to defer in appropriate circumstances to state judicial proceedings.
14
State administrative remedies have been deemed inadequate by federal courts and hence not subject to the exhaustion requirement, on a variety of grounds. Most often this has bene because of delay by the agency, Smith v. Illinois Bell Tel. Co., 270 U.S. 587, 46 S.Ct. 408, 70 L.Ed. 747 (1926), or because of some doubt as to whether the agency was empowered to grant effective relief, Union Pac. R. Co. v. Board of Comm'rs of Weld County, 247 U.S. 282, 38 S.Ct. 510, 62 L.Ed. 1110 (1918); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). State administrative remedies have also been held inadequate, however, where the state administrative body was found to be biased or to have predetermined the issue before it. Kelly v. Board of Education, 159 F.Supp. 272 (MD Tenn.1958).
15
See, e.g., Railroad Comm'n v. Pullman Co., supra; England v. Louisiana State Bd. of Medical Exam'rs, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972).
16
This Court was assured at oral argument by counsel for both parties that Alabama law provides for de novo court review of delicensing orders issued by the Board. Tr. of Oral Arg. 5, 19. Nonetheless, the District Court expressly found that the revocation by the Board of appellees' licenses to practice their profession, 'together with the attendant publicity which would inevitably be associated therewith, would cause irreparable damage' to the appellees for which no adequate remedy is afforded by state law. 331 F.Supp. 122, 126.
17
The extent to which an administrative agency may investigate and act upon the material facts of a case and then, consistent with due process, sit as an adjudicative body to determine those facts finally has occasioned some divergence of views among federal courts. Compare Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 100, 306 F.2d 260 (1962), and Trans World Airlines v. CAB, 102 U.S.App.D.C. 391, 254 F.2d 90 (1958), with Pangburn v. CAB, 311 F.2d 349 (CA1 1962). See also Mack v. Florida State Board of Dentistry, 296 F.Supp. 1259 (SD Fla.1969). We have no occasion to pass upon this issue here in view of our disposition of the present case.
18
See Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).
| 89
|
411 U.S. 452
93 S.Ct. 1732
36 L.Ed.2d 420
Edmund G. BROWN, Jr., Secretary of State of California, Appellant,v.Raymond G. CHOTE.
No. 71—1583.
Argued Feb. 22, 1973.
Decided May 7, 1973.
Syllabus
Appellee, who sought to run for Congress but asserted that he was unable to pay California's statutory filing fee, filed a class action in District Court, challenging the constitutionality of the filing-fee statutes. In the face of an impending filing deadline, the District Court granted appellee's motion for a preliminary injunction. Held: Given the possibility that appellee would prevail on the merits and the fact that appellee's opportunity to be a candidate would have been foreclosed, absent interim relief, the District Court did not abuse its discretion in granting a preliminary injunction. Pp. 456—457.
342 F.Supp. 1353, affirmed and remanded.
Henry G. Ullerich, Los Angeles, Cal., for appellant.
Philip Elman, Washington, D.C., for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This case arises under 28 U.S.C. § 1253 on direct appeal from a three-judge district court in the Northern District of California. The court was convened pursuant to 28 U.S.C. § 2281 when appellee called into question the constitutionality of those provisions of the California Elections Code which require candidates in a primary election to pay a filing fee prior to having their names listed on the primary ballot. Cal.Elections Code §§ 6552 and 6553 (Supp.1973). Under these provisions, candidates for the Federal House of Representatives must pay $425 (1% of the annual salary of the office); candidates for the Federal Senate must pay $850 (2% of the salary of the office). Those wishing to run for statewide offices must pay similar fees ranging in amount from $192 for State Assemblyman (1% of the annual salary) to $982 for Governor (2% of the annual salary). Other portions of the California Elections Code, not challenged in the present suit, require prospective candidates to file with appropriate state officials a declaration of candidacy and sponsor certificates. Cal. Elections Code §§ 6490—6491, 6494—6495 (1961 and Supp.1973).
2
Appellee commenced this class action on March 3, 1972. He moved, and was granted permission, by a single district judge, to proceed in forma pauperis and as his own attorney. In his complaint, appellee asserted that he wished to become a candidate for the Federal House of Representatives from the 17th District of California, and had taken the following steps to place his name in nomination in the June 6, 1972, California primary election. On February 17, 1972, appellee called the Registrar of Voters of Santa Clara County, an official designated by state law to dispense those forms necessary to place a name in nomination. Appellee was purportedly told by the Registrar or a member of his office that he was required to pay $425 in advance in order to secure blank copies of the necessary papers. According to appellee, the Registrar's Office also advised him that the papers would be delivered in exchange for a worthless check.1
3
Appellee proceeded immediately to the Registrar's Office where he presented a personal check for $425 and requested copies of the necessary forms. Across the face of the check, appellee had typed 'Written under protest for filing fee.'2 The Registrar issued the requisite papers to appellee and informed him that his check would be forwarded to the California Secretary of State when his completed papers were submitted. Subsequently, a Deputy Secretary of State informed appellee that his name would not be placed on the ballot if his check was not honored.3
4
Citing Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), appellee asserted that California's filing-fee system was unconstitutional since it barred indigents, such as himself, from seeking elective office and from voting for the candidate of his choice. In addition to requesting declaratory and permanent injunctive relief, appellee moved the District Court to issue a pre-liminary injunction so as to allow him to participate as a candidate in the upcoming primary. Under state law, the final date on which appellee could submit nominating papers for that primary was March 10, 1972, one week away.
5
Because of the impending filing deadline, the District Court proceeded quickly to set the case for argument. On March 3, 1972, the same date on which the suit was filed, the single District Judge to whom the case was assigned entered an order requiring appellant to show cause why interlocutory relief should not be granted. The State was given five days in which to respond. It was not until March 7 that the Chief Judge of the Ninth Circuit was notified of the application for a three-judge court. On March 8, he designated the judges who were to compose the panel. On the same day, the court convened and heard oral argument. Because of the speed with which the case had developed, neither the court nor appellee had an opportunity prior to the hearing to consider appellant's return to the order to show cause, the only paper which the State had been able to prepare.
6
On March 9, 1972, one day after oral argument and one day before the deadline for filing nomination papers, the District Court granted appellee's motion for a preliminary injunction, stating:
7
'Since no . . . showing has been made by the State, concerning either the necessity, the purpose or the reasonableness of the filing fee statutes in question, we conclude that within the rationale and holding of Bullock (v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972)), plaintiff may prevail on the merits and that, absent a preliminary injunction, his constitutional right may be irreparably lost.' 342 F.Supp. 1353, 1355—1356. (Emphasis added.)
8
Under the terms of the preliminary injunction, the State was required to allow appellee and others similarly situated to place their names on the ballot without paying the required fee, so long as they were otherwise eligible for the applicable state or federal office and had deposited with an appropriate state official an affidavit attesting to their indigency.
9
The State appealed directly to this Court under 28 U.S.C. § 1253. Its Jurisdictional Statement posed two questions:
10
'Under the decision of this Court in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), when a state statute requiring a candidate's filing fee of one per cent (1%) of the first year's salary for the office is challenged on Equal Protection grounds does the 'rational basis' or 'close scrutiny' standard of judicial review v. United States, 279 U.S. 229,
11
'Do California Elections Code sections 6552 and 6553 deny voters or indigent prospective candidates equal protection of the laws?'
12
Thus, the State of California, for reasons not clear to us in light of the limited record, asked the Court to address itself to the ultimate merits of appellee's constitutional claim, a question which the District Court did not reach. In the present posture of the case, there is no occasion to consider any issues beyond those addressed by the District Court.
13
The issuance of the requested preliminary injunction was the only action taken by the District Court. In determining whether such relief was required, that court properly addressed itself to two relevant factors: first, the appellee's possibilities of success on the merits; and second, the possibility that irreparable injury would have resulted, absent interlocutory relief. As the District Court opinion clearly evidences, issuance of the injunction reflected the balance which that court reached in weighing these factors and was not in any sense intended as a final decision as to the constitutionality of the challenged statute. In the exigent circumstances, the grant of extraordinary interim relief was a permissible choice; but on the very limited record before the District Court a decision on the merits would not have been appropriate.
14
In reviewing such interlocutory relief, this Court may only consider whether issuance of the injunction constituted an abuse of discretion. Alabama v. Unitd States, 279 U.S. 229, 49 S.Ct. 266, 73 L.Ed. 675 (1929); United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263 (1936); United Fuel Gas Co. v. Public Service Comm'n of West Virginia, 278 U.S. 322, 49 S.Ct. 157, 73 L.Ed. 402 (1929); National Fire Insurance Co. of Hartford v. Thompson, 281 U.S. 331, 50 S.Ct. 288, 74 L.Ed. 881 (1930). In light of the arguments presented by appellee and the fact that appellee's opportunity to be a candidate would have been foreclosed, absent some relief, we cannot conclude that the court's action was an abuse of discretion. We therefore affirm the action taken by the District Court in granting interim relief.
15
In doing so, we intimate no view as to the ultimate merits of appellee's contentions. The record in this case clearly reflects the limited time which the parties had to assemble evidence and prepare their argumnts. While the District Court's swift action is understandable in view of the deadline which it faced, the resulting record was simply insufficient to allow that court to consider fully the grave, far-reaching constitutional qustions presented.
16
The specific deadline which led the District Court to grant equitable relief has now passed.4 Nothing precludes appellee from seeking a trial on the merits, if he chooses to proceed. The case is therefore remanded to the District Court for further proceedings consistent with this opinion.5
17
Affirmed and remanded.
1
The State denies that such advice was ever communicated to appellee. In an affidavit submitted to the District Court, the Registrar of Voters of Santa Clara County stated that it was the policy of his office not to distribute the required forms to anyone who represented to the Registrar that the check submitted was worthless. The Registrar further stated that, to his knowledge, neither he nor anyone in his office had ever informed appellee that forms would be issued upon presentation of a worthless check.
2
When the case was argued before the District Court, appellee claimed that he had also told the Registrar or a member of his office that the account on which the check was drawn did not contain sufficient funds to cover it. However, this fact is not alleged in the complaint.
3
Appellant submitted to the District Court an affidavit from the Deputy Secretary of State to whom appellee had spoken, disputing appellee's claim that he had been informed that his name would not be placed on the ballot if his check was not honored.
4
Although the June 6 primary election has passed, the question raised is one 'capable of repetition, yet evading review.' Consequently, the case is not moot. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969).
5
We have granted certiorari in No. 71—6852, Lubin v. Allison, 411 U.S. 964, 93 S.Ct. 2152, 36 L.Ed.2d 684, in order to consider conflicts in holdings regarding the constitutionality of state filing-fee statutes.
| 89
|
411 U.S. 618
93 S.Ct. 2156
36 L.Ed.2d 541
Frank X. GACAv.UNITED STATES.
No. 72-6011.
Supreme Court of the United States
May 7, 1973
On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.
PER CURIAM.
1
Petitioner was convicted in United States District Court of illegal wire-tapping under 18 U.S.C. § 2511. His appeal was dismissed for want of timely prosecution when he failed to pay a $25 filing fee. Petitioner contends that he thought payment of the fee unnecessary because he had been granted leave to appeal in forma pauperis by the District Judge.
2
In his memorandum before this Court, the Solicitor General states that the United States does not oppose a remand to reinstate the appeal in the exercise of this Court's supervisory powers in order to avoid possible injustice and the possibility of collateral attack upon the conviction. In light of this representation, and upon our independent examination of the record, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. Judgment vacated and the case is vacated and remanded with instructions that the appeal be reinstated.
3
It is so ordered.
4
Mr. Justice WHITE and Mr. Justice REHNQUIST dissent.
| 12
|
411 U.S. 778
93 S.Ct. 1756
36 L.Ed.2d 656
John R. GAGNON, Warden, Petitioner,v.Gerald H. SCARPELLI.
No. 71—1225.
Argued Jan. 9, 1973.
Decided May 14, 1973.
Syllabus
Respondent, a felony probationer, was arrested after committing a burglary. He admitted involvement in the crime but later claimed that the adminission was made under duress and was false. The probation of respondent, who was not represented by an attorney, was revoked without a hearing. After filing a habeas corpus petition, he was paroled. The District Court concluded that revocation of probation without hearing and counsel was a denial of due process. The Court of Appeals affirmed. Held:
1. Due process mandates preliminary and final revocation hearings in the case of a probationer under the same conditions as are specified in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, in the case of a parolee. Pp. 781—782.
2. The body conducting the hearings should decide in each individual case whether due process requires that an indigent probationer or parolee be represented by counsel. Though the State is not constitutionally obliged to provide counsel in all cases, it should do so where the indigent probationer or parolee may have difficulty in presenting his version of disputed facts without the examination or cross-examination of witnesses or the presentation of complicated documentary evidence. Presumptively, counsel should be provided where, after being informed of his right, the probationer or parolee requests counsel, based on a timely and colorable claim that he has not committed the alleged violation or, if the violation is a matter of public record or uncontested, there are substantial reasons in justification or mitigation that make revocation inappropriate. Pp. 738—791.
3. In every case where a request for counsel is refused, the grounds for refusal should be stated succinctly in the record. P. 791.
454 F.2d 416, affirmed in part, reversed in part, and remanded.
William A. Platz, Madison, Wis., for petitioner.
William M. Coffey, Milwaukee, Wis., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the related questions whether a previously sentenced probationer is entitled to a hearing when his probation is revoked and, if so, whether he is entitled to be represented by appointed counsel at such a hearing.
2
* Respondent, Gerald Scarpelli, pleaded guilty in July 1965, to a charge of armed robbery in Wisconsin. The trial judge sentenced him to 15 years' imprisonment, but suspended the sentence and placed him on probation for seven years in the custody of the Wisconsin Department of Public Welfare (the Department).1 At that time, he signed an agreement specifying the terms of his probation and a 'Travel Permit and Agreement to Return' allowing him to reside in Illinois, with supervision there under an interstate compact. On August 5, 1965, he was accepted for supervision by the Adult Probation Department of Cook County, Illinois.
3
On August 6, respondent was apprehended by Illinois police, who had surprised him and one Fred Kleckner, Jr., in the course of the burglary of a house. After being apprised of his constitutional rights, respondent admitted that he and Kleckner had broken into the house for the purpose of stealing merchandise or money, although he now asserts that his statement was made under duress and is false. Probation was revoked by the Wisconsin Department on September 1, without a hearing. The stated grounds for revocation were that:
4
'1. (Scarpelli) has associated with known criminals, in direct violation of his probation regulations and his supervising agent's instructions;
5
'2. (Scarpelli) while associating with a known criminal, namely Fred Kleckner, Jr., was involved in, and arrested for, a burglary . . . in Deerfield, Illinois.' App. 20.
6
On September 4, 1965, he was incarcerated in the Wisconsin State Reformatory at Green Bay to begin serving the 15 years to which he had been sentenced by the trial judge. At no time was he afforded a hearing.
7
Some three years later, on December 16, 1968, respondent applied for a writ of habeas corpus. After the petition had been filed, but before it had been acted upon, the Department placed respondent on parole.2 The District Court found that his status as parolee was sufficient custody to confer jurisdiction on the court and that the petition was not moot because the revocation carried 'collateral consequences,' presumably including the restraints imposed by his parole. On the merits, the District Court held that revocation without a hearing and counsel was a denial of due process. 317 F.Supp. 72 (ED Wis.1970). The Court of Appeals affirmed sub nom. Gunsolus v. Gagnon, 454 F.2d 416 (CA7 1971), and we granted certiorari. 408 U.S. 921, 92 S.Ct. 2490, 33 L.Ed.2d 331 (1972).
II
8
Two prior decisions set the bounds of our present inquiry. In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Court held that a probationer is entitled to be represented by appointed counsel at a combined revocation and sentencing hearing. Reasoning that counsel is required 'at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,' Id., at 134, 88 S.Ct., at 257, and that sentencing is one such stage, the Court concluded that counsel must be provided an indigent at sentencing even when it is accomplished as part of a subsequent probation revocation proceeding. But this line of reasoning does not require a hearing or counsel at the time of probation revocation in a case such as the present one, where the probationer was sentenced at the time of trial.
9
Of greater relevance is our decision last Term in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). There we held that the revocation of parole is not a part of a criminal prosecution.
10
'Parole arises after the end of the criminal prosecution, including imposition of sentence. . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.' Id., at 480, 92 S.Ct. at 2600.
11
Even though the revocation of parole is not a part of the criminal prosecution, we held that the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process. Specifically, we held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.
12
Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one.3 Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty.4 Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer, supra.5
III
13
The second, and more difficult, question posed by this case is whether an indigent probationer or parolee has a due process right to be represented by appointed counsel at these hearings.6 In answering that question, we draw heavily on the opinion in Morrissey. Our first point of reference is the character of probation or parole. As noted in Morrissey regarding parole, the 'purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able. . . .' 408 U.S., at 477, 92 S.Ct. at 2598. The duty and attitude of the probation or parole officer reflect this purpose:
14
'While the parole or probation officer recognizes his double duty to the welfare of his clients and to the safety of the general community, by and large concern for the client dominates his professional attitude. The parole agent ordinarily defines his role as representing his client's best interests as long as these do not constitute a threat to public safety.'7
15
Because the probation or parole officer's function is not so much to compel conformance to a strict code of behavior as to supervise a course of rehabilitation, he has been entrusted traditionally with broad discretion to judge the progress of rehabilitation in individual cases, and has been armed with the power to recommend or even to declare revocation.
16
In Morrissey, we recognized that the revocation decision has two analytically distinct components:
17
'The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?' 408 U.S., at 479—480, 92 S.Ct., at 2599.8
18
The parole officer's attitude toward these decisions reflects the rehabilitative rather than punitive focus of the probation/parole system:
19
'Revocation . . . is, if anything, commonly treated as a failure of supervision. While presumably it would be inappropriate for a field agent never to revoke, the whole thrust of the probation-parole movement is to keep men in the community, working with adjustment problems there, and using revocation only as a last resort when treatment has failed or is about to fail.'9
20
But an exclusive focus on the benevolent attitudes of those who administer the probation/parole system when it is working successfully obscures the modification in attitude which is likely to take place once the officer has decided to recommend revocation. Even though the officer is not by this recommendation converted into a prosecutor committed to convict, his role as counsellor to the probationer or parolee is then surely compromised.
21
When the officer's view of the probationer's or parolee's conduct differs in this fundamental way from the latter's own view, due process requires that the difference be resolved before revocation becomes final. Both the probationer or parolee and the State have interests in the accurate finding of fact and the informed use of discretion—the probationer or parolee to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.
22
It was to serve all of these interests that Morrissey mandated preliminary and final revocation hearings. At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing. 408 U.S., at 487, 92 S.Ct., at 2603. The final hearing is a less summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the 'minimum requirements of due process' include very similar elements:
23
'(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyears; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole.' Morrissey v. Brewer, supra, at 489, 92 S.Ct. at 2604.
24
These requirements in themselves serve as substantial protection against ill-considered revocation, and petitioner argues that counsel need never be supplied. What this argument overlooks is that the effectiveness of the rights guaranteed by Morrissey may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess. Despite the informal nature of the proceedings and the absence of technical rules of procedure or evidence, the unskilled or uneducated probationer or parolee may well have difficulty in presenting his version of a disputed set of facts where the presentation requires the examining or cross-examining of witnesses or the offering or dissecting of complex documentary evidence.
25
By the same token, we think that the Court of Appeals erred in accepting respondent's contention that the State is under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases. While such a rule has the appeal of simplicity, it would impose direct costs and serious collateral disadvantages without regard to the need or the likelihood in a particular case for a constructive contribution by counsel. In most cases, the probationer or parolee has been convicted of committing another crime or has admitted the charges against him.10 And while in some cases he may have a justifiable excuse for the violation or a convincing reason why revocation is not the appropriate disposition, mitigating evidence of this kind is often not susceptible of proof or is so simple as not to require either investigation or exposition by counsel.
26
The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients' positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself, aptly described in Morrissey as being 'predictive and discretionary' as well as factfinding, may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual probationer or parolee. In the greater self-consciousness of its quasi-judicial role, the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate than to continue nonpunitive rehabilitation. Certainly, the decisionmaking process will be prolonged, and the financial cost to the State—for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review—will not be insubstantial.11
27
In some cases, these modifications in the nature of the revocation hearing must be endured and the costs borne because, as we have indicated above, the probationer's or parolee's version of a disputed issue can fairly be represented only by a trained advocate. But due process is not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.
28
In so concluding, we are of course aware that the case-by-case approach to the right to counsel in felony prosecutions adopted in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), was later rejected in favor of a per se rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). We do not, however, draw from Gideon and Argersinger the conclusion that a case-by-case approach to furnishing counsel is necessarily inadequate to protect constitutional rights asserted in varying types of proceedings: there are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences.
29
In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In Short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole. The need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases.
30
The differences between a criminal trial and a revocation hearing do not dispose altogether of the argument that under a case-by-case approach there may be cases in which a lawyer would be useful but in which none would be appointed because an arguable defense would be uncovered only by a lawyer. Without denying that there is some force in this argument, we think it a sufficient answer that we deal here, not with the right of an accused to counsel in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime.12
31
We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel. We think, rather, that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness—the touchstone of due process—will require that the State provide at its expense counsel for indigent probationers or parolees.
32
It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.
IV
33
We return to the facts of the present case. Because respondent was not afforded either a preliminary hearing or a final hearing the revocation of his probation did not meet the standards of due process prescribed in Morrissey, which we have here held applicable to probation revocations. Accordingly, respondent was entitled to a writ of habeas corpus. On remand, the District Court should allow the State an opportunity to conduct such a hearing. As to whether the State must provide counsel, respondent's admission to having committed another serious crime creates the very sort of situation in which counsel need not ordinarily be provided. But because of respondent's subsequent assertions regarding that admission, see supra, at 780, we conclude that the failure of the Department to provide respondent with the assistance of counsel should be re-examined in light of this opinion. The general guidelines outlined above should be applied in the first instance by those charged with conducting the revocation hearing.
34
Affirmed in part, reversed in part, and remanded.
35
Mr. Justice DOUGLAS, dissenting in part.
36
I believe that due process requires the appointment of counsel in this case because of the claim that respondent's confession of the burglary was made under duress. See Morrissey v. Brewer, 408 U.S. 471, 498, 92 S.Ct. 2593, 2608, 33 L.Ed.2d 484 (opinion of Douglas, J.).
1
The Court's order placing respondent on probation provided, among other things, that '(i)n the event of his failure to meet the conditions of his probation he will stand committed under the sentence all ready (sic) imposed.' App. 10. The agreement specifying the conditions of the probation, duly executed by respondent, obligated him to 'make a sincere attempt to avoid all acts which are forbidden by law . . ..' App. 12.
2
Respondent was initially paroled to a federal detainer to serve a previously imposed federal sentence arising from another conviction. He was subsequently released from federal custody, but remains a parolee under the supervision of the Department.
3
Despite the undoubted minor differences between probation and parole, the commentators have agreed that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole. See, e.g., Van Dyke, Parole Revocation Hearings in California: The Right to Counsel, 59 Calif.L.Rev. 1215, 1241—1243 (1971); Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55 J.Crim.L.C. & P.S. 175, 198 n. 182 (1964).
4
It is clear at least after Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that a probationer can no longer be denied due process, in reliance on the dictum in Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935), that probation is an 'act of grace.'
5
Petitioner argues, in addition, that the Morrissey hearing requirements impose serious practical problems in cases such as the present one in which a probationer or parolee is allowed to leave the convicting State for supervision in another State. Such arrangements are made pursuant to an interstate compact adopted by all of the States, including Wisconsin. Wis.Stat.Ann. § 57.13 (1957). Petitioner's brief asserts that as of June 30, 1972, Wisconsin had a total of 642 parrolees and probationers under supervision in other States and that incomplete statistics as of June 30, 1971, indicated a national total of 24,693 persons under out-of-state supervision. Brief for Petitioner 21—22.
'Some amount of disruption inevitably attends any new constitutional ruling. We are confident, however, that modification of the interstate compact can remove without undue strain the more serious technical hurdles to compliance with Morrissey. An additional comment is warranted with respect to the rights to present witnesses and to confront and cross-examine adverse witnesses. Petitioner's greatest concern is with the difficulty and expense of procuring witnesses from perhaps thousands of miles away. While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. Nor did we intend to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements.
6
In Morrissey v. Brewer, we left open the question 'whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.' 408 U.S., at 489, 92 S.Ct. at 2604. Since respondent did not attempt to retain counsel but asked only for appointed counsel, we have no occasion to decide in this case whether a probationer or parolee has a right to be represented at a revocation hearing by retained counsel in situations other than those where the State would be obliged to furnish counsel for an indigent.
7
F. Remington, D. Newman, E. Kimball, M. Melli & H. Goldstein, Criminal Justice Administration, Materials and Cases 910—911 (1969).
8
The factors entering into these decisions relate in major part to a professional evaluation, by trained probation or parole officers, as to the overall social readjustment of the offender in the community, and include consideration of such variables as the offender's relationship toward his family, his attitude toward the fulfillment of financial obligations, the extent of his cooperation with the probation or parole officer assigned to his case, his personal associations, and—of course—whether there have been specific and significant violations of the conditions of the probation or parole. The importance of these considerations, some factual and others entirely judgmental, is illustrated by a Wisconsin empirical study which disclosed that, in the sample studied, probation or parole was revoked in only 34.5% of the cases in which the probationer or parolee violated the terms of his release. S. Hunt, The Revocation Decision: A Study of Probation and Parole Agents' Discretion 10 (unpublished thesis on file at the library of the University of Wisconsin) (1964), cited in Brief for Petitioner, Addendum 106.
9
Remington, Newman, Kimball, Melli & Goldstein, supra, n. 7, at 910.
10
See Sklar, supra, n. 3, at 192 (parole), 193 (probation).
11
The scope of the practical problem which would be occasioned by a requirement of counsel in all revocation cases is suggested by the fact that in the mid-1960's there was an estimated average of 20,000 adult felony parole revocations and 108,000 adult probation revocations each year. President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 56 n. 28 (1967).
12
Cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), establishing a juvenile's right to appointed counsel in a delinquency proceeding which, while denominated civil, was functionally akin to a criminal trial. A juvenile charged with violation of a generally applicable statute is differently situated from an already-convicted probationer or parolee, and is entitled to a higher degree of protection. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (the standard of proof in a juvenile delinquency proceeding must be 'proof beyond a reasonable doubt').
| 01
|
411 U.S. 624
93 S.Ct. 1854
36 L.Ed.2d 547
CITY OF BURBANK et al., Appellants,v.LOCKHEED AIR TERMINAL INC. et al.
No. 71—1637.
Argued Feb. 20, 1973.
Decided May 14, 1973.
Richard L. Sieg, Jr., Beverly Hills, Cal., for appellants.
Nicholas C. Yost, Los Angeles, Cal., for the State of California, as amicus curiae, by special leave of Court.
Daniel M. Friedman, Washington, D.C., for the U.S., as amicus curiae, by special leave of Court.
Warren M. Christopher, Los Angeles, Cal., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The Court in Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996, first stated the rule of pre-emption which is the critical issue in the present case. Speaking through Mr. Justice Curtis, it said:
2
'Now the power to regulate commerce, embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation.
3
'. . . Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan or regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.' Id., at 319.
4
This suit brought by appellees asked for an injunction against the enforcement of an ordinance adopted by the City Council of Burbank, California, which made it unlawful for a so-called pure jet aircraft to take off from the Hollywood-Burbank Airport between 11 p.m. of one day and 7 a.m. the next day, and making it unlawful for the operator of that airport to allow any such aircraft to take off from that airport during such periods.1 The only regularly scheduled flight affected by the ordinance was an intrastate flight of Pacific Southwest Airlines originating in Oakland, California, and departing from Hollywood-Burbank Airport for San Diego every Sunday night at 11:30.
5
The District Court found the ordinance to be unconstitutional on both Supremacy Clause and Commerce Clause grounds. 318 F.Supp. 914. The Court of Appeals affirmed on the grounds of the Supremacy Clause both as respects pre-emption and as respects conflict.2 457 F.2d 667. The case is here on appeal. 28 U.S.C. § 1254(2). We noted probable jurisdiction. 409 U.S. 840, 93 S.Ct. 59, 34 L.Ed.2d 78. We affirm the Court of Appeals.
6
The Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. § 1301 et seq., as amended by the Noise Control Act of 1972, 86 Stat. 1234, and the regulations under it, 14 CFR pts. 71, 73, 75, 77, 91, 93, 95, 97, are central to the question of pre-emption.
7
Section 1108(a) of the Federal Aviation Act, 49 U.S.C. § 1508(a), provides in part, 'The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States . . .' By §§ 307(a), (c) of the Act, 49 U.S.C. §§ 1348(a), (c), the Administrator of the Federal Aviation Administration (FAA) has been given broad authority to regulate the use of the navigable airspace, 'in order to insure the safety of aircraft and the efficient utilization of such airspace . . .' and 'for the protection of persons and property on the ground . . ..'3
8
The Solicitor General, though arguing against pre-emption, concedes that as respects 'airspace management' there is pre-emption. That, however, is a fatal concession, for as the District Court found: 'The imposition of curfew ordinances on a nationwide basis would result in a bunching of flights in those hours immediately preceding the curfew. This bunching of flights during these hours would have the twofold effect of increasing an already serious congestion problem and actually increasing, rather than relieving, the noise problem by increasing flights in the period of greatest annoyance to surrounding communities. Such a result is totally inconsistent with the objectives of the federal statutory and regulatory scheme.' It also found '(t)he imposition of curfew ordinances on a nationwide basis would cause a serious loss of efficiency in the use of the navigable airspace.'
9
Curfews such as Burbank has imposed would, according to the testimony at the trial and the District Court's findings, increase congestion, cause a loss of efficiency, and aggravate the noise problem. FAA has occasionally enforced curfews. See Virginians for Dulles v. Volpe, D.C., 344 F.Supp. 573. But the record shows that FAA has consistently opposed curfews, unless managed by it, in the interests of its management of the 'navigable airspace.'
10
As stated by Judge Dooling in American Airlines v. Hempstead, D.C., 272 F.Supp. 226, 230, aff'd, 2 Cir., 398 F.2d 369:
11
'The aircraft and its noise are indivisible; the noise of the aircraft extends outward from it with the same inseparability as its wings and tail assembly; to exclude the aircraft noise from the Town is to exclude the aircraft; to set a ground level decibel limit for the aircraft is directly to exclude it from the lower air that it cannot use without exceeding the decibel limit.'
12
The Noise Control Act of 1972, which was approved October 27, 1972, provides that the Administrator 'after consultation with appropriate Federal, State, and local agencies and interested persons' shall conduct a study of various facets of the aircraft noise problems and report to the Congress within nine months,4 i.e., by July 1973. The 1972 Act, by amending § 611 of the Federal Aviation Act,5 also involves the Environmental Protection Agency (EPA) in the comprehensive scheme of federal control of the aircraft noise problem. Under the amended § 611(b)(1), 86 Stat. 1239, 49 U.S.C. § 1431(b)(1) (1970 ed., Supp. II) FAA, after consulting with EPA, shall provide 'for the control and abatement of aircraft noise and sonic boom, including the application of such standards and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this title.'6 Section 611 (b)(2), as amended, 86 Stat. 1239, 49 U.S.C. § 1431(b)(2) (1970 ed., Supp. II), provides that future certificates for aircraft operations shall not issue unless the new aircraft noise requirements are met.7 Section 611(c)(1), as amended, provides that not later than July 1973 EPA shall submit to FAA proposed regulations to provide such 'control and abatement of aircraft noise and sonic boom' as EPA determines is 'necessary to protect the public health and welfare.' FAA is directed within 30 days to publish the proposed regulations in a notice of proposed rulemaking. Within 60 days after that publication, FAA is directed to commence a public hearing on the proposed rules. Section 611(c)(1). That subsection goes on to provide that within 'a reasonable time after the conclusion of such hearing and after consultation with EPA,' FAA is directed either to prescribe the regulations substantially as submitted by EPA, or prescribe them in modified form, or publish in the Federal Register a notice that it is not prescribing any regulation in response to EPA's submission together with its reasons therefor.
13
Section 611(c)(2), as amended, also provides that if EPA believes that FAA's action with respect to a regulation proposed by EPA 'does not protect the public health and welfare from aircraft noise or sonic boom,' EPA shall consult with FAA and may request FAA to review and report to EPA on the advisability of prescribing the regulation originally proposed by EPA. That request shall be published in the Federal Register; FAA shall complete the review requested and report to EPA in the time specified together with a detailed statement of FAA's findings and the reasons for its conclusion and shall identify any impact statement filed under § 102(2)(C) of the National Environmental Policy Act of 1969,8 83 Stat. 853, 42 U.S.C. § 4332(2)(C), with respect to FAA's action. FAA's action, if adverse to EPA's proposal, shall be published in the Federal Register.
14
Congress did not leave FAA to act at large but provided in § 611(d), as amended, particularized standards:
15
'In prescribing and amending standards and regulations under this section, the FAA shall—
16
'(1) consider relevant available data relating to aircraft noise and sonic boom, including the results of research, development, testing, and evaluation activities conducted pursuant to this Act and the Department of Transportation Act;
17
'(2) consult with such Federal, State, and interstate agencies as he deems appropriate;
18
'(3) consider whether any proposed standard or regulation is consistent with the highest degree of safety in air commerce or air transportation in the public interest;
19
'(4) consider whether any proposed standard or regulation is economically type of aircraft, aircraft engine, apreasonable, technologically practicable, and appropriate for the particular pliance, or certificate to which it will apply; and
20
'(5) consider the extent to which such standard or regulation will contribute to carrying out the purposes of this section.'
21
The original complaint was filed on May 14, 1970; the District Court entered its judgment November 30, 1970; and the Court of Appeals announced its judgment and opinion March 22, 1972—all before the Noise Control Act of 1972 was approved by the President on October 27, 1972. That Act reaffirms and reinforces the conclusion that FAA, now in conjunction with EPA, has full control over aircraft noise, pre-empting state and local control.
22
There is, to be sure, no express provision of pre-emption in the 1972 Act. That, however, is not decisive. As we stated in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447:
23
'Congress legislated here in a field which the States have traditionally occupied. . . . So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. . . . Such a purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. . . . Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. . . . Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. . . . Or the state policy may produce a result inconsistent with the objective of the federal statute.'
24
It is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption. As Mr. Justice Jackson stated, concurring in Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303, 64 S.Ct. 950, 956, 88 L.Ed. 1283:
25
'Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds.
26
They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls.'
27
Both the Senate and House Committees included in their Reports clear statements that the bills would not change the existing pre-emption rule. The House Report stated:9 'No provision of the bill is intended to alter in any way the relationship between the authority of the Federal Government and that of the State and local governments that existed with respect to matters covered by section 611 of the Federal Aviation Act of 1958 prior to the enactment of the bill.' The Senate Report stated:10 'States and local governments are preempted from establishing or enforcing noise emission standards for aircraft unless such standards are identical to standards prescribed under this bill. This does not address responsibilities or powers of airport operators, and no provision of the bill is intended to alter in any way the relationship between the authority of the Federal government and that of State and local governments that existed with respect to matters covered by section 611 of the Federal Aviation Act of 1958 prior to the enactment of the bill.'
28
These statements do not avail appellants. Prior to the 1972 Act, § 611(a) provided that the Administrator 'shall prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom.' 82 Stat. 395. Under § 611(b)(3) the Administrator was required to 'consider whether any proposed standard, rule, or regulation is consistent with the highest degree of safety in air commerce or air transportation in the public interest.' 82 Stat. 395. When the legislation which added this section to the Federal Aviation Act11 was considered at Senate hearings, Senator Monroney (the author of the 1958 Act) asked Secretary of Transportation Boyd whether the proposed legislation would 'to any degree preempt State and local government regulation of aircraft noise and sonic boom.'12 The Secretary requested leave to submit a written opinion, and in a letter dated June 22, 1968, he stated:
29
'The courts have held that the Federal Government presently preempts the field of noise regulation insofar as it involves controlling the flight of aircraft. . . . H.R. 3400 would merely expand the Federal Government's role in a field already preempted. It would not change this preemption. State and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft.'
30
According to the Senate Report,13 it was 'not the intent of the committee in recommending this legislation to effect any change in the existing apportionment of powers between the Federal and State and local governments,' and the Report concurred in the views set forth by the Secretary in his letter.14
31
The Senate version of the 1972 Act as it passed the Senate contained an express pre-emption section.15 But the Senate version never was presented to the House. Instead, the Senate passed, with amendments, the House version;16 the House, also with amendments, then concurred in the Senate amendments.17 The Act as passed combined provisions of both the House and Senate bills on the subject that each had earlier approved. When the blended provisions of the present Act were before the House, Congressman Staggers, Chairman of the House Committee on Interstate and Foreign Commerce, in urging the House to accept the amended version, said:18
32
'I cannot say what industry's intention may be, but I can say to the gentleman what my intention is in trying to get this bill passed. We have evidence that across America some cities and States are trying to pass noise regulations. Certainly we do not want that to happen. It would harass industry and progress in America. That is the reason why I want to get this bill passed during this session.'
33
When the House approved the blended provisions of the bill, Senator Tunney moved that the Senate concur. He made clear19 that the regulations to be considered by EPA for recommendation to FAA would include:
34
'proposed means of reducing noise in airport environments through the application of emission controls on aircraft, the regulation of flight patterns and aircraft and airport operations, and modifications in the number, frequency, or scheduling of flights (as well as) . . . the imposition of curfews on noisy airports, the imposition of flight path alternations in areas where noise was a problem, the imposition of noise emission standards on new and existing aircraft—with the expectation of a retrofit schedule to abate noise emissions from existing aircraft—the imposition of controls to increase the load factor on commercial flights, or other reductions in the joint use of airports, and such other procedures as may be determined useful and necessary to protect public health and welfare.' (Emphasis added.)
35
The statements by Congressman Stagers and Senator Tunney are weighty ones. For Congressman Staggers was Chairman of the House Committee on Interstate and Foreign Commerce which submitted the Noise Control Act and Report; and Senator Tunney was a member of the Senate Committee on Public Works, which submitted the Act and Report.
36
When the President signed the bill he stated that 'many of the most significant sources of noise move in interstate commerce and can be effectively regulated only at the federal level.'20
37
Our prior cases on pre-emption are not precise guidelines in the present controversy, for each case turns on the peculiarities and special features of the federal regulatory scheme in question. Cf. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581; Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852. Control of noise is of course deep-seated in the police power of the States. Yet the pervasive control vested in EPA and in FAA under the 1972 Act seems to us to leave no room for local curfews or other local controls. What the ultimate remedy may be for aircraft noise which plagues many communities and tens of thousands of people is not known. The procedures under the 1972 Act are under way.21 In addition the Administrator has imposed a variety of regulations relating to takeoff and landing procedures and runway preferences. The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U.S.C. § 1348(a), and the protection of persons on the ground. 49 U.S.C § 1348(c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the 'highest degree of safety.' 49 U.S.C. § 1431(d)(3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.
38
If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of FAA in controlling air traffic flow.22 The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded. In 1960 FAA rejected a proposed restriction on jet operations at the Los Angeles airport between 10 p.m. and 7 a.m. because such restrictions could 'create critically serious problems to all air transportation patterns.' 25 Fed.Reg. 1764 1765. The complete FAA statement said:
39
'The proposed restriction on the use of the airport by jet aircraft between the hours of 10 p.m. and 7 a.m. under certain surface wind conditions has also been reevaluated and this provision has been omitted from the rule. The practice of prohibiting the use of various airports during certain specific hours could create critically serious problems to all air transportation patterns. The network of airports throughout the United States and the constant availability of these airports are essential to the maintenance of a sound air transportation system. The continuing growth of public acceptance of aviation as a major force in passenger transportation and the increasingly significant role of commercial aviation in the nation's economy are accomplishments which cannot be inhibited if the best interest of the public is to be served. It was concluded therefore that the extent of relief from the noise problem which this provision might have achieved would not have compensated the degree of restriction it would have imposed on domestic and foreign Air Commerce.'
40
This decision, announced in 1960, remains peculiarly within the competence of FAA, supplemented now by the input of EPA. We are not at liberty to diffuse the powers given by Congress to FAA and EPA by letting the States or municipalities in on the planning. If that change is to be made, Congress alone must do it.
41
Affirmed.
42
Mr. Justice REHNQUIST, with whom Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL join, dissenting.
43
The Court concludes that congressional legislation dealing with aircraft noise has so 'pervaded' that field that Congress has impliedly pre-empted it, and therefore the ordinance of the city of Burbank here challenged is invalid under the Supremacy Clause of the Constitution. The Court says that the 1972 'Act reaffirms and reinforces the conclusion that FAA, now in conjunction with EPA, has full control over aircraft noise, pre-empting state and local control.' Ante, at 633. Yet the House and Senate committee reports explicitly state that the 1972 Act to which the Court refers was not intended to alter the balance between state and federal regulation which had been struck by earlier congressional legislation in this area. The House Report, H.R.Rep.No.92—842, in discussing the general pre-emptive effect of the entire bill, stated:
44
'The authority of State and local government to regulate use, operation, or movement of products is not affected at all by the bill. (The preemption provision discussed in this paragraph does not apply to aircraft. See discussion of aircraft noise below.)' Id., at 8.
The report went on to state specifically:
45
'No provision of the bill is intended to alter in any way the relationship between the authority of the Federal Government and that of State and local governments that existed with respect to matters covered by section 611 of the Federal Aviation Act of 1958 prior to the enactment of the bill.' Id., at 10.
46
The report of the Senate Public Works Committee, S.Rep.No.92 1160, expressed the identical intent with respect to pre-emption:
47
'States and local governments are preempted from establishing or enforcing noise emission standards for aircraft (see American Airlines v. Hempstead, 272 F.Supp. 226 (EDNY 1967)), unless such standards are identical to standards prescribed under this bill. This does not address responsibilities or powers of airport operators, and no provision of the bill is intended to alter in any way the relationship between the authority of the Federal government and that of State and local governments that existed with respect to matters covered by section 611 of the Federal Aviation Act of 1958 prior to the enactment of the bill.' Id., at 10—11.
48
In the light of these specific congressional disclaimers of pre-emption in the 1972 Act, reference must necessarily be had to earlier congressional legislation on the subject.1 It was on the basis of these earlier enactments that the Court of Appeals concluded that Congress had pre-empted the field from state or local regulation of the type that the city of Burbank enacted.
49
The Burbank ordinance prohibited jet takeoffs from the Hollywood-Burbank Airport during the late evening and early morning hours. Its purpose was to afford local residents at least partial relief, during normal sleeping hours, from the noise associated with jet airplanes. The ordinance in no way dealt with flights over the city, cf. American Airlines, Inc. v. Town of Hempstead, 272 F.Supp. 226 (EDNY 1967), aff'd, 398 F.2d 369 (CA2 1968), cert. denied, 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969), nor did it categorically prohibit all jet takeoffs during those hours.
50
Appellees do not contend that the noise produced by jet engines could not reasonably be deemed to affect adversely the health and welfare of persons constantly exposed to it; control of noise, sufficiently loud to be classified as a public nuisance at common law, would be a type of regulation well within the traditional scope of the police power possessed by States and local governing bodies. Because noise regulation has traditionally been an area of local, not national, concern, in determining whether congressional legislation has, by implication, foreclosed remedial local enactments 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). This assumption derives from our basic constitutional division of legislative competence between the States and Congress; from 'due regard for the presuppositions of our enbracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy . . ..' San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959) (emphasis added). Unless the requisite pre-emptive intent is abundantly clear, we should hesitate to invalidate state and local legislation for the added reason that 'the state is powerless to remove the ill effects of our decision, while the national government, which has the ultimate power, remains free to remove the burden.' Penn Dairies, Inc. v. Milk Control Comm'n, 318 U.S. 261, 275, 63 S.Ct. 617, 624, 87 L.Ed. 748 (1943).
51
Since Congress' intent in enacting the 1972 Act was clearly to retain the status quo between the federal regulation and local regulation, a holding of implied pre-emption of the field depends upon whether two earlier congressional enactments, the Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. § 1301 et seq., and the 1968 noise abatement amendment to that Act, 49 U.S.C. § 1431, manifested the clear intent to preclude local regulations, that our prior decisions require.
52
The 1958 Act was intended to consolidate in one agency in the Executive Branch the control over aviation that had previously been diffused within that branch. The paramount substantive concerns of Congress were to regulate federally all aspects of air safety, see, e.g., 49 U.S.C. § 1422 and, once aircraft were in 'flight,' airspace management, see, e.g., 49 U.S.C. § 1348(a). See S.Rep.No.1811, 85th Cong., 2d Sess., 5—6, 13—15 U.S.Code Cong. & Admin. News 1958, p. 3741. While the Act might be broad enough to permit the Administrator to promulgate takeoff and landing rules to avoid excessive noise at certain hours of the day, see 49 U.S.C. § 1348(c), Congress was not concerned with the problem of noise created by aircraft and did not intend to preempt its regulation. Furthermore, while Congress clearly intended to pre-empt the States from regulating aircraft in flight, the author of the bill, Senator Monroney, specifically stated that FAA would not have control 'over the ground space' of airports.2
53
The development and increasing use of civilian jet aircraft resulted in congressional concern over the noise associated with those aircraft. Hearings were held over a period of several years, resulting in a report but no legislation. The report of the House Committee on Interstate and Foreign Commerce, H.R.Rep.No.36, 88th Cong., 1st Sess., shows clearly that the 1958 Act was thought by at least some in Congress neither to pre-empt local legislative action to alleviate the growing noise problem, nor to prohibit local curfews:
54
'Until Federal action is taken, the local governmental authorities must be deemed to possess the police power necessary to protect their citizens and property from the unreasonable invasion of aircraft noise. The wisdom of exercising such power or the manner of the exercise is a problem to be resolved on the local governmental level.
55
'Airports in the United States, as a general rule, are operated by a local governmental authority, either a municipality, a county, or some independent unit. These airport operators are closer, both geographically and politically, to the problem of the conflict of interests between those citizens who have been adversely affected by the aircraft noise and the needs of the community for air commerce. Some airport operators have exercised the proprietary right to restrict in a reasonable manner, the use of any runway by limiting either the hours during which it may be used or the types of civil transport aircraft that may use it.' H.R.Rep.No.36, 88th Cong., 1st Sess., 27.
56
Several years after the conclusion of these hearings, Congress enacted the 1968 noise abatement amendment, 82 Stat. 395, which added § 611 to the 1958 Act, 49 U.S.C. § 1431, and which was the first congressional legislation dealing with the problem of aircraft noise. On its face,3 § 611 as added by the 1968 amendment neither pre-empted the general field of regulation of aircraft noise nor dealt specifically with the more limited question of curfews. The House Committee on Interstate and Foreign Commerce, after reciting the serious proportions of the problem, outlined the type of federal regulation that the Act sought to impose:
57
'The noise problem is basically a conflict between two groups or interests. On the one hand, there is a group who provide various air transportation services. On the other hand there is a group who live, work, and go to schools and churches in communities near airports. The latter group is frequently burdened to the point where they can neither enjoy nor reasonably use their land because of noise resulting from aircraft operations. Many of them derive no direct benefit from the aircraft operations which create the unwanted noise. Therefore, it is easy to understand why they complain, and complain most vehemently. The possible solutions to this demanding and vexing problem which appear to offer the most promise are (1) new or modified engine and airframe designs, (2) special flight operating techniques and procedures, and (3) planning for land use in areas adjacent to airports so that such land use will be most compatible with aircraft operations. This legislation is directed toward the primary problem; namely, reduction of noise at its source.' (Emphasis added.) H.R.Rep.No.1463, 90th Cong., 2d Sess., 4.
58
Far from indicating any total pre-emptive intent, the House Committee observed:
59
'Rather, the committee expects manufacturers, air carriers, all other segments of the aviation community, and State and local civic and governmental entities to continue and increase their contributions toward the common goal of quiet.' Ibid.
60
The Senate Commerce Committee's view of the House bill followed a similar vein:
61
'This investment by the industry is representative of one of the avenues of approach to aircraft noise reduction, that is, the development of aircraft which generate less noise. Another approach to noise reduction, is through the establishment of special flight operating techniques and procedures. The third principal control technique which merits serious consideration is the planning for land use in areas near airports so as to make such use compatible with aircraft operations. This is a matter largely within the province of State and local governments. While all of these techniques must be thoroughly studied and employed, the first order of business is to stop the escalation of aircraft noise by imposing standards which require the full application of noise reduction technology.
62
'A completely quiet airplane will not be developed within the foreseeable future. However, with the technological and regulatory means now at hand, it is possible to reduce both the level and the impact of aircraft noise. Within the limits of technology and economic feasibility, it is the view of the committee that the Federal Government must assure that the potential reductions are in fact realized.' S.Rep. No. 1353, 90th Cong., 2d Sess., 2—3, U.S.Code Cong. & Admin.News 1968, p. 2690.
63
With specific emphasis on pre-emption, the Senate Committee observed:
64
'Relation to Local Government Initiatives
65
'The bill is an amendment to a statute describing the powers and duties of the Federal Government with respect to air commerce. As indicated earlier in this report, certain actions by State and local public agencies, such as zoning to assure compatible land use, are a necessary part of the total attack on aircraft noise. In this connection, the question is raised whether this bill adds or subtracts anything from the powers of State or local governments. It is not the intent of the committee in recommending this legislation to effect any change in the existing apportionment of powers between the Federal and State and local governments.
66
'In this regard, we concur in the following views set forth by the Secretary in his letter to the committee of June 22, 1968:
67
'The courts have held that the Federal Government presently preempts the field of noise regulation insofar as it involves controlling the flight of aircraft. Local noise control legislation limiting the permissible noise level of all overflying aircraft has recently been struck down because it conflicted with Federal regulation of air traffic. American Airlines v. Town of Hempstead, 272 F.Supp. 226 (U.S.D.C., E.D., N.Y., 1966). The court said, at 231, 'The legislation operates in an area committed to Federal care, and noise limiting rules operating as do those of the ordinance must come from a Federal source.' H.R. 3400 would merely expand the Federal Government's role in a field already preempted. It would not change this preemption. State and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft.
68
"However, the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.
69
"Just as an airport owner is responsible for deciding how long the runways will be, so is the owner responsible for obtaining noise easements necessary to permit the landing and takeoff of the aircraft. The Federal Government is in no position to require an airport to accept service by larger aircraft and, for that purpose, to obtain longer runways. Likewise, the Federal Government is in no position to require an airport to accept service by noisier aircraft, and for that purpose to obtain additional noise easements. The issue is the service desired by the airport owner and the steps it is willing to take to obtain the service. In dealing with this issue, the Federal Government should not substitute its judgment for that of the States or elements of local government who, for the most part, own and operate our Nation's airports. The proposed legislation is not designed to do this and will not prevent airport proprietors from excluding any aircraft on the basis of noise considerations.'
70
'Of course, the authority of units of local government to control the effects of aircraft noise through the exercise of land use planning and zoning powers is not diminished by the bill.
71
'Finally, since the flight of aircraft has been preempted by the Federal Government, State and local governments can presently exercise no control over sonic boom. The bill makes no change in this regard.' Id., at 6—7, U.S.Code Cong. § Admin. News 1068, p. 2693.
72
In terms of pre-emption analysis, the most reasonable reading of § 611 appears to be that it was enacted to enable the Federal Government to deal with the noise problem created by jet aircraft through study and regulation of the 'source' of the problem—the mechanical and structural aspects of jet and turbine aircraft design. The authority to 'prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom,' 49 U.S.C. § 1431(a), while a broad grant of authority to the Administrator, cannot fairly be read as prohibiting the States from enacting every type of measure, which might have the effect of reducing aircraft noise, in the absence of a regulation to that effect under this section. The statute established exclusive federal control of the technological methods for reducing the output of noise by jet aircraft, but that is a far cry from saying that it prohibited any local regulation of the times at which the local airport might be available for the use of jet aircraft.
73
The Court of Appeals found critical to its decision the distinction between the local government as an airport proprietor and the local government as a regulatory agency, which was reflected in the views of the Secretary of Transportation outlined in the Senate Report on the 1968 Amendment. Under its reasoning, a local government unit that owned and operated an airport would not be pre-empted by § 611 from totally, or, as here, partially, excluding noisy aircraft from using its facilities, but a municipality having territorial jurisdiction over the airport would be pre-empted from enacting an ordinance having a similar effect. If the statute actually enacted drew this distinction, I would of course respect it. But since we are dealing with 'legislative history,' rather than the words actually written by Congress into law, I do not believe it is of the controlling significance attributed to it by the court below.
74
The pre-emption question to which the Secretary's letter was addressed related to 'the field of noise regulation insofar as it involves controlling the flight of aircraft' (emphasis added), and thus included types of regulation quite different from that enacted by the city of Burbank that would be clearly precluded. See American Airlines, Inc. v. Town of Hempstead, supra. But more important is the highly practical consideration that the Hollywood-Burbank Airport is probably the only nonfederal airport in the country used by federally certified air carriers that is not owned and operated by a state or local government.4 There is no indication that this fact was brought to the attention of the Senate Committee, or that the Secretary of Transportation was aware of it in framing his letter. It simply strains credulity to believe that the Secretary, the Senate Committee, or Congress intended that all airports except the Hollywood-Burbank Airport could enact curfews.
75
Considering the language Congress enacted into law, the available legislative history, and the light shed by these on the congressional purpose, Congress did not intend either by the 1958 Act or the 1968 Amendment to oust local governments from the enactment of regulations such as that of the city of Burbank. The 1972 Act quite clearly intended to maintain the status quo between federal and local authorities. The legislative history of the 1972 Act, quite apart from its concern with avoiding additional pre-emption, discloses a primary focus on the alteration of procedures within the Federal Government for dealing with problems of aircraft noise already entrusted by Congress to federal competence. The 1972 Act set up procedures by which the Administrator of EPA would have a role to play in the formulation and review of standards promulgated by FAA dealing with noise emissions of jet aircraft. But because these agencies have exclusive authority to reduce noise by promulgating regulations and implementing standards directed at one or several of the causes of the level of noise, local governmental bodies are not thereby foreclosed from dealing with the noise problem by every other conceivable method.
76
A local governing body that owns and operates an airport is certainly not, by the Court's opinion, prohibited from permanently closing down its facilities. A local governing body could likewise use its traditional police power to prevent the establishment of a new airport or the expansion of an existing one within its territorial jurisdiction by declining to grant the necessary zoning for such a facility. Even though the local government's decision in each case were motivated entirely because of the noise associated with airports, I do not read the Court's opinion as indicating that such action would be prohibited by the Supremacy Clause merely because the Federal Government has undertaken the responsibility for some aspects of aircraft noise control. Yet if this may be done, the Court's opinion surely does not satisfactorily explain why a local governing body may not enact a far less 'intrusive' ordinance such as that of the city of Burbank.
77
The history of congressional action in this field demonstrates, I believe, an affirmative congressional intent to allow local regulation. But even if it did not go that far, that history surely does not reflect 'the clear and manifest purpose of Congress' to prohibit the exercise of 'the historic police powers of the States' which our decisions require before a conclusion of implied preemption is reached. Clearly Congress could pre-empt the field to local regulation if it chose, and very likely the authority conferred on the Administrator of FAA by 49 U.S.C. § 1431 is sufficient to authorize him to promulgate regulations effectively pre-empting local action. But neither Congress nor the Administrator has chosen to go that route. Until one of them does, the ordinance of the city of Burbank is a valid exercise of its police power.
78
The District Court found that the Burbank ordinance would impose an undue burden on interstate commerce, and held it invalid under the Commerce Clause for that reason. Neither the Court of Appeals nor this Court's opinion, in view of their determination as to pre-emption, reached that question. The District Court's conclusion appears to be based, at least in part, on a consideration of the effect on interstate commerce that would result if all municipal airports in the country enacted ordinances such as that of Burbank. Since the proper determination of the question turns on an evaluation of the facts of each case, see, e.g., Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959), and not on a predicted proliferation of possibilities, the District Court's conclusion is of doubtful validity. The Burbank ordinance did not affect emergency flights, and had the total effect of prohibiting one scheduled commercial flight each week and several additional private flights by corporate executives; such a result can heardly be held to be an unreasonable burden on commerce. Since the Court expresses no opinion on the question, however, I refrain from any further analysis of it.5
1
Burbank Municipal Code § 20—32.1. The ordinance provides an exception for 'emergency' flights approved by the City Police Department.
2
The Court of Appeals held that the Burbank ordinance conflicted with the runway preference order, BUR 7100.5B, issued by the FAA Chief of the Airport Traffic Control Tower at the Hollywood-Burbank Airport. The order stated that '(p)rocedures established for the Hollywood-Burbank airport are designed to reduce community exposure to noise to the lowest practicable minimum. . . .' The Court of Appeals concluded that the ordinance 'interferes with the balance set by the FAA among the interests with which it is empowered to deal, and frustrates the full accomplishment of the goals of Congress.' 457 F.2d 667, 676. In view of our disposition of this appeal under the doctrine of pre-emption, we need not reach this question.
3
Section 307 provides in relevant part as follows:
'(a) The Administrator is authorized and directed to develop plans for and formulate policy with respect to the use of the navigable airspace; and assign by rule, regulation, or order the use of the navigable airspace under such terms, conditions, and limitations as he may deem necessary in order to insure the safety of aircraft and the efficient utilization of such airspace. . . .
(c) The Administrator is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection, and identification of aircraft, for the protection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules as to safe altitudes of flight and rules for the prevention of collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.'
4
Section 7(a) provides:
'The Administrator, after consultation with appropriate Federal, State, and local agencies and interested persons, shall conduct a study of the (1) adequacy of Federal Aviation Administration flight and operational noise controls; (2) adequacy of noise emission standards on new and existing aircraft, together with recommendations on the retrofitting and phaseout of existing aircraft; (3) implications of identifying and achieving levels of cumulative noise exposure around airports; and (4) additional measures available to airport operators and local governments to control aircraft noise. He shall report on such study to the Committee on Interstate and Foreign Commerce of the House of Representatives and the Committees on Commerce and Public Works of the Senate within nine months after the date of the enactment of this Act.'
5
Section 611 of the Federal Aviation Act, 49 U.S.C. § 1431, was added in July 1968. Act of July 21, 1968, Pub.L. 90—411, 82 Stat. 395. Prior to amendment by the 1972 Act, it provided in part that the Administrator, '(i)n order to afford present and future relief and protection to the public from unnecessary aircraft noise and sonic boom, . . . shall prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom.' 49 U.S.C. § 1431(a).
6
Section 611(b)(1), as amended, reads:
'In order to afford present and future relief and protection to the public health and welfare from aircraft noise and sonic boom, the FAA, after consultation with the Secretary of Transportation and with EPA, shall prescribe and amend standards for the measurement of aircraft noise and sonic boom and shall prescribe and amend such regulations as the FAA may find necessary to provide for the control and abatement of aircraft noise and sonic boom, including the application of such standards and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this title. No exemption with respect to any standard or regulation under this section may be granted under any provision of this Act unless the FAA shall have consulted with EPA before such exemption is granted, except that if the FAA determines that safety in air commerce or air transportation requires that such an exemption be granted before EPA can be consulted, the FAA shall consult with EPA as soon as practicable after the exemption is granted.'
7
Subsection (b)(2) provides:
'The FAA shall not issue an original type certificate under section 603(a) of this Act for any aircraft for which substantial noise abatement can be achieved by prescribing standards and regulations in accordance with this section, unless he shall have prescribed standards and regulations in accordance with this section which apply to such aircraft and which protect the public from aircraft noise and sonic boom, consistent with the considerations listed in subsection (d).'
8
Section 102 reads in part as follows:
'The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—. . . (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes.'
Section 611(c)(3) of the Federal Aviation Act, as amended, provides that if FAA files no statement under § 102(2)(C) of the National Environmental Policy Act 'then EPA may request the FAA to file a supplemental report, which shall be published in the Federal Register within such a period as EPA may specify (but such time specified shall not be less than ninety days from the date the request was made), and which shall contain a comparison of (A) the environmental effects (including those which cannot be avoided) of the action actually taken by the FAA in response to EPA's proposed regulations, and (B) EPA's proposed regulations.'
9
H.R.Rep.No.92—842, p. 10.
10
S.Rep.No.92—1160, pp. 10—11, U.S.Code Cong. & Admin.News 1972, p. 4663.
11
See n. 5, supra.
12
Hearing before the Aviation Subcommittee of the Senate Committee on Commerce on S.707 and H.R.3400, Aircraft Noise Abatement Regulation, 90th Cong., 2d Sess., 29.
13
S.Rep.No.1353, 90th Cong., 2d Sess., 6 U.S.Code Cong. & Admin.News 1968, p. 2693.
14
The letter from the Secretary of Transportation also expressed the view that 'the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.' (Emphasis added.) This portion as well was quoted with approval in the Senate Report. Ibid.
Appellants and the Solicitor General submit that this indicates that a municipality with jurisdiction over an airport has the power to impose a curfew on the airport, notwithstanding federal responsibility in the area. But, we are concerned here not with an ordinance imposed by the City of Burbank as 'proprietor' of the airport, but with the exercise of police power. While the Hollywood-Burbank Airport may be the only major airport which is privately owned, many airports are owned by one municipality yet physically located in another. For example, the principal airport serving Cincinnati is located in Kentucky. Thus, authority that a municipality may have as a landlord is not necessarily congruent with its police power. We do not consider here what limits, if any, apply to a municipality as a proprietor.
15
118 Cong.Rec. 35868.
16
Id., at 35886.
17
Id., at 37075.
18
Id., at 37083.
19
Id., at 37317.
20
8 Weekly Comp.Pres.Docs. 1582, 1583 (Oct. 28, 1972).
21
The Administrator has adopted regulations prescribing noise standards which must be met as a condition to type certification for all new subsonic turbojetpowered aircraft. 14 CFR pt. 36. On January 30, 1973, the FAA gave advance notice of proposed rulemaking for the control of fleet noise levels (FNL) of airplanes operating in interstate commerce. 38 Fed.Reg. 2769. (The regulations would not pertain to carriers also operating in foreign commerce.) The proposed rules are designed to limit FNL prior to July 1, 1978, when the covered aircraft become subject to the requirements of 14 CFR pt. 36.
The FNL would be determined as a function of the takeoff and approach noise levels of each airplane in the fleet and the number of takeoffs and landings of the fleet. Until July 1, 1976, the cumulative noise level of any fleet subject to regulation could not exceed the FNL during the previous 90-day base period. In 1976 each fleet would be required to reduce its FNL by 50% of the difference between the original base-period level and the level ultimately required by 14 CFR pt. 36.
22
In order to insure efficient and safe use of the navigable airspace, FAA uses centralized 'flow control,' regulating the number of aircraft that will be accepted in a given area and restricting altitudes and routes that may be flown. Flow control has resulted in the Los Angeles Air Route Traffic Control Center holding aircraft on the ground at the Hollywood-Burbank Airport.
Prior to April 1970, 21 regional Air Route Traffic Control Centers exercised independent control over traffic flow in their areas. In April 1970 FAA established a Central Flow Facility to coordinate flow control throughout the Air Traffic Control system. This change was necessitated because no regional center 'had enough information to make a judgment based on the overall condition of the ATC system. . . .' Fourth Annual Report of the Secretary of Transportation for Fiscal Year 1970.
1
Statements or comments of individual Senators or Representatives on the floor of either House are not to be given great, let alone controlling, weight in ascertaining the intent of Congress as a whole, see e.g., Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474, 41 S.Ct. 172, 179, 65 L.Ed. 349 (1921); McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 494, 51 S.Ct. 510, 512, 75 L.Ed. 1183 (1931); cf. Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 464, 57 S.Ct. 556, 563, 81 L.Ed. 736 (1937). This guidance is particularly appropriate in this case, as the statements of two individual Congressmen quoted in the Court's opinion are at odds with the views expressed in the committee reports.
2
Hearings before the Subcommittee on Aviation of the Senate Committee on Interstate and Foreign Commerce (hereafter Commerce Committee), on S. 3880, Federal Aviation Agency Act, 85th Cong., 2d Sess., 279.
3
'(a) Consultations; standards; rules and regulations.
'In order to afford present and future relief and protection to the public from unnecessary aircraft noise and sonic boom, the Administrator of the Federal Aviation Administration, after consultation with the Secretary of Transportation, shall prescribe and amend standards for the measurement of aircraft noise and sonic boom and shall prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom, including the application of such standards, rules,
and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this subchapter.
'(b) Considerations determinative of standards, rules, and regulations.
'In prescribing and amending standards, rules, and regulations under this section, the Administrator shall—
'(1) consider relevant available data relating to aircraft noise and sonic boom, including the results of research, development, testing, and evaluation activities conducted pursuant to this chapter and chapter 23 of this title;
'(2) consult with such Federal, State, and interstate agencies as he deems appropriate;
'(3) consider whether any proposed standard, rule, or regulation is consistent with the highest degree of safety in air commerce or air transportation in the public interest;
'(4) consider whether any proposed standard, rule, or regulation is economically reasonable, technologically practicable, and appropriate for the particular type of aircraft, aircraft engine, appliance, or certificate to which it will apply; and
'(5) consider the extent to which such standard, rule, or regulation will contribute to carrying out the purposes of this section.
'(c) Amendment, modification, suspension, or revocation of certificate; notice and appeal rights.
'In any action to amend, modify, suspend, or revoke a certificate in which violation (of) aircraft noise or sonic boom standards, rules, or regulations is at issue, the certificate holder shall have the same notice and appeal rights as are contained in section 1429 of this title, and in any appeal to the National Transportation Safety Board, the Board may amend, modify, or reverse the order of the Administrator if it finds that contrl or abatement of aircraft noise or sonic boom and the public interest do not require the affirmation of such order, or that such order is not consistent with safety in air commerce or air transportation.' 49 U.S.C. § 1431.
4
The record is not exactly clear on this point, but it does appear to be the case. Although there are several airports owned by municipalities or other governmental units that are located outside of the boundaries of the units, there does not appear to be any other privately owned airport, at which certified air carriers operate, in the country.
5
Although cited by the Court, this situation is clearly not a Cooley situation, in which the control or aircraft noise 'admit(s) only of one uniform system, or plan of regulation, (which) may justly be said to be of such a nature as to require exclusive legislation by Congress.' Cooley v. Board of Wardens, 12 How. 299, 319 (1852). The court below also held, but by a divided vote, that the Burbank ordinance was invalid because it was in conflict with a clearly articulated federal policy, to wit, a non-mandatory runway preference order of the FAA tower chief at Burbank which requested pilots to use a particular runway at night. The Court does not decide this case on that ground; I see no occasion to express in detail my views on the conflict issue, except to note my doubt as to the correctness of the disposition of that question.
| 910
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411 U.S. 792
93 S.Ct. 1817
36 L.Ed.2d 668
McDONNELL DOUGLAS CORPORATION, Petitioner,v.Percy GREEN.
No. 72—490.
Argued March 28, 1973.
Decided May 14, 1973.
Syllabus
Respondent, a black civil rights activist, engaged in disruptive and illegal activity against petitioner as part of his protest that his discharge as an employee of petitioner's and the firm's general hiring practices were racially motivated. When petitioner, who subsequently advertised for qualified personnel, rejected respondent's re-employment application on the ground of the illegal conduct, respondent filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging violation of Title VII of the Civil Rights Act of 1964. The EEOC found that there was reasonable cause to believe that petitioner's rejection of respondent violated § 704(a) of the Act, which forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory employment conditions, but made no finding on respondent's allegation that petitioner had also violated § 703(a) (1), which prohibits discrimination in any employment decision. Following unsuccessful EEOC conciliation efforts, respondent brought suit in the District Court, which ruled that respondent's illegal activity was not protected by § 704(a) and dismissed the § 703(a)(1) claim because the EEOC had made no finding with respect thereto. The Court of Appeals affirmed the § 704(a) ruling, but reversed with respect to § 703(a)(1), holding that an EEOC determination of reasonable cause was not a jurisdictional prerequisite to claiming a violation of that provision in federal court. Held:
1. A complainant's right to bring suit under the Civil Rights Act of 1964 is not confined to charges as to which the EEOC has made a reasonable-cause finding, and the District Court's error in holding to the contrary was not harmless since the issues raised with respect to § 703(a)(1) were not identical to those with respect to § 704(a) and the dismissal of the former charge may have prejudiced respondent's efforts at trial. Pp. 798—800.
2. In a private, non-class-action complaint under Title VII charging racial employment discrimination, the complainant has the burden of establishing a prima facie case, which he can satisfy by showing that (i) he belongs to a racial minority; (ii) he applied and was qualified for a job the employer was trying to fill; (iii) though qualified, he was rejected; and (iv) thereafter the employer continued to seek applicants with complainant's qualifications. P. 802.
3. Here, the Court of Appeals, though correctly holding that respondent proved a prima facie case, erred in holding that petitioner had not discharged its burden of proof in rebuttal by showing that its stated reason for the rehiring refusal was based on respondent's illegal activity. But on remand respondent must be afforded a fair opportunity of proving that petitioner's stated reason was just a pretext for a racially discriminatory decision, such as by showing that whites engaging in similar illegal activity were retained or hired by petitioner. Other evidence that may be relevant, depending on the circumstances, could include facts that petitioner had discriminated against respondent when he was an employee or followed a discriminatory policy toward Minority employees. Pp. 802—805.
8 Cir., 463 F.2d 337, vacated and remanded.
Veryl L. Riddle, St. Louis, Mo., for petitioner.
Louis Gilden, St. Louis, Mo., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
The case before us raises significant questions as to the proper order and nature of proof in actions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq.
2
Petitioner, McDonnell Douglas Corp., is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until August 28, 19641 when he was laid off in the course of a general reduction in petitioner's work force.
3
Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated.2 As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner's plant for the purpose of blocking access to it at the time of the morning shift change. The District Judge described the plan for, and respondent's participation in, the 'stall-in' as follows:
4
'(F)ive teams, each consisting of four cars would 'tie up' five main access roads into McDonnell at the time of the morning rush hour. The drivers of the cars were instructed to line up next to each other completely blocking the intersections or roads. The drivers were also instructed to stop their cars, turn off the engines, pull the emergency brake, raise all windows, lock the doors, and remain in their cars until the police arrived. The plan was to have the cars remain in position for one hour.
5
'Acting under the 'stall in' plan, plaintiff (respondent in the present action) drove his car onto Brown Road, a McDonnell access road, at approximately 7:00 a.m., at the start of the morning rush hour. Plaintiff was aware of the traffic problems that would result. He stopped his car with the intent to block traffic. The police arrived shortly and requested plaintiff to move his car. He refused to move his car voluntarily. Plaintiff's car was towed away by the police, and he was arrested for obstructing traffic. Plaintiff pleaded guilty to the charge of obstructing traffic and was fined.' 318 F.Supp. 846.
6
On July 2, 1965, a 'lock-in' took place wherein a chain and padlock were placed on the front door of a building to prevent the occupants, certain of petitioner's employees, from leaving. Though respondent apparently knew beforehand of the 'lock-in,' the full extent of his involvement remains uncertain.3
7
Some three weeks following the 'lock-in,' on July 25, 1965, petitioner publicly advertised for qualified mechanics, respondent's trade, and respondent promptly applied for re-employment. Petitioner turned down respondent, basing its rejection on respondent's participation in the 'stall-in' and 'lock-in.' Shortly thereafter, respondent filed a formal complaint with the Equal Employment Opportunity Commission, claiming that petitioner had refused to rehire him because of his race and persistent involvement in the civil rights movement, in violation of §§ 703(a)(1) and 704(a) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e—2(a)(1) and 2000e—3(a).4 The former section generally prohibits racial discrimination in any employment decision while the latter forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment.
8
The Commission made no finding on respondent's allegation of racial bias under § 703(a)(1), but it did find reasonable cause to believe petitioner had violated § 704(a) by refusing to rehire respondent because of his civil rights activity. After the Commission unsuccess-fully attempted to conciliate the dispute, it advised respondent in March 1968, of his right to institute a civil action in federal court within 30 days.
9
On April 15, 1968, respondent brought the present action, claiming initially a violation of § 704(a) and, in an amended complaint, a violation of § 703(a)(1) as well.5 The District Court, 299 F.Supp. 1100, dismissed the latter claim of racial discrimination in petitioner's hiring procedures on the ground that the Commission had failed to make a determination of reasonable cause to believe that a violation of that section had been committed. The District Court also found that petitioner's refusal to rehire respondent was based solely on his participation in the illegal demonstrations and not on his legitimate civil rights activities. The court concluded that nothing in Title VII or § 704 protected 'such activity as employed by the plaintiff in the 'stall in' and 'lock in' demonstrations.' 318 F.Supp., at 850.
10
On appeal, the Eighth Circuit affirmed that unlawful protests were not protected activities under § 704(a),6 but reversed the dismissal of respondent's § 703(a)(1) claim relating to racially discriminatory hiring practices, holding that a prior Commission determination of reasonable cause was not a jurisdictional prerequisite to raising a claim under that section in federal court. The court ordered the case remanded for trial of respondent's claim under § 703(a)(1).
11
In remanding, the Court of Appeals attempted to set forth standards to govern the consideration of respondent's claim. The majority noted that respondent had established a prima facie case of racial discrimination; that petitioner's refusal to rehire respondent rested on 'subjective' criteria which carried little weight in rebutting charges of discrimination; that, though respondent's participation in the unlawful demonstrations might indicate a lack of a responsible attitude toward performing work for that employer, respondent should be given the opportunity to demonstrate that petitioner's reasons for refusing to rehire him were mere pretext.7 In order to clarify the standards governing the disposition of an action challenging employment discrimination, we granted certiorari, 409 U.S. 1036, 93 S.Ct. 522, 34 L.Ed.2d 485 (1972).
12
* We agree with the Court of Appeals that absence of a Commission finding of reasonable cause cannot bar suit under an appropriate section of Title VII and that the District Judge erred in dismissing respondent's claim of racial discrimination under § 703(a)(1). Respondent satisfied the jurisdictional prerequisites to a federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission's statutory notice of the right to sue, 42 U.S.C. §§ 2000e—5(a) and 2000e—5(e). The Act does not restrict a complainant's right to sue to those charges as to which the Commission has made findings of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts. The Commission itself does not consider the absence of a 'reasonable cause' determination as providing employer immunity from similar charges in a federal court, 29 CFR § 1601.30, and the courts of appeal have held that, in view of the large volume of complaints before the Commission and the nonadversary character of many of its proceedings, 'court actions under Title VII are de novo proceedings and . . . a Commission 'no reasonable cause' finding does not bar a lawsuit in the case.' Robinson v. Lorillard Corp., 444 F.2d 791, 800 (CA4 1971); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (CA,5 1971); Flowers v. Local 6, Laborers International Union of North America, 431 F.2d 205 (CA7 1970); Fekete v. United States Steel Corp., 424 F.2d 331 (CA 3 1970).
13
Petitioner argues, as it did below, that respondent sustained no prejudice from the trial court's erroneous ruling because in fact the issue of racial discrimination in the refusal to re-employ 'was tried thoroughly' in a trial lasting four days with 'at least 80%' of the questions relating to the issue of 'race.'8 Petitioner, therefore, requests that the judgment below be vacated and the cause remanded with instructions that the judgment of the District Court be affirmed.9 We cannot agree that the dismissal of respondent's § 703(a)(1) claim was harmless error. It is not clear that the District Court's findings as to respondent's § 704(a) contentions involved the identical issues raised by his claim under § 703(a)(1). The former section relates solely to discrimination against an applicant or employee on account of his participation in legitimate civil rights activities or protests, while the latter section deals with the broader and centrally important question under the Act of whether for any reason, a racially discriminatory employment decision has been made. Moreover, respondent should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the § 703(a)(1) cause of action was properly before the District Court.10 Accordingly, we remand the case for trial of respondent's claim of racial discrimination consistent with the views set forth below.
II
14
The critical issue before us concerns the order and allocation of proof in a private, non-class action challenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 852, 28 L.Ed.2d 158 (1971); Castro v. Beecher, 459 F.2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F.2d 1167 (CA2 1972); Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (ED Va.1968). As noted in Griggs, supra:
15
'Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.
16
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.' Id., 401 U.S., at 430—431, 91 S.Ct., at 853.
17
There are societal as well as personal interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.
18
In this case respondent, the complainant below, charges that he was denied employment 'because of his involvement in civil rights activities' and 'because of his race and color.'11 Petitioner denied discrimination of any kind, asserting that its failure to re-employ respondent was based upon and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on remand is framed by those opposing factual contentions. The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case.12 We now address this problem.
19
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.13 In the instant case, we agree with the Court of Appeals that respondent proved a prima facie case. 463 F.2d 337, 353. Petitioner sought mechanics, respondent's trade, and continued to do so after respondent's rejection. Petitioner, moreover, does not dispute respondent's qualifications14 and acknowledges that his past work performance in petitioner's employ was 'satisfactory.'15
20
The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. We need not attempt in the instant case to detail every matter which fairly could be recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent's participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner's burden of proof at this stage and to meet respondent's prima facie case of discrimination.
21
The Court of Appeals intimated, however, that petitioner's stated reason for refusing to rehire respondent was a 'subjective' rather than objective criterion which 'carr[ies] little weight in rebutting charges of discrimination,' 463 F.2d, at 343. This was among the statements which caused the dissenting judge to read the opinion as taking 'the position that such unlawful acts as Green committed against McDonnell would not legally entitle McDonnell to refuse to hire him, even though no racial motivation was involved . . . .' Id., at 355. Regardless of whether this was the intended import of the opinion, we think the court below seriously underestimated the rebuttal weight to which petitioner's reasons were entitled. Respondent admittedly had taken part in a carefully planned 'stall-in,' designed to tie up access to and egress from petitioner's plant at a peak traffic hour.16 Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it.17 In upholding, under the National Labor Relations Act, the discharge of employees who had seized and forcibly retained an employer's factory buildings in an illegal sit-down strike, the Court noted pertinently:
22
'We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct,—to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer's property . . . Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression.' NLRB v. Fansteel Corp., 306 U.S. 240, 255, 59 S.Ct. 490, 496, 83 L.Ed. 627 (1939).
23
Petitioner's reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner to use respondent's conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the 'stall-in' were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
24
Other evidence that may be relevant to any showing of pretext includes facts as to the petitioner's treatment of respondent during his prior term of employment; petitioner's reaction, if any, to respondent's legitimate civil rights activities; and petitioner's general policy and practice with respect to minority employment.18 On the latter point, statistics as to petitioner's employment policy and practice may be helpful to a determination of whether petitioner's refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (CA10 1970); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 Mich.L.Rev. 59, 91—94 (1972).19 In short, on the retrial respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.
25
The court below appeared to rely upon Griggs v. Duke Power Co., supra, in which the Court stated: 'If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.' 401 U.S., at 431, 91 S.Ct., at 853, 28 L.Ed.2d 158.20 But Griggs differs from the instant case in important respects. It dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Id., at 430, 91 S.Ct., at 853. Respondent, however, appears in different clothing. He had engaged in a seriously disruptive act against the very one from whom he now seeks employment. And petitioner does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification of all those with any past record of unlawful behavior, however remote, insubstantial, or unrelated to applicant's personal qualifications as an employee. Petitioner assertedly rejected respondent for unlawful conduct against it and, in the absence of proof of pretext or discriminatory application of such a reason, this cannot be thought the kind of 'artificial, arbitrary, and unnecessary barriers to employment' which the Court found to be the intention of Congress to remove. Id., at 431, 91 S.Ct., at 853.21
III
26
In sum, respondent should have been allowed to pursue his claim under § 703(a) (1). If the evidence on retrial is substantially in accord with that before us in this case, we think that respondent carried his burden of establishing a prima facie case of racial discrimination and that petitioner successfully rebutted that case. But this does not end the matter. On retrial, respondent must be afforded a fair opportunity to demonstrate that petitioner's assigned reason for refusing to re-employ was a pretext or discriminatory in its application. If the District Judge so finds, he must order a prompt and appropriate remedy. In the absence of such a finding, petitioner's refusal to rehire must stand.
27
The cause is hereby remanded to the District Court for reconsideration in accordance with this opinion.
28
So ordered.
29
Remanded.
1
His employment during these years was continuous except for 21 months of service in the military.
2
The Court of Appeals noted that respondent then 'filed formal complaints of discrimination with the President's Commission on Civil Rights, the Justice Department, the Department of the Navy, the Defense Department, and the Missouri Commission on Human Rights.' 463 F.2d 337 (8 Cir., 1972).
3
The 'lock-in' occurred during a picketing demonstration by ACTION, a civil rights organization, at the entrance to a downtown office building which housed a part of petitioner's offices and in which certain of petitioner's employees were working at the time. A chain and padlock were placed on the front door of the building to prevent ingress and egress. Although respondent acknowledges that he was chairman of ACTION at the time, that the demonstration was planned and staged by his group, that he participated in and indeed was in charge of the picket line in front of the building, that he was told in advance by a member of ACTION 'that he was planning to chain the front door,' and that he 'approved of' chaining the door, there is no evidence that respondent personally took part in the actual 'lock-in,' and he was not arrested. App. 132—133.
The Court of Appeals majority, however, found that the record did 'not support the trial court's conclusion that Green 'actively cooperated' in chaining the doors of the downtown St. Louis building during the 'lock-in' demonstration.' 463 F.2d, at 341. See also concurring opinion of Judge Lay. Id., at 344. Judge Johnsen, in dissent, agreed with the District Court that the 'chaining and padlocking (were) carried out as planned, (and that) Green had in fact given it . . . approval and authorization.' Id., at 348.
In view of respondent's admitted participation in the unlawful 'stall-in,' we find it unnecessary to resolve the contradictory contentions surrounding this 'lock-in.'
4
Section 703(a)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e—2(a) (1), in pertinent part provides:
'It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . ..'
Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e—3(a), in pertinent part provides:
'It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . ..'
5
Respondent also contested the legality of his 1964 discharge by petitioner, but both courts held this claim barred by the statute of limitations. Respondent does not challenge those rulings here.
6
Respondent has not sought review of this issue.
7
All references are to Part V of the revised opinion of the Court of Appeals, 463 F.2d, at 352, which superseded Part V of the court's initial opinion with respect to the order and nature of proof. 463 F.2d 337.
8
Tr. of Oral Arg. 11.
9
Brief for Petitioner 40.
10
The trial court did not discuss respondent's § 703(a)(1) claim in its opinion and denied requests for discovery of statistical materials which may have been relevant to that claim.
11
The respondent initially charged petitioner in his complaint filed April 15, 1968, with discrimination because of his 'involvement in civil rights activities.' App. 7, 8. In his amended complaint, filed March 20, 1969, plaintiff broadened his charge to include denial of employment because of race in violation of § 703(a)(1). App. 27.
12
See original opinion of the majority of the panel which heard the case, 463 F.2d, at 338; the concurring opinion of Judge Lay, id., at 344; the first opinion of Judge Johnsen, dissenting in part, id., at 346; the revised opinion of the majority, id., at 352; and the supplemental dissent of Judge Johnsen, id., at 353. A petition for rehearing en banc was denied by an evenly divided Court of Appeals.
13
The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.
14
We note that the issue of what may properly be used to test qualifications for employment is not present in this case. Where employers have instituted employment tests and qualifications with an exclusionary effect on minority applicants, such requirements must be 'shown to bear a demonstrable relationship to successful performance of the jobs' for which they were used, Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Castro v. Beecher, 459 F.2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F.2d 1167 (CA2 1972).
15
Tr. of Oral Arg. 3; 463 F.2d, at 353.
16
The trial judge noted that no personal injury or property damage resulted from the 'stall-in' due 'solely to the fact that law enforcement officials had obtained notice in advance of plaintiff's (here respondent's) demonstration and were at the scene to remove plaintiff's car from the highway.' 318 F.Supp. 846, 851.
17
The unlawful activity in this case was directed specifically against petitioner. We need not consider or decide here whether, or under what circumstances, unlawful activity not directed against the particular employer may be a legitimate justification for refusing to hire.
18
We are aware that some of the above factors were, indeed, considered by the District Judge in finding under § 704(a), that 'defendant's (here petitioner's) reasons for refusing to rehire the plaintiff were motivated solely and simply by the plaintiff's participation in the 'stall in' and 'lock in' demonstrations.' 318 F.Supp., at 850. We do not intimate that this finding must be overturned after consideration on remand of respondent's § 703(a)(1) claim. We do, however, insist that respondent under § 703(a)(1) must be given a full and fair opportunity to demonstrate by competent evidence that whatever the stated reasons for his rejection, the decision was in reality racially premised.
19
The District Court may, for example, determine, after reasonable discovery that 'the (racial) composition of defendant's labor force is itself reflective of restrictive or exclusionary practices.' See Blumrosen, supra, at 92. We caution that such general determinations, while helpful, may not be in and of themselves controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable reason for refusing to rehire. See generally United States v. Bethlehem Steel Corp., 312 F.Supp. 977, 992 (WDNY 1970), order modified, 446 F.2d 652 (CA2 1971). Blumrosen, supra, n. 19, at 93.
20
See 463 F.2d, at 352.
21
It is, of course, a predictive evaluation, resistant to empirical proof, whether 'an applicant's past participation in unlawful conduct directed at his prospective employer might indicate the applicant's lack of a responsible attitude toward performing work for that employer.' 463 F.2d, at 353. But in this case, given the seriousness and harmful potential of respondent's participation in the 'stall-in' and the accompanying inconvenience to other employees, it cannot be said that petitioner's refusal to employ lacked a rational and neutral business justification. As the Court has noted elsewhere:
'Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust.' Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 L.Ed. 1317 (1951).
| 12
|
411 U.S. 747
93 S.Ct. 1870
36 L.Ed.2d 635
GULF STATES UTILITIES COMPANY, Petitioner,v.FEDERAL POWER COMMISSION et al.
No. 71—1178.
Argued Dec. 5, 1972.
Decided May 14, 1973.
Syllabus
Following petitioner's application under § 204 of the Federal Power Act to respondent Federal Power Commission (FPC) for authorization of a bond issue, two intervening cities opposed the authorization on the ground that the proceeds of the bond issue would be used to finance or refinance certain anticompetitive activities in violation of the antitrust laws, the Federal Power Act, and the Public Utility Holding Company Act of 1935. Section 204(a) empowers the FPC to authorize a security issue only if the issue is found to be for some lawful purpose and compatible with the public interest. The FPC granted the cities' petition to intervene, denied their request for a hearing, and authorized the bond issue, holding that the cities' allegations were irrelevant to a requested authorization of securities under § 204. The Court of Appeals remanded the case for consideration of the cities' claim, holding that, in line with the reasoning in Denver § R.G.W.R. Co. v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed.2d 905, the FPC should have considered the alleged competitive consequences of the bond issue in the § 204 proceeding. Held:
1. The FPC, as a general rule, must consider the anticompetitive consequences of a security issue under § 204. Pp. 756—7621879.
(a) The Federal Power Act did not render antitrust policy irrelevant to the FPC's regulation of the electric power industry. Pp. 757—759.
(b) The fact that the FPC has broad authority under other provisions of the Act to determine whether a public utility's conduct is in the public interest does not mean that the same standard is not equally germane under § 204. P. 759.
(c) Consideration of antitrust policies in the context of § 204 provides a first line of defense against anticompetitive practices that might later become the subject of an antitrust proceeding. Pp. 760.
(d) The FPC, like the Interstate Commerce Commission, has broad regulatory authority, which includes responsibility for considering antitrust policy in discharging its statutory obligations. Cf. Denver & R.G.W.R. Co. v. United States, supra. Pp. 760—762.
2. Though the FPC is not necessarily required to hold a hearing or make a full investigation in all cases, its summary disposition of proffered objections to the security issue requires strict scrutiny by a reviewing court in light of the Commission's obligations to protect the public interest and enforce the antitrust laws. Pp. 763—764.
3. Unexplained summary administrative action is incompatible with the requirements of § 204 and precludes appropriate judicial review. Pp. 763—764.
147 U.S.App.D.C. 98, 454 F.2d 941, affirmed.
Benny Harry Hughes, Beaumont, Tex., for petitioner.
Leo E. Forquer, Washington, D.C., Gen. Counsel for F.P.C. in support of petitioner.
Robert C. McDiarmid, Washington, D.C., for respondent cities.
Howard E. Shapiro, Washington, D.C., for United States, as amicus curiae, supporting respondent cities.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the question whether, when a public utility applies to the Federal Power Commission for authority to issue a security, as the utility is required to do under § 204 of the Federal Power Act, 49 Stat. 850, 16 U.S.C. § 824c,1 the Commission, in passing upon the application, must consider the issue's anticompetitive effect in determining whether it is 'compatible with the public interest,' as that phrase is employed in § 204(a).
2
* In October 1970, Gulf States Utilities Company applied to the Federal Power Commission for authority to issue for cash, on competitive bidding, $30,000,000 first mortgage 30-year bonds for the purpose of refunding part of Gulf's then-outstanding commercial paper and short-term notes.2
3
Gulf, a Texas corporation qualified to do business in Louisiana, is a public utility within the meaning of § 201(e) of the Federal Power Act, 16 U.S.C. § 824(e). It is engaged principally in the business of generating, distributing, and selling electric energy in southeastern Texas and south central Louisiana in an area of approximately 28,000 square miles with a population of about 1,225,000. Gulf sells electric energy at retail in numerous communities in that market and, at the time of the application, was providing electric energy for resale to nine municipal systems, 11 rural electric cooperatives (one serving four municipal systems), and one other utility.
4
The Commission filed notice of Gulf's application. 35 Fed.Reg. 16649 (1970). Thereupon the cities of Lafayette and Plaquemine, Louisiana (Cities) filed a protest and petition to intervene in the proceedings before the Commission and requested a formal hearing on Gulf's application. The Cities alleged that Gulf, in concert with two other investor-owned utilities, Louisiana Power and Light Company (LP ) and Central Louisiana Electric Company (CLECO), had engaged in activities 'apparently violative of the anti-trust laws,' as well as of § 10(h) of the Federal Power Act, 16 U.S.C. § 803(h),3 and of the Public Utility Holding Company Act of 1935, 49 Stat. 838, 15 U.S.C. § 79 et seq.—that these activities, in effect, would be 'financed or refinanced by the bonds here proposed'; and that the utilities' activities were incompatible with the public interest. The Cities opposed the requested authorization 'unless and until Gulf States purges itself of these past violations, or unless the Commission conditions its authorization.'
5
The Cities' claim centered on and stressed a 1968 interconnection and pooling agreement between the Cities, Dow Chemical Company, and Louisiana Electric Cooperative, Inc. (LEC). Dow has a plant near the Cities; the plant has generating capacity that could be used by the other members of the pool as emergency stabilizing capacity. LEC is a generation and transmission electric cooperative financed by the Rural Electrification Administration (REA): it is a super-cooperative composed of 12 electric distribution cooperatives, all located in the area served by the three utilities.
6
In 1964, the REA was considering loans to LEC for the construction of a generation station and transmission lines through which LEC would be able to serve eight of its 12 member organizations. These members were then purchasing their power from the three utilities. The Cities claimed that the three utilities had attempted to destroy LEC, and pointed to a history of 'extraordinary litigation' instituted by the utilities between 1964 and 1970 to prevent the construction of the station and the lines, and in fact delaying that construction for five years. The arrangement proposed by the 1968 agreement would assure a market for the parties' surplus capacity and would coordinate, at substantial savings, the construction of new generators by the parties. The three utilities, correspondingly, would lose substantial business if the 1968 arrangement were carried out. Accordingly, Cities alleged, the three utilities engaged in frivolous and repetitive litigation and launched a public relations and lobbying drive against LEC in order to block the loan and prevent fulfillment of the agreement. Cf. California Transport Motor Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).
7
The REA loan was effected, however, in 1969. But by that time the loan was sufficient only for the generating facilities exclusive of the lines. Cities, Dow, and LEC, then were forced to negotiate with the three utilities for the use of the utilities' lines to transmit their power. Cities contended that the three utilities continued, through the course of the negotiations, to block or limit the pool by agreeing only to provide transmission services to some of the pool members; by refusing to supply transmission facilities between pool members unless the 1968 pooling agreement were canceled; and by demanding that LEC limit its power capacity to the wattage already planned, thus giving the three utilities the exclusive right to supply all further power needs of LEC's 12 cooperatives and precluding further expansion by LEC.
8
Cities, by their proposed intervention, would bring these allegations before the Federal Power Commission in the § 204 proceeding. They claimed that such anti-competitive conduct was properly the subject of a § 204 proceeding and that, under § 204(b), 16 U.S.C. § 824c(b), the Commission may condition its approval of the bond issue accordingly and place restrictions on Gulf's use of the proceeds.
9
By its answer, Gulf denied any violation of the anti-trust laws, of the Federal Power Act, or of the Public Utility Holding Company Act of 1935. It alleged that the purpose of § 204 of the Federal Power Act was 'to prevent unsound financing which might impair the financial integrity of public utilities,' and that even if the allegations of the Cities were accepted as true by the Commission, those matters were 'irrelevant to this application.'
10
By order issued December 3, 1970, 44 F.P.C. 1524, the Commission granted the Cities permission to intervene. It denied their request for a hearing, however, and it authorized the issuance and sale of the bonds. The order recited:
11
'The requested approval of the issuance of the Bonds allow (sic) the Company only to change the form of a portion of its outstanding indebtedness, it does not call for the initiation of any construction or other program by the Company which might effect (sic) the interest of the Petitioners. The alleged violations which petitioners attempt to raise in this proceeding are irrelevant to a requested authorization of securities. There is no relief that the Commission can order in authorizing the issuance of the Bonds for refinancing purposes that would have any effect on the interest of the Petitioners, or solve any of the problems outlined by them.' Id., at 1525.
The Commission specifically found:
12
'The matters asserted and activities alleged in the filed protest and petition to intervene by the Cities of Lafayette and Plaquemine, Louisiana, are irrelevant to the purpose of issuing bonds to refund shortterm indebtedness heretofore authorized by this Commission.' Id., at 1526.
13
The petition for rehearing required by § 313(a) of the Act, 16 U.S.C. § 825l(a), see Department of Fish & Game v. FPC, 359 F.2d 165, 168—169 (CA9), cert. denied, 385 U.S. 932, 87 S.Ct. 293, 17 L.Ed.2d 214 (1966), was filed by the Cities, and was denied.
14
Review was sought pursuant to § 313(b) of the Act, 16 U.S.C. § 825l(b), in the United States Court of Appeals for the District of Columbia Circuit. A unanimous panel of that court disagreed with the Commission and remanded the case to it for consideration of the claims raised by the Cities, sub nom. City of Lafayette, La. v. SEC, 147 U.S.App.D.C. 98, 454 F.2d 941 (1971). The court recognized that the Commission's contention that Gulf's operations 'could have no meaningful relation to an application that only sought to replace short-term notes with long term bonds' was 'not without appeal, and also not without problems.' Id., at 109, 454 F.2d, at 952. The court concluded, however, that the 'cryptic statement of the FPC does not permit us to conclude with reasonable confidence that this was the position taken by the FPC.' Ibid. It observed that the Commission may have respected the Cities' allegations out of hand upon the authority of its earlier decision in Pacific Power & Light Co., 27 F.P.C. 623 (1962), a position the Court of Appeals viewed as untenable under this Court's subsequent decision in Denver & R.G.W.R. Co. v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed.2d 905 (1967).4
15
Inasmuch as the decision of the Court of Appeals raised issues of potential and recurring importance with respect to the authorization of securities by the Federal Power Commission, we granted certiorari. 406 U.S. 956, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). The Commission took the position that the Court of Appeals was in error, but nevertheless opposed the grant.
II
16
The mandate that § 204 of the Federal Power Act, 16 U.S.C. § 824c, imposes upon the Commission is a broad and impressive one. Section 204(a) empowers the Commission to authorize the issue of a security by a public utility only 'if it finds that such issue . . . is for some lawful object, within the corporate purposes of the applicant and compatible with the public interest.' This requires the Commission to inquire into and to be satisfied with the purposes of the issue and its lawfulness. And even if its 'object' is lawful, the necessary inquiry is not ended, for, in addition, the object must be 'compatible with the public interest.'
17
In making its determination under § 204(a), the Commission is given broad powers of inquiry and enforcement. By § 204(b) it may hold hearings on the application, may grant the application 'in whole or in part,' may modify it, and may impose such terms or conditions 'as it may find necessary or appropriate.' After opportunity for hearing, and for good cause shown, it also may supplement, modify, or condition any previous order 'as it may find necessary or appropriate.' Ibid. Section 204(c) grants the Commission authority to specify the purpose to which the proceeds of the security may be applied and the amount allowed for that purpose. While, as Gulf observes, §§ 204(e) and (f) exempt from § 204(a) certain transactions that concern short-term obligations as well as public utilities that are 'organized and operating in a State under the laws of which its security issues are regulated by a State commission,' these exemptions5 do not significantly detract from the sweeping powers and responsibilities of the Commission with respect to public utility security issues generally.
18
We are asked to hold that the Commission's responsibilities under § 204 do not extend to consideration on its part of possible anticompetitive consequences flowing from the issuance of a security. Gulf and the Commission both argue that administrative inquiry under § 204 is to be narrowly confined to the prevention of the issuance of a security that might impair the utility's financial integrity or its ability to perform its public utility service and responsibilities. Exactly this interpretation was placed on § 204 by the Commission in 1962 in Pacific Power & Light Co., 27 F.P.C., at 626.6 Gulf and the Commission contend that antitrust considerations of the kind asserted by the Cities do not fall within the limited scope of § 204 as thus defined, and consideration by the Commission of such broad-ranging issues would be incompatible with the need for relatively fast action by the Commission when it passes upon a proposed security issue. It is said that allegations of anticompetitive conduct properly may be raised and fully considered in other proceeding related to interconnections under § 202 of the Act, 16 U.S.C. § 824a, to dispositions and mergers under § 203, 16 U.S.C. § 824b, to rates and rate-making practices under §§ 205 and 206, 16 U.S.C. §§ 824d and 824e, and to adequacy of service under § 207, 16 U.S.C. § 824f.
19
Although allegations similar to those raised here may, indeed, be made in such other proceedings under the Federal Power Act, we do not regard that fact as determinative of the scope of Commission inquiry under § 204. Instead, the Commission's broad authority to consider anticompetitive and other conduct touching the 'public interest' under the other sections of the Act emphasizes the breadth of its authority under the public interest standard generally and as embodied in § 204. This statute was enacted as part of Tit. II of the Public Utility Act of 1935, 49 Stat. 803, 850. The Act had two primary and related purposes: to curb abusive practices of public utility companies by bringing them under effective control, and to provide effective federal regulation of the expanding business of transmitting and selling electric power in interstate commerce. 49 Stat. 803—804, 847—848; S.Rep. No. 621, 74th Cong., 1st Sess., 1—4, 17—20; H.R.Rep. No. 1318, 74th Cong., 1st Sess., 3, 7—8; Jersey Central Power & Light Co. v. FPC, 319 U.S. 61, 67—68, 63 S.Ct. 953, 956—957, 87 L.Ed. 1258 (1943); see North American Co. v. SEC, 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945 (1946). The Act was passed in the context of, and in response to, great concentrations of economic and even political power vested in power trusts, and the absence of antitrust enforcement to restrain the growth and practices of public utility holding companies. See S.Rep. No. 621, supra, at 11—12; Utility Corporations—Summary Report, 70th Cong., 1st Sess., S. Doc. No. 92, Part 73—A, pp. 47—54; 79 Cong.Rec. 8392 (1935).
20
In order to achieve federal regulation of these and other perceived problems on the operational level of the interstate public utility business, Tit. II was enacted. S.Rep. No. 621, supra, at 17; H.R.Rep. No. 1318, supra, at 7. Part II of Tit. II was denominated the Federal Power Act, 49 Stat. 863. Title II certainly did not preclude the operation of the antitrust laws, and it vested the Federal Power Commission with important and broad regulatory power in the areas described above. See Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973); Meeks, Concentration in the Electric Power Industry: The Impact of Antitrust Policy, 72 Col.L.Rev. 64 (1972). This power clearly carries with it the responsibility to consider, in appropriate circumstances, the anticompetitive effects of regulated aspects of interstate utility operations pursuant to §§ 202 and 203, and under like directives contained in §§ 205, 206, and 207. The Act did not render antitrust policy irrelevant to the Commission's regulation of the electric power industry. Indeed, within the confines of a basic natural monopoly structure, limited competition of the sort protected by the antitrust laws seems to have been anticipated. See Otter Tail Power Co. v. United States, supra, at 373—374, 93 S.Ct., at 1027—1028; California v. FPC, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962); S.Rep.No.621, supra, at 12; Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 5423, 74th Cong., 1st Sess., 157—159 (1935); Summary Report, supra, at 52; Meeks, supra.
21
Nothing in the Act suggests that the 'public interest' standard of § 204 contains any less broad directive than that contained in the other similarly worded and adjacent sections. Under the express language of § 204 the public interest is stressed as a governing factor. There is nothing that indicates that the meaning of that term is to be restricted to financial considerations, with every other aspect of the public interest ignored. Further, there is the section's requirement that the object of the issue be lawful. The Commission is directed to inquire into and to evaluate the purpose of the issue and the use to which its proceeds will be put. Without a more definite indication of contrary legislative purpose, we shall not read out of § 204 the requirement that the Commission consider matters relating to both the broad purposes of the Act and the fundamental national economic policy expressed in the antitrust laws. See FMC v. Svenska Amerika Linien, 390 U.S. 238, 244, 88 S.Ct. 1005, 1009, 19 L.Ed.2d 1071 (1968); California v. FPC, 369 U.S., at 484—485, 82 S.Ct., at 903—904; FCC v. RCA Communications, Inc., 346 U.S. 86, 94, 73 S.Ct. 998, 1004, 97 L.Ed. 1470 (1953); McLean Trucking Co. v. United States, 321 U.S. 67, 80, 64 S.Ct. 370, 377, 88 L.Ed. 544 (1944). Cf. Report of National Power Policy Committee on Public-Utility Holding Companies, in S.Rep.No.621, supra, at 55, 59 (App.). Consideration of antitrust and anticompetitive issues by the Commission, moreover, serves the important function of establishing a first line of defense against those competitive practices that might later be the subject of antitrust proceedings. This is particularly significant in the context of a security issue under § 204, for appropriate consideration at a pre-issue stage may avoid the need later to unravel complex transactions in granting relief under the antitrust laws or other sections of the Federal Power Act.
22
Our conclusion is reinforced by the decision in Denver & R.G.W.R. Co. v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed.2d 905 (1967). In that case the Court concluded that the Interstate Commerce Commission, in performing its duty under § 20a(2) of the Interstate Commerce Act, 49 U.S.C. § 20a(2), to determine whether the issuance of a particular security is 'for some lawful object . . . and compatible with the public interest,' is required, as a general rule, to consider the anticompetitive consequences of the issue. Section 204 of the Federal Power Act was modeled upon § 20a of the Interstate Commerce Act. The initial draft of § 204 was without any broad reference to the public interest. Instead, it identified four specific purposes for which a utility could issue a security (property acquisition; expansion or improvement of facilities or service; discharge or lawful refunding of obligations; and reimbursement of other expenditures for such purposes). H.R. 5423, § 206, 74th Cong., 1st Sess., 108 109; S. 1725, § 206, 74th Cong., 1st Sess., 109—110.7 This provision intentionally was replaced with the broader language now contained in § 204 in order 'to attain greater flexibility and workability than would have been possible under the original section. The language defining the purposes for which securities may be issued has been taken substantially from section 20a of the Interstate Commerce Act, which has proved its usefulness.' S.Rep. No. 621, supra, at 20. There was, thus, a departure from the specific, and a selection of the general. We perceive no reason to view the responsibility placed on the FPC under § 204 differently from the ICC's responsibility under § 20a of the Interstate Commerce Act. Each agency possesses broad regulatory authority. Each is charged with responsibility for considering antitrust policy under its statute. And § 204 and § 20a are virtually identical in language.8 The fact that the ICC has a specific obligation under § 11(a) of the Clayton Act, 15 U.S.C. § 21(a), to enforce § 7 of that Act, as well as a responsibility to advance the National Transportation Policy, did not control the decision in the Denver case, see 387 U.S., at 492—493, 87 S.Ct., at 1759 1760, and the absence of a parallel reference in § 11 of the Clayton Act with respect to the FPC is not to be deemed controlling. Cf. California v. FPC, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962).
III
23
Our conclusion that the FPC must consider anticompetitive aspects of a security issue to which § 204 applies does not end the inquiry, for two subordinate questions remain: whether the agency abused its authority in refusing to hold a hearing on the Cities' objections, and whether, on the facts of this case, the Commission improperly rejected the Cities' allegations out of hand on the ground that they were irrelevant to the security issue for which Gulf sought approval.
24
Gulf asserts that even if the Commission is required to investigate and to consider the Cities' objections under § 204, its refusal to do so here was not error, for the Commission may summarily dispose of objections of this kind without a hearing and extended investigation. Our conclusion that, as a general rule, the Commission must consider anticompetitive consequences of a security issue under § 204 does not mean that the Commission must hold a hearing on objections in every case. Neither does it mean that every allegation must be fully investigated regardless of its facial merit, or that consideration of the allegations may not, in appropriate circumstances, be deferred, or that the major portion of a securities issue may not forthwith be authorized and only the remainder withheld for further study.9 So strict a rule would unduly limit the discretion the Commission must have in order to mold its procedures to the exigencies of the particular case, and would be unrealistic in the light of the nature of a proceeding under § 204. The need for flexibility, planning, and rapid coordinated action is particularly acute with respect to the sale of a security on the market. But where the Commission summarily disposes of proffered objections, or where it exercises its discretion to approve an issue without considering its anticompetitive consequences, 'the reviewing court must closely scrutinize its action in light of the . . . statutory obligations to protect the public interest and to enforce the antitrust laws. Whether or not an abuse of discretion is present must ultimately depend upon the transaction approved, its possible consequences, and any justifications for the deferral' or summary treatment. Denver, 387 U.S., at 498, 87 S.Ct., at 1762. Denver, as we have noted, concerned the ICC, but the foregoing quotation from that opinion has equally forceful application in the FPC context.
25
Gulf also strenuously urges that the Commission in fact did consider Cities' allegations, although summarily, and properly rejected them on their merits as having no relation to the security issue or to any possible future anticompetitive conduct in which Gulf might engage. We have noted above that the Court of Appeals observed, 147 U.S.App.D.C., at 109, 454 F.2d, at 952, that certain aspects of this argument are not without substantial appeal. On the basis of the record before us, we cannot say that, upon consideration of the objections raised by the Cities, the Commission would not be justified in rejecting them summarily. But such summary action may not go unexplained in the face of the statutory obligation placed on the Commission under § 204. The decision the Commission thus far has made provides us with an inadequate explanation of its reasons for disposing of the Cities' objections on their merits, if that in fact is what occurred. We are provided with no explanation of why summary action was warranted, and we are provided with no reason for the Commission's possible conclusion that the objections were meritless. Without more, we are unable 'closely (to) scrutinize' the Commission's action. Nor may me supply an alternative, unstated ground to support an agency's decision if that ground is one that 'the agency alone is authorized to make.' SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943).
26
The decision of the Court of Appeals in remanding the case to the Federal Power Commission is affirmed.
27
Affirmed.
28
Mr. Justice POWELL, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST join, dissenting.
29
This case raises the question whether the Federal Power Commission (the Commission) must consider the possible anticompetitive effect of a public utility's application under § 204 of the Federal Power Act, 16 U.S.C. § 824c, for authority to issue a security. Section 204 provides in relevant part that the Commission shall authorize the issuance of a security
30
'only if it finds that such issue or assumption (a) is for some lawful object, within the corporate purposes of the applicant and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the applicant of service as a public utility and which will not impair its ability to perform that service, and (b) is reasonably necessary or appropriate for such purposes.' 16 U.S.C. § 824c(a) (emphasis supplied).
31
Rejecting the Commission's own structuring of its responsibilities and repudiating its uniform administrative interpretation for more than a third of a century, the Court today finds implicit in § 204's use of the phrase 'the public interest' a duty on the part of the Commission, when acting upon a financing application, to consider any possible anticompetitive effect that may be alleged. As I am persuaded neither by the majority's analysis of the statutory language nor by its discussion of the regulatory context, I remain of the view that the Commission's position is consistent with the statute and I would accord it the deference to which it is entitled.1 Moreover, for the reasons stated below, I believe that the Court's decision is incompatible with the interest of the public in assuring that utilities are enabled to meet their necessary requirements for capital upon the most favorable terms. Accordingly, I dissent.
32
* The present proceedings were initiated on October 12, 1970, when Gulf States Utilities Co. (Gulf States) filed an application under § 204 seeking authority to sell $30 million of first mortgage bonds at competitive bidding. The stated purpose for the issuance was to pay off part of its commercial paper and short-term notes, whose issuance previously had been approved by the Commission.
33
The cities of Lafayette and Plaquemine, Louisiana (the Cities), filed a motion to intervene on November 2, alleging a continuing conspiracy among Gulf States, Louisiana Power & Light Co., and Central Louisiana Electric Co. to block the implementation of an Interconnection and Pooling Agreement which would link the Cities, Dow Chemical Co., and Louisiana Electric Cooperative, Inc. (the Cooperative). The Cooperative had applied in 1964 to the Rural Electrification Administration for a loan to build a generating facility and transmission lines. The Cities contended that Gulf States and its coconspirators had used a number of techniques, including frivolous litigation, to delay approval of the loan until 1969, with the result that the amount of the loan no longer sufficed to build transmission lines as well as a generating plant. The Cooperative was thus forced to rely for transmission services on Gulf States, which, allegedly, would agree to sell them only if the Cooperative would restrict the scope of its operations. The Cities asserted, finally, that the proceeds from the present bond issue would in some way support Gulf State's anticompetitive actions.2
34
On December 3, the Commission granted the Cities' motion to intervene, but declined to hold a hearing on their allegations. The Commission's order explained more fully:
35
'The requested approval of the issuance of the Bonds allow(s) the Company only to change the form of a portion of its outstanding indebtedness, it does not call for the initiation of any construction or other program by the Company which might effect (sic) the interest of the Petitioners. The alleged violations which petitioners attempt to raise in this proceeding are irrelevant to a requested authorization of securities. There is no relief that the Commission can order in authorizing the issuance of the Bonds for refinancing purposes that would have any effect on the interest of the Petitioners, or solve any of the problems outlined by them.' 44 F.P.C. 1524, 1525.
36
In the same order, the Commission authorized the issuance and sale of the bonds. It subsequently modified the order in respects not relevant here and denied a petition for rehearing.
37
Reviewing the Commission's order at the behest of the Cities, the Court of Appeals held that in a § 204 application proceeding the Commission must consider claims of anticompetitive conduct when urged by intervenors. 147 U.S.App.D.C. 98, 454 F.2d 941 (1971). While the court's ruling was flexible in terms, allowing the Commission to reject without a hearing claims which are 'insubstantial or barren' or lack a 'reasonable nexus' with the purpose of the securities issuance, it required an explanation 'supported in the record,' presumably something in addition to that offered by the Commission in this case. 147 U.S.App.D.C., at 110, 454 F.2d, at 953.3
II
38
It is common ground that the Commission has a responsibility to deal with anticompetitive practices in the power industry. Section 10 of the Act, 16 U.S.C. § 803, provides that the Commission may issue licenses to public utilities 'on the following conditions,' one of which is that:
39
'(h) Combinations, agreements, arrangements, or understandings, express or implied, to limit the output of electrical energy, to restrain trade, or to fix, maintain, or increase prices for electrical energy or service are hereby prohibited.' 16 U.S.C. § 803(h).
40
The question before the Court, then, is not whether the Commission has responsibility, but how and when it shall exercise it.
41
Stated abstractly, the Commission's position is that the most sensible method of regulating anticompetitive conduct is to focus on the conduct itself rather than on the means by which it may possibly be financed. The Commission acknowledges a duty to scrutinize allegedly anticompetitive behavior in proceedings: to order an interconnection, § 202 of the Act, 16 U.S.C. § 824a; to approve an acquisition or merger, § 203 of the Act, 16 U.S.C. § 824b; to review rates, §§ 205 and 206 of the Act, 16 U.S.C. §§ 824d and 824e; and to review a charge of unduly discriminatory rates or practices, § 205 of the Act, 16 U.S.C. § 824d, or of inadequate service, § 207 of the Act, 16 U.S.C. § 824f. Additionally, the Commission may investigate unlawful conduct upon a complaint by '(a)ny person, State, municipality, or State commission,' § 306 of the Act, 16 U.S.C. § 825e, or on its own motion, § 307 of the Act, 16 U.S.C. § 825f. Indeed, upon the complaint of the respondent Cities, the Commission is presently investigating the conduct at issue here. The Cities of Lafayette and Plaquemine, Louisiana v. Gulf State Utilities Co., F.P.C.Doc. No. E—7676.4
42
Given its broad direct authority and its undertaking to investigate allegations of anticompetitive behavior in exercising that authority, the Commission does not think it necessary or appropriate to convert § 204 into an allpurpose sword.5 As the Court of Appeals recognized, there may be no nexus or only a very weak one between the issuance of a security and alleged anticompetitive conduct and, in any event, the charges may be unfounded. It is no answer, in the Commission's view, to say that nexus and merit must be determined on the facts of each case because the process of investigating the allegations will delay the financing and often frustrate the utilities' efforts to obtain a favorable price for their securities.
43
The Commission is properly sensitive to the complexities and subtleties of raising vast sums of money in the financial markets.6 Utility financing normally is accomplished through competitive bidding participated in by a relatively small number of national investment firms which specialize in the purchase from issuers and the wholesaling of utility securities. The market is highly competitive and is particularly sensitive to uncertainties. The maintainance of an orderly market, with dependable marketing timetables, is essential to the financing process and to favorable decisions by the investment bankers as to rates and other terms. It is settled practice to 'bring an issue to market' pursuant to a carefully structured time schedule. When favorable market conditions are observed or anticipated, this time schedule is compressed usually within a period from 45 to 90 days. The longer the lead time is extended and uncertainties injected into the process, the greater the risk of market change or re-evaluation with a resulting adverse effect on the cost of capital and, in the end, on the cost of service to the public. Indeed, the public has a double interest in this process. Apart from the ultimate impact on rates which may be occasioned by disruption of the financing process, the utilities may simply be unable to keep pace with the burgeoning public demand for electric energy.7
44
Both the delicacy of financing and the availability of alternative means for regulating anticompetitive conduct, then, strongly support the Commission's interpretation of the Act. Nor does anything in the legislative history of § 204 require a contrary conclusion.8 The Senate Report states straightforwardly:
45
'Control over the capitalization of operating utilities is plainly an essential means of safeguarding the public against the unsound financial practices which make impossible the proper and most economical performance of public-utility functions.' S.Rep.No. 621, 74th Cong., 1st Sess., 50 (1935) (emphasis supplied).
46
And in companion legislation entrusting to the Securities and Exchange Commission (SEC) the responsibility to regulate the issuance of securities by public utility holding companies, Congress declined to require the SEC to investigate anticompetitive conduct, at least in the ordinary case.9 Even apart from its relevance to congressional purpose, the absence of a requirement for such an investigation when a public utility holding company seeks authorization to issue a security supports the Commission's prudent judgment to accord like treatment to applications from operating utilities.
47
The securities of public utility holding companies compete in the financial markets with the securities of public utility operating companies. It makes little sense, especially in construing companion legislation applicable to the same industry, to construe the term 'public interest' when applied to the operating companies to mean something different, and to impose a more burdensome procedure, than when applied to utilities which are within a holding company system.10 Yet, this will be the bizarre result of today's decision by this Court.
III
48
The Court rests its decision in part on Denver & R.G.W.R. Co. v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed.2d 905 (1967), a case involving the issuance of a controlling stock interest in a carrier regulated by the Interstate Commerce Commission (ICC). It my view, that case falls far short of being a persuasive precedent. The transaction under consideration there was a proposed issuance of common stock by the Railway Express Agency (REA). Approximately 2,000,000 shares of REA stock were held exclusively by railroads, each of which was obligated to offer its shares to the others before selling them to outsiders. REA also was authorized to issue 500,000 shares to whomever it wished, and it entered into an agreement to sell such shares to Greyhound on the condition that Greyhound would offer to purchase an additional 1,000,000 shares from present stockholders, the offer to remain open for 60 days.
49
As required by § 20a of the Interstate Commerce Act, 49 U.S.C. § 20a, REA applied to the ICC for authorization to issue the 500,000 shares. Under the terms of that section, the ICC may grant authorization 'only if it finds that such issue . . . is for some lawful object within (the applicant's) corporate purposes, and compatible with the public interest . . ..' 49 U.S.C. § 20a(2). The ICC authorized the issue without granting a hearing on an intervenor's claim that issuance to Greyhound would give it 'control' over REA, or, at a minimum, would lead to a lessening of competition in the freight transportation market. On review in this Court, the ICC argued that its responsibility under § 20a was limited to protecting against financial manipulation, but that even if it did have an obligation to consider 'control' and 'anticompetitive' effects of the issuance, it could properly defer such consideration until the expiration of Greyhound's offer to purchase a large additional portion of REA's outstanding stock. 387 U.S., at 491—492, 87 S.Ct., at 1758—1759.
50
In addressing the ICC's first contention, the Court gave scant attention to the legislative history of § 20a. After noting that an earlier version of what was to become the Interstate Commerce Act 'led to a study which condemned as a 'public evil' intercorporate holdings of railroad stock,' id., at 492 n. 4, 87 S.Ct., at 1759, the opinion shifted focus:
51
'Even if Congress' primary concern was to prevent (fiscal) manipulation, the broad terms 'public interest' and 'lawful object' negate the existence of a mandate to the ICC to close its eyes to facts indicating that the transaction may exceed limitations imposed by other relevant laws.' Id., at 492, 87 S.Ct., at 1759.
52
One of the ICC's responsibilities, the Court found, was to consider possible control and anticompetitive consequences, a responsibility deriving specifically from § 5 of the Interstate Commerce Act, 49 U.S.C. § 5, and from § 11 of the Clayton Act, 15 U.S.C. § 21. Under § 5, any conjoining of two or more carriers, either by merger or by transfer of a controlling interest of stock, must be submitted for approval to the ICC, whose approval confers antitrust immunity. Section 11 of the Clayton Act grants to the ICC authority to enforce compliance with the antitrust provisions of § 7 of the same Act, 15 U.S.C. § 18, which prohibit the acquisition by one corporation of the stock or the assets of another where 'the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.' On the facts before it, the Court saw no abuse of discretion in the ICC's decision to postpone consideration of possible control of REA by Greyhound until the expiration of Greyhound's 60-day offer, but held it an abuse of discretion to defer consideration of a possible § 7 violation.
53
Section 20a of the Interstate Commerce Act, interpreted in Denver, was, as the majority points out, the model for § 204 of the Federal Power Act.11 But this tie by no means requires that the two sections be given identical constructions.12 The Denver case involved a different statute and regulatory framework, with a different administrative history.13 Moreover, the transaction involved in Denver, Greyhound's purchase of stock in a regulated carrier, was arguably a per se violation of the antitrust laws: the effect of the acquisition might have been 'substantially to lessen competition, or to tend to create a monopoly' in violation of § 7 of the Clayton Act. As indicated above, the legislative history of the Interstate Commerce Act showed particular concern with 'intercorporate holdings of railroad stock.' The immediacy of the antitrust issue and the obligation imposed by § 5 on the ICC with respect to Clayton Act violations justified the Court in overriding the ICC's decision not to address the issue.
54
In sum, Denver has little precedential weight in a case under the Federal Power Act, especially where the transaction does not involve on its face an arguable violation of the antitrust laws.
IV
55
I return now to the facts in this case. The relationship between Gulf States' proposal to sell bonds for cash on the open market and the anticompetitive activities alleged by the Cities is, at best, an attenuated one. Indeed, the Cities do not claim that the issuance itself will have an anticompetitive effect. Nor do they claim that the simple refunding of obligations will have such an effect. Their assertion of a relationship barely goes beyond a bald insistence that the anticompetitive conduct alleged will be 'financed or refinanced by the bonds here proposed.' Brief for Respondent Cities 9. Their focus consistently has been not so much on the uses to which the proceeds from the bonds will be put as on the conditions which the Commission might impose on their issuance. Indeed, the Commission believes that the lack of a substantial relationship between the Cities' allegations and petitioner's bond issue is characteristic of the lack of nexus between § 204 financing proposals generally and anticompetitive conduct by utilities.14
56
This, then, is a particularly unlikely case in which to force the Commission to investigate allegations of anticompetitive conduct. The Court apparently considers that the Cities' claim of anticompetitive conduct is at least colorably relevant to the proposed refinancing. If so, it is unlikely that any claim can be found wholly irrelevant. On the basis of today's precedent, the only justification reasonably open to the Commission for refusing to consider allegations of anticompetitive conduct will be that the allegations themselves are patently false.
57
If the field of inquiry is, as the Cities insist, all of a utility's proposed actions and all of its past actions as they reflect on its proposed actions, it should be no difficult task for an intervenor to force a hearing and findings of fact. As the present case amply demonstrates, the questions of fact may be complicated ones unsuited to summary adjudication. If the Commission finds no anticompetitive conduct, the intervenor will remain free to seek judicial review of the Commission's findings, and thereby cause further delay.
58
In converting a special-purpose proceeding into a general-purpose one, the Court renounces an administrative interpretation of § 204 founded on the practicalities of utility financing and regulation.15 Although other established means are available for policing anticompetitive conduct,16 the Court imposes fresh and ill-defined obstacles to the necessary raising of capital by an industry that needs an expeditious and dependable regulatory process. And, finally, in the name of the 'public interest,' it ignores the critical fact that mandating a prolonged factfinding process will preclude the Commission from vindicating those aspects of the public interest peculiarly implicated by financing proposals.
59
I would uphold the Commission and would reverse the decision of the Court of Appeals.
1
'§ 824c. Issuance of securities; assumption of liabilities; filing duplicate reports with Securities and Exchange Commission.
'(a) No public utility shall issue any security . . . unless and until, and then only to the extent that, upon application by the public utility, the Commission by order authorizes such issue . . .. The Commission shall make such order only if it finds that such issue . . . (a) is for some lawful object, within the corporate purposes of the applicant and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the applicant of service as a public utility and which will not impair its ability to perform that service, and (b) is reasonably necessary or appropriate for such purposes. . . .
'(b) The Commission, after opportunity for hearing, may grant any application under this section in whole or in part, and with such modifications and upon such terms and conditions as it may find necessary or appropriate, and may from time to time, after opportunity for hearing and for good cause shown, make such supplemental orders in the premises as it may find necessary or appropriate, and may by any such supplemental order modify the provisions of any previous order as to the particular purposes, uses, and extent to which, or the conditions under which, any security so theretofore authorized or the proceeds thereof may be applied, subject always to the requirements of subsection (a) of this section.
'(c) No public utility shall, without the consent of the Commission, apply any security or any proceeds thereof to any purpose not specified in the Commission's order, or supplemental order, or to any purpose in excess of the amount allowed for such purpose in such order, or otherwise in contravention of such order.'
2
Gulf, in its Securities and Exchange Commission registration statement for the bonds, stated that the proceeds received from the notes to be refinanced had been used 'in connection with the Company's construction program and for other corporate purposes.' App. 162. The notes themselves had been issued upon the authority of an uncontested order in FPC Docket E 7509. The Commission in that proceeding authorized a total of $80,000,000 in short-term debt. Only $55,000,000 of this was outstanding at the time of Gulf's bond authorization proceeding. Thus, apart from the bond issue, Gulf could have borrowed another $25,000,000 in short-term credit without further Commission authorization.
3
'Combinations, agreements, arrangements, or understandings, express or implied, to limit the output of electrical energy, to restrain trade, or to fix, maintain, or increase prices for electrical energy or service are hereby prohibited.'
4
Cities also opposed an application of LP for approval by the Securities and Exchange Commission of bond and stock issues, the proceeds of which were to be used to repay short-term obligations and for other corporate purposes. Cities contended that the proceeds of these issues would be used for the construction of facilities that would further the unlawful objectives of LP , Gulf, and CLEC, and asked that approval by the SEC be conditioned on
cessation of the illegal activities and the establishment of a program to remedy the damage already done.
The jurisdiction of the SEC in this instance was based on §§ 6 and 7 of the Public Utility Holding Company Act of 1935, 15 U.S.C. §§ 79f and 79g, which are part of Tit. I of the Public Utility Act of 1935, 49 Stat. 803, 814—817. Sections 6 and 7 contain a number of requirements that must be met for SEC approval of a security issue. The most relevant of these is in § 7(d), which requires that the SEC 'shall permit a declaration . . . to become effective unless the Commission finds that—. . . (6) the terms and conditions of the issue or sale of the security are detrimental to the public interest or the interest of investors or consumers.'
The SEC refused to entertain the Cities' protest, concluding that its authority under § 7(d)(6) related solely to the terms and conditions of the security to be issued, and did not extend to collateral and unrelated controversies in which LP might be engaged. The Cities petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the SEC orders, and the matter was consolidated with the present case. The Court of Appeals affirmed the SEC orders, but remanded Gulf's case to the FPC. It explained this diverse treatment as follows:
'Where an agency has some regulatory jurisdiction over operations, it must consider whether there is a reasonable nexus between the matters subject to its surveillance and those under attack on anticompetitive grounds. But the general doctrine requiring an agency to take account of antitrust considerations does not extend to a case like the one before us where the antitrust problem arises out of operations of the regulated company (past and projected) and the agency, here the SEC, has not been given any regulatory jurisdiction over operations of the company. The SEC has no jurisdiction over operations and stands in a different posture from the FPC which, as we have already noted, has regulatory jurisdiction over operations in view of its authority, inter alia, to direct utilities to interconnect on reasonable terms, or to prohibit a utility from discriminating in rates and facilities against its municipal customers' 147 U.S.App.D.C. 98, 112—113, 454 F.2d 941, 955—956 (emphasis in original).
5
These exemption provisions have no application to Gulf's security issue challenged by the Cities here.
6
Cf., however, Black Hills Power & Light Co., 28 F.P.C. 1121 (1962), and 31 F.P.C. 1605 (1964).
7
'Sec. 206(a). No public utility shall issue any security, or assume any obligation or liability as guarantor, indorser, surety, or otherwise in respect of any security of another person, unless and until, and then only to the extent that, upon application by the public utility, the Commission by order authorizes such issue or assumption of liability. The Commission shall make such order only if it finds that such issue or assumption of liability is for one or more of the following purposes and no others, and is reasonably necessary or appropriate for such purpose or purposes; the acquisition of property; the construction, completion, extension or improvement of the facilities or service of the public utility; the discharge or lawful refunding of its obligations; and the reimbursement of moneys actually expended from sources other than the issue of securities for any of the aforesaid purposes in cases where the applicant shall have kept its accounts and vouchers for such expenditures in such manner as to enable the Commission to ascertain the amount of moneys so expended and the purpose for which such expenditure was made.'
The foregoing was the Senate version. Except for one spelling and two punctuational differences, the House version was identical.
8
The FPC has so recognized. Pacific Power & Light Co., 27 F.P.C. 623, 627 (1962).
9
The Court of Appeals meticulously outlined various options available to the Commission. 147 U.S.App.D.C., at 110—111, 454 F.2d, at 953—954.
1
The interpretation is entitled to great deference:
'When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. 'To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.' Unemployment Compensation Comm. v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136.' Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).
2
It was stated in petitioner's brief and was not challenged, that the Commission records fail to show any other like petition to intervene in a financing application under § 204 since its enactment in 1935. The remedy which intervenors are seeking to establish is a new one not heretofore deemed necessary or appropriate by anyone. Brief for Petitioner 26.
3
One would have thought that by its use of the phrase 'irrelevant to a requested authorization of securities,' 44 F.P.C. 1524, 1525, the Commission had already found—to use the language of the court—that the claims lacked a 'reasonable nexus' with the purpose of the securities issuance.
4
Nor does the Commission have exclusive jurisdiction over antitrust violations by utilities. Antitrust suits may be brought by private parties or by the Antitrust Division of the Justice Department and afford other means of relief.
5
In Pacific Power & Light Co., 27 F.P.C. 623 (1962), the Commission took the same position under analogous circumstances. There, the Commission approved a proposed issuance of securities to fund construction of a politically controversial transmission line, stating:
'The plain purpose of Section 204 is to prevent the issuance of securities which might impair the company's financial integrity or its ability to perform its public utility responsibilities.' Id., at 626.
6
The Commission has recognized the importance of expedition and adherence to time schedules in the administration of § 204 of the Act:
'It should also be observed that procedures for considering security issues must be expeditious if, in view of changing marketing conditions, utilities are to be able to raise the money needed to carry out their responsibilities. . . .' Pacific Power and Light Co., Id., at 629.
7
Prof. Priest has commented on the urgency of new capital for the electric industry:
'Since World War II, the problem of new capital has been, and will continue to be, compellingly urgent for public utility managements.' A. Priest, 1 Principles of Public Utility Regulation 451 (1969). After describing the 'spectacular' growth of the electric utility industry, Prof. Priest compared the urgency of access to the capital markets of utilities with industrial enterprises:
'(T)he new capital requirements of the utility industry in the next ten years will call for extraordinary effort. The obvious reasons are (1) that regulated public utilities literally cannot produce as much cash through retained earnings as unregulated industrial enterprises and (2) that the utilities, in any event, need a much larger investment per dollar of annual revenue than the characteristic industrial.' Id., at 452.
It is stated in petitioner's brief, and not questioned, that in 1971, 43 applications were filed with the Commission covering the issuance of nearly.$1.8 billion of securities. Brief for Petitioner 24.
8
Section 204 was enacted as part of Tit. II of the Public Utility Act of 1935. Title II amended the Federal Water Power Act and redesignated it the Federal Power Act.
9
The Public Utility Holding Company to applications from operating utilities. Utility Act of 1935. See n. 8, supra. Under § 7(d)(6) of the Public Utility Holding Company Act, the SEC is directed to disapprove an issue of securities if its terms and conditions are 'detrimental to the public interest or the interest of investors or consumers.' 15 U.S.C. § 79g(d)(6). The SEC has interpreted this language as not requiring it to investigate alleged anticompetitive conduct, and applied this interpretation in an aspect of this litigation involving a substantially identical challenge by these same Cities to a proposed issuance of securities by Louisiana Power & Light Co., a public utility holding company which allegedly conspired with Gulf States. See ante, at 754—755 n. 4. The SEC rejected the Cities' protests as pertaining to 'collateral and unrelated controversies,' 147 U.S.App.D.C., at 103, 454 F.2d, at 946, and was upheld by the Court of Appeals. Id., at 112, 454 F.2d, at 955.
10
Further evidence of congressional intent can be gleaned from the fact that Congress exempted from scrutiny under § 204 securities of 'a public utility organized and operating in a State under the laws of which its security issues are regulated by a State commission.' § 204(f) of the Act, 16 U.S.C. § 824c(f). At the time of the Act, 32 States regulated the issuance of utility company securities. 79 Cong.Rec. 10378 (1935). Had Congress intended to subject securities issues to antitrust screening, it would not, presumably, have established the exception.
11
The Senate Report indicated that § 204 'follows section 20a of the Interstate Commerce Act in defining the conditions under which such authorization is to be given, the Commission's power to issue orders and the duty of the public utilities to comply with such orders.' S.Rep.No. 621, 74th Cong., 1st Sess., 50 (1935).
12
One can hardly suppose that Congress in 1935 specifically intended to borrow the words of § 20a as they would be construed by this Court in 1967. Congress borrowed the language as it was then understood, because it had 'proved its usefulness.' Id., at 20.
Moreover, Congress departed from the Interstate Commerce Act model when it established an exception for state-regulated securities, see n. 10, supra, an exception which is not found in the Interstate Commerce Act.
13
No less important are the practical differences between utility and railroad financing. Because for several decades the railroads have contracted rather than expanded facilities and services, they have for the most part been able to meet their capital needs from retained earnings and equipment trust financing without resorting to the national markets for additional capital:
'Railroads may not enlarge their trackage significantly and may continue to rely largely on internal resources and the ubiquitous equipment trust to finance additional and more efficient rolling stock. But the electric, natural gas, communications, and water industries, as well as the airlines, must go to the investment fraternity for staggering amounts.' Priest, supra, n. 7, at 451.
14
It is worthy of note that a transaction between two public utilities resembling the transaction proposed in Denver & R.G.W.R. Co. would be submitted to the Commission, not under § 204, but under § 203, which provides in pertinent part that:
'(a) No public utility shall . . . purchase, acquire, or take any security of any other public utility, without first having secured an order of the Commission authorizing it to do so.' 16 U.S.C. § 824b.
In passing on an application under § 203, the Commission would investigate charges of anticompetitive practices. See supra, at 768. Thus the specific problem addressed by the Court in Denver would not arise under § 204.
15
I would not foreclose the possibility that the Commission should consider in the context of a § 204 application an allegation that the issuance of the security was itself an antitrust violation. But see n. 14, supra, The present case is not remotely of this type.
16
See n. 4, supra.
| 78
|
411 U.S. 693
93 S.Ct. 1785
36 L.Ed.2d 596
David MOOR et al., Petitioners,v.COUNTY OF ALAMEDA et al.
No. 72—10.
Argued Feb. 27, 1973.
Decided May 14, 1973.
Rehearing Denied June 18, 1973.
See 412 U.S. 963, 93 S.Ct. 2999.
Syllabus
Petitioners Moor and Rundle brought damages actions in the District Court against respondents, several law enforcement officers and Alameda County. Against the County they alleged federal causes of action under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1988, and pendent state claims under the state tort claims statute, the federal, as well as the state, causes of action being grounded on the theory that the County was vicariously liable under state law for the officers' acts. Both petitioners alleged federal jurisdiction under 28 U.S.C. § 1343 and Moor, additionally, on diversity grounds. The County moved to dismiss in each case, contending that, as to the Civil Rights Act claims, it was not a suable 'person' under Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; that, absent a claim against it as to which there exists an independent basis of federal jurisdiction, application of the pendent jurisdiction doctrine with respect to the state law claims would be inappropriate; and that in Moor's suit it was not a 'citizen' for federal diversity purposes. The District Court granted the motions to dismiss, and the Court of Appeals affirmed. Held:
1. Section 1988, as is clear from its legislative history, does not independently create a federal cause of action for the violation of federal civil rights, and to apply that provision here by imposing vicarious liability upon the County would contravene the holding in Monroe v. Pape, supra, and Congress' intent to exclude a State's political subdivision from civil liability under § 1983. Pp. 698—710.
2. Even assuming, arguendo, that the District Court had judicial power to exercise pendent jurisdiction over petitioners' state law claims which would require that the County be brought in as a new party defendant, against which petitioners could not state a federally cognizable claim, in addition to the individual defendants against whom they could assert such a claim, the court did not abuse its discretion in not exercising that power in view of unsettled questions of state law that it would have been called upon to resolve and the likelihood of jury confusion resulting from the special defenses to a county available under the state tort claims law. Pp. 710—717.
3. The District Court erred in rejecting petitioner Moor's state law claim against the County, which under California law has an independent status, on the basis of diversity of citizenship, since diversity jurisdiction extends to a State's political subdivision that is not simply the arm or alter ego of the State, Cowles v. Mercer County, 7 Wall. 118, 19 L.Ed. 86. Pp. 717—722.
458 F.2d 1217, affirmed in part, reversed in part, and remanded.
Ronald M. Greenberg, Los Angeles, Cal., for petitioners.
Peter W. Davis, Oakland, Cal., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case raises three distinct questions concerning the scope of federal jurisdiction. We are called upon to decide whether a federal cause of action lies against a municipality under 42 U.S.C. §§ 1983 and 1988 for the actions of its officers which violate an individual's federal civil rights where the municipality is subject to such liability under state law. In addition, we must decide whether, in a federal civil rights suit brought against a municipality's police officers, a federal court may refuse to exercise pendent jurisdiction over a state law claim against the municipality based on a theory of vicarious liability, and whether a county of the State of California is a citizen of the State for purposes of federal diversity jurisdiction.
2
In February 1970, petitioners Moor and Rundle1 filed separate actions in the District Court for the Northern District of California seeking to recover actual and punitive damages for injuries allegedly suffered by them as a result of the wrongful discharge of a shotgun by an Alameda County, California, deputy sheriff engaged in quelling a civil disturbance.2 In their complaints, petitioners named the deputy sheriff, plus three other deputies, the sheriff, and the County of Alameda as defendants. The complaints alleged both federal and state causes of action.
3
The federal causes of action against the individual defendants were based on allegations of conspiracy and intent to deprive petitioners of their constitutional rights of free speech and assembly, and to be secure from the deprivation of life and liberty without due process of law. These federal causes of action against the individual defendants were alleged to arise under, inter alia, 42 U.S.C. §§ 1983 and 1985, and jurisdiction was asserted to exist under 28 U.S.C. § 1343.
4
As to the County, both the federal and state law claims were predicated on the contention that under the California Tort Claims Act of 1963, Cal.Govt.Code § 815.2(a), the County was vicariously liable for the acts of its deputies and sheriff committed in violation of the Federal Civil Rights Act.3 The federal causes of action against the County were based on 42 U.S.C. §§ 1983 and 1988,4 and thus jurisdiction was also alleged to exist with respect to these claims under 28 U.S.C. § 1343. Both petitioners argued before the District Court that it had authority to hear their state law claims against the County under the doctrine of pendent jurisdiction. In addition, petitioner Moor who alleged that the was a citizen of Illinois asserted in his complaint that the District Court also had jurisdiction over his state law claim against the County on the basis of diversity of citizenship.5
5
Initially, the defendants answered both complaints denying liability, although the County admitted that it had consented to be sued.6 Thereafter, the County, arguing lack of jurisdiction, moved to dismiss all of the claims against it in the Rundle suit and to dismiss the federal civil rights claims in the Moor suit. The County relied upon this Court's decision in Monroe v. Pape, 365 U.S. 167, 187—191, 81 S.Ct. 473, 484—486, 5 L.Ed.2d 492 (1961), as having resolved that a municipality is not a 'person' within the meaning of 42 U.S.C. § 1983, and on this basis alone it considered the civil rights claims against it to be barred. Moreover, in Rundle, the County argued that since there was before the District Court no claim against the County as to which there existed an independent basis of federal jurisdiction, it would be inappropriate to exercise pendent jurisdiction over the state law claim against it.
6
The District Court agreed with the County's arguments and granted the motion to dismiss the Rundle suit. It, however, postponed ruling in the Moor case pending consideration of possible diversity jurisdiction over the state law claim against the County in that case. Subsequently, the County sought to have the state law claim in Moor dismissed on the basis that it was not a citizen of California for purposes of diversity jurisdiction. While this motion was pending, a motion for reconsideration of the order dismissing the County was filed in the Rundle case. Following argument with respect to the jurisdictional issues, the District Court entered an order in Moor holding that there was no diversity jurisdiction and incorporating by reference an order filed in the Rundle case which again rejected petitioners' civil rights and pendent jurisdiction arguments. Upon the request of the petitioners, the District Court, finding 'no just reason for delay,' intered a final judgment in both suits with respect to the County under Fed.Rule Civ.Proc. 54(b), thereby allowing immediate appeal of its jurisdictional decisions.7
7
The two cases were then consolidated for purposes of appeal, and the Court of Appeals for the Ninth Circuit affirmed the District Court with respect to all three issues raised by the two cases, 458 F.2d 1217 (1972). In addition to rejecting petitioners' arguments concerning the existence of pendent jurisdiction and diversity jurisdiction over the state law claims, the Court of Appeals disagreed in particular with petitioners' contention that § 1988 alone established a federal cause of action against the County for their injuries on the basis of California law which created vicarious liability against the County for the actions of its officers that violated petitioners' federal civil rights. Because of the importance of the questions decided by the Court of Appeals, we granted certiorari. 409 U.S. 841, 93 S.Ct. 66, 34 L.Ed.2d 80 (1972). For reasons stated below, we now affirm that portion of the Court of Appeals' decision which held that petitioners had failed to establish a cause of action against the County under 42 U.S.C. §§ 1983 and 1988, and that the trial court properly refused to exercise pendent jurisdiction over the state law claims. We reverse, however, its holding that the County is not a citizen of California for purposes of federal diversity jurisdiction.
8
* We consider first petitioners' argument concerning the existence of a federal cause of action against the County under 42 U.S.C. § 1988. Petitioners' thesis is, in essence, that under California law the County has been made vicariously liable for the conduct of its sheriff and deputy sheriffs which violates the Federal Civil Rights Acts8 and that, in the context of this case, § 1988 authorizes the adoption of such state law into federal law in order to render the Civil Rights Acts fully effective, thereby creating a federal cause of action against the County.
9
Section 1988 reads, in relevant part, as follows:
10
'The jurisdiction in civil . . . matters conferred on the district courts by (the Civil Rights Acts) . . ., for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . ., the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil . . . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . ..'
11
The starting point for petitioners' argument is this Court's decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). There the Court held that 42 U.S.C. § 1983, which was derived from § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, was intended to provide private parties a cause of action for abuses of official authority which resulted in the deprivation of constitutional rights, privileges, and immunities.9 At the same time, however, the Court held that a municipality is not a 'person' within the meaning of § 1983. Id., at 187—191, 81 S.Ct. at 484—486. Petitioners do not squarely take issue with the holding in Monroe concerning the status under § 1983 of public entities such as the County. Instead, petitioners argue that since the construction placed upon § 1983 in Monroe with respect to municipalities effectively restricts the injured party in a case such as this to recovery from the individual defendants, the section cannot be considered to be fully 'adapted' to the protection of federal civil rights or is 'deficient in the provisions necessary to furnish suitable remedies' within the meaning of § 1988. In petitioners' view, the personal liability of the individual defendants under § 1983 is, as a practical matter, inadequate because public officers are frequently judgment-proof.10 Thus, petitioners contend it is appropriate under § 1988 for this Court to adopt into federal law the California law of vicarious liability for municipalities—that is, the 'common law, as modified . . . by . . . statutes of the State wherein the court having jurisdiction of such civil . . . cause is held.' Having thus introduced the State's law of vicarious liability into federal law through § 1988, they then assert that there is federal jurisdiction to hear their federal claims against the County under 28 U.S.C. § 1343(4). Section 1343(4) grants jurisdiction to the federal district courts to hear any civil action 'commenced by any person . . . (t)o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights . . .,' and § 1988 is, petitioners say, such an 'Act of Congress.'
12
Petitioners in this case are not asking us to create a substantive federal liability without legislative direction. See United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947); cf. United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898 (1954). It is their view, rather, that in § 1988 Congress has effectively mandated the adoption of California's law of vicarious liability into federal law. It is, of course, not uncommon for Congress to direct that state law be used to fill the interstices of federal law.11 But in such circumstances our function is necessarily limited. For although Congress may have assigned to the process of judicial implication the task of selecting in any particular case appropriate rules from state law to supplement established federal law, the application of that process is restricted to those contexts in which Congress has in fact authorized resort to state and common law.12 Cf. Richards v. United States, 369 U.S. 1, 7—8, 82 S.Ct. 585, 589—590, 7 L.Ed.2d 492 (1962). Considering § 1988 from this perspective, we are unable to conclude that Congress intended that section, standing alone, to authorize the federal courts to borrow entire causes of action from state law.
13
First, petitioners' argument completely overlooks the full language of the statute. Section 1988 does not enjoy the independent stature of an 'Act of Congress providing for the protection of civil rights,' 28 U.S.C. § 1343(4). Rather, as is plain on the face of the statute, the section is intended to complement the various acts which do create federal causes of action for the violation of federal civil rights.13 Thus, § 1988 specifies that '(t)he jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter (Civil Rights) and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States.' But inevitably existing federal law will not cover every issue that may arise in the context of a federal civil rights action.14 Thus, § 1988 proceeds to authorize federal courts, where federal law is unsuited or insufficient 'to furnish suitable remedies,' to look to principles of the common law, as altered by state law, so long as such principles are not inconsistent with the Constitution and laws of the United States.
14
The role of § 1988 in the scheme of federal civil rights legislation is amply illustrated by our decision in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). In Sullivan, the Court was confronted with a question as to the availability of damages in a suit concerning discrimination in the disposition of property brought pursuant to § 1982 which makes no express provision for a damages remedy.15 The Court concluded that '(t)he existence of a statutory right implies the existence of all necessary and appropriate remedies,' id., at 239, 90 S.Ct., at 405, and proceeded to construe § 1988, which provides the governing standard in such a case, to mean 'that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired.' Id., at 240, 90 S.Ct., at 406.16 Properly viewed, then, § 1988 instructs federal courts as to what law to apply in causes of actions arising under federal civil rights acts. But we do not believe that the section, without more, was meant to authorize the wholesale importation into federal law of state causes of action17—not even one purportedly designed for the protection of federal civil rights.
15
This view is fully confirmed by the legislative history of the statute. Section 1988 was first enacted as a portion of § 3 of the Civil Rights Act of April 9, 1866, c. 31, 14 Stat. 27. Section 1 of that Act is the source of 42 U.S.C. § 1982, the provision under which suit was brought in Sullivan. The initial portion of § 3 of the Act established federal jurisdiction to hear, among other things, civil actions brought to enforce § 1. Section 3 then went on to provide that the jurisdiction thereby established should be exercised in conformity with federal law where suitable and with reference to the common law, as modified by state law, where federal law is deficient.18 Considered in context, this latter portion of § 3, which has become § 1988 and has been made applicable to the Civil Rights Acts generally, was obviously intended to do nothing more than to explain the source of law to be applied in actions brought to enforce the substantive provisions of the Act, including § 1.19 To hold otherwise would tear § 1988 loose from its roots in § 3 of the 1866 Civil Rights Act. This we will not do.
16
There is yet another reason why petitioners' reliance upon § 1988 must fail. The statute expressly limits the authority granted federal courts to look to the common law, as modified by state law, to instances in which that law 'is not inconsistent with the Constitution and laws of the United States.' Yet if we were to look to California law imposing vicarious liability upon municipalities, as petitioners would have us do, the result would effectively be to subject the County to federal court suit on a federal civil rights claim. Such a result would seem to be less than consistent with this Court's prior holding in Monroe v. Pape, 365 U.S., at 187—191, 81 S.Ct., at 484—486, that Congress did not intend to render municipal corporations liable to federal civil rights claims under § 1983. See, e.g., Brown v. Town of Caliente, 392 F.2d 546 (CA9 1968); Ries v. Lynskey, 452 F.2d 172, 174—175 (CA7 1971); Brown v. Ames, 346 F.Supp. 1173, 1176 (Minn.1972); Wilcher v. Gain, 311 F.Supp. 754, 755 (ND Cal.1970).
17
Petitioners argue, however, that there is in fact no inconsistency between the interpretation placed upon s 1983 in Monroe and the interpretation of § 1988 for which they now argue here. They suggest that Monroe involved no question of the susceptibility to suit of a municipality which has surrendered its common-law immunity under state law; the interpretation of § 1983 in Monroe was, in their view, premised upon an assumption that the muncipality had not been deprived of its immunity. And Congress, petitioners argue, did not intend to exclude from the reach of § 1983 municipalities that have surrendered their immunity from suit under state law. Thus, they conclude that in a case such as this, where the municipality has lost its immunity, there is no inconsistency between § 1983 and the introduction of the state cause of action against the County into federal law under § 1988.
18
In effect, petitioners are arguing that their particular actions may be properly brought against this County on the basis of § 1983. But whatever the factual premises of Monroe, we find the construction which petitioners seek to impose upon § 1983 concerning the status of municipalities as 'persons' to be simply untenable.
19
In Monroe, the Court, in examining the legislative evolution of the Ku Klux Klan Act of April 20, 1871, which is the source of § 1983, pointed out that Senator Sherman introduced an amendment which would have added to the Act a new section providing expressly for municipal liability in civil actions based on the deprivation of civil rights. Although the amendment was passed by the Senate,20 it was rejected by the House,21 as was another version included in the first Conference Committee report.22 The proposal for municipal liability encountered strongly held views in the House on the part of both its supporters and opponents,23 but the root of the proposal's difficulties stemmed from serious legislative concern as to Congress' constitutional power to impose liability on political subdivisions of the States.24
20
As in Monroe, we have no occasion here to 'reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals.' 365 U.S., at 191, 81 S.Ct., at 486. For in interpreting the statute it is not our task to consider whether Congress was mistaken in 1871 in its view of the limits of its power over municipalities; rather, we must construe the statute in light of the impressions under which Congress did in fact act, see Ries v. Lynskey, 452 F.2d, at 175. In this respect, it cannot be doubted that the House arrived at the firm conclusion that Congress lacked the constitutional power to impose liability upon municipalities, and thus, according to Representative Poland, the Senate Conferees were informed by the House Conferees that the 'section imposing liability upon towns and counties must go out or we should fail to agree.'25 To save the Act, the proposal for municipal liability was given up.26 It may be that even in 1871 municipalities which were subject to suit under state law did not pose in the minds of the legislators the constitutional problems that caused the defeat of the proposal. Yet nevertheless the proposal was rejected in toto, and from this action we cannot infer any congressional intent other than to exclude all municipalities—regardless of whether or not their immunity has been lifted by state law—from the civil liability created in the Act of April 20, 1871, and § 1983.27 Thus, § 1983 is unavailable to these petitioners insofar as they seek to sue the County. And § 1988, in light of the express limitation contained within it, cannot be used to accomplish what Congress clearly refused to do in enacting § 1983.
21
Accordingly, we conclude that the District Court properly granted the motion to dismiss the causes of action brought against the County by petitioners under § 1983 and § 1988.
II
22
Although unable to establish a federal cause of action against the County on the basis of the California law imposing vicarious liability on a municipality for the actions of its officers that violate federal civil rights, petitioners contend that the District Court nevertheless had jurisdiction to hear their state law claims of vicarious liability against the County under the doctrine of pendent jurisdiction.
23
Petitioners rely principally upon the decision in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), where the Court eschewed the 'unnecessarily grudging' approach of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), to the doctrine of pendent jurisdiction. Gibbs involved a suit brought under both federal and state law by a contractor to recover damages allegedly suffered as a result of a secondary boycott imposed upon it by a union. There existed independent federal jurisdiction as to the federal claim, but there was no independent basis of jurisdiction to support the state law claim. Nevertheless, the Court concluded that federal courts could exercise pendent jurisdiction over the state law claim.
24
In deciding the question of pendent jurisdiction, the Gibbs Court indicated that there were two distinct issues to be considered. First, there is the issue of judicial power to hear the pendent claim. In this respect the Court indicated that the requisite 'power' exists
25
'whenever there is § claim 'arising under (the) Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .,' U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.' Id., at 725, 86 S.Ct., at 1138 (footnotes omitted).
26
Yet even if there exists power to hear the pendent claim, '(i)t has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. It justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them . . ..' id., at 726, 86 S.Ct., at 1139. By way of explanation of the considerations which should inform a district court's discretion, the Court in Gibbs suggested, inter alia, that '(n)eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law,' ibid., and that 'reasons independent of jurisdictional considerations, such as the likelihood of jury confusion in treating divergent legal theories of relief, (may) justify separating state and federal claims for trial,' id., at 727, 86 S.Ct., at 1139. In Gibbs, the Court found that the exercise of pendent jurisdiction over the state law claims was proper both as a matter of power and discretion.
27
In these cases, there is no question that petitioners' complaints stated substantial federal causes of action against the individual defendants under 42 U.S.C. § 1983. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Nor is there any dispute that the federal claims against the individual defendants and the state claims against the individual defendants may be said to involve 'a common nucleus of operative fact.' But, beyond this, there is a significant difference between Gibbs and these cases. For the exercise of pendent jurisdiction over the claims against the County would require us to bring an entirely new party—a new defendant—into each litigation, Gibbs, of course, involved no such problem of a 'pendent party,'28 that is, of the addition of a party which is implicated in the litigation only with respect to the pendent state law claim and not also with respect to any claim as to which there is an independent basis of federal jurisdiction. Faced with this distinction, the courts below concluded that the exercise of pendent jurisdiction in the context of these cases was inappropriate as a matter of both judicial power and discretion.
28
As to the question of judicial power, the District Court and Court of Appeals considered themselves bound by the Ninth Circuit's previous decision in Hymer v. Chai, 407 F.2d 136 (1969), wherein the court refused to permit the joinder of a pendent plaintiff. Petitioners vigorously attack the decision in Hymer as at odds with the clear trend of lower federal court authority since this Court's decision in Gibbs. It is true that numerous decisions throughout the courts of appeals since Gibbs have recognized the existence of judicial power to hear pendent claims involving pendent parties where 'the entire action before the court comprises but one constitutional 'case" as defined in Gibbs.29 Hymer stands virtually alone against this post-Gibbs trend in the courts of appeals,30 and significantly Hymer was largely based on the Court of Appeals' earlier decision in Kataoka v. May Department Stores Co., 115 F.2d 521 (CA9 1940), a decision which predated Gibbs and the expansion of the concept of pendent jurisdiction beyond the narrow limits set by Hurn v. Oursler, supra. Moreover, the exercise of federal jurisdiction over claims against parties as to whom there exists no independent basis for federal jurisdiction finds substantial analogues in the joinder of new parties under the well-established doctrine of ancillary jurisdiction in the context of compulsory counterclaims under Fed.Rules Civ.Proc. 13(a) and 13(h),31 and in the context of third-party claims under Fed.Rule Civ.Proc. 14(a).32 At the same time, the County counsels that the Court should not be quick to sweep state law claims against an entirely new party within the jurisdiction of the lower federal courts which are courts of limited jurisdiction—a jurisdiction subject, within the limits of the Constitution, to the will of Congress, not the courts.33 Whether there exists judicial power to hear the state law claims against the County is, in short, a subtle and complex question with far-reaching implications. But we do not consider it appropriate to resolve this difficult issue in the present case, for we have concluded that even assuming, arguendo, the existence of power to hear the claim, the District Court, in exercise of its legitimate discretion, properly declined to join the claims against the County in these suits.
29
The District Court indicated, and the Court of Appeals agreed, that exercise of jurisdiction over the state law claims was inappropriate for at least two reasons. First, the District Court pointed out that it 'would be called upon to resolve difficult questions of California law upon which state court decisions are not legion.'34 In addition, the court felt that 'with the introduction of a claim against the County under the California Tort Calims Act, with the special defenses available to the County, the case' which will be tried to a jury, 'could become unduly complicated.'35 as is evident from this Court's decision in Gibbs, 383 U.S., at 726, 727, 86 S.Ct. at 1138—1139, the unsettled nature of state law and the likelihood of jury confusion were entirely appropriate factors for the District Court to consider. And those factors had to be weighed by the District Court against the economy which might be achieved by trying the petitioners' claims against both the police and the County in single proceedings. In light of the broad discretion which district courts must be given in evaluating such matters, we cannot say that the District Judge in these cases struck the balance improperly.36 We therefore hold that the District Court did not err, as a matter of discretion, in refusing to exercise pendent jurisdiction over petitioners' claims against the County.
III
30
There remains, however, the question whether the District Court had jurisdiction over petitioner Moor's state law claim against the County on the basis of diversity of citizenship, 28 U.S.C. § 1332(a). .petitioner Moor, a citizen of Illinois, contends that the County is a citizen of California for the purposes of federal diversity jurisdiction. The District Court concluded otherwise, however. For while acknowledging that there exists a substantial body of contrary authority, it considered itself 'bound to recognize and adhere to the Ninth Circuit decisions which hold that California counties and other subdivisions of the State are not 'citizens' for diversity purposes,'37 see Miller v. County of Los Angeles, 341 F.2d 964 (CA9 1965); Lowe v. Manhattan Beach City School Dist., 222 F.2d 258 (CA9 1955). Not surprisingly, the Court of Appeals also adhered to its prior precedents.
31
There is no question that a State is not a 'citizen' for purposes of the diversity jurisdiction. That proposition has been established at least since this Court's decision in Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 487, 15 S.Ct. 192, 194, 39 L.Ed. 231 (1894). See also Minnesota v. Northern Securities Co., 194 U.S. 48, 63, 24 S.Ct. 598, 601, 48 L.Ed. 870 (1904). At the same time, however, this Court has recognized that a political subdivision of a State, unless it is simply 'the arm or alter ego of the State,'38 is a citizen of the State for diversity purposes. See, e.g., Bullard v. City of Cisco, 290 U.S. 179, 54 S.Ct. 177, 78 L.Ed. 254 (1933); Loeb v. Columbia Township Trustees, 179 U.S. 472, 485—486, 21 S.Ct. 174, 179—180, 45 L.Ed. 280 (1900); Chicot County v. Sherwood, 148 U.S. 529, 533—534, 13 S.Ct. 695, 697, 37 L.Ed. 546 (1893); Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Cowles v. Mercer County, 7 Wall. 118, 19 L.Ed. 86 (1969). The original source of this latter principle was the rule that corporations are citizens of the State in which they are formed, and are subject as such to the diversity jurisdiction of the federal courts.39 See, e.g., Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 588—559, 11 L.Ed. 353 (1844); Barrow S.S. Co v. Kane, 170 U.S. 100, 106, 18 S.Ct. 526, 528, 42 L.Ed. 964 (1898). Thus, in the seminal case of Cowles v. Mercer County, supra, the Court held without hesitation that an Illinois county, which under Illinois law was a 'body politic and corporate' and had been authorized to sue and be sued, was subject to federal diversity jurisdiction as a citizen of the State of Illinois.40 The principle first announced in Cowles has become so firmly rooted in federal law that we were able to say only last Term that '(i)t is well settled that for purposes of diversity of citizenship, political subdivisions are citizens of their respective States . . ..' Illinois v. City of Milwaukee, 406 U.S. 91, 97, 92 S.Ct. 1385, 1390, 31 L.Ed.2d 712 (1972).
32
The County in this case contends, however, that unlike the counties of most States, it is not a municipal corporation or an otherwise independent political subdivision, but that it is, under California law, nothing more than an agent or a mere arm of the State itself. In particular, the County cites to us Art. 11, § 1(a), of the California Consitution which provides that '(t)he State is divided into counties which are legal subdivisions of the State.' The County thus apparently believes its status, for purposes of the diversity jurisdiction, to be governed by Postal Telegraph Cable rather than by Cowles and its progeny. Despite the County's contentions, a detailed examination of the relevant provisions of California law—beyond simply the generalization contained in Art. 11, § 1, of the state constitution—convinces us that the County cannot be deemed a mere agent of the State of California. $Most notably, under California law a county is given 'corporate powers'41 and is designated a 'body corporate and politic.'42 In this capacity, a county may sue and be sued,43 and, significantly for purposes of suit, it is deemed to be a 'local public entity'44 in contrast to the State and state agencies.45 In addition, the county, and from all that appears the county alone,46 is liable for all judgments against it and is authorized to levy taxes to pay such judgments.47 A California county may also sell, hold, or otherwise deal in property,48 and it may contract for the construction and repairs of structures.49 The counties also are authorized to provide a variety of public services such as water service, flood control, rubbish disposal, and harbor and airport facilities.50 Financially, the counties are empowered to issue general obligation bonds51 payable from county taxes.52 Such bonds create no obligation on the part of the State, except that the State is authorized to intervene and and to impose county taxes to protect the bondholders if the county fails to fulfill its obligations voluntarily.53 In sum, these provisions stike us as persuasive indicia of the independent status occupied by California counties relative to the State of California.
33
But even if our own examination were not sufficient for present purposes, we have the clearest indication possible from California's Supreme Court of the status of California's counties. In People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 96 Cal.Rptr. 553, 487 P.2d 1193 (1971), the Attorney General of the State sought a writ of mandate against two California counties to compel them to pay out certain allotted monies. Under state law, such a writ may be issued only to any 'inferior tribunal, corporation, board, or person.' Cal.Civ. Proc.Code § 1085 (emphasis added). In holding that the writ could be issued against the counties, the California Supreme Court said:
34
'While it has been said that counties are not municipal corporations but are political subdivisions of the state for purposes of government . . ., counties have also been declared public corporations or quasi-corporations. . . . In view of Government Code section 23003, which provides that a county is 'a body corporate and (politic),' and section 23004, subdivision (a) of the same code, which states that counties may sue and be sued, we think that a county is sufficiently corporate in character to justify the issuance of a writ of mandate to it.' 5 Cal.3d, at 491 n. 12, 96 Cal.Rptr., at 559 n. 12, 487 P.2d at 1199 n. 12 (emphasis added).
35
See also Pitchess v. Superior Court, 2 Cal.App.3d 653, 656, 83 Cal.Rptr. 41, 43 (1969).
36
We do not lightly reject the Court of Appeals' previous conclusion that California counties are merely part of the State itself and as such are not citizens of the State for diversity purposes.54 But in light of both the highest state court's recent determination of the corporate character of counties and our own examination of relevant California law, we must conclude that this County has a sufficiently independent corporate character to dictate that it be treated as a citizen of California under our decision in Cowles v. Mercer County, supra.
37
Thus, we hold that petitioner Moor's state law claim against the County is within the diversity jurisdiction. Accordingly, we reverse the judgment of the Court of Appeals in this respect and remand this case to the District Court for further proceedings consistent with this opinion.
38
It is so ordered.
39
Affirmed in part, reversed in part, and remanded.
40
Mr. Justice DOUGLAS, dissenting.
41
The claims in the instant actions arose out of the May 1969 People's Park disturbance, in which petitioners were allegedly injured by an Alameda County deputy sheriff who was performing duties at that time on behalf of the County. Petitioners brought actions against several deputies, the sheriff, and the County. The complaints against the County alleged federal causes of action under the Civil Rights Acts, 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988, and pendent state claims under § 810 et seq. of the California Government Code. Both federal and state causes of action were premised on the theory that the County could be held vicariously liable for the acts of the deputies. The County subsequently filed motions to dismiss the claims against it in each case, contending that, as to the Civil Rights Act claims, the County was not a 'person' who could be sued under the Act. The trial court ultimately granted these motions and ordered that all claims against the County be dismissed. The Court of Appeals affirmed these orders of the District Court, Moor v. Madigan, 458 F.2d 1217 (Ca,9).
Title 42 U.S.C. § 1983 provides:
42
'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.'
43
In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, we held that a municipality was not a 'person' within the meaning of that Act. The issue was whether or not the Act made municipalities liable in damates, id., at 187—191, 81 S.Ct., at 484—486, that claim being strongly pressed because 'private remedies against officers for illegal searches and seizures are conspicuously ineffective and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level.' Id., 191, 81 S.Ct., at 486. We certainly said, as the Court holds, that a municipality was not a 'person' within the meaning of § 1983. Ibid. But § 1983 permits equitable relief, as well as damages, not directly involved in Monroe v. .pape but a matter we explored at some length last Term in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705.
44
There may be overtones in Monroe v. Pape that even suits in equity are barred. Yet we never have so held. Certainly a residuum of power seems available in § 1983 to enjoin such bizarre conduct as the offering to the police of classes in torture. More realistically, § 1983 as construed in Mitchum v. Foster, might under some circumstances authorize a federal injunction against a municipal prosecution of an offender. Such being my understanding of Monroe v. Pape and Mitchum v. Foster, I would hold that the County of Alameda in this case is a 'person' within the meaning of § 1983 for a narrow group of equity actions and that therefore the District Court did not lack jurisdiction.
45
Although the complaint in the instant action asked for damages, it also prayed for any further relief that the court might deem just and proper. Since the complaint was dismissed at the threshold of the litigation, it is impossible to determine whether or not grounds for equitable relief would have emerged during the normal course of the litigation. But the prayer for any 'further relief' would embrace it.
46
In any event an amended complaint could make the matter clear beyond peradventure.
47
The raises the question as to the liability of the County of Alameda, by reason of 42 U.S.C. § 1988, which reads:
48
'The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all case where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.'
49
Under California law '(a) public entity may sue and be sued.' (Govt. Code § 945), although a public entity has a general immunity from suit involving injury. Id., § 815. Moreover, an officer, while generally immune, may become liable in damages, if he uses unreasonable force against a citizen, in which event the municipality loses its immunity. That at least is the way I read Scruggs v. Haynes, 252 Cal.App.2d 256, 60 Cal.Rptr. 355.
50
Since § 1983 does not allow damages against the municipality in a federal suit, federal laws 'are not adapted to the object,' and are 'deficient in the provisions necessary to furnish suitable remedies,' within the meaning of § 1988. While it is 'inconsistent' with the 'laws of the United States,' as those words were used in § 1988, to enforce a federal cause of action for damages against the County of Alameda, it arguably is within the scheme of the state cause of action. This is not to allow state law to enlarge the scope of § 1983. Section 1983 by reason of its equity provision merely gives 'jurisdiction' to the District Court, while § 1988 allows the District Court to apply state law.
As we said in Mitchum v. Foster:
51
'This legislative history makes evident that Congress clarly 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.' 407 U.S., at 242, 92 S.Ct., at 2162.
52
The federal right here is not to obtain damages but to obtain some kind of equitable relief. Application by the federal court of a state cause of action for damages is therefore in harmony with both § 1983 and § 1988. As we stated in Sullivan v. Little Hunting Park, 396 U.S. 229, 240, 90 S.Ct. 400, 406, 24 L.Ed.2d 386, 'This means, as we read § 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired.' The federal right here is the alleged 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' as these words are used in § 1983.
1
Named as plaintiffs in the Rundle case in addition to petitioner William D. Rundle, Jr., were his guardian ad litem, William D. Rundle, and Sarah Rundle. William D. Rundle and Sarah Rundle are also petitioners here, but for ease of discussion we will refer simply to petitioner Rundle.
2
Neither complaint specifically states any claim for equitable relief. Furthermore, the complaints contain no allegations of an ongoing course of conduct, irreparable injury, inadequacy of legal remedy, or other similar allegations generally found in complaints seeking equitable relief. Throughout the course of this litigation the petitioners have given no indication that they seek equitable, as well as legal, relief. Before this Court the petitioners state nothing more than that '(p)laintiffs in both cases seek damages from the defendants . . ..' Brief for Petitioners 4. Therefore, the question on which our Brother DOUGLAS hinges his dissent—namely, whether a municipality may be sued for equitable relief under § 1983—simply is not presented here.
3
Although the County vigorously disputes the petitioners' construction of § 815.2(a) of the California Tort Claims Act, we do not pass upon the parties' conflicting constructions since the question was not decided by either of the courts below.
4
In their complaints, petitioners also asserted causes of action under 42 U.S.C. §§ 1981 and 1986. But before this Court petitioners have restricted their arguments to §§ 1983 and 1988. Hence, only those sections are now before us.
5
Petitioner Rundle alleged in his complaint that he was a citizen of California, and therefore he was unable to assert jurisdiction over his state law claims on the basis of diversity of citizenship.
6
See Answer to Complaint, Moor v. Madigan, App. 12; Answer to Complaint, Rundle v. Madigan, App. 29.
7
Subsequent to this decision with respect to the County, the District Court denied the individual defendants' motion to dismiss or, in the alternative, for summary judgment. The District Court also denied petitioners' motion for summary judgment. See Ex. A to Reply Brief for Petitioners.
8
See 42 U.S.C. § 1981 et seq.
9
Section 1983 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.'
10
See, e.g., Kates & Kouba, Liability of Public Entities Under Section 1983 of the Civil Rights, Act, 45 S.Cal.L.Rev. 131, 136—137, 157 (1972); Note, Philadelphia Police Practice and the Law of Arrest, 100 U.Pa.L.Rev. 1182, 1208—1209 (1952); cf. Lankford v. Gelston, 364 F.2d 197, 202 (CA4 1966).
Before this Court the parties have disagreed as to the extent of the individual defendants' personal assets and insurance that might be available to satisfy any favorable final judgment which petitioners might ultimately obtain. See Brief for Respondents 15; Tr. of Oral Arg. 25; id., at 50—51. In light of our conclusion as to the limited function of § 1988 in the scheme of federal civil rights legislation we have no occasion here to pass upon the adequacy of the relief available against the individual defendants.
11
A ready example of such federal adoption of state law is to be found in the Federal Tort Claims Act under which the United States is made liable for certain torts of its employees in accordance with relevant state law. See 28 U.S.C. §§ 1346(b), 2671 2680. See also Richards v. United States, 369 U.S. 1, 6—10, 82 S.Ct. 585, 589—591, 7 L.Ed.2d 492 (1962). Still other examples are the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331—1343, and the provisions of the Assimilative Crimes Act which provides for punishment as federal crimes of acts, committed within the maritime or territorial jurisdiction of the United States, that would have been punishable as a crime under the laws of the State, territory, or district where committed, 18 U.S.C. §§ 7, 11.
12
Hence, this is a wholly different case from those in which, lacking any clear expression of congressional will, we have been called upon to decide whether it is appropriate to look to state law or to fashion a single federal rule in order to fill the interstices of federal law. See, e.g., United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966); Bank of America National Trust & Savings Assn. v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956); Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943); D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 80, 86 L.Ed. 956 (1942).
13
See, e.g., 42 U.S.C. §§ 1981, 1982, 1983, 1985. See also 18 U.S.C. §§ 241—245.
14
One such problem has been the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant. Although an injured party's personal claim was extinguished at common law upon the death of either the injured party himself or the alleged wrongdoer, see W. Prosser, Torts 888 891 (4th ed. 1971), it has been held that pursuant to § 1988 state survivorship statutes which reverse the common-law rule may be used in the context of actions brought under § 1983. See, e.g., Brazier v. Cherry, 293 F.2d 401 (CA5 1961); Pritchard v. Smith, 289 F.2d 153 (CA8 1961).
15
Section 1982 provides:
'All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.'
16
See also McDaniel v. Carroll, 457 F.2d 968 (CA6 1972), and cases cited n. 14, supra.
17
We know of no lower court decision that has held otherwise. To the contrary, the lower federal courts have repeatedly rejected the argument § 1988 independently creates a federal cause of action for the violation of federal civil rights. See Pierre v. Jordan, 333 F.2d 951, 958 (CA9 1964); Otto v. Somers, 332 F.2d 697, 699 (CA6 1964); Post v. Payton, 323 F.Supp. 799, 802—803 (EDNY 1971); Johnson v. New York State Education Dept., 319 F.Supp. 271, 276 (EDNY 1970), aff'd, 449 F.2d 871 (CA2 1971), vacated and remanded on other grounds, 409 U.S. 75, 93 S.Ct. 259, 34 L.Ed.2d 290 (1972); Dyer v. Kazuhisa Abe, 138 F.Supp. 220, 228—229 (Haw.1956), rev'd on other grounds, 256 F.2d 728 (CA9 1958); Schatte v. International Alliance of Theatrical Stage Employees and Moving Picture Operators of United States and Canada, 70 F.Supp. 1008 (SD Cal.1947), aff'd, per curiam, 165 F.2d 216 (CA9 1948); cf. In re Stupp, 23 F.Cas. 296, 299 (No. 13,563) (CCSDNY 1875).
Petitioners' reliance in this case upon Hesselgesser v. Reilly, 440 F.2d 901, 903 (CA9 1971), and Lewis v. Brautigam, 227 F.2d 124, 128 (CA5 1955), is misplaced. In Hesselgesser, the Court of Appeals ruled that a sheriff could be held vicariously liable in damages for the wrongful act of his deputy which deprived a prisoner of his civil rights where state law provided for such vicarious liability. The court, to be sure, found authority for the incorporation of state law into federal law in § 1988, but it was acting in the context of a suit brought against the sheriff on the basis of § 1983. Likewise in Lewis, where a sheriff was held to be liable for the civil rights violations of his deputies in light of state law which imposed such liability—a decision which also rested apparently upon § 1988, although that section was not specifically cited—the cause of action was properly based on § 1983. These decisions simply do not support the suggestion that § 1988 alone authorizes the creation of a federal cause of action against the County. And here, as discussed below, § 1983 is unavailable as a basis for suit against the County.
18
As enacted, § 3 read, in part, as follows:
'That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act . . .. The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offences against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of the cause, civil or criminal, is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern said courts in the trial and disposition of such cause, and, if of a criminal nature, in the infliction of punishment on the party found guilty.'
19
Following the ratification of the Fourteenth Amendment in 1868, the Act of April 9, 1866, was re-enacted without change in the Act of May 31, 1870, c. 114, § 18, 16 Stat. 144. At the same time, Congress enacted what is now 42 U.S.C. § 1981. See Act of May 31, 1870, c. 114, § 16, 16 Stat. 144. Section 18 of the Act also provided that the provision now contained in § 1981 was to be enforced in accordance with the provisions of the Act of April 9, 1866. Thus, Congress again directed merely that § 1988 would guide courts in the enforcement of a particular cause of action, namely, that created in § 1981. Similarly, when 42 U.S.C. § 1983 was first enacted, it was made 'subject to the same rights of appeal, review upon error, and other remedies provided in like cases . . . under the provisions of the act of the ninth of April, eighteen hundred and sixty-six . . .. ' Act of Apr. 20, 1871, c. 22, § 1, 17 Stat. 13. Codification saw § 1988 made into § 722 of the Revised Statutes, with the statute being made generally applicable to, inter alia, the Civil Rights portion of the Revised Statutes, see §§ 1977—1991.
20
Cong.Globe, 42d Cong., 1st Sess., 704—705 (1871). The proposed amendment is quoted in Monroe v. Pape, 365 U.S. 167, 188 n. 38 (1961).
21
Cong.Globe, 42d Cong., 1st Sess., 725 (1871).
22
Id., at 800—801. The version proposed by the Conference Committee report is quoted in Monroe v. Pape, 365 U.S., at 188—189 n. 41, 81 S.Ct., at 484—485.
23
The essence of the position taken by the supporters of the provision imposing vicarious liability on local municipalities for injuries suffered due to the violation of civil rights was 'that by making the whole body of citizens insurers for the victims you will have a safeguard which no police arrangement can make, one more effective than any other . . ..' Cong.Globe, 42d Cong., 1st Sess., 794 (1871) (remarks of Rep. Kelley). See also id., at 792 (remarks of Rep. Butler). As to general view in opposition, see id., at 788—789 (remakrs of Rep. Kerr); id., at 791 (remarks of Rep. Willard).
24
For instance, Representative Kerr argued:
'I now come to inquire is it competent for the Congress of the United States to punish municipal organizations of this kind in this way at all, with or without notice? My judgment is that such power nowhere exists; that it cannot be found within the limits of the Constitution; that its exercise cannot be justified by any rational construction of that instrument. I hold that the constitutional power of the Federal Government to punish the citizens of the United States for any offenses punishable by it at all may be exercised and exhausted against the individual offender and his property; but when you go one inch beyond that you are compelled, by the very necessities which surround you, to invade powers which are secured to the States, which are a necessary and most essential part of the autonomy of State governments, without which there can logically be no State government.' Id., at 788.
Similarly, Representative Willard explained his opposition to the amendment as follows:
'Now, sir, the Constitution has not imposed, we have not by the Constitution imposed, any duty upon a county, city, parish, or any other subdivision of a State, to enforce the laws, to provide protection for the people, to give them equal rights, privileges, and immunities. The Constitution has declared that to be the duty of the State. The Constitution, in effect, says that no State shall deny to its citizens the equal protection of the laws, and I understand that that declaration, that prohibition, applies only to the States, so far as political or municipal action is concerned. But the State, within its boundaries, has the creation and the control of the laws for the protection of the people.' Id., at 791.
And Representative Poland contended:
'As I understand the theory of our Constitution, the national Government deals either with States or with individual persons. So far as we are a national Government in the strict sense we deal with persons, with every man who is an inhabitant of the United States, as if there were no States, towns, or counties; as if the whole country were in one general mass, without any subdivisions of States, counties, or towns. We deal with them as citizens or inhabitants of this great Republic. With these local subdivisions we have nothing to do. We can impose no duty upon them; we can impose no liability upon them in any manner whatever.' Id., at 793.
See also id., at 795 (remarks of Rep. Blair); id., at 798 (remarks of Rep. Bingham).
25
Id., at 804.
26
All reference to municipal liability was deleted from the provision submitted by the Conference Committee, and it was enacted as 42 U.S.C. § 1986, which imposes liability upon any person who has 'knowledge (of) any of the wrongs conspired to be done, and mentioned in' 42 U.S.C. § 1985.
27
Petitioners argue that merely because 'Congress (did) not intend, as a matter of federal law, to impose vicarious liability upon a public entity for violations of the Civil Rights Acts committed by the entity's employees,' it does not follow 'that Congress also intended to preclude a state from imposing such vicarious liability as a matter of state law.' Reply Brief for Petitioners 4—5. Certainly this is true. But this fact does not assist petitioners, for the very issue here is ultimately what Congress intended federal law to be, and, as petitioners themselves recognize, Congress did not intend, as a matter of federal law, to impose vicarious liability on municipalities for violations of federal civil rights by their employees.
28
See generally, Note, UMW v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657, 662—664 (1968).
29
See Almenares v. Wyman, 453 F.2d 1075, 1083—1085 (CA2 1971); Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809 810 (CA2 1971); Nelson v. Keefer, 451 F.2d 289, 291 (CA3 1971); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (CA2 1971); F.C. Stiles Contracting Co. v. Home Insurance Co., 431 F.2d 917, 919—920 (CA6 1970); Beautytuft, Inc. v. Factory Ins. Assn., 431 F.2d 1122, 1128 (CA6 1970); Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809, 816—817 (CA8 1969); Stone v. Stone, 405 F.2d 94 (CA4 1968); Connecticut General Life Ins. Co. v. Craton, 405 F.2d 41, 48 (CA5 1968); Jacobson v. Atlantic City Hospital, 392 F.2d 149, 153—154 (CA3 1968); Wilson v. American Chain & Cable Co., 364 F.2d 558, 564 (CA3 1966). See also, e.g., Eidschun v. Pierce, 335 F.Supp. 603, 609—610 (SD Iowa 1971); Thomas v. Old Forge Coal Co., 329 F.Supp. 1000 (MD Pa. 1971); Newman v. Freeman, 262 F.Supp. 106, 107—109 (ED Pa.1966); Johns-Manville Sales Corp. v. Chicago Title & Trust Co., 261 F.Supp. 905, 907—908 (ND Ill.1966); Morris v. Gimbel Brothers, Inc., 246 F.Supp. 984 (ED Pa.1965). On occasion, decisions of district courts refusing to exercise jurisdiction over claims against pendent parties have been sustained on appeal simply on the ground that the decisions were not an abuse of discretion. See Patrum v. City of Greensburg, 419 F.2d 1300, 1302 (CA6 1969); Williams v. United States, 405 F.2d 951, 955 (CA9 1969).
30
The only court of appeals decision outside of the Ninth Circuit cited to us by the County in support of its position is Wojtas v. Village of Niles, 334 F.2d 797 (CA7 1964), a decision which preceded the expansion of pendent jurisdiction in United Mine Workers v. Gibbs. A number of district courts, however, have refused to exercise jurisdiction over claims against pendent parties, generally relying on Wojtas and/or Hymer v. Chai. See, e.g., Redden v. Cincinnati, Inc., 347 F.Supp. 1229, 1231 (ND Ga. 1972); Payne v. Mertens, 343 F.Supp. 1355, 1358 (ND Cal.1972); Barrows v. Faulkner, 327 F.Supp. 1190 (ND Okl.1971); Letmate v. Baltimore & O.R. Co., 311 F.Supp. 1059, 1060—1062 (Md.1970); Tucker v. Shaw, 308 F.Supp. 1, 9—10 (EDNY 1970); Hall v. Pacific Maritime Assn., 281 F.Supp. 54, 61 (ND Cal.1968); Rosenthal & Rosenthal, Inc. v. Aetna Casualty & Surety Co., 259 F.Supp. 624, 630—631 (SDNY 1966).
31
See, e.g., H. L. Peterson Co. v. Applewhite, 383 F.2d 430, 433—434 (CA5 1967); Albright v. Gates, 362 F.2d 928 (CA9 1966); Union Paving Co. v. Downer Corp., 276 F.2d 468, 471 (CA9 1960); United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213, 216—217 (CA2 1955); Markus v. Dillinger, 191 F.Supp. 732, 735 (ED Pa.1961); cf. Dewey v. West Fairmont Gas Coal Co., 123 U.S. 329, 8 S.Ct. 148, 31 L.Ed. 179 (1887); Moore v. New York Cotton Exchange, 270 U.S. 593, 608—609, 46 S.Ct. 367, 370, 70 L.Ed. 750 (1926).
32
See, e.g., Pennsylvania R. Co. v. Erie Ave. Warehouse Co., 302 F.2d 843, 844 (CA3 1962); Southern Milling Co. v. United States, 270 F.2d 80, 84 (CA5 1959); Dery v. Wyer, 265 F.2d 804, 807—808 (CA2 1959); Waylander-Peterson Co. v. Great Northern R. Co., 201 F.2d 408, 415 (CA8 1953).
33
Cf. Shakman, The New Pendent Jurisdiction of the Federal Courts, 20 Stan.L.Rev. 262, 265—266, 270—271 (1968).
34
Rundle v. Madigan, 331 F.Supp. 492, 495 N. 5 (ND Cal.1971).
35
Ibid.
36
Since we hold in Part III that the County is a citizen of California for purposes of diversity jurisdiction, the state law claim against the County will in fact be before the District Court on remand in the Moor case. But this fact does not in our opinion call for further consideration of the pendent jurisdiction issue by the District Court. Given our decision in Part III, the issue of pendent jurisdiction is without further consequence for petitioner Moor. And it is clear that the mere fact that the County will be before the District Court in petitioner Moor's case does not significantly affect the basis of the District Court's discretionary judgment with respect to petitioner Rundle's suit. For counsel for petitioners specifically indicated at oral argument that the petitioners' suits were consolidated only for purposes of appeal, and that petitioners' 'injuries are different and the cases will be tried separately,' Tr. of Oral Arg. 47. Thus, even considering our decision in Part III as to petitioner Moor's claim against the County, we see no reason to upset the District Court's determination that it would not hear the complicating state law claim against the County where, as in Rundle's suit, it has a choice in light of the substantial element of discretion inherent in the doctrine of pendent jurisdiction.
37
Appendix E to Pet. for Cert. 18—19.
38
State Highway Comm'n of Wyoming v. Utah Construction Co., 278 U.S. 194, 199, 49 S.Ct. 104, 106, 73 L.Ed. 262 (1929).
39
Under 28 U.S.C. § 1332(c), a corporation is, of course, also a citizen of 'the State where it has its principal place of business.'
40
Indeed, Mercer County was able to point to a provision of state law that limited liability of Illinois counties to suit in the circuit courts of the county itself. Nevertheless, this Court concluded that 'no statute limitation of suability can defeat a jurisdiction given by the Constitution,' 7 Wall. 118, 122, 19 L.Ed. 86. Moreover, subsequent to Cowles, the Court ruled that a county was subject to diversity jurisdiction even where there was no state statute under which counties were authorized to sue and be sued. See Chicot County v. Sherwood, 148 U.S. 529, 531, 533 534, 13 S.Ct. 695, 696, 697, 37 L.Ed. 546 (1893).
41
See Cal.Govt.Code § 23000.
42
See id., § 23003.
43
See id., §§ 945, 23004(a).
44
See id., § 940.4.
45
See id., § 940.6.
46
Thus, any liability on the part of the County as a result of this suit would be the County's alone; no obligation would arise with respect to the State.
47
See Cal.Govt.Code § 50171.
48
See id., §§ 23004(d), 25520—25539.
49
See id., §§ 23004(c), 25450—25467.
50
See id., §§ 25690—26224.
51
See id., §§ 29900—29929.
52
See id., §§ 29922—29924.
53
See id., §§ 29925—29927.
54
We do think it bears noting, though, that the Court of Appeals, in initially concluding in Miller v. County of Los Angeles, 341 F.2d 964 (CA9 1965), that California counties were not citizens for diversity purposes, made no effort to analyze independently the status of California counties but simply rested its decision on its prior opinion in Lowe v. Manhattan Beach City School Dist., 222 F.2d 258, 259 (CA9 1955). Lowe in fact did not involve a suit against a California county but rather a suit against a California school district. And, in Lowe the Court of Appeals did not undertake any analysis of the legal character of even California school districts—much less California counties—but instead rested its decision on the equally conclusory order of the District Court, see Lowe v. Manhattan Beach City School Dist., No. 16646—WM Civil (SD Cal.1954), reprinted in Brief for Petitioners Appendix A. Moreover, district courts in States other than California within the Ninth Circuit have questioned the correctness of Lowe and Miller, and have refused to follow those decisions for counties of their own States. See Universal Surety Co. v. Lescher & Mahoney, Arch. & Eng., 340 F.Supp. 303 (Ariz.1972); White v. Umatilla County, 247 F.Supp. 918 (Or.1965).
| 12
|
411 U.S. 655
93 S.Ct. 1804
36 L.Ed.2d 567
UNITED STATES, Petitioner,v.PENNSYLVANIA INDUSTRIAL CHEMICAL CORPORATION.
No. 72—624.
Argued March 27, 1973.
Decided May 14, 1973.
Syllabus
After the District Court refused respondent's offers of proof of reliance on Army Corps of Engineers regulations limiting violations to those impeding navigation, respondent was convicted of violating § 13 of the Rivers and Harbors Act of 1899 by discharging industrial pollutants into a navigable river. The Court of Appeals reversed on the ground that § 13 did not apply absent formalized permit procedures or, alternatively, that respondent should have been allowed to prove that it was affirmatively misled by the Corps of Engineers regulations to believe that no permit was needed for these industrial pollutants. Held:
1. Section 13 prohibitions apply without regard to formalized permit procedures that it authorizes but does not mandate, and Congress did not intend to permit discharges specifically prohibited by § 13 when it enacted the 1965 and 1970 water quality acts directing States to create pollution prevention and abatement programs. Pp. 662—670.
2. Although § 13 bars all discharges of pollutants and not only those that constitute obstructions to navigation, the Corps of Engineers consistently limited its regulations to such obstructions and thus may have deprived respondent of fair warning as to what conduct the Government intended to make criminal. Pp. 670—675.
3 Cir., 461 F.2d 468, modified and remanded to District Court.
William Bradford Reynolds, Washington, D.C., for petitioner.
Harold Gondelman, Pittsburgh, Pa., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
We review here the reversal by the Court of Appeals for the Third Circuit of respondent's conviction for violation of § 131 of the Rivers and Harbors Act of 1899, 30 Stat. 1152, 33 U.S.C. § 407. Two questions are presented. The first is whether the Government may prosecute an alleged polluter under § 13 in the absence of the promulgation of a formal regulatory-permit program by the Secretary of the Army.2 The second is whether, if the prosecution is maintainable despite the nonexistence of a formal regulatory-permit program, this respondent was entitled to assert as a defense its alleged reliance on the Army Corps of Engineers' longstanding administrative construction of § 13 as limited to water deposits that impede or obstruct navigation.
2
On April 6, 1971, the United States filed a criminal information against the respondent, Pennsylvania Industrial Chemical Corp. (PICCO), alleging that on four separate occasions in August 1970 the corporation had discharged industrial refuse matters3 into the Monongahela River4 in violation of § 13 of the 1899 Act. By its terms, § 135 prohibits the discharge or deposit into navigable waters of 'any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.' The second proviso to § 13 provides, however, that 'the Secretary of the Army . . . may permit the deposit'6 of refuse matter deemed by the Army Corps of Engineers not to be injurious to navigation, 'provided application is made to (the Secretary) prior to depositing such material . . ..'7 At trial, it was stipulated that PICCO operated a manufacturing plant on the bank of the Monongahela River, that PICCO-owned concrete and iron pipes discharged the refuse mater into the river, and that PICCO had not obtained a permit from the Secretary of the Army prior to the discharges in question. PICCO argued, however, that the discharges did not violate § 13 because (1) the liquid solution flowing from tis pipes was 'sewage' exempt from the statutory proscription; (2) the discharge did not constitute 'refuse matter' within the meaning of § 13 because it was not matter that would 'impede nevigation'; and (3) the term 'refuse' as used in § 13 must be defined in light of the water quality standards established pursuant to the Water Pollution Control Act of 1948 and its amendments.8 In addition, PICCO sought to introduce evidence to show that its failure to obtain a § 13 permit was excusable in this instance because prior to December 19709 the Army Corps of Engineers had not established a formal program for issuing permits under § 13 and, moreover, because the Corps consistently construed § 13 as limited to those deposits that would impede or obstruct navigation, thereby affirmatively misleading PICCO into believing that a § 13 permit was not required as a condition to discharges of matter involved in this case. The District Court rejected each of PICCO's arguments as to the scope and meaning of § 13, disallowed PICCO's offers of proof on the ground that they were not relevant to the issue of guilt under § 13, and intstructed in jury accordingly. PICCO was convicted on all four counts and assessed the maximum fine of $2,500 on each count. 329 F.Supp. 1118 (WDPa.1971).
3
On appeal, the Court of Appeals for the Third Circuit affirmed the District Court's holdings as to the application of § 13 to the matter discharged by PICCO into the river,10 but rejected the District Court's conclusion that the § 13 prohibition was operative in the absence of formalized permit procedures. 461 F.2d 468 (CA3 1972). The Court of Appeals reasoned that this interpretation was tantamount to reading § 13 to be an absolute prohibition against the deposit of any 'foreign substance' into the navigable waters of the country and this would have had such a 'drastic impact . . . on the nation's economy even in 1899,' id., at 473, that this interpretation could not reasonably be imputed to Congress. Instead, the Court of Appeals concluded that Congress intended to condition enforcement of § 13 on the creation and operation of an administrative permit program. The Court of Appeals stated:
4
'Congress contemplated a regulatory program pursuant to which persons in PICCO's position would be able to discharge industrial refuse at the discretion of the Secretary of the Army. It intended criminal penalties for those who failed to comply with this regulatory program. Congress did not, however, intend criminal penalties for people who failed to comply with a non-existent regulatory program.' Id., at 475.
5
The Court of Appeals seems to have found support for this interpretation of § 13 in 'Congress' subsequent enactments in the water quality field.' Id., at 473. The court stated that '(t)here would appear to be something fundamentally inconsistent between the program of developing and enforcing water quality standards under the Water Quality Act and section 407 of the Rivers and Harbors Act (§ 13), if the effect of the latter is to prohibit all discharges of industrial waste into navigable waters.' Ibid. As it viewed the matter, '(w)hat makes the two statutes compatible is the permit program contemplated by Section 13.' Ibid. Accordingly, the Court of Appeals held that it was error for the District Court to have refused PICCO the opportunity to prove the nonexistence of a formal permit program at the time of the alleged offenses.
6
As an alternative ground for reversal, a majority of the Court of Appeals held that the District Court erred in disallowing PICCO's offer of proof that it had bene affirmatively misled by the Corps of Engineers into believing that it was not necessary to obtain a § 13 permit for the discharge of industrial effluents such as those involved in this case. If such facts were true, the Court of Appeals stated, it would be fundamentally unfair to allow PICCO's conviction to stand.
7
Thus, the Court of Appeals set aside PICCO's conviction and remanded the case to the District Court to give PICCO an opportunity to present the proffered proofs that had been disallowed by the District Court.
8
We granted the Government's petition for certiorari. 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662 (1972). We agree with the Court of Appeals tht the District Court's judgment of conviction must be reversed, but we cannot agree with the Court of Appeals' interpretation of § 13 as foreclosing prosecution in the absence of the existence of a formal regulatory-permit program.
9
* Section 13 creates two separate offenses: the discharge or deposit of 'any refuse matter' into navigable waters (with the streets-and-sewers exception); and the deposit of 'material of any kind' on the bank of any navigable waterway or tributary where it might be washed into the water and thereby impede or obstruct navigation. La Merced, 84 F.2d 444, 445 (CA9 1936); United States v. Consolidation Coal Co., 354 F.Supp. 173, 175 (N.D.W.Va.1973). The second proviso to § 13 authorizes the Secretary of the Army to exempt certain water deposits from the prohibitions of § 13, 'provided application is made to him prior to depositing such material.' In exercising that authority, the proviso requires the Secretary to rely on the judgment of the Chief of Engineers that anchorage and navigation will not be injured by such deposits. But, even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary's authority discretionary—i.e., the proviso provides that the Secretary 'may permit' the deposit. The proviso further requires that permits issued by the Secretary are to prescribe limits and conditions, any violation of which is unlawful. It is crucial to our inquiry, however, that neither the proviso nor any other provision of the statute requires that the Secretary prescribe general regulations or set criteria governing issuance of permits.
10
Thus, while nothing in § 13 precludes the establishment of a formal regulatory program by the Secretary, it is equally clear that nothing in the section requires the establishment of such a program as a condition to rendering § 13 operative. United States v. Granite State Packing Co., 470 F.2d 303, 304 (CA1 1972). In contrast, other provisions of the Rivers and Harbors Act of 1899,11 do include a requirement for regulations. Consequently we disagree with the Court of Appeals that § 13 itself precludes prosecution for violation of its provisions in the absence of a formal regulatory-permit program.
11
Similarly, there is nothing in the legislative history of § 13 that supports the conclusion of the Court of Appeals that such a requirement is to be read into the section. Section 13 is one section of a comprehensive law enacted in 1899 to codify pre-existing statutes designed to protect and preserve our Nation's navigable waterways. United States v. Standard Oil Co., 384 U.S. 224, 226, 86 S.Ct. 1427, 1428, 16 L.Ed.2d 492 (1966).
12
The history of the 1899 Act begins with this Court's decision in 1888 in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629. The Court there held that there was no federal common law prohibiting obstructions and nuisances in navigable waters. In response to that decision, Congress passed a series of laws that were later reenacted as the Rivers and Harbors Act of 1899. Section 6 of the first such law, the Rivers and Harbors Act of 1890, provided in part:
13
'That it shall not be lawful to cast, throw, empty, or unlade, or cause, suffer, or procure to be cast, thrown, emptied, or unladen, either from or out of any ship, vessel, lighter, barge, boat, or other craft, or from the shore, pier, wharf, furnace, manufacturing establishments, or mills of any kind whatever, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind into any port, road, roadstead, harbor, haven, navigable river, or navigable waters of the United States which shall tend to impede or obstruct navigation, or to deposit or place or cause, suffer, or procure to be deposited or placed, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, or other waste in any place or situation on the bank of any navigable waters where the same shall be liable to be washed into such navigable waters, either by ordinary or high tides, or by storms or floods, or othrwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend or be construed to extend . . . to prevent the depositing of any substance above mentioned under a permit from the Secretary of War, which he is hereby authorized to grant, in any place designated by him where navigation will not be obstructed thereby.' 26 Stat. 453.
14
Four years later, Congress enacted the Rivers and Harbors Act of 1894. Section 6 of that Act provided in part:
15
'That it shall not be lawful to place, discharge, or deposit, by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the waters of any harbor or river of the United States, for the improvement of which money has been appropriated by Congress, elsewhere than within the limits defined and permitted by the Secretary of War; neither shall it be lawful for any person or persons to move, destroy, or injure in any manner whatever any seawall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, in whole or in part, for the preservation and improvement of any of its navigable waters, or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks . . ..' 28 Stat. 363.12
16
In 1896, Congress commissioned the Secretary of War to compile the various acts protecting navigable waters and 'to submit the same to Congress . . . together with such recommendation as to revision, emendation, or enlargement of the said laws as, in his judgment, will be advantageous to the public interest.'13 The Secretary, in turn, delegated the task to the Chief of Engineers, and in February 1897, the Chief of Engineers delivered a draft proposal to the Secretary together with a cover letter that read in part:
17
'I have the honor to submit herewith (1) a compilation (of the various existing laws protecting navigable waters) and (2) a draft of an act embodying such revision and enlargement of the aforesaid laws as the experience of this office has shown to be advantageous to the public interest.'14
18
In his compilation, the Chief of Engineers combined the essentials of § 6 of the 1890 Act and of § of the 1894 Act to form the present § 13 of the Rivers and Harbors Act of 1899. Congress enacted the compilation with virtually no debate that contains mention of the intended operative scope of § 13. It seems quite clear, however, that § 13 was intended to have no wider or narrower a scope than that of its two predecessor statutes. United States v. Standard Oil Co., 384 U.S., at 227—228, 86 S.Ct., at 1428—1429. It is true, of course, that the Chief of Engineers was authorized to recommend a 'revision' or 'enlargement' of the existing laws and that his cover letter accompanying the compilation referred to 'a draft of an act embodying such revision and enlargement of the aforesaid laws.' But the revision and enlargement were limited to 'the existing law relating to the removal of wrecks,'15 and even on that subject the changes were minor. Indeed, Senator Frye, the Chairman of the Senate Rivers and Harbors Committee, stated in response to a question whether any great change was made in the existing law by the compilation: 'Oh, no. There are not ten words changed in the entire thirteen sections. It is a compilation . . . (with) (v)ery slight changes to remove ambiguities.'16
19
Thus, the Court of Appeals' interpretation of § 13 has no support in the predecessor statutes of § 13. Plainly, neither of the predecessor statutes contemplated that application of their operative provisions would turn on the existence of a formal regulatory program. On the contrary, § 6 of the 1890 Act provided only that its absolute ban on the discharge of enumerated substances could not be construed 'to prevent' the Secretary of War from granting, in his discretion, a permit to deposit such material into navigable waters. And § 6 of the 1894 Act contained no direct permit authorization whatsoever.17
20
We turn, then, to the Court of Appeals' assertion that its conclusion is supported by later congressional enactments in the water quality field. In this regard, the Court of Appeals placed primary reliance18 on the 1965 and 1970 amendments to the Water Pollution Control Act of 1948—the Water Quality Act of 1965, 79 Stat. 903, and the Water Quality Improvement Act of 1970, 84 Stat. 91.19 The Court of Appeals concluded that since the 1965 and 1970 Acts contemplated that discharges must meet minimum water quality standards, as set forth by state agencies, it would be 'fundamentally inconsistent' to read § 13 as imposing a ban on all pollutant discharges. 461 F.2d, at 473. We cannot agree. The Water Quality Acts were a congressional attempt to enlist state and local aid in a concentrated water pollution control and abatement program. The legislative directive of those statutes was that state and local officials, working in cooperation with federal officials, establish minimum water quality standards and create pollution prevention and abatement programs. Nothing in the statutes or their parent statute operated to permit discharges that would otherwise be prohibited by § 13, and in each case Congress specifically provided that the new statutes were not to be construed as 'affecting or impairing the provisions of (§ 13 of the Rivers and Harbors Act of 1899).'20
21
Indeed, the water quality legislation expressly complements the provisions of § 13 of the 1899 Act. Section 13, although authorizing the Secretary of the Army to permit certain water deposits, contains no criteria to be followed by the Secretary in issuing such permits. The water quality legislation, on the other hand, calls for the setting of minimum water qualify standards, and once such standards are established, federal permit authority, such as that vested in the Secretary of the Army by the second proviso to § 13, is specifically limited to that extent—i.e., a permit could not be granted by the Secretary unless the discharge material met the applicable standards. Water Quality Improvement Act of 1970, § 103, 84 Stat. 107. In essence, therefore, the Water Quality Acts placed a limitation on the Secretary's permit authority without undermining the general prohibitions of § 13. See United States v. Maplewood Poultry Co., 327 F.Supp. 686, 688 (D.C.Me.1971); United States v. United States Steel Corp., 328 F.Supp. 354, 357 (N.D.Ind.1970); United States v. Interlake Steel Corp., 297 F.Supp. 912, 916 (N.D.Ill.1969).
22
We, therefore, find nothing fundamentally inconsistent between § 13 and the subsequent federal enactments in the water quality field. Section 13 declares in simple absolutes that have been characterized as 'almost an insult to the sophisticated wastes of modern technology'21 that '(i)t shall not be lawful' to discharge or deposit into navigable waters of the United States 'any refuse matter of any kind or description whatever' except as permitted by the Secretary of the Army. In enacting subsequent legislation in the water quality field, Congress took special precautions to preserve the broad prohibitions of § 13 and in no way implied that those prohibitions were operative only under a formal regulatory-permit program. Similarly, nothing in the language or history of § 13 conditions enforcement of its prohibitions on the establishment of a formal regulatory-permit program and, as we have said in the past, 'the history of this provision and of related legislation dealing with our free- flowing rivers 'forbids a narrow, cramped reading' of § 13.' United States v. Standard Oil Co., 384 U.S., at 226, 86 S.Ct., at 1428; United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 889, 4 L.Ed.2d 903 (1960).
II
23
We turn, therefore, to the Court of Appeals' alternative ground for reversing PICCO's conviction, namely, that in light of the longstanding, official administrative construction of § 13 as limited to those water deposits that tend to impede or obstruct navigation, PICCO may have been 'affirmatively misled' into believing that its conduct was not criminal.22 We agree with the Court of Appeals that PICCO should have been permitted to present relevant evidence to establish this defense.
24
At the outset, we observe that the issue here is not whether § 13 in fact applies to water deposits that have no tendency to affect navigation. For, although there was much dispute on this question in the past,23 in United States v. Standard Oil Co., supra, we held that 'the 'serious injury' to our watercourses . . . sought to be remedied (by the 1899 Act) was caused in part by obstacles that impeded navigation and in part by pollution,' and that the term 'refuse' as used in § 13 'includes all foreign substances and pollutants . . ..' 384 U.S., at 228—229, 230, 86 S.Ct. at 1429, 1430.24 See also Illinois v. City of Milwaukee, 406 U.S. 91, 101, 92 S.Ct. 1385, 1391, 31 L.Ed.2d 712 (1972). Since then, the lower courts have almost universally agreed, as did the courts below, that § 13 is to be read in accordance with its plain language as imposing a flat ban on the unauthorized deposit of foreign substances into navigable waters, regardless of the effect on navigation. See, e.g., United States v. Granite State Packing Co., D.C., 343 F.Supp. 57, aff'd, 470 F.2d 303 (CA1 1972); United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (CA3 1967); United States v. Consolidation Coal Co., 354 F.Supp. 173 (N.D.W.Va.1973); United States v. Genoa Cooperative Creamery Co., 336 F.Supp. 539 (W.D.Wis.1972); United States v. Maplewood Poultry Co., 327 F.Supp. 686 (D.C. Me.1971); United States v. United States Steel Corp., 328 F.Supp. 354 (N.D.Ind.1970); United States v. Interlake Steel Corp., 297 F.Supp. 912 (N.D.Ill.1969); contra, Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971), aff'd, 456 F.2d 1294 (CA5 1972).
25
Nevertheless, it is undisputed that prior to December 1970 the Army Corps of Engineers consistently construed § 13 as limited to water deposits that affected navigation. Thus, at the time of our decision in Standard Oil, the published regulation pertaining to § 13 read as follows:
26
's 209.395. Deposit of refuse. Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407), prohibits the deposit in navigable waters generally of 'refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.' The jurisdiction of the Department of the Army, derived from the Federal laws enacted for the protection and preservation of the navigable waters of the United States, is limited and directed to such control as may be necessary to protect the public right of navigation. Action under section 13 has therefore been directed by the Department principally against the discharge of those materials that are obstructive or injurious to navigation.' 33 CFR § 209.395 (1967).
27
In December 1968, the Corps of Engineers published a complete revision of the regulations pertaining to navigable waters. The new regulations pertaining to §§ 9 and 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401 and 403, dealing with construction and excavation in navigable waters, stated for the first time that the Corps would consider pollution and other conservation and environmental factors in passing on applications under those sections for permits to 'work in navigable waters.' 33 CFR § 209.120(d) (1969). But notwithstanding this reference to environmental factors and in spite of our intervening decision in Standard Oil, the new regulation pertaining to § 13 of the 1899 Act continued to construe that provision as limited to water deposits that affected navigation:
28
'Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. § 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. § 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U.S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District.' 33 CFR § 209.200(e)(2) (1969).25
29
At trial, PICCO offered to prove that, in reliance on the consistent, longstanding administrative construction of § 13, the deposits in question were made in good-faith belief that they were permissible under law. PICCO does not contend, therefore, that it was ignorant of the law or that the statute is impermissibly vague, see Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), but rather that it was affirmatively misled by the responsible administrative agency into believing that the law did not apply in this situation. Cf. Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965).
30
Of course, there can be no question that PICCO had a right to look to the Corps of Engineers' regulations for guidance. The Corps is the responsible administrative agency under the 1899 Act, and 'the rulings, interpretations and opinions of the (responsible agency) . . ., while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which . . . litigants may properly resort for guidance.' Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 499, 78 S.Ct. 851, 862, 2 L.Ed.2d 926 (1958). Moreover, although the regulations did not of themselves purport to create or define the statutory offense in question, see United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960), it is certainly true that their designed purpose was to guide persons as to the meaning and requirements of the statute. Thus, to the extent that the regulations deprived PICCO of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution. See Newman, Should Official Advice Be Reliable?—Proposals as to Estoppel and Related Doctrines in Administrative Law, 53 Col.L.Rev. 374 (1953); Note, Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 1046 (1969).
31
The Government argues, however, that our pronouncement in Standard Oil precludes PICCO from asserting reliance on the Corps of Engineers' regulations and that, in any event, the revised regulation issued in 1968, when considered in light of other pertinent factors,26 was not misleading to persons in PICCO's position. But we need not respond to the Government's arguments here, for the substance of those arguments pertains, not to the issue of the availability of reliance as a defense, but rather to the issues whether there was in fact reliance and, if so, whether that reliance was reasonable under the circumstances issues that must be decided in the first instance by the trial court. At this stage, it is sufficient that we hold that it was error for the District Court to refuse to permit PICCO to present evidence in support of its claim that it had been affirmatively misled into believing that the discharges in question were not a violation of the statute.
32
Accordingly, the judgment of the Court of Appeals is modified to remand the case to the District Court for further proceedings consistent with this opinion.
33
It is so ordered.
34
THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice POWELL dissent in part, because they agree with the Court of Appeals that the respondent on remand should also be given the opportunity to prove the non-existence of a permit program at the time of the alleged offenses.
35
Mr. Justice BLACKMUN and Mr. Justice REHNQUIST agree with Part I, but believing that the Court's opinion and judgment in United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), make absolutely clear the meaning and reach of § 13 with respect to PICCO's industrial discharge into the Monongahela River; that subsequent reliance upon any contrary administrative attitude on the part of the Corps of Engineers, express or by implication, is unwarranted; and that the District Court was correct in rejecting PICCO's offer of proof of reliance as irrelevant, would reverse the Court of Appeals with directions to reinstate the judgment of conviction.
1
Section 13, 33 U.S.C. § 407, provides:
'It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.'
Section 16 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 411, provides:
'Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than 500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.'
2
A formal permit program under § 13 was established subsequent to the dates of the alleged violations involved in this case. See n. 9, infra. On October 18, 1972, Congress passed a comprehensive piece of legislation providing for national water quality standards and for a federal permit program relating to the discharge of pollutants into navigable waters. Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92—500, 86 Stat. 816. Section 402 of the 1972 Act, 33 U.S.C. § 1342, prohibits further issuance of permits under § 13 of the Rivers and Harbors Act of 1899 and designates the Administrator of the Environmental Protection Agency as the exclusive authority to permit discharges of pollutants into navigable waters.
3
The refuse matters were identified as 'iron, aluminum, and compounds containing these chemicals, and chlorides, phosphates, sulfates and solids.' App. 3.
4
The Monongahela River is a 128-mile-long, navigable waterway that flows through western Pennsylvania and northern West Virginia.
5
Section 13 is sometimes referred to as the 'Refuse Act of 1899,' but that term is a post-1970 label not used by Congress, past or present. Moreover, some authors use the term to refer only to § 13, see, e.g., Note, The Refuse Act of 1899: New Tasks for an Old Law, 22 Hastings L.J. 782 (1971), while others use it to refer to the entire Rivers and Harbors Act of 1899, see, e.g., Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U.Pa.L.Rev. 761, 766 (1971).
6
It has been suggested that since § 13 prohibits the 'discharge, or deposit' of refuse but authorizes the Secretary to permit only 'the deposit' of refuse, it may be appropriate to distinguish between a 'discharge' and a 'deposit' and hold that only a 'deposit' of refuse may be permitted by the Secretary. Hearings before the Subcommittee on the Environment of the Senate Committee on Commerce, 92d Cong., 1st Sess., 31 (1971). However, we find no support for such a distinction in either the Act itself or its legislative history.
7
The Secretary's authority to issue permits under § 13 terminated on October 18, 1972. See n. 2, supra.
8
62 Stat. 1155, as amended Act of July 17, 1952, c. 927, 66 Stat. 755; Water Pollution Control Act Amendments of 1956, 70 Stat. 498; Federal Water Pollution Control Act Amendments of 1961, Pub.L. 87—88, 75 Stat. 204; Water Quality Act of 1965, Pub.L. 89 234, 79 Stat. 903; Clean Water Restoration Act of 1966, Pub.L. 89 753, 80 Stat. 1246; Water Quality Improvement Act of 1970, Pub.L. 91—224, 84 Stat. 91.
9
On December 23, 1970, the President announced the establishment of a formal § 13 permit program. Executive Order 11574, 35 Fed.Reg. 19627 (Dec. 25, 1970). The Corps of Engineers followed on December 30, 1970, with proposed regulations. 35 Fed.Reg. 20005 (Dec. 31, 1970). Final regulations implementing the President's grogram became effective April 7, 1971. 33 CFR § 209.131 (1972). That program, with certain changes, has now become part of the new permit program authorized by § 402 of the Federal Water Pollution Control Act Amendments of 1972. See n. 2, supra.
10
This part of the Court of Appeals' decision is not before us for review. See Brennan v. Arnheim & Neely, Inc., 410 U.S. 512, 516, 93 S.Ct. 1138, 1141, 35 L.Ed.2d 463 (1973); NLRB v. International Van Lines, 409 U.S. 48, 52 n. 4, 93 S.Ct. 74, 77, 34 L.Ed.2d 201 (1972).
11
See § 11 of the Act, 33 U.S.C. § 404, which instructs the Secretary of the Army to establish harbor lines beyond which works may not be extended or deposits made 'except under such regulations as may be prescribed from time to time by him.' See also § 4 of the Rivers and Harbors Act of 1905, 33 Stat. 1147, 33 U.S.C. § 419, authorizing regulations regarding the transportation and dumping of dredging material.
12
This section of the 1894 Act, as well as § 6 of the 1890 Act, was modeled after statutes passed in 1888 and 1886 pertaining only to New York Harbor. See United States v. Standard Oil Co., 384 U.S. 224, 226—228, 86 S.Ct. 1427, 1428—1429, 16 L.Ed.2d 492 (1966).
13
Act of June 3, 1896, c. 314, § 2, 29 Stat. 234.
14
H.R.Doc. No. 293, 54th Cong., 2d Sess. (1897).
15
Ibid. See 33 U.S.C. § 414.
16
32 Cong.Rec. 2297 (1899).
17
It is true that § 6 of the 1894 Act prohibited discharges and deposits only 'elsewhere than within the limits defined and permitted by the Secretary of War,' but that language did not contemplate the establishment of a formal regulatory program by the Secretary. Section 6 of the 1890 Act granted the Secretary discretionary authority to permit nonimpeding discharges and nothing in the 1894 Act purported to curtail that earlier grant of authority to the Secretary. Thus, the reference in the 1894 provision to 'limits defined and permitted by the Secretary' refers merely to the Secretary's existing permit authority under the 1890 provision.
18
Inferentially, the Court of Appeals also referred to § 4 of the Rivers and Harbors Act of 1905, 33 U.S.C. § 419. See 461 F.2d 468, 475 n. 7. But that provision, which was originally proposed as an amendment to § 13 of the 1899 Act and clearly contemplated the establishment of a formal regulatory program by the Secretary (although it did not require that such a program be established), provides no support for the Court of Appeals' interpretation of § 13. On the contrary, the existence of § 4 of the 1905 Act tends to confirm the conclusion that § 13 is not conditioned on the establishment of a formal regulatory program. For the legislative history of § 4 explains that it was deemed desirable to give the Secretary authority to promulgate general permissive dumping regulations as to some bodies of water (such as New York and Boston Harbors) because a large amount of illegal dumping was going on in these waters at night and it was 'almost impossible to detect' the violators, thereby making it 'impossible to secure convictions.' 39 Cong.Rec. 3078 (1905). A formal regulatory program, in other words, was the lesser of two evils as to these bodies of water since there were insufficient facilities and personnel to effectively enforce the general prohibitions of § 13. The implication is clear, however, that had the persons responsible for the unauthorized dumping been discovered, prosecution for violation of § 13 would have been the appropriate remedy, even though then, as at the time of the present offenses, there existed no formal regulatory program under § 13.
No explanation was given by Congress for its ultimate decision to codify § 4 of the 1905 Act separately rather than as an amendment to § 13. Possibly, Congress hoped that such regulations would be issued sparingly so as not to eviscerate the broad antidumping prohibitions of § 13. In any event, the Secretary's discretionary regulatory-program authority under § 4 of the 1905 Act certainly cannot be read into § 13 as an operative requirement, and absent establishment of a regulatory program under § 4 of the 1905 Act as to a particular body of water, the prohibitions of § 13 remain intact and completely enforceable.
19
These statutes are to a large extent superseded by the 1972 amemdnemts to the Water Pollution Control Act. See n. 2, supra.
20
See § 11 of the Water Pollution Control Act of 1948, 62 Stat. 1161, as amended in 1956, 70 Stat. 507, as further amended by the Water Quality Act of 1965, 79 Stat. 903, and as further amended by the Water Quality Improvement Act of 1970, 84 Stat. 113.
21
Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U.Pa.L.Rev. 761, 766 (1971).
22
It was conceded for purposes of this case that the refuse matter involved was not of a nature that would impede or obstruct navigation. 461 F.2d, at 478. See also n. 3, supra.
23
The seeming ambiguity of the language of § 13 and the sparse legislative history of that provision caused the lower courts to disagree over the years as to the proper scope of § 13. The second clause of § 13, which prohibits the deposit of refuse on the 'bank' of any navigable water or tributary where such refuse may be washed into the water, is expressly limited to deposits that shall or may impede or obstruct navigation. The first clause of § 13, however, which is set off from the second clause by a semicolon, contains no language of its own limiting its prohibition to navigation-impeding deposits. Similarly, in regard to the two predecessor statutes of § 13, § 6 of the 1890 Act was expressly limited to navigation-impeding deposits, but § 6 of the 1894 Act was not. And the legislative history of § 13 and its predecessor statutes is hardly conclusive on this issue. But see Comment, Discharging New Wine into Old Wineskins: The Metamorphosis of the Rivers and Harbors Act of 1899, 33 U.Pitt.L.Rev. 483 (1972).
See as construing § 13 to be applicable to all water deposits regardless of their tendency to obstruct or impede navigation, La Merced, 84 F.2d 444 (CA9 1936); The President Coolidge, 101 F.2d 638 (CA9 1939); United States v. Ballard Oil Co. of Hartford, 195 F.2d 369 (CA2 1952). See as construing § 13 to be applicable only to navigation-impeding deposits, United States v. Crouch (1922) (unreported, see United States v. Standard Oil Co., 384 U.S., at 229 n. 5, 86 S.Ct., at 1429; Warner-Quinlan Co. v. United States, 273 F. 503 (CA3 1921); Nicroli v. Den Norske Afrika-Og Australielinie, etc., 332 F.2d 651 (CA2 1964).
24
Standard Oil involved an accidental discharge of aviation gasoline into navigable waters. The District Court had made the finding that the gasoline 'was not such as to impede navigation.' United States v. Standard Oil Co., No. 291, O.T.1965, App. 8—11.
25
Section 4 of the Rivers and Harbors Act of 1905 authorizes the Secretary of the Army to prescribe regulations to govern the transportation and dumping into navigable waters of dredgings, earth, garbage, and other refuse matter whenever in his judgment such regulations are required 'in the interest of navigation.' 33 U.S.C. § 419. Thus, the reference to that provision in the Corps' revised regulation did not signify a change in the Corps' construction of § 13.
26
The other factors that the Government argues must be taken into consideration are post-1968 regulations issued with respect to other sections of the 1899 Act and with respect to other acts, and certain Corps of Engineers press releases and periodic publications. Brief for United States 35—38.
| 78
|
411 U.S. 677
93 S.Ct. 1764
36 L.Ed.2d 583
Sharron A. FRONTIERO and Joseph Frontiero, Appellants,v.Elliot L. RICHARDSON, Secretary of Defense, et al.
No. 71—1694.
Argued Jan. 17, 1973.
Decided May 14, 1973.
Syllabus
A married woman Air Force officer (hereafter appellant) sought increased benefits for her husband as a 'dependent' under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076. Those statutes provide, solely for administrative convenience, that spouses of male members of the uniformed services are dependents for purposes of obtaining increased quarters allowances and medical and dental benefits, but that spouses of female members are not dependents unless they are in fact dependent for over one-half of their support. When her application was denied for failure to satisfy the statutory dependency standard, appellant and her husband brought this suit in District Court, contending that the statutes deprived servicewomen of due process. From that Court's adverse ruling, they took a direct appeal. Held: The judgment is reversed. Pp. 682—691, 691—692, 341 F.Supp. 201, reversed.
Joseph J. Levin, Jr., Montgomery, Ala., for appellants.
Ruth B. Ginsburg, New York City, for American Civil Liberties Union, amicus curiae, by special leave of Court.
Samuel Huntington, Washington, D.C., for appellees.
Mr. Justice BRENNAN announced the judgment of the Court in an opinion in which Mr. Justice DOUGLAS, Mr. Justice WHITE, and Mr. Justice MARSHALL join.
1
The question before us concerns the right of a female member of the uniformed services1 to claim her spouse as a 'dependent' for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a 'dependent' without regard to whether she is in fact dependent upon him for any part of her support. 37 U.S.C. § 401(1); 10 U.S.C. § 1072(2)(A). A servicewoman, on the other hand, may not claim her husband as a 'dependent' under these programs unless he is in fact dependent upon her for over one-half of his support. 37 U.S.C. § 401; 10 U.S.C. § 1072(2)(C).2 Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge issenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. 341 F.Supp. 201 (1972). We noted probable jurisdiction. 409 U.S. 840, 93 S.Ct. 64, 34 L.Ed.2d 78 (1972). We reverse.
2
* In an effort to attract career personnel through reenlistment, Congress established, in 37 U.S.C. § 401 et seq., and 10 U.S.C. § 1071 et seq., a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry.3 Thus, under 37 U.S.C. § 403, a member of the uniformed services with dependents is entitled to an increased 'basic allowence for quarters' and, under 10 U.S.C. § 1076, a member's dependents are provided comprehensive medical and dental care.
3
Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her 'dependent.' Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support.4 Appellants then commenced this suit, contendingthat, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment.5 In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive.
4
Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members,6 a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the 'breadwinner' in the family—and the wife typically the 'dependent' partner—'it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members.' 341 F.Supp., at 207. Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District Court speculated that such differential treatment might conceivably lead to a 'considerable saving of administrative expense and manpower.' Ibid.
II
5
At the outset, appellants contend that classifications based upon sex, like classifications based upon race,7 alienage,8 and national origin,9 are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
6
In Reed, the Court considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administrator of their son's estate. Since the parties, as parents of the deceased, were members of the same entitlement class the statutory preference was invoked and the father's petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment.
7
The Court noted that the Idaho statute 'provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause.' 404 U.S., at 75, 92 S.Ct. at 253. Under 'traditional' equal protection analysis, a legislative classification must be sustained unless it is 'patently arbitrary' and bears no rational relationship to a legitimate governmental interest. See Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 115o, 1161, 25 L.Ed.2d 491 (1970).
8
In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applicants was in itself reasonable since 'men (are) as a rule more conversant with business affairs than . . . women.'10 Indeed, appellee maintained that 'it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are.'11 And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have 'concluded that in general men are better qualified to act as an administrator than are women.'12
9
Despite these contentions, however, the Court held the statutory preference for male applicants unconstitutional. In reaching this result, the Court implicitly rejected appellee's apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provide 'dissimilar treatment for men and women who are . . . similarly situated.' 404 U.S., at 77, 92 S.Ct., at 254. The Court therefore held that, even though the State's interest in achieving administrative efficiency 'is not without some legitimacy,' '(t)o 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 (Constitution) . . ..' Id., at 76, 92 S.Ct. at 254. This departure from 'traditional' rational-basis analysis with respect to sex-based classifications is clearly justified.
10
There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.13 Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:
11
'Man is, or should be, women'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. . . .
12
'. . . 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.' Bradwell v. State of Illinois, 16 Wall. 130, 141, 21 L.Ed.2d 442 (1873) (Bradley, J., concurring).
13
As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5—6 (1969); G. Myrdal, An American Dilemma 1073 (20th Anniversary ed. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right—which is itself 'preservative of other basic civil and political rights'14—until adoption of the Nineteenth Amendment half a century later.
14
It is true, of course, that the position of women in America has improved markedly in recent decades.15 Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic,16 women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.17 See generally K. Amundsen, The Silenced Majority: Women and American Democracy (1971); The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Act of 1964, 84 Harv.L.Rev. 1109 (1971).
15
Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . ..' Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1407, 31 L.Ed.2d 768 (1972). And what differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.18 As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.
16
We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of 'race, color, religion, sex, or national origin.'19 Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act 'shall discriminate . . . between employees on the basis of sex.'20 And § 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that '(e)quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.'21 Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal branch of Government is not without significance to the question presently under consideration. Cf. Oregon v. Mitchell, 400 U.S. 112, 240, 248—249, 91 S.Ct. 260, 322, 327, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, and Marshall, JJ.); Katzenbach v. Morgan, 384 U.S. 641, 648—649, 86 S.Ct. 1717, 1722, 16 L.Ed.2d 828 (1966).
17
With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.
III
18
The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 2072, 2076, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command 'dissimilar treatment for men and women who are . . . similarly situated.' Reed v. Reed, 404 U.S., at 77, 92 S.Ct., at 254.
19
Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere 'administrative convenience.' In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.22
20
The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits.23 And in light of the fact that the dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits rather than through the more costly hearing process,24 the Government's explanation of the statutory scheme is, to say the least, questionable.
21
In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, 'the Constitution recognizes higher values than speed and efficiency.' Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972). And when we enter the realm of 'strict judicial scrutiny,' there can be no doubt that 'administrative convenience' is not a shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). On the contrary, any statutory scheme which draws a sharp line between the sexes, Solely for the purpose of achieving administrative convenience, necessarily commands 'dissimilar treatment for men and women who are . . . similarly situated,' and therefore involves the 'very kind of arbitrary legislative choice forbidden by the (Constitution) . . ..' Reed v. Reed, 404 U.S., at 77, 76, 92 S.Ct., at 254. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.25
22
Reversed.
23
Mr. Justice STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.
24
Mr. Justice REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court, Frontiero v. Laird, 341 F.Supp. 201 (1972).
25
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in the judgment.
26
I agree that the challenged statutes constitute an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment, but I cannot join the opinion of Mr. Justice BRENNAN, which would hold that all classifications based upon sex, 'like classifications based upon race, alienage, and national origin,' are 'inherently suspect and must therefore be subjected to close judicial scrutiny.' Ante, at 682. It is unnecessary for the Court in this case to characterize sex as a suspect classification, with all of the far-reaching implications of such a holding. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), which abundantly supports our decision today, did not add sex to the narrowly limited group of classifications which are inherently suspect. In my view, we can and should decide this case on the authority of Reed and reserve for the future any expansion of its rationale.
27
There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democractic process, are debating the proposed Amendment. It seems to me that this reaching out to pre-empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.
28
There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.
1
The 'uniformed services' include the Army, Navy, Air Force, Marine Corps, Coast Guard, Environmental Science Services Administration, and Public Health Service. 37 U.S.C. § 101(3); 10 U.S.C. § 1072(1).
2
Title 37 U.S.C. § 401 provides in pertinent part:
'In this chapter, 'dependent,' with respect to a member of a uniformed service, means—
'(1) his spouse;
'However, a person is not a dependent of a female member unless he is in fact dependent on her for over one-half of his support . . ..'
10 U.S.C. § 1072(2) provides in pertinent part:
"Dependent,' with respect to a member . . . of a uniformed service, means—
'(A) the wife;
'(C) the husband, if he is in fact dependent on the member . . . for over one-half of his support. . . .'
3
See 102 Cong.Rec. 3849—3850 (Cong. Kilday), 8043 (Sen. Saltonstall); 95 Cong.Rec. 7662 (Cong. Kilday), 7664 (Cong. Short), 7666 (Cong. Havenner), 7667 (Cong. Bates), 7671 (Cong. Price). See also 10 U.S.C. § 1071.
4
Appellant Joseph Frontiero is a full-time student at Huntingdon College in Montgomery, Alabama. According to the agreed stipulation of facts, his living expenses, including his share of the house-hold expenses, total approximately $354 per month. Since he receives $205 per month in veterans' benefits, it is clear that he is not dependent upon appellant Sharron Frontiero for more than one-half of his support.
5
'(W)hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process." Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964); see Shapiro v. Thompson, 394 U.S. 618, 641—642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
6
The housing provisions, set forth in 37 U.S.C. § 401 et seq., were enacted as part of the Career Compensation Act of 1949, which established a uniform pattern of military pay and allowances, consolidating and revising the piecemeal legislation that had been developed over the previous 40 years. See H.R.Rep. No. 779, 81st Cong., 1st Sess.; S.Rep. No. 733, 81st Cong., 1st Sess. The Act apparently retained in substance the dependency definitions of § 4 of the Pay Readjustment Act of 1942 (56 Stat. 361), as amended by § 6 of the Act of September 7, 1944 (58 Stat. 730), which required a female member of the service to demonstrate her spouse's dependency. It appears that this provision was itself derived from unspecified earlier enactments. See S.Rep. No. 917, 78th Cong., 2d Sess., 4.
The medical benefits legislation, 10 U.S.C. § 1071 et seq., was enacted as the Dependents' Medical Care Act of 1956. As such, it was designed to revise and make uniform the existing law relating to medical services for military personnel. It, too, appears to have carried forward, without explanation, the dependency provisions found in other military pay and allowance legislation. See H.R.Rep. No. 1805, 84th Cong., 2d Sess.; S.Rep. No. 1878, 84th Cong., 2d Sess.
7
See Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 191—192, 85 S.Ct. 283, 287—288, 13 L.Ed.2d 222 (1964); Bolling v. Sharpe, supra, 347 U.S., at 499, 74 S.Ct., at 694.
8
See Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971).
9
See Oyama v. California, 332 U.S. 633, 644—646, 68 S.Ct. 269, 274—275, 92 L.Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944); Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943).
10
Brief for Appellee in No. 70—4, O.T. 1971, Reed v. Reed, p. 12.
11
Id., at 12—13.
12
Reed v. Reed, 93 Idaho 511, 514, 465 P.2d 635, 638 (1970).
13
Indeed, the position of women in this country at its inception is reflected in the view expressed by Thomas Jefferson that women should be neither seen nor heard in society's decisionmaking councils. See M. Gruberg, Women in American Politics 4 (1968). See also 2 A. de Tocqueville, Democracy in America (Reeves trans. 1948).
14
Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); see Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Kramer v. Union Free School District, 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886).
15
See generally The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice (1970); L. Kanowitz, Women and the Law: The Unfinished Revolution (1969); A. Montagu, Man's Most Dangerous Myth (4th ed. 1964); The President's Commission on the Status of Women, American Women (1963).
16
See, e.g., Note, Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment?, 84 Harv.L.Rev. 1499, 1507 (1971).
17
It is true, of course, that when viewed in the abstract, women do not constitute a small and powerless minority. Nevertheless, in part because of past discrimination, women are vastly underrepresented in this Nation's decisionmaking councils. There has never been a female President, nor a female member of this Court. Not a single woman presently sits in the United States Senate, and only 14 women hold seats in the House of Representatives. And, as appellants point out, this underrepresentation is present throughout all levels of our State and Federal Government. See Joint Reply Brief of Appellants and American Civil Liberties Union (Amicus Curiae) 9.
18
See, e.g., Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1173—1174 (1969).
19
42 U.S.C. § 2000e—2(a), (b), (c) (emphasis added). See generally, Sape & Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972); Developments in the Law—Employment Discrimination and Title VII of the Civil Rights Act of 1964, 8j Harv.L.Rev. 1109 (1971).
20
29 U.S.C. § 206(d) (emphasis added). See generally Murphy, Female Wage Discrimination: A Study of the Equal Pay Act 1963—1970, 39 U.Cin.L.Rev. 615 (1970).
21
H.R.J.Res. No. 208, 92d Cong., 2d Sess. (1972). In conformity with these principles, Congress in recent years has amended various statutory schemes similar to those presently under consideration so as to eliminate the differential treatment of men and women. See 5 U.S.C. § 2108, as amended, 85 Stat. 644; 5 U.S.C. § 7152, as amended, 85 Stat. 644; 5 U.S.C. § 8341, as amended, 84 Stat. 1961; 38 U.S.C. § 102(b), as amended, 86 Stat. 1092.
22
It should be noted that these statutes are not in any sense designed to rectify the effects of past discrimination against women. See Gruenwald v. Gardner, 390 F.2d 591 (CA2), cert. denied, 393 U.S. 982, 89 S.Ct. 456, 21 L.Ed.2d 445 (1968); cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). On the contrary, these statutes seize upon a group—women—who have historically suffered discrimination in employment, and rely on the effects of this past discrimination as a justification for heaping on additional economic disadvantages. Cf. Gaston County v. United States, 395 U.S. 285, 296—297, 89 S.Ct. 1720, 1725—1726, 23 L.Ed.2d 309 (1969).
23
In 1971, 43% of all women over the age of 16 were in the labor force, and 18% of all women worked full time 12 months per year. See U.S. Women's Bureau, Dept. of Labor, Highlights of Women's Employment & Education 1 (W.B.Pub. No. 72—191, Mar. 1972). Moreover, 41.5% of all married women are employed. See U.S. Bureau of Labor Statistics, Dept. of Labor, Work Experience of the Population in 1971, p. 4 (Summary Special Labor Force Report, Aug. 1972). It is also noteworthy that, while the median income of a male member of the armed forces is approximately $3,686, see The Report of the President's Commission on an All-Volunteer Armed Force 51, 181 (1970), the median income for all women over the age of 14, including those who are not employed, is approximately $2,237. See Statistical Abstract of the United States Table No. 535 (1972), Source: U.S. Bureau of the Census, Current Population Reports, Series P—60, No. 80. Applying the statutory definition of 'dependency' to these statistics, it appears that in the 'median' family, the wife of a male member must have personal expenses of approximately $4,474, or about 75% of the total family income, in order to qualify as a 'dependent.'
24
Tr. of Oral Arg. 27—28.
25
As noted earlier, the basic purpose of these statutes was to provide fringe benefits to members of the uniformed services in order to establish a compensation pattern which would attract career personnel through re- enlistment. See n. 3, supra, and accompanying text. Our conclusion in no wise invalidates the statutory schemes except insofar as they require a female member to prove the dependency of her spouse. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (CA10 1972). See also 1 U.S.C. § 1.
| 12
|
411 U.S. 726
93 S.Ct. 1773
36 L.Ed.2d 620
FEDERAL MARITIME COMMISSION, Petitioner,v.SEATRAIN LINES, INC., et al.
No. 71—1647.
Argued March 21, 1973.
Decided May 14, 1973.
Syllabus
In enacting § 15 of the Shipping Act, 1916, Congress conferred on the Federal Maritime Commission (FMC) the power to exempt from the antitrust laws agreements, or those portions of agreements, between carriers that create an ongoing arrangement in which both parties undertake continuing responsibilities, and which therefore necessitate continuous FMC supervision, but not one-time acquisition-of-assets agreements that result in one of the contracting parties ceasing to exist. Pp. 731—746.
148 U.S.App.D.C. 424, 460 F.2d 932, affirmed.
Edward G. Gruis, Washington, D.C., for petitioner.
Irwin A. Seibel, Washington, D.C., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Section 15 of the Shipping Act, 1916, 39 Stat. 733, as amended, 46 U.S.C. § 814, requires all persons subject to the Act to file with the Federal Maritime Commission1 every agreement within specified categories reached with any other person subject to the Act. The section further empowers the Commission to disapprove, cancel, or modify any such agreement which it finds to be unjustly discriminatory, to the detriment of the commerce of the United States, contrary to the public interest, or violative of the terms of the Act.2 The Commission is directed to approve all other agreements, and the statute expressly provides that agreements so approved are exempt from the antitrust laws.3
2
The question presently before us is whether a contract which calls for the acquisition of all the assets of one carrier by another carrier and which creates no ongoing obligations is an 'agreement' within the meaning of this section. The question is of some importance, since if such contracts are not approved by the Commission, the antitrust laws are fully applicable to them. See Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 86 S.Ct. 781, 15 L.Ed.2d 709 (1966). Cf. United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1939). But cf. United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408 (1932); Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952). On the other hand, if they are within the Commission's jurisdiction, the Commission may approve them even though they are violative of the antitrust laws, although the Commission must take antitrust principles into account in reaching its decision. See Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 273—274, 88 S.Ct. 929, 936—937, 19 L.Ed.2d 1090 (1968); FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 244—246, 88 S.Ct. 1005, 1009—1010, 19 L.Ed.2d 1071 (1968).
3
In this case, the Court of Appeals for the District of Columbia Circuit concluded that § 15 did not confer jurisdiction upon the Commission to approve discrete acquisition-of-assets agreements. In so holding, it followed a prior District Court decision in United States v. R. J. Reynolds Tobacco Co., 325 F.Supp. 656 (N.J.1971), but declined to follow a Ninth Circuit holding that the Commission had such jurisdiction. See Matson Navigation Co. v. FMC, 405 F.2d 796 (CA9, 1968). We granted certiorari in order to resolve this conflict and because the case posed an important issue concerning the interface between the antitrust laws and the Commission's regulatory powers. We conclude that in enacting § 15, Congress did not intend to invest the Commission with the power to shield from antitrust liability merger or acquisition-of-assets agreements which impose no ongoing responsibilities. Rather, Congress intended to invest the Commission with jurisdiction over only those agreements, or those portions of agreements, which created ongoing rights and responsibilities and which, therefore, necessitated continuous Commission supervision. We therefore affirm the judgment below.
4
* This case was initiated when respondent Seatrain Lines, Inc. (Seatrain) filed a protest with the Commission against an agreement reached between Pacific Far East Lines, Inc. (PFEL) and Oceanic Steamship Co. (Oceanic), both of which are also respondents here, whereby Oceanic agreed to sell all its assets to PFEL. Under the terms of the agreement, Oceanic promised to transfer its entire fleet and all the related equipment together with Oceanic's interest in two container ships then being constructed and all of Oceanic's employees to PFEL. Although Oceanic did not formally merge with PFEL and retained its corporate existence, it was left as a shell corporation wholly without assets. However, Oceanic undertook no continuing obligation not to re-enter the business and compete with PEFL. On October 6, 1970, Oceanic and PFEL notified the Commission of the agreement, but accompanied the notification with an express statement that, in their view, the agreement was not within the Commission's jurisdiction. The Commission published notice of the agreement, see 35 Fed.Reg. 16114, and allowed 10 days for interested parties to protest and request a hearing. Seatrain filed such a request on October 21, 1970, alleging that it was a potential competitor of PFEL and that the acquisition agreement would have anticompetitive consequences and, hence, was contrary to the public-interest standard of the statute.
5
Instead of holding a hearing to investigate these allegations, however, the Commission issued a summary order denying the request for an investigation and approving the agreement. The Commission held that '(w)hile section 15 of the Shipping Act, 1916, requires notice and opportunity for hearing, prior to agreement approval, there is no requirement of law that the mere filing of a protest is sufficient to require that a hearing be held before the Commission may grant approval of any protested agreement.' Finding that 'the likelihood of any impact at all upon (Seatrain's) operations which might result from approval of the agreement is a matter of mere speculation,' the Commission concluded that 'Seatrain has no standing in this matter, and that its protest is without substance.'4
6
After Seatrain's petition to reopen was denied, it appealed the Commission's ruling to the Court of Appeals.5 Seatrain argued that the Commission was required to hold a hearing on its objection, while the United States, as statutory respondent,6 and Oceanic and PFEL, as intervenors, argued that the Commission lacked jurisdiction over the agreement. In a comprehensive opinion, the Court of Appeals found it unnecessary to reach the hearing issue, since it found that the Commission 'lacks jurisdiction under Section 15 of the Shipping Act, 1916, to approve arrangements of the type involved here, which do not require the continued existence or participation of the parties in such arrangements.' 148 U.S.App.D.C. 424, 441, 460 F.2d 932, 949 (1972). The Court therefore vacated the Commission's decision and directed that the agreement be removed from its docket. The case then came here on the Commission's petition for certiorari. 409 U.S. 1058, 93 S.Ct. 550, 34 L.Ed.2d 510 (1972).
II
7
At the outset, it must be recognized that the statutory language neither clearly embraces nor clearly excludes discrete merger or acquisition-of-assets agreements. The situation is therefore fundamentally different from that posed in Volkswagenwerk Aktiengesellschaft v. FMC, relied upon heavily by petitioner, where we held in the context of an ongoing agreement that the Commission's ruling that the agreement was without its § 15 jurisdiction 'simply does not square with the structure of the statute.' 390 U.S., at 275, 88 S.Ct., at 937. In this case, the statute is ambiguous in its scope and must therefore be read in light of its history and the governing statutory presumptions.
8
By its terms, the statute requires those covered by it to 'file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement . . . or modification or cancellation thereof' which falls into any one of seven categories. These are agreements
9
'(1) fixing or regulating transportation rates or fares; (2) giving or receiving special rates, accommodations, or other special privileges or advantages; (3) controlling, regulating, preventing, or destroying competition; (4) pooling or apportioning earnings, losses, or traffic; (5) allotting ports or restricting or otherwise regulating the number and character of sailings between ports; (6) limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; (7) or in any manner providing for an exclusive, preferential, or cooperative working arrangement.'
10
None of these seven categories expressly refers to a one-time merger or acquisition-of-assets agreement which imposes no continuing obligation and which, indeed, effectively destroys one of the parties to the agreement. The Commission vigorously argues that such agreements can be interpreted as falling within the third category—which concerns agreements 'controlling, regulating, preventing, or destroying competition.'7 Without more, we might be inclined to agree that many merger agreements probably fit within this category. But a broad reading of the third category would conflict with our frequently expressed view that exemptions from antitrust laws are strictly construed, see e.g., United States v. McKesson & Robbins, Inc., 351 U.S. 305, 316, 76 S.Ct. 937, 943, 100 L.Ed. 1209 (1956), and that '(r)epeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions.' United States v. Philadelphia National Bank, 374 U.S. 321, 350 351, 83 S.Ct. 1715, 1735, 10 L.Ed.2d 915 (1963) (footnotes omitted). As we observed only recently: 'When . . . relationships are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws.' Otter Tail Power Co. v. United States, 410 U.S. 366, 374, 93 S.Ct. 1022, 1028, 35 L.Ed.2d 359 (1973). See also Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963); California v. FPC, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962); United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1939). This principle has led us to construe the Shipping Act as conferring only a 'limited antitrust exemption' in light of the fact that 'antitrust laws represent a fundamental national economic policy.' Carnation Co. v. Pacific Westbound Conference, 383 U.S., at 219, 218, 86 S.Ct. 785, 784.8
11
Our reluctance to construe the third category of agreements broadly so as to include discrete merger arrangements is bolstered by the structure of the Act. It should be noted that of the seven categories, six are expressly limited to ongoing arrangements in which both parties undertake continuing responsibilities. Indeed, even the third category refers to agreements 'controlling,' 'regulating' and 'preventing' competition—all of which are continuing activities. Only the reference to the destruction of competition supports the Commission's agreement that the provision was intended to cover one-time, discrete transactions. But even this reference must be read in light of the final, comprehensive category which refers to agreements 'in any manner providing for an exclusive preferential, or cooperative working arrangement.' As the Court of Appeals noted, this last category was clearly meant as a catchall provision, 'intended . . . to summarize the type of agreements covered.' 148 U.S.App.D.C., at 427, 460 F.2d, at 935. Cf. FMB v. Isbrandtsen Co., 356 U.S. 481, 492, 78 S.Ct. 851, 858, 2 L.Ed.2d 926 (1958). It is, of course, a familiar canon of statutory construction that such clauses are to be read as bringing within a statute categories similar in type to those specifically enumerated. See 2 J. Sutherland, Statutes and Statutory Construction § 4908 et seq. (3d ed. 1943) and cases there cited. Since the summary provision is explicitly limited to 'working arrangement(s)' (emphasis added), it is reasonable to conclude that Congress intended this limitation to apply to the specifically enumerated categories as well.9
12
This reading of the statute is especially compelling in light of the rest of the statutory scheme, which simply does not make sense if the statute is read to encompass one-time agreements creating no continuing obligations. For example, the statute directs the Commission to 'disapprove, cancel or modify any agreement . . . whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters importers, or ports or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter' (emphasis added). The statute thus envisions a continuing supervisory role for the Commission and invests it with power to disallow an agreement after a period of time even though it had initially been permitted. But it is hard to see how the Commission can exercise this supervisory function when there are no continuing obligations to supervise. And we think it unlikely that Congress intended to permit the Commission to approve acquisition-of-assets agreements, allow them to go into effect, and then sometime in the indefinite future, resuscitate the expired company and unscramble the assets under its continuing power to disapprove agreements previously approved.
13
Similarly, the provision in the Act which provides that '(t)he Commission shall disapprove any . . . agreement . . . on a finding of inadequate policing of the obligations under it' makes no sense unless the agreements create continuing obligations to police. The statutory requirement that 'continued approval' shall not be permitted for agreements 'between carriers not members of the same conference or conferences of carriers serving different trades that would otherwise be naturally competitive, unless in the case of agreements between carriers, each carrier, or in the case of agreement between conferences, each conference, retains the right of independent action,' suggests an ongoing relationship between the contracting parties. And the requirement that the contracting parties 'adopt and maintain reasonable procedures for promptly and fairly hearing and considering shippers' requests and complaints' can only be understood in the context of a continuing relationship between the contracting parties.
14
In short, while the statute neither expressly includes nor expressly excludes one-time acquisition-of-assets arrangements, the words must be read in context, and the context makes undeniably clear the ongoing, supervisory role which the Commission was intended to perform. As the Court of Appeals concluded, '(t)he whole structure of Section 15, not only the first paragraph listing the type agreement covered, shows an intent to grant the Commission authority to deal with agreements of a continuing nature.' 148 U.S.App.D.C., at 427, 460 F.2d, at 935.
III
15
This construction of the Shipping Act is strongly supported by the legislative history of the Act and by Congress' treatment of other industries in contemporaneous and related statutes. As this Court recognized in FMB v. Isbrandtsen Co., 356 U.S., at 490, 78 S.Ct., at 857, most of the legislative history of the Act is contained in the so-called Alexander Report which culminated a comprehensive investigation into the shipping industry by the House Committee on the Merchant Marine and Fisheries chaired by Congressman Alexander. See House Committee on the Merchant Marine and Fisheries, Report on Steamship Agreements and Affiliations in the American Foreign and Domestic Trade, H.R.Doc.No.805, 63d Cong., 2d Sess. (1914) (hereinafter Alexander Report). Although legislation designed to carry out the Report's recommendations initially failed to pass, see H.R. 17328, 63d Cong., 2d Sess., a substantially similar bill was enacted in the next Congress and was clearly intended to write the Alexander proposals into law. See H.R.Rep.No.659, 64th Cong., 1st Sess., 27; S.Rep.No. 689, 64th Cong., 1st Sess., 7.
16
After examining some 80 steamship agreements and conference arrangements, the Alexander Committee concluded that 'practically all the established lines operating to and from American ports work in harmonious cooperation, either through written or oral agreements, conference arrangements, or gentlemen's understandings.' Alexander Report 281. The Committee found that this network of agreements, many of them secret, provided a comprehensive system for fixing rates and suppressing competition. See id., at 282—295. As the Committee described the resulting competitive structure of the industry,
17
'The primary object of (the) conferences and agreements is to prevent new lines from being organized in a trade and to crush existing lines which refuse to comply with conditions prescribed by the combination, or which, for other reasons, are not acceptable as members of the conference. The methods which have been adopted from time to time to eliminate competition show the futility of a weak line attempting to enter a trade in opposition to the combined power of the established lines when united by agreement. By resorting to the use of the 'fighting ship,' or to unlimited rate cutting, the conference lines soon exhaust the resources of their antagonists. By distributing the loss resulting from the rate war over the several members of the conference, each constituent line suffers proportionately a much smaller loss than the one line which is fighting the entire group. Moreover, the federated lines can conduct the competitive struggle with the comfortable assurance that, following the retirement of the competing line, they are in a position to reimburse themselves through an increase in rates. To allow conferences, therefore, generally means giving the trade to the lines now enjoying it. Only a powerful line can hope to fight its way into the trade, and with the inevitable result, if successful, that it will join the combination or be allowed to exist by virtue of some rate understanding.' Alexander Report 304—305.
18
Yet despite these findings, the Committee decided against recommending the outright banning of the conference system. Instead, it chose to place that system under government supervision and to invest an administrative agency with the power to approve or disapprove various conference arrangements. The Committee's reasons for this decision are crucial to the issue presently before us. The Committee found that:
19
'(O)pen competition can not be assured for any length of time by ordering existing agreements terminated. The entire history of steamship agreements shows that in ocean commerce there is no happy medium between war and peace when several lines engage in the same trade. Most of the numerous agreements and conference arrangements discussed in the foregoing report were the outcome of rate wars, and represent a truce between the contending lines. To terminate existing agreements would necessarily bring about one of two results: the lines would either engage in rate wars which would mean the elimination of the weak and the survival of the strong, or, to avoid a costly struggle, they would consolidate through common ownership. Neither result can be prevented by legislation, and either would mean a monopoly fully as effective, and it is believed more so, than can exist by virtue of an agreement.' Id., at 416.
20
Thus, the Committee chose to permit continuation of the conference system, but to curb its abuses by requiring government approval of conference agreements. It did so because it feared that if conferences were abolished, the result would be a net decrease in competition through the mergers and acquisition-of-assets assets agreements that would result from unregulated rate wars. It is readily apparent that the Commission's reading of the statute would frustrate this legislative purpose. The Committee gave the Commission power to insulate certain anticompetitive arrangements in order to prevent outright mergers. Yet the Commission would have us construe this authority in such a way as to allow it to shield the mergers themselves—the very thing which Congress intended to prevent. Cf. Carnation Co. v. Pacific Westbound Conference, 383 U.S., at 218 220, 86 S.Ct., at 784—785.
21
The illogical nature of the Commission's argument is especially apparent when one remembers that at the time the Act was passed, the Commission was arguably not permitted to take antitrust policies into account when ruling on proposed agreements. We have construed the 'public interest' standard contained in the Act as requiring the Commission to consider the antitrust implications of an agreement before approving it. See Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S., at 274 n. 20, 88 S.Ct., at 936; FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S., at 242—244, 88 S.Ct., at 1008—1009. Cf. Mediterranean Pools Investigation, 9 F.M.C. 264, 289 (1966). But the 'public interest' criterion was not added to the Act until 1961. See 75 Stat. 763. Thus, under the petitioner's interpretation, at the time the Act was passed, the Commission was arguably required to approve merger agreements despite strong antitrust objections to them if the other criteria of the Act were met. We simply cannot believe that Congress intended to require approval of the very arrangements which, as the legislative history clearly shows, it wanted to prevent.
22
The legislative history also demonstrates that the Alexander Committee used the term 'agreements' as a word of art and that mergers and other arrangements creating no continuing rights and obligations were not included within its definition. As the District Court in United States v. R. J. Reynolds Tobacco Co. observed,
23
'The catalog or 'full classification of these agreements' (i.e., the 'agreements' to which the Alexander Committee's attention was primarily directed and to which its recommendations were exclusively directed) does not include a single agreement of merger or other form of corporate reorganization. The 'agreements' represented in the Report are all 'ongoing' in nature. Most of these 'agreements' are cooperative working arrangements. These 'agreements' describe practices or regular activities in which two or more shipping companies have agreed to participate over a considerable period of time. None of the 'agreements' studied by the Alexander Committee bears the slightest resemblance to an agreement of merger, which is essentially a single, discrete event, which transforms the relationship of the merging parties at the instant of merger.' 325 F.Supp., at 658—659 (footnotes omitted).10
24
Moreover, in the few places where the Committee did discuss mergers, it distinguished sharply between such arrangements and the ongoing agreements to which its recommendations were directed. For example, in summarizing its findings the Committee wrote:
25
'The numerous methods of controlling competition between water carriers in the domestic trade, referred to in the preceding pages, may be grouped under three headings, viz, (1) control through the acquisition of water lines or the ownership of accessories to the lines; (2) control through agreements or understandings; and (3) control through special practices.' Alexander Report 409 (emphasis added).
26
As the Reynolds court concluded,
27
'Consistently throughout the Report, mergers and other corporate reorganizations, when occasionally mentioned, are referred to by the terms 'consolidation by ownership' and 'control through acquisition,' or variations thereof. Never is the word 'agreement' used in the Report to refer to a merger agreement.
28
It is clear that the Alexander Committee distinguished conceptually between agreements in the sense of on-going, cooperative agreements and agreements of 'consolidation' or 'acquisition' (of which merger agreements are a form).' 325 F.Supp., at 659 (footnotes omitted).
29
Finally, an examination of contemporaneous and related statutes makes clear that when Congress intended to bring acquisitions and mergers under control, it did so in unambiguous language. For example, only a few years prior to passage of the Shipping Act, Congress expressly dealt with mergers involving water carriers. In the Panama Canal Act, 49 U.S.C. § 5(14), Congress provided that:
30
'(I)t shall be unlawful for any carrier (as defined in the Interstate Commerce Act) . . . to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which such carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic.'
31
Similarly, when Congress meant to require agency approval for mergers and acquisitions, it did so unambiguously. Thus, the Interstate Commerce Act, 49 U.S.C. § 5(2)(a)(i) authorizes the Interstate Commerce Commission to give its approval 'for two or more carriers to consolidate or merge their proterties or franchises, or any part thereof, into one corporation for the ownership, management, and operation of the properties theretofore in separate ownership.' In the same manner, the Federal Communications Act, 47 U.S.C. § 222(b)(1) provides:
32
'It shall be lawful, upon application to and approval by the (Federal Communications) Commission as hereinafter provided, for any two or more domestic telegraph carriers to effect a consolidation or merger; and for any domestic telegraph carrier, as a part of any such consolidation or merger or thereafter, to acquire all or any part of the domestic telegraph properties, domestic telegraph facilities, or domestic telegraph operations of any carrier which is not primarily a telegraph carrier.'
33
Examination of the Federal Aviation Act is particularly instructive in this regard. Title 49 U.S.C. § 1382(a) requires air carriers to file with the Civil Aeronautics Board for prior approval
34
'every contract or agreement . . . for pooling or apportioning earnings, losses, traffic, service, or equipment, or relating to the establishment of transportation rates, fares, charges, or classifications, . . . or otherwise eliminating destructive, oppressive, or wasteful competition, or for regulating stops, schedules, and character of service, or for other cooperative working arrangements.'
35
This provision closely parallels § 15 of the Shipping Act, and was obviously modeled after it. Yet Congress clearly thought the provision insufficient to bring discrete merger and acquisition agreements within the Civil Aeronautics Board's jurisdiction, since it enacted another, separate provision requiring Board approval when air carriers 'consolidate or merge their properties.' 49 U.S.C. § 1378(a)(1).11
IV
36
In light of these specific grants of merger approval authority, we are unwilling to construe the ambiguous provisions of § 15 to serve this purpose—a purpose for which it obviously was not intended. As the Court of Appeals found, the House Committee which wrote § 15 'neither sought information nor had discussion on ship sale agreements. They were neither part of the problem nor part of the solution.' 148 U.S.App.D.C., at 432, 460 F.2d, at 940. If, as petitioner contends, there is now a compelling need to fill the gap in the Commission's regulatory authority, the need should be met in Congress where the competing policy questions can be thrashed out and a resolution found. We are not ready to meet that need by rewriting the statute and legislative history ourselves.
37
But the Commission contends that since it is charged with administration of the statutory scheme, its construction of the statute over an extended period should be given great weight. See, e.g., NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). This proposition may, as a general matter, be conceded, although it must be tempered with the caveat that an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate. In this case, however, there is a disjunction between the abstract principle and the empirical data. The court below made a detailed study of the prior Commission cases relied upon by petitioner to bolster its interpretation of the statute and concluded that none of them involved assertion of jurisdiction over a case such as this, where the agreement in question imposed no ongoing obligations. We find it unnecessary to decide whether every prior case decided by the Commission can be reconciled with our opinion today. It is sufficient to note that the cases do not demonstrate the sort of longstanding, clearly articulated interpretation of the statute which would be entitled to great judicial deference, particularly in light of the clear indications that Congress did not intend to vest the Commission with the authority it is now seeking to assert. As this Court held in a related context,
38
'The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a 'reasonable basis in law.' . . . But the courts are the final authorities on issues of statutory construction, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904, and 'are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.' NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839.' Volkswagenwerk Aktiengesellaschaft v. FMC, 390 U.S., at 272, 88 S.Ct., at 935.
39
In this case, we find that the Commission overstepped the limits which Congress placed on its jurisdiction. The judgment of the Court of Appeals must therefore be affirmed.
40
Affirmed.
1
Originally, the Shipping Act conferred jurisdiction on the United States Shipping Board. See 39 Stat. 728, 729, 733. Over the years, the jurisdiction here at issue has been shifted to the United States Shipping Board Bureau of the Department of Commerce, see Exec. Order No. 6166, § 12 (1933), the United States Maritime Commission, see 49 Stat. 1985, the Federal Maritime Board, see 64 Stat. 1273, and finally, the Federal Maritime Commission, see 75 Stat. 840. For convenience, we will follow the practice of the parties and the court below and refer throughout to the 'Commission.'
2
Section 15 provides in pertinent part,
'Every common carrier by water, or other person subject to this chapter, shall file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement with another such carrier or other person subject to this chapter, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or co-operative working arrangement. The term 'agreement' in this section includes understandings, conferences, and other arrangements.
'The Commission shall by order, after notice and hearing, disapprove, cancel or modify any agreement, or any modification or cancellation thereof, whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter, and shall approve all other agreements, modifications, or cancellations. . . .
'Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission . . ..'
3
Section 15 provides that '(e)very agreement, modification, or cancellation lawful under this section . . . shall be excepted from the provisions of sections 1 to 11 and 15 of Title 15, and amendments and Acts supplementary thereto.' Since the Act makes lawful those agreements approved by the Commission, its effect is to vest the Commission with the power to shield those agreements approved by it from antitrust attack. See Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 216, 86 S.Ct. 781, 783, 15 L.Ed.2d 709 (1966). But cf. FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 242—246, 88 S.Ct. 1005, 1008—1010, 19 L.Ed.2d 1071 (1968).
4
In light of our holding that the Commission lacked jurisdiction over this agreement, we do not decide whether the Commission's decision that Seatrain was not entitled to a hearing would have been proper in a case in which the Commission properly asserted jurisdiction. Cf. Marine Space Enclosures, Inc. v. FMC, 137 U.S.App.D.C. 9, 420 F.2d 577 (1969).
5
Direct appeal to the Court of Appeals of final orders of the Commission is authorized by 28 U.S.C. § 2342(3).
6
See 28 U.S.C. § 2344.
7
The Commission's position in this regard is not without irony. In denying Seatrain's application for a hearing and approving the agreement, the Commission held that Seatrain had failed to make sufficient allegations to show that the acquisition of assets would be destructive of competition. Yet the Commission now contends that it had jurisdiction over the agreement because it was one 'preventing' competition.
8
It is true that 'antitrust exemption results, not when an agreement is submitted for filing, but only when the agreement is actually approved.' Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 273, 88 S.Ct. 929, 936, 19 L.Ed.2d 1090 (1968). But the fact remains that an expansive reading of the Commission's jurisdiction would increase the number of cases subject to potential antitrust immunity.
9
The statute itself provides no definition of the term 'agreement' beyond the statement that '(t)he term 'agreement' in this section includes understandings, conferences, and other arrangements.' Although certainly not dispositive, it is at least worthy of note that these synonyms given for 'agreement' are all evocative of ongoing activity.
10
The Reynolds court's observations were directed at the Committee's study of foreign trade. In this context, the Committee found that competition was largely frustrated by extensive use of conference arrangements. When the Committee turned to domestic trade, it found that '(u)nlike the practice of water carriers in the foreign trade of the United States, agreements to divide the territory or charge certain rates in the domestic trade are few.' Alexander Report 421. Rather, in the domestic arena, the Committee found that competition was controlled largely through mergers, chiefly between railroads and water carriers. The Commission argues from this fact that Congress intended merger agreements to be filed, since the legislation which was ultimately enacted made no distinction between foreign and domestic trade. But throughout the Report whenever the Committee referred to mergers and acquisitions, it distinguished sharply between them and agreements, for which the filing and approval mechanism was applicable. See the discussion in text. Cf. Note, The Shipping Industry Seeks a Safe Haven: Merger Jurisdiction for the FMC?, 5 Law & Pol. Int'l Bus. 274, 285—286 (1973). Moreover, a careful reading of the Report makes clear that the Committee envisioned other devices for controlling the mergers prevalent in the domestic field. Thus, the Committee noted that the Panama Canal Act of 1912, 49 U.S.C. § 5(14), already prohibited railroads from owning or controlling water carriers, see infra, at 742, and observed that this requirement went 'far toward eliminating some of the undesirable practices which were found by the Committee to exist in the domestic commerce of the United States.' Alexander Report 422. While the Committee made other recommendations with respect to domestic carriers, these merely paralleled its foreign recommendations and, hence, pertained to 'agreements' and 'arrangements' rather than 'mergers' and 'acquisitions' which it thought were sufficiently regulated by existing legislation. See id., at 422—424.
11
The Commission would have us infer that the 1916 Act conferred jurisdiction upon it from an amendment added in 1950 to § 7 of
the Clayton Act, 15 U.S.C. § 18, as amended by 64 Stat. 1125, 1126. As amendded, the provision specifies that:
'Nothing contained in this section shall apply to transactions duly consumated pursuant to authority given by the Civil Aeronautics Board, Federal Communications Commission, Federal Power Commission, Interstate Commerce Commission, the Securities and Exchange Commission . . . the United States Maritime Commission, or the Secretary of Agriculture.'
As is clear from the face of the statute, the Act confers no new jurisdiction on any of the listed agencies, but merely provides that mergers already exempt from Clayton Act coverage were to be unaffected by changes in the Act. As this Court held in California v. FPC, the amended § 7 was 'plainly not a grant of power to adjudicate antitrust issues.' 369 U.S. 482, 486, 82 S.Ct. 901, 904, 8 L.Ed.2d 54 (1962). Hence, nothing about the Commission's jurisdiction can be inferred from the inclusion of its predecessor on the list. This view is confirmed by the legislative history of the 1950 amendment. Although acceding to the Commission's request that it be included in the list of agencies left unaffected by the Clayton Act, see Letter of Grenville Mellen, Vice Chairman United States Maritime Commission to Senator Herbert O'Conor, Chairman, Senate Subcommittee to consider H.R. 2734, Sept. 29, 1949, reprinted in Brief for Petitioner 52—54, the Committee made explicit that '(i)n making this addition . . . it is not intended that the Maritime Commission, or, for that matter, any other agency included in this category, shall be granted any authority or powers which it does not already possess.' S.Rep.No.1775, 81st Cong., 2d Sess., 7 (1950), U.S.Code Cong.Serv. p. 4300.
| 78
|
412 U.S. 47
93 S.Ct. 1966
36 L.Ed.2d 736
State of MICHIGAN, Petitioner,v.Leroy PAYNE.
No. 71—1005.
Argued Feb. 22, 1973.
Decided May 21, 1973.
Syllabus
The 'prophylactic' due process limitations established by North Carolina v. Pearce, 395 U.S. 711, 723—726, 89 S.Ct. 2072, 2079—2081, 23 L.Ed.2d 656, to guard against the possibility of vindictiveness in cases where a judge imposes a more severe sentence upon a defendant after a new trial, are not retroactively applicable to resentencing proceedings that, like the one involved in this case, occurred prior to the date of the Pearce decision. Pp. 50—57.
386 Mich. 84, 191 N.W.2d 375, reversed and remanded.
John A. Smietanka, St. Joseph, Mich., for petitioner.
James R. Neuhard, Detroit, Mich., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
A writ of certiorari was granted in this case, 409 U.S. 911, 93 S.Ct. 214, 34 L.Ed.2d 172 (1972), to decide whether the due process holding of North Carolina v. Pearce, 395 U.S. 711, 723 726, 89 S.Ct. 2072, 2079—2081, 23 L.Ed.2d 656 (1969), is to be given retroactive effect. For the reasons that follow we hold today that this decision is nonretroactive.
2
* Respondent, Leroy Payne, pleaded guilty in a county circuit court in Michigan to a charge of assault with intent to commit murder in connection with an armed attack upon two sheriff's deputies. In March 1963 he was sentenced to a prison term of from 19 to 40 years. Several years later, respondent's conviction and sentence were set aside when a hearing, ordered by the Michigan Court of Appeals, disclosed that his confession and subsequent guilty plea were involuntary. Following a retrial, at which he exercised his rights to trial by jury and to plead innocent, respondent again was found guilty on the same assault charge. On August 30, 1967, he was resentenced to prison from 25 to 50 years with full credit for all time served under the prior sentence. During the resentencing hearing, the judge explained that the higher sentence was 'based on the nature of the crime and on the impressions which I formed of (respondent) and of the crime.'
3
Respondent appealed to the Michigan Court of Appeals, which affirmed his conviction was approved the higher sentence. 18 Mich.App. 42, 170 N.W.2d 523 (1969). While the case was pending before the Michigan Supreme Court, the trial judge who had presided over respondent's second trial was requested to submit an affidavit detailing his reasons for imposing a higher sentence. The judge's affidavit stated that his sentencing determination was based primarily on (i) has personal belief that respondent's attitude since the first sentencing proceeding had changed from one of regret to remorselessness, (ii) his view that respondent's alibi defense, given under oath, was a 'tissue of lies,' and (iii) his heightened opportunity to learn of the details of the crime during the three-day trial.1
4
The Michigan Supreme Court, in a 4-to-3 decision, upheld the conviction but rejected the higher sentence as violative of the due process restrictions established in North Carolina v. Pearce, supra. 386 Mich. 84, 191 N.W.2d 375 (1971). The court recognized that this Court had not yet decided whether Pearce applied to resentencing proceedings which, as in this case, occurred prior to Pearce's date of decision.2 While declining to predict how the retroactivity question would ultimately be resolved, the Michigan Supreme Court decided to apply Pearce to the case then before it 'pending clarification' by this Court. Id., at 90 n. 3, 191 N.W.2d, at 378 n. 2. Before this Court, the State contends that Pearce should not be applied retrospectively, but that, even if applicable, the state supreme court erred in holding the higher sentence invalid under the Pearce test. Because we hold today that Pearce does not apply retroactively, we do not reach the State's second contention.3
II
5
In Pearce, the Court emphasized that '(i)t can hardly be doubted' that, while 'there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial,' it would be entirely impermissible for judges to render harsher penalties as punishment for those defendants who have succeeded in getting their convictions reversed. 395 U.S., at 723, 89 S.Ct., at 2079. '(V) indictiveness' against a defendant for having exercised his rights to appeal or to attack his conviction collaterally, the Court held, 'must play no part in the sentence (a defendant) receives after a new trial.' Id., at 725, 89 S.Ct., at 2080. In so holding, the Court recognized that 'fundamental notions of fairness embodied within the concept of due process' absolutely preclude the imposition of sentences based upon such a "retaliatory motivation." Chaffin v. Stynchcombe, 412 U.S. 17, at 25, 93 S.Ct. 1977, at 1982, 36 L.Ed.2d 714. No 'new' constitutional rule was thereby established and it cannot be questioned that this basic due process protection anticulated in Pearce is available equalty to defendants resentenced before and after the date of decision in that case. On this point the parties do not disagree.
6
The dispute in this case centers, instead, around the 'prophylactic'4 limitations Pearce established to guard against the possibility of vindictiveness in the resentencing process. Those limitations, applicable 'whenever a judge imposes a more severe sentence upon a defendant after a new trial,' 395 U.S., at 726, 89 S.Ct., at 2081, require that the sentencing judge's reasons 'must affirmatively appear,' and that those reasons 'must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.' Ibid. The question here is whether these restrictions govern resentencing proceedings predating Pearce.
7
The contours of the retroactivity inquiry have been clearly delineated in numerous decisions over the last decade. The test utilized repeatedly by this Court to ascertain whether 'new' constitutional protections in the area of criminal procedure are to be applied retroactively calls for the consideration of three criteria: '(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). See also Linkletter v. Walker, 381 U.S. 618, 629, 636, 85 S.Ct. 1731, 1737, 1741, 14 L.Ed.2d 601 (1965); Tehan v. Shott, 382 U.S. 406, 410—418, 86 S.Ct. 459, 461—466, 15 L.Ed.2d 453 (1966); Johnson v. New Jersey, 384 U.S. 719, 726—727, 86 S.Ct. 1772, 1777 1778, 16 L.Ed.2d 882 (1966).
8
The two purposes for the resentencing restrictions imposed by Pearce were to ensure (i) '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 (ii) that apprehension of such vindictiveness would 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; Colten v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972). The latter purpose is not pertinent to this case, since respondent was not deterred from exercising his right to challenge his first conviction. But, in any event, we think it clear that this function of the new resentencing rules could be served only in futuro: nothing in Pearce suggests that the Court contemplated that its decision might provide a ground for the untimely reopening of appeals by defendants who decided not to appeal prior to the date of decision in Pearce.5 See James v. Copinger, 441 F.2d 23 (CA4 1971).
9
The first-articulated purpose of the Pearce rules—to protect against the possibility that actual vindictiveness will infect a resentencing proceeding—deserves closer scrutiny. Unlike the purposes underlying many of the decisions heretofore accorded retrospective application,6 this purpose does not implicate the "fair determination' of . . . guilt or innocence.' Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968) (emphasis supplied). It does, however, involve questions touching on the 'integrity' of one aspect of the judicial process. McConnell v. Rhay, 393 U.S. 2, 3, 89 S.Ct. 32, 33, 21 L.Ed.2d 2 (1968). The Pearce restrictions serve to ensure that resentencing decisions will not be based on improper considerations, such as a judge's unarticulated resentment at having been reversed on appeal, or his subjective institutional interest in discouraging meritless appeals. By eliminating the possibility that these factors might occasion enhanced sentences, the Pearce prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process. In this protective role, Pearce is analogous to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in which the Court established rules to govern police practices during custodial interrogations in order to safeguard the rights of the accused and to assure the reliability of statements made during those interrogations. Thus, the prophylactic rules in Pearce and Miranda are similar in that each was designed to preserve the integrity of a phase of the criminal process. Because of this similarity, we find that Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), which held Miranda nonretroactive, provides considerable guidance here. See also Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969).
10
It is an inherent attribute of prophylactic constitutional rules, such as those established in Miranda and Pearce, that their retrospective application will occasion windfall benefits for some defendants who have suffered no constitutional deprivation. Miranda's well-known warning requirements provided a protection 'against the possibility of unreliable statements in every instance of incustody interrogation,' and thereby covered many 'situations in which the danger (was) not necessarily as great as when the accused is subjected to overt and obvious coercion.' Johnson v. New Jersey, supra, 384 U.S., at 730, 86 S.Ct. at 1779 (emphasis supplied). Thus, had Miranda been applied retroactively, it would have required the reversal of many convictions in which no serious constitutional violation had occurred. Id., at 731, 86 S.Ct. at 1779. Likewise, the retroactive application of Pearce would require the repudiation of many sentences rendered under circumstances in which there was no genuine possibility that vindictiveness played a role. Judicial impropriety in the resentencing process, albeit intolerable wherever it happens, surely is not a common practice. Indeed, nothing in Pearce intimates that the Court regarded it as anything more than an infrequently appearing blemish on the sentencing process.7 Absent countervailing considerations rooted in the purposes underlying a new rule, this factor—that retroactive application of such broadly protective rules would occasion reversals in many instances in which no actual prejudice has been suffered—points toward a ruling of prospectivity.
11
Nonretroactivity is also suggested by the second similarity between Miranda and Pearce. While each created a protective umbrella serving to enhance a constitutional guarantee, neither conferred a constitutional right that had not existed prior to those decisions. The right against use of an involuntary confession long preceded Miranda just as the right to be free from fundamentally unfair sentencing considerations predated Pearce. Supra, at 50. Because these foundational rights remain available to defendants in pre-Miranda and pre-Pearce cases, a decision of nonretroactivity is less likely to result in the continued incarceration of those whose convictions or sentences rest on unconstitutional acts.8 Linkletter v. Walker, 381 U.S., at 640, 85 S.Ct., at 1743 (Black, J., dissenting).
12
Of course, the question of the impact of particular decisions on the reliability and fairness of any aspect of a criminal proceeding is inherently a matter of balancing 'probabilities.' Johnson v. New Jersey, 384 U.S., at 729, 86 S.Ct., at 1778; Adams v. Illinois, 405 U.S. 278, 281, 92 S.Ct. 916, 918, 31 L.Ed.2d 202 (1972). Yet in view of the fact that, if retroactive, Pearce would apply to innumerable cases in which no hint of vindictiveness appears, coupled with the consideration that due process claims may always be made in those prior cases in which some evidence of retaliatory motivation exists,9 we have little doubt that the 'probabilities' in this case preponderate in favor of a ruling of nonretroactivity.10
13
Although the remaining factors—reliance and burden on the administration of justice—have been regarded as having controlling significance 'only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity,' Desist v. United States, 394 U.S. 244, 251, 89 S.Ct. 1030, 1035, 22 L.Ed.2d 248 (1969), those considerations also support the nonretroactivity of Pearce. The result in Pearce was not 'foreshadowed' by any prior decision of this Court.11 Indeed, prior to Pearce, resentencing judges were bound by no requirement that they articulate their reasons and generally enjoyed a wide discretion in terms of the factors they might legitimately consider. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Nor could it be said that the Court's decision was clearly forecast by any trend of lower court decisions. In Pearce itself the Court noted that lower federal and state courts were divided on all of the questions posed. 395 U.S., at 715 n. 5, 89 S.Ct., at 2075. Under these circumstances, judicial reliance on prior law was certainly justifiable.12
14
Because of that reliance, it is fair to assume that in prior years few, if any, judges complied during resentencing with Pearce's recordation requirement, and that they often considered a variety of factors relating to the defendant and his crime which might or might not have fallen within the Pearce standard. We have been presented with no statistical indications as to how many persons received increased penalties after retrials.13 We cannot say, however, that the potential interference with the administration of justice would be insubstantial if Pearce were applied retroactively. In order to comply with Pearce, a resentencing judge—assuming he is still on the bench or otherwise available—would be required to make a factual determination as to the reasons for sentences he may have meted out years in the past. Compliance with that requirement would present considerable difficulties, since judges, like witnesses in criminal trials, lack infallible memories and perfect records of their motivations.14 Linkletter v. Walker, 381 U.S., at 637, 85 S.Ct., at 1742. While we would not shy from imposing these burdens were we persuaded that it was necessary to do so in order to effectuate the purposes underlying Pearce, we have found no such need here. In sum, upon application of the three-part test, we hold that the Pearce requirements are not to be accorded retroactive application.15
III
15
Since the resentencing hearing in this case took place approximately two years before Pearce was decided, we hold that the Michigan Supreme Court erred in applying its proscriptions here. Accordingly, the judgment of that court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
16
It is so ordered.
17
Reversed and remanded.
18
Mr. Justice DOUGLAS, dissenting.
19
We deal here with the guarantee contained in the Fifth Amendment, applicable to the States by reason of the Fourteenth, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' The construction given that clause was applied retroactively in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; and I think that Payne as well as Pearce should have the benefit of the 'new' constitutional rule. My views have been at odds with those of the Court as witnessed by the dissent of Mr. Justice Black in Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 which I joined, and by my separate dissent in Desist v. United States, 394 U.S. 244, 255, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248. I could understand making a 'new' constitutional rule applicable only prospectively. But I cannot bring myself to making the 'new' rule applicable to some but not to others. If a State has violated the Federal Constitution in convicting or sentencing a prisoner, I see no way of denying him relief from that unconstitutional trial or unconstitutional sentence.
20
The Double Jeopardy Clause in my view was designed to discourage the abusive use by the Executive and Judicial Branches of the awesome power of government over the individual. Jeopardy attaches once the trial starts. If there is error in that trial and as a result a new trial is had, the Government cannot impose an added or increased sentence on the second trial. That is my view, as explained in North Carolina v. Pearce, supra, 395 U.S., at 726—737, 89 S.Ct., at 2081—2082. Respondent received a sentence of 19 to 40 years on his first trial and a greater one of 25 to 50 years on his second trial. I therefore would affirm the judgment below.
21
Mr. Justice MARSHALL, dissenting.
22
The Court today holds that no limitations need be placed on resentencings that occurred before the date of decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). I believe however, that the State has an obligation to present to the court reviewing the second conviction evidence from which that court can determine whether a new sentence, more severe than that imposed at a prior trial, resulted in part from the sentencing authority's desire to punish the defendant for successfully appealing his first conviction.1 I therefore respectfully dissent.
23
* This case raises the issue of retroactivity only because of the almost unbelievable sluggishness of the appellate process in Michigan. Payne's second sentence was imposed on August 30, 1967, nearly two years before Pearce was decided. However, the Michigan Court of Appeals did not decide Payne's appeal until July 28, 1969, one month after the decision in Pearce. The Michigan Supreme Court considered the case for two more years, finally deciding it on November 9, 1971. Had the appellate process in Michigan been at all expeditious, this Court might have used Payne's case as the vehicle to decide that harsher sentences on reconviction could be justified only by objective evidence of post-sentencing conduct by the defendant, the rule adopted in Pearce. The only difference between Pearce's case and Payne's, then, is that the former moved up to this Court more quickly than the latter. Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment.2 And a difference in the speed with which a judicial system disposes of an appeal is not related in any way to the purposes served by the limitations that Pearce placed on resentencing. Thus, considerations of fairness rooted in the Constitution lead me to conclude that cases in the pipeline when a new constitutional rule is announced must be given the benefit of that rule.
24
The rule adopted by the Court today is curious in another way. The Court appears to say that a defendant who failed to appeal his first conviction out of 'a reasonably based fear of actual vindictiveness,' ante, at 52 n. 5, is entitled to review of his conviction. Cf. Fay v. Noia, 372 U.S. 391, 396—397, n. 3, 83 S.Ct. 822, 825—826, 9 L.Ed.2d 837 (1963).3 If his appeal is successful, his new trial will occur after the date of decision in Pearce. Thus, any new sentence will be subject to the limitations imposed by Pearce. The rather strange result is that someone like Payne, who adhered to state procedural rules for vindicating his right to an error-free trial, may receive an enhanced sentence without limitation, while someone who did not adhere to those rules may not have his sentence increased unless the requirements of Pearce are met. I suppose that anomalies are occasionally inevitable, but I submit that we should consider very carefully any rule of retroactivity that has the effect of penalizing compliance with state procedural rules.
II
25
The Court applies the now-familiar three-pronged test to determine whether Pearce should be given retroactive effect, and it reaches the now-familiar result of nonretroactivity.4 I believe that principled adjudication requires the Court to abandon the charade of carefully balancing countervailing considerations when deciding the question of retroactivity. Inspecting the cases dealing with retroactivity, I find that they appear to fall into three groups. In some cases, this Court has held that the trial court lacked jurisdiction in the traditional sense. See, e.g., Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). Those holdings have been made fully retroactive. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). Cf. United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). In other cases the Court announced a rule that was central to the process of determining guilt or innocence, and whose application might well have led to the acquittal of the defendant. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Those holdings too have been given retroactive effect. Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963); Ivan V. v. New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972). Cf. Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). All other constitutional rules of criminal procedure have been given prospective effect only.5
26
I confess that I have been unable to discover a principled basis for that threefold classification, but it does appear to be the factor operating in our cases. And I see little point in forcing lower courts to flounder without substantial guidance in the morass of our cases, by informing them that they are to apply a balancing test, when in fact it invariably occurs that the balancing test results in holdings of nonretroactivity. Furthermore, it demeans this Court to pretend to consider a variety of factors if, no matter how those factors are arrayed, the result is predetermined. An open-minded examination of this Court's cases on retroactivity compels the conclusion that the Court divides cases into several classes, and it is the classification, not the three-pronged test, that determines the result. Our time would be better spent, I think, in attempting to delineate the basis for those classifications, and to derive them from some constitutional principles, rather than in 'applying' a balancing test. Indeed, it might have been thought that Robinson v. Neil, supra, had begun the task of rationalizing our cases, but apparently that is not so.
III
27
The holding of Pearce is a simple one: the Due Process Clause requires States to adopt procedures designed to minimize the possibility that a new sentence after a successful appeal will be based in part on vindictiveness for the defendant's having taken the appeal. The Court agrees that 'this basic due process protection . . . is available equally to defendants resentenced before and after the date of decision in that case.' Ante, at 50, 51. The question then is what procedures are required to insure that that protection has been afforded defendants resentenced before Pearce was decided. This question, like many of those involving retroactivity, relates to the integrity of the judicial process, not to the limitations placed by the Constitution on police behavior. One can agree that the precise requirements of Pearce are inappropriate for retrospective application largely because they are procedurally ill-adapted to the problem, yet disagree with the Court that the States need do nothing at all to convince a reviewing court that vindictiveness played no part in the resentencing. See, e.g., Commonwealth v. Allen, 443 Pa. 96, 102, 277 A.2d 803 (1971).
28
The issue need not be framed as the 'retroactivity' of Pearce. The problem, as I see it, is to devise procedures that will permit reviewing courts to determine whether the requirements of the Due Process Clause have been met. In Pearce we concluded that it would be enough for a judge, on resentencing a defendant, to state his reasons for imposing a more severe sentence. If the more severe sentence was based upon objective information, placed on the record, concerning the conduct of the defendant after the first sentencing, the more severe sentence was permissible. Such a rule, although not absolutely guaranteeing that vindictiveness will play no part,6 nonetheless substantially reduces the possibility that it will, without significantly interfering with the judge's lawful discretion.
29
A rather similar procedure would accomplish the same result for defendants resentenced before Pearce was decided. If a defendant did receive a harsher sentence after a successful appeal, and he seeks to have it reduced to the original sentence, the State should be required to present evidence that the new sentence was based on post-sentence conduct. In the absence of such evidence, the sentence must be reduced.7 The Court suggests that such a procedure would 'occasion windfall benefits for some defendants who have suffered no constitutional deprivaton.' Ante, at 53. That assertion must be considered more closely.
30
As the Court notes, there is little evidence that more severe sentences are offen imposed. It cites an informal survey suggesting that 12% of reconvicted defendants receive higher sentences. Ante, at 56 n. 13. Even if that estimate is only half as large as the actual figure for pre-Pearce cases, still there are clearly very few defendants who have received harsher sentences. With respect to many of them, it will not be difficult to produce evidence supporting the new sentence. As in Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), and Odom v. United States, 400 U.S. 23, 91 S.Ct. 112, 27 L.Ed.2d 122 (1970), the sentencing judge might indicate by affidavit or order the grounds for his sentencing decision. If memories have faded, the State might show that a presentence report considered by the judge recited post-sentence conduct by the defendant that would justify the harsher sentence.
31
Thus, I do not think that it can fairly be said that the requirements I would impose would in fact result in windfall benefits to 'innumerable' defendants, ante, at 55; they would accrue to those few defendants who were convicted, successfully appealed, were reconvicted, and receiver harsher sentences so long ago that the State cannot produce evidence from which a reviewing court could find that vindictiveness played no part in the sentencing decision.8 And the 'windfall benefits' would impair no substantial state interest in incarcerating those few offenders. Unlike the suppression of probative evidence that might severely limit the State's ability to secure a conviction of a person who undoubtedly committed an offense, here the remedy is simply the reduction of sentence. North Carolina v. Rice, 404 U.S. 244, 247, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). The sentence to be served would be one that had already been found appropriate by one judge, and would therefore satisfy the various interests advanced by incarceration.9
32
For these reasons, I dissent.
33
Mr. Justice STEWART joins Part III of this opinion.
1
In his affidavit, the second sentencing judge indicated that a different judge who presided over respondent's prior guilty plea and sentencing hearings did not have as good an opportunity to become fully informed of the details of the 'deliberate, cold-blooded attack.' In a subsequent amendatory affidavit filed by the same judge, he corrected his prior affidavit by stating that the first judge did have 'some limited opportunity to see and hear (respondent) when he testified as a witness for the prosecution against his accomplice' in a separate trial. The parties in this case now agree that the first judge did preside over the trial of respondent's codefendant before sentencing respondent and that respondent did testify at that trial. The parties continue, however, to dispute whether that opportunity was as complete as the opportunity afforded the second judge, and, if not, whether this is a permissible consideration in resentencing under Pearce. Because of the manner in which we dispose of this case, we need not resolve this controversy. See n. 3, infra.
2
This Court has twice previously granted certiorari to resolve this question, but on each occasion the writ was dismissed as improvidently granted. Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970) (cert. granted, 395 U.S. 975, 89 S.Ct. 2135, 23 L.Ed.2d 764 (1969)); Odom v. United States, 400 U.S. 23, 91 S.Ct. 112, 27 L.Ed.2d 122 (1970) (cert. granted, 399 U.S. 904, 90 S.Ct. 2203, 26 L.Ed.2d 559 (1970)).
3
This Court has consistently declined to reach out to resolve unsettled questions regarding the scope or meaning of decisions establishing 'new' constitutional requirements in cases in which it holds any such decisions nonretroactive. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (holding 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), nonretroactive without resolving the question whether those cases were applicable to preformal accusation confrontations, a question later decided in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (holding Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), nonretroactive and declining to decide whether a summary contempt proceeding that results in a one-year sentence is a 'serious' offense requiring trial by jury, a question later decided in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970)); Carcerano v. Gladden (a companion case with DeStefano, in which the Court declined to decide whether the right to jury trial contemplated by Duncan also required a unanimous verdict, a question later decided in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972)); Elkanich v. United States (a companion case with Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), holding Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), nonretroactive and declining to decide whether the search was otherwise compatible with the Chimel limitations on searches incident to lawful arrests).
4
Chaffin v. Stynchcombe, supra, 412 U.S., at 25, 93 S.Ct., at 1982; Colten v. Kentucky, 407 U.S. 104, 116, 118, 92 S.Ct. 1953, 1960, 1961, 32 L.Ed.2d 584 (1972).
5
This is not to suggest, of course, that there may not be specific cases in which a convicted defendant might show that his initial waiver of his right to appeal was involuntary because caused by a reasonably based fear of actual vindictiveness on the part of a particular judge. Cf. North Carolina v. Pearce, 395 U.S., at 725 n. 20, 89 S.Ct., at 2080.
6
See, e.g., In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (held retroactive in Ivan V. v. New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (held retroactive in Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969)); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (held retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968)); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
7
The most that may be said is that the Court in Pearce found that 'increased sentences on reconviction are far from rare,' 395 U.S., at 725 n. 20, 89 S.Ct., at 2080, and that it was persuaded that vindictiveness played a role in a sufficient number of those cases to 'warrant the imposition of a prophylactic rule.' Colten v. Kentucky, 407 U.S., at 116, 92 S.Ct., at 1960.
8
See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). See also Stovall v. Denno, 388 U.S., at 299, 87 S.Ct., at 299 (in pre-Wade-Gilbert cases 'it remains open to all persons to allege and prove . . . that the confrontation . . . infringed his right to due process of law'); cf. Halliday v. United States, 394 U.S. 831, 833, 89 S.Ct. 1498, 1499, 23 L.Ed.2d 16 (1969).
9
Of course, it remains true that 'retaliatory motivation' may be 'difficult to prove in any individual case.' North Carolina v. Pearce, 395 U.S., at 725 n. 20, 89 S.Ct., at 2080. And, this is certainly one of the reasons why the Court in Pearce adopted prophylactic rules. Similar problems of proof prompted the decisions in Miranda and Wade, but such problems in themselves were not sufficient to warrant retrospective application.
10
We reiterate here what the Court has repeatedly said in retroactivity cases: '(W)e do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.' Johnson v. New Jersey, 384 U.S., at 728, 86 S.Ct., at 1778; cf. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965).
11
Compare Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969), and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), with Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), and Johnson v. New Jersey, 384 U.S., at 731, 86 S.Ct., at 1779.
12
We need not disagree with Mr. Justice MARSHALL'S notation, post, at 66 n. 9, that the result in Pearce was foreshadowed, i.e., that higher sentences on retrial were being questioned. Our focus here, however, is on the prophylactic measure adopted to achieve that result. As to this, we do not think there is any serious question that neither the recordation requirement nor the limitations on matters to be considered were so clearly forecast as to render a contrary state reliance unjustifiable.
13
See Note, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained under Traditional Waiver Theory, 1965 Duke L.J. 395, 399 n. 25 (informal survey of North Carolina courts showed that six of 50 reconvicted defendants received higher sentences).
14
Thus, the retroactivity of Pearce would present difficulties not encountered in two of the Court's recent decisions holding retroactive cases involving resentencing: Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (the 'death penalty' case); Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) (holding Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) retroactive). In both cases, '(t)hat which was constitutionally invalid could be isolated and excised without requiring the State to begin the entire factfinding process anew.' Robinson v. Neil, supra, at 510, 93 S.Ct., at 879.
15
Respondent, relying on Linkletter v. Walker, supra, and Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), urges the Court to distinguish between cases, like his, on direct appeal and those arising after a conviction and sentence have become final. We think the above-stated reasons for applying Pearce prospectively apply with equal force to all cases in which resentencing proceedings occurred before June 23, 1969, the date of decision in Pearce. See Stovall v. Denno, 388 U.S., at 300, 87 S.Ct., at 300; Desist v. United States, 394 U.S., at 252, 89 S.Ct., at 1035; Williams v. United States, 401 U.S., at 651—652, 91 S.Ct., at 1151—1152.
1
The State did present an affidavit from the sentencing judge in this case. The Michigan Supreme Court held that it did not satisfy the requirement of North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969), that more severe sentences can be justified only by 'objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.' See 386 Mich. 84, 97, 191 N.W.2d 375, 381 (1971). Petitioner contends that this holding was erroneous. Petition for Writ of Certiorari 5—6. The Court does not address this contention, nor shall I.
2
Since Payne's appeal was pending when Pearce was decided, I need not consider whether different considerations, such as the defendant's failure to raise the issue in seeking review from this Court or to persuade us on the merits, might suffice under the Due Process Clause to justify different treatment of defendants whose sentences had become final.
3
Mr. Justice Harlan, dissenting in Fay v. Noia, 372 U.S. 391, 475, 83 S.Ct. 822, 867, 9 L.Ed.2d 837 (1963), suggested that the possibility of an enhanced sentence after a successful appeal, according to the Court, precluded the State from relying on a failure to appeal as an adequate state ground supporting the denial of relief under federal habeas corpus. On his interpretation, then, Fay anticipated the holding in Pearce.
4
In holding various rulings retroactive, this Court has given only the most cursory nod to the three-pronged test. See, e.g., Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968).
5
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), giving a limited retroactive effect to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), is an anomaly at odds with the Court's subsequent treatment of problems of retroactivity and can be explained only by the Court's unfamiliarity with those problems when the case was decided. See also Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
6
For example, the sentencing judge, had he considered the case as an initial matter, might have imposed a sentence shorter than that imposed at the first trial, but, out of vindictiveness, he might decide to reimpose the original sentence. The procedures outlined in Pearce cannot prevent this.
7
I assume that the Court's reliance on the continuing availability of the 'foundational' right means that an offender who shows that vindictiveness played a part in his resentencing is entitled to relief I would simply shift the burden of proof to the State, which has better access to the relevant facts.
8
State courts, closer to the problems of administering the rule I suggest, have widely thought that those burdens are not substantial. See, e.g., Stonom v. Wainwright, 235 So.2d 545 (Fla.App.1970); People v. Baze, 43 Ill.2d 298, 253 N.E.2d 392 (1969); State v. Pilcher, 171 N.W.2d 251 (Iowa 1969); Hord v. Commonwealth, 450 S.W.2d 530 (Ky.1970); State v. Rentschler, 444 S.W.2d 453 (Mo.1969); Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971); Denny v. State, 47 Wis.2d 541, 178 N.W.2d 38 (1970).
9
The Court's conclusion that Pearce was not foreshadowed by decisions in this Court or by a trend of lower court decisions is somewhat misleading. This Court's decision in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), raised substantial questions under the Double Jeopardy Clause of the constitutionality of enhanced sentences after a successful appeal. Also, one reading of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 337 (1963), suggested by the dissent of Mr. Justice Harlan, is that a State may not burden the right to appeal with the possibility of an enhanced sentence. And prior to Pearce, the First, Second, Fourth, Fifth, and Seventh Circuits had held that enhanced sentences after re-conviction could be justified only in limited circumstances. See Marano v. United States, 374 F.2d 583 (CA1 1967); United States v. Coke, 404 F.2d 836 (CA2 1968) (en banc); Patton v. North Carolina, 381 F.2d 636 (CA4 1967); Simpson v. Rice, 396 F.2d 499 (CA5 1968); United States v. White, 382 F.2d 445 (CA7 1967). So had the California Supreme Court, in a powerful opinion by Justice Traynor. People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963). Finally, a 'learned and effective article,' as Judge Friendly called it in United States v. Coke, supra, arguing the same point, appeared in 1965. Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606 (1965). I would think that these decisions and commentary had prepared the ground rather well for Pearce, as the Court concedes, ante, at 56 n. 12. Yet if the result was foreshadowed, it is not unreasonable to require States now to supplement the record, so that it will be clear that unconstitutional sentences were not imposed. Because it insists on treating the issue here as a question of retroactivity, the Court does not address this argument.
| 01
|
412 U.S. 17
93 S.Ct. 1977
36 L.Ed.2d 714
James CHAFFIN, Petitioner,v.LeRoy STYNCHCOMBE, Sheriff of Fulton County.
No. 71—6732.
Argued Feb. 22, 1973.
Decided May 21, 1973.
Syllabus
Upon retrial following the reversal of his conviction, petitioner was again found guilty and sentenced by the jury to a greater term than had been imposed by the first jury. After exhausting his state court appeals, petitioner was denied habeas corpus on his claim that imposing a higher sentence on retrial was unconstitutional, and the Court of Appeals affirmed. Held: The rendition of a higher sentence by a jury upon retrial does not violate the Double Jeopardy Clause, North Carolina v. Pearce, 395 U.S. 711, 719—721, 89 S.Ct. 2072, 2077—2079, 23 L.Ed.2d 656, and does not offend the Due Process Clause as long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. Nor does the possibility of a higher sentence impermissibly 'chill' the exercise of a criminal defendant's right to challenge his first conviction by direct appeal or collateral attack. Pp. 1981—1987.
455 F.2d 640, affirmed.
Glenn Zell, Atlanta, Ga., for petitioner.
Richard E. Hicks, Atlanta, Ga., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
A writ of certiorari was granted in this case to consider whether, in those States that entrust the sentencing responsibility to the jury, the Due Process Clause of the Fourteenth Amendment bars the jury from rendering higher sentences on retrials following reversals of prior convictions. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), this Court established limitations on the imposition of higher sentences by judges in similar circumstances. While we reaffirm the underlying rationale of Pearce that vindictiveness against the accused for having successfully overturned his conviction has no place in the resentencing process, whether by judge or jury, we hold today that due process of law does not require extension of Pearce-type restrictions to jury sentencing.
2
* Early in 1969, petitioner was tried by a jury in a Georgia state criminal court on a charge of robbery by open force or violence, a capital offense at that time. The jury, which had been instructed that it was empowered to impose a sentence of death, life imprisonment, or a term of years,1 found petitioner guilty and sentenced him to 15 years in prison. He appealed to the Georgia Supreme Court, claiming primarily that the trial judge had given an erroneous jury instruction as to the defendant's burden of proving an alibi defense. His claim was rejected and his conviction was affirmed. 225 Ga. 602, 170 S.E.2d 426 (1969). Thereafter, he renewed that claim in a petition for a writ of habeas corpus to the United States District Court for the Northern District of Georgia. The District Court found petitioner's contention meritorious, granted the writ, and ordered him returned to the state court for retrial.
3
Upon retrial before a different judge and a new jury, petitioner was again found guilty. A comparison of the trial transcripts in the two cases indicates that the trials were similar in most respects. The case was prosecuted on both occasions by the same State's attorney and the same prosecution witnesses testified to the facts surrounding the alleged robbery. Petitioner, however, was represented by new counsel and, in addition to repeating his alibi defense, he interposed an insanity defense not offered at the former trial. New witnesses were called to testify for both sides on this issue. Also, while petitioner took the stand and made an unsworn statement in each case, his statement at the latter trial was longer and contained autobiographical information not presented to the former jury, including an emotional discussion of his family background, an account of his religious affiliation, job history, previous physical injuries, and a rendition of several religious poems and songs he had written.2
4
The jury instructions on the permissible range of punishment were the same at each trial and the prosecutor at the second trial urged the jury to sentence petitioner to death, as he had in his closing argument at the prior trial.3 This time, however, the jury returned a sentence of life imprisonment. The parties agree that the jury was not aware of the length of the sentence meted out by the former jury. And, although the jury was informed by one of petitioner's own witnesses that he had been tried previously on the same charge,4 the jury was not told that petitioner had been convicted and that his conviction had been overturned on collateral attack.5
5
Claiming primarily that it was improper for the State to allow the jury to render a harsher sentence on retrial, petitioner appealed again to the State Supreme Court. That court affirmed the lower court's judgment and refused to alter petitioner's sentence. 227 Ga. 327, 180 S.E.2d 741 (1971). He then filed his second application for habeas relief in the Federal District Court, arguing that the higher sentence was invalid under Pearce. The District Court disagreed and declined to issue the writ. On appeal to the United States Court of Appeals for the Fifth Circuit, the District Court's judgment was affirmed in an opinion holding that the higher sentence received in this case was not violative of due process. 455 F.2d 640 (1972). Because two other federal courts of appeals had held to the contrary that Pearce restrictions are applicable,6 we granted certiorari to resolve the conflict. 409 U.S. 912, 93 S.Ct. 243, 34 L.Ed.2d 172 (1972).
II
6
Georgia is one of a small number of States that entrust the sentencing function in felony cases to the jury rather than to the judge.7 While much has been written on the questions whether jury sentencing is desirable8 and whether it is compatible with the modern philosophy of criminal sentencing that 'the punishment should fit the offender and not merely the crime,' Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949), this Court has never expressed doubt about the constitutionality of that practice. See McGautha v. California, 402 U.S. 183, 196—208, 91 S.Ct. 1454, 1461—1468, 28 L.Ed.2d 711 (1971); Witherspoon v. Illinois, 391 U.S. 510, 519—520 and n. 15, 88 S.Ct. 1770, 1775—1776, 20 L.Ed.2d 776 (1968); Spencer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967); Giaccio v. Pennsylvania, 382 U.S. 399, 405 n. 8, 86 S.Ct. 518, 522, 15 L.Ed.2d 447 (1966). The States have always enjoyed 'wide leeway in dividing responsibility between judge and jury in criminal cases.' Spencer v. Texas, ]supra, 385 U.S., at 560, 87 S.Ct., at 652. If a State concludes that jury sentencing is preferable because, for instance, it guarantees the maintenance of a 'link between contemporary community values and the penal system,' Witherspoon v. Illinois, supra, 391 U.S., at 519 n. 15, 88 S.Ct., at 1775 n. 15, or because 'juries are more likely to act with compassion, fairness, and understanding than the judge,' Stubbs, Jury Sentencing in Georgia—Time For a Change?, 5 Ga.St.B.J. 421, 426 (1969), nothing in the Due Process Clause of the Fourteenth Amendment intrudes upon that choice.
7
Petitioner does not question this proposition. Instead, he contends that, although the jury may set the sentence, its range of discretion must be subjected to limitations similar to those imposed when the sentencing function on retrial is performed by the judge. While primary reliance, therefore, is placed on this Court's recent opinion in Pearce, petitioner asserts three distinct due process claims: (A) higher sentences on retrial violate the double jeopardy provision of the Fifth Amendment, made binding on the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 793—796, 89 S.Ct. 2056, 2061—23 L.Ed.2d 707 (1969); (B) higher sentences occasioned by vindictiveness on the part of the sentencing authority violate traditional concepts of fairness in the criminal process; and (C) the possibility of a higher sentence, even absent a reasonable fear of vindictiveness, has an impermissible 'chilling effect' on the exercise of the rights to appeal and to attack collaterally a conviction. Each claim will be considered separately.
A.
8
The question presented in Pearce, arising in the context of judicial resentencing, was framed as follows: 'When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?' 395 U.S., at 713, 89 S.Ct., at 2074. In addressing first the double jeopardy claim the Court recognized the long-accepted power of a State 'to retry a defendant who has succeeded in getting his first conviction set aside,' id., at 720, 89 S.Ct., at 2078 (emphasis in original); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), and, as a 'corollary' of that power, 'to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.' 395 U.S., at 720, 89 S.Ct., at 2078.
9
The foundational precedent from which the Court's view of resentencing discretion derives is Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), a case which, because it involved jury resentencing, is central to the double jeopardy claim in the present case. Robert Stroud, popularly known as 'The Birdman of Alcatraz,'9 was indicted for the murder of a federal prison guard at Leavenworth, Kansas. After being convicted and sentenced by a jury to life imprisonment, he won a retrial upon a confession of error by the Solicitor General. His retrial resulted in another verdict of guilty of murder in the first degree and a sentence, again imposed by the jury, of death. On a direct appeal, a unanimous Court held that despite the harsher sentence on retrial Stroud had not been 'placed in second jeopardy within the meaning of the Constitution.' Id., at 18, 40 S.Ct., at 51.
10
The Court in Pearce reaffirmed that decision, emphasizing that it now constitutes a "well-established part of our constitutional jurisprudence" which rests on the 'premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean.' 395 U.S., at 720—721, 89 S.Ct., at 2078. Petitioner, relying on the views of Mr. Justice Douglas and Mr. Justice Harlan expressed in their separate opinions in Pearce, id., at 726, 744, 89 S.Ct., at 2081, 2085, urges the Court to overrule Stroud,10 a step which, for the reasons stated in Pearce, we again decline to take.
B
11
Petitioner's second contention focuses on the problem of vindictiveness. In Pearce it was held that vindictiveness, manifesting itself in the form of increased sentences upon conviction after retrial, can have no place in the resentencing process. Under our constitutional system it would be impermissible for the sentencing authority to mete out higher sentences on retrial as punishment for those who successfully exercised their right to appeal, or to attack collaterally their conviction.11 Those actually subjected to harsher resentencing as a consequence of such motivation would be most directly injured, but the wrong would extend as well to those who elect not to exercise their rights of appeal because of a legitimate fear of retaliation. Thus, the Court held that fundamental notions of fairness embodied within the concept of due process required that convicted defendants be 'freed of apprehension of such a retaliatory motivation.' Id., at 725, 89 S.Ct., at 2080. To that end, the Court concluded that 'whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.' Id., at 726, 89 S.Ct., at 2081. And, as a further prophylaxis, it was stated that those reasons must be based upon 'objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.' Ibid.
12
Petitioner seeks the extension of the Pearce rationale to jury sentencing. That decision, as we have said, was premised on the apparent need to guard against vindictiveness in the resentencing process. Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process. The possibility of a higher sentence was recognized and accepted as a legitimate concomitant of the retrial process. Id., at 723, 89 S.Ct., at 2079.
13
Subsequent cases have dispelled any doubt that Pearce was premised on the hazard of vindictiveness. In Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), a case granted with a view to determining the retroactivity of Pearce, the Court ordered the case dismissed as improvidently granted when it became clear that there was no claim there that the higher sentence received on retrial was a product of vindictiveness on the part of the sentencing judge. Because counsel for the reconvicted defendant eschewed that contention, the Court held that 'there is no claim in this case that the due process standard of Pearce was violated.' Id., at 320, 90 S.Ct., at 1731. A similar focus on actual vindictiveness is reflected in the decision last Term in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The question in that case was whether the Pearce principle applied to bar the imposition of a higher sentence after a de novo trial in those jurisdictions that employ a two-tier system of trial courts. While noting that '(i)t may often be that the (de novo 'appeal' court) will impose a punishment more severe than that received from the inferior court,' id., at 117, 92 S.Ct., at 1960, we were shown nothing to persuade us 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.' Id., at 116, 92 S.Ct., at 1960 (emphasis supplied). In short, the Due Process Clause was not violated because the 'possibility of vindictiveness' was not found to inhere in the two-tier system. Ibid.
14
This case, then, is controlled by the inquiry into possible vindictiveness counseled by Pearce, Moon, and Colten. The potential for such abuse of the sentencing process by the jury is, we think, de minimis in a properly controlled retrial. The first prerequisite for the imposition of a retaliatory penalty is knowledge of the prior sentence. It has been conceded in this case that the jury was not informed of the prior sentence. We have no reason to suspect that this is not customary in a properly tried jury case. It is more likely that the jury will be aware that there was a prior trial, but it does not follow from this that the jury will know whether that trial was on the same charge, or whether it resulted in a conviction or mistrial.12 Other distinguishing factors between jury and judicial sentencing further diminish the possibility of impropriety in jury sentencing. As was true in Colten, the second sentence is not meted out by the same judicial authority whose handling of the prior trial was sufficiently unacceptable to have required a reversal of the conviction. Thus, the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication. Similarly, the jury is unlikely to be sensitive to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals.13
15
In light of these considerations, and where improper and prejudicial information regarding the prior sentence is withheld,14 there is no basis for holding that jury resentencing poses any real threat of vindictiveness.15
C
16
Petitioner's final argument is that harsher sentences on retrial are impermissible because, irrespective of their causes and even conceding that vindictiveness plays no discernible role,16 they have a 'chilling effect' on the convicted defendant's exercise of his right to challenge his first conviction either by direct appeal or collateral attack. What we have said as to Pearce demonstrates that it provides no foundation for this claim. To the contrary, the Court there intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal. Colten likewise represents a view incompatible with petitioner's contention.
17
Petitioner relies instead on United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in which the Court held unconstitutional the capital punishment provision of the federal antikidnaping law. By limiting to the jury the power to impose a death sentence, the statute 'discouraged' the exercise by the accused of his rights to trial by jury and to plead not guilty. Id., at 581, 88 S.Ct., at 1216. The Court found that the interest of the Government in having the jury retain the power to render the death penalty could be realized without this imposition on the rights of the accused. Therefore, the sentencing structure of the statute was struck down because it 'unnecessarily' and 'needlessly chill(ed) the exercise of basic contitutional rights.' Id., at 582, 88 S.Ct., at 1216.17
18
Jackson did not hold, as subsequent decisions have made clear, that the Constitution forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), defendants entered pleas of guilty in order to avoid the potential imposition of death sentences by a jury. Each was dissuaded from exercising his rights to a jury trial and to plead not guilty. Each was, in that sense, 'discouraged' from asserting his rights, but the Court found no constitutional infirmity despite the claim in each case that Jackson compelled a contrary result. Brady is particularly instructive. The Court there canvassed several common plea-bargaining circumstances in which the accused is confronted with the 'certainty or probability' that, if he determines to exercise his right to plead innocent and to demand a jury trial, he will receive a higher sentence than would have followed a waiver of those rights. 397 U.S., at 751, 90 S.Ct., at 1470. Although every such circumstance has a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices was upheld as an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas.18
19
Mr. Justice Harlan's opinion for the Court in Crampton v. Ohio, a companion case to McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), deals at some length with the constitutional problems surrounding the imposition of difficult choices in the criminal process and is of particular relevance since it arises in the context of jury sentencing. Petitioner Crampton attacked the Ohio system of conducting capital trials. Ohio allowed the jury to determine guilt and punishment in a single trial and a single verdict, and Crampton complained that due process required a bifurcated trial because in a single trial he could not argue his case for mitigation of punishment to the jury without forgoing his right to remain silent on the issue of guilt. Id., at 220—221, 91 S.Ct., at 1474. Thus, the free exercise of his Fifth Amendment right to remain silent was 'chilled' by the prospect that a harsher jury sentence might ensue.19 The Court did not agree, however, that the burden imposed on that right was impermissible.
20
In terms pertinent to the case before us today, the Court in Crampton stated:
21
'The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow. . . . Although 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.
22
Recognizing that the inquiry, by its very nature, must be made on a case-by-case basis, the Court indicated that the 'threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.' Ibid. The choice imposed by the Ohio system was similar to the choice frequently faced by a criminal defendant in deciding whether to assert his right to remain silent. And the fact that the consequence of silence might be a harsher sentence was not regarded as a distinguishing factor.
23
These cases, we think, erase any question whether Jackson might call for abrogation of Georgia's unrestricted jury-resentencing process. Jury sentencing, based on each jury's assessment of the evidence it hears and appraisal of the demeanor and character of the accussed, is a legitimate practice. Supra, at 21—22. Just as in the guilty-plea cases and Crampton an incidental consequence of that practice20 is that it may require the accused to choose whether to accept the risk of a higher sentence or to waive his rights. We see nothing in the right to appeal or the right to attack collaterally a conviction, even where constitutional errors are claimed, which elevates those rights above the rights to jury trial and to remain silent.
24
Petitioner was not himself 'chilled' in the exercise of his right to appeal by the possibility of a higher sentence on retrial and we doubt that the 'chill factor' will often be a deterrent of any significance. Unlike the guilty-plea situation and, to a lesser extent, the nonbifurcated capital trial, the likelihood of actually receiving a harsher sentence is quite remote at the time a convicted defendant begins to weigh the question whether he will appeal. Several contingencies must coalesce. First, his appeal must succeed. Second, it must result in an order remanding the case for retrial rather than dismissing outright. Third, the prosecutor must again make the decision to prosecute and the accused must again select trial by jury rather than securing a bench trial or negotiating a plea.21 Finally, the jury must again convict and then ultimately the jury or the judge must arrive at a harsher sentence in circumstances devoid of a genuine likelihood of vindictiveness. While it may not be wholly unrealistic for a convicted defendant to anticipate the occurrence of each of these events,22 especially in the infrequent case in which his claim for reversal is strong and his first sentence was unusually low, we cannot agree with petitioner that such speculative prospects interfere with the right to make a free choice whether to appeal.
III
25
Guided by the precedents of this Court, these are the conclusions we reach. The rendition of a higher sentence by a jury upon retrial does not violate the Double Jeopardy Clause. Nor does such a sentence offend the Due Process Clause so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. The choice occasioned by the possibility of a harsher sentence, even in the case in which the choice may in fact be 'difficult,' does not place an impermissible burden on the right of a criminal defendant to appeal or attack collaterally his conviction.
26
Affirmed.
27
Mr. Justice DOUGLAS dissents for the reasons stated in his dissenting opinion in Moon v. Maryland, 398 U.S. 319, 321, 90 S.Ct. 1730, 1731, 26 L.Ed.2d 262 (1970). He also agrees with Mr. Justice STEWART and Mr. Justice MARSHALL that establishing one rule for resentencing by judges and another for resentencing by juries burdens the defendant's right to choose to be tried by a jury after a successful appeal. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).
28
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting.
29
In North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 the Court held that 'vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.' As I see it, there is a real danger of such vindictiveness even when a jury rather than a judge imposes the sentence after retrial. Because the Court today declines to require any procedures to eliminate that danger, even though procedures quite similar to those adopted in Pearce could readily be applied without sacrificing the values of jury sentencing, I must dissent.
30
The true threat of vindictiveness at a retrial where the jury metes out the sentence comes from the trial judge and prosecutor. Either or both might have personal and institutional reasons for desiring to punish a defendant who has successfully challenged his conviction. Out of vindictiveness the prosecutor might well ask for a sentence more severe than that meted out after the first trial, and a judge by the manner in which he charges the jury might influence the jury to impose a higher sentence at the second trial. In the present case, for example, while the petitioner was sentenced to 15 years' imprisonment after his first trial, on retrial the prosecutor asked the jury to impose the death penalty, and the judge instructed the jurors that they could inflict that punishment. It is said that the prosecutor and judge gave the jury the option to impose capital punishment at the retrial simply as a tactical move to assure that the petitioner would again receive at least a 15-year sentence. But it is not inconceivable in this setting that a prosecutor or a judge might seek to secure a higher sentence for a defendant in order to punish him for his successful appeal.*
31
It was to purge that possibility of retaliation that Pearce required prophylactic measures for judicial sentencing. Without such procedures, as the Court pointed out in Pearce, it would be extremely difficult for a defendant to establish that his higher sentence was the result of a rataliatory motivation.
32
I agree with the Court today that some measures are ill-suited to eliminating the possibility of retaliation in a case where the jury imposes the sentence. For example, the jury ought not to be told that its sentencing power is limited by the term imposed at the first trial, for the jury might then impose a less severe sentence in reaching a compromise verdict. But there is no reason why the trial judge should not be compelled to reduce any sentence imposed by the jury after retrial to that imposed after the first trial, unless he can affirmatively set forth the kind of reasons required in Pearce for the increased sentence. 'Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.' 395 U.S., at 726, 89 S.Ct., at 2081.
33
As in Pearce, that procedure would serve to minimize the possibility that vindictiveness had played a role in the sentence a defendant received after a new trial, and it would free a convicted man from the fear that a successful challenge to his conviction might lead to a vindictively imposed harsher sentence after a second trial. Since this measure would, at the most, reinstate the sentence imposed by the original jury, none of the basic purposes served by jury sentencing would be jeopardized.
34
I also agree with my Brother MARSHALL that allowing a more severe sentence to be imposed by a jury on retrial, when that sentence would be impermissible for a judge to impose, is an infringement upon a defendant's constitutional right to a jury trial. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. Requiring that a judge reduce a juryimposed sentence to that imposed after the first trial, unless he can make the kind of findings required by Pearce, would eliminate that illegitimate burden upon a constitutional right.
35
Mr. Justice MARSHALL, dissenting.
36
I cannot agree with the Court that it is permissible for a jury, but not for a judge, to give a defendant on his retrial a sentence more severe than the one he received in his first trial, without specifying particular aspects of his behavior since the time of his first trial that justify the enhanced sentence. Such a rule is defective in two ways. First, the Court acknowledges that a jury violates the Constitution when it gives such a defendant a more severe sentence to punish him for successfully taking an appeal. Ante, at 26—28. Yet, when the costs, in terms of other values served by juries, of the methods of preventing, detecting, and remedying that kind of violation are balanced against the minor degree to which restrictions on jury resentencing impair the values served by jury sentencing, the need to vindicate the constitutional right warrants restrictions on juries similar to those we placed on judges in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Second, as in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the possibility that a jury might increase a sentence for reasons that would be unavailable to a judge unnecessarily burdens the defendant's right to choose a jury trial. I therefore respectfully dissent.
37
I begin with what appears to be common ground. If the jury on retrial has been informed of the defendant's prior conviction and sentence, the possibility is real that it will enhance his punishment simply because he successfully appealed. The Court apparently agrees, ante, at 27 n. 13, 28—29 nn. 14—15, and suggests that a variety of preventive and remedial measures must be taken to minimize that possibility. Those measures, I believe, are too intrusive on the process of selecting the jury and insulating its deliberations from inquiry. In Pearce we devised a remedy for judicial vindictiveness in sentencing that was broader than the constitutional vice, because a remedy more closely tailored to the vice would too severely intrude on the process by which the judge made his sentencing decisions. A similar remedy is justified for the same reasons in the case of jury resentencing.
38
Of course a jury that does not know of a prior conviction and sentence cannot take them into account when it resentences the offender. But there is a real possibility that a jury will know of a prior sentence and will enhance the punishment it imposes out of vindictiveness as the Court apparently concedes in limiting its holding to 'properly controlled retrial(s).' Ante, at 26. And only when the possibility of vindictiveness can confidently be said to be De minimis can Pearce be distinguished. Even in Pearce we acknowledged the difficulty in establishing that sentences were frequently enhanced out of vindictiveness. 395 U.S., at 725 n. 20, 89 S.Ct., at 2080. Indeed, we could cite only studies that showed that increased sentences on reconviction were 'far from rare,' ibid,; we had before us no evidence at all that vindictiveness actually played a part in a substantial number of cases where sentences were increased.1
39
Given the possibility of vindictiveness, a defendant is entitled to a remedy designed to eliminate, or at least minimize, that possibility. It follows, I believe, that the defense is entitled to have prospective jurors asked carefully framed questions designed to explore their knowledge of a prior conviction and sentence. Cf. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). But it will inevitably be difficult to frame questions that will do so without informing the jurors of those facts in the very act of questioning them. In addition, the right to have questions asked of prospective jurors would be meaningless unless the defense could challenge jurors for cause solely on the basis of the answers to those questions. Yet nearly all of the States in which jury sentencing is required have large rural areas,2 where it is quite likely that a retrial after a successful appeal will be a notorious public even. It seems to me probable, then, that the right recognized by the Court will substantially impede expeditious selection of juries, for it will generally be easy to make a threshold showing of local publicity, and may often so severely limit the number of available jurors as to raise serious questions of the representativeness of the jury finally chosen.3
40
The Court suggests that a curative instruction might minimize the possibility that the jury will be improperly influenced by its knowledge of a prior conviction or sentence. Ante, at 28 n. 14. We have already recognized, however, that it is quite unrealistic to believe that instructions to disregard evidence that a jury might treat in a manner highly prejudicial to a defendant will often be followed. Jackson v. Denno, 378 U.S. 368, 388—389, 84 S.Ct. 1774, 1786—1788, 12 L.Ed.2d 908 (1964); Bruton v. United States, 391 U.S. 123, 128—137, 88 S.Ct. 1620, 1623—1629, 20 L.Ed.2d 476 (1968). Cf. E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 105 (1956). And curative instructions may serve only to highlight the problem. Not every such instruction is ineffective, of course, but I would not burden the judicial process with difficult inquiries into the effectiveness of such an instruction where, as here, the State's interest in having sentences imposed by a jury can easily be satisfied without requiring such inquiries. See infra, at 43.
41
Finally, a post-sentencing inquiry of a jury that imposes a more severe sentence might disclose that vindictiveness played no part in its sentencing decision. But this could be achieved only by sacrificing the traditional secrecy of jury deliberations. Cf. Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933), and cases cited therein.
42
Because of the differing institutional positions of judge and jury,4 and because the jury that sentences also convicts and so focuses on the facts of the offense, the question of applying the limitations imposed by Pearce on resentencing by judges to resentencing by juries would surely be a close one, if only the issue of possible vindictiveness were involved. Since no state interests in jury sentencing would be impaired to any insignificant degree by imposing such limitations, however, the question should be resolved in favor of limiting the jury's power.
43
One group of policies underlying jury sentencing derives from the belief that juries will be more humane and compassionate than judges: judges, it is said, represent a centralized government remote from the details of local life; judges who often must seek re-election may be unduly swayed by political considerations that have little impact on jurors; and judges who routinely deal with criminal cases may become callous and insensitive to the human problems of defendants. In contrast, the jury has close ties to the local community, and because it sits only once and then dissolves, its members ordinarily have little experience with criminal offenders. Cf. Note, Jury Sentencing in Virginia, 53 Va.L.Rev. 968, 988—991 (1967). It is somewhat anomalous, however, to contend that because juries are more compassionate than judges, they may impose a sentence more severe than a judge may constitutionally impose. I cannot understand, therefore, how the belief that juries are more compassionate than judges justifies a rule that permits a jury on retrial to impose a sentence more severe than that imposed by the original jury.
44
The second policy implicated in jury sentencing is that the jury serves as a 'link between contemporary community values and the penal system,' Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968). More accurately than a judge, the jury reflects the community's moral attitude toward the particular offender. The jury's function in sentencing, then, is to make the punishment fit the crime, not the criminal. Limitations on the sentences a jury might impose do impair its ability to decide what punishment fits the crime before it. But in cases like this one, one jury has already determined what it, as a representative of community views, thinks is an appropriate sentence. Indeed, it has done so after a trial in which reversible error, presumably prejudicial to the defendant, occurred. Thus, this state interest is not substantially impaired by limitations designed to preclude the second jury from imposing a sentence based, in part, on a desire to punish the defendant for taking an appeal.
45
In short, even if only the question of vindictiveness were involved in the case of jury resentencing, I would hold that limitations similar to those in Pearce must be imposed on jury resentencing: alternative methods of minimizing vindictiveness may seriously impair other values, and the limitations of Pearce do not greatly affect the values served by jury sentencing.5 But vindictiveness alone is not the only issue here. For, by establishing one rule for sentencing by judges and another for sentencing by juries, the Court places an unnecessary burden on the defendant's right to choose to be tried by a jury after a successful appeal.
46
We held unconstitutional in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), a sentencing structure that placed an unnecessary burden on a defendant's right to a jury trial. The Court today purports to distinguish Jackson on the ground that subsequent cases show that Jackson does not make unconstitutional sentencing structures that impose a burden on the exercise of constitutional rights as 'an incidental consequence.' Ante, at 32. Yet in Jackson we said, 'The question is not whether the chilling effect is 'incidental' rather than intentional; the question is whether that effect is unnecessary and therefore excessive.' 390 U.S., at 582, 88 S.Ct., at 1216; Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and Crampton v. Ohio, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), the cases that the Court now relies on, did not overrule Jackson; nor id they change the constitutional test. The question is still whether the burden on the exercise of the right to be tried by a jury is necessary, not whether it is only incidental to the accomplishment of some legitimate state purpose.
47
In Brady, a defendant sought to vacate his guilty plea on the ground that he had pleaded guilty only to avoid capital punishment, under a statute that provided for the death penalty only on the recommendation of the jury. The Court viewed his argument as applicable to every kind of inducement that the prosecution offers to a defendant in order to elicit a plea of guilty. See 397 U.S., at 750—753, 90 S.Ct., at 1469—1472. Thus, on the Court's analysis, upholding his challenge would have necessarily invalidated the widespread practice of plea bargaining, which the Court thought essential to our system of criminal justice. The burden on the exercise of a defendant's right not to incriminate himself was therefore necessary, in the terms of the analysis required by Jackson.
48
Similarly, the defendant in Crampton contended that failure to separate the trial of a capital case into a guilt-determining phase and a sentencing phase deterred him from testifying to facts bearing on sentence alone, for to testify would have opened him up to impeachment and to questions bearing on guilt. To the Court, however, such pressure was indistinguishable from that placed on him by a very powerful case for the prosecution that might require rebuttal, or by a large number of other widely accepted procedural rules. See 402 U.S., at 213—216, 91 S.Ct., at 1470—1472. As in Brady, then, the Court could not agree with the defendant without holding unconstitutional many procedures that it thought essential to the criminal process.
49
Both Brady and Crampton applied the test of necessity. The Court today does not, as it concedes when it says that '(where) the burden . . . is as speculative as this one is,' constitutional limitations on resentencing are not justified. Ante, at 34 n. 21. But Jackson, Brady, and Crampton did not involve assessments of the relative severity of the burden on the right to choose to be tried by a jury;6 they turned on the question of strict necessity.7 No legitimate state interest is materially advanced by permitting a second jury to enhance punishment without limitations like those placed by Pearce on judges, and such limitations would not substantially affect any such interest. Thus, the rule endorsed by the Court today is not only unnecessary, but it unquestionably burdens a defendant's choice of jury trial after a successful appeal.8
50
I believe that Pearce and Jackson require that States with jury sentencing adopt procedures by which juries resentencing an offender are precluded from considering the fact that the offender successfully appealed in determining the new sentence, and so I dissent.
1
Petitioner was indicted under a statute that provided for the following range of punishments:
'Robbery by open force or violence shall be punished by death, unless the jury recommends mercy, in which event punishment shall be imprisonment in the penitentiary for life: Provided, however, the jury in all cases may recommend that the defendant be imprisoned in the penitentiary for not less than four years nor longer than 20 years, in the discretion of the court.' Ga.Code Ann. § 26-2502 (1935), replaced by Ga.Code Ann. § 26—1902 (1972).
2
For a detailed description of the unique unsworn-statement practice in Georgia see Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).
3
During oral argument in this Court, counsel disagreed as to whether the prosecutor asked for the death penalty at the first trial. Tr. of Oral Arg. 13, 26, 32—33. At the Court's request, counsel have filed post-argument affidavits on this question. Although the closing arguments themselves were not transcribed, the State prosecutor states that, while his memory is not entirely clear on the matter, his notes indicate, and his customary practice suggests, that he asked for the death sentence at both trials. Any remaining doubt is foreclosed by the affidavit filed by the attorney who represented petitioner during the first trial. He states unequivocally that the prosecutor argued 'vigorously' in favor of imposition of the death penalty during the closing argument in that trial.
4
During the second trial, petitioner's counsel from the first trial was called to testify in petitioner's behalf in support of his insanity defense. The substance of his testimony was that he had an ample opportunity to study petitioner during the previous proceedings and that he was convinced that petitioner was suffering from a 'mental defect.' He explained that, despite his own evaluation, he acquiesced in petitioner's request that he not interpose an insanity defense at that time.
5
At the most, then, the jury might have speculated as to whether petitioner's retrial was the product of a mistrial or of a reversal of a prior conviction. Indeed, counsel for respondent indicated at oral argument that Georgia has many more retrials occasioned by mistrials than retrials following conviction reversals. Tr. of Oral Arg. 38.
6
Compare the Fifth Circuit opinion in the instant case (455 F.2d 640 (1972)), and Casias v. Beto, 459 F.2d 54 (CA5 1972), with Levine v. Peyton, 444 F.2d 525 (CA4 1971), and Pendergrass v. Neil, 456 F.2d 469 (CA6 1972) (pet. for cert. pending, No. 71 1472). State court decisions on this question appear uniformly to hold Pearce inapplicable to jury resentencing. See cases discussed in Aplin, Sentence Increases on Retrial After North Carolina v. Pearce, 39 U.Cin.L.Rev. 427, 430—432 (1970).
7
Georgia is one of 12 States that provide for jury sentencing in at least some categories of noncapital felony cases. Aplin, supra, n. 6, at 429 and n. 10.
8
See, e.g., Stubbs, Jury Sentencing in Georgia—Time For a Change?, 5 Ga.St.B.J. 421 (1969); Note, Jury Sentencing in Virginia, 53 Va.L.Rev. 968 (1967); President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 145 (1967), and American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 1.1 (Approved Draft 1968) (both recommending the abolition of jury sentencing).
9
See T. Gaddis, Birdman of Alcatraz (1955); R. Stroud, Diseases of Canaries (1935); R. Stroud, Digest on the Diseases of Birds (1939); Stroud v. United States, 283 F.2d 137 (CA10 1960), cert. denied, 365 U.S. 864, 81 S.Ct. 834, 5 L.Ed.2d 826 (1961).
10
Brief for Petitioner 9; Tr. of Oral Arg. 40—41.
11
While there is no per se constitutional right to appeal, this Court has frequently held that once a State establishes an appellate forum it must assure access to it upon terms and conditions equally applicable and available to all. North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969); 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); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966). See also Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969).
12
See n. 4, supra, and accompanying text. See also n. 14, infra.
13
Finally, depending upon the circumstances, it may be a desirable precaution for the trial judge to give the same instructions on the range of punishment at both trials and for the prosecutor to seek the same sentence in each case. See n. 3, supra.
It has been suggested that higher sentences on retrial might result from vindictiveness on the part of the prosecutor. As punishment for a successful appeal, for instance, a prosecutor might recommend to the jury, and strenuously argue in favor of a higher sentence than he previously sought. No such indication exists on this record since the prosecutor vigorously urged the imposition of the death penalty at the first trial. In any event, it would be erroneous to infer a vindictive motive merely from the severity of the sentence recommended by the prosecutor. Prosecutors often request more than they can reasonably expect to get, knowing that the jury will customarily arrive at some compromise sentence. The prosecutor's strategy also might well vary from case to case depending on such factors as his assessment of the jury's reaction to the proof and to the testimony of witnesses for and against the State. Given these practical considerations, and constrained by the bar against his informing the jury of the facts of prior conviction and sentence, the possibility that a harsher sentence will be obtained through prosecutorial malice seems remote. See Williams v. McMann, 436 F.2d 103, 105—106 (CA2 1970).
14
The State agreed at oral argument that it would be improper to inform the jury of the prior sentence and that Pearce might be applied in a case in which, either because of the highly publicized nature of the prior trial or because of some other irregularity, the jury was so informed. Tr. of Oral Arg. 39. We do not decide, however, whether improperly informing the jury would always require limitation of the sentence or whether such error might be cured by careful questioning of the jury venire or by a cautionary jury instruction.
15
Because we have concluded that jury sentencing is not susceptible of the abuse that prompted the Pearce decision, we need not consider what remedy would be required if jury sentencing were subjected to Pearce-type restrictions. It is sufficient here to note that because the institution of jury sentencing is unlike judicial sentencing in a number of fundamental ways those restrictions may not be easily invoked. Normally, there would be no was for a jury to place on the record the reasons for its collective sentencing determination, and ordinarily the resentencing jury would not be informed of any conduct of the accused unless relevant to the question of guilt. See Note, supra, n. 8, at 978—980; Stubbs, supra, n. 8, at 428—429; LaFont, Assessment of Punishment—A Judge or Jury Function?, 38 Tex.L.Rev. 835, 837—842 (1960). These important differences would not be entirely overcomes by requiring that jury trials be bifurcated as suggested by the Sixth Circuit in Pendergrass v. Neil, 456 F.2d, at 472 (pet. for cert. pending, No. 71—1472). While some jury-sentencing States have adopted bifurcated jury trials, in which the jury assesses the punishment in a separate proceeding after a verdict of guilty has been rendered (see Aplin, supra, n. 6, at 430, 441—442; Ga.Code Ann. § 27—2534 (1972)), bifurcation alone would not wipe away the fundamental differences between jury and judicial sentencing. It may make little sense to supply the jury with information about the defendant's conduct if the goal of jury sentencing is not necessarily to fit the punishment to the offender, and if the jury is, therefore, not concerned about matters considered pertinent to judicial sentencing.
Petitioner and recent court of appeals cases suggest that an approximation of the Pearce limitations could be realized either by instructing the jury that it may return no verdict higher than the former sentence, or by empowering the judge to reduce the second sentence whenever it exceeds the former sentence. See Levine v. Peyton, 444 F.2d 525 (CA4 1971); Pendergrass v. Neil, supra. Although these alternatives would provide an absolute protection from the possibility of vindictiveness, they would also interfere with ordinary sentencing discretion in a manner more intrusive than contemplated by Pearce. They would achieve, in the name of due process, the susbtance of the result we have declined to approve under the Double Jeopardy Clause.
16
During oral argument, Tr. of Oral Arg. 11—12, petitioner's counsel seemed to concede the absence of an improper motivation on the jury's part:
'Question. Did the jury know anything about the first trial?
'(Petitioner's Counsel). No, they did not.
'Question. Was there any possibility of vindictiveness?
'(Petitioner's Counsel). There is none, obviously not.
'Question. Why not?
'(Petitioner's Counsel). Because the jury did not know (about) the first sentence.'
17
In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Court succinctly articulated the narrow holding in Jackson:
'Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision 'needlessly penalize(d) the assertion of a constitutional right." Id., at 746, 90 S.Ct., at 1468 (emphasis supplied).
18
The legitimacy of the practice of 'plea bargaining,' as the Court noted last Term in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), has not been doubted and where 'properly administered' it is to be 'encouraged' as an 'essential' and 'desirable' 'component of the administration of justice.' Id., at 260—261, 92 S.Ct., at 498. See also Brady v. United States, supra, 397 U.S., at 751—753, 90 S.Ct., at 1470 1472.
19
The case was argued on the theory that the Ohio single proceeding created a 'tension between constitutional rights,' 402 U.S., at 211, 91 S.Ct., at 1469, similar to that involved in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The Court declined to decide the case in those terms, 402 U.S., at 212—213, 91 S.Ct., at 1469—1470, but focused instead on the extent to which the lack of a bifurcated proceeding created a burden on the exercise of the right to remain silent, or, stated differently, encouraged its waiver. Id., at 213—217, 91 S.Ct., at 1470—1472.
20
We reiterate that we are dealing here only with the case in which jury sentencing is utilized for legitimate purposes and not as a means of punishing or penalizing the assertion of protected rights. Jackson and Pearce are clear and subsequent cases have not dulled their force: if the only objective of a state practice is to discourage the assertion of constitutional rights it is "patently unconstitutional." Shapiro v. Thompson, 394 U.S. 618, 631, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969).
21
A footnote in the Court of Appeals opinion indicates that petitioner argued in that court that unrestricted jury resentencing would have an impermissible 'chilling effect' on his right to select a jury trial upon retrial. 455 F.2d, at 641 n. 7. Although this argument is not mentioned in his appellate brief in this Court, petitioner's counsel touched on it briefly at oral argument. Tr. of Oral Arg. 13—14. What we have said here regarding the collective force of Pearce, Colten, the guilty-plea cases, and Crampton should make clear that this claim is without merit. Jackson is not to the contrary. Unlike that case, the choice here is subject to considerable speculation. Applying Pearce, the judge may or may not give a sentence as high as the jury might give. More importantly, the discouraging effect cannot be said to be 'needless.' 390 U.S., at 583, 88 S.Ct., at 1217. The parameters of judge- and jury-sentencing power, given the binding nature of Pearce, can only be made coterminous by either (1) restricting the jury's power of independent assessment, or (2) requiring jury sentencing in every felony case irrespective whether guilt is determined by a bench trial or a guilty plea after reversal of the conviction. Either alternative would interfere with concededly legitimate state interests, and thus the burden imposed on the right to trial by jury is no less 'necessary,' post, at 44—46, than the burdens tolerated in Brady and Crampton. Where the burden of the choice is as speculative as this one is, such incursions upon valid state interests are not justified.
22
In practical terms, as those closest to the criminal appellate process well know (see Hermann, Frivolous Criminal Appeals, 47 N.Y.U.L.Rev. 701 (1972); Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv.L.Rev. 542 (1969)), the likelihood that a convicted defendant will forgo his right to appeal or to attack collaterally his conviction has been diminishing in recent years, in part as a consequence of decisions removing roadblocks and disincentives to appeal. See, e.g., 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); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). Available statistical evidence, from both the federal and state criminal systems, demonstrates that the volume and rate of appeal have risen steadily over the last few years. In a criminal system in which appeal is the rule rather than the exception, the possibility of a higher sentence is a remote consideration. See American Bar Association Project on Standards for Criminal Justice, Criminal Appeals 19—21 (Approved Draft 1970) ('The trend today is clearly toward a much higher rate of appeal'); Administrative Office of the U.S. Courts, 1972 Annual Report of the Director II—11 (direct criminal appeals in 1972 up nearly 25% from 1971); Carrington, supra, at 545 (approximately a 200% increase in federal direct criminal appeals from 1959—1960 to 1966—1967).
*
The Court finds the possibility of prosecutorial malice 'remote.' Ante, at 27. The only basis for that conclusion appears to be that the prosecutor may have quite innocent strategic reasons for requesting an increased sentence after a retrial. But that does not foreclose the possibility that a prosecutor might have quite vindictive reasons for seeking a more severe penalty, and it underlines the extraordinary difficulty a defendant would have in attempting to prove a retaliatory motivation.
1
I assume that the Court would treat jury sentencing as it treated judge sentencing in Pearce if it were presented with the same kind of evidence we drew on in Pearce. Cf. Witherspoon v. Illinois, 391 U.S. 510, 516—518, 88 S.Ct. 1770, 1774—1775, 20 L.Ed.2d 776 (1968). Because of the differing institutional positions of judges, who will be repeatedly reviewed by appellate courts, and juries, which are not continuing bodies, cf. Illinois v. Somerville, 410 U.S. 458, 477, 93 S.Ct. 1066, 1077, 35 L.Ed.2d 425 (1973) (Marshall, J., dissenting), evidence supporting the inference that vindictiveness may not infrequently influence jury decisions would be especially valuable from cases in which the evidence on retrial was not substantially different from the evidence at the first trial.
2
In addition to Georgia, these States include Arkansas, Kentucky, Missouri, Oklahoma, Tennessee, and Virginia.
3
Even on the Court's analysis, if a defendant must proceed to trial before a jury that knows of his prior conviction and sentence, due process would require limitations on the sentence imposed, though such limitations would not be required in 'properly controlled retrial(s).' Thus, the Court does not today endorse the proposition that limitations on jury sentencing on a retrial are never required. See ante, at 28 n. 14. At most, it holds only that, in the absence of knowledge of the prior conviction and sentence, no limitations are constitutionally compelled.
4
The Court distinguishes Pearce from this case in part on the ground that there 'the second sentence (was) meted out by the same judicial authority whose handling of the prior trial was sufficiently unacceptable to have required a reversal of the conviction,' while here 'the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication.' Ante, at 27. The Court cannot mean that Pearce himself was resentenced by the same judge who sentenced him in the first place, for Pearce was tried before two different judges. See State v. Pearce, 266 N.C. 234, 236, 145 S.E.2d 918, 920 (1966) (Judge Williams at first trial); State v. Pearce, 268 N.C. 707, 708, 151 S.E.2d 571, 572 (1966) (Judge McLaughlin at second trial). Thus, the only differences in this respect are institutional, not personal: juries are not continuing bodies and may have little interest in deterring appeals or vindicating a colleague.
5
The Court suggests that the limitations of Pearce cannot easily be adapted to jury sentencing. Ante, at 28—29, n. 15. But procedures like bifurcation, special verdicts stating the reasons for the sentence imposed or stating that the prior conviction and sentence were not taken into account, instructing the jury that the maximum sentence available to it is that imposed earlier, or empowering the judge to reduce the sentence if it exceeds the prior sentence, are some obvious alternatives. The Court suggests that the first two are inconsistent with the basic purpose of jury sentencing—making the punishment fit the crime—and that the latter two 'would achieve, in the name of due process, the substance of the result we have declined to approve under the Double Jeopardy Clause.' Ante, at 29 n. 15. The latter point confuses limitations imposed by the Constitution with choices a State might make to carry out the policies it seeks to vindicate through jury sentencing; if a State chooses to impose a maximum limit on resentencing instead of establishing a bifurcated procedure, for example, the result is not, even in substance, the result urged under the Double Jeopardy Clause, for it results from choice among alternatives and not from constitutional commands. Similarly, bifurcation may inject into jury sentencing considerations that the State thinks are irrelevant to its purposes in establishing a system in which juries are the sentencing authority, and it may decide to adopt some other method of complying with the constitutional requirements. But surely there is no clear conflict between bifurcation or special verdicts and the purposes of jury sentencing.
6
Georgia permits a defendant to plead not guilty and waive his right to jury trial. See Berry v. State, 61 Ga.App. 315, 6 S.E.2d 148 (1939). Of the States with jury sentencing, apparently only Kentucky does not permit such a waiver. See Meyer v. Commonwealth, 472 S.W.2d 479, 482 (Ky.1971). Where the prosecution must agree to such a waiver, cf. Fed.Rule Crim.Proc. 23(a), it would of course be impermissible to refuse agreement solely because a judge would be restricted in resentencing while a jury would not, cf. Singer v. United States, 380 U.S. 24, 37, 85 S.Ct. 783, 791, 13 L.Ed.2d 630 (1965).
7
In discussing whether the holding today burdens the right to appeal, the Court says that for the undesired outcome to occur, '(s)everal contingencies must coalesce.' Thus, 'the likelihood of actually receiving a harsher sentence is quite remote at the time a convicted defendant begins to weigh the question whether he will appeal.' Ante, at 33. But, of the list the Court provides, only two remain contingent when the defendant must decide to waive or insist upon a jury trial—reconviction and sentence. The Court acknowledges that in some cases, even when all the contingencies must be taken into account, the possibility of a harsher sentence might well affect the decision to appeal. Ante, at 34—35. The burden will surely be substantial when the contingencies are reduced to two.
8
The Court, in its footnote discussing this argument, does assert that the burden 'cannot be said to the 'needless." Ante, at 33—34, n. 21. The sentence following that assertion does not supply any reason why the burden is necessary; it simply states two ways in which the burden might be eliminated without saying why those alternatives are so impractical as to make necessary the burden that after today's decision, may be placed on the right to jury trial.
| 01
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412 U.S. 1
93 S.Ct. 1943
36 L.Ed.2d 702
Paul HALL, etc., et al., Petitioners,v.John COLE.
No. 72—630.
Argued March 21, 1973.
Decided May 21, 1973.
Syllabus
Respondent, expelled from his union for deliberate and malicious vilification of union management following his resolutions unsuccessfully condemning that management's alleged undemocratic actions and shortsighted policies, regained his union membership in a suit under § 102 of the Labor-Management Reporting and Disclosure Act (LMRDA) and was awarded $5,500 in legal fees. The Court of Appeals affirmed. Held:
1. Respondent's suit under § 102 of the LMRDA vindicated not only his own rights of free speech guaranteed by the statute but furthered the interests of the union and its members as well. As a result, the award to respondent of attorneys' fees under these circumstances comported with the trial court's inherent equitable power of making such an award whenever 'overriding considerations indicate the need for such a recovery.' Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391—392, 90 S.Ct. 616, 625, 24 L.Ed.2d 593. Pp. 4—9.
2. The allowance of counsel fees to the successful plaintiff in a suit brought under § 102 is not precluded by that statutory provision and, indeed, is supported by the legislative history of the LMRDA. Pp. 9—14.
3. Under all the facts of the case, the District Court did not abuse its discretion in awarding counsel fees to respondent. Pp. 14—15.
462 F.2d 777, affirmed.
Howard Schulman, New York City, for petitioners.
Burton H. Hall, New York City, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case requires us to consider the propriety of an award of counsel fees to a successful plaintiff in a suit brought under § 102 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 523, 29 U.S.C. § 412.1 On August 6, 1962, at a regular meeting of the membership of petitioner Seafarers International Union of North America—Atlantic, Gulf, Lakes and Inland Waters District, respondent introduced a set of resolutions alleging various instances of undemocratic actions and shortsighted policies on the part of union officers. The resolutions were defeated and, on November 26, 1962, respondent was expelled from the union on the ground that his presentation of the resolutions violated a union rule proscribing 'deliberate or malicious vilification with regard to the execution or the duties of any office or job.' After exhausting his intra-union remedies, respondent filed this suit under § 102 of the LMRDA, claiming that his expulsion under these circumstances violated his right of free speech as secured by § 101(a)(2) of the Act, 29 U.S.C. § 411(a)(2).2
2
On May 27, 1964, the United States District Court for the Eastern District of New York issued a temporary injunction restoring respondent's membership in the union, and the United States Court of Appeals for the Second Circuit affirmed. 339 F.2d 881 (1965). Some five years later, the case came on for trial and the District Court, finding a violation of respondent's rights under § 101(a)(2), ordered him permanently reinstated to membership in the union and, although denying respondent's damages claims,3 granted him counsel fees in the sum of $5,500 against the union. The Court of Appeals affirmed in all respects, 462 F.2d 777 (1972). We granted certiorari limited to the questions whether (1) an award of attorneys' fees is permissible under § 102 of the LMRDA, and (2) if so, whether such an award under the facts of this case constituted an abuse of the District Court's discretion. 409 U.S. 1074, 93 S.Ct. 687, 34 L.Ed.2d 662. We affirm.
3
* Although the traditional American4 rule ordinarily disfavors the allowance of attorneys' fees in the absence of statutory5 or contractual authorization,6 federal courts, in the exercise of their equitable powers, may award attorneys' fees when the interests of justice so require. Indeed, the power to award such fees 'is part of the original authority of the chancellor to do equity in a particular situation,' Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939), and federal courts do not hesitate to exercise this inherent equitable power whenever 'overriding considerations indicate the need for such a recovery.' Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391—392, 90 S.Ct. 616, 625, 24 L.Ed.2d 593 (1970); see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967).
4
Thus, it is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted 'in bad faith, vexatiously, wantonly, or for oppressive reasons.' 6 J. Moore, Federal Practice 54.77(2), p. 1709 (2d ed. 1972); see, e.g., Newman v. piggie Park Enterprises, Inc., 390 U.S. 400, 402 n. 4, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Bell v. School Bd. of Powhatan County, 321 F.2d 494 (CA4 1963); Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (CA4 1951). In this class of cases, the underlying rationale of 'fee shifting' is, of course, punitive, and the essential element in triggering the award of fees is therefore the existence of 'bad faith' on the part of the unsuccessful litigant.
5
Another established exception involves cases in which the plaintiff's successful litigation confers 'a substantial benefit on the members of an ascertainable class, and where the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.' Mills v. Electric Auto-Lite, supra, 396 U.S., at 393—394, 90 S.Ct., at 626.7 'Fee shifting' is justified in these cases, not because of any 'bad faith' of the defendant but, rather, because '(t)o allow the others to obtain full benefit from the plaintiff's efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff's expense.' Id., at 392, 90 S.Ct., at 625; see also Fleischmann Distilling Corp. v. Maier Brewing Co., supmra, 386 U.S., at 719, 87 S.Ct., at 1407; Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1882). Thus, in Mills v. Electric Auto-Lite Co., supra, we approved an award of attorneys' fees to successful shareholder plaintiffs in a suit brought to set aside a corporate merger accomplished through the use of a misleading proxy statement in violation of § 14(a) of the Securities Exchange Act of 1934, 48 Stat. 895, 15 U.S.C. § 78n(a). In reaching this result, we reasoned that, since the dissemination of misleading proxy solicitations jeopardized important interests of both the corporation and "the stockholders as a group,"8 the successful enforcement of the statutory policy necessarily 'rendered a substantial service to the corporation and its shareholders.' Mills v. Electric Auto-Lite Co., supra, 396 U.S., at 396, 90 S.Ct., at 627. Under these circumstances, reimbursement of the plaintiffs' attorneys' fees out of the corporate treasury simply shifted the costs of litigation to 'the class that has benefited from them and that would have had to pay them had it brought the suit.' Id., at 397, 90 S.Ct., at 628.
6
The instant case is clearly governed by this aspect of Mills. The Labor-Management Reporting and Disclosure Act of 1959 was based, in part, on a congressional finding 'from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct . . ..' 29 U.S.C. § 401(b). In an effort to eliminate these abuses, Congress recognized that it was imperative that all union members be guaranteed at least 'minimum standards of democratic process. . . .'9 Thus, Title I10 of the LMRDA—the 'Bill of Rights of Members of Labor Organizations'—was specifically designed to promote the 'full and active participation by the rank and file in the affairs of the union,'11 and, as the Court of Appeals noted, the rights enumerated in Title I12 were deemed 'vital to the independence of the membership and the effective and fair operation of the union as the representative of its membership.' 462 F.2d, at 780. See also Fulton Lodge No. 2 of International Assn. of Machinists and Aerospace Workers, A.F.L.—C.I.O. v. Nix, 415 F.2d 212 (CA5 1969); Salzhandler v. Caputo, 316 F.2d 445 (CA2 1963).
7
Viewed in this context, there can be no doubt that, by vindicating his own right of free speech guaranteed by § 101(a)(2) of Title I of the LMRDA, respondent necessarily rendered a substantial service to his union as an institution and to all of its members. When a union member is disciplined for the exercise of any of the rights protected by Title I, the rights of all members of the union are threatened. And, by vindicating his own right, the successful litigant dispels the 'chill' cast upon the rights of others. Indeed, to the extent that such lawsuits contribute to the preservation of union democracy, they frequently prove beneficial 'not only in the immediate impact of the results achieved but in their implications for the future conduct of the union's affairs.' Yablonski v. United Mine Workers of America, 150 U.S.App.D.C. 253, 260, 466 F.2d 424, 431 (1972). Thus, as in Mills, reimbursement of respondent's attorneys' fees out of the union treasury13 simply shifts the costs of litigation to 'the class that has benefited from them and that would have had to pay them had it brought the suit.' Mills v. Electric Auto-Lite Co., supra, 369 U.S., at 397, 90 S.Ct., at 628. See also Yablonski v. United Mine Workers of America, supra; Robins v. Schonfeld, 326 F.Supp. 525 (SDNY 1971); Cefalo v. International Union of District 50 United Mine Workers, 311 F.Supp. 946 (D.c 1970); Sands v. Abelli, 290 F.Supp. 677 (SDNY 1968). We must therefore conclude that an award of counsel feel to a successful plaintiff in an action under § 102 of the LMRDA falls squarely within the traditional equitable power of federal courts to award such fees whenever 'overriding considerations indicate the need for such a recovery.' Mills v. Electric Auto-Lite Co., supra, 396 U.S., at 391—392, 90 S.Ct., at 625.
II
8
This does not end our inquiry, however, for even where 'fee-shifting' would be appropriate as a matter of equity, Congress has the power to circumscribe such relief. In Fleischmann Distilling Corp. v. Maier Brewing Co., supra, for example, we held that § 35 of the Lanham Act, 60 Stat. 439, 15 U.S.C. § 1117, precluded an award of attorneys' fees as a separate element of recovery in a suit for deliberate infringement of a trademark. In reaching that result, we reasoned that, since § 35 'meticulously detailed the remedies available to a plaintiff who proves that his valid trademark has been infringed,' Congress must have intended the express remedial provisions of § 35 'to mark the boundaries of the power to award monetary relief in cases arising under the Act.' Id., 386 U.S., at 719, 721, 87 S.Ct., at 1408, 1409. petitioners contend that this reasoning dictates a similar conclusion with respect to § 102 of the LMRDA. We do not agree. Unlike § 35 of the Lanham Act, which specifically 'provided not only for injunctive relief, but also for compensatory recovery measured by the profits that accrued to the defendant by virtue of his infringement, the costs of the action, and damages which may be trebled,'14 § 102 of the LMRDA broadly authorizes the courts to grant 'such relief (including injunctions) as may be appropriate.' 29 U.S.C. § 412. Thus, § 102 does not meticulously detail the remedies available to a plaintiff,' and we cannot fairly infer from the language of that provision an intent to deny to the courts the traditional equitable power to grant counsel fees in 'appropriate' situations.
9
Petitioners argue further, however, that because Congress expressly authorized the recovery of counsel fees in §§ 201(c) and 501(b) of the LMRDA, 29 U.S.C. §§ 431(c), 501(b), the absence of a similar express provision in § 102 indicates an intent to preclude 'fee shifting' in suits brought under that section. Sections 201(c) and 501(b), which are not a part of Title I, deal with narrowly defined problems under the Act, and specifically authorize such limited remedies as an examination of the union's books and records and an accounting.15 By contrast, § 102 was premised upon the fact that Title I litigation necessarily demands that remedies 'be tailored to fit facts and circumstances admitting of almost infinite variety,'16 and § 102 was therefore cast as a broad mandate to the courts to fashion 'appropriate' relief. Indeed, any attempt on the part of Congress to spell out all of the remedies available under § 102 would create the 'danger that those (remedies) not listed might be proscribed with the result that the courts would be fettered in their efforts to 'grant relief according to the necessities of the case." Gartner v. Soloner, 384 F.2d 348, 353 (CA3 1967). See Fleischmann Distilling Corp. v. Maier Brewing Co., supra. Confronted with a virtually identical situation in Mills, we explained that the inclusion in certain sections of the Securities Exchange Act of 1934 of express provisions for recovery of attorneys' fees 'should not be read as denying to the courts the power to award counsel fees in suits under other sections of the Act when circumstances make such an award appropriate . . ..' 396 U.S., at 390—391, 90 S.Ct., at 625. That reasoning is equally persuasive today.17
10
Finally, petitioners call our attention to two isolated comments in the legislative history of Title I—one by Senator Goldwater in his testimony before a House Committee18 and the other contained in a dissenting statement to a House Committee Report19—expressing the fear that, in the absence of a specific provision for the award of counsel fees, such relief would be unavailable in suits brought under § 102. Although these statements plainly indicate 'a feeling by some members of the Congress that it would have been desirable and prudent to spell out unmistakably a right to attorney's fees,' they 'hardly amount to a definitive and absolute setting of the Congressional face against the giving of such incidental relief by the courts where compatible with sound and established equitable principles.' Yablonski v. United Mine Workers of America, 150 U.S.App.D.C., at 258, 466 F.2d, at 429. See Gartner v. Soloner, supra, 384 F.2d, at 352. Indeed, both of these comments expressly favored the allowance of counsel fees in Title I litigation, and there is no suggestion anywhere in the legislative history that even a single member of Congress was opposed to such relief or desired the words 'such relief . . . as may be appropriate' to restrict the historic equity powers of the federal courts. On the contrary, there are numerous expressions by sponsors and other supporters of the Act indicating that § 102 was intended to afford the courts 'a wide latitude to grant relief according to the necessities of the case,'20 and 'to give such relief as (the court) deems equitable under all the circumstances.'21
11
Moreover, the award of attorneys' fees under § 102 is clearly consonant with Congress' express desire to adopt 'legislation that will afford necessary protection of the rights and interests of employees and the public generally . . ..' 29 U.S.C. § 401(b). As the Court of Appeals recognized:
12
'Not to award counsel fees in cases such as this would be tantamount to repealing the Act itself by frustrating its basic purpose. It is difficult for individual members of labor unions to stand up and fight those who are in charge. The latter have the treasury of the union at their command and the paid union counsel at their beck and call while the member is on his own. . . . An individual union member could not carry such a heavy financial burden. Without counsel fees the grant of federal jurisdiction is but a gesture for few union members could avail themselves of it.' 462 F.2d, at 780 781.
13
Thus, it is simply 'untenable to assert that in establishing the bill of rights under the Act Congress intended to have those rights diminished by the unescapable fact that an aggrieved union member would be unable to finance litigation . . ..' Gartner v. Soloner, supra, 384 F.2d, at 355. See Yablonski v. United Mine Workers of America, supra, 150 U.S.App.D.C., at 259, 456 F.2d, at 430; Robins v. Schonfeld, 326 F.Supp., at 531; Sands v. Abelli, 290 F.Supp., at 686; cf. Newman v. Piggie Park Enterprises, Inc., 390 U.S., at 402, 88 S.Ct., at 966. We therefore hold that the allowance of counsel fees to the successful plaintiff in a suit brought under § 102 of the LMRDA is consistent with both the Act and the historic equitable power of federal courts to grant such relief in the interests of justice.
III
14
Finally, petitioners maintain that the award of counsel fees to respondent under the facts of this case constituted an abuse of the District Court's discretion. Specifically, petitioners argue that the District Court's finding that some of respondent's actions 'were, in part, motivated by (his), political ambitions for union office' represents a finding of 'bad faith' on the part of respondent. The District Court clearly rejected the 'logic' of this contention, and we agree. Title I of the LMRDA was specifically designed to protect the union member's right to seek higher office within the union,22 and we can hardly accept the proposition that the exercise of that right is tantamount to 'bad faith.' See Yablonski v. United Mine Workers of America, supra, 150 U.S.App.D.C., at 259—260, 466 F.2d, at 430—431.
15
Petitioners also contend that the award of attorneys' fees in this case was improper because the District Court, in denying respondent's claim for punitive damages, found that 'the defendants, in good faith, believed that they had a right to charge and discipline (respondent) for his actions.' It is clear, however, that 'bad faith' may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation. And, as the Court of Appeals noted, the conduct of this particular litigation was marked by 'the dilatory action of the union and its officers . . .' 462 F.2d, at 780. Moreover, although the presence of 'bad faith' is essential to 'fee-shifting' under a 'punishment' rationale, neither the presence nor absence of 'bad faith' is in any sense dispositive where attorneys' fees are awarded to the successful plaintiff under the 'common benefit' rationale recognized in Mills and operative today. Under that theory, counsel fees are granted, not because of the 'bad faith' of the defendant but, rather, because the litigation confers substantial benefits on an ascertainable class of beneficiaries. In that situation, the element of 'bad faith' of the defendant is simply one of many considerations best addressed to the sound discretion of the District Court.23 Under the facts of this case, we cannot say that the District Court abused that discretion.
16
The judgment of the Court of Appeals is affirmed.
17
Affirmed.
18
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
19
Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins, dissenting.
20
I would need a far clearer signal from Congress than we have here to permit awarding attorneys' fees in member-union litigation, which so often involves private feuding having no general significance. The award of fees in the occasionally successful and meritorious case will not be worth the litigation the Court's decision will invite and foster.
1
Section 102 of the Act, 29 U.S.C. § 412, provides in pertinent part:
'Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.'
2
Section 101(a)(2) of the Act, 29 U.S.C. § 411(a)(2), provides:
'Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.'
3
In its unreported opinion, the District Court found that respondent 'suffered no loss of wages as a result of his expulsion from the union.' And although respondent 'was deprived of his right
to attend meetings, and run for union office' during the period of his expulsion, the District Court concluded that '(t)he record is barren of any proof on which the court might make a determination of the value of (these rights).' Finally, the court denied respondent's claim for punitive damages on the ground that the union's decision to expel respondent was motivated neither by malice nor bad faith.
4
The American rule, it might be noted, is more restrictive than the general rule that prevails in most other nations. See, e.g., Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif.L.Rev. 792, 793 (1966). Many commentators have argued for a 'liberalization' of the American rule. See, e.g., Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 U.Colo.L.Rev. 202 (1966); Ehrenzweig, supra; Kuenzel, The Attorney's Fee: Why Not a Cost of Litigation?, 49 Iowa L.Rev. 75 (1963); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619 (1931); Comment, The Allocation of Attorney's Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316 (1971); Note, Attorney's Fees: Where Shall the Ultimate Burden Lie?, 20 Vand.L.Rev. 1216 (1967).
5
See, e.g., Clayton Act, § 4, 38 Stat. 731, 15 U.S.C. § 15; Communications Act of 1934, § 206, 48 Stat. 1072, 47 U.S.C. § 206; Interstate Commerce Act, § 16, 34 Stat. 590, 49 U.S.C. § 16(2); Securities Exchange Act of 1934, §§ 9(e), 18(a), 48 Stat. 890, 897, 15 U.S.C. §§ 78i(e), 78r(a).
6
See, e.g., Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 1406, 18 L.Ed.2d 475 (1967); Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1880); Day v. Woodworth, 13 How. 363, 14 L.Ed. 181 (1852).
7
This exception has its origins in the 'common fund' cases, which have traditionally awarded attorneys' fees to the successful plaintiff when his representative action creates or traces a 'common fund,' the economic benefit of which is shared by all members of the class.
See, e.g., Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882). In Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), the rationale of these cases was extended to authorize an award of attorneys' fees to a successful plaintiff who, although suing on her own behalf rather than as representative of a class, nevertheless established the right of others to recover out of specific assets of the same defendant through the operation of stare decisis. In reaching this result, the Court explained that the beneficiaries of the plaintiff's litigation could be made to contribute to the costs of the suit by an order reimbursing the plaintiff out of the defendant's assets from which the beneficiaries eventually would recover. Finally, in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), we held that the rationale of these cases must logically extend, not only to litigation that confers a monetary benefit on others, but also to litigation "which corrects or prevents an abuse which would be prejudicial to the rights and interests" of those others. Id., 396 U.S., at 396, 90 S.Ct., at 627, quoting Bosch v. Meeker Cooperative Light & Power Assn., 257 Minn. 362, 366—367, 101 N.W.2d 423, 427 (1960).
Citing our decisions in Mills, supra, and Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), respondent contends that the award of attorneys' fees in this case might also be justified on the ground that, by successfully prosecuting this litigation, respondent acted as a "private attorney general', vindicating a policy that Congress considered of the highest priority.' Id., at 402, 88 S.Ct., at 966. See also Knight v. Auciello, 453 F.2d 852 (CA1 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (CA5 1971). In light of our conclusion with respect to the 'common benefit' rationale, however, we have no occasion to consider that question.
8
Mills v. Electric Auto-Lite Co., supra, 396 U.S., at 392, 90 S.Ct., at 625, quoting J. I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S.Ct. 1555, 1559, 12 L.Ed.2d 423 (1964).
9
105 Cong.Rec. 6471 (1959) (Sen. McClellan).
10
29 U.S.C. §§ 411—415.
11
American Federation of Musicians v. Wittstein, 379 U.S. 171, 182—183, 85 S.Ct. 300, 307, 13 L.Ed.2d 214 (1964).
12
In addition to the Tit. I guarantee of freedom of speech and assembly involved in this case, 29 U.S.C. § 411(a)(2), see n. 2, supra. Tit. I also guarantees equal 'political' rights to all union members, 29 U.S.C. § 411(a) (1); stability and fairness in the assessment of dues, initiation fees, and other assessments, 29 U.S.C. § 411(a)(3); the right of all union members to sue and to participate in litigation, 29 U.S.C. § 411(a)(4); and procedural fairness in the discipline process, 29 U.S.C. § 411(a)(5).
13
Petitioners contend that the payment of counsel fees out of the union treasury might deplete union funds to such an extent as to impair the union's ability to operate as an effective collective-bargaining agent and to endanger union stability. Although this consideration is undoubtedly an important one, it is relevant, not to the power of federal courts to award counsel fees generally, but, rather, to the exercise of the District Court's discretion on a case-by-case basis. See n. 23, infra.
14
Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 719, 87 S.Ct., at 1408.
15
Section 201(c) provides for the award of counsel fees in a suit brought by a union member to obtain access to union books, records, and accounts to verify annual financial statements. 29 U.S.C. § 431(c). Section 501(b) authorizes 'fee shifting' in a suit brought by a member against a union official to recover damages or for an accounting for the benefit of the union on the ground that the official is violating his duties. 29 U.S.C. § 501(b).
16
Gartner v. Soloner, 384 F.2d 348, 353 (CA3 1967).
17
Indeed, the Mills reasoning may be particularly appropriate with respect to the LMRDA. As Professor Cox has noted, 'because much of the bill was written on the floor of the Senate or House of Representatives and because many sections contain calculated ambiguities or political compromises . . ., the courts would be well advised to seek out the underlying rationale without placing great emphasis upon close construction of the words,' Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 852 (1960).
18
In his testimony before the House Committee on Education and Labor, after passage of the Senate version of the LMRDA, Senator Goldwater stated that 'the bill does not grant (the union member), even where successful in his suit, reasonable counsel fees or other costs. It thus forces him to assume the entire financial burden of the litigation. For an ordinary rankand-file union member who is generally a wage worker, such a litigation thus becomes an impossible financial burden.' 105 Cong.Rec. 10095 (1959).
19
In opposing the reporting of the Elliott bill, H.R. 8342, 86th Cong., 1st Sess. (1959), U.S.Code Cong. & Admin.News 1958, p. 2318, to the House, the nine dissenting Members of the House Committee on Education and Labor protested that '(u)nder that bill the individual member must shoulder the burden of litigation costs himself.' H.R.Rep.No. 741, 86th Cong., 1st Sess., 95 (1959). At the end of their criticisms of the Elliott bill, the dissenters explained that '(f)or the reasons outlined above, we intend to support . . . he so-called Landrum-Griffin bill (H.R. 8400 and 8401).' Id., at 98. Thus, although the enforcement provisions of the Elliott bill and the Landrum-Griffin bill were virtually identical, the dissenters apparently believed that the latter, which eventually was enacted, allowed the union member to recover counsel fees.
20
105 Cong.Rec. 15548 (1959) (Rep.Elliott).
21
Id., at 6717 (Sen. Kuchel). See id., at 15864 et seq. (Rep. O'Hara); see also 29 U.S.C. §§ 413, 523(a).
22
In describing to the Senate the various 'offenses' for which a union member could be expelled under then-existing union constitutions, Senator McClellan pointed out in particular the 'offense' of 'applying for the position of another union man in office.' He observed, with evident sarcasm, that: 'A member had better not do that. The officers have squatters' rights. Members had better not offer any competition. They had better not seek election. They had better not aspire to the presidency or the secretaryship, or they will be expelled or disciplined.' 105 Cong.Rec. 6478 (1959).
23
Another such consideration is, of course, the extent to which the payment of the plaintiff's counsel fees out of the union treasury might impair the union's ability to operate effectively. See n. 13, supra. Here, petitioners do not, and indeed cannot, contend that the award of only $5,500 would in any sense jeopardize union stability.
| 56
|
412 U.S. 84
93 S.Ct. 1961
36 L.Ed.2d 764
BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL—CIO, Petitioner,v.NATIONAL LABOR RELATIONS BOARD et al.
No. 71—1417.
Argued March 26, 1973.
Decided May 21, 1973.
Bernard Dunau, Washington, D.C., for Booster Lodge No. 405, etc.
Norton, J. Come, Washington, D.C., for N.L.R.B.
PER CURIAM.
1
In this companion case to NLRB v. Boeing Company, 412 U.S. 67, 93 S.Ct. 1952, 36 L.Ed.2d 752, we must decide whether our decision in NLRB v. Granite State Joint Board, Textile Workers of America, Local 1029, AFL—CIO, 409 U.S. 213, 93 S.Ct. 385, 34 L.Ed.2d 422, authorizes the Board to find that a union commits an unfair labor practice in seeking court enforcement of fines imposed for strikebreaking activities by employees who have resigned from the union, even though the union constitution expressly prohibits members from strikebreaking. We hold that it does.
2
On September 16, 1965, the day after the expiration of the collective-bargaining agreement between Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL CIO (the Union), and the Boeing Co. (the Company), the Union called a lawful strike and picketed the Company's Michoud, Louisiana, plant to further its demands for a new contract. The strike continued for 18 days, during which time 143 of the 1,900 production and maintenance employees represented by the Union crossed the picket line to work. All of these employees had been members of the Union before the strike,1 but 61 resigned their membership prior to returning to work and another 58 resigned after they returned to work.2 These resignations were tendered in registered or certified letters to the Union. Neither its constitution nor its bylaws contained any provision expressly permitting or forbidding such resignations.
3
The strike ended on October 4, 1965, after ratification of a new collective-bargaining agreement by the Union membership. During late October and early November, the Union notified all employees who had crossed the picket line to work during the strike that charges had been preferred against them under the Union constitution for 'Improper Conduct of a Member' because of their having 'accept(ed) employment . . . in an establishment where a strike or lockout exist(ed).' They were advised of the dates of their Union trials, which were to be held even in their absence, and of their right to be represented by any counsel who was a member of the International Union. Fines were imposed on all employees who had worked during the strike without regard to whether or not such employees had resigned or had remained members.3 None of the disciplined employees processed intra-union appeals. To the extent that fines were not paid,4 the Union sent written notices to the offending employees stating that the matter had been referred to an attorney for collection. Suits were initiated in state court against nine employees for the purpose of collecting the fines plus attorneys' fees and interest. None of these suits has been resolved.
4
The Company filed an unfair labor practice charge with the National Labor Relations Board alleging that the Union had violated § 8(b)(1)(A) of the National Labor Relations Act, 61 Stat. 141, 29 U.S.C. § 158(b) (1)(A).5 The General Counsel issued a complaint, and the Board held that the Union violated § 8(b)(1)(A), by fining those employees who had resigned from the Union before returning to work during the strike, and by fining those who had resigned after returning to work to the extent that such fines were based on post-resignation work. No violation was found in the Union's fining members for crossing the picket line to work during the strike or in its fining those employees who resigned after they returned to work for work performed prior to resignation. The Board ordered the Union to cease and desist from fining employees who had resigned from the Union for their post-resignation work during the strike and from seeking court enforcement of such fines. It further ordered reimbursement to employees who had already paid fines for any amount imposed because of post-resignation work. The Court of Appeals sustained these holdings, 148 U.S.App.D.C. 119, 459 F.2d 1143 (1972), and, on the Union's petition for review, we granted certiorari. 409 U.S. 1074, 93 S.Ct. 675, 34 L.Ed.2d 662.
5
In NLRB v. Granite State Joint Board, Textile Workers, etc., 409 U.S., at 217, 93 S.Ct., at 387, we held that '(w)here a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct.' Since in that case there was no provision in the Union's constitution or bylaws limiting the circumstances in which a member could resign, we concluded that the members were free to resign at will and that § 7 of the Act, 29 U.S.C. § 157,6 protected their right to return to work during a strike which had been commenced while they were union members.7 The Union's imposition of court-collectible fines against the former members for such work was, therefore, held to violate § 8(b)(1)(A).
6
Here, as in Textile Workers, the Union's constitution and bylaws are silent on the subject of voluntary resignation from the Union.8 And here, as there, we leave open the question of the extent to which contractual restriction on a member's right to resign may be limited by the Act. Since there is no evidence that the employees here either knew of or had consented to any limitation on their right to resign, we need 'only to apply the law which normally is reflected in our free institutions—the right of the individual to join or to resign from associations, as he sees fit 'subject of course to any financial obligations due and owing' the group with which he was associated.' Textile Workers, supra, at 216, 93 S.Ct. at 387.
7
The Union contends, however, that a result different from Textile Workers is warranted in this case because, even though its constitution does not expressly restrict the right to resign during a strike, it does impose on members an obligation to refrain from strikebreaking. The Union asserts that this provision has been consistently interpreted to bind a member, notwithstanding his resignation, to abstain from strikebreaking for the duration of an existing strike. It urges that this provision may be enforced as a matter of contract law against one whose membership has ceased, because it was an obligation he undertook while a member.
8
The provision in the Union's constitution which proscribes strikebreaking by its terms purports only to define 'misconduct of a member.' Nothing in the record indicates that Union members were informed, prior to the bringing of the charges that were the basis of this action, that the provision was interpreted as imposing any obligation on a resignee.9 Thus, in order to sustain the Union's position, we would first have to find, contrary to the determination of the Board and of the Court of Appeals, that the Union constitution by implication extended its sanctions to nonmembers, and then further conclude that such sanctions were consistent with the Act. But we are no more disposed to find an implied post-resignation commitment from the strikebreaking proscription in the Union's constitution here than we were to find it from the employees' participation in the strike vote and ratification of penalties in Textile Workers.10 Accordingly, the judgment of the Court of Appeals sustaining the Board's finding of an unfair labor practice on the part of petitioner Union is affirmed.
9
Affirmed.
10
Mr. Justice BLACKMUN, concurring in the judgment.
11
In NLRB v. Granite State Joint Bd. Textile Workers, 409 U.S. 213, 93 S.Ct. 385, 34 L.Ed.2d 422 (1972), the strikebreaking employees, while they were members of the union, had all voted to strike. On the day following the inception of the strike, these employees also voted in favor of a union resolution that anyone aiding or abetting the company during the strike would be subject to a fine.* And all had participated in the strike prior to resigning from the union.
12
I was in solitary dissent in Textile Workers, id., at 218, 93 S.Ct. at 388. I emphasized there that 'it seems likely that the three factors of a member's strike vote, his ratification of strikebreaking penalties, and his actual participation in the strike, would be far more reliable indicia of his obligation to the union and its members than the presence of boilerplate provisions in a union's constitution,' id., at 220, 93 S.Ct. at 389, that the Court's opinion seemed to me 'to exalt the formality of resignation over the substance of the various interests and national labor policies that (were) at stake,' id., at 221, 93 S.Ct. at 389, that § 7 of the National Labor Relations Act 'does not necessarily give him (the employee) the right to abandon these (union) activities in mid-course once he has undertaken them voluntarily,' id., at 222, 93 S.Ct. at 390, quoting from 1 Cir., 446 F.2d 369, 373; and that the policy of § 7 would not be frustrated by a holding that an employee, in the circumstances of that case, could 'knowingly waive his § 7 right to resign from the union and to return to work without sanction.' 409 U.S., at 222—223, 93 S.Ct. at 390.
13
The present case, however, is a very different situation. None of the Boeing employees who resigned from the Union had been given notice of a strikebreaking penalty before the strike vote or before their participation in the strike. The imposition of a penalty was never ratified formally by the union membership. The members were not notified that post-resignation strikebreaking was proscribed and would subject them to union discipline. And the provision in the Union's constitution, referred to by the Court, ante, at 89, as to a member's general obligation to refrain from strikebreaking, surely does not make up for this lack of notice, and it would not do so even if it were clearly applicable, which it is not, to strikebreaking after resignation from the Union.
14
Without effective notice of obligations that are supposed to be assumed, there can be no waiver of a member's § 7 right to refrain from participation in a legal strike. In the absence of such notice, § 8(b)(1)(A) bars the union from subjecting a member to a choice between the substantial obligation of weathering the strike and that of being subjected to court-collectible fines for failure to do so.
15
I, therefore, join in the Court's judgment.
1
The expired collective agreement contained a maintenance-of-membership provision that required new employees, as a condition of continued employment, to become members of the Union unless they notified both the Union and the Company within 40 days of accepting employment that they did not wish to join. Further, Union members were required to maintain their membership during the life of the contract.
2
The remaining employees who returned to work during the strike did not resign from the Union.
3
A standard fine of $450 was imposed on each of the disciplined employees. The amount was reduced, however, for those few members who appeared at their hearings, apologized for their actions, and pledged loyalty to the Union.
4
None of the $450 fines has been paid, but reduced fines have been paid in a few instances.
5
Section 8(b)(1)(A) of the Act provides, in relevant part:
'It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . .'
6
Section 7 of the Act provides, in relevant part:
'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, and shall also have the right to refrain from any or all of such activities . . ..'
7
It was stipulated in that case that all 31 of the employees who resigned from the Union during the strike and returned to work participated in the strike vote, and voted in favor of the strike. NLRB v. Granite State Joint Board, Textile Workers, etc., 409 U.S. 213, 219 n. 2, 93 S.Ct. 385, 388, 34 L.Ed.2d 422 (Blackmun, J., dissenting).
8
Since the collective-bargaining agreement expired prior to the times of the resignations, the maintenance-of-membership clause therein was no impediment to resigning.
9
The Union points out in its brief that at the 1972 International Union convention its interpretation of the strikebreaking proscription was made explicit. This constitutional amendment, made seven years after the strike here, is persuasive evidence that it was not there before, or at a minimum, that the proscription then existing did not apprise the employees of their asserted obligations to the Union.
10
In its reply brief, the Union argues that in Textile Workers there was no limiting rule on post-resignation return to work during the course of the strike, but that in this case, the Union constitution proscribed such conduct. In Textile Workers, however, there was a duly enacted rule prohibiting any member from aiding and abetting the employer during the strike and subjecting violators to a $2,000 fine. On its face, the constitutional proscription here advanced is no broader than that rule.
*
See 409 U.S., at 218—219, nn. 1 and 2, 93 S.Ct. 385, 388, 34 L.Ed.2d 422.
| 67
|
412 U.S. 92
93 S.Ct. 1952
36 L.Ed.2d 771
SCHOOL BOARD OF the CITY OF RICHMOND, VIRGINIA, et al., Petitioners,v.STATE BOARD OF EDUCATION OF the Commonwealth of VIRGINIA et al. Carolyn BRADLEY et al., Petitioners, v. STATE BOARD OF EDUCATION OF the Commonwealth of VIRGINIA et al.
Nos. 72—549, 72—550.
Supreme Court of the United States
May 21, 1973
Rehearing Denied Oct. 9, 1973.
See 414 U.S. 884, 94 S.Ct. 31.
William T. Coleman, Jr., Philadelphia, Pa., for petitioners in No. 72—550.
George B. Little, Richmond, Va., for petitioners in No. 72 549.
Philip B. Kurland, Chicago, Ill., for respondents in both cases.
Solicitor Gen. Erwin N. Griswold for the United States, as amicus curiae, by special leave of Court.
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 these cases.
| 12
|
412 U.S. 67
93 S.Ct. 1952
36 L.Ed.2d 752
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.The BOEING COMPANY et al.
No. 71—1607.
Argued March 26, 1973.
Decided May 21, 1973.
Syllabus
The adjudication by the National Labor Relations Board (NLRB) under § 8(b)(1) (A) of the National Labor Relations Act of an unfair labor practice allegedly committed by a union does not include authority to determine whether the amount of a disciplinary fine levied by the union against a member is reasonable, the issue being one of internal union affairs over which the NLRB exercises no jurisdiction. Pp. 71—78.
148 U.S.App.D.C. 119, 459 F.2d 1143, reversed.
Norton J. Come, Washington, D.C., for N.L.R.B.
Samuel Lang, New Orleans, La., for Boeing Co.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The question presented in this case is whether the National Labor Relations Board is required by § 8(b)(1)(A) of the National Labor Relations Act1 to inquire into the reasonableness of a disciplinary fine imposed by a union upon a member when the Board exercises its admitted authority under that section to determine whether the fine otherwise constitutes an unfair labor practice. The Board held that the validity of union fines under the Act does not depend on their being reasonable in amount. Booster Lodge No. 405, 185 N.L.R.B. 380, 383 n. 16, 75 L.R.R.M. 1004, 1007 n. 16 (1970). On petition for judicial review of this determination, the Court of Appeals held that an unreasonably large fine is coercive and restraining within the meaning of § 8(b)(1)(A), and remanded the case to the Board with directions to consider 'questions relating to the reasonableness of the fines imposed by the Union.' Booster Lodge No. 405, International Association of Machinists v. NLRB, 148 U.S.App.D.C. 119, 137, 459 F.2d 1143, 1161 (1972). We granted certiorari, 409 U.S. 1074, 93 S.Ct. 675, 34 L.Ed.2d 662 (1972), and now reverse the judgment below.
2
From May 16, 1963, through September 15, 1965, Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL—CIO (the Union), and the Boeing Co. (the Company), were parties to a collective-bargaining agreement. Upon expiration of this agreement the Union called a lawful economic strike at the Company's Michoud plant in New Orleans and at other locations. As of October 2, 1965, the parties signed a new collective-bargaining agreement and the strikers thereafter returned to work. Both agreements contained maintenance-of-membership clauses that required Union members to retain their membership during the contract term. New employees were required to notify the Union and the Company within 40 days of accepting employment if they elected not to join the Union.
3
During the 18-day strike some 143 employees out of 1,900 production and maintenance employees in the bargaining unit at the Michoud plant crossed the picket lines and returned to work. All of these employees were Union members at the time the strike began, although some of them tendered their resignations either before of after crossing the picket lines.2 In late October or early November 1965 the Union notified these employees that charges had been preferred against them for violating the International Union's constitution. The constitution provides penalties for the 'improper conduct of a member,' which term includes '(a)ccepting employment . . . in an establishment where a strike . . . exists.' In accordance with appropriate union procedures, including notice and opportunity for a hearing, all strikebreakers were found guilty, fined $450, and barred from holding Union office for a period of five years.3 While some of the fines were reduced and some partial payments were received by the Union, no member paid the full $450.4 After warning members to pay their fines or face the consequences, the Union filed suits in state court against nine individual employees to collect the fines. None of these suits has been finally adjudicated.
4
In February 1966 the Company filed a charge with the Labor Board alleging that the attempted court enforcement of the fines violated § 8(b)(1)(A) of the National Labor Relations Act. The allegations were basically twofold: first, that the Union committed an unfair labor practice by fining employees who had resigned from the Union, an issue that we consider in the companion case, Booster Lodge No. 405, Intern. Ass'n of Machinists & Aerospace Workers, AFL—CIO v. NLRB, 412 U.S. 84, 93 S.Ct. 1961, 36 L.Ed.2d 764; and, second, that as to the members who were otherwise validly fined, the fines were unreasonable in amount. Thereafter the Board's General Counsel issued a complaint and the case was heard by a Trial Examiner. With respect to the second issue, the Trial Examiner determined that the fines were impermissibly excessive, but the Board refused to adopt his conclusion. It relied on a case decided the same day, Machinists, Local Lodge 504 (Arrow Development Co.), 185 N.L.R.B. 365, 75 L.R.R.M. 1008 (1970), reversed sub nom. O'Reilly v. NLRB, 472 F.2d 426 (C.A.9 1972), in which it held that Congress did not intend to give the Board authority to regulate the size of union fines or to establish standards with respect to a fine's reasonableness.
5
Section 8(b)(1)(A) of the Act provides, in pertinent part, that it shall be an unfair labor practice for a labor organization 'to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 of this title.'5 Among the § 7 rights guaranteed to employees is the right to refrain from any of the concerted activities described in that section.6 We have previously held that § 8(b)(1)(A) was not intended to give the Board power to regulate internal union affairs, including the imposition of disciplinary fines, with their consequent court enforcement, against members who violate the unions' constitutions and bylaws. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969). In Allis-Chalmers we held that court enforcement of fines ranging from $20 to $100 for crossing picket lines did not 'restrain or coerce' employees within the meaning of the Act. And in Scofield we held that the union did not violate the Act in imposing fines of $50 and $100 on members for violating a union rule relating to production ceilings.
6
In deciding these cases, the Court several times referred to the unions' imposition of 'reasonable' fines. In particular, the Scofield Court concluded 'that the union rule is valid and that its enforcement by reasonable fines does not constitute the restraint or coercion proscribed by § 8(b)(1)(A).' 394 U.S., at 436, 89 S.Ct. at 1161 (emphasis added). The Company contends, not illogically, that the Court's use of the adjective 'reasonable' was intended to suggest to the Board that an unreasonable fine would amount to an unfair labor practice.
7
This interpretation, however, permissible as it may be is only dicta, since in both Allis-Chalmers and in Scofield the reasonableness of the fines was assumed. 388 U.S., at 192—193, 87 S.Ct., at 2013, n. 30; 394 U.S., at 430, 89 S.Ct., at 1158.7 Being squarely presented with the issue in this case, we recede from the implications of the dicta in these earlier cases. While 'unreasonable' fines may be more coercive than 'reasonable' fines, all fines are coercive to a greater or lesser degree. The underlying basis for the holdings of Allis-Chalmers and Scofield was not that reasonable fines were noncoercive under the language of § 8(b)(1)(A) of the Act, but was instead that those provisions were not intended by Congress to apply to the imposition by the union of fines not affecting the employer-employee relationship and not otherwise prohibited by the Act. The reason for this determination, in turn, was that Congress had not intended by enacting this section to regulate the internal affairs of unions to the extent that would be required in order to base unfair labor practice charges on the levying of such fines.
8
The Court's examination of the legislative history of this provision in Allis-Chalmers led to the conclusion that:
9
'What legislative materials there are dealing with § 8(b)(1)(A) contain not a single word referring to the application of its prohibitions to traditional internal union discipline in general, or disciplinary fines in particular. On the contrary there are a number of assurances by its sponsors that the section was not meant to regulate the internal affairs of unions.' 388 U.S., at 185—186, 87 S.Ct., at 2009 (emphasis added).8
10
In Scofield we decided that Congress intended to distinguish between the external and the internal enforcement of union rules, and that therefore the Board would have authority to pass on those rules affecting an individual's employment status but not on his union membership status. 394 U.S., at 428—430, 89 S.Ct., at 1157—1158.
11
Inquiry by the Board into the multiplicity of factors that the parties and the Court of Appeals correctly thought to have a bearing on the issue of reasonableness would necessarily lead the Board to a substantial involvement in strictly internal union affairs. While the line may not always be clear between those matters that are internal and those that are external, to the extent that the Board was required to examine into such questions as a union's motivation for imposing a fine it would be delving into internal union affairs in a manner which we have previously held Congress did not intend.9 Given the rationale of Allis-Chalmers and Scofield, the Board's conclusion that § 8(b)(1)(A) of the Act has nothing to say about union fines of this nature, whatever their size, is correct. Issues as to the reasonableness or unreasonableness of such fines must be decided upon the basis of the law of contracts, voluntary asociations, or such other principles of law as may be applied in a forum competent to adjudicate the issue. Under our holding, state courts will be wholly free to apply state law to such issues at the suit of either the union or the member fined.
12
Our conclusion is also supported by the Board's longstanding administrative construction to the same effect. At least since 1954, it has been the Board's consistent position that it has 'not been empowered by Congress . . . to pass judgment on the penalties a union may impose on a member so long as the penalty does not impair the member's status as an employee.' Local 283, UAW, 145 N.L.R.B. 1097, 1104 (1964). See also Minneapolis Star & Tribune Co., 109 N.L.R.B. 727, 34 L.R.R.M. 1431 (1954). We have held in analogous situations that such a consistent and contemporaneous construction of a statute by the agency charged with its enforcement is entitled to great deference by the courts. Griggs v. Duke Power Co., 401 U.S. 424, 433—434, 91 S.Ct. 849, 854—855, 28 L.Ed.2d 158 (1971); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).10
13
The Court of Appeals and the Company have suggested several policy reasons why the Board should not leave the determinations of reasonableness entirely to the state courts. Their basic reasons are, first, that more uniformity in the determination of what is reasonable will result if the Board suggests standards and, second, that more expertise in labor matters will be brought to bear if the issue is decided by the Board rather than solely by the courts. Even if we were to concede the relevance of policy factors in determining congressional intent, we are not persuaded that the Board is necessarily the better forum for determining the reasonableness of a fine.
14
As we noted in Allis-Chalmers, court enforcement of union fines is not a recent innovation but has been known at least since 1867. 388 U.S., at 182 n. 9, 87 S.Ct., at 2007. See also Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175 (1960). The relationship between a member and his union is generally viewed as contractual in nature, International Association of Machinists v. Gonzales, 356 U.S. 617, 618, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018 (1958); Scofield v. NLRB, 394 U.S., at 426 n. 3, 89 S.Ct., at 1156; NLRB v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL—CIO, 409 U.S. 213, 217, 93 S.Ct. 385, 387, 34 L.Ed.2d 422 (1972), and the local law of contracts or voluntary associations usually governs the enforcement of this relationship. NLRB v. Allis-Chalmers Mfg. Co., supra, 388 U.S., at 192 and 193 n. 32, 87 S.Ct., at 2012, 2013; Scofield v. NLRB, supra, 394 U.S., at 426 n. 3, 89 S.Ct., at 1156.
15
We alluded to state court enforcement of unusually harsh union discipline in Allis-Chalmers when we stated that 'state courts, in reviewing the imposition of union discipline, find ways to strike down 'discipline (which) involves a severe hardship." 388 U.S., at 193 n. 32, 87 S.Ct., at 2013 quoting Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049, 1078 (1951). The Board assumed that in view of this statement, our reference to 'reasonable' fines, when reasonableness was not in issue, in Allis-Chalmers and in Scofield, was merely adverting to the usual standard applied by state courts in deciding whether to enforce union-imposed fines. The Board reads these cases, therefore, as encouraging state courts to use a reasonableness standard, not as a directive to the Board.11
16
Our review of state court cases decided both before and after our decisions in Allis-Chalmers and Scofield reveals that state courts applying state law are quite willing to determine whether disciplinary fines are reasonable in amount.12 Indeed, the expertise required for a determination of reasonableness may well be more evident in a judicial forum that is called upon to assess reasonableness in varying factual contexts than it is in a specialized agency. In assessing the reasonableness of disciplinary fines, for example, state courts are often able to draw on their experience in areas of the law apart from labor relations.13
17
Nor is it clear, as contended by the Court of Appeals, that the Board's setting of standards of reasonableness will necessarily result in greater uniformity in this area even if uniformity is thought to be a desirable goal. Since state courts will have jurisdiction to determine reasonableness in the enforcement context in any event, the Board's independent determination of reasonableness in an unfair labor practice context might well yield a conflict when the two forums are called upon to review the same fine.
18
For all of the foregoing reasons, we conclude that the Board was warranted in determining that when the union discipline does not interfere with the employee-employer relationship or otherwise violate a policy of the National Labor Relations Act,14 the Congress did not authorize it 'to evaluate the fairness of union discipline meted out to protect a legitimate union interest.'15 The judgment of the Court of Appeals is, therefore, reversed.
19
Reversed.
20
Mr. Chief Justice BURGER, dissenting.
21
It is odd, to say the least, to find a union urging on us severe limitations on NLRB authority, and telling us that state courts are the proper forum to resolve questions regarding the reasonableness of fines imposed on workers for violation of union rules. For years, there has been unrelenting union opposition to state court 'intervention' into industrial disputes and union activities. We have been told countless times that the 'expertise' of the Labor Board, based on its overview and intimate familiarity with labor problems, is essential in this area.
22
A union must, of course, have some disciplinary powers or it would disintegrate. However, the power to discipline can easily turn from a means of enforcing valid rules to an oppressive and coercive device of retribution, a weapon which, when used to extremes, may deprive a working man of his very means of sustenance. Whether a particular fine is required in a particular situation involves a weighing of the delicate balance of relations between the employers, employees, and the union involved. Such an intimate knowledge of labor relations has consistently been ascribed to the Board, often by the unions. It is the Board that deals with such matters on a daily basis. It is the Board that has the jurisdiction and experience to devise and employ national standards to govern union conduct; there are valid reasons for essential uniformity and consistency in the matters of fines. To isolate this sensitive subject and thrust it on the state courts is contrary to the entire history of the federal labor statutes and opens the door to a wide disparity of fines for the same conduct in different States.
23
Mr. Justice DOUGLAS, with whom Mr. Chief Justice BURGER and Mr. Justice BLACKMUN concur, dissenting.
24
I dissent from the holding of the Court that the Board has no jurisdiction to determine the 'reasonableness' of the fines placed by the Union on its dissident members.
25
The Union and Boeing had an effective collective-bargaining agreement from May 16, 1963 through September 15, 1965. On the expiration of that contract the Union struck against Boeing, causing a work stoppage that lasted 18 days. On October 2, 1965, a new collective agreement was reached and work was resumed.
26
During the strike, about 143 employees at the Michoud plant crossed the picket line and reported for work. All of these had been Union members during the 1963—1965 contract period. Some of the 143 who worked during the strike did not resign from the Union; 119 did resign—61 before they crossed the picket line and returned to work; 58 resigned during the course of the strike, but after they had crossed the picket line. All of these resignations were submitted after the expiration of the 1963—1965 collective agreement. The Union never warned members on this or on earlier occasions, that disciplinary measures could or would be taken against members who crossed the picket line.
27
After the new collective agreement was reached, the Union notified all members who had crossed the picket line to work during the strike that charges had been laid against them and that they would be tried by the Union for 'improper' conduct, the Union's constitution permitting disciplinary measures, including 'reprimand, fine, suspension and/or expulsion from membership, or any lesser penalty or any combination.'
28
Those who appeared for trial and those who did not appear were found guilty and fined $450 each and barred from holding a Union office for five years. The fines of some 35 who appeared and apologized and took a loyalty oath were reduced to 50% of their earnings during the strike; and the prohibition against holding Union office was reduced in those cases.
29
The Union sent out a written notice saying that the unpaid fines had been referred to an attorney for collection and that the reduced fines would be restored to $450 if not paid. Suits against nine employees were filed in a state court to collect the fines plus attorneys' fees and interest; and they are unresolved.
30
Boeing filed a charge of an unfair labor practice against the Union under § 8(b)(1)(A) of the Act.* The General Counsel issued a complaint and the Board decided that the Union had violated § 8(b)(1)(A) except for the fines on members for crossing the picket line to work and for the fines on those who resigned after returning to work during the strike, for work performed during the strike prior to their resignations. But the Board, one member dissenting, refused to pass on the reasonableness of the fines, holding it lacked the power to do so.
31
The unfair labor practice under § 8(b)(1)(A) is the action of a union 'to restrain or coerce' an employee from the 'right to refrain from' assisting a union as that right is defined in § 7. In Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385, we upheld a union rule and concluded 'that its enforcement by reasonable fines does not constitute the restraint or coercion proscribed by § 8(b)(1)(A).' Id., at 436, 89 S.Ct., at 1161 (emphasis added). See also NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123. The imposition of a nominal fine of $1 might suit the circumstances of a case, where a $1,000 fine would be monstrous. A nominal fine might be justified where, as here, the employees had no warning that they would or could be fined for working behind a picket line. A fine where the only sanction would be temporary suspension from the union might be 'reasonable,' yet unreasonable if it was court enforceable, meaning, as it does here, that attorneys' fees, costs, and interest may be added. A member who must pay the union's attorney as well as his own if he challenges the reasonableness of a fine in a state court and loses, may well be suffering an unconscionable penalty. Moreover, the fine may be imposed by a union which believed as did the present Union that the member had no 'right' to resign, though NLRB v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL—CIO, 409 U.S. 213, 93 S.Ct. 385, 34 L.Ed.2d 422, held to the contrary. The present fines seem to be swollen by that predilection of the Union. The present fines also exceed the earnings of the workers during the strike period. By what standard can that possibly be justified? As member McCulloch of the Board, dissenting, said, the excess of the fines over the wages collected during this period is in actual effect an assessment after the strike is over. If after the strike the Union caused Boeing to suspend a member without pay after the strike because he had worked during the strike, there could be no question but that the Union violated § 8(b)(1)(A). Yet, the assessment of fines greater than the wages earned during the strike has precisely that effect. Thus, in assessing an unreasonable fine the Union, in my view, goes beyond the permissible bounds of regulating its internal affairs.
32
It is no answer to say that the reasonableness of a fine may be tested in a state-court suit. That envisages a rich and powerful union suing a rich and powerful employee. Employees, however, are often at the bottom of the totem pole, without financial resources, and unworldly when it comes to litigation. Such a suit is likely to be no contest. The Board procedures, on the other hand, may be readily available. If an employee files a charge with any merit, the Regional Director will issue a complaint. Thereafter, the General Counsel represents the employee, and the agency bears any cost of prosecuting the claim.
33
But my difficulty with the Court's decision is even greater. State judges, though honest and competent, have no expertise in labor-management relations. The Bord does have that expertise and can evolve guidelines based on its broad experience. It is said that Congress has provided the Board with no guidelines for passing on the 'reasonableness' of union-imposed fines. But the Board through case-by-case treatment has been developing an administrative common law concerning 'unfair' practices of employers and unions alike. We have said on other occasions that the 'experience and commonsense' which are facets of the expertise of the Board, NLRB v. Radio and Television Broadcast Engineers Union, 364 U.S. 573, 582—583, 81 S.Ct. 330, 335, 336, 5 L.Ed.2d 302 are adequate for the difficult and delicate responsibilities which Congress has entrusted to it, subject of course to judicial review. A fine discretely related to a legitimate union need and reflecting principled motivations under the law is one thing. A fine that reflects the raw power exercised by a union in its hunger for all-pervasive authority over members is quite another problem. The Labor Board, which knows the nuances of this problem better than any other tribunal, is the keeper of the conscience under the Act. It and it alone has primary responsibility to police unions, as well as employers, in protection of the rights of workers. In my view it cannot properly perform its duties under § 8(b)(1)(A) unless it determines whether the nature and amount of the fine levied by a union constitute an unfair labor practice.
1
'(b) It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . ..' 61 Stat. 141, 29 U.S.C. § 158(b)(1)(A).
2
Of the 143 employees who crossed the picket lines, 24 made no attempt to resign from the Union, 61 resigned before crossing the picket lines, and 58 resigned after crossing the picket lines and reporting for work. The validity of the fines imposed against those who resigned from the Union is considered in a companion case, Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL—CIO v. NLRB, 412 U.S. 84, 93 S.Ct. 1961, 36 L.Ed.2d 764. See also NLRB v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL—CIO, 409 U.S. 213, 93 S.Ct. 385, 34 L.Ed.2d 422 (1972).
3
The Union constitution provides that members found guilty of misconduct after notice and a hearing are subject to 'reprimand, fine, suspension, or expulsion from membership or any lesser penalty or combination.' The constitution sets no maximum dollar limitation on fines.
4
The base income of the employees fined ranges from $95 to $145 for a 40-hour workweek.
Fines were reduced to 50% of wages earned during the strike for 35 members who appeared for the Union trial, apologized for their actions, and pledged loyalty to the Union. Eighteen of these reduced fines have been paid in full.
5
The proviso to this section states: 'That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.' It has been the Board's position that this proviso authorizes the unions to impose disciplinary fines on union members. Minneapolis Star & Tribune Co., 109 N.L.R.B. 727, 34 L.R.R.M. 1431 (1954); Wisconsin Motor Corp., 145 N.L.R.B. 1097, 55 L.R.R.M. 1085 (1964); Allis-Chalmers Mfg. Co., 149 N.L.R.B. 67, 57 L.R.R.M. 1242 (1964). This Court, however, in holding that court enforcement of union fines was not an unfair labor practice in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), relied on congressional intent only with respect to the first part of this section. The parties' principal contentions in this case do not depend on the scope of the proviso and we do not consider its interpretation necessary to our conclusion.
6
In its entirety § 7 provides:
'Employees shall have the right to self-organization, to form, join, or assit 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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).' 61 Stat. 140, 29 U.S.C. § 157.
7
Moreover, since the Board has consistently over a long period of time interpreted the Act as not giving it authority to examine the reasonableness of disciplinary fines, infra, at 74—75, it is not likely that the Court specifically intended, by the use of a single adjective, and without mentioning the Labor Board cases to the contrary, to overturn the Board's interpretation of the Act. Nor can it be argued that the Court was unaware of the Board's interpretation, for the Scofield Court stated that in Allis-Chalmers it
'essentially accepted the position of the National Labor Relations Board dating from Minneapolis Star & Tribune Co., 109 N.L.R.B. 727 (1954) where the Board also distinguished internal from external enforcement in holding that a union could fine a member for his failure to take part in picketing during a strike . . ..' Scofield v. NLRB, 394 U.S. 423, 428, 89 S.Ct. 1154, 1157, 22 L.Ed.2d 385 (1969).
8
As we also noted in Allis-Chalmers, this interpretation is supported by the Landrum-Griffin Act, where 'Congress expressly recognized that a union member may be 'fined, suspended, expelled, or otherwise disciplined,' and enacted only procedural requirements to be observed. 73 Stat. 523, 29 U.S.C. § 411(a)(5).' NLRB v. Allis-Chalmers Mfg. Co., 388 U.S., at 194, 87 S.Ct., at 2014.
9
Cf. Amalgamated Association of St., Elec. Ry. and Motor Coach Emp. of America v. Lockridge, 403 U.S. 274, 296, 91 S.Ct. 1909, 1922, 29 L.Ed.2d 473 (1971); U.O.P. Norplex v. NLRB, 445 F.2d 155, 158 (CA7 1971) ('The reasonableness of the fines is a matter for the state court to determine should the Union seek judicial enforcement of the fines').
10
It is also noteworthy that when Congress has intended the Board to examine a fee for being excessive or unreasonable, it has specifically so stated and has provided statutory standards for the Board to follow in making such a determination. See, e.g., 29 U.S.C. § 158(b)(5) (union initiation fees).
11
The Board's interpretation of our decisions is basically the following:
'Thus, the Court's findings that the fines in those cases were reasonable seems directed to enforcing courts, encouraging those courts to make an independent determination of the reasonableness of the fine in each case presented, in the same fashion as courts limit other union discipline which imposes a severe hardship. Such considerations are of an equitable nature rather than of the character of restraint and coercion with which the National Labor Relations Act treats.' Machinists, Local Lodge 504 (Arrow Development Co.), 185 N.L.R.B. 365, 368, 75 L.R.R.M. 1008, 1010 (1970).
12
Auto Workers Local 283 v. Scofield, 50 Wis.2d 117, 183 N.W.2d 103 (1971) ($100 fine deemed reasonable); Farnum v. Kurtz, 70 L.R.R.M. 2035 (Los Angeles Mun.Ct.1968) ($592 fine deemed unreasonable and reduced to $100); McCauley v. Federation of Musicians, 26 L.R.R.M. 2304 (Pa.Ct. of Common Pleas 1950) ($300 fine deemed excessive and reduced to $100); North Jersey Newspaper Guild Local No. 173 v. Rakos, 110 N.J.Super. 77, 264 A.2d 453 (1970) ($750 fine reduced to $500, which was deemed reasonable); Walsh v. Communications Workers of America, Local 2336, 259 Md. 608, 271 A.2d 148 (1970) ($500 fine deemed reasonable); Local 248, United Auto Workers v. Natzke, 36 Wis.2d 237, 153 N.W.2d 602 (1967) ($100 fine upheld); Jost v. Communications Workers of America, Local 9408, 13 Cal.App.3d Supp. 7, 91 Cal.Rptr. 722 (1970) ($299 fine upheld, the court stating that 'it is the settled law in this country that such a fine becomes a debt enforceable by the courts in an amount that is not unreasonably large.' Id., at 12, 91 Cal.Rptr., at 725).
13
See, e.g., Farnum v. Kurtz, supra, at 2041, where a municipal court judge, in reducing a union-imposed fine of $592 to $100, revealed that the kind of expertise required by this type of case is not that of a technical knowledge of labor law:
'Based upon the facts herein and the Court's experiences (in passing judgment in thousands of misdemeanor cases), the fine assessed is much too large and unreasonable. The Court finds that a fine of $100.00 serves the ends of justice and is more in keeping with the circumstances herein and reasonable.'
14
Scofield v. NLRB, 394 U.S., at 429, 89 S.Ct., at 1157; NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968).
15
Machinists, Local Lodge 504 (Arrow Development Co.), 185 N.L.R.B. 365, 368, 75 L.R.R.M. 1008, 1011 (1970). The Board has long held that the Act proscribes certain unacceptable methods of union coercion, such as physical violence to force an employee to join a union or to participate in a strike. In re Maritime Union, 78 N.L.R.B. 971, enforced, 175 F.2d 686 (CA2 1949), cited in Scofield v. NLRB, supra, 394 U.S., at 428 n. 4, 89 S.Ct., at 1157.
*
That section provides:
'(b) It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.' 61 Stat. 141, 29 U.S.C. § 158(b)(1)(A).
Section 7 provides:
'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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).' 29 U.S.C.A. § 157.
| 67
|
412 U.S. 291
93 S.Ct. 2000
36 L.Ed.2d 900
Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Petitioner,v.Daniel P. MURPHY.
No. 72—212.
Argued March 20, 1973.
Decided May 29, 1973.
Syllabus.
Over respondent's protest and without a warrant, police in the course of station-house questioning in connection with a murder took samples from the respondent's fingernails and discovered evidence used to convict him. Respondent had come to the station house voluntarily and had not been arrested, although he was detained and there was probable cause to believe that he had committed the murder. In reversing the District Court's denial of habeas corpus, the Court of Appeals concluded that, absent arrest or other exigent circumstances, the search was unconstitutional. Held: In view of the station-house detention upon probable cause, the very limited intrusion undertaken to preserve highly evanescent evidence was not violative of the Fourth and Fourteenth Amendments. Pp. 239—296.
9 Cir., 461 F.2d 1006, reversed.
Thomas H. Denney, Salem, Or., for petitioner.
Howard R. Lonergan, Portland, Or., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, Daniel Murphy, was convicted by a jury in an Oregon court of the second-degree murder of his wife. The victim died by strangulation in her home in the city of Portland, and abrasions and lacerations were found on her throat. There was no sign of a break-in or robbery. Word of the murder was sent to the respondent, who was not then living with his wife. Upon receiving the message, Murphy promptly telephoned the Portland police and voluntarily came into Portland for questioning. Shortly after the respondent's arrival at the station house, where he was met by retained counsel, the police noticed a dark spot on the respondent's finger. Suspecting that the spot might be dried blood and knowing that evidence of strangulation is often found under the assailant's fingernails, the police asked Murphy if they could take a sample of scrapings from his fingernails. He refused. Under protest and without a warrant, the police proceeded to take the samples, which turned out to contain traces of skin and blood cells, and fabric from the victim's nightgown. This incriminating evidence was admitted at the trial.
2
The respondent appealed his conviction, claiming that the fingernail scrapings were the product of an unconstitutional search under the Fourth and Fourteenth Amendments. The Oregon Court of Appeals affirmed the conviction, 2 Or.App. 251, 465 P.2d 900, and we denied certiorari, 400 U.S. 944, 91 S.Ct. 246, 27 L.Ed.2d 248. Murphy then commenced the present action for federal habeas corpus relief. The District Court, in an unreported decision, denied the habeas petition, and the Court of Appeals for the Ninth Circuit reversed, 461 F.2d 1006. The Court of Appeals assumed the presence of probable cause to search or arrest, but held that in the absence of an arrest or other exigent circumstances, the search was unconstitutional. Id., at 1007. We granted certiorari, 409 U.S. 1036, 93 S.Ct. 515, 34 L.Ed.2d 485, to consider the constitutional question presented.
3
The trial court, the Oregon Court of Appeals, and the Federal District Court all agreed that the police had probable cause to arrest the respondent at the time they detained him and scraped his fingernails. As the Oregon Court of Appeals said,
4
'At the time the detectives took these scrapings they knew:
5
'The bedroom in which the wife was found dead showed no signs of disturbance, which fact tneded to indicate a killer known to the victim rather than to a burglar or other stranger.
6
'The decedent's son, the only other person in the house that night, did not have fingernails which could have made the lacerations observed on the victim's throat.
7
'The defendant and his deceased wife had had a stormy marriage and did not get along well.
8
'The defendant had, in fact, been at his home on the night of the murder. He left and drove back to central Oregon claiming that he did not enter the house or see his wife. He volunteered a great deal of information without being asked, yet expressed no concern or curiosity about his wife's fate.' 2 Or.App., at 259—260, 465 P.2d, at 904.
9
The Court of Appeals for the Ninth Circuit did not disagree with the conclusion that the police had probable cause to make an arrest, 461 F.2d, at 1007, nor do we.
10
It is also undisputed that the police did not obtain an arrest warrant or formally 'arrest' the respondent, as that term is understood under Oregon law.1 The respondent was detained only long enough to take the fingernail scrapings, and was not formally 'arrested' until approximately one month later. Nevertheless, the detention of the respondent against his will constituted a seizure of his person, and the Fourth Amendment guarantee of freedom from 'unreasonable searches and seizures' is clearly implicated, cf. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67; Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889. As the Court said in Davis v. Mississippi, 394 U.S. 721, 726 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676. 'Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions."
11
In Davis, the Court held that fingerprints obtained during the brief detention of persons seized in a police dragnet procedure, without probable cause, were inadmissible in evidence. Though the Court recognized that fingerprinting 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search,' id., at 727, 89 S.Ct., at 1398, the Court held the station-house detention in that case to be violative of the Fourth and Fourteenth Amendments. 'Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention,' id., at 726, 89 S.Ct., at 1397.
12
The respondent in this case, like Davis, was briefly detained at the station house. Yet, here, there was, as three courts have found, probable cause to believe that the respondent had committed the murder. The vice of the detention in Davis is therefore absent in the case before us. Cf. United States v. Dionisio, supra.
13
The inquiry does not end here, however, because Murphy was subjected to a search as well as a seizure of his person. Unlike the fingerprinting in Davis, the voice exemplar obtained in United States v. Dionisio, supra, or the handwriting exemplar obtained in United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99, the search of the respondent's fingernails went beyond mere 'physical characteristics . . . constantly exposed to the public,' United States v. Dionisio, supra, at 14, 93 S.Ct., at 771, and constituted the type of 'severe, though brief, intrusion upon cherished personal security' that is subject to constitutional scrutiny. Terry v. Ohio, supra, 392 U.S. at 24—25, 88 S.Ct. at 1882.
14
We believe this search was constitutionally permissible under the principles of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest. Id., at 755—762, 89 S.Ct. at 2035 2039. The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. Id., at 762—763, 89 S.Ct. at 2039—2040. The Court recognized in Chimel that the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement.2 Thus, a warrantless search incident to arrest, the Court held in Chimel, must be limited to the area 'into which an arrestee might reach.' Id., at 763, 89 S.Ct., at 2040.
15
Where there is no formal arrest, as in the case before us, a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence on his person. Since he knows he is going to be released, he might be likely instead to be concerned with diverting attention away from himself. Accordingly, we do not hold that a full Chimel search would have been justified in this case without a formal arrest and without a warrant. But the respondent was not subjected to such a search.
16
At the time Murphy was being detained at the station house, he was obviously aware of the detectives' suspicions. Though he did not have the full warning of official suspicion that a formal arrest provides, Murphy was sufficiently apprised of his suspected role in the crime to motivate him to attempt to destroy what evidence he could without attracting further attention. Testimony at trial indicated that after he refused to consent to the taking of fingernail samples, he put his hands behind his back and appeared to rub them together. He then put his hands in his pockets, and a 'metallic sound, such as keys or change rattling' was heard. The rationale of Chimel, in these circumstances, justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails, cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.
17
On the facts of this case, considering the existence of probable cause, the very limited intrusion undertaken incident to the station house detention, and the ready destructibility of the evidence, we cannot say that this search violated the Fourth and Fourteenth Amendments. Accordingly, the judgment of the Court of Appeals is reversed.
18
Reversed.
19
Mr. Justice WHITE joins the opinion of the Court but does not consider the issue of probable cause to have been decided here or to be foreclosed on remand to the Court of Appeals where it has never been considered.
20
Mr. Justice MARSHALL, concurring.
21
I join the opinion of my Brother STEWART.
22
Murphy's freedom of movement was unquestionably limited when the police did not acquiesce in his refusal to permit them to take scrapings from his fingernails. But that detention, although a seizure of the person protected by the Fourth Amendment, did not amount to an arrest under Oregon law. See Ore.Rev.Stat. § 133.210. The police, understanding this, did not, for example, take Murphy promptly before a magistrate after this detention, as state law requires after an arrest. Id., § 133.550.1 As we have said before, however, 'It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime—'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.' Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). See also id., at 19 n. 16, 26, 88 S.Ct. at 1879, 1882; Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968).
23
Murphy argues, however, that the detention was unlawful because the police did not satisfy 'the general requirement that the authorization of a judicial officer be obtained in advance of detention,' Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 1398, 22 L.Ed.2d 676 (1969). See also Terry v. Ohio, supra, 392 U.S. at 20, 88 S.Ct. at 1879. But until the officer saw a dark spot under Murphy's thumbnail, and remembered that he had seen lacerations on the throat of the deceased, he had no reason to detain Murphy for the limited purpose of taking fingernail scrapings. Then, when he brought to Murphy's attention his interest in taking such scrapings, he was dealing with a suspect alerted to the desire of the police to inspect his fingernails. At that point, there was no way to preserve the status quo while a warrant was sought, and there was good reason to believe that Murphy might attempt to alter the status quo unless he were prevented from doing so. The police could not assure the preservation of the evidence simply by placing Murphy under close surveillance, because of the nature of the evidence. And, for purposes of Fourth Amendment analysis, detaining him while a warrant was sought would have been as much a seizure as detaining him while his fingernails were scraped. If the Fourth Amendment permits a stop-and-frisk when the police have specific articulable facts from which they may infer that a person, who they suspect is about to commit a crime, is armed and dangerous, Terry v. Ohio, supra, it is also permits detention, where the police have probable cause to arrest,2 to take fingernail scrapings in the circumstances of this case.3
24
Murphy's argument is, of course, a troublesome one, and, if the police had done more than take fingernail scrapings, I would be inclined to hold the search illegal. For, as a general principle of the law of the Fourth Amendment, the scope of a search must be strictly limited in terms of the circumstances that justify the search. See, e.g., Terry v. Ohio, supra, 392 U.S., at 19—20, 88 S.Ct., at 1878—1879; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). When a person is detained, but not arrested, the detention must be justified by particularized police interests other than a desire to initiate a criminal proceeding against the person they detain. The police therefore cannot do more than investigate the circumstances that occasion the detention. In this case, the police limited their intrusion to precisely the area that led them to restrict Murphy's freedom; he was not searched as extensively as he might have been had an arrest occurred. Indeed, in my view, the Fourth Amendment would have barred a more extensive search, for the police had no reason at all to believe that Murphy had on his person more evidence relating to the crime, or, in light of the fact that this case involved a strangulation, a weapon that he might use at the station house.
25
I realize that exceptions to the warrant requirement may be established because of 'powerful hydraulic pressures . . . that bear heavily on the Court to water down constitutional guarantees,' Terry v. Ohio, supra, 392 U.S., at 39, 88 S.Ct., at 1889 (Douglas, J., dissenting), and that those same pressures may lead to later expansion of the exceptions beyond the narrow confines of the cases in which they are established, Adams v. Williams, 407 U.S. 143, 161—162, 92 S.Ct. 1921, 1930, 1931, 32 L.Ed.2d 612 (1972) (Marshall, J., dissenting). But I cannot say that, in the precise circumstances of this case, the police violated the Fourth Amendment in detaining Murphy for the limited purpose of scraping his fingernails. I emphasize, as does the opinion of the Court, that the search conducted incident to this detention was extremely narrow in scope, and that its scope was tied closely to the reasons justifying the detention. On this understanding, I join the opinion of the Court.
26
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring.
27
The Court today permits a search for evidence without an arrest but under circumstances where probable cause for an arrest existed, where the officers had reasonable cause to believe that the evidence was on respondent's person, and where that evidence was highly destructible. The Court, however, restricts the permissible quest to 'the very limited search necessary to preserve the highly evanescent evidence they found under (respondent's) fingernails.'
28
While I join the Court's opinion, I do so with the understanding that what the Court says here applies only where no arrest has been made. Far different factors, in my view, govern the permissible scope of a search incident to a lawful arrest.
29
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring.
30
In this case the District Court and the Court to Appeals entertained a habeas corpus attack upon a state court conviction on the ground that the evidence seized in violation of the Fourth Amendment had been wrongly admitted at the state trial. For the reasons set forth in my concurring opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854. I think a claim such as this is properly available in federal habeas corpus only to the extent of ascertaining whether the prisoner was afforded a fair opportunity to raise and have adjudicated the question in state courts. The Court today, however, reaches the merits of the respondent's Fourth Amendment claim, and on the merits I join the Court's opinion.
31
Mr. Justice DOUGLAS, dissenting in part.
32
I agree with the Court that exigent circumstances existed making it likely that the fingernail scrapings of suspect Murphy might vanish if he were free to move about. The police would therefore have been justified in detaining him while a search warrant was sought from a magistrate. None was sought and the Court now holds there was probable cause to search or arrest, making a warrant unnecessary.
33
Whether there was or was not probable cause is difficult to determine on this record. It is a question that the Court of Appeals never reached. We should therefore remand to it for a determination of that question.
34
The question is clouded in my mind because the police did not arrest Murphy until a month later. It is a case not covered by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, on which the Court relies, for in Chimel an arrest had been made.
35
As the Court states, Oregon defines arrest as 'the taking of a person into custody so that he may be held to answer for a crime.' Ore.Rev.Stat. § 133.210. No such arrest was made until a month after Murphy's fingernails were scraped. As we stated in Johnson v. United States, 333 U.S. 10, 15 n. 5, 68 S.Ct. 367, 370, 92 L.Ed. 436. 'State law determines the validity of arrests without warrant.' The case is therefore on all fours with Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, where a suspect was detained for the sole purpose of obtaining fingerprints but at the time the police were not detaining him to charge him with the crime. Like the seizure in this case, Davis involved an investigative seizure. In Davis, at 727, 89 S.Ct., at 1397, as in Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, the Court rejected the view that the Fourth Amendment does not limit police conduct 'if the officers stop short of something called a 'technical arrest' or a 'full-blown search." The reason why no arrest of Murphy was made on the day his fingernails were scraped creates a nagging doubt that they did not then have probable cause to make an arrest and did not reach that conclusion until a month later. Why was Murphy allowed to roam at will, a free man, for the next month? The evolving pattern of a conspiracy offense might induce the police to turn a suspect loose in order to tail him and see that other suspects could be brought into their net. But no such circumstances were present here.
36
What the decision made today comes down to, I fear, is that 'suspicion' is the basis for a search of the person without a warrant. Yet 'probable cause' is the requirement of the Fourth Amendment which is applicable to the States by reason of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Suspicion has never been sufficient for a warrantless search, save for the narrow situation of searches incident to an arrest as was involved in Chimel. That exception is designed (see Schmerber v. California, 384 U.S. 757, 769—770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908) to protect the officer against assaults through weapons within easy reach of the accused or to save evidence within that narrow zone from destruction. However, this is a case where a warrant might have been sought but was not. It is therefore governed by the rule that the rights of a person 'against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.' Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319. No warrant could have been issued by the police, for as we held in Coolidge v. New Hampshire, 403 U.S. 443, 453, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564, a warrant must be issued by 'the neutral and detached magistrate required by the Constitution.' And see Mancusi v. DeForte, 392 U.S. 364, 371, 88 S.Ct. 2120, 2125, 20 L.Ed.2d 1154. As stated in Johnson v. United States, 333 U.S., at 14, 68 S.Ct., at 369, 'When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.' In that case the officers, smelling opium, asked for entrance, which was given. On entry, discovering that the accused was the sole occupant, the police arrested her. 'Thus the Government is obliged to justify the arrest by the search and at the same time to justify the search by the arrest. This will not do.' Id., at 16—17, 68 S.Ct., at 370.
37
It will not do here either. As Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, stated, the Fourth Amendment is closely related to the Self-Incrimination Clause of the Fifth.* A warrantless search on suspicion, today sustained, gives the police evidence otherwise protected by the Self-Incrimination Clause of the Fifth Amendment. It was in that regard that the Court in Boyd said: '(T)he fourth and fifth Amendments run almost into each other.' Id., at 630, 6 S.Ct., at 532. And that Court went on to say: 'For the 'unreasonable searches and seizures' condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the fifth amendment; and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the fifth amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the fourth amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms.' Id., at 633, 6 S.Ct., at 534.
38
The same can be said of incriminating evidence found under a suspect's fingernails. See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Moreover, the Fourth Amendment guarantees the right of the people to be secure 'in their persons.' Scraping a man's fingernails is an invasion of that privacy and it is tolerable, constitutionally speaking, only if there is a warrant for a search or seizure issued by a magistrate on a showing of 'probable cause' that the suspect had committed the crime. There was time to get a warrant; Murphy could have been detained while one was sought; and that detention would have preserved the perishable evidence the police sought. A suspect on the loose could get rid of it; but a suspect closely detained until a warrant is obtained plainly could not.
39
Our approval of the shortcut taken to avoid the Fourth and Fifth Amendments may be typical of this age. Erosions of constitutional guarantees usually start slowly, not in dramatic onsets. As stated in Boyd 'illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.' 116 U.S., at 635, 6 S.Ct., at 535.
40
The issue of probable cause should be considered by the Court of Appeals. On the record before us and the arguments based on it I cannot say there was 'probable cause' for an arrest and for a search, since the arrest came after a month's delay. The only weight we can put in the scales to turn suspicion into probable cause is Murphy's conviction by a jury based on the illegally obtained evidence. That is but a simple way of making the end justify the means—a principle wholly at war with out constitutionally enshrined adversary system.
41
Mr. Justice BRENNAN, dissenting in part.
42
Without effecting an arrest, and without first seeking to obtain a search warrant from a magistrate, the police decided to scrape respondent's fingernails for destructible evidence. In upholding this search, the Court engrafts another, albeit limited, exception on the warrant requirement. Before we take the serious step of legitimating even limited searches merely upon probable cause—without a warrant or as incident to an arrest—we ought first be certain that such probable cause in fact existed. Here, as my Brother Douglas convincingly demonstrates '(w)hether there was or was not probable cause is difficult to determine on this record.' Ante, at 301. And, since the Court of Appeals did not consider that question, the proper course would be to remand to that court so that it might decide in the first instance whether there was probable cause to arrest or search. There is simply no need for this Court to decide, upon a disputed record and at this stage of the litigation, whether the instant search would be permissible if probable cause existed.
1
Oregon defines arrest as 'the taking of a person into custody so that he may be held to answer for a crime.' Ore.Rev.Stat. § 133.210.
2
As the Court stated in Terry v. Ohio, 'our inquiry is a dual one—whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' 392 U.S., at 19—20, 88 S.Ct., at 1879.
1
Thus this case does not require us to determine whether the police were required to obtain a warrant for Murphy's arrest at the relevant time. Cf. Jones v. United States, 357 U.S. 493, 499—500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958); Coolidge v. New Hampshire, 403 U.S. 443, 477—481, 91 S.Ct. 2022, 2043—2045, 29 L.Ed.2d 564 (1971).
2
The Court of Appeals assumed that there was probable cause to arrest, and I proceed on that assumption. I agree with Mr. Justice WHITE that the question of probable cause to arrest is open on remand.
3
Mr. Justice DOUGLAS suggests that the taking of fingernail scrapings might violate the Fifth Amendment privilege against self-incrimination. In my view, however, that privilege is confined to situations in which the evidence could be secured by the State only with the defendant's 'affirmative cooperation,' United States v. Dionisio, 410 U.S. 1, 31, 93 S.Ct. 764, 780—781, 35 L.Ed.2d 67 (1973).
*
My Brother MARSHALL says that this privilege is confined to cases where the evidence can be obtained only with the defendant's cooperation. But that extends even the boundaries set by Schmerber v. California, involving forced giving of blood, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908, with which my Brother MARSHALL disagreed. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67.
| 01
|
412 U.S. 306
93 S.Ct. 2018
36 L.Ed.2d 912
John DOE et al., Petitioners,v.John L. McMILLAN et al.
No. 71—6356.
Argued Dec. 13, 1972.
Decided May 29, 1973.
Syllabus
Petitioners, parents of District of Columbia (D.C.) school children, brought this action seeking damages and declaratory and injunctive relief for invasion of privacy that they claimed resulted from the dissemination of a congressional report on the D.C. school system that included identification of students in derogatory contexts. The named defendants included members of a House committee, Committee employees, a Committee investigator, and a consultant; the Public Printer and the Superintendent of Documents; and officials and employees connected with the school system. The Court of Appeals affirmed the District Court's dismissal of the complaint on the grounds that the first two categories of defendants were immune by reason of the Speech or Debate Clause, and that the D.C. officials and the legislative employees were protected by the official immunity doctrine recognized in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434. Held:
1. The congressional committee members, members of their staff, the consultant, and the investigator are absolutely immune under the Speech or Debate Clause insofar as they engaged in the legislative acts of compiling the report referring it to the House, or voting for its publication. Pp. 311—313.
2. The Clause does not afford absolute immunity from private suit to persons who, with authorization from Congress, perform the function, which is not part of the legislative process, of publicly distributing materials that allegedly infringe upon the rights of individuals. The Court of Appeals, therefore, erred in holding that respondents who (except for the Committee members and personnel) were charged with such public distribution were protected by the Clause. Pp. 313—318.
3. The Public Printer and the Superintendent of Documents are protected by the doctrine of official immunity enunciated in Barr v. Matteo, supra, for publishing and distributing the report only to the extent that they served legitimate legislative functions in doing so, and the Court of Appeals erred in holding that their immunity extended beyond that limit. Pp. 318—324.
148 U.S.App.D.C. 280, 459 F.2d 1304, reversed in part, affirmed in part, and remanded.
Michael Valder, Washington, D.C., for petitioners.
Fred M. Vinson, Jr., and William C. Cramer, Washington, D.C., for Legislative respondents.
David P. Sutton, Washington, D.C., for the District of Columbia respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, as well as the reach of official immunity in the legislative context. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).
2
By resolution adopted February 5, 1969, H.Res.76, 91st Cong., 1st Sess., 115 Cong.Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee 'to conduct a full and complete investigation and study of . . . the organization, management, operation, and administration' of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power and was directed to 'report to the House as soon as practicable . . . the results of its investigation and study together with such recommendations as it deems advisable.' On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H.R.Rep.No.91—1681 (1970), represented to be a summary of the Subcommittee's investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong.Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U.S.C. §§ 501 and 701.
3
The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners' suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students.1 The report stated that these materials were included to 'give a realistic view' of a troubled school and 'the lack of administrative efforts to rectify the multitudinous problems there,' to show the level of reading ability of seventh graders who were given a fifth-grade history test, and to illustrate suspension and disciplinary problems.2
4
On January 8, 1971, petitioners, under pseudonyms, brought an action in the United States District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants were (1) the Chairman and members of the House Committee on the District of Columbia; (2) the Clerk, Staff Director, and Counsel of the Committee; (3) a consultant and an investigator for the Committee; (4) the Superintendent of Documents and the Public Printer; (5) the President and members of the Board of Education of the District of Columbia; (6) the Superintendent of Public Schools of the District of Columbia; (7) the principal of Jefferson Junior High School and one of the teachers at that school; and (8) the United States of America.
5
Petitioners alleged that, by disclosing, disseminating, and publishing the information contained in the report, the defendants had violated the petitioners' and their children's statutory, constitutional, and common-law rights to privacy and that such publication had caused and would cause grave damage to the children's mental and physical health and to their reputations, good names, and future careers. Petitioners also alleged various violations of local law. Petitioners further charged that 'unless restrained, defendants will continue to distribute and publish information concerning plaintiffs, their children and other students.' The complaint prayed for an order enjoining the defendants from further publication, dissemination, and distribution of any report containing the objectionable material and for an order recalling the reports to the extent practicable and deleting the objectionable material from the reports already in circulation. Petitioners also asked for compensatory and punitive damages.3
6
The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged.4 A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in Barr v. Matteo, supra, barred any liability on the part of the District of Columbia officials as well as the legislative employees.5 We granted certiorari, 408 U.S. 922, 92 S.Ct. 2505, 33 L.Ed.2d 332.
7
* To 'prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary,' Gravel v. United States, 408 U.S. 606, 617, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583 (1972), Art. I, § 6, cl. 1, of the Constitution provides that 'for any Speech or Debate in either House, they (Members of Congress) shall not be questioned in any other Place.'
8
'The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process.' Id., at 616, of 408 U.S., at 2622 of 92 S.Ct.6
9
The Speech or Debate Clause has been read 'broadly to effectuate its purposes,' United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966); Gravel v. United States, supra, at 624, 92 S.Ct., at 2626, and includes within its protections anything 'generally done in a session of the House by one of its members in relation to the business before it.' Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881); United States v. Johnson, supra, at 179 of 383 U.S., at 754 of 86 S.Ct.; Gravel v. United States, supra, at 624 of 408 U.S., 92 S.Ct., at 2626; Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491 (1969); United States v. Brewster, 408 U.S. 501, 509, 512—513, 92 S.Ct. 2531, 2536, 2537—2538, 33 L.Ed.2d 507 (1972). Thus 'voting by Members and committee reports are protected' and 'a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the 'sphere of legitimate legislative activity." Gravel v. United States, supra, at 624 of 408 U.S., at 2626 of 92 S.Ct.
10
Without belaboring the matter further, it is plain to us that the complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from the Congressmen-Committee members, from the Committee staff, from the consultant, or from the investigator, for introducing material at Committee hearings that identified particular individuals, for referring the Report that included the material to the Speaker of the House, and for voting for publication of the report. Doubtless, also, a published report may, without losing Speech or Debate Clause protection, be distributed to and used for legislative purposes by Members of Congress, congressional committees, and institutional or individual legislative functionaries. At least in these respects, the actions upon which petitioners sought to predicate liability were 'legislative acts,' Gravel v. United States, supra, at 618 of 408 U.S., at 2623 of 92 S.Ct., and, as such, were immune from suit.7
11
Petitioners argue that including in the record of the hearings and in the report itself materials describing particular conduct on the part of identified children was actionable because unnecessary and irrelevant to any legislative purpose. Cases in this Court, however, from Kilbourn to Gravel pretermit the imposition of liability on any such theory. Congressmen and their aides are immune from liability for their actions within the 'legislative sphere,' Gravel v. United States, supra, at 624—625, at 2626—2627 of 92 S.Ct., even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. Although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to include the names of individual children in the evidence submitted to the Committee and in the Committee Report, we have no authority to oversee the judgment of the Committee in this respect or to impose liability on its Members if we disagree with their legislative judgment. The acts of authorizing an investigation pursuant to which the subject materials were gathered, holding hearings where the materials were presented, preparing a report where they were reproduced, and authorizing the publication and distribution of that report were all 'integral part(s) of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.' Id., at 625, 92 S.Ct., at 2627. As such, the acts were protected by the Speech or Debate Clause.
12
Our cases make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause. '(T)he Clause has not been extended beyond the legislative sphere,' and '(l)egislative acts are not all-encompassing.' Id., at 624—625, 92 S.Ct., at 2627. Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct 'though generally done, is not protected legislative activity.' Id., at 625, 92 S.Ct., at 2627; United States v. Johnson, supra. Nor does the Speech or Debate Clause protect a private republication of documents introduced and made public at a committee hearing, although the hearing was unquestionably part of the legislative process. Gravel v. United States, supra.
13
The proper scope of our inquiry, therefore, is whether the Speech or Debate Clause affords absolute immunity from private suit to persons who, with authorization from Congress, distribute materials which allegedly infringe upon the rights of individuals. The respondents insist that such public distributions are protected, that the Clause immunizes not only publication for the information and use of Members in the performance of their legislative duties but also must be held to protect 'publications to the public through the facilities of Congress.' Public dissemination, it is argued, will serve 'the important legislative function of informing the public concerning matters pending before Congress . . ..' Brief for Legislative Respondents 27.
14
We do not doubt the importance of informing the public about the business of Congress. However, the question remains whether the act of doing so, simply because authorized by Congress, must always be considered 'an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings' with respect to legislative or other matters before the House. Gravel v. United States, supra, at 625, at 2627 of 92 S.Ct. A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report.8 The reason is that republishing a libel under such circumstances is not an essential part of the legislative process and is not part of that deliberative process 'by which members participate in committee and House proceedings.' Ibid. By the same token, others, such as the Superintendent of Documents or the Public Printer or legislative personnel, who participate in distribution of actionable material beyond the reasonable bounds of the legislative task, enjoy no Speech or Debate Clause immunity.
15
Members of Congress are themselves immune for ordering or voting for a publication going beyond the reasonable requirements of the legislative function, Kilbourn v. Thompson, supra, but the Speech or Debate Clause no more insulates legislative functionaries carrying out such nonlegislative directives than it protected the Sergeant at Arms in Kilbourn v. Thompson when, at the direction of the House, he made an arrest that the courts subsequently found to be 'without authority.' 103 U.S., at 200.9 See also Powell v. McCormack, 395 U.S., at 504, 89 S.Ct., at 1955; cf. Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). The Clause does not protect 'criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for in execution of a legislative act or done without his knowledge or direction.' Gravel v. United States, supra, at 622 of 408 U.S., at 2625 of 92 S.Ct. 2623. Neither, we think, does it immunize those who publish and distribute otherwise actionable materials beyond the reasonable requirements of the legislative function.10
16
Thus, we cannot accept the proposition that in order to perform its legislative function Congress not only must at times consider and use actionable material but also must be free to disseminate it to the public at large, no matter how injurious to private reputation that material might be. We cannot believe that the purpose of the Clause—'to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary,' Gravel v. United States, supra, at 617 of 408 U.S., at 2623 of 92 S.Ct.; Powell v. McCormack, supra, at 502 of 395 U.S., at 1954 of 89 S.Ct.; United States v. Johnson, 383 U.S., at 181, 86 S.Ct., at 755—will suffer in the slightest if it is held that those who, at the direction of Congress or otherwise, distribute actionable material to the public at large have no automatic immunity under the Speech or Debate Clause but must respond to private suits to the extent that others must respond in light of the Constitution and applicable laws.11 To hold otherwise would be to invite gratuitous injury to citizens for little if any public purpose. We are unwilling to sanction such a result, at least absent more substantial evidence that, in order to perform its legislative function, Congress must not only inform the public about the fundamentals of its business but also must distribute to the public generally materials otherwise actionable under local law.
17
Contrary to the suggestion of our dissenting Brethren, we cannot accept the proposition that our conclusion, that general, public dissemination of materials otherwise actionable under local law is not protected by the Speech or Debate Clause, will seriously undermine the 'informing function' of Congress. To the extent that the Committee report is printed and internally distributed to Members of Congress under the protection of the Speech or Debate Clause, the work of Congress is in no way inhibited. Moreover, the internal distribution is 'public' in the sense that materials internally circulated, unless sheltered by specific congressional order, are available for inspection by the press and by the public. We only deal, in the present case, with general, public distribution beyond the halls of Congress and the establishments of its functionaries, and beyond the apparent needs of the 'due functioning of the (legislative) process.' United States v. Brewster, 408 U.S., at 516, 92 S.Ct., at 2539.
18
That the Speech or Debate Clause has finite limits is important for present purposes. The complaint before us alleges that the respondents caused the Committee report 'to be distributed to the public,' that 'distribution of the report continues to the present,' and that, 'unless restrained, defendants will continue to distribute and publish' damaging information about petitioners and their children. It does not expressly appear from the complaint, nor is it contended in this Court, that either the Members of Congress or the Committee personnel did anything more than conduct the hearings, prepare the report, and authorize its publication. As we have stated, such acts by those respondents are protected by the Speech or Debate Clause and may not serve as a predicate for a suit. The complaint was therefore properly dismissed as to these respondents. Other respondents, however, are alleged to have carried out a public distribution and to be ready to continue such dissemination.
19
In response to these latter allegations, the Court of Appeals, after receiving sufficient assurances from the respondents that they had no intention of seeking a republication or carrying out further distribution of the report, concluded that there was no basis for injunctive relief. But this left the question whether any part of the previous publication and public distribution by respondents other than the Members of Congress and Committee personnel went beyond the limits of the legislative immunity provided by the Speech or Debate Clause of the constitution. Until that question was resolved, the complaint should not have been dismissed on threshold immunity grounds, unless the Court of Appeals was correct in ruling that the action against the other respondents was foreclosed by the doctrine of official immunity, a question to which we now turn.12
II
20
The official immunity doctrine, which 'has in large part been of judicial making,' Barr v. Matteo, 360 U.S., at 569, 79 S.Ct., at 1338, confers immunity on Government officials of suitable rank for the reason that 'officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.' Id., at 571, 79 S.Ct., at 1339.13 The official-immunity doctrine seeks to reconcile two important considerations—
21
'(O)n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of the officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.' Id., at 565, 79 S.Ct., at 1336.
22
In the Barr case, the Court reaffirmed existing immunity law but made it clear that the immunity conferred might not be the same for all officials for all purposes. Id., at 573, 79 S.Ct., at 1340; see also Tenney v. Brandhove, 341 U.S., at 378, 71 S.Ct., at 789; Dombrowski v. Eastland, 387 U.S., at 85, 87 S.Ct., at 1427. Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. Barr v. Matteo, supra, 360 U.S., at 569, 79 S.Ct., at 1338; Pierson v. Ray, 386 U.S. 547, 553—555, 87 S.Ct. 1213, 1217—1218, 18 L.Ed.2d 288 (1967). But policemen and like officials apparently enjoy a more limited privilege. Id., at 555—558, 87 S.Ct., at 1218. Also, the Court determined in Barr that the scope of immunity from defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer. Barr v. Matteo, supra, at 573—574 of 360 U.S., at 1340—1341 of 73 S.Ct.; see also the companion case, Howard v. Lyons, 360 U.S. 593, 597—598, 79 S.Ct. 1331, 1333—1334, 3 L.Ed.2d 1454 (1959). The scope of immunity has always been tied to the 'scope of . . . authority.' Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963). In the legislative context, for instance, '(t)his Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role.' Tenney v. Brandhove, supra, at 377 of 341 U.S., at 788 of 71 S.Ct. Thus, we have recognized 'the immunity of legislators for acts within the legislative role,' Pierson v. Ray, supra, 386 U.S., at 554, 87 S.Ct., at 1218, but have carefully confined that immunity to protect only acts within 'the sphere of legitimate legislative activity.' Tenney v. Brandhove, supra, 341 U.S., at 376, 71 S.Ct., at 788; cf. Powell v. McCormack, supra.
23
Because the Court has not fashioned a fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens, there is no ready-made answer as to whether the remaining federal respondents—the Public Printer and the Superintendent of Documents—should be accorded absolute immunity in this case. Of course, to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen, these officials enjoy the protection of the Speech or Debate Clause. Our inquiry here, however, is whether, if they participate in publication and distribution beyond the legislative sphere, and thus beyond the protection of the Speech or Debate Clause, they are nevertheless protected by the doctrine of official immunity. Our starting point is at least a minimum familiarity with their functions and duties.
24
The statutes of the United States created the office of Public Printer to manage and supervise the Government Printing Office, which, with certain exceptions, is the authorized printer for the various branches of the Federal Government. 44 U.S.C. § 301. 'Printing to binding may be done at the Government Printing Office only when authorized by law.' § 501. The Public Printer is authorized to do printing for Congress, §§ 701—741, 901—910, as well as for the Executive and Judicial Branches of Government, §§ 1101—1123. The Public Printer is authorized to appoint the Superintendent of Documents with duties concerning the distribution and sale of documents. §§ 1701—1722.
25
Under the applicable statutes, when either House of Congress orders a document printed, the Public Printer is to print the 'usual number' unless a greater number is ordered. § 701. The 'usual number' is 1,682, to be divided between bound and unbound copies and distributed to named officers or offices of the House and Senate, to the Library of Congress, and to the Superintendent of Documents for further distribution 'to the State libraries and designated depositories.' Ibid.14 There are also statutory provisions for the printing of extra copies, § 702, bills and resolutions, §§ 706—708, public and private laws, postal conventions, and treaties, §§ 709—712, journals, § 713, the Congressional Directory, §§ 721—722, memorial addresses, §§ 723 724. and the Statutes at Large, §§ 728—729, Section 733 provides that '(t)he Public Printer on order of a Member of Congress, on prepayment of the cost, may reprint documents and reports of committees together with the evidence papers submitted, or any part ordered printed by the Congress.' With respect to printing for the Executive and Judicial Branches, it is provided that '(a) head of an executive department . . . may not cause to be printed, and the Public Printer may not print, a document or matter unless it is authorized by law and necessary to the public business.' § 1102(a). The executive departments and the courts are to requisition printing by certifying that it is 'necessary for the public service.' § 1103.
26
The Superintendent of Documents has charge of the distribution of all public documents except those printed for use of the executive departments, 'which shall be delivered to the departments,' and for either House of Congress, 'which shall be delivered to the Senate Service Department and House of Representatives Publications Distribution Service.' § 1702. He is thus in charge of the public sale and distribution of documents. The Public Printer is instructed to 'print additional copies of a Government publication, not confidential in character, required for sale to the public by the Superintendent of Documents,' subject to regulation by the Joint Committee on Printing. § 1705.
27
It is apparent that under this statutory framework, the printing of documents and their general distribution to the public would be 'within the outer perimeter' of the statutory duties of the Public Printer and the Superintendent of Documents. Barr v. Matteo, 360 U.S., at 575, 79 S.Ct., at 1341. Thus, if official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule.
28
The duties of the Public Printer and his appointee, the Superintendent of Documents, are to print, handle, distribute, and sell Government documents. The Government Printing Office acts as a service organization for the branches of the Government. What it prints is produced elsewhere and is printed and distributed at the direction of the Congress, the departments, the independent agencies and offices, or the Judicial Branch of the Government. The Public Printer and Superintendent of Documents exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly. The existence of a Public Printer makes it unnecessary for every Government agency and office to have a printer of its own. The Printing Office is independently created and manned and invested with its own statutory duties; but, we do not think that its independent establishment carries with it an independent immunity. Rather, the Printing Office is immune from suit when it prints for an executive department for example, only to the extent that it would be if it were part of the department itself or, in other words, to the extent that the department head himself would be immune if he ran his own printing press and distributed his own documents. To hold otherwise would mean that an executive department could acquire immunity for nonimmune materials merely by presenting the proper certificate to the Public Printer who would then have the duty to print the material. Under such a holding, the department would have a seemingly foolproof method for manufacturing immunity for materials which the court would not otherwise hold immune if not sufficiently connected with the 'official duties' of the department. Howard v. Lyons, 360 U.S., at 597, 79 S.Ct., at 1333.
29
Congress has conferred no express statutory immunity on the Public Printer of the Superintendent of Documents. Congress has not provided that these officials should be immune for printing and distributing materials where those who author the materials would not be. We thus face no statutory or constitutional problems in interpreting this doctrine of 'judicial making.' Barr v. Matteo, 360 U.S., at 569, 79 S.Ct., at 1338. We do, however, write in the shadow of Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), where the Court advised caution '(w) here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him . . ..' Id., at 437, 91 S.Ct., at 510. We conclude that, for the purposes of the judicially fashioned doctrine of immunity, the Public Printer and the Superintendent of Documents are no more free from suit in the case before us than would be a legislative aide who made copies of the materials at issue and distributed them to the public at the direction of his superiors. See Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). The scope of inquiry becomes equivalent to the inquiry in the context of the Speech or Debate Clause, and the answer is the same. The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating. But when they act outside the 'sphere of legitimate legislative activity,' Tenney v. Brandhove, 341 U.S., at 376, 71 S.Ct., at 788, they enjoy no special immunity from local laws protecting the good name or the reputation of the ordinary citizen.
30
Because we think the Court of Appeals applied the immunities of the Speech or Debate Clause and of the doctrine of official immunity too broadly, we must reverse its judgment and remand the case for appropriate further proceedings.15 We are unaware, from this record, of the extent of the publication and distribution of the report which has taken place to date. Thus, we have little basis for judging whether the legitimate legislative needs of Congress, and hence the limits of immunity, have been exceeded. These matters are for the lower courts in the first instance.
31
Of course, like the Court of Appeals, we indicate nothing as to whether petitioners have pleaded a good cause of action or whether respondents have other defenses, constitutional or otherwise. We have dealt only with the threshold question of immunity.16
32
The judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
33
So ordered.
34
Reversed in part and affirmed in part and case remanded.
35
Mr. Justice DOUGLAS, whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, concurring.
36
I agree with the Court that the issue tendered is justiciable, and that the complaint states a cause of action. Though I join the opinion of the Court, I amplify my own views as they touch on the merits.
37
* Respondents, relying primarily on Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583, urge that the report, concededly part and parcel of the legislative process, is immune from the purview of the courts under the Speech or Debate Clause of Art. I, § 6, of the Constitution.1 In Gravel we held that neither Senator Gravel not his aides could be held accountable or questioned with respect to events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. The immunity in that case attached to the Senator and his aides, and there is no intimation whatsoever that committee reports are sacrosanct from judicial scrutiny. In fact, the Court disclaimed any need to 'address issues that may arise when Congress or either House, as distinguished from a single Member, orders the publication and/or public distribution of committee hearings, reports, or other materials.'2 Id., at 626 n. 16, 92 S.Ct., at 2627.
38
'Legislative immunity does not, of course, bar all judicial review of legislative acts.' Powell v. McCormack, 395 U.S. 486, 503, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491. 'The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions.' Id., at 505, 89 S.Ct., at 1955. This has been clear since Mr. Chief Justice Marshall's seminal decision in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60. We always have recognized the 'judicial power to determine the validity of legislative actions impinging on individual rights.' Gravel v. United States, supra, at 620 of 408 U.S., at 2624 of 92 S.Ct.
39
In Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, the Court's first decision to consider the Speech or Debate Clause, the Court held unconstitutional a resolution of the House ordering the arrest of Kilbourn for refusing to honor a subpoena of a House investigating committee, since the House had no power to punish for contempt. Although the Court barred a claim for false imprisonment against Members of the House, it nevertheless reached the merits of Kilbourn's claim and allowed an action against the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest.
40
Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577, involved suits for an injunction and for damages against a Senator who headed a subcommittee of the Senate Judiciary Committee and counsel to the subcommittee for wrongful and unlawful seizure of property in violation of the Fourth Amendment. We agreed that the complaint against the Senator must be dismissed because the record 'does not contain evidence of his involvement in any activity that could result in liability.' Id., at 84, 87 S.Ct., at 1427. As respects counsel to the subcommittee we held, in reliance on Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019, that the immunity granted by the Speech or Debate Clause 'is less absolute, although applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves.' 387 U.S., at 85, 87 S.Ct., at 1427. Accordingly, we remanded the case against counsel to the subcommittee for trial because there was 'a sufficient factual dispute' to require a trial. Acts done in violation of the Fourth Amendment—like assaults with fists or clubs or guns—are outside the protective ambit of the Speech or Debate Clause; certainly violations of the Fourth Amendment are not within the scope of a legitimate legislative purpose.
41
A striking illustration of the same principle was stated in Watkins v. United States, 354 U.S. 178, 188, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273: 'The Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.' And see Barenblatt v. United States, 360 U.S. 109, 153, 166, 79 S.Ct. 1081, 1113, 3 L.Ed.2d 1115 (dissenting opinions of Black and Brennan, JJ.). A witness subpoenaed to testify before a congressional committee may not be forced to reveal his beliefs. One's conscience and thoughts are matters of privacy as is the whole array of one's beliefs or values. And, as Watkins indicates, a witness refusing to so testify may not be punished for contempt. Violations of the commands of the First Amendment are not within the scope of a legitimate legislative purpose.
42
I cannot agree, then, that the question for us is 'whether (public dissemination), simply because authorized by Congress, must always be considered 'an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings' with respect to legislative or other matters before the House.' A legislator's function in informing the public concerning matters before Congress or concerning the administration of Government is essential to maintaining our representative democracy. Unless we are to put blinders on our Congressmen and isolate them from their constituents, the informing function must be entitled to the same protection of the Speech or Debate Clause as those activities which relate directly and necessarily to the immediate function of legislating. See Gravel v. United States, supra, 408 U.S., at 634 637, 92 S.Ct., at 2630—2631 (Douglas, J., dissenting), id., at 649 662, 92 S.Ct., at 2637—2644 (Brennan, J., dissenting). In my view the question to which we should direct our attention is whether the House Report infringes upon the constitutional rights of petitioners and therefore is subject to scrutiny by the federal courts.
II
43
The House authorized its District Committee 'to conduct a full and complete investigation and study of . . . (1) the organization, management, operation, and administration of any department or agency of the government of the District of Columbia; (2) the organization, management, operation, and administration of any independent agency or instrumentality of government operating solely in the District of Columbia.'3
44
It was pursuant to this investigation and study that the report in effect brands certain named students as juvenile delinquents. As stated by Judge Wright in his dissent below:
45
'The material included in the Committee report is not, as the majority contends, merely 'somewhat derogatory.' One disciplinary letter, for example, alleges that a specifically named child was 'involved in the loss of fifty cents' and 'invited a male substitute to have sexual relations with her, gapping her legs open for enticement.' Similar letters accused named children of disrespect, profanity, vandalism, assault and theft. Of the 29 test papers published in the report, 21 bore failing grades. Yet appellants seek only to prohibit use of the children's names without their consent. They do not contest the propriety of the investigation generally, nor do they seek to enjoin the conclusions or text of the report. Indeed, they do not even challenge the right of Congress to examine and summarize the confidential material involved. They wish only to retain their anonymity.' 148 U.S.App.D.C. 280, 300, 459 F.2d 1304, 1324.
46
We all should be painfully aware of the potentially devastating effects of congressional accusations. There are great stakes involved when officials condemn individuals by name. The age of technology has produced data banks into which all social security numbers go; and following those numbers go data in designated categories concerning the lives of members of our communities. Arrests go in, though many arrests are unconstitutional. Acts of juvenile delinquency are permanently recorded and they and other alleged misdeeds or indiscretions may be devastating to a person in later years when he has outgrown youthful indiscretions and is trying to launch a professional career or move into a position where steadfastness is required.
47
Congress, in naming the students without justification exceeded the 'sphere of legitimate legislative activity.' Tenney v. Brandhove, 341 U.S., at 376, 71 S.Ct., at 788. There can be no question that the resolution authorizing the investigation and study expressed a legitimate legislative purpose. Nevertheless, neither the investigatory nor, indeed, the informing function of Congress authorizes any 'congressional power to expose for the sake of exposure.' Watkins v. United States, 354 U.S., at 200, 77 S.Ct., at 1185. To the contrary, there is simply 'no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.' Id., at 187, 77 S.Ct., at 1179. The names of specific students were totally irrelevant to the purposes of the study. The functions of the Committee would have been served equally well if the students had remained anonymous.
48
It is true, of course, that members of Congress may, even in a case such as this, retain their immunity under the Speech or Debate Clause. But in this case, both the Public Printer and the Superintendent of Documents, official agencies entrusted by Congress with printing responsibilities, are named as defendants. And in the context of this case, such defendants may be held responsible for their actions. See Powell v. McCormack, supra; Dombrowski v. Eastland, supra; Kilbourn v. Thompson, supra.
49
At the very least petitioners are entitled to injunctive relief. The scope of the injunction and against whom it should operate only can be determined upon remand after a full hearing on the facts. We cannot say whether there is a threat of future public distribution or whether it will be feasible for any person subject to the equitable powers of the court to excise the students' names from reports previously distributed. With respect to damages—that is, whether respondents, including the members of the District of Columbia Government if a valid claim is stated against them, are protected by the doctrine of official immunity as set forth in the opinion for the Court—I agree that it is a matter for the lower courts in the first instance.
50
Mr. Chief Justice BURGER, concurring in part and dissenting in part.
51
I cannot accept the proposition that the judiciary has power to carry on a continuing surveillance of what Congress may and may not publish by way of reports on inquiry into subjects plainly within the legislative powers conferred on Congress by the Constitution. The inquiries conducted by Congress here were within its broad legislative authority and the specific powers conferred by Art. I, § 8, cl. 17.
52
It seems extraordinary to me that we grant to the staff aides of Members of the Senate and the House an immunity that the Court today denies to a very senior functionary, the Public Printer. Historically and functionally the Public Printer is simply the extended arm of the Congress itself, charged by law with executing congressional commands.
53
Very recently, in United States v. Brewster, 408 U.S. 501, 516, 92 S.Ct. 2531, 2539, 33 L.Ed.2d 507 (1972), we explicitly took note the 'conscious choice' made by the authors of the Constitution to give broad privileges and protection to Members of Congress for acts within the scope of their legislative function. As Justices BLACKMUN and REHNQUIST have demonstrated so well, the acts here complained of were not outside the traditional legislative function of Congress. I join fully in the concurring and dissenting opinions of Mr. Justice BLACKMUN and Mr. Justice REHNQUIST, post, pp. 338.
54
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.
55
I join Mr. Justice REHNQUIST's opinion, post, p. 338, but add some comments of my own.
56
Each step in the legislative report process, from the gathering of information in the course of an officially authorized investigation to and including the official printing and official distribution of that information in the formal report, is legitimate legislative activity and is designed to fulfill a particular objective. More often than not, when a congressional committee prepares a report, it does so not only with the object of advising fellow Members of Congress as to the subject matter, but with the further objects (1) of advising the public of proposed legislative action, (2) of informing the public of the presence of problems and issues, (3) of receiving from the public, in return, constructive comments and suggestions, and (4) of enabling the public to evaluate the performance of their elected representatives in the Congress. The Court has recognized and specifically emphasized the importance, and the significant posture, of the committee report as an integral part of the legislative process when, repeatedly and clearly, it has afforded speech or debate coverage for a Member's writing, signing, or voting in favor of a committee report just as it has for a Member's speaking in formal debate on the floor. Gravel v. United States, 408 U.S. 606, 617, 624, 92 S.Ct. 2614, 2626, 33 L.Ed.2d 588 (1972); Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491 (1969); Kibourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881).1 That protection is preserved by the Court in this case, ante, at 311 313, because the Court appreciates that Congress must possess uninhibited internal communication.
57
The Court previously has observed that Congress possesses the power 'to inquire into and publicize corruption, maladministration or inefficiency in the agencies of the Government' because the public is 'entitled to be informed concerning the workings of its government.' Watkins v. United States, 354 U.S. 178, 200 and n. 33, 77 S.Ct. 1173, 1185, 1 L.Ed.2d 1273 (1957). Indeed, as to this kind of activity, Woodrow Wilson long ago observed, 'The informing function of Congress should be preferred even to its legislative function.'2 The Speech or Debate Clause is an outgrowth of the English doctrine that the courts should not be utilized as instruments to impede the efficient functioning of Parliament. Kilbourn v. Thompson, 103 U.S., at 201—205. Because the 'informing function' is an essential attribute of an effective Legislative Branch, I feel the Court's curtailment of that function today violates the historical tradition signified textually by the Speech or Debate Clause and underlying our doctrine of separation of powers.
58
It may be that a congressional committee's activities and report are not protected absolutely by the Speech or Debate Clause. One may assume that there must be a legitimate legislative purpose in undertaking the investigation or hearing that culminates in the report. Watkins v. United States, 354 U.S., at 200, 77 S.Ct., at 1185; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959). I suggest, however, that the publication and distribution of a report compiled in connection with an officially authorized investigation is as much an 'integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation,' Gravel v. United States, 408 U.S., at 625, 92 S.Ct., at 2627, as is the gathering of information or writing and voting for the publication of the report. In the case before us, there can be no question that the activities of the District of Columbia Committee of the House of Representatives were officially authorized and undertaken for a proper legislative purpose. Plenary jurisdiction over the District of Columbia is specifically vested in Congress by Art. I, § 8, of the Constitution.3 Matters such as the quality of education afforded by the District's schools, and the administrative problems they face, obviously are within the scope of the jurisdiction of the District Committee. In this case, it legitimately undertook its investigation of the administration of the school system.4 At the conclusion of its investigation the Committee decided, as did the Committee of the Whole House on the State of the Union,5 that, as a matter of legislative judgment, the report should be printed. It was stated that attachments to one portion thereof were included to 'give a realistic view' of a troubled school 'and the lack of administrative efforts to rectify the multitudinous problems there.'6 The report was printed and distributed by the Government Printing Office pursuant to 44 U.S.C. §§ 501 and 701.7 This decision, though reasonable men well may differ as to its wisdom, was conscious exercise of legislative discretion constitutionally vested in the Legislative Branch and not subject to review by the judiciary. Indeed, as Mr. Justice REHNQUIST observes, post, at 339—340, this Court has stated that it is 'not consonant with our scheme of government for a court to inquire into the motives of legislators.' Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951).
59
Although the Court in the present case holds that the gathering of information, the preparation of a report, and the voting on a resolution authorizing the printing of a committee report are protected activities under the Speech or Debate Clause, it renders that protection for Members of Congress and legislative personnel less than meaningful by further holding that the authorized public distribution of a committee document may be enjoined and those responsible for the distribution held liable when the document contains materials 'otherwise actionable under local law.' Ante, at 317. The Court's holding thus imposes on Congress the onerous burden of justifying, apparently by 'substantial evidence,' ibid., the inclusion of allegedly actionable material in committee documents.8 This, unfortunately, ignores the realities of the 'deliberative and communicative processes,' Gravel v. United States, 408 U.S., at 625, 92 S.Ct., at 2627, by which legislative decision-making takes place.
60
Although it is regrettable that a person's reputation may be damaged by the necessities or the mistakes of the legislative process,9 the very act of determining judicially whether there is 'substantial evidence' to justify the inclusion of 'actionable' information in a committee report is a censorship that violates the congressional free speech concept embodied in the Speech or Debate Clause10 and is, as well, the imposition of this Court's judgment in matters textually committed to the discretion of the Legislative Branch by Art. I of the Constitution. I suspect that Mr. Chief Justice Marshall and his concurring Justices would be astonished to learn that the time-honored doctrine of judicial review they enunciated in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), has been utilized to foster the result reached by the Court today.11
61
Stationing the federal judiciary at the doors of the Houses of Congress for the purpose of sanitizing congressional documents in accord with this Court's concept of wise legislative decisionmaking policy appears to me to reveal a lack of confidence in our political processes and in the ability of Congress to police its own members. It is inevitable that occasionally, as perhaps in this case, there will be unwise and even harmful choices made by Congress in fulfilling its legislative responsibility. That, however, is the price we pay for representative government. I am firmly convinced that the abuses we countenance in our system are vastly outweighed by the demonstrated ability of the political process to correct overzealousness on the part of elected representatives.
62
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, and with whom Mr. Justice STEWART joins as to Part I, concurring in part and dissenting in part.
63
I concur in the Court's holding that the respondent Members of Congress and their committee aides and employees are immune under the Speech or Debate Clause for preparation of the Committee report for distribution within the halls of Congress. I dissent from the Court's holding that Members of Congress might be held liable if they were in fact responsible for public dissemination of a committee report, and that therefore the Public Printer or the Superintendent of Documents might likewise be liable for such distribution. And quite apart from the immunity which I believe the Speech or Debate Clause confers upon congressionally authorized public distribution of committee reports, I believe that the principle of separation of powers absolutely prohibits any form of injunctive relief in the circumstances here presented.
64
* In Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), we decided that the Speech or Debate Clause of the Constitution did not protect private republication of a committee report, but left open the question of whether publication and public distribution of such reports authorized by Congress would be included within the privilege. Id., at 626 n. 16, 92 S.Ct., at 2627. While there are intimations in today's opinion that the privilege does not cover such authorized public distribution, the ultimate holding is apparently that the District Court must take evidence and determine for itself whether or not such publication in this case was within the 'legitimate legislative needs of Congress,' ante, at 324.
65
While there is no reason for a rigid, mechanical application of the Speech or Debate Clause, there would seem to be equally little reason for a completely ad hoc, factual determination in each case of public distribution as to whether that distribution served the 'legitimate legislative needs of Congress.' A supposed privilege against being held judicially accountable for an act is of virtually no use to the claimant of the privilege if it may only be sustained after elaborate judicial inquiry into the circumstances under which the act was performed. This disposition is particularly anomalous when viewed in light of our earlier views on the scope of the constitutional privilege to the effect that it is 'not consonant with our scheme of government for a court to inquire into the motives of legislators.' Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). A factual hearing in the District Court could scarcely avoid inquiry into legislative motivation.
66
Previous decisions of this Court have upheld the immunity of Members whenever they are 'acting in the sphere of legitimate legislative activity.' Id., at 376, 71 S.Ct., at 788. In Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881), we held that this immunity extends to everything 'generally done in a session of the House by one of its members in relation to the business before it.' Id., at 204. This relatively expansive interpretation of the scope of immunity has been consistently reaffirmed. United States v. Johnson, 383 U.S. 169, 179, 86 S.Ct. 749, 754, 15 L.Ed.2d 681 (1966); United States v. Brewster, 408 U.S. 501, 509, 92 S.Ct. 2531, 2536, 33 L.Ed.2d 507 (1972).
67
The subject matter of the Committee report here in question was, as the Court notes, concededly within the legislative authority of Congress. Congress has jurisdiction over all matters within the District of Columbia, U.S.Const., Art. I, § 8, cl. 17, and the Committee was authorized by the full House to investigate the District's public school system. H.Res. 76, 91st Cong., 1st Sess., 115 Cong.Rec. 2784 (1969). And we have held that with respect to the preliminary inquiries, such as the findings here represent, concerning potential legislation, Congress' power 'is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.' Barenblatt v. United States, 360 U.S. 109, 111, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115 (1959).
68
In Kilbourn v. Thompson, supra, 103 U.S., at 204, Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491 (1969), and Gravel v. United States, 408 U.S., at 624, 92 S.Ct., at 2626, the Court has held that committee reports are absolutely privileged. In neither Kilbourn nor Powell was any distinction intimated between internal and public distribution of the reports. And while the question was reserved in Gravel, a comparison of the factual background surrounding Senator Gravel's reading into the committee record the Pentagon Papers, and the limited publication apparently undertaken here, indicates that the difference in actual effect between the two is indeed minimal. The only difference between Senator Gravel's widely publicized reading, in the presence of numerous spectators and journalists, and the public distribution of this report, is that the former was confined within the legislative halls. But it can scarcely be doubted that information produced at a publicly attended committed hearing within the legislative halls may well as a practical matter receive every bit as much public circulation as information contained in a committee report which is itself publicly circulated.
69
To the extent that public participation in a relatively open legislate process is desirable, the Court's holding makes the materials bearing on that process less available than they might be. And the limitation thus judicially imposed is squarely contrary to the expressed intent of Congress. The Committee report was ordered printed by the full House sitting as a Committee of the Whole House on the State of the Union. 116 Cong.Rec. 40311. It was thereafter printed and distributed by the Government Printing Office solely in accordance with statutory provisions. 44 U.S.C. §§ 501, 701. These provisions state specifically that the Public Printer may print only the number of copies designated by the Congress, such number, in the absence of contrary indication, being the 'usual number' established by statute as 1,682. These copies may be distributed only 'among those entitled to receive them.' § 701(a). The distributees are specifically designated in the statute itself. § 701(c). Extra copies may be printed only by simple, concurrent, or joint resolution. § 703. Thus, every action taken by the Public Printer and the Superintendent of Documents, so far as this record indicates, was under the direction of Congress.
70
I agree with the Court that the Public Printer and the Superintendent of Documents have no 'official immunity' under the authority of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). There is no immunity there when officials are simply carrying out the directives of officials in the other branches of Government, rather than performing any discretionary function of their own. But for this very reason, if the body directing the publication or its Members would themselves be immune from publishing and distributing, the Public Printer and the Superintendent should be likewise immune. I do not understand the Court to hold otherwise. Because I would hold the Members immune had they undertaken the public distribution, I would likewise hold the Superintendent and the Public Printer immune for having done so under the authority of the resolution and statute. The Court's contrary conclusion, perhaps influenced by the allegations of serious harm to the petitioners contained in their complaint, unduly restricts the privilege. The sustaining of any claim of privilege invariably forecloses further inquiry into a factual situation which, in the absence of privilege, might well have warranted judicial relief. The reason why the law has nonetheless established categories of privilege has never been better set forth than in the opinion of Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949):
71
'It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.'
II
72
Entirely apart from the immunity conferred by the Speech or Debate Clause on these respondents, I believe that the principle of separation of powers forbids the granting of injunctive relief by the District Court in a case such as this. We have jurisdiction to review the completed acts of the Legislative and Executive Branches. See, e.g., Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Kilbourn v. Thompson, supra. But the prospect of the District Court's enjoining a committee of Congress, which, in the legislative scheme of things, is for all practical purposes Congress itself, from undertaking to publicly distribute one of its reports in the manner that Congress has by statute prescribed that it be distributed, is one that I believe would have boggled the minds of the Framers of the Constitution.
73
In Mississippi v. Johnson, 4 Wall. 475, 18 L.Ed. 437 (1867), an action was brought seeking to enjoin the President from executing a duly enacted statute on the ground that such executive action would be unconstitutional. The Court there expressed the view that I believe should control the availability of the injunctive relief here:
74
'The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.' Id., at 500.
75
In Kilbourn v. Thompson, supra, the Court reviewed the arrest and confinement of a private citizen by the Sergeant at Arms of the House of Representatives. In Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957), the Court reviewed the scope of the investigatory powers of Congress when the executive has prosecuted a recalcitrant witness and sought a judicial forum for the purpose of imposing criminal sanctions on him. Neither of these cases comes close to having the mischievous possibilities of censorship being imposed by one branch of the Government upon the other as does this one.
76
In New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), this Court held that prior restraint comes before it bearing a heavy burden. Id., at 714, 91 S.Ct., at 2141. Whatever may be the difference in the constitutional posture of the two situations, on the issue of injunctive relief, which is nothing if not a form of prior restraint, a Congressman should stand in no worse position in the federal courts than does a private publisher. Cf. Hurd v. Hodge, 334 U.S. 24, 34—35, 68 S.Ct. 847, 852—853, 92 L.Ed. 1187 (1948). Purely as a matter of regulating the exercise of federal equitable jurisdiction in the light of the principle of separation of powers, I would foreclose the availability of injunctive relief against these respondents.
1
The Court of Appeals' opinion terms the materials 'somewhat derogatory.' The absentee lists named students who were frequent 'class cutters.' Of the 29 test papers published in the report, 21 bore failing grades; all included the name of the student being tested. The letters, memoranda, and other documents relating to disciplinary problems detailed conduct of specifically named students. Some of the deviant conduct described involved sexual perversion and criminal violations.
2
The information was obtained voluntarily from District of Columbia school personnel by Committee investigators.
3
The prayer also included a request for an injunction prohibiting future disclosure of 'confidential information' and requiring the District of Columbia School Board 'to establish rules and regulations regarding the confidentiality of school papers and the right of privacy of students in the schools of the District of Columbia.'
4
The District Court also dismissed the suit against the United States for failure to exhaust administrative remedies. 28 U.S.C. § 2675(a). That ruling is not challenged here.
5
The Court of Appeals also independently found that injunctive relief would not issue because of assurances from the federal defendants that no republication or further distribution of the report was contemplated. With respect to petitioner's request for injunctive relief against the District of Columbia officials, the Court found that, because of the adoption of new policies concerning confidential information, 'there is no substantial threat of future injury to appellants.'
6
'Our speech or debate privilege was designed to preserve legislative independence, not supremacy. Our task, therefore, is to apply the Clause in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government.' United States v. Brewster, 408 U.S. 501, 508, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972).
7
In Gravel, we held that 'the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.' Gravel v. United States, 408 U.S. 606, 618, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583 (1972).
8
The republication of a libel, in circumstances where the initial publication is privileged, is generally unprotected. See generally 1 F. Harper & F. James, The Law of Torts § 5.18 (1956); W. Prosser, Torts 766—769 (4th ed. 1971). See also Gravel v. United States, 408 U.S., at 622—627, 92 S.Ct., at 2625—2628.
9
'In Kilbourn, the Speech or Debate Clause protected House Members who had adopted a resolution authorizing Kilbourn's arrest; that act was clearly legislative in nature. But the resolution was subject to judicial review insofar as its execution impinged on a citizen's rights as it did there. That the House could with impunity order an unconstitutional arrest afforded no protection for those who made the arrest.' Gravel v. United States, 408 U.S., at 618, 92 S.Ct., at 2624.
10
Although, as pointed out by my dissenting Brethren, the acts of Senator Gravel were not ordered or authorized by Congress or a congressional committee, Gravel v. United States, 408 U.S., at 626, 92 S.Ct., at 2627, the fact of congressional authorization for the questioned act is not sufficient to insulate the act from judicial scrutiny. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), for instance, we reviewed the acts of House employees 'acting pursuant to express orders of the House.' Id., at 504, 89 S.Ct., at 1955. We concluded that 'although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts.' Ibid. See also Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1424, 18 L.Ed.2d 577 (1967).
11
We have no occasion in this case to decide whether or under what circumstances, the Speech or Debate Clause would afford immunity to distributors of allegedly actionable materials from grand jury questioning, criminal charges, or a suit by the executive to restrain distribution, where Congress has authorized the particular public distribution.
12
While an inquiry such as is involved in the present case, because it involves two coordinate branches of Government, must necessarily have separation of powers implications, the separation of powers doctrine has not previously prevented this Court from reviewing the acts of Congress, see, e.g., Kilbourn v. Thompson, surpa; Dombrowski v. Eastland, supra, even when the Executive Branch is also involved, see, e.g., United States v. Brewster, supra; Gravel v. United States, supra.
13
Both before and after Barr, official immunity has been held applicable to officials of the Legislative Branch. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Dombrowski v. Eastland, supra.
14
For the authorization to supply sufficient copies for such distribution see 44 U.S.C. § 738. The Public Printer is also required to furnish the Department of State with 20 copies of all congressional documents and reports. § 715.
15
With respect to the District Columbia respondents, the Court of Appeals found that they were acting within the scope of their authority under applicable law and, as a result, were immune from suit. We do not disturb the judgment of the Court of Appeals in this respect.
16
We thus have no occasion to consider Art. I, § 5, cl. 3, which requires that 'Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . .'; nor need we deal with publications of the Judicial Branch and the legal immunities that may be attached thereto.
1
That Clause in relevant part provides: '(A)nd for any Speech or Debate in either House, (Senators and Representatives) shall not be questioned in any other Place.'
2
The Committee report was transmitted to the House by the Chairman of the Committee, was referred to the Calendar of the Committee of the Whole House on the State of the Union, and was ordered to be printed.
3
H.Res. 76, 91st Cong., 1st Sess., 115 Cong.Rec. 2784.
1
We are to read the Speech or Debate Clause 'broadly to effectuate its purposes.' United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966); Gravel v. United States, 408 U.S. 606, 624, 92 S.Ct. 2614, 2626, 33 L.Ed.2d 583 (1972). The 'central role' of the Clause is 'to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary,' Id., at 617, 92 S.Ct., at 2623. The breadth of coverage of the Speech or Debate Clause must be no less extensive than the legislative process it is designed to protect, for the Clause insures for Congress 'wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch,' Id., at 616, 92 S.Ct., at 2622, or I might suppose, from the judiciary.
2
'It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.' W. Wilson, Congressional Government 303 (1885).
3
Article I, § 8 reads in part as follows:
'The Congress shall have Power . . .
'To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States . . .'
4
House Res. 76, 91st Cong., 1st Sess., 115 Cong.Rec. 2784 (1969), authorized the Committee, 'as a whole or by subcommittee . . . to conduct a full and complete investigation' of the 'organization, management, operation, and administration of any department or agency,' and of 'any independent agency or instrumentality' of government in the District of Columbia.
5
116 Cong.Rec. 40311 (1970).
6
H.R.Rep.No.91—1681, p. 212 (1970).
7
The Court notes, supra, at 323, apparently in alleviation of its conclusion as to possible liability, that a specific statutory grant of immunity to the Public Printer and the Superintendent of Documents relieving them of personal liability for the distribution of an unprotected document has not been conferred. But it is not clear how, if liability otherwise exists, such a grant of immunity would shield these public servants in a case involving alleged constitutional violations. Thus, the Court has placed the Public Printer and Superintendent of Documents in the untenable position either of accepting the risk of personal liability, whenever a congressional document officially is printed and distributed, or of violating the specific command of a congressional resolution ordering the printing and distribution.
8
An interesting dilemma is presented by the possibility of an injunction against distribution where 'otherwise actionable' material is printed in the Congressional Record. The Court recognizes the existence of this problem and reserves its resolution for another day. Ante, at 325, n. 16. The Congressional Record, however, receives wide public distribution on a regular basis and it is not an uncommon occurrence for all or part of a committee report or other document to be read into the Record by a Member of Congress. In light of the Court's holding in this case, it is conceivable that, in lieu of separate publication as a committee document, a committee report containing possibly actionable material hereafter will be printed in the Record in order to effectuate public distribution. It appears to me almost beyond question that an injunction against the distribution of the Congressional Record is clearly precluded by the Speech or Debate Clause and by the Constitution's Art. I, § 5, cl. 3, providing that '(e)ach House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.'
9
Only last Term, in United States v. Brewster, 408 U.S. 501, 516—517, 92 S.Ct. 2531, 2539—2540, 33 L.Ed.2d 507 (1972), the Court emphasized that:
'In its narrowest scope, the (Speech or Debate) Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander and even destory others with impunity, but that was the conscious choice of the Framers.
'. . . The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process.'
10
I do not reach the question whether the withholding of information from the public with respect to matters being considered by elected representatives in any way diminishes protected First Amendment values.
11
'The premise that courts may refuse to enforce legislation they think unconstitutional does not support the conclusion that they may censor congressional language they think libelous. We have no more authority to prevent Congress, or a committee or public officer acting at the express direction of Congress, from publishing a document than to prevent them from publishing the Congressional Record. If it unfortunately happens that a document which Congress has ordered published contains statements that are erroneous and defamatory, and are made without allowing the persons affected an opportunity to be heard, this adds nothing to our authority. Only Congress can deal with such a problem.' Methodist Federation for Social Action v. Eastland, 141 F.Supp. 729, 731—732 (DC 1956 (three-judge court)).
| 78
|
412 U.S. 94
93 S.Ct. 2080
36 L.Ed.2d 772
COLUMBIA BROADCASTING SYSTEM, INC., Petitioner,v.DEMOCRATIC NATIONAL COMMITTEE. FEDERAL COMMUNICATIONS COMMISSION et al., Petitioners, v. BUSINESS EXECUTIVES' MOVE FOR VIETNAM PEACE et al. POST-NEWSWEEK STATIONS, CAPITAL AREA, INC., Petitioner, v. BUSINESS EXECUTIVES' MOVE FOR VIETNAM PEACE. AMERICAN BROADCASTING COMPANIES, INC., Petitioner, v. DEMOCRATIC NATIONAL COMMITTEE.
Nos. 71—863 to 71—866.
Argued Oct. 16, 1972.
Decided May 29, 1973.
Syllabus
The Democratic National Committee requested a declaratory ruling from the Federal Communications Commission (FCC) that the Communications Act or the First Amendment precluded a licensee from having a general policy of refusing to sell time to 'responsible entities' to present their views on public issues. The Business Executives' Move for Vietnam Peace filed a complaint with the FCC, alleging that a broadcaster had violated the First Amendment by refusing to sell it time to broadcast spot announcements expressing the group's views on the Vietnam conflict and that the station's coverage of antiwar views did not meet the requirements of the Fairness Doctrine. The FCC rejected the Fairness Doctrine challenge and ruled that a broadcaster was not prohibited from having a policy of refusing to accept paid editorial advertisements by individuals and organizations like respondents. The Court of Appeals reversed, holding that 'a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted,' and remanded the causes to the FCC to develop regulations governing which, and how many, editorial announcements would be aired. Held: Neither the Communications Act nor the First Amendment requires broadcasters to accept paid editorial advertisements. Pp. 101—114, 121—170.
146 U.S.App.D.C. 181, 450 F.2d 642, reversed.
Mr. Chief Justice BURGER delivered the opinion of the Court with respect to Parts I, II, and IV, finding that:
1
1. The basic criterion governing use of broadcast frequencies is the right of the public to be informed; the manner by which this interest is best served is dispositive of the respondents' statutory and First Amendment contentions. Pp. 101—114.
2
(a) In evaluating respondents' claims, great weight must be afforded the decisions of Congress and the experience of the FCC. Pp. 101—103.
3
(b) Congress has consistently rejected efforts to impose on broadcasters a 'common carrier' right of access for all persons wishing to speak out on public issues. Instead, it reposed in the FCC regulatory authority by which the Fairness Doctrine was evolved to require that the broadcaster's coverage of important public issues must be adequate and must fairly reflect differing viewpoints; thus, no private individual or group has a right to command the use of broadcast facilities. Pp. 103—114.
4
2. The 'public interest' standard of the Communications Act, which incorporates First Amendment principles, does not require broadcasters to accept editorial advertisements. Pp. 121—131.
5
(a) The FCC was justified in concluding that the public interest in having access to the marketplace of 'ideas and experiences' would not be served by ordering a right of access to advertising time. There is substantial risk that such a system would be monopolized by those who could and would pay the costs, that the effective operation of the Fairness Doctrine itself would be undermined, and that the public accountability which now rests with the broadcaster would be diluted. Pp. 121—125.
6
(b) The difficult problems involved in implementing an absolute right of access would inevitably implicate the FCC in a case-by-case determination of who should be heard and when, thus enlarging the involvement of the Government in broadcasting operations. The FCC could properly take into account the fact that listeners and viewers constitute a kind of 'captive audience' and that the public interest requires that a substantial degree of journalistic discretion must remain with broadcasters. Pp. 126 130.
7
THE CHIEF JUSTICE joined by Mr. Justice STEWART and Mr. Justice REHNQUIST, concluded, in Part III, that a broadcast licensee's refusal to accept a paid editorial advertisement does not constitute 'governmental action' for First Amendment purposes. The Government is neither a 'partner' to the action complained of nor engaged in a 'symbiotic relationship' with the licensee. Pp. 114—121.
8
(a) Under the Communications Act a broadcast licensee is vested with substantial journalistic discretion in deciding how to meet its statutory obligations as a 'public trustee.' Pp. 114—117.
9
(b) The licensee's policy against accepting editorial advertising is compatible with the Communications Act and with the broadcaster's obligation to provide a balanced treatment of controversial questions. Pp. 118—121.
10
(c) The FCC has not fostered the licensee policy against accepting editorial advertisements; it has merely declined to command acceptance because the subject was a matter within the area of journalistic discretion. P. 118.
11
Solicitor Gen. Erwin N. Griswold for the F.C.C., and others.
12
Ernest W. Jennes, Washington, D.C., for Post-Newsweek Stations, Capital Area, Inc.
13
J. Roger Wollenberg, Washington, D.C., for Columbia Broadcasting System, Inc.
14
Joseph A. Califano, Jr., Washington, D.C., for Democratic National Committee.
15
Thomas R. Asher, Washington, D.C., for Business Executives' Move for Vietnam Peace.
16
Vernon L. Wilkinson, Washington, D.C., for American Broadcasting Companies, Inc.
17
Mr. Chief Justice BURGER delivered the opinion of the Court (Parts I, II, and IV) together with an opinion (Part III), in which Mr. Justice STEWART and Mr. Justice REHNQUIST joined.
18
We granted the writs of certiorari in these cases to consider whether a broadcast licensee's general policy of not selling advertising time to individuals or groups wishing to speak out on issues they consider important violates the Federal Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq., or the First Amendment.
19
In two orders announced the same day, the Federal Communications, commission ruled that a broadcaster who meets his public obligation to provide full and fair coverage of public issues is not required to accept editorial advertisements. Democratic National Committee, 25 F.C.C.2d 216; Business Executives' Move for Vietnam Peace, 25 F.C.C.2d 242. A divided Court of Appeals reversed the Commission, holding that a broadcaster's fixed policy of refusing editorial advertisements violates the First Amendment; the court remanded the cases to the Commission to develop procedures and guidelines for administering a First Amendment right of access. Business Executives' Move For Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 450 F.2d 642 (1971).
20
The complainants in these actions are the Democratic National Committee (DNC) and the Business Executives' Move for Vietnam Peace (BEM), a national organization of businessmen opposed to United States involvement in the Vietnam conflict. In January 1970, BEM filed a complaint with the Commission charging that radio station WTOP in Washington, D.C., had refused to sell it time to broadcast a series of one-minute spot announcements expressing BEM views on Vietnam. WTOP, in common with many, but not all, broadcasters, followed a policy of refusing to sell time for spot announcements to individuals and groups who wished to expound their views on controversial issues. WTOP took the position that since it presented full and fair coverage of important public questions, including the Vietnam conflict, it was justified in refusing to accept editorial advertisements. WTOP also submitted evidence showing that the station had aired the views of critics of our Vietnam policy on numerous occasions. BEM challenged the fairness of WTOP's coverage of criticism of that policy, but it presented no evidence in support of that claim.
21
Four months later, in May 1970, DNC filed with the Commission a request for a declaratory ruling:
22
'That under the First Amendment to the Constitution and the Communications Act, a broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as the DNC, for the solicitation of funds and for comment on public issues.'
23
DNC claimed that it intended to purchase time from radio and television stations and from the national networks in order to present the views of the Democratic Party and to solicit funds. Unlike BEM, DNC did not object to the policies of any particular broadcaster but claimed that its prior 'experiences in this area make it clear that it will encounter considerable difficulty—if not total frustration of its efforts—in carrying out its plans in the event the Commission should decline to issue a ruling as requested.' DNC cited Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), as establishing a limited constitutional right of access to the airwaves.
24
In two separate opinions, the Commission rejected respondents' claims that 'responsible' individuals and groups have a right to purchase advertising time to comment on public issues without regard to whether the broadcaster has complied with the Fairness Doctrine. The Commission viewed the issue as one of major significance in administering the regulatory scheme relating to the electronic media, one going 'to the heart of the system of broadcasting which has developed in this country . . ..' 25 F.C.C.2d at 221. After reviewing the legislative history of the Communications Act, the provisions of the Act itself, the Commission's decisions under the Act, and the difficult problems inherent in administering a right of access, the Commission rejected the demands of BEM and DNC.
25
The Commission also rejected BEM's claim that WTOP had violated the Fairness Doctrine by failing to air views such as those held by members of BEM; the Commission pointed out that BEM had made only a 'general allegation' of unfairness in WTOP's coverage of the Vietnam conflict and that the station had adequately rebutted the charge by affidavit. The Commission did, however, uphold DNC's position that the statute recognized a right of political parties to purchase broadcast time for the purpose of soliciting funds. The Commission noted that Congress has accorded special consideration for access by political parties, see 47 U.S.C. § 315(a), and that solicitation of funds by political parties is both feasible and appropriate in the short space of time generally allotted to spot advertisements.1
26
A majority of the Court of Appeals reversed the Commission, holding that 'a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted.' 146 U.S.App.D.C., at 185, 450 F.2d, at 646. Recognizing that the broadcast frequencies are a scarce resource inherently unavailable to all, the court nevertheless concluded that the First Amendment mandated an 'abridgeable' right to present editorial advertisements. The court reasoned that a broadcaster's policy of airing commercial advertisements but not editorial advertisements constitutes unconstitutional discrimination. The court did not, however, order that either BEM's or DNC's proposed announcements must be accepted by the broadcasters; rather, it remanded the cases to the Commission to develop 'reasonable procedures and regulations determining which and how many 'editorial advertisements' will be put on the air.' Ibid.
27
Judge McGowan dissented; in his view, the First Amendment did not compel the Commission to undertake the task assigned to it by the majority:
28
'It is presently the obligation of a licensee to advance the public's right to know by devoting a substantial amount of time to the presentation of controversial views on issues of public importance, striking a balance which is always subject to redress by reference to the fairness doctrine. Failure to do so puts continuation of the license at risk—a sanction of tremendous potency, and one which the Commission is under increasing pressure to employ.
29
'This is the system which Congress has, wisely or not, provided as the alternative to public ownership and operation of radio and television communications facilities. This approach has never been thought to be other than within the permissible limits of constitutional choice.' 146 U.S.App.D.C., at 205, 450 F.2d, at 666.
30
Judge McGowan concluded that the court's decision to overrule the Commission and to remand for development and implementation of a constitutional right of access put the Commission in a 'constitutional straitjacket' on a highly complex and far-reaching issue.
31
* Mr. Justice White's opinion for the Court in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), makes clear that the broadcast media pose unique and special problems not present in the traditional free speech case. Unlike other media, broadcasting is subject to an inherent physical limitation. Broadcast frequencies are a scarce resource; they must be portioned out among applicants. All who possess the financial resources and the desire to communicate by television or radio cannot be satisfactorily accommodated. The Court spoke to this reality when, in Red Lion, we said 'it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.' Id., at 388, 89 S.Ct., at 1806.
32
Because the broadcast media utilize a valuable and limited public resource, there is also present an unusual order of First Amendment values. Red Lion discussed at length the application of the First Amendment to the broadcast media. In analyzing the broadcasters' claim that the Fairness Doctrine and two of its component rules violated their freedom of expression, we held that '(n)o one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because 'the public interest' requires it 'is not a denial of free speech." Id., at 389, 89 S.Ct., at 1806. Although the broadcaster is not without protection under the First Amendment, United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260 (1948), '(i)t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.' Red Lion, supra, at 390, 89 S.Ct., at 1806.
33
Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public's right to be informed is a task of a great delicacy and difficulty. The process must necessarily be undertaken within the framework of the regulatory scheme that has evolved over the course of the past half century. For, during that time, Congress and its chosen regulatory agency have established a delicately balanced system of regulation intended to serve the interests of all concerned. The problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded 10 years hence.
34
Thus, in evaluating the First Amendment claims of respondents, we must afford great weight to the decisions of Congress and the experience of the Commission. Professor Chafee aptly observed:
35
'Once we get away from the bare words of the (First) Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks.
36
The (First) Amendment should be interpreted so as not to cripple the regular work of the government. A part of this work is the regulation of interstate and foreign commerce, and this has come in our modern age to include the job of parceling out the air among broadcasters, which Congress has entrusted to the FCC. Therefore, every free-speech problem in the radio has to be considered with reference to the satisfactory performance of this job as well as to the value of open discussion. Although free speech should weigh heavily in the scale in the event of conflict, still the Commission should be given ample scope to do its job.' 2 Z. Chafee, Government and Mass Communications 640—641 (1947).
37
The judgment of the Legislative Branch cannot be ignored or undervalued simply because one segment of the broadcast constituency casts its claims under the umbrella of the First Amendment. That is not to say we 'defer' to the judgment of the Congress and the Commission on a constitutional question, or that we would hesitate to invoke the Constitution should we determine that the Commission has not fulfilled its task with appropriate sensitivity to the interests in free expression. The point is, rather, that when we face a complex problem with many hard questions and few easy answers we do well to pay careful attention to how the other branches of Government have addressed the same problem. Thus, before confronting the specific legal issues in these cases, we turn to an examination of the legislative and administrative development of our broadcast system over the last half century.
II
38
This Court has on numerous occasions recounted the origins of our modern system of broadcast regulation. See, e.g., Red Lion, supra, at 375—386, 89 S.Ct., at 1798—1805; National Broadcasting Co. v. United States, 319 U.S. 190, 210—217, 63 S.Ct. 997, 1006—1010, 87 L.Ed. 1344 (1943); FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 697, 84 L.Ed. 869 (1940); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137—138, 60 S.Ct. 437, 438—439, 84 L.Ed. 656 (1940). We have noted that prior to the passage of the Radio Act of 1927, 44 Stat. 1162, broadcasting was marked by chaos. The unregulated and burgeoning private use of the new media in the 1920's had resulted in an intolerable situation demanding congressional action:
39
'It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard.' Red Lion, supra, at 376, 89 S.Ct., at 1799.
40
But, once it was accepted that broadcasting was subject to regulation, Congress was confronted with a major dilemma: how to strike a proper balance between private and public control. Cf. Farmers Educational and Co-op. Union of America, North Dakota Division v. WDAY, Inc., 360 U.S. 525, 528, 79 S.Ct. 1302, 1304, 3 L.Ed.2d 1407 (1959).
41
One of the earliest and most frequently quoted statements of this dilemma is that of Herbert Hoover, when he was Secretary of Commerce. While his Department was making exploratory attempts to deal with the infant broadcasting industry in the early 1920's, he testified before a House Committee:
42
'We can not allow any single person or group to place themselves in (a) position where they can censor the material which shall be broadcasted to the public, nor do I believe that the Government should ever be placed in the position of censoring this material.' Hearings on H.R. 7357 before the House Committee on the Merchant Marine and Fisheries, 68th Cong., 1st Sess., 8 (1924).
43
That statement foreshadowed the 'tightrope' aspects of Government regulation of the broadcast media, a problem the Congress, the Commission, and the courts have struggled with ever since. Congress appears to have concluded, however, that of these two choices—private or official censorship—Government censorship would be the most pervasive, the most self-serving, the most difficult to restrain and hence the one most to be avoided.
44
The legislative history of the Radio Act of 1927, the model for our present statutory scheme, see FCC v. Pottsville Broadcasting Co., supra, 309 U.S., at 137, 60 S.Ct., at 438, reveals that in the area of discussion of public issues Congress chose to leave broad journalistic discretion with the licensee. Congress specifically dealt with—and firmly rejected—the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues. Some members of Congress—those whose views were ultimately rejected strenuously objected to the unregulated power of broadcasters to reject applications for service. See, e.g., H.R.Rep.No.404, 69th Cong., 1st Sess., 18 (minority report). They regarded the exercise of such power to be 'private censor ship,' which should be controlled by treating broadcasters as public ulilities.2 The provision that came closest to imposing an unlimited right of access to broadcast time was part of the bill reported to the Senate by the Committee on Interstate Commerce. The bill that emerged from the Committee contained the following provision:
45
'(I)f any licensee shall permit a broadcasting station to be used . . . by a candidate or candidates for any public office, or for the discussion of any question affecting the public, he shall make no discrimination as to the use of such broadcasting station, and with respect to said matters the licensee shall be deemed a common carrier in interstate commerce: Provided, that such licensee shall have no power to censor the material broadcast.' 67 Cong.Rec. 12503 (1926) (emphasis added).
46
When the bill came to the Senate floor, the principal architect of the Radio Act of 1927, Senator Dill, offered an amendment to the provision to eliminate the common carrier obligation and to restrict the right of access to candidates for public office. Senator Dill explained the need for the amendment:
47
'When we recall that broadcasting today is purely voluntary, and the listener-in pays nothing for it, that the broadcaster gives it for the purpose of building up his reputation, it seemed unwise to put the broadcaster under the hampering control of being a common carrier and compelled to accept anything and everything that was offered him so long as the price was paid.' 67 Cong.Rec. 12502.
48
The Senators were also sensitive to the problems involved in legislating 'equal opportunities' with respect to the discussion of public issues. Senator Dill stated:
49
'('Public questions') is such a general term that there is probably no question of any interest whatsoever that could be discussed but that the other side of it could demand time; and thus a radio station would be placed in the position that the Senator from Iowa mentions about candidates, namely, that they would have to give all their time to that kind of discussion, or no public question could be discussed.' Id., at 12504.
50
The Senate adopted Senator Dill's amendment. The provision finally enacted, § 18 of the Radio Act of 1927, 44 Stat. 1170, was later re-enacted as § 315(a) of the Communications Act of 1934,3 but only after Congress rejected another proposal that would have imposed a limited obligation on broadcasters to turn over their microphones to persons wishing to speak out on certain public issues.4 Instead, Congress after prolonged consideration adopted § 3(h), which specifically provides that 'a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.'5
51
Other provisions of the 1934 Act also evince a legislative desire to preserve values of private journalism under a regulatory scheme which would insure fulfillment of certain public obligations. Although the Commission was given the authority to issue renewable three-year licenses to broadcasters6 and to promulgate rules and regulations governing the use of those licenses,7 both consistent with the 'public convenience, interest, or necessity,' § 326 of the Act specifically provides that:
52
'Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.' 47 U.S.C. § 326.
53
From these provisions it seems clear that Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations. Only when the interests of the public are found to outweigh the private journalistic interests of the broadcasters will government power be asserted within the framework of the Act. License renewal proceedings, in which the listening public can be heard, are a principal means of such regulation. See Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966), and 138 U.S.App.D.C. 112, 425 F.2d 543 (1969).
54
Subsequent developments in broadcast regulation illustrate how this regulatory scheme has evolved. Of particular importance, in light of Congress' flat refusal to impose a 'common carrier' right of access for all persons wishing to speak out on public issues, is the Commission's 'Fairness Doctrine,' which evolved gradually over the years spanning federal regulation of the broadcast media.8 Formulated under the Commission's power to issue regulations consistent with the 'public interest,' the doctrine imposes two affirmative responsibilities on the broadcaster: coverage of issues of public importance must be adequate and must fairly reflect differing viewpoints. See Red Lion, 395 U.S., at 377, 89 S.Ct., at 1799. In fulfilling the Fairness Doctrine obligations, the broadcaster must provide free time for the presentation of opposing views if a paid sponsor is unavailable, Cullman Broadcasting Co., 25 P & F Radio Reg. 895 (1963), and it must initiate programming on public issues if no one else seeks to do so. See John J. Dempsey, 6 P & F Radio Reg. 615 (1950); Red Lion, supra, 395 U.S., at 378, 89 S.Ct., at 1800.
55
Since it is physically impossible to provide time for all viewpoints, however, the right to exercise editorial judgment was granted to the broadcaster. The broadcaster, therefore, is allowed significant journalistic discretion in deciding how best to fulfill its Fairness Doctrine obligations,9 although that discretion is bounded by rules designed to assure that the public interest in fairness is furthered. In its decision in the instant cases, the Commission described the boundaries as follows:
56
'The most basic consideration in this respect is that the licensee cannot rule off the air coverage of important issues or views because of his private ends or beliefs. As a public trustee, he must present representative community views and voices on controversial issues which are of importance to his listeners. . . . This means also that some of the voices must be partisan. A licensee policy of excluding partisan voices and always itself presenting views in a bland, inoffensive manner would run counter to the 'profound national commitment that debate on public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, 376 U.S. 254, 270 (84 S.Ct. 710, 11 L.Ed.2d 686) (1964); see also Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 392 (n. 18) (89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) . . ..' 25 F.C.C.2d, at 222—223.
57
Thus, under the Fairness Doctrine broadcasters are responsible for providing the listening and viewing public with access to a balanced presentation of information on issues of public importance.10 The basic principle underlying that responsibility is 'the right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter . . ..' Report of Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949). Consistent with that philosophy, the Commission on several occasions has ruled that no private individual or group has a right to command the use of broadcast facilities.11 See, e.g., Dowie A. Crittenden, 18 F.C.C.2d 499 (1969); Margaret Z. Scherbina, 21 F.C.C.2d 141 (1969); Boalt Hall Student Assn., 20 F.C.C.2d 612 (1969); Madalyn Murray, 40 F.C.C. 647 (1965); Democratic State Central Committee of California, 19 F.C.C.2d 833 (1968); U.S. Broadcasting Corp., 2 F.C.C. 208 (1935). Congress has not yet seen fit to alter that policy, although since 1934 it has amended the Act on several occasions12 and considered various proposals that would have vested private individuals with a right of access.13
58
With this background in mind, we next proceed to consider whether a broadcaster's refusal to accept editorial advertisements is governmental action violative of the First Amendment.
III
59
That 'Congress shall make no law . . . abridging the freedom of speech, or of the press' is a restraint on government action, not that of private persons. Public Utilities Comm'n v. Pollak, 343 U.S. 451, 461, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952). The Court has not previously considered whether the action of a broadcast licensee such as that challenged here is 'governmental action' for purposes of the First Amendment. The holding under review thus presents a novel question, and one with far-reaching implications. See Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fair ness and Access, 85 Harv.L.Rev. 768, 782—787 (1972).
60
The Court of Appeals held that broadcasters are instrumentalities of the Government for First Amendment purposes, relying on the thesis, familiar in other contexts, that broadcast licensees are granted use of part of the public domain and are regulated as 'proxies' or "fiduciaries' of the people.' 146 U.S.App.D.C., at 191, 450 F.2d, at 652. These characterizations are not without validity for some purposes, but they do not resolve the sensitive constitutional issues inherent in deciding whether a particular licensee action is subject to First Amendment restraints.14
61
In dealing with the broadcast media, as in other contexts, the line between private conduct and governmental action cannot be defined by reference to any general formula unrelated to particular exercises of governmental authority. When governmental action is alleged there must be cautious analysis of the quality and degree of Government relationship to the particular acts in question. '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, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).
62
In deciding whether the First Amendment encompasses the conduct challenged here, it must be kept in mind that we are dealing with a vital part of our system of communication. The electronic media have swiftly become a major factor in the dissemination of ideas and information. More than 7,000 licensed broadcast stations undertake to perform this important function. To a large extent they share with the printed media the role of keeping people informed.
63
As we have seen, with the advent of radio a half century ago, Congress was faced with a fundamental choice between total Government ownership and control of the new medium—the choice of most other countries—or some other alternative. Long before the impact and potential of the medium was realized, Congress opted for a system of private broadcasters licensed and regulated by Government. The legislative history suggests that this choice was influenced not only by traditional attitudes toward private enterprise, but by a desire to maintain for licensees, so far as consistent with necessary regulation, a traditional journalistic role. The historic aversion to censorship led Congress to enact § 326 of the Act, which explicitly prohibits the Commission from interfering with the exercise of free speech over the broadcast frequencies. Congress pointedly refrained from divesting broadcasters of their control over the selection of voices; § 3(h) of the Act stands as a firm congressional statement that broadcast licensees are not to be treated as common carriers, obliged to accept whatever is tendered by members of the public. Both these provisions clearly manifest the intention of Congress to maintain a substantial measure of journalistic independence for the broadcast licensee.15
64
The regulatory scheme evolved slowly, but very early the licensee's role developed in terms of a 'public trustee' charged with the duty of fairly and impartially informing the public audience. In this structure the Commission acts in essence as an 'overseer,' but the initial and primary responsibility for fairness, balance, and objectivity rests with the licensee. This role of the Government as an 'overseer' and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic 'free agent' call for a delicate balancing of competing interests. The maintenance of this balance for more than 40 years has called on both the regulators and the licensees to walk a 'tightrope' to preserve the First Amendment values written into the Radio Act and its successor, the Communications Act.
65
The tensions inherent in such a regulatory structure emerge more clearly when we compare a private newspaper with a broadcast licensee. The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers and hence advertisers—to assure financial success; and, second, the journalistic integrity of its editors and publishers. A broadcast licensee has a large measure of journalistic freedom but not as large as that exercised by a newspaper. A licensee must balance what it might prefer to do as a private entrepreneur with what it is required to do as a 'public trustee.' To perform its statutory duties, the Commission must oversee without censoring. This suggests something of the difficulty and delicacy of administering the Communications Act—a function calling for flexibility and the capacity to adjust and readjust the regulatory mechanism to meet changing problems and needs.
66
The licensee policy challenged in this case is intimately related to the journalistic role of a licensee for which it has been given initial and primary responsibility by Congress. The licensee's policy against accepting editorial advertising cannot be examined as an abstract proposition, but must be viewed in the context of its journalistic role. It does not help to press on us the idea that editorial ads are 'like' commercial ads, for the licensee's policy against editorial spot ads is expressly based on a journalistic judgment that 10- to 60-second spot announcements are ill-suited to intelligible and intelligent treatment of public issues; the broadcaster has chosen to provide a balanced treatment of controversial questions in a more comprehensive form. Obviously the licensee's evaluation is based on its own journalistic judgment of priorities and newsworthiness.
67
Moreover, the Commission has not fostered the licensee policy challenged here; it has simply declined to command particular action because it fell within the area of journalistic discretion. The Commission explicitly emphasized that 'there is of course no Commission policy thwarting the sale of time to comment on public issues.' 25 F.C.C.2d, at 226. The Commission's reasoning, consistent with nearly 40 years of precedent, is that so long as a licensee meets its 'public trustee' obligation to provide balanced coverage of issues and events, it has broad discretion to decide how that obligation will be met. We do not reach the question whether the First Amendment or the Act can be read to preclude the Commission from determining that in some situations the public interest requires licensees to re-examine their policies with respect to editorial advertisements. The Commission has not yet made such a determination; it has, for the present at least, found the policy to be within the sphere of journalistic discretion which Congress has left with the licensee.
68
Thus, it cannot be said that the Government is a 'partner' to the action of the broadcast licensee complained of here, nor is it engaged in a 'symbiotic relationship' with the licensee, profiting from the invidious discrimination of its proxy. Compare Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 174—177, 92 S.Ct. 1965, 1972 1973, 32 L.Ed.2d 627 (1972), with Burton v. Wilmington Parking Authority, 365 U.S., at 723—724, 81 S.Ct., at 860—861. The First Amendment does not reach acts of private parties in every instance where the Congress or the Commission has merely permitted or failed to prohibit such acts.
69
Our conclusion is not altered merely because the Commission rejected the claims of BEM and DNC and concluded that the challenged licensee policy is not inconsistent with the public interest. It is true that in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952), we found governmental action sufficient to trigger First Amendment protections in a record involving agency approval of the conduct of a public utility. Though we held that the decision of a District of Columbia bus company to install radio receives in its public buses was within the reach of the First Amendment, there Congress had expressly authorized the agency to undertake plenary intervention into the affairs of the carrier and it was pursuant to that authorization that the agency investigated the challenged policy and approved it on public interest standards. Id., at 462, 72 S.Ct. at 820.
70
Here, Congress has not established a regulatory scheme for broadcast licensees as pervasive as the regulation of public transportation in Pollak. More important, as we have noted, Congress has affirmatively indicated in the Communications Act that certain journalistic decisions are for the licensee, subject only to the restrictions imposed by evaluation of its overall performance under the public interest standard. In Pollak there was no suggestion that Congress had considered worthy of protection the carrier's interest in exercising discretion over the content of communications forced on passengers. A more basic distinction, perhaps, between Pollak and this case is that Pollak was concerned with a transportation utility that itself derives no protection from the First Amendment. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260 (1948).
71
Were we to read the First Amendment to spell out governmental action in the circumstances presented here, few licensee decisions on the content of broadcasts or the processes of editorial evaluation would escape constitutional scrutiny. In this sensitive area so sweeping a concept of governmental action would go far in practical effect to undermine nearly a half century of unmistakable congressional purpose to maintain—no matter how difficult the task—essentially private broadcast journalism held only broadly accountable to public interest standards. To do this Congress, and the Commission as its agent, must remain in a posture of flexibility to chart a workable 'middle course' in its quest to preserve a balance between the essential public accountability and the desired private control of the media.
72
More profoundly, it would be anomaglous for us to hold, in the name of promoting the constitutional guarantees of free expression, that the day-to-day editorial decisions of broadcast licensees are subject to the kind of restraints urged by respondents. To do so in the name of the First Amendment would be a contradiction. Journalistic discretion would in many ways be lost to the rigid limitations that the First Amendment impsoes on Government. Application of such standards to broadcast licensees would be antithetical to the very ideal of vigorous, challenging debate on issues of public interest. Every licensee is already held accountable for the totality of its performance of public interest obligations.
73
The concept of private, independent broadcast journalism, regulated by Government to assure protection of the public interest, has evolved slowly and cautiously over more than 40 years and has been nurtured by processes of adjudication. That concept of journalistic independence could not co-exist with a reading of the challenged conduct of the licensee as governmental action. Nor could it exist without administrative flexibility to meet changing needs and swift technological developments. We therefore conclude that the policies complained of do not constitute governmental action violative of the First Amendment. See McIntire v. William Penn Broadcasting Co., 151 F.2d 597, 601 (CA3 1945), cert. denied, 327 U.S. 779, 66 S.Ct. 530, 90 L.Ed. 1007 (1946); Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (CA1 1950); Post v. Payton, 323 F.Supp. 799, 803 (E.D.N.Y.1971).
IV
74
There remains for consideration the question whether the 'public interest' standard of the Communications Act requires broadcasters to accept editorial advertisements or, whether, assuming governmental action, broadcasters are required to do so by reason of the First Amendment. In resolving those issues, we are guided by the 'venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . ..' Red Lion, 395 U.S., at 381, 89 S.Ct., at 1802. Whether there are 'compelling indications' of error in these cases must be answered by a careful evaluation of the Commission's reasoning in light of the policies embodied by Congress in the 'public interest' standard of the Act. Many of those policies, as the legislative history makes clear, were drawn from the First Amendment itself; the 'public interest' standard necessarily invites reference to First Amendment principles. Thus, the question before us is whether the various interests in free expression of the public, the broadcaster, and the individuals require broadcasters to sell commercial time to persons wishing to discuss controversial issues. In resolving that issue it must constantly be kept in mind that the interest of the public is our foremost concern. With broadcasting, where the available means of communication are limited in both space and time, the admonition of Professor Alexander Meiklejohn that '(w)hat is essential is not that everyone shall speak, but that everything worth saying shall be said' is peculiarly appropriate. Political Freedom 26 (1948).
75
At the outset we reiterate what was made clear earlier that nothing in the language of the Communications Act or its legislative history compels a conclusion different from that reached by the Commission. As we have seen, Congress has time and again rejected various legislative attempts that would have mandated a variety of forms of individual access. That is not to say that Congress' rejection of such proposals must be taken to mean that Congress is opposed to private rights of access under all circumstances. Rather, the point is that Congress has chosen to leave such questions with the Commission, to which it has given the flexibility to experiment with new ideas as changing conditions require. In this case, the Commission has decided that on balance the undesirable effects of the right of access urged by respondents would outweigh the asserted benefits. The Court of Appeals failed to give due weight to the Commission's judgment on these matters.
76
The Commission was justified in concluding that the public interest in providing access to the marketplace of 'ideas and experiences' would scarcely be served by a system so heavily weighted in favor of the financially affluent, or those with access to wealth. Cf. Red Lion, supra, at 392, 89 S.Ct., at 1807. Even under a first-come-first-served system, proposed by the dissenting Commissioner in these cases,16 the views of the affluent could well prevail over those of others, since they would have it within their power to purchase time more frequently. Moreover, there is the substantial danger, as the Court of Appeals acknowledged, 146 U.S.App.D.C., at 203, 450 F.2d, at 664, that the time allotted for editorial advertising could be monopolized by those of one political persuasion.
77
These problems would not necessarily be solved by applying the Fairness Doctrine, including the Cullman doctrine, to editorial advertising. If broadcasters were required to provide time, free when necessary, for the discussion of the various shades of opinion on the issue discussed in the advertisement, the affluent could still determine in large part the issues to be discussed. Thus, the very premise of the Court of Appeals' holding that a right of access is necessary to allow individuals and groups the opportunity for self-initiated speech—would have little meaning to those who could not afford to purchase time in the first instance.17
78
If the Fairness Doctrine were applied to editorial advertising, there is also the substantial danger that the effective operation of that doctrine would be jeopardized. To minimize financial hardship and to comply fully with its public responsibilities a broadcaster might well be forced to make regular programming time available to those holding a view different from that expressed in an editorial advertisement; indeed, BEM has suggested as much in its brief. The result would be a further erosion of the journalistic discretion of brodcasters in the coverage of public issues, and a transfer of control over the treatment of public issues from the licensees who are accountable for broadcast performance to private individuals who are not. The public interest would no longer be 'paramount' but, rather, subordinate to private whim especially since, under the Court of Appeals' decision, a broadcaster would be largely precluded from rejecting editorial advertisements that dealt with matters trivial or insignificant or already fairly covered by the broadcaster. 146 U.S.App.D.C., at 196 n. 36, 197, 450 F.2d, at 657 n. 36, 658. If the Fairness Doctrine and the Cullman doctrine were suspended to alleviate these problems, as respondents suggest might be appropriate, the question arises whether we would have abandoned more than we have gained. Under such a regime the congressional objective of balanced coverage of public issues would be seriously threatened.
79
Nor can we accept the Court of Appeals's view that every potential speaker is 'the best judge' of what the listening public ought to hear or indeed the best judge of the merits of his or her views. All journalistic tradition and experience is to the contrary. For better or worse, editing is what editors are for; and editing is selection and choice of material. That editors newspaper or broadcast—can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress provided. Calculated risks of abuse are taken in order to preserve higher values. The presence of these risks is nothing new; the authors of the Bill of Rights accepted the reality that these risks were evils for which there was no acceptable remedy other than a spirit of moderation and a sense of responsibility and civility—on the part of those who exercise the guaranteed freedoms of expression.
80
It was reasonable for Congress to conclude that the public interest in being informed requires periodic accountability on the part of those who are entrusted with the use of broadcast frequencies, scarce as they are. In the delicate balancing historically followed in the regulation of broadcasting Congress and the Commission could appropriately conclude that the allocation of journalistic priorities should be concentrated in the licensee rather than diffused among many. This policy gives the public some assurance that the broadcaster will be answerable if he fails to meet its legitimate needs. No such accountability attaches to the private individual, whose only qualifications for using the broadcast facility may be abundant funds and a point of view. To agree that debate on public issues should be 'robust, and wide-open' does not mean that we should exchange 'public trustee' broadcasting, with all its limitations, for a system of self-appointed editorial commentators.
81
The Court of Appeals discounted those difficulties by stressing that it was merely mandating a 'modest reform,' requiring only that broadcasers be required to accept some editorial advertising. 146 U.S.App.D.C., at 202, 203, 450 F.2d, at 663. The court suggested that broadcasters could place an 'outside limit on the total amount of editorial advertising they will sell' and that the Commission and the broadcasters could develop "reasonable regulations' designed to prevent domination by a few groups or a few viewpoints.' Id., at 202, 203, 450 F.2d, at 663, 664. If the Commission decided to apply the Fairness Doctrine to editorial advertisements and as a result broadcasters suffered financial harm, the court thought the 'Commission could make necessary adjustments.' Id., at 203, 450 F.2d, at 664. Thus, without providing any specific answers to the substantial objections raised by the Commission and the broadcasters, other than to express repeatedly its 'confidence' in the Commission's ability to overcome any difficulties, the court remanded the cases to the Commission for the development of regulations to implement a constitutional right of access.
82
By minimizing the difficult problems involved in implementing such a right of access, the Court of Appeals failed to come to grips with another problem of critical importance to broadcast regulation and the First Amendment—the risk of an enlargement of Government control over the content of broadcast discussion of public issues. See, e.g., Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280 (1951). This risk is inherent in the Court of Appeals' remand requiring regulations and procedures to sort out requests to be heard—a process involving the very editing that licensees now perform as to regular programming. Although the use of a public resource by the broadcast media permits a limited degree of Government surveillance, as is not true with respect to private media, see National Broadcasting Co. v. United States, 319 U.S., at 216—219, 63 S.Ct., at 1009—1011, the Government's power over licensees, as we have noted, is by no means absolute and is carefully circumscribed by the Act itself.18
83
Under a constitutionally commanded and Government supervised right-of-access system urged by respondents and mandated by the Court of Appeals, the Commission would be required to oversee far more of the day-to-day operations of broadcasters' conduct, deciding such questions as whether a particular individual or group has had sufficient opportunity to present its viewpoint and whether a particular viewpoint has already been sufficiently aired. Regimenting broadcasters is too radical a therapy for the ailment respondents complain of.
84
Under the Fairness Doctrine the Commission's responsibility is to judge whether a licensee's overall performance indicates a sustained good-faith effort to meet the public interest in being fully and fairly informed.19 The Commission's responsibilities under a right-of-access system would tend to draw it into a continuing case-by-case determination of who should be heard and when. Indeed, the likelihood of Government involvement is so great that it has been suggested that the accepted constitutional principles against control of speech content would need to be relaxed with respect to editorial advertisements.20 To sacrifice First Amendment protections for so speculative a gain is not warranted, and it was well within the Commission's discretion to construe the Act so as to avoid such a result.21
85
The Commission is also entitled to take into account the reality that in a very real sense listeners and viewers constitute a 'captive audience.' Cf. Public Utilities Comm'n v. Pollak, 343 U.S., at 463, 72 S.Ct., at 821; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). The 'captive' nature of the broadcast cast audience was recognized as early as 1924, when Commerce Secretary Hoover remarked at the Fourth National Radio Conference that 'the radio listener does not have the same option that the reader of publications has—to ignore advertising in which he is not interested—and he may resent its invasion of his set.'22 As the broadcast media became more pervasive in our society, the problem has become more acute. In a recent decision upholding the Commission's power to promulgate rules regarding cigarette advertising, Judge Bazelon, writing for a unanimous Court of Appeals, noted some of the effects of the ubiquitous commercial:
86
'Written messages are not communicated unless they are read, and reading requires an affirmative act. Broadcast messages, in contrast, are 'in the air.' In an age of omnipresent radio, there scarcely breathes a citizen who does not know some part of a leading cigarette jingle by heart. Similarly, an ordinary habitual television watcher can avoid these commercials only by frequently leaving the room, changing the channel, or doing some other such affirmative act. It is difficult to calculate the subliminal impact of this pervasive propaganda, which may be heard even if not listened to, but it may reasonably be thought greater than the impact of the written word.' Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32 33, 405 F.2d 1082, 1100—1101 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).
87
It is no answer to say that because we tolerate pervasive commercial advertisements we can also live with its political counterparts.
88
The rationale for the Court of Appeals' decision imposing a constitutional right of access on the broadcast media was that the licensee impermissibly discriminates by accepting commercial advertisements while refusing editorial advertisements. The court relied on decisions holding that state-supported school newspapers and public transit companies were prohibited by the First Amendment from excluding controversial editorial advertisements in favor of commercial advertisements.23 The court also attempted to analogize this case to some of our decisions holding that States may not constitutionally ban certain protected speech while at the same time permitting other speech in public areas. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280 (1951). This theme of 'invidious discrimination' against protected speech is echoed in the briefs of BEM and DNC to this Court. Respondents also rely on our recent decisions in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), and Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), where we held unconstitutional city ordinances that permitted 'peaceful picketing of any school involved in a labor dispute,' Id., at 93, 92 S.Ct., at 2288, but prohibited demonstrations for any other purposes on the streets and sidewalks within 150 feet of the school.
89
Those decisions provide little guidance, however, in resolving the question whether the First Amendment requires the Commission to mandate a private right of access to the broadcast media. In none of those cases did the forum sought for expression have an affirmative and independent statutory obligation to provide full and fair coverage of public issues, such as Congress has imposed on all broadcast licensees. In short, there is no 'discrimination' against controversial speech present in this case. The question here is not whether there is to be discussion of controversial issues of public importance on the broadcast media, but rather who shall determine what issues are to be discussed by whom, and when.
90
The opinion of the Court of Appeals asserted that the Fairness Doctrine, insofar as it allows broadcasters to exercise certain journalistic judgments over the discussion of public issues, is inadequate to meet the public's interest in being informed. The present system, the court held, 'conforms . . . to a paternalistic structure in which licensees and bureaucrats decide what issues are 'important,' and how 'fully' to cover them, and the format, time and style of the coverage.' 146 U.S.App.D.C., at 195, 450 F.2d, at 656. The forced sale of advertising time for editorial spot announcements would, according to the Court of Appeals majority, remedy this deficiency. That conclusion was premised on the notion that advertising time, as opposed to programming time, involves a 'special and separate mode of expression' because advertising content, unlike programming content, is generally prepared and edited by the advertiser. Thus, that court concluded, a broadcaster's policy against using advertising time for editorial messages 'may well ignore opportunities to enliven and enrich the public's overall information.' Id., at 197, 450 F.2d, at 658. The Court of Appeals' holding would serve to transfer a large share of responsibility for balanced broadcasting from an identifiable, regulated entity the licensee—to unregulated speakers who could afford the cost.
91
We reject the suggestion that the Fairness Doctrine permits broadcasters to preside over a 'paternalistic' regime. See Red Lion, 395 U.S., at 390, 89 S.Ct., at 1806. That doctrine admittedly has not always brought to the public perfect or, indeed, even consistently high-quality treatment of all public events and issues; but the remedy does not lie in diluting licensee responsibility. The Commission stressed that, while the licensee has discretion in fulfilling his obligations under the Fairness Doctrine, he is required to 'present representative community views and voices on controversial issues which are of importance to (its) listeners,' and it is prohibited from 'excluding partisan voices and always itself presenting views in a bland, inoffensive manner . . ..' 25 F.C.C.2d, at 222. A broadcaster neglects that obligation only at the risk of losing his license.
92
Conceivably at some future date Congress or the Commission—or the broadcasters—may devise some kind of limited right of access that is both practicable and desirable. Indeed, the Commission noted in these proceedings that the advent of cable television will afford increased opportunities for the discussion of public issues. In its proposed rules on cable television the Commission has provided that cable systems in major television markets
93
'shall maintain at least one specially designated, noncommercial public access channel available on a first-come, nondiscriminatory basis. The system shall maintain and have available for public use at least the minimal equipment and facilities necessary for the production of programming for such a channel.' 37 Fed.Reg. 3289, § 76.251(a)(4).
94
For the present, the Commission is conducting a wide ranging study into the effectiveness of the Fairness Doctrine to see what needs to be done to improve the coverage and presentation of public issues on the broadcast media. Notice of Inquiry in Docket 19260, 30 F.C.C.2d 26, 36 Fed.Reg. 11825. Among other things, the study will attempt to determine whether 'there is any feasible method of providing access for discussion of public issues outside the requirements of the fairness doctrine.' 30 F.C.C.2d, at 33. The Commission made it clear, however, that it does not intend to discard the Fairness, Doctrine or to require broadcasters to accept all private demands for air time.24 The Commission's inquiry on this score was announced prior to the decision of the Court of Appeals in this case and hearings are under way.
95
The problems perceived by the Court of Appeals majority are by no means new; as we have seen, the history of the Communications Act and the activities of the Commission over a period of 40 years reflect a continuing search for means to achieve reasonable regulation compatible with the First Amendment rights of the public and the licensees. The Commission's pending hearings are but one step in this continuing process. At the very least, courts should not freeze this necessarily dynamic process into a constitutional holding. See American Commercial Lines, Inc. v. Louisville & N.R. Co., 392 U.S. 571, 590—593, 88 S.Ct. 2105, 2115—2117, 20 L.Ed.2d 1289 (1968).
96
The judgment of the Court of Appeals is reversed.
97
Reversed.
98
Mr. Justice STEWART, concurring.
99
While I join Parts I and II of the Court's opinion, and the opinion in Part III, my views closely approach those expressed by Mr. Justice DOUGLAS concurring in the judgment.
100
The First Amendment prohibits the Government from imposing controls upon the press.1 Private broadcasters are surely part of the press. United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260. Yet here the Court of Appeals held, and the dissenters today agree, that the First Amendment requires the Government to impose controls upon private broadcasters—in order to preserve First Amendment 'values.' The appellate court accomplished this strange convolution by the simple device of holding that private broadcasters are Government. This is a step along a path that could eventually lead to the proposition that private newspapers 'are' Government. Freedom of the press would then be gone. In its place we would have such governmental controls upon the press as a majority of this Court at any particular moment might consider First Amendment 'values' to require. It is a frightening specter.
101
* There is some first blush appeal in seeking out analogies from areas of the law where governmental involvement on the part of otherwise private parties has led the Court to hold that certain activities of those parties were tantamount to governmental action.2 The evolution of the 'state action' concept under the Fourteenth Amendment is one available analogy.3 Another is the decision of this Court in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068, where a policy of a privately owned but publicly regulated bus company that had been approved by the regulatory commission was held to activate First Amendment review. The First Amendment has also been held applicable where private parties control essentially public forums. Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; cf. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131.
102
The problem before us, however, is too complex to admit of solution by simply analogizing to cases in very different areas. For we deal here with the electronic press, that is itself protected from Government by the First Amendment.4 Before woodenly accepting analogies from cases dealing with quasi-public racial discrimination, regulated industries other than the press, or 'company towns,' we must look more closely at the structure of broadcasting and the limits of governmental regulation of licensees.
103
When Congress enacted the Radio Act of 1927, 44 Stat. 1162, and followed it with the Federal Communications Act of 1934, 48 Stat. 1064, 47 U.S.C. § 151 et seq., it was responding to a then-evident need to regulate access to the public airwaves. Not every member of the public could broadcast over the air as he chose, since the scarcity of frequencies made this a sure road to chaos.5 The system selected by the Congress was a hybrid. The Federal Radio Commission (succeeded by the Federal Communications Commission), was to license broadcasters for no more than three-year periods. 47 U.S.C. § 307(d). The licensees, though subject to some public regulation, were to be private companies.
104
Scarcity meant more than a need to limit access. Because access was to be limited, it was thought necessary for the regulatory apparatus to take into account the public interest in obtaining 'the best practicable service to the community reached by his (the licensee's) broadcasts.' FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 697, 84 L.Ed. 869. Public regulation has not, then, been merely a matter of electromagnetic engineering for the sake of keeping signals clear. It has also included some regulation of programming. Writing in defense of Commission regulations regarding chain broadcasting, Mr. Justice Frankfurter said: 'These provisions (of the Act), individually and in the aggregate, preclude the notion that the Commission is empowered to deal only with technical and engineering impediments to the 'larger and more effective use of radio in the public interest." National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1010, 87 L.Ed. 1344.
105
Over time, federal regulation of broadcasting in the public interest has been extensive, and, pro tanto, has rightly or wrongly been held to be tolerable under the First Amendment. We now have the Fairness Doctrine, with its personal-attack, editorial-reply, and fair-coverage-of-controversial-issue requirements.6 In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371, this Doctrine was held to constitute permissible governmental regulation of broadcasters, despite the First Amendment. The Court said:
106
'Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.
107
'. . . Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.' Id., at 388, 390, 89 S.Ct. at 1806.
108
The Fairness Doctrine has been held applicable to paid advertising as well as to other programming, Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082. And the public interest in broadcasting has been recognized as a rationale for liberalized standing on the part of listener groups in Commission licensing proceedings. Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994.
109
Throughout this long history of regulation, however, it has been recognized that broadcasters retain important freedoms, and that the Commission's regulatory power has limits. Quite apart from what may be required by the First Amendment itself, the regulatory legislation makes clear what some of these freedoms are. Section 3(h) of the Act, 47 U.S.C. § 153(h), provides that broadcasters are not to be treated as common carriers. Were broadcasters common carriers within the meaning of the Act, they would be subject to 47 U.S.C. §§ 201, 202. Section 201 provides, in pertinent part, that:
110
'(a) It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor . . ..'
Section 202 provides that:
111
'(a) It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.'
112
The Act also specifically gives licensees 'freedom of speech':
113
'Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.' 47 U.S.C. § 326.
114
Thus, when examined as a whole, the Federal Communications Act establishes a system of privately owned broadcast licensees. These licensees, though regulated by the Commission under a fairly broad 'public interest' standard, have, quite apart from whatever additional protections the First Amendment may provide, important statutory freedoms in conducting their programming.
115
In Red Lion, supra, this Court held that, despite the First Amendment, the Commission may impose a so-called Fairness Doctrine upon broadcasters, requiring them to present balanced coverage of various and conflicting views on issues of public importance. I agreed with the Court in Red Lion, although with considerable doubt, because I thought that that much Government regulation of program content was within the outer limits of First Amendment tolerability. Were the Commission to require broadcasters to accept some amount of editorial advertising as part of the public interest mandate upon which their licenses are conditional, the issue before us would be in the same posture as was the Fairness Doctrine itself in Red Lion, and we would have to determine whether this additional governmental control of broadcasters was consistent with the statute and tolerable under the First Amendment. Here, however, the Commission imposed no such requirement, but left private broadcasters free to accept or reject such advertising as they saw fit. The Court of Appeals held that the First Amendment compels the Commission to require broadcasters to accept such advertising, because it equated broadcaster action with governmental action. This holding not only raises a serious statutory question under § 3(h) of the Act, which provides that broadcasters are not common carriers, but seems to me to reflect an extraordinarily odd view of the First Amendment.
116
The dissenting opinion today argues, in support of the decision of the Court of Appeals, that only a limited right of access is sought by the respondents and required by the First Amendment, and that such a limited right would not turn broadcasters into common carriers. The respondents argue, somewhat differently, that the Constitution requires that only 'responsible' individuals and groups be given the right to purchase advertising. These positions are said to be arrived at by somehow balancing 'competing First Amendment values.' But if private broadcasters are Government, how can the First Amendment give only a limited right to those who would speak? Since when has the First Amendment given Government the right to silence all speakers it does not consider 'responsible?'
117
The First Amendment protects the press from governmental interference; it confers no analogous protection on the Government.7 To hold that broadcaster action is governmental action would thus simply strip broadcasters of their own First Amendment rights. They would be obligated to grant the demands of all citizens to be heard over the air, subject only to reasonable regulations as to 'time, place and manner.' Cf. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212; Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471; Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105; Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. If, as the dissent today would have it, the proper analogy is to public forums8—that is, if broadcasters are Government for First Amendment purposes—then broadcasters are inevitably drawn to the position of common carriers. For this is precisely the status of Government with respect to public forums—a status mandated by the First Amendment.9
118
To hold that broadcaster action is governmental action would thus produce a result wholly inimical to the broadcasters' own First Amendment rights, and wholly at odds with the broadcasting system established by Congress and with our many decisions10 approving those legislative provisions.11 As Judge McGowan wrote, dissenting from the judgment of the Court of Appeals in these cases,
119
'This is the system which Congress has, wisely or not, provided as the alternative to public ownership and operation of radio and television communications facilities. This approach has never been thought to be other than within the permissible limits of constitutional choice.' 146 U.S.App.D.C. 181, 205, 450 F.2d 642, 666.
II
120
Part IV of the Court's opinion, as I understand it, seems primarily to deal with the respondents' statutory argument—that the obligation of broadcasters to operate in the 'public interest' supports the judgment of the Court of Appeals. Yet two of my concurring Brethren understand Part IV as a discussion of the First Amendment issue that would exist in these cases were the action of broadcasters to be equated with governmental action. So, according to my Brother BLACKMUN, 'the governmental action issue does not affect the outcome of this case.' Post, at 148. The Court of Appeals also conflated the constitutional and statutory issues in these cases. It reasoned that whether its decision 'is styled as a 'First Amendment decision' or as a decision interpreting the fairness and public interest requirements 'in light of the First Amendment' matters little.' 146 U.S.App.D.C., at 188, 450 F.2d, at 649.
121
I find this reasoning quite wrong and wholly disagree with it, for the simple reason that the First Amendment and the public interest standard of the statute are not coextensive. The two are related in the sense that the Commission could not 'in the public interest' place a requirement on broadcasters that constituted a violation of their First Amendment rights. The two are also related in the sense that both foster free speech. But we have held that the Commission can under the statute require broadcasters to do certain things 'in the public interest' that the First Amendment would not require if the broadcasters were the Government. For example, the Fairness Doctrine is an aspect of the 'public interest' regulation of broadcasters that would not be compelled or even permitted by the First Amendment itself if broadcasters were the Government.12
122
If the 'public interest' language of the statute were intended to enact the substance of the First Amendment, a discussion of whether broadcaster action is governmental action would indeed be superfluous. For anything that Government could not do because of the First Amendment, the broadcasters could not do under the statute. But this theory proves far too much, since it would make the statutory scheme, with the emphasis on broadcaster discretion and its proscription on interference with 'the right of free speech by means of radio communication,' a nullity. Were the Government really operating the electronic press, it would, as my Brother DOUGLAS points out, be prevented by the First Amendment from selection of broadcast content and the exercise of editorial judgment. It would not be permitted in the name of 'fairness' to deny time to any person or group on the grounds that their views had been heard 'enough.' Yet broadcasters perform precisely these functions and enjoy precisely these freedoms under the Act. The constitutional and statutory issues in these cases are thus quite different.
123
In evaluating the statutory claims, the starting point must be the 'venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . .' Red Lion, 395 U.S., at 381, 89 S.Ct., at 1802.
124
Though I have no doubt that the respondents here were attempting to communicate what they considered to be important messages, it does not follow that the Commission erred when it refused to require every broadcaster to communicate those messages. Contrary to what is said in dissent today, it is not the case that a seller of goods is granted instant access to the media, while someone 'seeking to discuss war, peace, pollution, or the suffering of the poor is denied this right to speak.' Post, at 200. There is no indication that the thousands of broadcasters regulated by the Commission have anything like a uniform policy of turning down 'controversial' or 'editorial' advertising. In the cases before us, the Business Executives' spot advertisements were rejected by a single radio station. Of the three television networks, only one turned down the Democratic National Committee's request for air time. We are told that many, if not most, broadcasters do accept advertising of the type at issue here. This variation in broadcaster policy reflects the very kind of diversity and competition that best protects the free flow of ideas under a system of broadcasting predicated on private management.13
125
Even though it would be in the public interest for the respondents' advertisements to be heard, it does not follow that the public interest requires every broadcaster to broadcast them. And it certainly does not follow that the public interest would be served by forcing every broadcaster to accept any particular kind of advertising. In the light of these diverse broadcaster policies and the serious First Amendment problem that a contrary ruling would have presented—there are surely no 'compelling indications' that the Commission misunderstood its statutory responsibility.
III
126
There is never a paucity of arguments in favor of limiting the freedom of the press. The Court of Appeals concluded that greater Government control of press freedom is acceptable here because of the scarcity of frequencies for broadcasting. But there are many more broadcasting stations than there are daily newspapers.14 And it would require no great ingenuity to argue that newspapers too are Government. After all, newspapers get Government mail subsidies and a limited antitrust immunity.15 The reasoning of the Court of Appeals would then lead to the conclusion that the First Amendment requires that newspapers, too, be compelled to open their pages to all comers.
127
Perhaps I overstate the logic of the opinion of the Court of Appeals. Perhaps its 'balancing' of First Amendment 'values' would require no more than that newspapers be compelled to give 'limited' access to dissident voices, and then only if those voices were 'responsible.' And perhaps it would require that such access be compelled only when there was a single newspaper in a particular community. But it would be a close question for me which of these various alternative results would be more grossly violative of the First Amendment's guarantee of a free press. For that guarantee gives every newspaper the liberty to print what it chooses and reject what it chooses, free from the intrusive editorial thumb of Government.
128
I profoundly trust that no such reasoning as I have attributed to the Court of Appeals will ever be adopted by this Court. And if I have exaggerated, it is only to make clear the dangers that beset us when we lose sight of the First Amendment itself, and march forth in blind pursuit of its 'values.'
129
Those who wrote our First Amendment put their faith in the proposition that a free press is indispensable to a free society. They believed that 'fairness' was far too fragile to be left for a Government bureaucracy to accomplish. History has many times confirmed the wisdom of their choice.
130
This Court was persuaded in Red Lion to accept the Commission's view that a so-called Fairness Doctrine was required by the unique electronic limitations of broadcasting, at least in the then-existing state of the art. Rightly or wrongly, we there decided that broadcasters' First Amendment rights were 'abridgeable.' But surely this does not mean that those rights are nonexistent. And even if all else were in equipoise, and the decision of the issue before us were finally to rest upon First Amendment 'values' alone, I could not agree with the Court of Appeals. For if those 'values' mean anything, they should mean at least this: If we must choose whether editorial decisions are to be made in the free judgment of individual broadcasters, or imposed by bureaucratic fiat, the choice must be for freedom.
131
Mr. Justice WHITE, concurring.
132
I join Parts I, II, and IV of the Court's opinion and its judgment. I do not, however, concur in the Part III opinion.
133
I do not suggest that the conduct of broadcasters must always, or even often, be considered that of a government for the purposes of the First Amendment. But it is at least arguable, and strongly so, that the Communications Act and the policies of the Commission, including the Fairness Doctrine, are here sufficiently implicated to require review of the Commission's orders under the First Amendment. For myself, the heart of the argument is simply stated. The claim in these cases was that the Communications Act and the First Amendment should be interpreted to confer a right of access on those who wished to buy time for editorial advertising and to raise political funds. The Commission rejected both the statutory and constitutional positions. To confer a right of access, it said, would be contrary to the Communications Act and to the policies adopted by the Commission to implement that Act. Congress intended that the Fairness Doctrine be complied with, but it also intended that broadcasters have wide discretion with respect to the method of compliance. There is no requirement that broadcasters accept editorial ads; they could, instead, provide their own programs, with their own format, opinion and opinion sources. Congress intended that there be no right of access such as claimed in these cases; and, in the Commission's view, to recognize that right would require major revisions in statutory and regulatory policy. The Commission also ruled, contrary to the views of its dissenting member, that rejection of the asserted right of access was wholly consistent with the First Amendment.
134
In this context I am not ready to conclude, as is done in the Part III opinion, that the First Amendment may be put aside for lack of official action necessary to invoke its proscriptions. But, assuming, arguendo, as the Court does in Part IV of its opinion, that Congress or the Commission is sufficiently involved in the denial of access to the broadcasting media to require review under the First Amendment, I would reverse the judgment of the Court of Appeals. Given the constitutionality of the Fairness Doctrine, and accepting Part IV of the Court's opinion, I have little difficulty in concluding that statutory and regulatory recognition of broadcaster freedom and discretion to make up their own programs and to choose their method of compliance with the Fairness Doctrine is consistent with the First Amendment.
135
Mr. Justice BLACKMUN, with whom Mr. Justice POWELL joins, concurring.
136
In Part IV the Court determines 'whether, assuming governmental action, broadcasters are required' to accept editorial advertisements 'by reason of the First Amendment.' Ante, at 121. The Court concludes that the Court of Appeals erred when it froze the 'continuing search for means to achieve reasonable regulation compatible with the First Amendment rights of the public and the licensees' into 'a constitutional holding.' Ante, at 132. The Court's conclusion that the First Amendment does not compel the result reached by the Court of Appeals demonstrates that the governmental action issue does not affect the outcome of this case. I therefore refrain from deciding it.
137
Mr. Justice DOUGLAS, concurring in the judgment.
138
While I join the Court in reversing the judgment below, I do so for quite different reasons.
139
My conclusion is that TV and radio stand in the same protected position under the First Amendment as do newspapers and magazines. The philosophy of the First Amendment requires that result, for the fear that Madison and Jefferson had of government intrusion is perhaps even more relevant to TV and radio than it is to newspapers and other like publications. That fear was founded not only on the spectre of a lawless government but of government under the control of a faction that desired to foist its views of the common good on the people. In popular terms that view has been expressed as follows:
140
'The ground rules of our democracy, as it has grown, require a free press, not necessarily a responsible or a temperate one. There aren't any halfway stages. As Aristophanes saw, democracy means that power is generally conferred on second-raters by third-raters, whereupon everyone else, from first-raters to fourth-raters, moves with great glee to try to dislodge them. It's messy but most politicians understand that it can't very well be otherwise and still be a democracy.' Stewart, reviewing Epstein, News From Nowhere: Television and the News (1972), Book World, Washington Post, March 25, 1973, pp. 4—5.
141
* Public broadcasting, of course, raises quite different problems from those tendered by the TV outlets involved in this litigation.
142
Congress has authorized the creation of the Corporation for Public Broadcasting, whose Board of Directors is appointed by the President by and with the advice and consent of the Senate. 47 U.S.C. § 396. A total of 223 television and 560 radio stations made up this nationwide public broadcasting system as of June 30, 1972. See 1972 Corporation for Public Broadcasting Annual Report. It is a nonprofit organization and by the terms of § 396(b) is said not to be 'an agency or establishment of the United States Government.' Yet, since it is a creature of Congress whose management is in the hands of a Board named by the President and approved by the Senate, it is difficult to see why it is not a federal agency engaged in operating a 'press' as that word is used in the First Amendment. If these cases involved that Corporation, we would have a situation comparable to that in which the United States owns and manages a prestigious newspaper like the New York Times, Washington Post, or Sacramento Bee. The Government as owner and manager would not, as I see it, be free to pick and choose such news items as it desired. For by the First Amendment it may not censor or enact or enforce any other 'law' abridging freedom of the press. Politics, ideological slants, rightist or leftist tendencies could play no part in its design of programs. See Markel, Will It be Public or Private TV?, World, Mar. 13, 1973, p. 57; Shales, WGBH—TV: An Ultimatum Against 'improper' White House Influence, Washington Post, Apr. 27, 1973, p. E2. More specifically, the programs tendered by the respondents in the present cases could not then be turned down.
143
Governmental action may be evidenced by various forms of supervision or control of private activities. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. I have expressed the view that the activities of licensees of the government operating in the public domain are governmental actions, so far as constitutional duties and responsibilities are concerned. See Garner v. Louisiana, 368 U.S. 157, 183—185, 82 S.Ct. 248, 261—263, 7 L.Ed.2d 207 (concurring); Lombard v. Louisiana, 373 U.S. 267, 281, 83 S.Ct. 1122, 1129, 10 L.Ed.2d 338 (concurring); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179, 92 S.Ct. 1965, 1974, 32 L.Ed.2d 627 (dissenting). It is somewhat the same idea expressed by the first Mr. Justice Harlan in his dissent in Plessy v. Ferguson, 163 U.S. 537, 554, 16 S.Ct. 1138, 1144, 41 L.Ed. 256. But that view has not been accepted. If a TV or radio licensee were a federal agency, the thesis of my Brother Brennan would inexorably follow. For a licensee of the Federal Government would be in precisely the situation of the Corporation for Public Broadcasting. A licensee, like an agency of the Government, would within limits of its time be bound to disseminate all views. For, being an arm of the Government, it would be unable by reason of the First Amendment to 'abridge' some sectors of thought in favor of others. The Court does not, however, decide whether a broadcast licensee is a federal agency within the context of these cases.
II
144
If a broadcast licensee is not engaged in governmental action for purposes of the First Amendment, I fail to see how constitutionally we can treat TV and radio differently than we treat newspapers. It would come as a surprise to the public as well as to publishers and editors of newspapers to be informed that a newly created federal bureau would hereafter provide 'guidelines' for newspapers or promulgate rules that would give a federal agency power to ride herd on the publishing business to make sure that fair comment on all current issues was made. In 1970 Congressman Farbstein introduced a bill,1 never reported out of the Committee, which provided that any newspaper of general circulation published in a city with a population greater than 25,000 and in which only one separately owned newspaper of general circulation is published 'shall provide a reasonable opportunity for a balanced presentation of conflicting views on issues of public importance' and giving the Federal Communications Commission power to enforce the requirement.
145
Thomas I. Emerson, our leading First Amendment scholar, has stated that:
146
'(A)ny effort to solve the broader problems of a monopoly press by forcing newspapers to cover all 'newsworthy' events and print all viewpoints, under the watchful eyes of petty public officials, is likely to undermine such independence as the press now shows without achieving any real diversity.' The System of Freedom of Expression 671 (1970).
147
The sturdy people who fashioned the First Amendment would be shocked at that intrusion of Government into a field which in this Nation has been reserved for individuals, whatever part of the spectrum of opinion they represent. Bejamin Franklin, one of the Founders who was in the newspaper business, wrote in simple and graphic form what I had always assumed was the basic American newspaper tradition that became implicit in the First Amendment. In our early history one view was that the publisher must open his columns
148
'to any and all controversialists, especially if paid for it. Franklin disagreed, declaring that his newspaper was not a stagecoach, with seats for everyone; he offered to print pamphlets for private distribution, but refused to fill his paper with private altercations.'2 F. Mott, American Journalism 55 (3d ed. 1962).
149
It is said that TV and radio have become so powerful and exert such an influence on the public mind that they must be controlled by Government.3 Some newspapers in our history have exerted a powerful—and some have thought—a harmful interest on the public mind. But even Thomas Jefferson, who knew how base and obnoxious the press could be, never dreamed of interfering. For he thought that government control of newspapers would be the greater of two evils.4
150
'I deplore . . . the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write them. . . . These ordures are rapidly depraving the public taste.
151
'It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and that cannot be limited without being lost.'
152
Of course there is private censorship in the newspaper field. But for one publisher who may suppress a fact, there are many who will print it. But if the Government is the censor, administrative fiat, not freedom of choice, carries the day.
As stated recently by Harry Kalven, Jr.:
153
'It is an insufficiently noticed aspect of the First Amendment that it contemplates the vigorous use of self-help by the opponents of given doctrines, ideas, and political positions. It is not the theory that all ideas and positions are entitled to flourish under freedom of discussion. It is rather then that they must survive and endure against hostile criticism. There is perhaps a paradox in that the suppression of speech by speech is part and parcel of the principle of freedom of speech. Indeed, one big reason why policy dictates that government keep its hands off communication is that, in this area, self-help of criticism is singularly effective. . . .
154
'Free, robust criticism of government, its officers, and its policy is the essence of the democratic dialectic—of 'the belief,' again to quote Brandeis, 'in the power of reason as applied through public discussion.' The government cannot reciprocally criticize the performance of the press, its officers, and its policies without its criticism carrying implications of power and coercion. The government simply cannot be another discussant of the press's performance. Whether it will it or not, it is a critic who carries the threat of the censor and more often than not it wills it. Nor is it at all clear that its voice will be needed; surely there will be others to champion its view of the performance of the press.
155
'The balance struck, then, is avowedly, and even enthusiastically, one-sided. The citizen may criticize the performance and motives of his government. The government may defend its performance and its policies, but it may not criticize the performance and motives of its critics.' 6 The Center Magazine, No. 3, pp. 36—37 (May/June 1973).
156
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371, in a carefully written opinion that was built upon predecessor cases, put TV and radio under a different regime. I did not participate in that decision and, with all respect, would not support it. The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends. In 1973—as in other years—there is clamoring to make TV and radio emit the messages that console certain groups. There are charges that these mass media are too slanted, too partisan, too hostile in their approach to candidates and the issues.
157
The same cry of protest has gone up against the newspapers and magazines. When Senator Joseph McCarthy was at his prime, holding in his hand papers containing the names of 205 'Communists' in the State Department (R. Feuerlicht, Joe McCarthy and McCarthyism 54 (1972)), there were scarcely a dozen papers in this Nation that stood firm for the citizen's right to due process and to First Amendment protection. That, however, was no reason to put the saddle of the federal bureaucracy on the backs of publishers. Under our Bill of Rights people are entitled to have extreme ideas, silly ideas, partisan ideas.
158
The same is true, I believe, of TV and radio. At times they have a nauseating mediocrity. At other times they show the dazzling brilliance of a Leonard Bernstein; and they very often bring humanistic influences of faraway people into every home.
159
Both TV and radio news broadcasts frequently tip the news one direction or another and even try to turn a public figure into a character of disrepute. Yet so do the newspapers and the magazines and other segments of the press. The standards of TV, radio, newspapers, or magazines—whether of excellence or mediocrity—are beyond the reach of Government. Government—acting through courts disciplines lawyers. Government makes criminal some acts of doctors and of engineers. But the First Amendment puts beyond the reach of Government federal regulation of news agencies save only business or financial practices which do not involve First Amendment rights. Conspicuous is Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 where enforcement of the antitrust laws against a news-gathering agency was held to be not inconsistent with First Amendment rights.
160
Government has no business in collating, dispensing, and enforcing, subtly or otherwise, any set of ideas on the press. Beliefs, proposals for change, clamor for controls, protests against any governmental regime are protected by the First Amendment against governmental ban or control.
161
There has been debate over the meaning of the First Amendment as applied to the States by reason of the Fourteenth. Some have thought that at the state level the First Amendment was somewhat 'watered down' and did not have the full vigor which it had as applied to the Federal Government. See Roth v. United States, 354 U.S. 476, 502—503, 77 S.Ct. 1304, 1318—1319, 1 L.Ed.2d 1498 (Harlan, J., concurring). So far, that has been the minority view. See Malloy v. Hogan, 378 U.S. 1, 10, 84 S.Ct. 1489, 1494, 12 L.Ed.2d 653. But it is quite irrelevant here, for the First Amendment, like other parts of the Bill of Rights, was at the outset applicable only to the Federal Government.5 The First Amendment is written in terms that are absolute. Its command is that 'Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..'
162
That guarantee, can, of course, be changed by a constitutional amendment which can make all the press or segments of the press organs of Government and thus control the news and information which people receive. Such a restructuring of the First Amendment cannot be done by judicial fiat or by congressional action. The ban of 'no' law that abridges freedom of the press is in my view total and complete.6 The Alien and Sedition Acts, 1 Stat. 566, 570, 596, passed early in our history were plainly unconstitutional, as Jefferson believed. Jefferson, indeed, said that by reason of the First Amendment
163
'libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of the Congress of the United States, passed on the 14th of July, 1798, entitled 'An Act in Addition to the Act entitled 'An Act for the Punishment of certain Crimes against the United States," which does abridge the freedom of the press, is not law, but is altogether void, and of no force.' 4 J. Elliot's Debates on the Federal Constitution 541 (1876).
164
And see 15 Writings of Thomas Jefferson 214 (Memorial ed. 1904); 14 id., at 116; 11 id., at 43—44).
165
Those Acts had but a short life, and we never returned to them. We have, however, witnessed a slow encroachment by Government over that segment of the press that is represented by TV and radio licensees. Licensing is necessary for engineering reasons; the spectrum is limited and wavelengths must be assigned to avoid stations interfering7 with each other. Red Lion Broadcasting Co. v. FCC, 395 U.S., at 388, 89 S.Ct., at 1805. The Commission has a duty to encourage a multitude of voices but only in a limited way, viz.: by preventing monopolistic practices and by promoting technological developments that will open up new channels.8 But censorship9 or editing or the screening by Government of what licensees may broadcast goes against the grain of the First Amendment.
166
The Court in National Broadcating Co. v. United States, 319 U.S. 190, 226, 63 S.Ct. 997, 1014, 87 L.Ed. 1344, said, 'Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation.'
167
That uniqueness is due to engineering and technical problems. But the press in a realistic sense is likewise not available to all. Small or 'underground' papers appear and disappear; and the weekly is an established institution. But the daily papers now established are unique in the sense that it would be virtually impossible for a competitor to enter the field due to the financial exigencies of this era. The result is that in practical terms the newspapers and magazines, like TV and radio, are available only to a select few. Who at this time would have the folly to think he could combat the New York Times or Denver Post by building a new plant and becoming a competitor? That may argue for a redefinition of the responsibilities of the press in First Amendment terms.10 But I do not think it gives us carte blanche to design systems of supervision and control or empower Congress to read the mandate in the First Amendment that 'Congress shall make no law . . . abridging the freedom . . . of the press' to mean that Congress may, acting directly or through any of its agencies such as the FCC make 'some' laws 'abridging' freedom of the press.
168
Powerful arguments, summarized and appraised in T. Emerson, The System of Freedom of Expression, cc. XVII and XVIII (1970), can be made for revamping or reconditioning the system. The present one may be largely aligned on the side of the status quo. The problem implicates our educational efforts which are bland and conformist and the pressures on the press, from political and from financial sources, to foist boilerplate points of view on our people rather than to display the diversities of ideologies and culture in a world which, as Buckminster Fuller said, has been 'communized' by the radio.
169
What kind of First Amendment would best serve our needs as we approach the 21st century may be an open question. But the old-fashioned First Amendment that we have is the Court's only guideline; and one hard and fast principle which it announces is that Government shall keep its hands off the press. That principle has served us through days of calm and eras of strife and I would abide by it until a new First Amendment is adopted. That means, as I view it, that TV and radio, as well as the more conventional methods for disseminating news, are all included in the concept of 'press' as used in the First Amendment and therefore are entitled to live under the laissez-faire regime which the First Amendment sanctions.
170
The issues presented in these cases are momentous ones. TV and radio broadcasters have mined millions by selling merchandise, not in selling ideas across the broad spectrum of the First Amendment. But some newspapers have done precisely the same, loading their pages with advertisements; they publish, not discussions of critical issues confronting our society, but stories about murders, scandal, and slanderous matter touching the lives of public servants who have no recourse due to New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. Commissioner Johnson of the FCC wrote in the present case a powerful dissent. He said:
171
'Although the First Amendment would clearly ban governmental censorship of speech content, government must be concerned about the procedural rules that control the public forums for discussion. If someone—a moderator, or radio-television licensee—applies rules that give one speaker, or viewpoint, less time (or none at all) to present a position, then a censorship exists as invidious as outright thought control. There is little doubt in my mind that for any given forum of speech the First Amendment demands rules permitting as many to speak and be heard as possible. And if this Commission does not enact them, then the courts must require them.' 25 F.C.C.2d 216, 232.
172
But the prospect of putting government in a position of control over publishers is to me an appalling one, even to the extent of the Fairness Doctrine. The struggle for liberty has been a struggle against Government. The essential scheme of our Constitution and Bill of Rights was to take Government off the backs of people. Separation of powers was one device. An independent judiciary was another device. The Bill of Rights was still another. And it is anathema to the First Amendment to allow Government any role of censorship over newspapers, magazines, books, art, music, TV, radio, or any other aspect of the press. There is unhappiness in some circles at the impotence of Government. But if there is to be a change, let it come by constitutional amendment. The Commission has an important role to play in curbing monopolistic practices, in keeping channels free from interference, in opening up new channels as technology develops. But it has no power of censorship.
173
It is said, of course, that Government can control the broadcasters because their channels are in the public domain in the sense that they use the airspace that is the common heritage of all the people. But parks are also in the public domain. Yet people who speak there do not come under Government censorship. Lovell v. Griffin, 303 U.S. 444, 450—453, 58 S.Ct. 666, 668—669, 82 L.Ed. 949; Hague v. CIO, 307 U.S. 496, 515—516, 59 S.Ct. 954, 963—964, 83 L.Ed. 1423. It is the tradition of Hyde Park, not the tradition of the censor, that is reflected in the First Amendment. TV and radio broadcasters are a vital part of the press; and since the First Amendment allows no Government control over it, I would leave this segment of the press to its devices.
174
Licenses are, of course, restricted in time and while, in my view, Congress has the power to make each license limited to a fixed term and nonreviewable, there is no power to deny renewals for editorial or ideological reasons. The reason is that the First Amendment gives no preference to one school of thought over others.11
175
The Court in today's decision by endorsing the Fairness Doctrine sanctions a federal saddle on broadcast licensees that is agreeable to the traditions of nations that never have known freedom of press12 and that is tolerable in countries that do not have a written constitution containing prohibitions as absolute as those in the First Amendment. Indeed after these cases were argued the FCC instituted a 'non-public' inquiry13 to determine whether any broadcaster or cablecaster has broadcast "obscene, indecent or profane language' in violation of' 18 U.S.C. § 1464.
176
In April 1973, the FCC fined Sonderling Broadcasting Corp., which operates station WGLD in Oak Park, Illinois, for allowing 'obscene' conversations on a telephone 'talk show.' It used Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 and Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, as supplying the criteria for broadcasting. It fined the corporation $2,000 under 18 U.S.C. § 1464, which reads, 'Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.'
177
Commissioner Johnson dissented, saying that the FCC prefers 'to sit as an omniscient programming review board, allegedly capable of deciding what is and is not good for the American public to see and hear'; and that when the FCC bars a particular program it casts 'a pall over the entire broadcasting industry' for the reason that the licensees 'fear the potential loss of their highly profitable broadcast licenses.' That, he concluded, creates a 'chilling effect' which has 'enormous proportions' and reaches 'all forms of broadcast expression.'
178
We ourselves have, of course, made great inroads on the First Amendment of which obscenity is only one of the many examples. So perhaps we are inching slowly toward a controlled press. But the regime of federal supervision under the Fairness Doctrine is contrary to our constitutional mandate and makes the broadcast licensee an easy victim of political pressures and reduces him to a timid and submissive segment of the press whose measure of the public interest will now be echoes of the dominant political voice that emerges after every election. The affair with freedom of which we have been proud will now bear only a faint likeness of our former robust days.
III
179
I said that it would come as a surprise to the public as well as to publishers and editors of newspapers to learn that they were under a newly created federal bureau. Perhaps I should have said that such an event should come as a surprise. In fact it might not in view of the retrogressive steps we have witnessed.
180
We have allowed ominous inroads to be made on the historic freedom of the newspapers. The effort to suppress the publication of the Pentagon Papers failed only by a narrow margin and actually succeeded for a brief spell in imposing prior restraint on our press for the first time in our history. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822.
181
In recent years the admonition of Mr. Justice Black that the First Amendment gave the press freedom so that it might 'serve the governed, not the governors' (id., at 717, 91 S.Ct., at 2143) has been disregarded.
182
'The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.' Ibid.
183
The right of the people to know has been greatly undermined by our decisions requiring, under pain of contempt, a reporter to disclose the sources of the information he comes across in investigative reporting. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626.
The Boston Globe reports:14
184
'In the last two years at least 20 Federal Grand Juries have been used to investigate radical or anti-war dissent. With the power of subpoena, the proceedings secret, and not bound by the rules of evidence required in open court, they have a lot more leverage than, for example, the old House Un-American Activities Committee.'
185
Many reporters have been put in jail, a powerful weapon against investigative reporting. As the Boston Globe states, 'in reality what is being undermined here is press freedom itself.'15
186
In the same direction is the easy use of the stamp 'secret' or 'top secret' which the Court recently approved in Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119. That decision makes a shambles of the Freedom of Information Act. In tune with the other restraints on the press are provisions of the new proposed Rules of Evidence which the Court recently sent to Congress. Proposed Rule 509(b) provides:
187
'The government has a privilege to refuse to give evidence and to prevent any person from giving evidence upon a showing of reasonable likelihood of danger that the evidence will disclose a secret of state or official information, as defined in this rule.'
188
Under the statute if Congress does not act,16 this new regime of secrecy will be imposed on the Nation and the right of people to know will be further curtailed. The proposed code sedulously protects the Government; it does not protect newsmen. It indeed pointedly omits any mention of the privilege of newsmen to protect their confidential sources.
189
These growing restraints on newspapers have the same ominous message that the overtones of the present opinion have on TV and radio licensees.
190
The growing specter of governmental control and surveillance over all activities of people makes ominous the threat to liberty by those who hold the executive power. Over and over again, attempts have been made to use the Commission as a political weapon against the opposition, whether to the left or to the right.
191
Experience has shown that unrestrained power cannot be trusted to serve the public weal even though it be in governmental hands. The fate of the First Amendment should not be so jeopardized.17 The constitutional mandate that the Government shall make 'no law' abridging freedom of speech and the press is clear; the orders and rulings of the Commission are covered by that ban; and it must be carefully confined lest broadcasting—now our most powerful media—be used to subdue the minorities or help produce a Nation of people who walk submissively to the executive's motions of the public good.
192
Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484, involved a prosecution of a newspaper editor for publishing, contrary to a state statute, an editorial on election day urging the voters to vote against the existing city commission and to replace it with a mayor-council government. This Court, speaking through Mr. Justice Black, reversed the judgment saying:
193
'(T)he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.' Id., at 219, 86 S.Ct., at 1437.
194
I would apply the same test to TV or radio.18
195
What Walter Lippman wrote about President Coolidge's criticism of the press has present relevancy. Coolidge, he said, had
196
"declared for peace, good-will, understanding moderation; disapproved of conquest, aggression, exploitation; pleaded for a patriotic press, for a free press; denounced a narrow and bigoted nationalism, and announced that he stood for law, order, protection of life, property, respect for sovereignty and principle of international law. Mr. Coolidge's catalog of the virtues was complete except for one virtue. . . . That is the humble realization that God has not endowed Calvin Coolidge with an infallible power to determine in each concrete case exactly what is right, what is just, what is patriotic. . . . Did he recognize this possibility he would not continue to lecture the press in such a way as to make it appear that when newspapers oppose him they are unpatriotic, and that when they support him they do so not because they think his case is good but because they blindly support him. Mr. Coolidge's notion . . . would if it were accepted by the American press reduce it to utter triviality." J. Luskin, Lippman, Liberty, and the Press 60 (1972).
197
The same political appetite for oversight of most segments of the press has markedly increased since the bland days of Calvin Coolidge.
198
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
199
These cases require us to consider whether radio and television broadcast licensees may, with the approval of the Federal Communications Commission,1 refuse absolutely to sell any part of their advertising time to groups or individuals wishing to speak out on controversial issues of public importance. In practical effect, the broadcaster policy here under attack permits airing of only those paid presentations which advertise products or deal with 'non-controversial' matters, while relegating the discussion of controversial public issues to formats such as documentaries, the news, or panel shows, which are tightly controlled and edited by the broadcaster. The Court holds today that this policy—including the absolute ban on the sale of air time for the discussion of controversial issues—is consistent with the 'public interest' requirements of the Communications Act of 1934, 47 U.S.C. §§ 307(d), 309(a).2 The Court also holds that the challenged policy does not violate the First Amendment. It is noteworthy that, in reaching this result, the Court does not hold that there is insufficient 'governmental involvement' in the promulgation and enforcement of the challenged ban to activate the commands of the First Amendment. On the contrary, only THE CHIEF JUSTICE, and my Brothers STEWART and REHNQUIST express the view that the First Amendment is inapplicable to this case. My Brothers WHITE, BLACKMUN, and POWELL quite properly do not decide that question, for they find that the broadcaster policy here under attack does not violate the 'substance' of the First Amendment. Similarly, there is no jajority for the holding that the challenged ban does not violate the 'substance' of the First Amendment. For, although THE CHIEF JUSTICE, and my Brother REHNQUIST purport to 'decide' that question, their disposition of the 'governmental involvement' issue necessarily renders their subsequent discussion of the 'substantive' question mere dictum.
200
In my view, the principle at stake here is one of fundamental importance, for it concerns the people's right to engage in and to hear vigorous public debate on the broadcast media. And balancing what I perceive to be the competing interests of broadcasters, the listening and viewing public, and individuals seeking to express their views over the electronic media, I can only conclude that the exclusionary policy upheld today can serve only to inhibit, rather than to further, our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). I would therefore affirm the determination of the Court of Appeals that the challenged broadcaster policy is violative of the First Amendment.
201
* The command of the First Amendment that 'Congress shall make no law . . . abridging the freedom of speech, or of the press' is, on its face, directed at governmental rather than private action. Nevertheless, our prior decisions make clear that '(c)onduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon (governmental) action.' Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966). Thus, the reach of the First Amendment depends not upon any formalistic 'private-public' dichotomy but, rather, upon more functional considerations concerning the extent of governmental involvement in, and public character of, a particular 'private' enterprise. 'Only by sifting facts and weighing circumstances can the nonobvious involvement of the (Government) in private conduct be attributed its true significance.' Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961); see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972). And because of the inherent complexity of this case-by-case inquiry, '(t)his Court has never attempted the 'impossible task' of formulating an infallible test' for determining in all instances whether particular conduct must be deemed private or governmental. Reitman v. Mulkey, 387 U.S. 369, 278, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967); 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).
202
This does not mean, of course, that our prior experience in this area offers no guidance for the purposes of our present inquiry. On the contrary, our previous decisions have focused on myriad indicia of 'governmental action,' many of which are directly applicable to the operations of the broadcast industry.3 As the Court of Appeals recognized, 'the general characteristics of the broadcast industry reveal an extraordinary relationship between the broadcasters and the federal government—a relationship which puts that industry in a class with few others.' 146 U.S.App.D.C. 181, 190, 450 F.2d 642, 651. More specifically, the public nature of the airwaves, the governmentally created preferred status of broadcast licensees, the pervasive federal regulation of broadcast programming, and the Commission's specific approval of the challenged broadcaster policy combine in this cast to bring the promulgation and enforcement of that policy within the orbit of constitutional imperatives.
203
At the outset, it should be noted that both radio and television broadcasting utilize a natural resource—the electromagnetic spectrum4—that is part of the public domain. And, although broadcasters are granted the temporary use of this valuable resource for terminable three-year periods, 'ownership' and ultimate control remain vested in the people of the United States. Thus, § 301 of the Communications Act of 1934, 47 U.S.C. § 301, specifically provides:
204
'It is the purpose of this (Act) . . . to maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license. . . .'
205
Such public 'ownership' of an essential element in the operations of a private enterprise is, of course, an important and established indicium of 'governmental involvement.' In Burton v. Wilmington Parking Authority, supra, for example, we emphasized the fact of 'public ownership' in holding the proscriptions of the Fourteenth Amendment applicable to a privately owned restaurant leasing space in a building owned by the State.5 In reaching that result, we explained that, in part because of the 'public ownership' of the building, the State 'has elected to place its power, property and prestige behind the' actions of the privately owned restaurant. 365 U.S., at 725, 81 S.Ct., at 862. And, viewing the relationship in its entirety, we concluded that '(t)he State has so far insinuated itself into a position of interdependence with (the restaurant) that it must be recognized as a joint participant in the challenged activity. . . .' Ibid.; see also Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 172—173, 175, 92 S.Ct. at 1971, 1972; Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962); Kissinger v. New York City Tansit Authority, 274 F.Supp. 438 (S.D.N.Y.1967); Farmer v. Moses, 232 F.Supp. 154 (S.D.N.Y.1964).
206
A second indicium of 'governmental involvement' derives from the direct dependence of broadcasters upon the Federal Government for their 'right' to operate broadcast frequencies. There can be no doubt that, for the industry as a whole, governmental regulation alone makes 'radio communication possible by . . . limiting the number of licenses so as not to overcrowd the spectrum.' Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389, 89 S.Ct. 1794, 1806, 23 L. Ed.2d 371 (1969).6 Moreover, with respect to individual licensees, it is equally clear that 'existing broadcasters have often attained their present position,' not as a result of free market pressures7 but, rather, 'because of their initial government selection. . . .' Id., at 400. Indeed, the 'quasi-monopolistic' advantages enjoyed by broadcast licensees 'are the fruit of a preferred position conferred by the Government.' Ibid. Thus, as Mr. Chief Justice (then Judge) Burger has himself recognized, '(a) broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.' Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 337, 359 F.2d 994, 1003 (1966). And, along these same lines, we have consistently held that 'when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Goernment itself.' American Communications Ass'n v. Douds, 339 U.S. 382, 401, 70 S.Ct. 674, 685, 94 L.Ed. 925 (1950); see, e.g., Public Utilities Comm'n v. Pollak, 343 U.S. 451, 462 n. 8, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952).
207
A further indicium of 'governmental involvement' in the promulgation and enforcement of the challenged broadcaster policy may be seen in the extensive governmental control over the broadcast industry. It is true, of course, that this 'Court has never held' that actions of an otherwise private entity necessarily constitute governmental action if that entity 'is subject to . . . regulation in any degree whatever.' Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 173, 92 S.Ct. at 1971. Here, however, we are confronted, not with some minimal degree of regulation, but, rather, with an elaborate statutory scheme governing virtually all aspects of the broadcast industry.8 Indeed, federal agency review and guidance of broadcaster conduct is automatic, continuing, and pervasive.9 Thus, as the Court of Appeals noted, '(a)lmost no other private business—almost no oher regulated private business—is so intimately bound to government . . ..' 146 U.S.App.D.C., at 191, 450 F.2d, at 652.
208
Even more important than this general regulatory scheme, however, is the specific governmental involvement in the broadcaster policy presently under consideration. There is, for example, an obvious nexus between the Commission's Fairness Doctrine and the absolute refusal of broadcast licensees to sell any part of their air time to groups or individuals wishing to speak out on controversial issues of public importance. Indeed, in defense of this policy, the broadcaster-petitioners argue vigorously that this exclusionary policy is authorized and even compelled by the Fairness Doctrine. And the Court itself recognizes repeatedly that the Fairness Doctrine and other Communications Act policies are inextricably linked to the challenged ban. Thus, at one point, the Court suggests that '(i)f the Fairness Doctrine were applied to editorial advertising, there is . . . the substantial danger that the effective operation of that doctrine would be jeopardized.' Ante, at 124. Similarly, the Court maintains that, in light of the Fairness Doctrine, there simply is no reason to allow individuals to purchase advertising time for the expression of their own views on public issues. See ante, at 130—131.10 Although I do not in any sense agree with the substance of these propositions, they serve at least to illustrate the extent to which the Commission's Fairness Doctrine has influenced the development of the policy here under review.
209
Moreover, the Commission's involvement in the challenged policy is not limited solely to the indirect effects of its Fairness Doctrine. On the contrary, in a decision which must inevitably provide guidance for future broadcaster action, the Commission has specifically considered and specifically authorized the flat ban. See Business Executives Move for Vietnam Peace, 25 F.C.C.2d 242 (1970); Democratic National Committee, 25 F.C.C.2d 216 (1970). In so doing, the Commission—and through it the Federal Government—has unequivocally given its imprimatur to the absolute ban on editorial advertising. And, of course, it is now well settled that specific governmental approval of or acquiescence in challenged action by a private entity indicates 'governmental action.'
210
Thus, in McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914) for example, the Court dealt with a statute which, as construed by the Court, simply authorized rail carriers to provide certain types of cars for white passengers without offering equal facilities to blacks. Although dismissal of the complaint on procedural grounds was affirmed, we made clear that such a statute, even though purely permissive in nature, was invalid under the Fourteenth Amendment because a carrier refusing equal service to blacks would be 'acting in the matter under the authority of a state law.' Id., at 162, 35 S.Ct., at 70. And, some 50 years later, we explained this finding of 'governmental action' in McCabe as 'nothing less than considering a permissive state statute as an authorization to discriminate and as sufficient state action to violate the Fourteenth Amendment. . . .' Reitman v. Mulkey, 387 U.S., at 379, 87 S.Ct., at 1633. Thus, '(o)ur prior decisions leave no doubt' that any action of the Government, through any of its agencies, approving, authorizing, encouraging, or otherwise supporting conduct which, if performed by the Government, would violate the Constitution, 'constitutes illegal (governmental) involvement in those pertinent private acts . . . that subsequently occur.' Adickes v. S. S. Kress & Co., 398 U.S. 144, 202, 90 S.Ct. 1598, 1626, 26 L.Ed.2d 142 (1970) (opinion of Brennan, J.); see, e.g., Moose Lodge No. 107 v. Irvis, supra; Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Reitman v. Mulkey, supra; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963); Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963); Burton v. Wilmington Parking Authority, supra; McCabe v. Atchison, T. & S.F.R. Co., supra.
211
Finally, and perhaps most important, in a case virtually identical to those now before us, we held that a policy promulgated by a privately owned bus company, franchised by the Federal Government and regulated by the Public Utilities Commission of the District of Columbia, must be subjected to the constraints of the First Amendment. Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). In reaching that result, we place primary emphasis on the specific regulatory acquiescence in the challenged action of the bus company. Thus, after noting that the bus company 'operates its service under the regulatory supervision of the Public Utilities Commission of the District of Columbia which is an agency authorized by Congress,' we explained that our finding of 'governmental action' was predicated specifically
212
'upon the fact that that agency, pursuant to protests against the (challenged policy), ordered an investigation of it and, after formal public hearings, ordered its investigation dismissed on the ground that the public safety, comfort and convenience were not impaired thereby.' Id., at 462, 72 S.Ct., at 820.
213
See Moose Lodge No. 107 v. Irvis, supra, 407 U.S., at 175 176, n. 3, 92 S.Ct., at 1972—1973.
214
Although THE CHIEF JUSTICE, joined by Mr. Justice STEWART and Mr. Justice REHNQUIST, strains valiantly to distinguish Pollak, he offers nothing more than the proverbial 'distinctions without a difference.' Here, as in Pollak, the broadcast licensees operate 'under the regulatory supervision of . . . an agency authorized by Congress.' 343 U.S., at 462, 72 S.Ct., at 820. And, again as in Pollak, that agency received 'protests' against the challenged policy and, after formal consideration, 'dismissed' the complaints on the ground that the 'public interest, convenience, and necessity' were not 'impaired' by that policy. Indeed, the argument for finding 'governmental action' here is even stronger than in Pollak, for this case concerns, not an incidental activity of a bus company, but, rather, the primary activity of the regulated entities—communication.
215
Thus, given the confluence of these various indicia of 'governmental action'—including the public nature of the airwaves,11 the governmentally created preferred status of broadcasters, the extensive Government regulation of broadcast programming, and the specific governmental approval of the challenged policy—I can only conclude that the Government 'has so far, insinuated itself into a position' of participation in this policy that the absolute refusal of broadcast licensees to sell air time to groups or individuals wishing to speak out on controversial issues of public importance must be subjected to the restraints of the First Amendment.12
II
216
Radio and television have long been recognized as forms of communication 'affected by a First Amendment interest' and, indeed, it can hardly be doubted that broadcast licensees are themselves protected by that Amendment. Red Lion Broadcasting Co. v. FCC, supra, 395 U.S., at 386, 89 S.Ct., at 1804. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260 (1948); Z. Chafee, Free Speech in the United States, 545—546 (1941). Recognition of this fact does not end our inquiry, however, for it is equally clear that the protection of the First Amendment in this context is not limited solely to broadcasters. On the contrary, at least one set of competing claims to the protection of that Amendment derives from the fact that, because of the limited number of broadcast frequencies available and the potentially pervasive impact of the electronic media, 'the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.' Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 390, 89 S.Ct. at 1806.
217
Over 50 years ago, Mr. Justice Holmes sounded what has since become a dominant theme in applying the First Amendment to the changing problems of our Nation. '(T)he ultimate good,' he declared, 'is better reached by free trade in ideas,' and 'the best test of truth is the power of the thought to get itself accepted in the competition of the market . . ..' Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (dissenting opinion); see also Whitney v. California 274 U.S. 357, 375—376, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); Gitlow v. New York, 268 U.S. 652, 672—673, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting). Indeed, the First Amendment itself testifies to our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen,'13 and the Amendment 'rests on the assumption 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, 1425, 89 L.Ed. 2013 (1945). For 'it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.' Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949); see also Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940); Palko v. Connecticut, 302 U.S. 319, 326—327, 58 S.Ct. 149, 152—153, 82 L.Ed. 288 (1937).
218
With considerations such as these in mind, we have specifically declared that, in the context of radio and television broadcasting, the First Amendment protects 'the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences . . ..' Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 390, 89 S.Ct. at 1807.14 And, because '(i)t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee,' '(i)t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.' Ibid.
219
Thus, we have explicitly recognized that, in light of the unique nature of the electronic media, the public have strong First Amendment interests in the reception of a full spectrum of views—presented in a vigorous and uninhibited manner—on controversial issues of public importance. And, as we have seen, it has traditionally been thought that the most effective way to insure this 'uninhibited, robust, and wide-open' debate is by fostering a 'free trade in ideas' by making our forums of communication readily available to all persons wishing to express their views. Although apparently conceding the legitimacy of these principles, the Court nevertheless upholds the absolute ban on editorial advertising because, in its view, the Commission's Fairness Doctrine, in and of itself, is sufficient to satisfy the First Amendment interests of the public. I cannot agree.
220
The Fairness Doctrine originated early in the history of broadcast regulation and, rather than being set forth in any specific statutory provision,15 developed gradually in a long series of Commission rulings in particular cases.16 In essence, the doctrine imposes a twofold duty upon broadcast licensees: (1) coverage of issues of public importance must be adequate,17 and (2) such coverage must fairly reflect opposing viewpoints.18 See Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 377, 89 S.Ct. at 1799. In fulfilling their obligations under the Fairness Doctrine, however, broadcast licensees have virtually complete discretion, subject only to the Commission's general requirement that licensees act 'reasonably and in good faith,'19 'to determine what issues should be covered, how much time should be allocated, which spokesman should appear, and in what format.'20 Thus, the Fairness Doctrine does not in any sense require broadcasters to allow 'non-broadcaster' speakers to use the air-waves to express their own views on controversial issues of public importance.21 On the contrary, broadcasters may meet their fairness responsibilities through presentation of carefully edited news programs, panel discussions, interviews, and documentaries. As a result, broadcasters retain almost exclusive control over the selection of issues and viewpoints to be covered, the manner of presentation, and, perhaps most important, who shall speak. Given this doctrinal framework, I can only conclude that the Fairness Doctrine, standing alone, is insufficient—in theory as well as in practice—to provide the kind of 'uninhibited, robust, and wide-open' exchange of views to which the public is constitutionally entitled.
221
As a practical matter, the Court's reliance on the Fairness Doctrine as an 'adequate' alternative to editorial advertising seriously overestimates the ability—or willingness—of broadcasters to expose the public to the 'widest possible dissemination of information from diverse and antagonistic sources.'22 As Professor Jaffe has noted, 'there is considerable possibility the broadcaster will exercise a large amount of self-censorship and try to avoid as much controversy as he safely can.'23 Indeed, in light of the strong interest of broadcasters in maximizing their audience, and therefore their profits, it seems almost naive to expect the majority of broadcasters to produce the variety and controversiality of material necessary to reflect a full spectrum of viewpoints. Stated simply, angry customers are not good customers and, in the commercial world of mass communications, it is simply 'bad business' to espouse—or even to allow others to espouse—the heterodox or the controversial. As a result, even under the Fairness Doctrine, broadcasters generally tend to permit only established—or at least moderated—views to enter the broadcast world's 'marketplace of ideas.'24
222
Moreover, the Court's reliance on the Fairness Doctrine as the sole means of informing the public seriously misconceives and underestimates the public's interest in receiving ideas and information directly from the advocates of those ideas without the interposition of journalistic middlemen. Under the Fairness Doctrine, broadcasters decide what issues are 'important,' how 'fully' to cover them, and what format, time, and style of coverage are 'appropriate.' The retention of such absolute control in the hands of a few Government licensees is inimical to the First Amendment, for vigorous, free debate can be attained only when members of the public have at least some opportunity to take the initiative and editorial control into their own hands.
223
Our legal system reflects a belief that truth is best illuminated by a collision of genuine advocates. Under the Fairness Doctrine, however, accompanied by an absolute ban on editorial advertising, the public is compelled to rely exclusively on the 'journalistic discretion' of broadcasters, who serve in theory as surrogate spokesmen for all sides of all issues. This separation of the advocate from the expression of his views can serve only to diminish the effectiveness of that expression. Indeed, we emphasized this fact in Red Lion:25
224
'Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them.'
225
Thus, if the public is to be honestly and forthrightly apprised of opposing views on controversial issues, it is imperative that citizens be permitted at least some opportunity to speak directly for themselves as genuine advocates on issues that concern them.
226
Moreover, to the extent that broadcasters actually permit citizens to appear on 'their' airwaves under the Fairness Doctrine, such appearances are subject to extensive editorial control. Yet it is clear that the effectiveness of an individual's expression of his views is as dependent on the style and format of presentation as it is on the content itself. And the relegation of an individual's views to such tightly controlled formats as the news, documentaries, edited interviews, or panel discussions may tend to minimize, rather than maximize the effectiveness of speech. Under a limited scheme of editorial advertising, however, the crucial editorial controls are in the speaker's own hands.
227
Nor are these cases concerned solely with the adequacy of coverage of those views and issues which generally are recognized as 'newsworthy.' For also at stake is the right of the public to receive suitable access to new and generally unperceived ideas and opinions. Under the Fairness Doctrine, the broadcaster is required to present only 'representative community views and voices on controversial issues' of public importance.26 Thus, by definition, the Fairness Doctrine tends to perpetuate coverage of those 'views and voices' that are already established, while failing to provide for exposure of the public to those 'views and voices' that are novel, unorthodox, or unrepresentative of prevailing opinion.27
228
Finally, it should be noted that the Fairness Doctrine permits, indeed requires, broadcasters to determine for themselves which views and issues are sufficiently 'importance' to warrant discussion. The briefs of the broadcaster-petitioners in this case illustrate the type of 'journalistic discretion' licensees now exercise in this regard. Thus ABC suggests that it would refuse to air those views which it considers 'scandalous' or 'crackpot,'28 While CBS would exclude those issues or opinions that are 'insignificant'29 or 'trivial.'30 Similarly, NBC would bar speech that strays 'beyond the bounds of normally accepted taste,'31 and WTOP would protect the public from subjects that are 'slight, parochial or inappropriate.'32
229
The genius of the First Amendment, however, is that it has always defined what the public ought to hear by permitting speakers to say what they wish. As the Court of Appeals recognized, '(i)t has traditionally been thought that the best judge of the importance of a particular viewpoint or issue is the individual or group holding the viewpoint and wishing to communicate it to others.' 146 U.S.App.D.C., at 195, 450 F.2d, at 656. Indeed, 'supervised and ordained discussion' is directly contrary to the underlying purposes of the First Amendment,33 for that Amendment 'presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.'34 Thus, in a related context, we have explicitly recognized that editorial advertisements constitute 'an important outlet for the promulgation of information and ideas by persons who do not themselves have access to (media) facilities,' and the unavailability of such editorial advertising can serve only 'to shackle the First Amendment in its attempt to secure 'the widest possible dissemination of information from diverse and antagonistic sources." New York Times Co. v. Sullivan, 376 U.S., at 266, 84 S.Ct., at 718.
230
The Fairness Doctrine's requirement of full and fair coverage of controversial issues is, beyond doubt, a commendable and, indeed, essential tool for effective regulation of the broadcast industry. But, standing alone, it simply cannot eliminate the need for a further, complementary airing of controversial views through the limited availability of editorial advertising. Indeed, the availability of at least some opportunity for editorial advertising is imperative if we are ever to attain the "free and general discussion of public matters (that) seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens." Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936).
III
231
Moreover, a proper balancing of the competing First Amendment interests at stake in this controversy must consider, not only the interests of broadcasters and of the listening and viewing public, but also the independent First Amendment interest of groups and individuals in effective self-expression. See, e.g., T. Emerson, Toward a General Theory of the First Amendment 4—7 (1666); Z. Chafee, Free Speech in the United States 33 (1941). '(S)peech concerning public affairs . . . is the essence of self-government,' Garrison v. Louisiana, 379 U.S. 64, 74—75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), and the First Amendment must therefore safeguard not only the right of the public to hear debate, but also the right of individuals to participate in that debate and to attempt to persuade others to their points of view. See, e.g., Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 325, 89 L.Ed. 430 (1945); cf. NAACP v. Button, 371 U.S. 415, 429—430, 83 S.Ct. 328, 335—337, 9 L.Ed.2d 405 (1963). And, in a time of apparently growing anonymity of the individual in our society, it is imperative that we take special care to preserve the vital First Amendment interest in assuring 'self-fulfillment (of expression) for each individual.' Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). For our citizens may now find greater than ever the need to express their own views directly to the public, rather than through a governmentally appointed surrogate, if they are to feel that they can achieve at least some measure of control over their own destinies.
232
In light of these considerations, the Court would concede, I assume, that our citizens have at least an abstract right to express their views on controversial issues of public importance. But freedom of speech does not exist in the abstract. On the contrary, the right to speak can flourish only if it is allowed to operate in an effective forum—whether it be a public park, a schoolroom, a town meeting hall, a soapbox, or a radio and television frequency. For in the absence of an effective means of communication, the right to speak would ring hollow indeed. And, in recognition of these principles, we have consistently held that the First Amendment embodies, not only the abstract right to be free from censorship, but also the right of an individual to utilize an appropriate and effective medium for the expression of his views. See, e.g., Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 559, 92 S.Ct. 2219, 2224, 33 L.Ed.2d 131 (1972); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); 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); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
233
Here, of course, there can be no doubt that the broadcast frequencies allotted to the various radio and television licensees constitute appropriate 'forums' for the discussion of controversial issues of public importance.35 Indeed, unlike the streets, parks, public libraries, and other 'forums' that we have held to be appropriate for the exercise of First Amendment rights, the broadcast media are dedicated specifically to communication. And, since the expression of ideas whether political, commercial, musical, or otherwise—is the exclusive purpose of the broadcast spectrum, it seems clear that the adoption of a limited scheme of editorial advertising would in no sense divert that spectrum from its intended use. Cf. Lloyd Corp., Ltd. v. Tanner, supra, 407 U.S. at 563, 92 S.Ct. at 2226; Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., supra, 391 U.S., at 320, 88 S.Ct., at 1609.
234
Moreover, it is equally clear that, with the assistance of the Federal Government, the broadcast industry has become what is potentially the most efficient and effective 'marketplace of ideas' ever devised.36 Indeed, the electronic media are today 'the public's prime source of information,'37 and we have ourselves recognized that broadcast 'technology . . . supplants atomized, relatively informal communication with mass media as a prime source of national cohesion and news . . ..' Red Lion Broadcasting Co. v. FCC, 395 U.S., at 386 n. 15, 89 S.Ct., at 1805. Thus, although 'full and free discussion' of ideas may have been a reality in the heyday of political pamphleteering, modern technological developments in the field of communications have made the soapbox orator and the leafleteer virtually obsolete. And, in light of the current dominance of the electronic media as the most effective means of reaching the public, any policy that absolutely denies citizens access to the airwaves necessarily renders even the concept of 'full and free discussion' practically meaningless.
235
Regrettably, it is precisely such a policy that the Court upholds today. And, since the effectuation of the individual's right to speak through a limited scheme of editorial advertising can serve only to further, rather than to inhibit, the public's interest in receiving suitable exposure to 'uninhibited, robust, and wideopen' debate on controversial issues, the challenged ban can be upheld only if it is determined that such editorial advertising would justifiably impair the broadcaster's assertedly overriding interest in exercising absolute control over 'his' frequency.38 Such an analysis, however, hardly reflects the delicate balancing of interests that this sensitive question demands. Indeed, this 'absolutist' approach wholly disregards the competing First Amendment rights of all 'non-broadcaster' citizens, ignores the teachings of our recent decision in Red Lion Broadcasting Co. v. FCC, supra, and is not supported by the historical purposes underlying broadcast regulation in this Nation.
236
Prior to 1927, it must be remembered, it was clearly recognized that the broadcast spectrum was part of the public domain. As a result, the allocation of frequencies was left entirely to the private sector,39 and groups and individuals therefore had the same right of access to radio facilities as they had, and still have, to the printed press—that is, 'anyone who will may transmit.'40 Under this scheme, however, the number of broadcasters increased so dramatically that by 1927 every frequency was occupied by at least one station, and many were occupied by several. 'The result was confusion and chaos. With everybody on the air, nobody could be heard.' National Broadcasting Co. v. United States, 319 U.S. 190, 212, 63 S.Ct. 997, 1008, 87 L.Ed. 1344 (1943). It soon became 'apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government.' Red Lion Broadcasting Co. v. FCC, supra, 395 U.S., at 376, 89 S.Ct., at 1799. Thus, in the Radio Act of 1927, 44 Stat. 1162, Congress placed the broadcast spectrum under federal regulation and sought to reconcile competing uses of the airwaves by setting aside a limited number of frequencies for each of the important uses of radio.41 And, since the number of frequencies allocated to public broadcasting was necessarily limited, the Government was compelled to grant licenses to some applicants while denying them to others. See generally Red Lion Broadcasting Co. v. FCC, supra, 395 U.S., at 375—377, 388, 89 S.Ct., at 1798 1800, 1805; National Broadcasting Co. v. United States, supra, 319 U.S., at 210—214, 63 S.Ct., at 1006—1009.
237
Although the overriding need to avoid overcrowding of the airwaves clearly justifies the imposition of a ceiling on the number of individuals who will be permitted to operate broadcast stations42 and, indeed, renders it 'idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish,'43 it does not in any sense dictate that the continuing First Amendment rights of all nonlicensees be brushed aside entirely. Under the existing system, broadcast licensees are granted a preferred status with respect to the airwaves, not because they have competed successfully in the free market but rather, 'because of their initial government selection . . ..' Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 400, 89 S.Ct. at 1812. And, in return for that 'preferred status,' licensees must respect the competing First Amendment rights of others. Thus, although the broadcaster has a clear First Amendment right to be free from Government censorship in the expression of his own views44 and, indeed, has a significant interest in exercising reasonable journalistic control over the use of his facilities, '(t)he right of free speech of a broadcaster . . . does not embrace a right to snuff out the free speech of others.' Id., at 387, 89 S.Ct., at 1805 (emphasis added). Indeed, after careful consideration of the nature of broadcast regulation in this country, we have specifically declared that
238
'as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to . . . monopolize a radio frequency to the exclusion of his fellow citizens.' Id., at 389, 89 S.Ct., at 1806.
239
Because I believe this view is as sound today as when voiced only four years ago, I can only conclude that there is simply no overriding First Amendment interest of broadcasters that can justify the absolute exclusion of virtually all of our citizens from the most effective 'marketplace of ideas' ever devised.
240
This is not to say, of course, that broadcasters have no First Amendment interest in exercising journalistic supervision over the use of their facilities. On the contrary, such an interest does indeed exist, and it is an interest that must be weighed heavily in any legitimate effort to balance the competing First Amendment interests involved in this case. In striking such a balance, however, it must be emphasized that these cases deal only with the allocation of advertising time—air time that broadcasters regularly relinquish to others without the retention of significant editorial control. Thus, we are concerned here, not with the speech of broadcasters themselves,45 but, rather, with their 'right' to decide which other individuals will be given an opportunity to speak in a forum that has already been opened to the public.
241
Viewed in this context, the absolute ban on editorial advertising seems particularly offensive because, although broadcasters refuse to sell any air time whatever to groups or individuals wishing to speak out on controversial issues of public importance, they make such air time readily available to those 'commercial' advertisers who seek to peddle their goods and services to the public. Thus, as the system now operates, any person wishing to market a particular brand of beer, soap, toothpaste, or deodorant has direct, personal, and instantaneous access to the electronic media. He can present his own message, in his own words, in any format he selects, and at a time of his own choosing. Yet a similar individual seeking to discuss war, peace, pollution, or the suffering of the poor is denied this right to speak. Instead, he is compelled to rely on the beneficence of a corporate 'trustee' appointed by the Government to argue his case for him.
242
It has been long recognized, however, that although access to public forums may be subjected to reasonable 'time, place, and manner' regulations,46 '(s)elective exclusions from a public forum may not be based on content alone . . ..' Police Dept. of Chicago v. Mosley, 408 U.S., at 96, 92 S.Ct., at 2290 (emphasis added); see, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948). Here, of course, the differential treatment accorded 'commercial' and 'controversial' speech clearly violates that principle.47 Moreover, and not without some irony, the favored treatment given 'commercial' speech under the existing scheme clearly reverses traditional First Amendment priorities. For it has generally been understood that 'commercial' speech enjoys less First Amendment protection than speech directed at the discussion of controversial issues of public importance. See, e.g., Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942).
243
The First Amendment values of individual self-fulfillment through expression and individual participation in public debate are central to our concept of liberty. If these values are to survive in the age of technology, it is essential that individuals be permitted at least some opportunity to express their views on public issues over the electronic media. Balancing those interests against the limited interest of broadcasters in exercising 'journalistic supervision' over the mere allocation of advertising time that is already made available to some members of the public, I simply cannot conclude that the interest of broadcasters must prevail.
IV
244
Finally, the Court raises the specter of administrative apocalypse as justification for its decision today. The Court's fears derive largely from the assumption, implicit in its analysis, that the Court of Appeals mandated an absolute right of access to the airways. In reality, however, the issue in these cases is not whether there is an absolute right of access but, rather, whether there may be an absolute denial of such access. The difference is, of course, crucial, and the Court's misconception of the issue seriously distorts its evaluation of the administrative difficulties that an invalidation of the absolute ban might conceivably entail.
245
Specifically, the Court hypothesizes three potential sources of difficulty: (1) the availability of editorial advertising might, in the absence of adjustments in the system, tend to favor the wealthy; (2) application of the Fairness Doctrine to editorial advertising might adversely affect the operation of that doctrine; and (3) regulation of editorial advertising might lead to an enlargement of Government control over the content of broadcast discussion. These are, of course, legitimate and, indeed, important concerns. But, at the present time, they are concerns not realities. We simply have no sure way of knowing whether, and to what extent, if any, these potential difficulties will actually materialize. The Court's bare assumption that these hypothetical problems are both inevitable and insurmountable indicates an utter lack of confidence in the ability of the Commission and licensees to adjust to the changing conditions of a dynamic medium. This sudden lack of confidence is, of course, strikingly inconsistent with the general propositions underlying all other aspects of the Court's approach to this case.
246
Moreover, it is noteworthy that, 28 years ago, the Commission itself declared that
247
'the operation of any station under the extreme principles that no time shall be sold for the discussion of controversial public issues . . . is inconsistent with the concept of public interest. . . . The Commission recognizes that good program balance may not permit the sale or donation of time to all who may seek it for such purposes and that difficult problems calling for careful judgment on the part of station management may be involved in deciding among applicants for time when all cannot be accommodated. However, competent management should be able to meet such problems in the public interest and with fairness to all concerned. The fact that it places an arduous task on management should not be made a reason for evading the issue by a strict rule against the sale of time for any programs of the type mentioned.' United Broadcasting Co., 10 F.C.C. 515, 518 (1945).
248
I can see no reason why the Commission and licensees should be deemed any less competent today then they were in 1945. And even if intervening developments have increased the complexities involved in implementing a limited right of access, there is certainly no dearth of proposed solutions to the potential difficulties feared by the Court. See, e.g., Canby, The First Amendment Right to Persuade: Access to Radio and Television, 19 U.C.L.A.L.Rev. 723, 754—757 (1972); Malone Broadcasting, the Reluctant Dragon: Will the First Amendment Right of Access End the Suppressing of Controversial Ideas?, 5 U.Mich.J.L.Reform 193, 252 269 (1972); Johnson & Westen, A Twentieth-Century Soapbox: The Right to Purchase Radio and Television Time, 57 Va.L.Rev. 574 (1971); Note, 85 Harv.L.Rev. 689, 693—699 (1972).
249
With these considerations in mind, the Court of Appeals confined itself to invalidating the flat ban alone, leaving broad latitude48 to the Commission and licensees to develop in the first instance reasonable regulations to govern the availability of editorial advertising. In the context of these cases, this was surely the wisest course to follow, for 'if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing (First Amendment values), there will be time enough to reconsider the constitutional implications.' Red Lion Broadcasting Co. v. FCC, 395 U.S., at 393, 89 S.Ct., at 1808.
250
For the present, however, and until such time, if ever, as these assertedly 'overriding' administrative difficulties actually materialize, I must agree with the conclusion of the Court of Appeals that although 'it may unsettle some of us to see an antiwar message or a political party message in the accustomed place of a soap or beer commercial . . . we must not equate what is habitual with what is right—or what is constitutional. A society already so saturated with commercialism can well afford another outlet for speech on public issues. All that we may lose is some of our apathy.'49
1
The Commission's rulings against BEM's Fairness Doctrine complaint and in favor of DNC's claim that political parties should be permitted to purchase air time for solicitation of funds were not appealed to the Court of Appeals and are not before us here.
2
Congressman Davis, for example, stated on the floor of the House the view that Congress found unacceptable:
'I do not think any member of the committee will deny that it is absolutely inevitable that we are going to have to regulate the radio public utilities just as we regulate other public utilities. We are going to have to regulate the rates and the service, and to force them to give equal service and equal treatment to all.' 67 Cong.Rec. 5483 (1926). See also id., at 5484.
3
Section 315(a) now reads:
'If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any—
'(1) bona fide newscast,
'(2) bona fide news interview,
'(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
'(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),
'shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.' 47 U.S.C. § 315(a).
4
The Senate passed a provision stating that:
'(I)f any licensee shall permit any person to use a broadcasting station in support of or in opposition to any candidate for public office, or in the presentation of views on a public question to be voted upon at an election, he shall afford equal opportunity to an equal number of other persons to use such station in support of an opposing candidate for such public office, or to reply to a person who has used such broadcasting station in support of or in opposition to a candidate, or for the presentation of opposite views on such public questions.'
See Hearings on S. 2910 before the Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., 19 (1934) (emphasis added). The provision for discussion of public issues was deleted by the House-Senate Conference. See H.R.Conf.Rep.No.1918 on S. 3285, 73d Cong., 2d Sess., 49.
Also noteworthy are two bills offered in 1934 that would have restricted the control of broadcasters over the discussion of certain issues. Congressman McFadden proposed a bill that would have forbidden broadcasters to discriminate against programs sponsored by religious, charitable, or educational associations. H.R. 7986, 73d Cong., 2d Sess. The bill was not reported out of committee. And, during the debates on the 1934 Act, Senators Wagner and Hatfield offered an amendment that would have ordered the Commission to 'reserve and allocate only to educational, religious, agricultural, labor, cooperative, and similar non-profit-making associations one-fourth of all the radio broadcasting facilities within its jurisdiction.' 78 Cong.Rec. 8828. senator Dill explained why the Committee had rejected the proposed amendment, indicating that the practical difficulties and the dangers of censorship were crucial:
'MR. DILL. . . . If we should provide that 25 percent of time shall be allocated to nonprofit organizations, someone would have to determine—Congress or somebody else—how much of the 25 percent should go to education, how much of it to religion, and how much of it to agriculture, how much of it to labor, how much of it to fraternal organizations, and so forth. When we enter this field we must determine how much to give the Catholics probably and how much to the Protestants and how much to the Jews.' 78 Cong.Rec. 8843. Senator Dill went on to say that the problem of determining the proper allocation of time for discussion of these subjects should be worked out by the Commission. Id., at 8844. The Senate rejected the amendment. Id., at 8846.
5
Section 3(h) provides as follows:
"Common carrier' or 'carrier' means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.' 48 Stat. 1066, as amended, 47 U.S.C. § 153(h).
6
48 Stat. 1083, as amended, 47 U.S.C. § 307.
7
Section 303, 48 Stat. 1082, as amended, 47 U.S.C. § 303, provides in relevant part:
'Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall—
'(b) Prescribe the nature of the service to be rendered by each class of licensed stations and each station within any class;
'(r) Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter . . ..'
8
In 1959, Congress amended § 315 of the Act to give statutory approval to the Fairness Doctrine. Act of Sept. 14, 1959, § 1, 73 Stat. 557, 47 U.S.C. § 315(a).
For a summary of the development and nature of the Fairness Doctrine, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375 386, 89 S.Ct. 1794, 1798—1805, 23 L.Ed.2d 371 (1969).
9
See Madalyn Murray, 5 P & F Radio Reg.2d 263 (1965). Factors that the broadcaster must take into account in exercising his discretion include the following:
'In determining whether to honor specific requests for time, the station will inevitably be confronted with such questions as whether the subject is worth considering, whether the viewpoint of the requesting party has already received a sufficient amount of broadcast time, or whether there may not be other available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person (or group) making the request.' Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1251—1252 (1949).
10
The Commission has also adopted various component regulations under the Fairness Doctrine, the most notable of which are the 'personal attack' and 'political editoralizing' rules which we upheld in Red Lion. The 'personal attack' rule provides that '(w)hen, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person,' the licensee must notify the person attacked and give him an opportunity to respond. E.g., 47 CFR § 73.123. Similarly, the 'political editoralizing' rule provides that, when a licensee endorses a political candidate in an editorial, he must give other candidates or their spokesmen an opportunity to respond. E.g., id., § 73.123.
The Commission, of course, has taken other steps beyond the Fairness Doctrine to expand the diversity of expression on radio and television. The chain broadcasting and multiple ownership rules are established examples. E.g., id., §§ 73.131, 73.240. More recently, the Commission promulgated rules limiting television network syndication practices and reserving 25% of prime time for nonnetwork programs. Id., §§ 73.658(j), (k).
11
The Court of Appeals, respondents, and the dissent in this case have relied on dictum in United Broadcasting Co., 10 F.C.C. 515 (1945), as illustrating Commission approval of a private right to purchase air time for the discussion of controversial issues. In that case the complaint alleged, not only that the station had a policy of refusing to sell time for the discussion of public issues, but also that the station had applied its policy in a discriminatory manner, a factor not shown in the cases presently before us. Furthermore, the decision was handed down four years before the Commission had fully developed and articulated the Fairness Doctrine. See Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949). Thus, even if the decision is read without reference to the allegation of discrimination, it stands as merely an isolated statement, made during the period in which the Commission was still working out the problems associated with the discussion of public issues; the dictum has not been followed since and has been modified by the Fairness Doctrine.
12
In 1959, as noted earlier, Congress amended § 315(a) of the Act to give statutory approval to the Commission's Fairness Doctrine. Act of Sept. 14, 1959, § 1, 73 Stat. 557, 47 U.S.C. § 315(a). Very recently, Congress amended § 312(a) of the 1934 Act to authorize the Commission to revoke a station license 'for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.' Campaign Communications Reform Act of 1972, Pub. L. 92—225, 86 Stat. 4. This amendment essentially codified the Commission's prior interpretation of § 315(a) as requiring broadcasters to make time available to political candidates. Farmers Union v. WDAY, 360 U.S. 525, 534, 79 S.Ct. 1302, 1307, 3 L.Ed.2d 1407 (1959). See FCC Memorandum on Second Sentence of Section 315(a), in Political Broadcasts—Equal Time, Hearings before Subcommittee of the House Committee on Interstate and Foreign Commerce, 88th Cong., 1st Sess., on H.J.Res. 247, pp. 84—90.
13
See, e.g., H.R. 3595, 80th Cong., 1st Sess. (1947). A more recent proposal was offered by Senator Fulbright. His bill would have amended § 315 of the Act to provide:
'(d) Licensees shall provide a reasonable amount of public service time to authorized representatives of the Senate of the United States, and the House of Representatives of the United States, to present the views of the Senate and the House of Representatives on issues of public importance. The public service time required to be provided under this subsection shall be made available to each such authorized representative at least, but not limited to, four times during each calendar year.' S.J.Res. 209, 91st Cong., 2d Sess. (1970).
14
The dissent offers the same analysis as the Court of Appeals. As one distinguished commentator has recognized, this line of reasoning 'stretch(es) the concept of state action very far.' Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Access, 85 Harv.L.Rev. 768, 784 (1972). The notion that broadcasters are engaged in 'governmental action' because they are licensed to utilize the 'public' frequencies and because they are regulated is superficially appealing but, as Professor Jaffe observes, 'not entirely satisfactory.' Id., at 783.
15
The dissenting view would appear to 'want to have it both ways' on the question of Government control of the broadcast media. In finding governmental action, the dissent stresses what is perceived as an 'elaborate statutory scheme governing virtually all aspects of the broadcast industry.' 'Indeed,' the dissent suggests, 'federal agency review and guidance of broadcaster conduct is automatic, continuing, and pervasive.' Post, at 176 177. Yet later in the dissent, when discussing the constitutional need for a right of access, the dissent objects to the substantial independence afforded broadcasters in covering issues of public importance. Thus, it is said that 'broadcasters retain almost exclusive control over the selection of issues and viewpoints to be covered, the manner of presentation and, perhaps most important, who shall speak.' Post, at 187.
16
See 25 F.C.C.2d 216, 230, 234—235 (Johnson, dissenting).
17
To overcome this inconsistency it has been suggested that a 'submarket rate system' be established for those unable to afford the normal cost for air time. See Note, 85 Harv.L.Rev. 689, 695—696 (1972). That proposal has been criticized, we think justifiably, as raising 'incredible administrative problems.' Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Ac-
18
See n. 8, supra.
19
See Report on Editorializing by Broadcast Licensees, 13 F.C.C., at 1251—1252.
20
See Note, 85 Harv.L.Rev. 689, 697 (1973).
21
DNC has urged in this Court that we at least recognize a right of our national parties to purchase air time for the purpose of discussing public issues. We see no principled means under the First Amendment of favoring access by organized political parties over other groups and individuals.
22
Reprinted in Hearings before the Senate Committee on Interstate Commerce on Radio Control, 69th Cong., 1st Sess., 54 (1926).
23
Lee v. Board of Regents of State Colleges, 306 F.Supp. 1097 (W.D.Wis.1969), aff'd, 441 F.2d 1257 (CA7 1971); Zucker v. Panitz, 299 F.Supp. 102 (S.D.N.Y.1969); Kissinger v. New York City Transit Authority, 274 F.Supp. 438 (S.D.N.Y.1967); Hillside Community Church, Inc. v. City of Tacoma, Wash., 76 Wash.2d 63, 455 P.2d 350 (1969); Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 64 Cal.Rptr. 430, 434 P.2d 982 (1967).
24
Subsequent to the announcement of the Court of Appeals' decision, the Commission expanded the scope of the inquiry to comply with the Court of Appeals' mandate. Further Notice of Inquiry in Docket 19260, 33 F.C.C.2d 554, 37 Fed.Reg. 3383. After we granted certiorari and stayed the mandate of the Court of Appeals, the Commission withdrew that notice of an expanded inquiry and continued its study as originally planned. Order and Further Notice of Inquiry in Docket 19260, 33 F.C.C.2d 798, 37 Fed.Reg. 4980.
1
U.S.Const., Amdt. I, provides, in pertinent part, that 'Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..'
2
See Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603; Railway Employees' Department v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112; Public Utilities Commission v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265.
3
'Conduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.' Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373. Earlier, in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, the Court held that a privately owned restaurant located within a public parking garage was sufficiently involved with state authority to bring its racially discriminatory actions within the proscription of the Fourteenth Amendment.
4
See, e.g., United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260. The Federal Communications Act also prohibits the Commission from interfering with 'the right of free speech by means of radio communication.' 47 U.S.C. § 326.
5
For a history of regulatory legislation regarding broadcasters, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375—386, 89 S.Ct. 1794, 1798—1805, 23 L.Ed.2d 371; National Broadcasting Co. v. United States, 319 U.S. 190, 210—214, 63 S.Ct. 997, 1006—1008, 87 L.Ed. 1344.
6
The personal-attack and editorial-reply rules appear at 47 CFR §§ 73.123, 73.300, 73.598, 73.679. The public issue aspect of the Fairness Doctrine requires the broadcaster to give adequate coverage to public issues, fairly reflecting divergent views. United Broadcasting Co., 10 F.C.C. 515; New Broadcasting Co., 6 P & F Radio Reg. 258; see generally Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.Reg. 10415. This coverage must be provided at the broadcaster's own expense if necessary, Cullman Broadcasting Co., 25 P & F Radio Reg. 895, and the duty must be met by providing programming obtained at the licensee's own initiative if it is available from no other source. John J. Dempsey, 6 P & F Radio Reg. 615.
7
Government is not restrained by the First Amendment from controlling its own expression, cf. New York Times Co. v. United States, 403 U.S. 713, 728—729, 91 S.Ct. 2140, 2148—2149, 29 L.Ed.2d 822 (Stewart, J., concurring). As Professor Thomas Emerson has written, 'The purpose of the First Amendment is to protect private expression and nothing in the guarantee precludes the government from controlling its own expression or that of its agents.' The System of Freedom of Expression 700 (1970).
8
'(T)he right to speak can flourish only if it is allowed to operate in an effective forum—whether it be a public park, a schoolroom, a town meeting hall, a soapbox, or a radio and television frequency.' Post, at 193.
9
Professor Emerson has recognized the scope of the 'access' argument: 'The licensee therefore can only be considered as the agent of the government, or trustee of the public, in a process of further allocation. Hence the licensee would have no direct First Amendment rights of his own, except as to his own expression.' Supra, n. 7, at 663.
Though the licensee would be free to say what it wished during its own broadcasting, whatever that might mean, it seems clear that the licensee would have no special claim to broadcast time and would lose entirely the freedom to program and schedule according to its own judgment, values, and priorities. Cf. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212; Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471; Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105; Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. Licensees would be forced to develop a procedurally fair and substantively nondiscriminatory system for controlling access, and in my view this is precisely what Congress intended to avoid through § 3(h) of the Act.
10
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371; National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344; FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869; FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656.
11
None of this suggests any disagreement on my part with the evolution of 'state action' under the Fourteenth Amendment. I recognize that if Moore Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627, were relevant, the fact that the Commission considered and rejected a challenge to broadcaster policy might be sufficient to constitute 'state action.' This, in fact, was the basis of the Court's decision in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068.
12
The basis for a Fairness Doctrine is statutory, not constitutional. As the Court said in Red Lion:
'In light of the fact that the 'public interest' in broadcasting clearly encompasses the presentation of vigorous debate of controversial issues of importance and concern to the public; the fact that the FCC has rested upon that language from its very inception a doctrine that these issues must be discussed, and fairly; and the fact that Congress has acknowledged that the analogous provisions of § 315 are not preclusive in this area, and knowingly preserved the FCC's complementary efforts, we think the fairness doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority.' 395 U.S., at 385, 89 S.Ct., at 1804.
13
The Democratic National Committee cited this very lack of uniformity as a reason for seeking a declaratory ruling from the Commission. There was too much diversity, it thought, for it to plan effectively an advertising campaign. In the DNC's request for a declaratory ruling before the Commission, it stated:
'In addition to the three national commercial networks, as of April 1, 1970, there were, on the air, 509 commercial VHF television stations, 180 commercial UHF stations, 4,280 standard broadcast stations, and 2,111 commercial FM stations. While several of these stations have common owners, it does not necessarily follow that every station owned by an individual or group would follow the same policies.'
14
There are 1,792 daily newspapers in the United States. Ayer Directory of Publications VIII (1973). Compare the number of broadcasters, n. 13, supra.
15
Newspapers and other periodicals receive a Government subsidy in the form of second-class postage rates, 39 CFR § 132. An antitrust immunity is established by the Newspaper Preservation Act, 15 U.S.C. § 1801 et seq.
1
H.R. 18927, 91st Cong., 2d Sess.
2
Congress provided in 47 U.S.C. § 153(h) that 'a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.'
3
'To say that the media have great decisionmaking powers without defined legal responsibilities or any formal duties of public accountability is both to overestimate their power and to put forth a meaningless formula for reform. How shall we make the New York Times 'accountable' for its anti-Vietnam policy? Require it to print letters to the editor in support of the war? If the situation is as grave as stated, the remedy is fantastically inadequate. But the situation is not that grave. The New York Times, the Chicago Tribune, NBC, ABC, and CBS play a role in policy formation, but clearly they were not alone responsible for example, for Johnson's decision not to run for re-election, Nixon's refusal to withdraw the troops from Vietnam, the rejection of the two billion dollar New York bond issue, the defeat of Carswell and Haynsworth, or the Supreme Court's segregation reapportionment and prayer decisions. The implication that the people of this country—except the proponents of the theory—are mere unthinking automatons manipulated by the media, without interests, conflicts, or prejudices is an assumption which I find quite maddening. The development of constitutional doctrine should not be based on such hysterical overestimation of media power and underestimation of the good sense of the American public.' Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Access, 85 Harv.L.Rev. 768, 786—787 (1972).
4
T. Jefferson, Democracy 150—151 (Padover ed. 1939).
5
Barron v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672.
6
The press in this country, like that of Britain, was at one time subject to contempt for its comments on pending litigation. Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186. But that position was changed. See Bridges v. California, 314 U.S. 252, 267, 62 S.Ct. 190, 195, 86 L.Ed. 192. Federal habeas corpus, however, is available to give a man his freedom and the prosecution an opportunity for a new trial where the conduct of the press has resulted in an unfair trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. And change of venue may be had where the local atmosphere has saturated the community with prejudice. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663.
7
The Senate Report which accompanied the bill that became the Radio Act of 1927, 44 Stat. 1162 stated:
'If the channels of radio transmission were unlimited in number the importance of the regulatory body would be greatly lessened, but these channels are limited and restricted in number and the decision as to who shall be permitted to use them and on what terms and for what periods of time, together with the other questions connected with the situation, requires the exercise of a high order of discretion and the most careful application of the principles of equitable treatment to all the classes and interests affected. For these and other reasons your committee decided that all power to regulate radio communication should be centered in one independent body, a radio commission, granting it full and complete authority over the entire subject of radio.' S.Rep. 772, 69th Cong., 1st Sess., 3.
8
Scarcity may soon be a constraint of the past, thus obviating the concerns expressed in Red Lion. It has been predicted that it may be possible within 10 years to provide television viewers 400 channels through the advances of cable television. Smith, The Wired Nation 7 (1972); see Brandy-wine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 362—365, 473 F.2d 16, 73—76 (Bazelon, J., dissenting).
9
Currently, press censorship covers most of the globe. In Brazil the present regime of censorship is pervasive. As reported in the New York Times for Feb. 17, 1973, p. 11:
'The censors' rules, issued a few months ago and constantly amended, cover a vast field and if strictly applied would leave the press little to discuss. In practice, however, much depends on the whims and suspicions of the local censors.
'General prohibitions include protests against censorship, any discussion of a successor to President Emilio Garrastazu Me dici, whose term is up in 1974, campaigns against the Government's special powers by decree and sensational news that might hurt the image of Brazil.
'Others are campaigns to discredit the national housing program, the financial market or other matters of vital importance to the Government, the playing up of assaults on banks or credit establishments, tension between the Roman Catholic Church and the state, agitation in union and student circles, and publicity for Communist personalities and nations. Criticism of state governors and 'exaltation of immorality' through news of homosexuality, prostitution and drugs are also barred.
'The most controversial order, issued by the Minister of Justice last September, bans all news, comment or interviews on a political relaxation of the regime, on democracy for Brazil, and on the economic and financial situation in general.'
10
Indeed, it can be argued that the existence of newspapers, and thus their access to the public, is dependent upon the preferential mailing privileges newspapers receive through second-class postage rates. This is a privilege afforded by the Government, and, as my Brother STEWART recognizes, a form of subsidy.
Under the Postal Reorganization Act, the new Postal Rate Commission is empowered to fix postage rates at levels high enough to make each class of mail pay its own way. John Fischer reports that the increase in second-class mail rates for magazines and periodicals (127%) is 'nothing less than a death sentence for an unpredictable number of publications.' The Easy Chair, Harper's Magazine 30, 31 (May 1973). It is not the established giants of the publishing field that will suffer most, for it is estimated that some 10,000 magazines and small newspapers will be forced out of existence. Id., at 30. Fischer mentions specifically the National Review, Human Events, The Nation, and The New Republic. These are the publications that offer us the rich diversity of opinion and reporting the First Amendment is designed to promote and protect. As Senator McGee, Chairman of the Post Office and Civil Service Committee, has said: 'I believe that the American public generally has a vested interest in the survival of newspapers and magazines. Regardless of the economic, political, or social policies which they espouse, they contribute to the nation's thought process. I am personally convinced that the Congress should not permit magazines to go under because the cost of distributing them through the postal system is higher than their readers are willing to pay.' Id., at 32.
In addition to the benefits of reduced postage rates, newspapers have been afforded a limited antitrust exemption. Newspaper Preservation Act, 15 U.S.C. § 1801 et seq.
11
Judge Bazelon, dissenting in Brandy-wine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 358—359, 473 F.2d, at 69—70, said:
'WXUR was no doubt devoted to a particular religious and political philosophy; but it was also a radio station devoted to speaking out and stirring debate on controversial issues. The station was purchased by Faith Theological Seminary to propagate a viewpoint which was not being heard in the greater Philadelphia area. The record is clear that through its interview and call-in shows it did offer a variety of opinions on a broad range of public issues; and that it never refused to lend its broadcast facilities to spokesmen of conflicting viewpoints.
'The Commission's strict rendering of fairness requirements, as developed in its decision, has removed WXUR from the air. This has deprived the listening public not only of a viewpoint but also of robust debate on innumerable controversial issues. It is beyond dispute that the public has lost access to information and ideas. This is not a loss to be taken lightly, however unpopular or disruptive we might judge these ideas to be.' (Footnotes omitted.)
12
If Eastern European experience since World War II is any criterion, the newspapers are pretty much the company paper in the huge company (Communist) nation. The easiest target, however, seems to be TV where the input can be carefully controlled and 'prime time' filled with tapes of official meetings, political speeches, and the tedious accounts of achievement of the workers. See Morgan, Press Obedience in East Europe, Washington Post, May 19, 1973, p. A14.
13
FCC Order No. 73—331, 39 Fed.Reg. 8301 (Mar.27, 1973).
14
The People's Need to Know, Editorial Series, Jan. 21—27, 1973, reprinted from Boston Globe, p. 12.
15
Id., at 13.
16
By reason of an Act of Congress of Mar. 30, 1973, the Rules of Evidence—and amendments to the Rules of Civil Procedure and to the Rules of Criminal Procedure (which we sent up Nov. 20, 1972, and Dec. 18, 1972)—will have no force or effect except to the extent that Congress expressly approves. 87 Stat. 9.
17
Alexander Bickel has spurned the 'total agnosticism' that allows the First Amendment to have its way because 'who really knows, after all, what is true or false, evil or good, noxious or wholesome.' The Press and Government: Adversaries Without Absolutes, Freedom at Issue 5 (May—June 1973). He attributes this view to Mr. Justice Holmes. He would place at least partial responsibility with the Government for determining the 'good counsels and wholesome doctrine.' Ibid. But, it was precisely the mistrust of the evanescent, narrow, factional views of those in power and the belief that no one has a patent on the 'truth' that underlay the First Amendment.
18
The monetary and other burdens imposed on the press by the right of a criticized person to reply, like the traditional damage remedy for libel, lead of course to self-censorship respecting matters of importance to the public that the First Amendment denies the Government the power to impose. The burdens certainly are as onerous as the indirect restrictions on First Amendment rights which we have struck down: (1) the requirement that a bookseller examine the contents of his shop, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959): (2) the requirement that a magazine publisher investigate his advertisers, Manual Enterprises, Inc. v. Day, 370 U.S. 478, 492 493, 82 S.Ct. 1432, 1439—1440, 8 L.Ed.2d 639 (1962) (opinion of Harlan, J.); (3) the requirement that names and addresses of sponsors be printed on handbills, Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960); (4) the requirement that organizations supply membership lists, Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); and (5) the requirement that individuals disclose organizational membership, Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In each instance we held the restriction unconstitutional on the ground that it discouraged or chilled constitutionally protected rights of speech, press, or association.
1
See Business Executives Move for Vietnam Peace, 25 F.C.C.2d 242 (1970); Democratic National Committee, 25 F.C.C.2d 216 (1970).
2
I do not specifically address the 'statutory' question in this case because, in practical effect, the considerations underlying the 'statutory' question are in many respect similar to those relevant to the 'substance' of the 'constitutional' claim. There is one aspect of the Court's 'statutory' discussion, however, that merits at least brief attention. In upholding the absolute ban on the sale of editorial advertising, the Court relies heavily upon 47 U.S.C. § 153(h), which declares that broadcasters shall not be deemed 'common carriers.' In my view, this reliance is misplaced. Even a cursory examination of the legislative history of this provision reveals that it was enacted in recognition of the fact that traditional doctrines governing true 'common carriers,' such as transportation companies, would not suit the particular problems of radio broadcasting. Specifically, it was feared that such 'common carrier' status for broadcasters would mean that they 'would have to give all their time to (public issues).' 67 Cong.Rec. 12504 (Sen. Dill) (emphasis added); see also ibid. (Sen. Broussard); id., at 12356 (Sen. Fess). Section 153(h) was intended solely to assure that broadcasters would not be required to surrender all of their air time to willing purchasers; it does not bear upon the question whether they may be required to sell a reasonable and limited amount of air time to members of the public for discussion of controversial issues. See 2 Z. Chafee, Government and Mass Communications 635 n. 75 (1947). Indeed, the Commission itself has rejected the Court's interpretation of § 153(h) when it declared, over 25 years ago, that 'the operation of any station under the extreme principles that no time shal be sold for the discussion of controversial public issues . . . is inconsistent with the concept of public interest established by the Communications Act. . . .' United Broadcasting Co., 10 F.C.C. 515, 518 (1945).
3
See generally Business Executives Move for Vietnam Peace, 25 F.C.C.2d, at 253—264 (dissenting opinion), wherein Commissioner Johnson identified no less than eight separate indicia of 'governmental action' involved in the promulgation and enforcement of the challenged broadcaster policy.
4
For a discussion of the attributes of the electromagnetic spectrum, see generally W. Jones, Regulated Industries 1019 (1967); Levin, The Radio Spectrum Resource, 11 J. Law & Econ. 433 (1968).
5
It is true, of course, that unlike the State in Burton, the Federal Government here does not receive substantial financial compensation for the use of the 'public' property. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 723—724, 81 S.Ct. 856, 860—861, 6 L.Ed.2d 45 (1961); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 174—175, 92 S.Ct. 1965, 1972, 32 L.Ed.2d 627 (1972). Nevertheless, the absence of such a financial arrangement represents, in practical effect, Government subsidization of broadcasters, thereby enhancing the degree of governmental involvement. Cf. Kalven, Broadcasting, Public Policy and the First Amendment, 10 J. Law & Econ. 15, 31 (1967). Moreover, as in Burton, the publicly owned property is 'not surplus state property' but, rather, constitutes an 'integral and, indeed, indispensable part' of the governmental scheme. Burton v. Wilmington Parking Authority, supra, 365 U.S. at 723, 81 S.Ct. at 860. See also 47 U.S.C. § 303(g).
6
For a discussion of the Fairness Doctrine and its relevance to this case, see text and notes, at nn. 15—34, infra.
7
Indeed, the Communications Act of 1934 makes it a criminal offense to operate a broadcast transmitter without a license. See 47 U.S.C. § 501. Thus, the Federal Government specifically insulates the licensee from any real threat of economic competition.
8
Thus, the Communications Act of 1934 authorizes the Federal Communications Commission to assign frequency bands, 47 U.S.C. § 303(c); allocate licenses by location, § 303(d); regulate apparatus, § 303(e); establish service areas, § 303(h); regulate chain ownership, § 303(i); require the keeping of detailed records, § 303(j); establish qualifications of licensees, § 303(l); suspend licenses, § 303(m)(1); inspect station facilities, § 303(n); require publication of call letters and other information, § 303(p); make rules to effect regulation of radio and television, § 303(r); require that television sets be capable of receiving all signals, § 303(s); regulate the granting of licenses and the terms thereof, §§ 307, 309; prescribe information to be supplied by applicants for licenses, § 308(b); regulate the transfer of licenses, § 310; impose sanctions on licensees, including revocation of license, § 312; require fair coverage of controversial issues, § 315; control the operation of transmitting apparatus, § 318; and prohibit the use of offensive language, 18 U.S.C. § 1464.
9
Pursuant to statutory authority, see n. 8, supra, the Commission has promulgated myriad regulations governing all aspects of licensee conduct. See 47 CFR § 73.17 et seq. These regulations affect such matters as hours of operation, § 73.23; multiple ownership of licenses by a single individual, § 73.35; station location and program origination, § 73.30; maintenance of detailed logs of programming, operation, and maintenance, §§ 73.111—116; billing practices, § 73.124; the personal attack and political editorial fairness requirements, § 73.123; relationship of licensees to networks, §§ 73.131—139; permissible equipment, §§ 73.39—50. The above-cited regulations relate only to AM radio, but similar regulations exist for FM radio, § 73.201 et seq., and television, § 73.601 et seq.
10
In addition, the Court contends that, because of the Fairness Doctrine, the challenged broadcaster policy does not discriminate against controversial speech. See ante, at 128—130.
11
Moreover, the appropriateness of a particular forum, even if privately owned, for effective communication has in some instances been emphasized to establish the relevance of First Amendment protections. See, e.g., 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); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Here, as the Court of Appeals recognized, 'the broadcast media are specifically dedicated to communication. They function as both our foremost forum for public speech and our most important educator of an informed people.' 146 U.S.App.D.C. 181, 192, 450 F.2d 642, 653. See also text and notes, at nn. 35—37, infra.
12
In his concurring opinion, my Brother STEWART suggests that a finding of governmental action in this context necessarily means that 'private broadcasters are Government.' Ante, at 139 (emphasis in original). In my view, this assertion reflects a complete misunderstanding of the nature of the governmental involvement in these cases. Here, the Government has selected the persons who will be permitted to operate a broadcast station, extensively regulates those broadcasters, and has specifically approved the challenged broadcaster policy. Thus, the commands of the First Amendment come into play, not because 'private broadcasters are Government,' but, rather, because the Government 'has so far insinuated itself into a position' of participation in the challenged policy as to make the Government itself responsible for its effects. Similarly, I cannot agree with my Brother STEWART'S suggestion that a finding of governmental involvement here 'would . . . simply strip broadcasters of their own First Amendment rights.' Ibid. The actions of a purely private individual are, of course, not subject to the constraints of the First Amendment. But where, as here, the
Government has implicated itself in the actions of an otherwise private individual, that individual must exercise his own rights with due regard for the First Amendment rights of others. In other words, an accommodation of competing rights is required, and 'balancing,' not the 'absolutist' approach suggested by my Brother STEWART, is the result. Indeed, it is this misunderstanding of the significance of governmental involvement that apparently leads to my Brother STEWART'S disagreement with my Brothers WHITE, BLACKMUN, and POWELL as to the relationship between the 'public interest' standard of the Act and First Amendment 'values.'
I might also note that, contrary to the suggestion of my Brother STEWART, a finding of governmental involvement in this case does not in any sense command a similar conclusion with respect to newspapers. Indeed, the factors that compel the conclusion that the Government is involved in the promulgation and enforcement of the challenged broadcaster policy have simply no relevance to newspapers. The decision as to who shall operate newspapers is made in the free market, not by Government fiat. The newspaper industry is not extensively regulated and, indeed, in light of the differences between the electronic and printed media, such regulation would violate the First Amendment with respect to newspapers. Finally, since such regulation of newspapers would be impossible, it would likewise be impossible for the Government to approve an exclusionary policy of newspapers in the sense that it has approved the challenged policy of the broadcasters.
13
New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964); see also Pickering v. Board of Education, 391 U.S. 563, 573, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968); Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966).
14
This was not new doctrine, for we have long recognized in a variety of contexts that the First Amendment 'necessarily protects the right to receive (information).' Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943); see, e.g., Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967); Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965).
15
The Fairness Doctrine was recognized and implicitly approved by Congress in the 1959 amendments to § 315 of the Communications Act. Act of Sept. 14, 1959, § 1, 73 Stat. 557, 47 U.S.C. § 315(a). As amended, § 315(a) recognizes the obligation of broadcasters 'to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.'
16
The Fairness Doctrine was first fully set forth in Report in the Matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949), and was elaborated upon in Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.Reg. 10415 (1964). The statutory authority of the Commission to promulgate this doctrine and related regulations derives from the mandate to the 'Commission from time to time, as public convenience, interest, or necessity requires,' to promulgate 'such rules and regulations and prescribe such restrictions and conditions . . . as may be necessary to carry out the provisions of (the Act). . . .' 47 U.S.C. § 303(r).
17
See John J. Dempsey, 6 P & F Radio Reg. 615 (1950); see also Metropolitan Broadcasting Corp., 19 P & F Radio Reg. 602 (1960); The Evening News Assn., 6 P & F Radio Reg. 283 (1950).
18
If the broadcaster presents one side of a question, and does not wish to present the other side himself, he can fulfill his fairness obligation by announcing his willingness to broadcast opposing views by volunteers. See Mid-Florida Television Corp., 40 F.C.C. 620 (1964). If the broadcaster rejects a volunteer spokesman as 'inappropriate,' he must seek out others. See Richard G. Ruff, 19 F.C.C.2d 838 (1969). The broadcaster must provide free time for the presentation of opposing views if sponsorship is unavailable. See Cullman Broadcasting Co., 25 P & F Radio Reg. 895 (1963).
19
Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, supra, n. 16, at 10424.
20
Notice of Inquiry: The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 30 F.C.C.2d 26, 27—28 (1971); see also Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, supra, n. 16, at 10416; Report in the Matter of Editorializing by Broadcast Licensees, supra, n. 16.
21
Thus, the Fairness Doctrine must be sharply distinguished from the 'equal time' requirement, which provides that a broadcaster who affords air time to one political candidate must make equal time available to other candidates for the same office. 47 U.S.C. § 315. See also Nicholas Zapple, 23 F.C.C.2d 707 (1970) (extension of 'equal time' rule to cover a candidate's supporters where spokesmen for other candidates are permitted to purchase air time). Similarly, the Fairness Doctrine must not be confused with the Commission's 'personal attack' and 'political editorializing' rules which were upheld in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The 'personal attack' rule provides that '(w)hen, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person,' the licensee must notify the person attacked and offer him an opportunity to respond. 47 CFR § 73.123. The 'political editorializing' rule provides that when a licensee endorses a candidate for political office it must give other candidates or their spokesmen an opportunity to respond. See, e.g., 47 CFR § 73.123. Thus, unlike the Fairness Doctrine, the 'equal time,' 'personal attack,' and 'political editorializing' rules grant a particular group or individual a limited 'right of access' to the airwaves not subject to the 'journalistic supervision' of the broadcaster.
22
Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945).
23
Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Access, 85 Harv.L.Rev. 768, 773 n. 26 (1972).
24
See generally D. Lacy, Freedom and Communications 69 (1961); Mallamud, The Broadcast Licensee as Fiduciary: Toward the Enforcement of Discretion, 1973 Duke L.J. 89, 94—95, 98—99; Jaffe, supra, n. 23, at 773 n. 26; Canby, The First Amendment Right to Persuade: Access to Radio and Television, 19 U.C.L.A.L.Rev. 723, 727 (1972); Malone, Broadcasting, The Reluctant Dragon: Will the First Amendment Right of Access End the Suppressing of Controversial Ideas?, 5 U.Mich.J.L.Reform 193, 205—211, 216 (1972); Johnson & Westen, A Twentieth Century Soapbox: The Right to Purchase Radio and Television Time, 57 Va.L.Rev. 574 (1971); Barron, Access to the Press—A New First Amendment Right, 80 Harv.L.Rev. 1641 (1967); Note, Free Speech and the Mass Media, 57 Va.L.Rev. 636 (1971); Note, A Fair Break for Controversial Speakers: Limitations of the Fairness Doctrine and the Need for Individual Access, 39 Geo.Wash.L.Rev. 532 (1971); Note, The Wasteland Revisited: A Modest Attack Upon the FCC's Category System, 17 U.C.L.A.L.Rev. 868, 870—875 (1970); Comment, Freedom of Speech and the Individual's Right of Access to the Airwaves, 1970 Law & Social Order 424, 428; Note, The Federal Communications Commission's Fairness Regulations: A First Step Towards Creation of a Right of Access to the Mass Media, 54 Cornell L.Rev. 294, 296 (1969).
Although admitting that the Fairness Doctrine 'has not always brought to the public perfct or, indeed, even consistently high-quality treatment of all public events and issues,' the Court nevertheless suggests that a broadcaster who fails to fulfill his fairness obligations does so 'at the risk of losing his license.' Ante, at 130—131. The Court does not cite a single instance, however, in which this sanction has ever been invoked because of a broadcaster's failure to comply with the Fairness Doctrine. Indeed, this is not surprising, for the Commission has acted with great reluctance in this area, intervening in only the most extreme cases of broadcaster abuse. See Mallamud, supra, at 115 122; Canby, supra, at 725—727; Malone, supra, at 215—216; see also Cox & Johnson, Broadcasting in America and the FCC's License Renewal Process: An Oklahoma Case Study, 14 F.C.C.2d 1 (1968).
25
Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 392 n. 18, 89 S.Ct. at 1807, quoting J. Mill, On Liberty 32 (R. McCallum ed. 1947).
26
Democratic National Committee, 25 F.C.C.2d, at 222 (emphasis added).
27
Indeed, the failure to provide adequate means for groups and individuals to bring new issues or ideas to the attention of the public explains, at least to some extent, 'the development of new media to convey unorthodox, unpopular, and new ideas. Sit-ins and demonstrations testify to . . . the inability to secure access to the conventional means of reaching and changing public opinion. (For by) the bizarre and unsettling nature of his technique, the demonstrator hopes to arrest and divert attention long enough to compel the public to ponder his message.' Barron, 80 Harv.L.Rev., at 1647; cf. Adderley v. Florida, 385 U.S. 39, 50—51, 87 S.Ct. 242, 248—249, 17 L.Ed.2d 149 (1966) (Douglas, J., dissenting).
28
Brief for American Broadcasting Companies, Inc. 52.
29
Brief for Columbia Broadcasting System, Inc. 34.
30
Id., at 40.
31
Brief for National Broadcasting Company, Inc. 10.
32
Brief for Post-Newsweek Stations, Capital Area, Inc. 31.
33
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 512, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969).
34
United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.1943), aff'd, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). See also Thomas v. Collins, 323 U.S. 516, 545, 65 S.Ct. 315, 329, 89 L.Ed. 430 (1945) (Jackson, J., concurring).
35
The Court does make the rather novel suggestion, however, that editorial advertising might indeed be 'inappropriate' because 'listeners and viewers constitute a 'captive audience." Ante, at 127. In support of this proposition, the Court cites our decisions in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952), and Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). In Pollak, however, we explicitly rejected a claim that the broadcasting of radio programs in streetcars violated the First and Fifth Amendment rights of passengers who did not wish to listen to those programs. And in Kovacs, although we upheld an ordinance forbidding the use on public streets of sound trucks which emit 'loud and raucous noises,' we did so because the ordinance was concerned, not with the content of speech, but, rather, with the offensiveness of the sounds themselves. Here, however, the Court seems perfectly willing to allow broadcasters to continue to invade the 'privacy' of the home through commercial advertising and even controversial programming under the Fairness Doctrine. Thus, the Court draws its line solely on the basis of the content of the particular speech involved and, of course, we have consistently held that, where content is at issue, constitutionally protected speech may not be prohibited because of a 'mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.' Tinker v. Des Moines Independent Community School District, 393 U.S., at 509, 89 S.Ct., at 738; see e.g., Grayned v. City of Rockford, 408 U.S. 104, 117, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222 (1972). The suggestion that constitutionally protected speech may be banned because some persons may find the ideas expressed offensive is, in itself, offensive to the very meaning of the First Amendment.
36
Indeed, approximately 95% of American homes contain at least one television set, and that set is turned on for an average of more than five and one-half hours per day. See Hearings on H.R. 13721 before the Subcommittee on Communications and Power of the House Committee on Interstate and Foreign Commerce, 91st Cong., 2d Sess., 7 (1970) (statement of Dean Burch, Chairman of the Federal Communications Commission). As to the potential influence of the electronic media on American thought, see generally A. Krock, The Consent of the Governed 66 (1971); H. Mendelsohn & I. Crespi, Polls, Television, and the New Politics 256, 264 (1970); Malone, 5 U.Mich.J.L. Reform, at 197.
37
H.R.Rep. No. 91—257, p. 6 (1969). According to one study, 67% of Americans prefer the electronic media to other sources of information. See G. Wyckoff, The Image Candidates 13—14 (1968). See also Amendment of Sections 73.35, 73.240, and 73.636 of the Commission's Rules, 22 F.C.C.2d 339, 344 (1970) (59% of Americans depend on television as their principal source of news).
38
It should be noted that, although the Fairness Doctrine is at least arguably relevant to the public's interest in receiving suitable exposure to 'uninhibited, robust, and wide-open' debate on controversial issues, it is not in any sense relevant to the individual's interest in obtaining access to the airwaves for the purpose of effective self-expression. For the individual's interest in expressing his own views in a manner of his own choosing is an inherently personal one, and it can never be satisfied by the expression of 'similar' views by a surrogate spokesman.
39
Indeed, pre-1927 regulation of radio gave no discretion to the Federal Government to deny the right to operate a broadcast station. See 1 A. Socolow, The Law of Radio Broadcasting 38 (1939); H. Warner, Radio & Television Law 757 et seq. (1948); see generally National Broadcasting Co. v. United States, 319 U.S. 190, 210—214, 63 S.Ct. 997, 1006—1009, 87 L.Ed. 1344 (1943).
40
67 Cong.Rec. 5479 (Rep. White).
41
These include, of course, not only public broadcasting, but also 'amateur operation, aircraft, police, defense, and navigation . . ..' Red Lion Broadcasting Co. v. FCC, 395 U.S., at 388, 89 S.Ct., at 1806.
42
Although this licensing scheme necessarily restricts the First Amendment rights of those groups or individuals who are denied the 'right to operate a broadcast station, it does not, in and of itself, violate the First Amendment. For it has long been recognized that when '(c)onflicting demands on the same (forum) . . . compel the (Government) to make choices among potential users and uses,' neutral rules of allocation to govern that scarce communications resource are not per se unconstitutional. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972); cf. Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941); Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). And, in the context of broadcasting, it would be ironic indeed 'if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible . . . by limiting the number of licenses so as not to overcrowd the spectrum.' Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 389, 89 S.Ct. at 1806.
43
Id., at 388, 89 S.Ct., at 1806.
44
See, e.g., 47 U.S.C. § 326.
45
Thus, as the Court of Appeals recognized, '(i)n normal programming time, closely controlled and edited by broadcasters, the constellation of constitutional interests would be substantially different.' 146 U.S.App.D.C., at 193, 450 F.2d, at 654.
46
See, e.g., Police Dept. of Chicago v. Mosley, supra, at 98, 92 S.Ct., at 2291; Grayned v. City of Rockford, 408 U.S., at 115, 92 S.Ct., at 2302; Cox v. Louisiana, supra, 379 U.S., at 554, 85 S.Ct., at 464; Poulos v. New Hampshire, 345 U.S. 395, 398, 73 S.Ct.760, 762, 97 L.Ed. 1105 (1953); Cox v. New Hampshire, supra, 312 U.S., at 575—576, 61 S.Ct., at 765—766; Schneider v. State, supra, 308 U.S., at 160, 60 S.Ct., at 150.
47
Contrary to the Court's assertion, the existence of the Fairness Doctrine cannot in any sense rationalize this discrimination. Indeed, the Fairness Doctrine is wholly unresponsive to the need for individual access to the airwaves for the purpose of effective self-expression. See also n. 38, supra.
48
The Court of Appeals did, however, suggest certain possible contours of implementation. For example, the court noted that broadcasters should be permitted 'to place an outside limit on the total amount of editorial advertising they will sell,' and "reasonable regulation' of the placement of advertisements is altogether proper,' 146 U.S.App.D.C., at 202, 450 F.2d, at 663.
49
Id., at 204—205, 450 F.2d, at 665—666.
| 23
|
412 U.S. 218
93 S.Ct. 2041
36 L.Ed.2d 854
Merle R. SCHNECKLOTH, Superintendent, California Conservation Center, Petitioner,v.Robert Clyde BUSTAMONTE.
No. 71—732.
Argued Oct. 10, 1972.
Decided May 29, 1973.
Syllabus
During the course of a consent search of a car that had been stopped by officers for traffic violations, evidence was discovered that was used to convict respondent of unlawfully possessing a check. In a habeas corpus proceeding, the Court of Appeals, reversing the District Court, held that the prosecution had failed to prove that consent to the search had been made with the understanding that it could freely be withheld. Held: When the subject of a search is not in custody and the State would justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntary; voluntariness is to be determined from the totality of the surrounding circumstances. While knowledge of a right to refuse consent is a factor to be taken into account, the State need not prove that the one giving permission to search knew that he had a right to withhold his consent. Pp. 2045—2059.
448 F.2d 699, reversed.
Robert R. Granucci, San Francisco, Cal., for petitioner.
Stuart P. Tobisman, Los Angeles, Cal., for the respondent, pro hac vice, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576; Coolidge v. New Hampshire, 403 U.S. 443, 454—455, 91 S.Ct. 2022, 2031—2032, 29 L.Ed.2d 564; Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419. It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Davis v. United States, 328 U.S. 582, 593—594, 66 S.Ct. 1256, 1261—1262, 90 L.Ed. 1453; Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed. 1477. The constitutional question in the present case concerns the definition of 'consent' in this Fourth and Fourteenth Amendment context.
2
* The respondent was brought to trial in a California court upon a charge of possessing a check with intent to defraud.1 He moved to suppress the introduction of certain material as evidence against him on the ground that the material had been acquired through an unconstitutional search and seizure. In response to the motion, the trial judge conducted an evidentiary hearing where it was established that the material in question had been acquired by the State under the following circumstances:
3
While on routine patrol in Sunnyvale, California, at approximately 2:40 in the morning, Police Officer James Rand stopped an automobile when he observed that one headlight and its license plate light were burned out. Six men were in the vehicle. Joe Alcala and the respondent, Robert Bustamonte, were in the front seat with Joe Gonzales, the driver. Three older men were seated in the rear. When, in response to the policeman's question, Gonzales could not produce a driver's license, Officer Rand asked if any of the other five had any evidence of identification. Only Alcala produced a license, and he explained that the car was his brother's. After the six occupants had stepped out of the car at the officer's request and after two additional policemen had arrived, Officer Rand asked Alcala if he could search the car. Alcala replied, 'Sure, go ahead.' Prior to the search no one was threatened with arrest and, according to Officer Rand's uncontradicted testimony, it 'was all very congenial at this time.' Gonzales testified that Alcala actually helped in the search of the car, by opening the trunk and glove compartment. In Gonzales' words: '(T)he police officer asked Joe (Alcala), he goes, 'Does the trunk open?' And Joe said, 'Yes.' He went to the car and got the keys and opened up the trunk.' Wadded up under the left rear seat, the police officers found three checks that had previously been stolen from a car wash.
4
The trial judge denied the motion to suppress, and the checks in question were admitted in evidence at Bustamonte's trial. On the basis of this and other evidence he was convicted, and the California Court of Appeal for the First Appellate District affirmed the conviction. 270 Cal.App.2d 648, 76 Cal.Rptr. 17. In agreeing that the search and seizure were constitutionally valid, the appellate court applied the standard earlier formulated by the Supreme Court of California in an opinion by then Justice Traynor: 'Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.' People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852, 854. The appellate court found that '(i)n the instant case the prosecution met the necessary burden of showing consent . . . since there were clearly circumstances from which the trial court could ascertain that consent had been freely given without coercion or submission to authority. Not only officer Rand, but Gonzales, the driver of the automobile, testified that Alcala's assent to the search of his brother's automobile was freely, even casually given. At the time of the request to search the automobile the atmosphere, according to Rand, was 'congenital' and there has been no discussion of any crime. As noted, Gonzales said Alcala even attempted to aid in the search.' 270 Cal.App.2d, at 652, 76 Cal.Rptr., at 20. The California Supreme Court denied review.2
5
Thereafter, the respondent sought a writ of habeas corpus in a federal district court. It was denied.3 On appeal, the Court of Appeals for the Ninth Circuit, relying on its prior decisions in Cipres v. United States, 343 F.2d 95, and Schoepflin v. United States, 391 F.2d 390, set aside the District Court's order. 448 F.2d 699. The appellate court reasoned that a consent was a waiver of a person's Fourth and Fourteenth Amendment rights, and that the State was under an obligation to demonstrate, not only that the consent had been uncoerced, but that it had been given with an understanding that it could be freely and effectively withhold. Consent could not be found, the court held, solely from the absence of coercion and a verbal expression of assent. Since the District Court had not determined that Alcala had known that his consent could have been withheld and that he could have refused to have his vehicle searched, the Court of Appeals vacated the order denying the writ and remanded the case for further proceedings. We granted certiorari to determine whether the Fourth and Fourteenth Amendments require the showing thought necessary by the Court of Appeals. 405 U.S. 953, 92 S.Ct. 1168, 31 L.Ed.2d 230.
II
6
It is important to make it clear at the outset what is not involved in this case. The respondent concedes that a search conducted pursuant to a valid consent is constitutionally permissible. In Katz v. United States, 389 U.S., at 358, 88 S.Ct., at 515, and more recently in Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409, we recognized that a search authorized by consent is wholly valid. See also Davis v. United States, 328 U.S., at 593—594, 66 S.Ct., at 1261—1262; Zap v. United States, 328 U.S., at 630, 66 S.Ct., at 1280.4 And similarly the State concedes that '(w)hen 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, freedly and voluntarily given.' Bumper v. North Corolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797. See also Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.
7
The precise question in this case, then, is what must the prosecution prove to demonstrate that a consent was 'voluntarily' given. And upon that question there is a square conflict of views between the state and federal courts that have reviewed the search involved in the case before us. The Court of Appeals for the Ninth Circuit concluded that it is an essential part of the State's initial burden to prove that a person knows he has a right to refuse consent. The California courts have followed the rule that voluntariness is a question of fact to be determined from the totality of all the circumstances, and that the state of a defendant's knowledge is only one factor to be taken into account in assessing the voluntariness of a consent. See, e.g., People v. Tremayne, 20 Cal.App.3d 1006, 98 Cal.Rptr. 193; People v. Roberts, 246 Cal.App.2d 715, 55 Cal.Rptr. 62.
A.
8
The most extensive judicial exposition of the meaning of 'voluntariness' has been developed in those cases in which the Court has had to determine the 'voluntariness' of a defendant's confession for purposes of the Fourteenth Amendment. Almost 40 years ago, in Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, the Court held that a criminal conviction based upon a confession obtained by brutality and violence was constitutionally invalid under the Due Process Clause of the Fourteenth Amendment. In some 30 different cases decided during the era that intervened between Brown and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the Court was faced with the necessity of determining whether in fact the confessions in issue had been 'voluntarily' given.5 It is to that body of case law to which we turn for initial guidance on the meaning of 'voluntariness' in the present context.6
9
Those cases yield no talismanic definition of 'voluntariness,' mechanically applicable to the host of situations where the question has arisen. 'The notion of 'voluntariness," Mr. Justice Frankfurter once wrote, 'is itself an amphibian.' Culombe v. Connecticut, 367 U.S. 568, 604—605, 81 S.Ct. 1860, 1880—1881, 6 L.Ed.2d 1037. It cannot be taken literally to mean a 'knowing' choice. 'Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements—even those made under brutal treatment—are 'voluntary' in the sense of representing a choice of alternatives. On the other hand, if 'voluntariness' incorporates notions of 'butfor' cause, the question should be whether the statement would have been made even absent inquiry or other official action. Under such a test, virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind.'7 It is thus evident that neither linguistics nor epistemology will provide a ready definition of the meaning of 'voluntariness.'
10
Rather, 'voluntariness' has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws. See Culombe v. Connecticut, supra, at 578—580, 81 S.Ct., at 1865—1866. Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513. At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice. '(I)n cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.' Blackburn v. Alabama, 361 U.S. 199, 206 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242. See also Culombe v. Connecticut, supra, 367 U.S., at 581—584, 81 S.Ct., at 1867—1869; Chambers v. Florida, 309 U.S. 227, 235—238, 60 S.Ct. 472, 476—478, 84 L.Ed. 716.
11
This Court's decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect. 'The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.' Culombe v. Connecticut, supra, 367 U.S., at 602, 81 S.Ct., at 1879.
12
In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, e.g., Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; his lack of education, e.g., Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; or his low intelligence, e.g., Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; the lack of any advice to the accused of his constitutional rights, e.g., Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; the length of detention, e.g., Chambers v. Florida, supra; the repeated and prolonged nature of the questioning, e.g., Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; and the use of physical punishment such as the deprivation of food or sleep, e.g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948.8 In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. Culombe v. Connecticut, supra, 367 U.S., at 603, 81 S.Ct., at 1879.
13
The significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances. See Miranda v. Arizona, 384 U.S. 436, 508, 86 S.Ct. 1602, 1645, 16 L.Ed.2d 694 (Harlan, J., dissenting); id., at 534—535, 86 S.Ct., at 1659—1660 (White, J., dissenting). In none of them did the Court rule that the Due Process Clause required the prosecution to prove as part of its initial burden that the defendant knew he had a right to refuse to answer the questions that were put. While the state of the accused's mind, and the failure of the police to advise the accused of his rights, were certainly factors to be evaluated in assessing the 'voluntariness' of an accused's responses, they were not in and of themselves determinative. See, e.g., Davis v. North Carolina, supra; Haynes v. Washington, supra, 373 U.S., at 510 511, 83 S.Ct., at 1341—1342; Culombe v. Connecticut, supra, 367 U.S., at 610, 81 S.Ct., at 1883; Turner v. Pennsylvania, 338 U.S. 62, 64, 69 S.Ct. 1352, 93 L.Ed. 1810.
B
14
Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a 'voluntary' consent—the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.
15
In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.9 In the present case for example, while the police had reason to stop the car for traffic violations, the State does not contend that there was probable cause to search the vehicle or that the search was incident to a valid arrest of any of the occupants.10 Yet, the search yielded tangible evidence that served as a basis for a prosecution, and provided some assurance that others, wholly innocent of the crime, were not mistakenly brought to trial. And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.
16
But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746:
17
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'
18
The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity. Just as was true with confessions, the requirement of a 'voluntary' consent reflects a fair accommodation of the constitutional requirements involved. In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. In sum, there is no reason for us to depart in the area of consent searches, from the traditional definition of 'voluntariness.'
19
The approach of the Court of Appeals for the Ninth Circuit finds no support in any of our decisions that have attempted to define the meaning of 'voluntariness.' Its ruling, that the State must affirmatively prove that the subject of the search knew that he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could continue to be conducted. There might be rare cases where it could be proved from the record that a person in fact affirmatively knew of his right to refuse—such as a case where he announced to the police that if he didn't sign the consent form, 'you (police) are going to get a search warrant;'11 or a case where by prior experience and training a person had clearly and convincingly demonstrated such knowledge.12 But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.
20
The very object of the inquiry—the nature of a person's subjective understanding—underlines the difficulty of the prosecution's burden under the rule applied by the Court of Appeals in this case. Any defendant who was the subject of a search authorized solely by his consent could effectively frustrate the introduction into evidence of the fruits of that search by simply failing to testify that he in fact knew he could refuse to consent. And the near impossibility of meeting this prosecutorial burden suggests why this Court has never accepted any such litmus-paper test of voluntariness. It is instructive to recall the fears of then Justice Traynor of the California Supreme Court:
21
'(I)t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes. Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority.' People v. Michael, 45 Cal.2d, at 754, 290 P.2d, at 854.
22
One alternative that would go far toward proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universally repudiated by both federal13 and state courts,14 and, we think, rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights. Cf. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274. And, while surely a closer question, these situations are still immeasurably, far removed from 'custodial interrogation' where, in Miranda v. Arizona, supra, we found that the Constitution required certain now familiar warnings as a prerequisite to police interrogation. Indeed, in language applicable to the typical consent search, we refused to extend the need for warnings:
23
'Our decision is not intended to hamper the traditional function of police officers in investigating crime. . . . When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.' 384 U.S., at 477—478, 86 S.Ct., at 1629—1630.
24
Consequently, we cannot accept the position of the Court of Appeals in this case that proof of knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a 'voluntary' consent. Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.
25
For example in Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453, federal agents enforcing wartime gasoline-rationing regulations, arrested a filling station operator and asked to see his rationing coupons. He eventually unlocked a room where the agents discovered the coupons that formed the basis for his conviction. The District Court found that the petitioner had consented to the search—that although he had at first refused to turn the coupons over, he had soon been persuaded to do so and that force or threat of force had not been employed to persuade him. Concluding that it could not be said that this finding was erroneous, this Court, in an opinion by Mr. Justice Douglas that looked to all the circumstances surrounding the consent, affirmed the judgment of conviction: 'The public character of the property, the fact that the demand was made during business hours at the place of business where the coupons were required to be kept, the existence of the right to inspect, the nature of the request, the fact that the initial refusal to turn the coupons over was soon followed by acquiescence in the demand—these circumstances all support the conclusion of the District Court.' Id., 328 U.S., at 593—594, 66 S.Ct., at 1261 1262, 90 L.Ed. 1453. See also Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477.
26
Conversely, if under all the circumstances it has appeared that the consent was not given voluntarily—that it was coerced by threats or force, or granted only in submission to a claim of lawful authority—then we have found the consent invalid and the search unreasonable. See, e.g., Bumper v. North Carolina, 391 U.S., at 548—549, 88 S.Ct., at 1791—1792; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654. In Bumper, a 66-year-old Negro widow, who lived in a house located in a rural area at the end of an isolated mile-long dirt road, allowed four white law enforcement officials to search her home after they asserted they had a warrant to search the house. We held the alleged consent to be invalid, noting that '(w)hen 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.' 391 U.S., at 550, 88 S.Ct., at 1792.
27
Implicit in all of these cases is the recognition that knowledge of a right to refuse is not a prerequisite of a voluntary consent. If the prosecution were required to demonstrate such knowledge, Davis and Zap could not have found consent without evidence of that knowledge. And similarly if the failure to prove such knowledge were sufficient to show an ineffective consent, the Amos, Johnson, and Bumper opinions would surely have focused upon the subjective mental state of the person who consented. Yet they did not.
28
In short, neither this Court's prior cases, nor the traditional definition of 'voluntariness' requires proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search.15
C
29
It is said, however, that a 'consent' is a 'waiver' of a person's rights under the Fourth and Fourteenth Amendments. The argument is that by allowing the police to conduct a search, a person 'waives' whatever right he had to prevent the police from searching. It is argued that under the doctrine of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, to establish such a 'waiver' the State must demonstrate 'an intentional relinquishment or abandonment of a known right or privilege.'
30
But these standards were enunciated in Johnson in the context of the safeguards of a fair criminal trial. Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection. As Mr. Justice Black once observed for the Court: "Waiver' is a vague term used for a great variety of purposes, good and bad, in the law.' Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 226, 2 L.Ed.2d 199. With respect to procedural due process, for example, the Court has acknowledged that waiver is possible, while explicitly leaving open the question whether a 'knowing and intelligent' waiver need be shown.16 See D. H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 185—186, 92 S.Ct. 775, 782, 31 L.Ed.2d 124; Fuentes v. Shevin, 407 U.S. 67, 94—96, 92 S.Ct. 1983, 2001—2002, 32 L.Ed.2d 556.17
31
The requirement of a 'knowing' and 'intelligent' waiver was articulated in a case involving the validity of a defendant's decision to forego a right constitutionally guaranteed to protect a fair trial and the reliability of the truth-determining process. Johnson v. Zerbst, supra, dealt with the denial of counsel in a federal criminal trial. There the Court held that under the Sixth Amendment a criminal defendant is entitled to the assistance of counsel, and that if he lacks sufficient funds to retain counsel, it is the Government's obligation to furnish him with a lawyer. As Mr. Justice Black wrote for the Court: 'The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done.' It 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 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.' 304 U.S., at 462—463, 58 S.Ct., at 1022 (footnote omitted). To preserve the fairness of the trial process the Court established an appropriately heavy burden on the Government before waiver could be found—'an intentional relinquishment or abandonment of a known right or privilege.' Id., at 464, 58 S.Ct., at 1023.
32
Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.18 Hence, and hardly surprisingly in view of the facts of Johnson itself, the standard of a knowing and intelligent waiver has most often been applied to test the validity of a waiver of counsel, either at trial,19 or upon a guilty plea.20 And the Court has also applied the Johnson criteria to assess the effectiveness of a waiver of other trial rights such as the right to confrontation,21 to a jury trial,22 and to a speedy trial,23 and the right to be free from twice being placed in jeopardy.24 Guilty pleas have been carefully scrutinized to determine whether the accused knew and understood all the rights to which he would be entitled at trial, and that he had intentionally chosen to forgo them.25 And the Court has evaluated the knowing and intelligent nature of the waiver of trial rights in trial-type situations, such as the waiver of the privilege against compulsory self-incrimination before an administrative agency26 or a congressional committee,27 or the waiver of counsel in a juvenile proceeding.28
33
The guarantees afforded a criminal defendant at trial also protect him at certain stages before the actual trial, and any alleged waiver must meet the strict standard of an intentional relinquishment of a 'known' right. But the 'trial' guarantees that have been applied to the 'pretrial' stage of the criminal process are similarly designed to protect the fairness of the trial itself.
34
Hence, 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, the 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 . . ..' Id., at 272, 87 S.Ct., at 1956. Accordingly, the Court indicated that the standard of a knowing and intelligent waiver must be applied to test the waiver of counsel at such a lineup. See United States v. Wade, supra, 388 U.S., at 237, 87 S.Ct., at 1937. The Court stressed the necessary interrelationship between the presence of counsel at a post-indictment lineup before trial and the protection of the trial process itself:
35
'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 the 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. 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—1937.
36
And in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Court found that custodial interrogation by the police was inherently coercive, and consequently held that detailed warnings were required to protect the privilege against compulsory self-incrimination. The Court made it clear that the basis for decision was the need to protect the fairness of the trial itself:
37
'That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warnings and the rights of counsel, 'all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police." Id., at 466, 86 S.Ct., at 1623.
38
The standards of Johnson were, therefore, found to be a necessary prerequisite to a finding of a valid waiver. See 384 U.S., at 475—479, 86 S.Ct., at 1628—1631. Cf. Escobedo v. Illinois, 378 U.S., at 490 n. 14, 84 S.Ct., at 1765.29
39
There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a 'knowing' and 'intelligent' waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.
40
A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided. A prime example is the right to counsel. For without that right, a wholly innocent accused faces the real and substantial danger that simply because of his lack of legal expertise he may be convicted. As Mr. Justice Harlan once wrote: 'The sound reason why (the right to counsel) is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself.' Miranda v. Arizona, supra, 384 U.S., at 514, 86 S.Ct., at 1649 (dissenting opinion). The Constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial.30
41
The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. Rather, as Mr. Justice Frankfurter's opinion for the Court put it in Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, the Fourth Amendment protects the 'security of one's privacy against arbitrary intrusion by the police . . ..' In declining to apply the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, to convictions that had become final before rendition of that decision, the Court emphasized that 'there is no likelihood of unreliability or coercion present in a search-and-seizure case,' Linkletter v. Walker, 381 U.S. 618, 638, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601. In Linkletter, the Court indicated that those cases that had been given retroactive effect went to 'the fairness of the trial—the very integrity of the fact-finding process. Here . . . the fairness of the trial is not under attack.' Id., at 639, 85 S.Ct., at 1743. The Fourth Amendment 'is not an adjunct to the ascertainment of truth.' The guarantees of the Fourth Amendment stand 'as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone. To recognize this is no more than to accord those values undiluted respect.' Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453.
42
Nor can it even be said that a search, as opposed to an eventual trial, is somehow 'unfair' if a person consents to a search. While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person's voluntarily allowing a search. The actual conduct of the search may be precisely the same as if the police had obtained a warrant. And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment. We have only recently stated: '(I)t is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.' Coolidge v. New Hampshire, 403 U.S., at 488, 91 S.Ct., at 2049. Rather, the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.
43
Those cases that have dealt with the application of the Johnson v. Zerbst rule make clear that it would be next to impossible to apply to a consent search the standard of 'an intentional relinquishment or abandonment of a known right or privilege.'31 To be true to Johnson and its progeny, there must be examination into the knowing and understanding nature of the waiver, an examination that was designed for a trial judge in the structured atmosphere of a courtroom. As the Court expressed it in Johnson:
44
'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.' 304 U.S., at 465, 58 S.Ct., at 1023, 82 L.Ed. 1461.32
45
It would be unrealistic to expect that in the informal, unstructured context of a consent search, a policeman, upon pain of tainting the evidence obtained, could make the detailed type of examination demanded by Johnson. And, if for this reason a diluted form of 'waiver' were found acceptable, that would itself be ample recognition of the fact that there is no universal standard that must be applied in every situation where a person foregoes a constitutional right.33
46
Similarly, a 'waiver' approach to consent searches would be thoroughly inconsistent with our decisions that have approved 'third party consents.' In Coolidge v. New Hampshire, 403 U.S., at 487—490, 91 S.Ct., at 2048—2050, where a wife surrendered to the police guns and clothing belonging to her husband, we found nothing constitutionally impermissible in the admission of that evidence at trial since the wife had not been coerced. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684, held that evidence seized from the defendant's duffel bag in a search authorized by his cousin's consent was admissible at trial. We found that the defendant had assumed the risk that his cousin, with whom he shared the bag, would allow the police to search it. See also Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. And in Hill v. California, 401 U.S. 797, 802—805, 91 S.Ct. 1106, 1110 1111, 28 L.Ed.2d 484, we held that the police had validly seized evidence from the petitioner's apartment incident to the arrest of a third party, since the police had probable cause to arrest the petitioner and reasonably, though mistakenly, believed the man they had arrested was he. Yet it is inconceivable that the Constitution could countenance the waiver of a defendant's right to counsel by a third party, or that a waiver could be found because a trial judge reasonably, though mistakenly, believed a defendant had waived his right to plead not guilty.34
47
In short, there is nothing in the purposes or application of the waiver requirements of Johnson v. Zerbst that justifies, much less compels, the easy equation of a knowing waiver with a consent search. To make such an equation is to generalize from the broad rhetoric of some of our decisions, and to ignore the substance of the differing constitutional guarantees. We decline to follow what one judicial scholar has termed 'the domino method of constitutional adjudication . . . wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation.'35
D
48
Much of what has already been said disposes of the argument that the Court's decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent. The considerations that informed the Court's holding in Miranda are simply inapplicable in the present case. In Miranda the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation. The Court concluded that '(u)nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.' 384 U.S., at 458, 86 S.Ct., at 1619. And at another point the Court noted that 'without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.' Id., at 467, 86 S.Ct., at 1624.
49
In this case, there is no evidence of any inherently coercive tactics—either from the nature of the police questioning or the environment in which it took place. Indeed, since consent searches will normally occur on a person's own familiar territory, the specter of incommunicado police interrogation in some remote station house is simply inapposite.36 There is no reason to believe, under circumstances such as are present here, that the response to a policeman's question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person's response. Miranda, of course, did not reach investigative questioning of a person not in custody, which is most directly analogous to the situation of a consent search, and it assuredly did not indicate that such questioning ought to be deemed inherently coercive. See supra, at 232.
50
It is also argued that the failure to require the Government to establish knowledge as a prerequisite to a valid consent, will relegate the Fourth Amendment to the special province of 'the sophisticated, v. knowledgeable and the privileged.' We cannot agree. The traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights; and the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was in fact voluntarily given.37
E
51
Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.38 Because the California court followed these principles in affirming the respondent's conviction, and because the Court of Appeals for the Ninth Circuit in remanding for an evidentiary hearing required more, its judgment must be reversed.
52
It is so ordered.
53
Judgment of Court of Appeals reversed.
54
Mr. Justice BLACKMUN, concurring.
55
I join the Court's opinion and its judgment.
56
At the time Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), was decided, I, as a member of the Court of Appeals (but not of its panel) whose order was there reversed, found myself in agreement with the views expressed by Mr. Justice Harlan, writing for himself and my Brother Stewart in dissent. Id., at 242, 89 S.Ct., at 1082. My attitude has not changed in the four years that have passed since Kaufman was decided.
57
Although I agree with nearly all that Mr. Justice POWELL has to say in his detailed and persuasive concurring opinion, post, p. 250, I refrain from joining it at this time because, as Mr. Justice STEWART'S opinion reveals, it is not necessary to reconsider Kaufman in order to decide the present case.
58
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring.
59
While I join the opinion of the Court, it does not address what seems to me the overriding issue briefed and argued in this case: the extent to which federal habeas corpus should be available to a state prisoner seeking to exclude evidence from an allegedly unlawful search and seizure. I would hold that federal collateral review of a state prisoner's Fourth Amendment claims claims which rarely bear on innocence—should be confined solely to the question of whether the petitioner was provided a fair opportunity to raise and have adjudicated the question in state courts. In view of the importance of this issue to our system of criminal justice, I think it appropriate to express my views.
60
* Although petitions for federal habeas corpus assert a wide variety of constitutional questions, we are concerned in this case only with a Fourth Amendment claim that an unlawful search occurred and that the state court erred in failing to exclude the evidence obtained therefrom. A divided court in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), held that collateral review of search-and-seizure claims was appropriate on motions filed by federal prisoners under 28 U.S.C. § 2255. Until Kaufman, a substantial majority of the federal courts of appeals had considered that claims of unlawful search and seizure "are not proper matters to be presented by a motion to vacate sentence under § 2255 . . .." Id., at 220, 89 S.Ct., at 1070. The rationale of this view was fairly summarized by the Court:
61
'The denial of Fourth Amendment protection against unreasonable searches and seizures, the Government's argument runs, is of a different nature from denials of other constitutional rights which we have held subject to collateral attack by federal prisoners. For unlike a claim of denial of effective counsel or of violation of the privilege against self-incrimination, as examples, a claim of illegal search and seizure does not impugn the integrity of the fact-finding process or challenge evidence as inherently unreliable; rather, the exclusion of illegally seized evidence is simply a prophylatic device intended generally to deter Fourth Amendment violations by law enforcement officers.' Id., at 224, 89 S.Ct., at 1073.
62
In rejecting this rationale, the Court noted that under prior decisions 'the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial.'1 and concluded that there was no basis for restricting 'access by federal prisoners with illegal search-and-seizure claims to federal collateral remedies, while placing no similar restriction on access by state prisoners.' Id., at 225—226, 89 S.Ct., at 1073—1074. In short, on petition for habeas corpus or collateral review filed in a federal district court, whether by state prisoners under 28 U.S.C. § 2254 or federal prisoners under § 2255, the present rule is that Fourth Amendment claims may be asserted and the exclusionary rule must be applied in precisely the same manner as on direct review. Neither the history or purpose of habeas corpus, the desired prophylactic utility of the exclusionary rule as applied to Fourth Amendment claims, nor any sound reason relevant to the administration of criminal justice in our federal system justifies such a power.
II
63
The federal review involved in this Fourth Amendment case goes well beyond the traditional purpose of the writ of habeas corpus. Much of the present perception of habeas corpus stems from a revisionist view of the historic function that writ was meant to perform. The critical historical argument has focused on the nature of the writ at the time of its incorporation in our Constitution and at the time of the Habeas Corpus Act of 1867, the direct ancestor of contemporary habeas corpus statutes.2 In Fay v. Noia, 372 U.S. 391, 426, 83 S.Ct. 822, 842, 9 L.Ed.2d 837 (1963), the Court interpreted the writ's historic position as follows:
64
'At the time the provilege of the writ was written into the Federal Constitution it was settled that the writ lay to test any restraint contrary to fundamental law, which in England stemmed ultimately from Magna Charta but in this country was embodied in the written Constitution. Congress in 1867 sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Obedient to this purpose, we have consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings.'
65
If this were a correct interpretation of the relevant history, the present wide scope accorded the writ would have arguable support, despite the impressive reasons to the contrary. But recent scholarship has cast grave doubt on Fay's version of the writ's historic function.
66
It has been established that both the Framers of the Constitution and the authors of the 1867 Act expected that the scope of habeas corpus would be determined with reference to the writ's historic, common-law development.3 Mr. Chief Justice Marshall early referred to the common-law conception of the writ in determining its constitutional and statutory scope, Ex parte Bollman, 4 Cranch 75, 93—94, 2 L.Ed. 554 (1807); Ex parte Watkins, 3 Pet. 193, 201—202, 7 L.Ed. 650 (1830), and Professor Oaks has noted that 'when the 1867 Congress provided that persons restrained of their liberty in violation of the Constitution could obtain a writ of habeas corpus from a federal court, it undoubtedly intended—except to the extent the legislation provided otherwise—to incorporate the common-law uses and functions of this remedy.'4
67
It thus becomes important to understand exactly what was the common-law scope of the writ both when embraced by our Constitution and incorporated into the Habeas Corpus Act of 1867. Two respected scholars have recently explored precisely these questions.5 Their efforts have been both meticulous and revealing. Their conclusions differ significantly from those of the Court in Fay v. Noia, that habeas corpus traditionally has been available 'to remedy any kind of governmental restraint contrary to fundamental law.' 372 U.S., at 405, 83 S.Ct., at 831.
68
The considerable evidence marshaled by these scholars need not be restated here. Professor Oaks makes a convincing case that under the common law of habeas corpus at the time of the adoption of the Constitution, 'once a person had been convicted by a superior court or general jurisdiction, a court disposing of a habeas corpus petition could not go behind the conviction for any purpose other than to verify the formal jurisdiction of the committing court.'6 Certainly that was what Mr. Chief Justice Marshall understood when he stated:
69
'This writ (habeas corpus) is, as has been said, in the nature of a writ of error which brings up the body of the prisoner with the cause of commitment. The court can undoubtedly inquire into the sufficiency of that cause; but if it be the judgment of a court of competent jurisdiction, especially a judgment withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause? Can the court, upon this writ, look beyond the judgment, and re-examine the charges on which it was rendered. A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inequiry concerning the fact, by deciding it.' Ex parte Watkins, 3 Pet., at 202—203.
70
The respect shown under common law for the finality of the judgment of a committing court at the time of the Constitution and in the early 19th century did not, of course, explicitly contemplate the operation of habeas corpus in the context of federal-state relations. Federal habeas review for state prisoners was not available until passage of the Habeas Corpus Act of 1867. Yet there is no evidence that Congress intended that Act to jettison the respect theretofore shown by a reviewing court for prior judgments by a court of proper jurisdiction. The Act 'received only the most perfunctory attention and consideration in the Congress; indeed, there were complaints that its effects could not be understood at all.'7 In fact, as Professor Bator notes, it would require overwhelming evidence, which simply is not present, to conclude that the 1867 Congress intended 'to tear habeas corpus entirely out of the context of its historical meaning and scope and convert it into an ordinary writ of error with respect to all federal questions in all criminal cases.'8 Rather, the House Judiciary Committee when it reviewed the Act in 1884 understood that it was not 'contemplated by its framers or . . . properly . . . construed to authorize the overthrow of the final judgments of the State courts of general jurisdiction, by the inferior Federal judges. . . .'9
71
Much, of course, has transpired since that first Habeas Corpus Act. See Fay v. Noia, 372 U.S., at 449—463, 83 S.Ct., at 854—862 (Harlan, J., dissenting). The scope of federal habeas corpus for state prisoners has evolved from a quite limited inquiry into whether the committing state court had jurisdiction, Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422 (1895); In re Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105 (1906), to whether the applicant had been given an adequate opportunity in state court to raise his constitutional claims, Frank v. Mangum, 237 U.S. 307, 35 S.Ct. 582, 59 L.Ed. 969 (1915); and finally to actual redetermination in federal court of state court rulings on a wide variety of constitutional contentions, Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). No one would now suggest that this Court be imprisoned by every particular of habeas corpus as it existed in the late 18th and 19th centuries. But recognition of that reality does not liberate us from all historical restraint. The historical evidence demonstrates that the purposes of the writ, at the time of the adoption of the Constitution, were tempered by a due regard for the finality of the judgment of the committing court. This regard was maintained substantially intact when Congress, in the Habeas Corpus Act of 1867, first extended federal habeas review to the delicate interrelations of our dual court systems.
III
72
Recent decisions, however, have tended to depreciate the importance of the finality of prior judgments in criminal cases. Kaufman, 394 U.S., at 228, 89 S.Ct., at 1075, 22 L.Ed.2d 227; Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963); Fay, supra, 372 U.S., at 424, 83 S.Ct., at 841. This trend may be a justifiable evolution of the use of habeas corpus where the one in state custody raises a constitutional claim bearing on his innocence. But the justification for disregarding the historic scope and function of the writ is measurably less apparent in the typical Fourth Amendment claim asserted on collateral attack. In this latter case, a convicted defendant is most often asking society to redetermine a matter with no bearing at all on the basic justice of his incarceration.
73
Habeas corpus indeed should provide the added assurance for a free society that no innocent man suffers an unconstitutional loss of liberty. The Court in Fay described habeas corpus as a remedy for 'whatever society deems to be intolerable restraints,' and recognized that those to whom the writ should be granted 'are persons whom society has grievously wronged and for whom belated liberation is little enough compensation.' Id., at 401—402, 441, 83 S.Ct., at 829, 850. The Court there acknowledged that the central reason for the writ lay in remedying injustice to the individual. Recent commentators have recognized the same core concept, one noting that 'where personal liberty is involved, a democratic society . . . insists that it is less important to reach an unshakable decision than to do justice (emphasis added),'10 and another extolling the use of the writ in Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954), with the assertion that '(b)ut for federal habeas corpus, these two men would have gone to their deaths for crimes of which they were found not guilty.'11
74
I am aware that history reveals no exact tie of the writ of habeas corpus to a constitutional claim relating to innocence or guilt. Traditionally, the writ was unavailable even for many constitutional pleas grounded on a claimant's innocence, while many contemporary proponents of expanded employment of the writ would permit its issuance for one whose deserved confinement was never in doubt. We are now faced, however, with the task of accommodating the historic respect for the finality of the judgment of a committing court with recent Court expansions of the role of the writ. This accommodation can best be achieved, with due regard to all of the values implicated, by recourse to the central reason for habeas corpus: the affording of means, through an extraordinary writ, of redressing an unjust incarceration.
75
Federal habeas review of search and seizure claims is rarely relevant to this reason. Prisoners raising Fourth Amendment claims collaterally usually are quite justly detained. The evidence obtained from searches and seizures is often 'the clearest proof of guilt' with a very high content of reliability.12 Rarely is there any contention that the search rendered the evidence unreliable or that its means cast doubt upon the prisoner's guilt. The words of Mr. Justice Black drive home the point:
76
'A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty.' Kaufman v. United States, 394 U.S., at 237, 89 S.Ct., at 1079 (1969) (dissenting opinion).
77
Habeas corpus review of search and seizure claims thus brings a deficiency of our system of criminal justice into sharp focus: a convicted defendant asserting no constitutional claim bearing on innocence and relying solely on an alleged unlawful search, is now entitled to federal habeas review of state conviction and the likelihood of release if the reviewing court concludes that the search was unlawful. That federal courts would actually redetermine constitutional claims bearing no relation to the prisoner's innocence with the possibility of releasing him from custody if the search is held unlawful not only defeats our societal interest in a rational legal system but serves no compensating ends of personal justice.
IV
78
This unprecedented extension of habeas corpus far beyond its historic bounds and in disregard of the writ's central purpose is an anomaly in our system sought to be justified only by extrinsic reasons which will be addressed in Part V of this opinion. But first let us look at the costs of this anomaly—costs in terms of serious intrusions on other societal values. It is these other values that have been subordinated—not to further justice on behalf of arguably innocent persons but all too often to serve mechanistic rules quite unrelated to justice in a particular case. Nor are these neglected values unimportant to justice in the broadest sense or to our system of Government. They include (i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded.
79
When raised on federal habeas, a claim generally has been considered by two or more tiers of state courts. It is the solemn duty of these courts, no less than federal ones, to safeguard personal liberties and consider federal claims in accord with federal law. The task which federal courts are asked to perform on habeas is thus most often one that has or should have been done before. The presumption that 'if a job can be well done once, it sould not be done twice' is sound and one calculated to utilize best 'the intellectual, moral, and political resources involved in the legal system.'13
80
Those resources are limited but demand on them constantly increases. There is an insistent call on federal courts both in civil actions, many novel and complex, which affect intimately the lives of great numbers of people and in original criminal trials and appeals which deserve our most careful attention.14 To the extent the federal courts are required to re-examine claims on collateral attack,15 they deprive primary litigants of their prompt availability and mature reflection. After all, the resources of our system are finite: their overextension jeopardizes the care and quality essential to fair adjudication.
81
The present scope of federal habeas corpus also have worked to defeat the interest of society in a rational point of termination for criminal litigation. Professor Amsterdam has identified some of the finality interests at stake in collateral proceedings:
82
'They involve (a) duplication of judicial effort; (b) delay in setting the criminal proceeding at rest; (c) inconvenience and possibly danger in transporting a prisoner to the sentencing court for hearing; (d) postponed litigation of fact, hence litigation which will often be less reliable in reproducing the facts (i) respecting the postconviction claim itself, and (ii) respecting the issue of a guilt if the collateral attack succeeds in a form which allows retrial. . . .'
He concluded that:
83
'(I)n combination, these finality considerations amount to a more or less persuasive argument against the cognizability of any particular collateral claim, the strength of the argument depending upon the nature of the claim, the manner of its treatment (if any) in the conviction proceedings, and the circumstances under which collateral litigation must be had.'16
84
No effective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial and that every incarceration is unfounded. At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation but rather should look forward to rehabilitation and to becoming a constructive citizen.17
85
Nowhere should the merit of this view be more self-evident than in collateral attack on an allegedly unlawful search and seizure, where the petitioner often asks society to redetermine a claim with no relationship at all to the justness of his confinement. Professor Amsterdam has noted that 'for reasons which are common to all search and seizure claims,' he 'would hold even a slight finality interest sufficient to deny the collateral remedy.'18 But, in fact, a strong finality interest militates against allowing collateral review of search-and-seizure claims. Apart from the duplication of resources inherent in most habeas corpus proceedings, the validity of a search-and-seizure claim frequently hinges on a complex matrix of events which may be difficult indeed for the habeas court to disinter especially where, as often happens, the trial occurred years before the collateral attack and the state record is thinly sketched.19
86
Finally, the present scope of habeas corpus tends to undermine the values inherent in our federal system of government. To the extent that every state criminal judgment is to be subject indefinitely to broad and repetitive federal oversight, we render the actions of state courts a serious disrespect in derogation of the constitutional balance between the two systems.20 The present expansive scope of federal habeas review has prompted no small friction between state and federal judiciaries. Justice Paul C. Reardon of the Massachusetts Supreme Judicial Court and then President of the National Center for State Courts, in identifying problems between the two systems, noted bluntly that '(t)he first, without question, is the effect of Federal habeas corpus proceedings on State courts.' He spoke of the 'humiliation of review from the full bench of the highest State appellate court to a single United States District Court judge.' Such broad federal habeas powers encourage in his view the 'growing denigration of the State courts and their functions in the public mind.'21 In so speaking Justice Reardon echoed the words of Professor Bator:
87
'I could imagine nothing more subversive of a judge's sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else.'22
88
In my view, this Court has few more pressing responsibilities than to restore the mutual respect and the balanced sharing of responsibility between the state and federal courts which our tradition and the Constitution itself so wisely contemplate. This can be accomplished without retreat from our inherited insistence that the writ of habeas corpus retain its full vitality as a means of redressing injustice.
89
This case involves only a relatively narrow aspect of the appropriate reach of habeas corpus. The specific issue before us, and the only one that need be decided at this time, is the extent to which a state prisoner may obtain federal habeas corpus review of a Fourth Amendment claim. Whatever may be formulated as a more comprehensive answer to the important broader issues (whether by clarifying legislation or in subsequent decisions), Mr. Justice Black has suggested what seems to me to be the appropriate threshold requirement in a case of this kind:
90
'I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt.' Kaufman v. United States, 394 U.S., at 242, 89 S.Ct., at 1082 (dissenting opinion).
91
In a perceptive analysis, Judge Henry J. Friendly expressed a similar view. He would draw the line against habeas corpus review in the absence of a 'colorable claim of innocence':
92
'(W)ith a few important exceptions, convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence.'23
93
Where there is no constitutional claim bearing on innocence, the inquiry of the federal court on habeas review of a state prisoner's Fourth Amendment claim should be confined solely to the question whether the defendant was provided a fair opportunity in the state courts to raise and have adjudicated the Fourth Amendment claim. Limiting the scope of habeas review in this manner would reduce the role of the federal courts in determining the merits of constitutional claims with no relation to a petitioner's innocence and contribute to the restoration of recently neglected values to their proper place in our criminal justice system.
V
94
The importance of the values referred to above is not questioned. What, then, is the reason which has prompted this Court in recent decisions to extend habeas corpus to Fourth Amendment claims largely in disregard of its history as well as these values? In addressing Mr. Justice Black's dissenting view that constitutional claims raised collaterally should be relevant to the petitioner's innocence, the majority in Kaufman noted:
95
'It (Mr. Justice Black's view) brings into question the propriety of the exclusionary rule itself. The application of that rule is not made to turn on the existence of a possibility of innocence; rather, exclusion of illegally obtained evidence is deemed necessary to protect the right of all citizens, not merely the citizen on trial, to be secure against unreasonable searches and seizures.' 394 U.S., at 229, 89 S.Ct., at 1075. (Emphasis added.)
96
The exclusionary rule has occasioned much criticism, largely on grounds that its application permits guilty defendants to go free and law-breaking officers to go unpunished.24 The oft-asserted reason for the rule is to deter illegal searches and seizures by the police, Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961); Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965); Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).25 The efficacy of this deterrent function, however, has been brought into serious question by recent empirical research. Whatever the rule's merits on an initial trial and appeal26—a question not in issue here—the case for collateral application of the rule is an anemic one. On collateral attack, the exclusionary rule retains its major liabilities while the asserted benefit of the rule dissolves. For whatever deterrent function the rule may serve when applied on trial and appeal becomes greatly attenuated when, months or years afterward, the claim surfaces for collateral review. The impermissible conduct has long since occurred, and the belated wrist slap of state police by federal courts harms no one but society on whom the convicted criminal is newly released.27
97
Searches and seizures are an opaque area of the law: flagrant Fourth Amendment abuses will rarely escape detection but there is a vast twilight zone with respect to which one Justice has stated that our own 'decisions . . . are hardly notable for their predictability,'28 and another had observed that this Court was "bifurcating elements too infinitesimal to be split."29 Serious Fourth Amendment infractions can be dealt with by state judges or by this Court on direct review. But the nonfrivolous Fourth Amendment claims that survive for collateral attack are most likely to be in this grey, twilight area, where the law is difficult for courts to apply, let alone for the policeman on the beat to understand. This is precisely the type of case where the deterrent function of the exclusionary rule is least efficacious, and where there is the least justification for freeing a duly convicted defendant.30
98
Our decisions have not encouraged the thought that what may be an appropriate constitutional policy in one context automatically becomes such for all times and all seasons. In Linkletter v. Walker, 381 U.S., at 629, 85 S.Ct., at 1738, the Court recognized the compelling practical considerations against retroactive application of the exclusionary rule. Rather than viewing the rule as having eternal constitutional verity, the Court decided to
99
'weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. We believe that this approach is particularly correct with reference to the Fourth Amendment's prohibitions as to unreasonable searches and seizures.' Id., at 629, 85 S.Ct., at 1738.
100
Such a pragmatic approach compelled the Court to conclude that the rule's deterrent function would not be advanced by its retrospective application:
101
'The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. . . . Finally, the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.' Id., at 637, 85 S.Ct., at 1742.
102
See also Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).
103
The same practical, particularized analysis of the exclusionary rule's necessity also was evident in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), when the Court permitted the Government to utilize unlawfully seized evidence to impeach the credibility of a defendant who had first testified broadly in his own defense. The Court held, in effect, that the policies protected by the exclusionary rule were outweighed in this case by the need to prevent perjury and assure the integrity of proceedings at trial. The Court concluded that to apply the exclusionary rule in such circumstances 'would be a perversion of the Fourth Amendment.' Id., at 65, 74 S.Ct., at 356. The judgment in Walder revealed most pointedly that the policies behind the exclusionary rule are neither absolute nor all-encompassing, but rather must be weighed and balanced against a competing and more compelling policy, namely the need for effective determination of truth at trial.
104
In sum: the case for the exclusionary rule varies with the setting in which it is imposed. It makes little sense to extend the Mapp exclusionary rule to a federal habeas proceeding where its asserted deterrent effect must be least efficacious, and its obvious harmful consequences persist in full force.
VI
105
The final inquiry is whether the above position conforms to 28 U.S.C. § 2254(a) which provides:
106
'The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'
107
The trend in recent years has witnessed a proliferation of constitutional rights, 'a vast expansion of the claims of error in criminal cases for which a resourceful defense lawyer can find a constitutional basis.'31 Federal habeas jurisdiction has been extended far beyond anyone's expectation or intendment when the concept of 'custody in violation of the Constitution,' now in § 2254(a), first appeared in federal law over a century ago.32
108
Mr. Justice Black was clearly correct in noting that 'not every conviction based in part on a denial of a constitutional right is subject to attack by habeas corpus or § 2255 proceedings after a conviction has become final.' Kaufman, 394 U.S., at 232, 89 S.Ct., at 1077, 22 L.Ed.2d 227 (dissenting opinion). No evidence exists that Congress intended every allegation of a constitutional violation to afford an appropriate basis for collateral review: indeed, the latest revisions of the Federal Habeas Corpus statute in 196633 and the enactment of § 2254(a) came at the time a majority of the courts of appeals held that claims of unlawful search and seizure "are not proper matters to be presented by a motion to vacate sentence under § 2255 but can only be properly presented by appeal from the conviction." Id., at 220, 89 S.Ct., at 1070, quoting Warren v. United States, 311 F.2d 673, 675 (CA8 1963).34 Though the precise discussion in Kaufman concerned the claims of federal prisoners under § 2255, the then-existing principle of a distinction between review of search-and-seizure claims in direct and collateral proceedings clearly existed.
109
There is no indication that Congress intended to wipe out this distinction. Indeed, the broad purpose of the 1966 amendments pointed in the opposite direction. The report of the Senate Judiciary Committee notes that:
110
'Although only a small number of these (habeas) applications have been found meritorious, the applications in their totality have imposed a heavy burden on the Federal courts. . . . The bill seeks to alleviate the unnecessary burden by introducing a greater degree of finality of judgments in habeas corpus proceedings.' S.Rep.No. 1797, 89th Cong., 2d Sess., 2 (1966) U.S. Code Cong. & Admin. News 1966, p. 3664.35
The House Report states similarly that:
111
'While in only a small number of these applications have the petitioners been successful, they nevertheless have not only imposed an unnecessary burden on the work of the Federal courts but have also greatly interfered with the procedures and processes of the State courts by delaying, in many cases, the proper enforcement of their judgments.' H.R.Rep.No. 1892, 89th Cong., 2d Sess., 5 (1966).
112
This most recent congressional expression on the scope of federal habeas corpus reflected the sentiment, shared alike by judges and legislators, that the writ has overrun its historical banks to inundate the dockets of federal courts and denigrate the role of state courts. Though Congress did not address the precise question at hand, nothing in § 2254(a), the state of the law at the time of its adoption, or the historical uses of the language 'custody in violation of the Constitution' from which § 2254(a) is derived,36 compels a holding that rulings of state courts on claims of unlawful search and seizure must be reviewed and redetermined in collateral proceedings.
VII
113
Perhaps no single development of the criminal law has had consequences so profound as the escalating use, over the past two decades, of federal habeas corpus to reopen and readjudicate state criminal judgments. I have commented in Part IV above on the far-reaching consequences: the burden on the system,37 in terms of demands on the courts, prosecutors, defense attorneys, and other personnel and facilities; the absence of efficiency and finality in the criminal process, frustrating both the deterrent function of the law and the effectiveness of rehabilitation; the undue subordination of state courts, with the resulting exacerbation of state-federal relations; and the subtle erosion of the doctrine of federalism itself. Perhaps the single most disquieting consequence of open-ended habeas review is reflected in the prescience of Mr. Justice Jackson's warning that '(i)t must prejudice the occasional meritorious application to be buried in a flood of worthless ones.'38
114
If these consequences flowed from the safeguarding of constitutional claims of innocence they should, of course, be accepted as a tolerable price to pay for cherished standards of justice at the same time that efforts are pursued to find more rational procedures. Yet, as illustrated by the case before us today, the question on habeas corpus is too rerely whether the prisoner was innocent of the crime for which he was convicted39 and too frequently whether some evidence of undoubted probative value has been admitted in violation of an exclusionary rule ritualistically applied without due regard to whether it has the slightest likelihood of achieving its avowed prophylactic purpose.
115
It is this paradox of a system, which so often seems to subordinate substance to form, that increasingly provokes criticism and lack of confidence. Indeed, it is difficult to explain why a system of criminal justice deserves respect which allows repetitive reviews of convictions long since held to have been final at the end of the normal process of trial and appeared where the basis for re-examination is not even that the convicted defendant was innocent. There has been a halo about the 'Great Writ' that no one would wish to dim. Yet one must wonder whether the stretching of its use far beyond any justifiable purpose will not in the end weaken rather than strengthen the writ's vitality.
116
Mr. Justice DOUGLAS, dissenting.
117
I agree with the Court of Appeals that 'verbal assent' to a search is not enough, that the fact that consent was given to the search does not imply that the suspect knew that the alternative of a refusal existed. 448 F.2d 699, 700. As that court stated:
118
'(U)nder many circumstances a reasonable person might read an officer's 'May I' as the courteous expression of a demand backed by force of law.' Id., at 701.
119
A considerable constitutional guarantee rides on this narrow issue. At the time of the search there was no probable cause to believe that the car contained contraband or other unlawful articles. The car was stopped only because a headlight and the license plate light were burned out. The car belonged to Alcala's brother, from whom it was borrowed, and Alcala had a driver's license. Traffic citations were appropriately issued. The car was searched, the present record showing that Alcala consented. But whether Alcala knew he had the right to refuse, we do not know. All the Court of Appeals did was to remand the case to the District Court for a finding—and if necessary, a hearing on that issue.
120
I would let the case go forward on that basis. The long, time-consuming contest in this Court might well wash out. At least we could be assured that, if it came back, we would not be rendering an advisory opinion. Had I voted to grant this petition, I would suggest we dismiss it as improvidently granted. But, being in the minority, I am bound by the Rule of Four.
121
Mr. Justice BRENNAN, dissenting.
122
The Fourth Amendment specifically guarantees '(t)he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures . . ..' We have consistently held that governmental searches conducted pursuant to a validly obtained warrant or reasonably incident to a valid arrest do not violate this guarantee. Here, however, as the Court itself recognizes, no search warrant was obtained and the State does not even suggest 'that there was probable cause to search the vehicle or that the search was incident to a valid arrest of any of the occupants.' Ante, at 227—228. As a result, the search of the vehicle can be justified solely on the ground that the owner's brother gave his consent—that is, that he waived his Fourth Amendment right 'to be secure' against an otherwise 'unreasonable' search. The Court holds today that an individual can effectively waive this right even though he is totally ignorant of the fact that, in the absence of his consent, such invasions of his privacy would be constitutionally prohibited. It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence. In my view, the Court's conclusion is supported neither by 'linguistics,' nor by 'epistemology,' nor, indeed, by 'common sense.' I respectfully dissent.
123
Mr. Justice MARSHALL, dissenting.
124
Several years ago, Mr. Justice Stewart reminded us that '(t)he Constitution guarantees . . . a society of free choice. Such a society presupposes the capacity of its members to choose.' Ginsberg v. New York, 390 U.S. 629, 649, 88 S.Ct. 1274, 1285, 20 L.Ed.2d 195 (1968) (concurring in result). I would have thought that the capacity to choose necessarily depends upon knowledge that there is a choice to be made. But today the Court reaches the curious result that one can choose to relinquish a constitutional right—the right to be free of unreasonable searches—without knowing that he has the alternative of refusing to accede to a police request to search.1 I cannot agree, and therefore dissent.
125
* I believe that the Court misstates the true issue in this case. That issue is not, as the Court suggests whether the police overbore Alcala's will in eliciting his consent, but rather, whether a simple statement of assent to search, without more,2 should be sufficient to permit the police to search and thus act as a relinquishment of Alcala's constitutional right to exclude the police.3 This Court has always scrutinized with great care claims that a person has forgone the opportunity to assert constitutional rights. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); D. H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). I see no reason to give the claim that a person consented to a search any less rigorous scrutiny. Every case in this Court involving this kind of search has heretofore spoken of consent as a waiver.4 See, e.g., Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 267, 65 L.Ed. 654 (1921); Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477 (1946); Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436 (1948).5 Perhaps one skilled in linguistics or opistemology can disregard those comments, but I find them hard to ignore.
126
To begin, it is important to understand that the opinion of the Court is misleading in its treatment of the issue here in three ways. First, it derives its criterion for determining when a verbal statement of assent to search operates as a relinquishment of a person's right to preclude entry from a justification of consent searches that is inconsistent with our treatment in earlier cases of exceptions to the requirements of the Fourth Amendment, and that is not responsive to the unique nature of the consent-search exception. Second, it applies a standard of voluntariness that was developed in a very different context, where the standard was based on policies different from those involved in this case. Third, it mischaracterizes our prior cases involving consent searches.
A.
127
The Court assumes that the issue in this case is: what are the standards by which courts are to determine that consent is voluntarily given? It then imports into the law of search and seizure standards developed to decide entirely different questions about coerced confessions.6
128
The Fifth Amendment, in terms, provides that no person 'shall be compelled in any criminal case to be a witness against himself.' Nor is the interest protected by the Due Process Clause of the Fourteenth Amendment any different. The inquiry in a case where a confession is challenged as having been elicited in an unconstitutional manner is, therefore, whether the behavior of the police amounted to compulsion of the defendant.7 Because of the nature of the right to be free of compulsion, it would be pointless to ask whether a defendant knew of it before he made a statement; no sane person would knowingly relinquish a right to be free of compulsion. Thus, the questions of compulsion and of violation of the right itself are inextricably intertwined. The cases involving coerced confessions, therefore, pass over the question of knowledge of that right as irrelevant, and turn directly to the question of compulsion.
129
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), confirms this analysis. There the Court held that certain warnings must be given to suspects prior to their interrogation so that the inherently coercive nature of in-custody questioning would be diminished by the suspect's knowledge that he could remain silent. But, although those warnings, of course, convey information about various rights of the accused, the information is intended only to protect the suspect against acceding to the other coercive aspects of police interrogation. While we would not ordinarily think that a suspect could waive his right to be free of coercion, for example, we do permit suspects to waive the rights they are informed of by police warnings, on the belief that such information in itself sufficiently decreases the chance that a statement would be elicited by compulsion. Id., at 475—476, 86 S.Ct., at 1628—1629. Thus, nothing the defendant did in the cases involving coerced confessions was taken to operate as a relinquishment of his rights; certainly the fact that the defendant made a statement was never taken to be a relinquishment of the right to be free of coercion.8
B
130
In contrast, this case deals not with 'coercion,' but with 'consent,' a subtly different concept to which different standards have been applied in the past. Freedom from coercion is a substantive right, guaranteed by the Fifth and Fourteenth Amendments. Consent, however, is a mechanism by which substantive requirements, otherwise applicable, are avoided. In the context of the Fourth Amendment, the relevant substantive requirements are that searches be conducted only after evidence justifying them has been submitted to an impartial magistrate for a determination of probable cause. There are, of course, exceptions to these requirements based on a variety of exigent circumstances that make it impractical to invalidate a search simply because the police failed to get a warrant.9 But none of the exceptions relating to the overriding needs of law enforcement are applicable when a search is justified solely by consent. On the contrary, the needs of law enforcement are significantly more attenuated, for probable cause to search may be lacking but a search permitted if the subject's consent has been obtained. Thus, consent searches are permitted, not because such an exception to the requirements of probable cause and warrant is essential to proper law enforcement, but because we permit our citizens to choose whether or not they wish to exercise their constitutional rights. Our prior decisions simply do not support the view that a meaningful choice has been made solely because no coercion was brought to bear on the subject.
131
For example, in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), four law enforcement officers went to the home of Bumper's grandmother. They announced that they had a search warrant, and she permitted them to enter. Subsequently, the prosecutor chose not to rely on the warrant, but attempted to justify the search by the woman's consent. We held that consent could not be established 'by showing no more than acquiescence to a claim of lawful authority,' id., at 548—549, 88 S.Ct., at 1792. We did not there inquire into all the circumstances, but focused on a single fact, the claim of authority, even though the grandmother testified that no threats were made. Id., at 547 n. 8, 88 S.Ct., at 1791. It may be that, on the facts of that case, her consent was under all the circumstances involuntary, but it is plain that we did not apply the test adopted by the Court today. And, whatever the posture of the case when it reached this Court, it could not be said that the police in Bumper acted in a threatening or coercive manner, for they did have the warrant they said they had; the decision not to rely on it was made long after the search, when the case came into court.10
132
That case makes it clear that police officers may not courteously order the subject of a search simply to stand aside while the officers carry out a search they have settled on. Yet there would be no coercion or brutality in giving that order. No interests that the Court today recognizes would be damaged in such a search. Thus, all the police must do is conduct what will inevitably be a charade of asking for consent. If they display any firmness at all, a verbal expression of assent will undoubtedly be forthcoming. I cannot believe that the protections of the Constitution mean so little.
II
133
My approach to the case is straight-forward and, to me, obviously required by the notion of consent as a relinquishment of Fourth Amendment rights. I am at a loss to understand why consent 'cannot be taken literally to mean a 'knowing' choice.' Ante, at 224. In fact, I have difficulty in comprehending how a decision made without knowledge of available alternatives can be treated as a choice at all.
134
If consent to search means that a person has chosen to forgo his right to exclude the police from the place they seek to search, it follows that his consent cannot be considered a meaningful choice unless he knew that he could in fact exclude the police. The Court appears, however, to reject even the modest proposition that, if the subject of a search convinces the trier of fact that he did not know of his right to refuse assent to a police request for permission to search, the search must be held unconstitutional. For it says only that 'knowledge of the right to refuse consent is one factor to be taken into account.' Ante, at 227. I find this incomprehensible. I can think of no other situation in which we would say that a person agreed to some course of action if he convinced us that he did not know that there was some other course he might have pursued. I would therefore hold, at a minimum, that the prosecution may not rely on a purported consent to search if the subject of the search did not know that he could refuse to give consent. That, I think, is the import of Bumper v. North Carolina, supra. Where the police claim authority to search yet in fact lack such authority, the subject does not know that he may permissibly refuse them entry, and it is this lack of knowledge that invalidates the consent.
135
If one accepts this view, the question then is a simple one: must the Government show that the subject knew of his rights, or must the subject show that he lacked such knowledge?
136
I think that any fair allocation of the burden would require that it be placed on the prosecution. On this question, the Court indulges in what might be called the 'straw man' method of adjudication. The Court responds to this suggestion by overinflating the burden. And, when it is suggested that the prosecution's burden of proof could be easily satisfied if the police informed the subject of his rights, the Court responds by refusing to require the police to make a 'detailed' inquiry. Ante, at 245. If the Court candidly faced the real question of allocating the burden of proof, neither of these maneuvers would be available to it.
137
If the burden is placed on the defendant, all the subject can do is to testify that he did not know of his rights. And I doubt that many trial judges will find for the defendant simply on the basis of that testimony. Precisely because the evidence is very hard to come by, courts have traditionally been reluctant to require a party to prove negatives such as the lack of knowledge. See, e.g., 9 J. Wigmore, Evidence 274 (3d ed. 1940); F. James, Civil Procedure § 7.8 (1965); E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 75—76 (1956).
138
In contrast, there are several ways by which the subject's knowledge of his rights may be shown. The subject may affirmatively demonstrate such knowledge by his responses at the time the search took place, as in United States v. Curiale, 414 F.2d 744 (CA2 1969). Where, as in this case, the person giving consent is someone other than the defendant, the prosecution may require him to testify under oath. Denials of knowledge may be disproved by establishing that the subject had, in the recent past, demonstrated his knowledge of his rights, for example, by refusing entry when it was requested by the police. The prior experience or training of the subject might in some cases support an inference that he knew of his right to exclude the police.
139
The burden on the prosecutor would disappear, of course, if the police, at the time they requested consent to search, also told the subject that he had a right to refuse consent and that his decision to refuse would be respected. The Court's assertions to the contrary notwithstanding, there is nothing impractical about this method of satisfying the prosecution's burden of proof.11 It must be emphasized that the decision about informing the subject of his rights would lie with the officers seeking consent. If they believed that providing such information would impede their investigation, they might simply ask for consent, taking the risk that at some later date the prosecutor would be unable to prove that the subject knew of his rights or that some other basis for the search existed.
140
The Court contends that if an officer paused to inform the subject of his rights, the informality of the exchange would be destroyed. I doubt that a simple statement by an officer of an individual's right to refuse consent would do much to alter the informality of the exchange, except to alert the subject to a fact that he surely is entitled to know. It is not without significance that for many years the agents of the Federal Bureau of Investigation have routinely informed subjects of their right to refuse consent, when they request consent to search. Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67 Col.L.Rev. 130, 143 n. 75 (1967) (citing letter from J. Edgar Hoover). The reported cases in which the police have informed subjects of their right to refuse consent show, also, that the information can be given without disrupting the casual flow of events. See, e.g., United States v. Miller, 395 F.2d 116 (CA7 1968). What evidence there is, then, rather strongly suggests that nothing disastrous would happen if the police, before requesting consent, informed the subject that he had a right to refuse consent and that his refusal would be respected.12
141
I must conclude with some reluctance that when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be 'practical' for the police to ignore the commands of the Fourth Amendment, if by practicality we mean that more criminals will be apprehended, even though the constitutional rights of innocent people also go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb.
142
I find nothing in the opinion of the Court to dispel my belief that, in such a case, as the Court of Appeals for the Ninth Circuit said, '(u)nder many circumstances a reasonable person might read an officer's 'May I' as the courteous expression of a demand backed by force of law.' 448 F.2d, at 701. Most cases, in my view, are akin to Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968): consent is ordinarily given as acquiescence in an implicit claim of authority to search. Permitting searches in such circumstances, without any assurance at all that the subject of the search knew that, by his consent, he was relinquishing his constitutional rights, is something that I cannot believe is sanctioned by the Constitution.
III
143
The proper resolution of this case turns, I believe, on a realistic assessment of the nature of the interchange between citizens and the police, and of the practical import of allocating the burden of proof in one way rather than another. The Court seeks to escape such assessments by escalating its rhetoric to unwarranted heights, but no matter how forceful the adjectives the Court uses, it cannot avoid being judged by how well its image of these interchanges accords with reality. Although the Court says without real elaboration that it 'cannot agree,' ante, at 248, the holding today confines the protection of the Fourth Amendment against searches conducted without probable cause to the sophisticated, the knowledgeable, and, I might add, the few.13 In the final analysis, the Court now sanctions a game of blindman's buff, in which the police always have the upper hand, for the sake of nothing more than the convenience of the police. But the guarantees of the Fourth Amendment were never intended to shrink before such an ephemeral and changeable interest. The Framers of the Fourth Amendment struck the balance against this sort of convenience and in favor of certain basic civil rights. It is not for this Court to restrike that balance because of its own views of the needs of law enforcement officers. I fear that that is the effect of the Court's decision today.
144
It is regrettable that the obsession with validating searches like that conducted in this case, so evident in the Court's hyperbole, has obscured the Court's vision of how the Fourth Amendment was designed to govern the relationship between police and citizen in our society. I believe that experience and careful reflection show how narrow and inaccurate that vision is, and I respectfully dissent.
1
Cal.Penal Code § 475a.
2
The order of the California Supreme Court is unreported.
3
The decision of the District Court is unreported.
4
'One would expect a hard-headed system like the common law to recognize exceptions even to the most comprehensive principle for safeguarding liberty. This is true of the prohibition of all searches and seizures as unreasonable unless authorized by a judicial warrant appropriately supported.' Davis v. United States, 328 U.S. 582, 609, 66 S.Ct. 1256, 1269, 90 L.Ed. 1453 (Frankfurter, J., dissenting).
5
See Miranda v. Arizona, 384 U.S. 436, 507, and n. 3, 86 S.Ct. 1602, 1645, 16 L.Ed.2d 694 (Harlan, J., dissenting); Spano v. New York, 360 U.S. 315, 321 n. 2, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (citing 28 cases).
6
Similarly, when we recently considered the meaning of a 'voluntary' guilty plea, we returned to the standards of 'voluntariness' developed in the coerced—confession cases. See Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747. See also n. 25, infra.
7
Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel: Basic Problems and Possible Legislative Solutions, 66 Col.L.Rev. 62, 72—73. See also 3 J. Wigmore, Evidence § 826 (J. Chadbourn rev. 1970): 'When, for example, threats are used, the situation is one of choice between alternatives, either one disagreeable, to be sure, but still subject to a choice. As between the rack and a confession, the latter would usually be considered the less disagreeable; but it is nonetheless a voluntary choice.'
8
See generally Miranda v. Arizona, 384 U.S., at 508, 86 S.Ct., at 1645 (Harlan, J., dissenting); 3 J. Wigmore, Evidence § 826 (J. Chadbourn rev. 1970); Note, Developments in the Law: Confessions, 79 Harv.L.Rev. 938, 954—984.
9
See Note, Consent Searches; A Reappraisal After Miranda v. Arizona, 67 Col.L.Rev. 130, 130—131.
10
If there had been probable cause for the search of the automobile, a search warrant would not have been necessary in this case. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.
11
United States v. Curiale, 414 F.2d 744, 747 (2 Cir.).
12
Cf. Rosenthall v. Henderson, 389 F.2d 514, 516 (6 Cir.).
13
See, e.g., Gorman v. United States, 380 F.2d 158, 164 (CA1); United States ex rel. Code v. Mancusi, 429 F.2d 61, 66 (CA2); United States ex rel. Harris v. Hendricks, 423 F.2d 1096, 1101 (CA3); United States v. Vickers, 387 F.2d 703, 707 (CA4); United States v. Goosbey, 419 F.2d 818 (CA6); United States v. Noa, 443 F.2d 144, 147 (CA9); Leeper v. United States, 446 F.2d 281, 284 (CA10). But see, United States v. Nikrasch, 367 F.2d 740, 744 (CA7); United States v. Moderacki, 280 F.Supp. 633 (D.Del); United States v. Blalock, 255 F.Supp. 268 (ED Pa.). While there is dictum in Nikrasch to the effect that warnings are necessary for an effective Fourth Amendment consent, the Court of Appeals for the Seventh Circuit subsequently recanted that position and termed it 'of dubious propriety.' Byrd v. Lane, 398 F.2d 750, 755. The Court of Appeals limited Nikrasch to its facts—a case where a suspect arrested on a disorderly conduct charge and incarcerated for eight hours 'consented' from his jail cell to a search of his car.
14
See, e.g., People v. Roberts, 246 Cal.App.2d 715, 55 Cal.Rptr. 62; People v. Dahlke, 257 Cal.App.2d 82, 64 Cal.Rptr. 599; State v. Custer, 251 So.2d 287 (Fla.App.); State v. Oldham, 92 Idaho 124, 438 P.2d 275; State v. McCarty, 199 Kan. 116, 427 P.2d 616, vacated in part on other grounds, 392 U.S. 308, 88 S.Ct. 2065, 20 L.Ed.2d 1115; Hohnke v. Commonwealth, 451 S.W.2d 162 (Ky.); State v. Andrus, 250 La. 765, 199 So.2d 867; Morgan v. State, 2 Md.App. 440, 234 A.2d 762; State v. Witherspoon, 460 S.W.2d 281 (Mo.); State v. Forney, 181 Neb. 757, 150 N.W.2d 915; State v. Douglas, 260 Or. 60, 488 P.2d 1366.
15
This view is bolstered by Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. There the Court determined that a suspect's wife was not operating as an agent of the State when she handed over her husband's guns and clothing to the police. We found nothing constitutionally suspect in the subjective forces that impelled the spouse to cooperate with the police. 'Among these are the simple but often powerful convention of openness and honesty, the fear that secretive behavior will intensify suspicion, and uncertainty as to what course is most likely to be helpful to the absent spouse.' Id., at 488, 91 S.Ct., at 488. 'The test . . . is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the state when she produced her husband's belongings.' Id., at 487, 91 S.Ct., at 2049.
Just as it was necessary in Coolidge to analyze the totality of the surrounding circumstances to assess the validity of Mrs. Coolidge's offer of evidence, it is equally necessary to assess all the circumstances surrounding a search where consent is obtained in response to an initial police question.
16
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, itself relied on three civil cases, but none of those cases established the proposition that a waiver, to be effective, must be knowing and intelligent. Hodges v. Easton, 106 U.S. 408, 1 S.Ct. 307, 27 L.Ed. 169, which concerned the waiver of a civil jury trial by the submission of a special verdict to the jury, indicates only that 'every reasonable presumption should be indulged against . . . waiver.' Id., at 412, 1 S.Ct., at 311. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177, is to the same effect. Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093, which involved the possible waiver of procedural due process rights, stands only for the proposition that: 'We do not presume acquiescence in the loss of fundamental rights.' Id., at 307, 57 S.Ct., at 731.
17
Cf. Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (operation of common carrier railroad found to be waiver of State's sovereign immunity despite objection that there was no 'waiver' under Johnson); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (valid waiver of procedural due process found over objection of no compliance with Johnson). See also Employees of Dept. of Public Health and Welfare, Missouri v. Department of Public Health and Welfare, Missouri, 411 U.S. 279, 296, 93 S.Ct. 1614, 1623, 36 L.Ed.2d 251 (Marshall, J., concurring in result).
18
One apparent exception was Marchetti v. United States, 390 U.S. 39, 51—52, 88 S.Ct. 697, 704, 705, 19 L.Ed.2d 889, where we found no meaningful waiver of the privilege against compulsory self-incrimination when a gambler was forced to pay a wagering tax. We reasoned that there could be no choice when the gambler was faced with the alternative of giving up gambling or providing incriminatory information. Analytically, therefore, although the Court cited Johnson, Marchetti turned on the lack of a 'voluntary' waiver rather than the lack of any 'knowing' and 'intelligent' waiver.
19
See, e.g., Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; cf. Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (no waiver of counsel shown at settlement of state court record).
20
See, e.g., Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755.
21
See, e.g., Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.
22
See, e.g., Adams v. United States ex rel. McCann, supra.
23
See, e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
24
See, e.g., Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.
25
See, e.g., McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
Our cases concerning the validity of guilty pleas underscore the fact that the question whether a person has acted 'voluntarily' is quite distinct from the question whether he has 'waived' a trial right. The former question, as we made clear in Brady v. United States, 397 U.S., at 749, 90 S.Ct., at 1469, can be answered only by examining all the relevant circumstances to determine if he has been coerced. The latter question turns on the extent of his knowledge. We drew the same distinction in McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 1446, 25 L.Ed.2d 763:
'A conviction after a plea of guilty normally rests on the defendant's own admission in open court that he committed the acts with which he is charged. . . . That admission may not be compelled, and since the plea is also a waiver of trial—and unless the applicable law otherwise provides, a waiver of the right to contest the admissibility of any evidence the State might have offered against the defendant—it must be an intelligent act 'done with sufficient awareness of the relevant circumstances and likely consequences." (Footnote omitted.)
26
See, e.g., Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264.
27
See, e.g., Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997.
28
See In re Gault, 387 U.S. 1, 42, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527.
29
As we have already noted, supra, at 232, Miranda itself involved interrogation of a suspect detained in custody and did not concern the investigatory procedures of the police in general on-the-scene questioning. 384 U.S., at 477, 86 S.Ct., at 1629.
By the same token, the present case does not require a determination of the proper standard to be applied in assessing the validity of a search authorized solely by an alleged consent that is obtained from a person after he has been placed in custody. We do note, however, that other courts have been particularly sensitive to the heightened possibilities for coercion when the 'consent' to a search was given by a person in custody. See, e.g., Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651; Channel v. United States, 285 F.2d 217 (9 Cir.); Villano v. United States, 310 F.2d 680, 684 (10 Cir.); United States v. Marrese, 336 F.2d 501 (3 Cir.).
30
'(In) the uniformly structured situation of the defendant whose case is formally called for plea or trial, where, with everything to be gained by the presence of counsel and no interest deserving consideration to be lost, an inflexible rule serves well.' Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 950.
31
While we have occasionally referred to a consent search as a 'waiver,' we have never used that term to mean 'an intentional relinquishment or abandonment of a known right or privilege.' Hence, for example, in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, this Court found the consent to be ineffective: 'Entry to defendant's living quarters, which was the beginning of the search, was demanded under color of office. It was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.' Id., 333 U.S., at 13, 68 S.Ct., at 368, 92 L.Ed. 436. While the Court spoke in terms of 'waiver' it arrived at the conclusion that there had been no 'waiver' from an analysis of the totality of the objective circumstances—not from the absence of any express indication of Johnson's knowledge of a right to refuse or the lack of explicit warnings. See also Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.
32
The Court was even more explicit in Von Moltke v. Gillies, 332 U.S., at 723—724, 68 S.Ct., at 323:
'To discharge this duty (of assuring the intelligent nature of the waiver) properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.'
33
It seems clear that even a limited view of the demands of 'an intentional relinquishment or abandonment of a known right or privilege' standard would inevitably lead to a requirement of detailed warnings before any consent search—a requirement all but universally rejected to date. See nn. 13 and 14, supra. As the Court stated in Miranda with respect to the privilege against compulsory self-incrimination: '(W)e will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact.' Miranda v. Arizona, 384 U.S., at 468—469, 86 S.Ct., at 1625 (footnote omitted). See United States v. Moderacki, 280 F.Supp. 633 (D.Del.); United States v. Blalock, 255 F.Supp. 268 (E.D.Pa.).
34
Our decision today is, of course, concerned with what constitutes a valid consent, not who can consent. But, the constitutional validity of third-party consents demonstrates the fundamentally different nature of a consent search from the waiver of a trial right.
35
Friendly, supra, n. 30, at 950.
36
As noted above, supra, n. 29, the present case does not require a determination of what effect custodial conditions might have on a search authorized solely by an alleged consent.
37
See, e.g., Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423; Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948; Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224.
Mr. Justice White once answered a similar argument:
'The Court may be concerned with a narrower matter: the unknowing defendant who responds to police questioning because he mistakenly believes that he must and that his admissions will not be used against him. . . . The failure to inform an accused that he need not answer and that his answers may be used against him is very relevant indeed to whether the disclosures are compelled. Cases in this Court, to say the least, have never placed a premium on ignorance of constitutional rights. If an accused is told he must answer and does not know better, it would be very doubtful that the resulting admissions could be used against him. When the accused has not been informed of his rights at all the Court characteristically and properly looks very closely at the surrounding circumstances.' Escobedo v. Illinois, 378 U.S. 478, 499, 84 S.Ct. 1758, 1769, 12 L.Ed.2d 977 (White, J., dissenting).
38
The State also urges us to hold that a violation of the exclusionary rule may not be raised by a state or federal prisoner in a collateral attack on his conviction, and thus asks us to overturn our contrary holdings in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227; Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281; and Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154. Since we have found no valid Fourth and Fourteenth Amendment claim in this case, we do not consider that question.
1
Cases cited as examples included Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
2
The Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385, provided that
'the several courts of the United States . . . within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States . . ..'
Federal habeas review for those in state custody is now authorized by 28 U.S.C. § 2254(a):
'The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'
3
Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 466 (1963); Habeas Corpus, Oaks, Legal History in the High Court—64 Mich.L.Rev. 451, 451—456 (1966).
4
Oaks, supra, n. 3, at 452.
5
Professor Paul M. Bator of Harvard Law School and Professor Dallin H. Oaks formerly of the University of Chicago School of Law. Citations to the relevant articles are in n. 3, supra.
6
Oaks, supra, n. 3, at 468.
7
Bator, supra, n. 3, at 475—476.
8
Id., at 475.
9
H.R.Rep.No.730, 48th Cong., 1st Sess., 5 (1884), quoted in Bator, supra, n. 3, at 477.
10
Pollak, Proposals to Curtail Federal Habeas Corpus for State Prisoners: Collateral Attack on the Great Writ, 66 Yale L.J. 50, 65 (1956).
11
Reitz, Federal Habeas Corpus: Post-conviction Remedy for State Prisoners, 108 U.Pa.L.Rev. 461, 497 (1960).
12
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970).
13
Bator, supra, n. 3, at 451.
The conventional justifications for extending federal habeas corpus to afford collateral review of state court judgments were summarized in Kaufman v. United States, 394 U.S. 217, 225—226, 89 S.Ct. 1068, 1073—1074, 22 L.Ed.2d 227, as follows:
'(T)he necessity that federal courts have the 'last say' with respect to questions of federal law, the inadequacy of state procedures to raise and preserve federal claims, the concern that state judges may be unsympathetic to federally created rights, the institutional constraints on the exercise of this Court's certiorari jurisdiction to review state convictions . . ..' Each of these justifications has merit in certain situations, although the asserted inadequacy of state procedures and unsympathetic attitude of state judges are far less realistic grounds of concern than in years past. The issue, fundamentally, is one of perspective and a rational balancing. The appropriateness of federal collateral review is evident in many instances. But is hardly follows that, in order to promote the ends of individual justice which are the foremost concerns of the writ, it is necessary to extend the scope of habeas review indiscriminately. This is especially true with respect to federal review of Fourth Amendment claims with the consequent denigration of other important societal values and interests.
14
Briefly, civil filings in United States district courts increased from 58,293 in 1961 to 96,173 in 1972. Total appeals commenced in the United States courts of appeals advanced from 4,204 in 1961 to 14,535 in 1972. Petitions for federal habeas corpus filed by state prisoners jumped from 1,020 in 1961 to 7,949 in 1972. Though habeas petitions filed by state prisoners did decline from 9,063 in 1970 to 7,949 in 1972, the overall increase from 1,000 at the start of the last decade is formidable. Furthermore, civil rights prisoner petitions under 42 U.S.C. § 1983 increased from 1,072 to 3,348 in the past five years. Some of these challenged the fact and duration of confinement and sought release from prison and must now be brought as actions for habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). See 1972 Annual Report of the Director of the Administrative Office of the United States Courts, II—5, II—22, II 28—32.
15
Mr. Chief Justice Burger has illustrated the absurd extent to which relitigation is sometimes allowed:
'In some of these multiple trial and appeal cases (on collateral attack) the accused continued his warfare with society for eight, nine, ten years and more. In one case . . . more than fifty appellate judges reviewed the case on appeals.' Address before the Association of the Bar of the City of New York, N.Y.L.J., Feb. 19, 1970, p. 1.
The English courts, 'long admired for (their) fair treatment of accused persons,' have never so extended habeas corpus. Friendly, supra, n. 12, at 145.
16
Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 383—384 (1964). The article addresses the problem of collateral relief for federal prisoners, but its rationable applies forcefully to federal habeas for state prisoners as well.
17
Mr. Justice Harlan put it very well:
'Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community.' Sanders v. United States, 373 U.S. 1, 24—25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (dissenting opinion).
18
Supra, n. 16, at 388.
19
The latter occurs for various reasons, namely, failure of the accused to raise the claim at trial, a determination by the state courts that the claim did not merit a hearing, or a recent decision of this Court extending rights of the accused (although, on Fourth Amendment claims, such decisions have seldom been applied retroactively, see, e.g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, constitutional dimensions going to the
20
The dispersion of power between State and Federal Governments is constitutionally premised, as Mr. Justice Harlan observed:
'(I)t would surely be shallow not to recognize that the structure of our political system accounts no less for the free society we have. Indeed, it was upon the structure of government that the founders primarily focused in writing the Constitution. Out of bitter experience they were suspicious of every form of all-powerful central authority and they sought to assure that such a government would never exist in this country by structuring the federal establishment so as to diffuse power between the executive, legislative, and judicial branches. The diffusion of power between federal and state authority serves the same ends and takes on added significance as the size of the federal bureaucracy contines to grow.' Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B.A.J. 943, 943—944 (1963).
The Justice recognized that problems of habeas corpus jurisdiction were 'of constitutional dimensiong going to the heart of the division of judicial powers in a federal system.' Fay v. Noia, 372 U.S. 391, 464, 83 S.Ct. 822, 862, 9 L.Ed.2d 837 (1963) (dissenting opinion). Nor have such perceptions ever been the product of but a single Justice. As the Court noted in a historic decision on the conflicting realms of state and federal judicial power:
'(T)he constitution of the United States . . . recognizes and preserves the autonomy and independence of the states—independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the state, and, to that extent, a denial of its independence.' Erie R. Co. v. Tompkins, 304 U.S. 64, 78—79, 58 S.Ct. 817, 822—823, 82 L.Ed. 1188 (1938), quoting Mr. Justice Field in Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 401, 13 S.Ct. 914, 927, 37 L.Ed. 772 (1893).
21
Address at the annual dinner of the Section of Judicial Administration, American Bar Association, San Francisco, California, Aug. 14, 1972, pp. 5, 9, and 10.
22
Bator, supra, n. 3, at 451.
23
Friendly, supra, n. 12, at 142. Judge Friendly's thesis, as he develops it, would encompass collateral attack broadly both within the federal system and with respect to federal habeas for state prisoners. Subject to the exceptions carefully delineated in his article, Judge Friendly would apply the criterion of a 'colorable showing of innocence' to any collateral attack of a conviction, including claims under the Fifth and Sixth as well as the Fourth Amendments. Id., at 151—157. In this case we need not consider anything other than the Fourth Amendment claims.
24
See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (Burger, C.J., dissenting); Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C. & P.S. 255, 256 (1961); see also J. Wilson, Varieties of Police Behavior (1968); 8 Wigmore, Evidence § 2184, pp. 51—52 (J. McNaughton ed. 1961), and H. Friendly, Benchmarks 260—261 (1967), suggesting that even at trial the exclusionary rule should be limited to exclusion of 'the fruit of activity intentionally or flagrantly illegal.' But see Kamisar, Public Safety v. Individual Liberties: Some 'Facts' and 'Theories,' 53 J.Crim.L.C. & P.S. 171, 188—190 (1962), and Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 Cornell L.Q. 436 (1964).
25
These expressions antedated the only scholarly empirical research, Mr. Justice Stewart having noted in Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 669 (1960), that '(e)mpirical statistics are not available' as to the efficacy of the rule—a situation which continued until Professor Oaks' study. Indeed, in referring to the basis for the exclusionary rule, Professor Oaks noted that it has been supported, not by facts, but by 'recourse to polemic, rhetoric, and intuition.' Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 755 (1970). See also Burger, Who Will Watch the Watchman?, 14 Am.U.L.Rev. 1 (1964).
I mention the controversy over the exclusionary rule—not to suggest here its total abandonment (certainly not in the absence of some other deterrent to deviant police conduct) but rather to emphasize its precarious and undemonstrated basis, especially when applied to a Fourth Amendment claim on federal habeas review of a state court decision.
26
The most searching empirical study of the efficacy of the exclusionary rule was made by Professor Oaks, who concluded that '(a)s a device for directly deterring illegal searches and seizures by the police, the exclusionary rule is a failure.' Supra, n. 25, at 755. Professor Oaks, though recognizing that conclusive data may not yet be available, summarized the results of his study as follows:
'There is no reason to expect the rule to have any direct effect on the overwhelming majority of police conduct that is not meant to result in prosecutions, and there is hardly any evidence that the rule exerts any deterrent effect on the small fraction of law enforcement activity that is aimed at prosecution. What is known about the deterrent effect of sanctions suggests that the exclusionary rule operates under conditions that are extremely unfavorable for deterring the police. The harshest criticism of the rule is that it is ineffective. It is the sole means of enforcing the essential guarantees of freedom from unreasonable arrests and searches and seizures by law enforcement officers, and it is a failure in that vital task.
'The use of the exclusionary rule imposes excessive costs on the criminal justice system. It provides no recompense for the innocent and it frees the guilty. It creates the occasion and incentive for large scale lying by law enforcement officers. It diverts the focus of the criminal prosecution from the guilt or innocence of the defendant to a trial of the police. Only a system with limitless patience with irrationality could tolerate the fact that where there has been one wrong, the defendant's, he will be punished, but where there have been two wrongs, the defendant's and the officer's, both will go free. This would not be an excessive cost for an effective remedy against police misconduct, but it is a prohibitive price to pay for an illusory one.' Id., 755.
Despite a conviction that the exclusionary rule is a 'failure,' Professor Oaks would not abolish it altogether until there is something to take its place. He recommends 'an effective tort remedy against the offending officer or his employer.' He notes that such a 'tort remedy would give courts an occasion to rule on the content of constitutional rights (the Canadian example shows how), and it would provide the real consequence needed to give credibility to the guarantee.' Id., at 756—757.
27
'As the exclusionary rule is applied time after time, it seems that its deterrent efficacy at some stage reaches a point of diminishing returns, and beyond that point its continued application is a public nuisance.' Amsterdam, supra, n. 16, at 389.
28
Ker v. California, 374 U.S. 23, 45, 83 S.Ct. 1623, 1646, 10 L.Ed.2d 726 (1963) (Harlan, J., concurring in result).
29
Coolidge v. New Hampshire, 403 U.S. 443, 493, 91 S.Ct. 2022, 2051, 29 L.Ed.2d 564 (1971) (opinion of Burger, C.J.). The Chief Justice was quoting Mr. Justice Stone of the Minnesota Supreme Court.
30
Friendly, supra, n. 12, at 162—163.
31
Friendly, supra, n. 12, at 156.
32
See Part II, supra.
33
The 1966 revision of the Federal Habeas Corpus statute enacted, among other things, the present 28 U.S.C. § 2254(a), (d), (e), and (f).
34
See Kaufman, supra, 394 U.S., at 220—221, nn. 3 and 4, 89 S.Ct., at 1070—1071, for a listing of the respective positions of the courts of appeals.
35
The letter from Circuit Judge Orie L. Phillips, Chairman of the Committee on Habeas Corpus of the Judicial Conference of the United States, which sponsored the 1966 legislation, to the Chairman of the Senate Subcommittee on Improvements in Judicial Machinery also strongly emphasized the necessity of expediting 'the determination in Federal courts of nonmeritorious and repetitious applications for the writ by State court prisoners.' S.Rep.No.1797, 89th Cong., 2d Sess., 5 (1966); U.S.Code Cong. & Admin.News 1966, p. 3667.
36
See Part II, supra.
37
Mr. Justice Jackson, concurring in the result 20 years ago in Brown v. Allen, 344 U.S. 443, 532, 73 S.Ct. 397, 423, 97 L.Ed. 469 (1953), lamented the 'floods of stale, frivolous and repetitious petitions (for federal habeas corpus by state prisoners which) inundate the docket of the lower courts and swell our own.' Id., at 536, 73 S.Ct., at 425. The inundation which concerned Mr. Justice Jackson consisted of 541 such petitions. In 1971, the latest year for which figures are available, state prisoners alone filed 7,949 petitions for habeas in federal district courts, over 14 times the number filed when Mr. Justice Jackson voiced his misgivings.
38
Brown v. Allen, supra, at 537, 73 S.Ct., at 425.
39
Commenting on this distortion of our criminal justice system, Justice Walter Schaefer of the Illinois Supreme Court has said:
'What bothers me is that almost never do we have a genuine issue of guilt or innocence today. The system has so changed that what we are doing in the courtroom is trying the conduct of the police and that of the prosecutor all along the line.' Address before Center for the Study of Democratic Institutions, June 1968, cited by Friendly, supra, n. 12, at 145 n. 12.
1
The Court holds that Alcala's consent to search was shown, in the state court proceedings, to be constitutionally valid as a relinquishment of his Fourth Amendment rights. In those proceedings, no evidence was adduced as to Alcala's knowledge of his right to refuse assent. The Court of Appeals for the Ninth Circuit, whose judgment is today reversed, would have required petitioner to produce such evidence. As discussed infra, p. 286, the Court of Appeals did not hold that the police must inform a subject of investigation of his right to refuse assent as an essential predicate to their effort to secure consent to search.
2
The Court concedes that the police lacked probable cause to search. Ante, at 227—228. At the time the search was conducted, there were three police vehicles near the car. 270 Cal.App.2d 648, 651, 76 Cal.Rptr. 17, 19 (1969). Perhaps the police in fact had some reason, not disclosed in this record, to believe that a search would turn up incriminating evidence. But it is also possible that the late hour and the number of men in Alcala's car suggested to the first officer on the scene that it would be prudent to wait until other officers had arrived before investigating any further.
3
Because Bustamonte was charged with possessing stolen checks found in the search at which he was present, he has standing to object to the search even though he claims no possessory or proprietary interest in the car. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Cf. People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963); People v. Perez, 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934 (1965).
4
The Court reads Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946), as upholding a search like the one in this case on the basis of consent. But it was central to the reasoning of the Court in that case that the items seized were the property of the Government temporarily in Davis' custody. See id., at 587—593, 66 S.Ct., at 1258—1261. The agents of the Government were thus simply demanding that property to which they had a lawful claim be returned to them. Because of this, the Court held that 'permissible limits of persuasion are not so narrow as where private papers are sought.' Id., at 593, 66 S.Ct., at 1261. The opinion of the Court therefore explicitly disclaimed stating a general rule for ordinary searches for evidence. That the distinction, for purposes of Fourth Amendment analysis, between mere evidence and contraband or instrumentalities has now been abolished, Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), is no reason to disregard the fact that when Davis was decided, that distinction played an important role in shaping analysis.
In Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477 (1946), the Court held that 'when petitioner, in order to obtain the government's business, specifically agreed to permit inspection of his accounts and records, he voluntarily waived such claim to privacy which he otherwise might have had as respects business documents related to those contracts.' (Emphasis added.) Because Zap had signed a contract specifically providing that his records would be open at all time to the Government, he had indeed waived his right to keep those records private. Cf. United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).
5
Asside from Zap and Davis, supra, n. 4, I have found no cases decided by this Court explicitly upholding a search based on the consent of the defendant. It is hardly surprising, them, that '(t)he approach of the Court of Appeals for the Ninth Circuit finds no support in any of our decisions,' ante, at 229. But in nearly every case discussing the problem at length, the Court referred to consent as a waiver. And it mischaracterizes those cases to describe them as analyzing the totality of the circumstances, ante, at 234 n. 31. See infra, at 283—284.
6
That this application of the 'domino' method of adjudication is misguided is shown, I believe, by the fact that the phrase 'voluntary consent' seems redundant in a way that the phrase 'voluntary confession' does not.
7
The Court used the terms 'voluntary' or 'involuntary' in such cases as shorthand labels for an assessment of the police behavior in light of the particular characteristics of the individual defendant because behavior that might not be coercive of some individuals might nonetheless compel others to give incriminating statements. See, e.g., Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224 (1948); Stein v. New York, 346 U.S. 156, 185, 73 S.Ct. 1077, 1093, 97 L.Ed. 1522 (1953); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957).
8
I, of course, agree with the Court's analysis to the extent that it treats a verbal expression of assent as no true consent when it is elicited through compulsion. Ante, at 229. Since, in my view, it is just as unconstitutional to search after coercing consent as it is to search after uninformed consent, I agree with the rationale of Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), and Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). That an alternative rationale might have been used in those cases seems to me irrelevant.
9
See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
In Chimel, we explained that searches incident to arrest were justified by the need to protect officers from attacks by the persons they have arrested, and by the need to assure that easily destructible evidence in the reach of the suspect will not be destroyed. 395 U.S., at 762—763, 89 S.Ct., at 2039—2040. And in Coolidge, we said that searches of automobiles on the highway are justified because an alerted criminal might easily drive the evidence away while a warrant was sought. 403 U.S., at 459—462, 91 S.Ct., at 2034—2036. In neither situation is police convenience alone a sufficient reason for establishing an exception to the warrant requirement. Yet the Court today seems to say that convenience alone justifies consent searches.
10
The Court's interpretation of Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), a similar case, is baffling. The Court in Johnson did not in fact analyze the totality of the circumstances, as the Court now argues, ante, at 243 n. 31; the single fact that the police claimed authority to search when in truth they lacked such authority conclusively established that no valid consent had been given.
11
The proposition rejected in the cases cited by the Court in nn. 13 and 14, was that, as in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a statement to the subject of his rights must be given as an indispensable prerequisite to a request for consent to search. This case does not require us to address that proposition, for all that is involved here is the contention that the prosecution could satisfy the burden of establishing the knowledge of the right to refuse consent by showing that the police advised the subject of a search, that is sought to be justified by consent, of that right.
12
The Court's suggestion that it would be 'unrealistic' to require the officers to make 'the detailed type of examination' involved when a court considers whether a defendant has waived a trial right, ante, at 245, deserves little comment. The question before us relates to the inquiry to be made in court when the prosecution seeks to establish that consent was given. I therefore do not address the Court's strained argument that one may waive constitutional rights without making a knowing and intentional choice so long as the rights do not relate to the fairness of a criminal trial. I would suggest, however, that that argument is fundamentally inconsistent with the law of unconstitutional conditions. See, e.g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). The discussion of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), ante, at 239—240, also seems inconsistent with the opinion of Mr. Justice Stewart in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). In any event, I do not understand how one can relinquish a right without knowing of its existence, and that is the only issue in this case.
13
The Court's half-hearted defense, that lack of knowledge is to be 'taken into account,' rings rather hollow, in light of the apparent import of the opinion that even a subject who proves his lack of knowledge may nonetheless have consented 'voluntarily,' under the Court's peculiar definition of voluntariness.
| 01
|
412 U.S. 205
93 S.Ct. 1993
36 L.Ed.2d 844
Francis A. KEEBLE, Petitioner,v.UNITED STATES.
No. 72—5323.
Argued March 27, 1973.
Decided May 29, 1973.
Syllabus
Petitioner, in Indian, was convicted of assault with intent to commit serious bodily injury on an Indian reservation, a federal crime under the Major Crimes Act of 1885, after the court refused to instruct the jury on the lesser included offense of simple assault. The Court of Appeals affirmed on the ground that since simple assault is not one of th offenses enumerated in the Act, it would be exclusively 'a matter for the tribe.' Held: An Indian prosecuted in federal court under the Act is entitled to a jury instruction on lesser included offenses, if the facts warrant. Such an instruction would not expand the reach of the Act or permit the Government to infringe the residual jurisdiction of the Indian tribes by bringing in federal court prosecutions not authorized by statute. Pp. 1995—1999.
459 F.2d 757 and 762, reversed and remanded.
Mark V. Meierhenry, Rosebud, S.D., for the petitioner, pro hac vice, by special leave of Court.
Richard B. Stone for the respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Major Crimes Act of 18851 authorizes the prosecution in federal court of an Indian charged with the commission on an Indian reservation of certain specifically enumerated offenses.2 This case requires us to decide whether an Indian prosecuted under the Act is entitled to a jury instruction on a lesser included offense where that lesser offense is not one of the crimes enumerated in the Act.
2
At the close of petitioner's trial for assault with intent to commit serious bodily injury, the United States District Court for the District of South Dakota refused to instruct the jury, as petitioner requested, that they might convict him of simple assault. The court reasoned that since simple assault is not an offense enumerated in the Act, it is exclusively 'a matter for the tribe.' App. 15. A panel of the United States Court of Appeals for the Eighth Circuit, one judge dissenting, upheld that determination on the strength of the court's earlier decision in Kills Crow v. United States, 451 F.2d 323 (1971). 459 F.2d 757 (C.A.8, 1972). Following a remand to the District Court for a hearing on an unrelated issue,3 the case returned to the Court of Appeals and the conviction was affirmed. Id., at 762 (supplemental opinion). We granted certiorari limited to the question of the validity of denying the requested instruction,4 409 U.S. 1037, 93 S.Ct. 538, 34 L.Ed.2d 485 (1972), and we reverse.
3
The events that led to the death of petitioner's brother-in-law, Robert Pomani, and hence to this criminal prosecution, took place on the South Dakota Reservation of the Crow Creek Sioux Tribe. Petitioner and the deceased, both Indians of that Tribe, spent the evening of March 6, 1971, drinking and quarreling over petitioner's alleged mistreatment of his wife, Pomani's sister. The argument soon became violent, and it ended only when petitioner, having beaten Pomani severely and left him bleeding from the head and face, went to bed. The next morning he discovered Pomani's lifeless body on the ground a short distance from the house where the beating had occurred. He reported the death to an official of the Department of the Interior serving as Captain of the Tribal Police at Fort Thompson, South Dakota. An autopsy revealed that Pomani died because of exposure to excessive cold, although the beating was a contributing factor. Petitioner was convicted of assault with intent to inflict great bodily injury, and sentenced to five years' imprisonment.
4
Although the lesser included offense doctrine developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged,5 it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. The Federal Rules of Criminal Procedure deal with lesser included offenses, see Rule 31(c),6 and the defendant's right to such an instruction has been recognized in numerous decisions of this Court. See, e.g., Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 687, 100 L.Ed. 1013 (1956); Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896).7
5
In defending the trial court's refusal to offer the requested instruction, the Government does not dispute this general proposition, nor does it argue that a lesser offense instruction was incompatible with the evidence presented at trial. Cf. Sansone v. United States, supra; Sparf v. United States, 156 U.S. 51, 63 64, 15 S.Ct. 273, 277—278, 39 L.Ed. 343 (1895). On the contrary, the Government explicitly concedes that any non-Indian who had committed this same act on this same reservation and requested this same instruction would have been entitled to the jury charge that petitioner was refused. Brief for the United States 13 n. 16.8 The Government does maintain, however, that the Major Crimes Act precludes the District Court from offering a lesser offense instruction on behalf of an Indian, such as the petitioner before us. Specifically, the Government contends that the Act represents a carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land. To grant an instruction on the lesser offense of simple assault would, in the Government's view, infringe the tribe's residual jurisdiction in a manner inconsistent with the Act. Under the Government's approach, in other words, the interests of an individual Indian defendant in obtaining a jury instruction on a lesser offense must fall before the congressionally sanctioned interests of the tribe in preserving its inherent jurisdiction. Since that conclusion is compelled neither by the language, nor the purposes, nor the history of the Act, we cannot agree.
6
The Major Crimes Act was passed by Congress in direct response to the decision of this Court in Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). The Court held there that a federal court lacked jurisdiction to try an Indian for the murder of another Indian, a chief of the Brule Sioux named Spotted Tail, in Indian country. Although recognizing the power of Congress to confer such jurisdiction on the federal courts,9 the Court reasoned that, in the absence of explicit congressional direction, the Indian tribe retained exclusive jurisdiction to punish the offense. Cf. Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832).
7
The prompt congressional response—conferring jurisdiction on the federal courts to punish certain offenses—reflected a view that tribal remedies were either nonexistent or incompatible with principles that Congress thought should be controlling. Representative Cutcheon, sponsor of the Act, described the events that followed the reversal by this Court of Crow Dog's conviction:
8
'Thus Crow Dog went free. He returned to his reservation, feeling, as the Commissioner says, a great deal more important than any of the chiefs of his tribe. The result was that another murder grew out of that—a murder committed by Spotted Tail, jr., upon White Thunder. And so these things must go on unless we adopt proper legislation on the subject.
9
'It is an infamy upon our civilization, a disagrace to this nation, that there should be anywhere within its boundaries a body of people who can, with absolute impunity, commit the crime of murder, there being no tribunal before which they can be brought for punishment. Under our present law there is no penalty that can be inflicted except according to the custom of the tribe, which is simply that the 'blood-avenger' that is, the next of kin to the person murdered—shall pursue the one who has been guilty of the crime and commit a new murder upon him. . . .
10
'If . . . an Indian commits a crime against an Indian on an Indian reservation, there is now no law to punish the offense except, as I have said, the law of the tribe, which is just no law at all.' 16 Cong.Rec. 934 (1885).10
11
The Secretary of the Interior who supported the Act, struck a similar note:
12
'If offenses of this character (the killing of Spotted Tail) can not be tried in the courts of the United States, there is no tribunal in which the crime of murder can be punished. Minor offenses may be punished through the agency of the 'court of Indian offenses,' but it will hardly do to leave the punishment of the crime of murder to a tribunal that exists only by the consent of the Indians of the reservation. If the murderer is left to be punished according to the old Indian custom, it becomes the duty of the next of kin to avenge the death of his relative by either killing the murderer or some one of his kinsmen . . ..'11
13
In short, Congress extended federal jurisdiction to crimes committed by Indians on Indian land out of a conviction that many Indians would 'be civilized a great deal sooner by being put under (federal criminal) laws and taught to regard life and the personal property of others.' 16 Cong.Rec. 936 (1885) (remarks of Rep. Cutcheon). That is emphatically not to say, however, that Congress intended to deprive Indian defendants of procedural rights guaranteed to other defendants, or to make it easier to convict an Indian than any other defendant. Indeed, the Act expressly provides that Indians charged under its provisions 'shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' 18 U.S.C. § 3242 (emphasis added).12 In the face of that explicit statutory direction, we can hardly conclude that Congress intended to disqualify Indians from the benefits of a lesser offense instruction, when those benefits are made available to any non-Indian charged with the same offense.
14
Moreover, it is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option—convicting the defendant of simple assault—could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions. In view of our interpretation of the Act, those are questions that we need not face.13
15
Finally, we emphasize that our decision today neither expands the reach of the Major Crimes Act nor permits the Government to infringe the residual jurisdiction of a tribe by bringing prosecutions in federal court that are not authorized by statute.14 We hold only that where an Indian is prosecuted in federal court under the provisions of the Act, the Act does not require that he be deprived of the protection afforded by an instruction on a lesser included offense, assuming of course that the evidence warrants such an instruction. No interest of a tribe is jeopardized by this decision. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
16
Reversed and remanded.
17
Mr. Justice STEWART, with whom Mr. Justice POWELL and Mr. Justice REHNQUIST join, dissenting.
18
As the opinion of the Court demonstrates, the Major Crimes Act, 18 U.S.C. §§ 1153, 3242, was enacted in response to this Court's decision in Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030. The Act conferred jurisdiction upon federal district courts over certain enumerated crimes committed by Indians on an Indian reservation, leaving tribal jurisdiction intact as to all other crimes. An Indian tried in a federal court under the Act is guaranteed equal procedural rights, 18 U.S.C. § 3242, including the benefits and burdens of Fed.Rule Crim.Proc. 31(c), dealing with a lesser included offense.
19
In these respects, I agree with the Court. But the Court goes on to hold 'that where an Indian is prosecuted in federal court under the provisions of the Act, the Act does not require that he be deprived of the protection afforded by an instruction on a lesser included offense. . . .' Ante, at 214. I think this holding would be correct only if the lesser included offense were one over which the federal court had jurisdiction. Because the trial court did not have jurisdiction over the 'lesser included offense' in the present case, I must respectfully dissent.1
20
It is a commonplace that federal courts are courts of limited jurisdiction, and that there are no common-law offenses against the United States. 'The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.' United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259. 'It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms.' Todd v. United States, 158 U.S. 278, 282, 15 S.Ct. 889, 890, 39 L.Ed. 982. See 1 J. Moore, Federal Practice 0.60(7). And it is also clear that simple assault by an Indian on an Indian reservation, the purported 'lesser included offense' in this case, comes within no federal jurisdictional statute. The Court in effect holds that Fed.Rule Crim.Proc. 31(c) implicitly operates to confer federal jurisdiction over simple assault in the circumstances of this case, and with all respect this seems to me a holding utterly without support.
The Rule states that:
21
'The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.' (Emphasis added.)
22
The Rule is thus phrased in terms of 'offenses.' It seems to me clear that 'offense' means federal offense, and this view is confirmed by the fact that by virtue of the Rule a lesser included offense instruction is authorized with respect to 'an attempt' only where the attempt itself is also a federal crime.
23
The conclusion that a lesser included offense instruction is possible only when the lesser offense is within federal jurisdiction does not violate 18 U.S.C. § 3242, providing that Indians charged under its provisions 'shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' For this conclusion would apply as well in any instance where Congress has established a divided criminal jurisdiction between a federal district court and another forum. See, e.g., DeFlumer v. Mancusi, 2 Cir., 443 F.2d 940 (criminal jurisdiction in federal district court over 16-year-old defendants only when charged with certain enumerated crimes). Congress established jurisdiction in the federal district courts only over certain specifically enumerated offenses committed by Indians on Indian reservations. It vested a residual jurisdiction in other forums over all other offenses. Accordingly, I conclude that a lesser included offense instruction would have been improper in the present case, where the federal court had no jurisdiction over the lesser offense of simple assault.2 See Kills Crow v. United States, 451 F.2d 323, 325.
24
The Court seems to agree that a United States Attorney could not seek an indictment in a federal district court of an Indian for simple assault committed on an Indian reservation. This being so, I can find no basis for concluding that jurisdiction comes into being simply by motion of the defense. 'It needs no citation of authorities to show that the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case.' People's Bank v. Calhoun, 102 U.S. 256, 260 261, 26 L.Ed. 101. See also 1 J. Moore, Federal Practice 0.60(4). Were the petitioner's motion for an instruction on simple assault to be granted, and were a jury to convict on that offense, I should have supposed until the Court's decision today that the conviction could have been set aside for want of jurisdiction.
1
Act of Mar. 3, 1885, c. 341, § 9, 23 Stat. 385, now 18 U.S.C. §§ 1153, 3242.
2
As originally enacted, the statute provided:
'That immediately upon and after the date of the passage of this act all Indians, committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' 23 Stat. 385.
By successive amendments, Congress has increased the number of enumerated crimes from seven to 13, adding carnal knowledge, assault with intent to commit rape, incest, assault with a dangerous weapon, assault resulting in serious bodily injury, and robbery.
3
The case was remanded to the District Court for a hearing on the voluntariness of petitioner's confession, in light of the requirements of 18 U.S.C. § 3501. On remand, the District Court concluded that the confession was voluntary, notwithstanding a lapse of time between petitioner's arrest and his confession.
4
The petition for certiorari also asked us to consider the validity of admitting petitioner's confession in view of the requirements of Fed.Rule Crim.Proc. 5(a).
5
See Kelly v. United States, 125 U.S.App.D.C. 205, 207, 370 F.2d 227, 229 (1966); United States v. Markis, 352 F.2d 860, 866 (CA2 1965); 2 C. Wright, Federal Practice and Procedure—Criminal § 515, p. 372 (1969).
6
Rule 31(c) provides that '(t)he defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.' The rule codified pre-existing law, in particular former § 565 of Tit. 18, Act of June 1, 1872, § 9, 17 Stat. 198. See Berra v. United States, 351 U.S. 131, 134 and n. 6, 76 S.Ct. 685, 688, 100 L.Ed. 1013 (1956).
7
See also, e.g., Government of Virgin Islands v. Carmona, 422 F.2d 95, 100 (CA3 1970); United States v. Comer, 137 U.S. App.D.C. 214, 218, 421 F.2d 1149, 1153 (1970).
8
If a non-Indian had committed this same act on an Indian reservation, he would, of course, be tried in federal court under federal enclave law. 18 U.S.C. § 1152.
9
The constitutionality of the Major Crimes Act was upheld in United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), where the Court rejected the argument that punishment of criminal offenses by Indians of Indian land is exclusively a state function.
10
The same congressional purpose is evident in the most recent amendment to the Act, the 1968 addition to the list of enumerated crimes of the offense of assault resulting in serious bodily injury. See S.Rep.No.721, 90th Cong., 1st Sess., 32 (1967):
'Without this amendment an Indian can commit a serious crime and receive only a maximum sentence of 6 months. Since Indian courts cannot impose more than a 6-month sentence, the crime of aggravated assault should be prosecuted in a Federal court, where the punishment will be in proportion to the gravity of the offense.'
11
The remark, from the Secretary's annual report, was quoted by Representative Cutcheon during debate in the House of Representatives on the proposed statute. 16 Cong.Rec. 935 (1885).
12
In making the most recent amendment to the Major Crimes Act, see n. 10, supra, Congress neglected to add the offense of assault resulting in serious bodily injury to both of the sections in which the Act is now codified. The Government concedes that the failure to add this new offense to the list of those enumerated in 18 U.S.C. § 3242 is 'probably a congressional oversight.' Brief for the United States 18 n. 17. In any case, Congress plainly did not intend to provide a special rule for the trial of Indians charged with assault resulting in serious bodily injury.
13
Similarly, in view of our conclusion that the trial court erred in denying the requested instruction, we need not decide whether an apparent defect in the indictment—a defect to which petitioner did not object—provides an independent ground for reversal. The Major Crimes Act provides that an Indian may be tried in federal court for the offense of assault resulting in serious bodily injury. The statute further provides that this offense 'shall be defined and punished in accordance with the laws of the State in which such offense was committed.' Petitioner was not charged, however, with assault resulting in serious bodily injury, but rather with assault with intent to commit serious bodily injury. See S.D.Comp.Laws Ann. § 22—18—12 (1967). The South Dakota criminal code does not specifically proscribe the offense of assault resulting in serious bodily injury. Whether the prosecution should have been required to prove not only that the petitioner intended to commit serious bodily injury, but also that the assault resulted in serious bodily injury, is a question we do not now decide.
14
The Government argues that '(t)he ruling petitioner seeks would, under the principle of mutuality, empower federal prosecutors, dissatisfied with the leniency of tribal courts, to prosecute in marginal cases, knowing that if the major offense is not proved the penalty for the minor offense would be more substantial than in the tribal courts.' Brief for the United States 22. The lower courts have often held that a defendant is entitled to an instruction on a lesser included offense only in circumstances where the prosecution could also ask for such an instruction. See, e.g., Kelly v. United States, 125 U.S.App.D.C. 205, 207, 370 F.2d 227, 229 (1966). That is the principle of mutuality to which the Government refers. Nevertheless, Judge Wilkey, speaking for a panel of the Court of Appeals for the District of Columbia Circuit, recently concluded that 'despite the patina of antiquity, considerations of justice and good judicial administration warrant dispensing with mutuality as an essential prerequisite to the defense's right to a lesser included offense charge.' United States v. Whitaker, 144 U.S.App.D.C. 344, 351, 447 F.2d 314, 321 (1971). Whether that conclusion is sound, at least in the special situation presented by the case before us, is a question that we need not now decide.
1
The Court does not reach any other possible ground for reversing this conviction, and, accordingly, neither do I.
2
The petitioner was not charged with 'assault resulting in serious bodily injury,' the offense specified in the Major Crimes Act, but instead with assault with intent to commit serious bodily injury, S.D.Comp.Laws Ann. § 22—18—12 (1967). This was apparently because the Major Crimes Act provides that 'assault resulting in serious bodily injury' is to be 'defined and punished in accordance with the laws of the State in which such offense was committed.' Since South Dakota appears to have no statute identically matching the offense described in the Major Crimes Act, § 22—18—12 of the South Dakota Laws was relied upon to prosecute the offense charged here. See also Kills Crow v. United States, 451 F.2d 323. In a case where no serious bodily injury occurred, a defendant might well argue that his prosecution under this state law definition is no more under the jurisdiction of a federal district court than would be a prosecution for simple assault.
| 12
|
36 L.Ed.2d 941
93 S.Ct. 2008
412 U.S. 346
UNITED STATES, Petitioner,v.Cecil J. BISHOP.
No. 71—1698.
Argued Jan. 16, 1973.
Decided May 29, 1973.
Syllabus
Respondent was convicted of violating 26 U.S.C. § 7206(1), which makes it a felony when one '(w)illfully makes and subscribes any return . . . which he does not believe to be true and correct as to every material matter,' after the District Court refused a lesser-in-cluded-offense jury charge under § 7207, which makes it a misdemeanor when one 'willfully delivers or discloses' to the Internal Revenue Service any return or document 'known by him to be fraudulent or to be false as to any material matter.' The Court of Appeals reversed on the ground that 'willfully' as used in § 7206 implied an evil motive and bad faith, but the same word as used in § 7207 required only a showing of unreasonable, capricious, or careless disregard for the truth. Held: The word 'willfully' has the same meaning in §§ 7206(1) and 7207, connoting the voluntary, intentional violation of a known legal duty, and the distinction between the statutes is found in the additional misconduct that is essential to the violation of the felony provision; hence, the District Court properly refused the requested lesser-included-offense instruction based on respondent's erroneous contention that the word 'willfully' in the misdemeanor statute implied less scienter than the same word in the felony statute. Pp. 2383—2018.
455 F.2d 612, reversed and remanded.
Richard B. Stone, Dept. of Justice, Washington, D.C., for petitioner.
J. Richard Johnston, Oakland, Cal., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Chapter 75, subchapter A, of the Internal Revenue Code of 1954, as amended, 26 U.S.C. §§ 7201—7241, is concerned with tax crimes. Sections 7201—7207, inclusive, which in the aggregate relate to attempts to evade or defeat tax, to failures to act, and to fraud, all include the word 'willfully' in their respective contexts. Specifically, § 7206 is a felony statute and reads:
2
's 7206. Fraud and false statements.
3
'Any person who—
4
'(1) Declaration under penalties of perjury.
5
'Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . ..
6
'shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.'
7
Section 7207 is a misdemeanor statute1 and reads:
8
'7207. Fraudulent returns, statements, or other documents.
9
'Any person who willfully delivers or discloses to the Secretary or his delegate any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter, shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.'
10
This case presents the issue of the meaning of the critical word 'willfully' as it is employed in these two successive statutes. Is its meaning the same in each, or is the willfulness specified by the misdemeanor statute, § 7207, of somewhat less degree than the felony willfulness specified by
11
§ 7206?
12
* Respondent, Cecil J. Bishop, was convicted by a jury on all three counts of an indictment charging him with felony violations of § 7206(1) with respect to his federal income tax returns for the calendar years 1963, 1964 and 1965. The Court of Appeals, holding that a lesser-included-offense instruction directed to the misdemeanor statute, § 7207, was improperly refused by the trial judge, reversed the judgment of the District Court and remanded the case for a new trial. 455 F.2d 612 (C.A.9 1972). Since the meaning of 'willfully,' as used in the tax crime statutes, has divided the circuits,2 we granted certiorari. 409 U.S. 841, 93 S.Ct. 64, 34 L.Ed.2d 79 (1972).
13
We conclude that it was proper and correct for the District Court to refuse the lesser-included-offense instruction. In our view, the word 'willfully' has the same meaning in both statutes. Consequently, we reverse and remand so that the Court of Appeals may now proceed to consider the additional issues that court found it unnecessary to reach.
II
14
Mr. Bishop is a lawyer who has practiced his profession in Sacramento, California, since 1951. During that period, he owned an interest in a walnut ranch he and his father operated. In 1960 his secretary, Louise, married his father. The father died, and thereafter respondent's stepmother managed the ranch.
15
Respondent periodically sent checks to Louise. These were used to run the ranch, to pay principal on loans, and to make improvements.
16
Louise maintained a record of ranch expenditures and submitted an itemized list of these disbursements to respondent at the end of each calendar year. In his 1963 return respondent asserted as business deductions all amounts paid to Louise and, in addition, all the expenses Louise listed. This necessarily resulted in a double deduction for all ranch expenditures in 1963. Moreover, some of these expenditures were for repayment of loans and for other personal items that did not qualify as income tax deductions. In his 1964 and 1965 returns respondent similarly included nondeductible amounts among the ranch figures that were deducted.
17
The aggregate amount of improper deductions taken by respondent for the three taxable years exceeded $45,000. He enjoyed aggregate gross income for those years of about $70,000.
18
The incorrectness of the returns as filed for the three years was not disputed at trial. Transcript of Trial 869—872, 1148. Neither is it disputed here. Brief for Respondent 4.
III
19
Section 7206(1), the felony statute, is violated when one '(w)illfully makes and subscribes any return,' under penalties of perjury, 'which he does not believe to be true and correct as to every material matter.' Respondent based his defense at trial on the ground that he was not aware of the double deductions asserted in 1963 or of the improper deductions taken in the three taxable years. He claimed that his law office secretary prepared the return schedules from his records and from the information furnished by Louise; he merely failed to check the returns for accuracy.
20
Respondent requested lesser-included-offense instructions based on the misdemeanor statute, § 7207. This tax misdemeanor is committed by one 'who willfully delivers or discloses' to the Internal Revenue Service any return or document 'known by him to be fraudulent or to be false as to any material matter.' Respondent argued that the word 'willfully' in the misdemeanor statute should be construed to require less scienter than the same word in the felony statute. App. 28. With the state of respondent's guilty knowledge in dispute, his proposed instructions would have allowed the jury to choose between a misdemeanor based on caprice or careless disregard and a felony requiring evil purpose. The trial judge declined to give the requested instructions and, instead, gave an instruction only on the felony, requiring a finding by the jury that the defendant intended 'with evil motive or bad purpose either to disobey or to disregard the law.' App. 24.
21
After the guilty verdict on all counts was returned, respondent was sentenced to two years' imprisonment on each count, the sentences to run concurrently. The court, however, suspended all but 90 days of each sentence and placed respondent on probation for five years on condition that he pay a fine of $5,000. App. 31.
IV
22
The Court of Appeals relied upon and followed, 455 F.2d, at 614, a series of its own cases,3 particularly Abdul v. United States, 9 Cir., 254 F.2d 292 (1958), enunciating the proposition that the word 'willfully' has a meaning in tax felony statutes that is more stringent than its meaning in tax misdemeanor statutes.4 Our examination of these Ninth Circuit precedents in the light of this Court's decisions leads us to conclude that the Court of Appeals' opinion cannot be sustained by this asserted distinction between § 7206(1) and § 7207.
23
A. The Ninth Circuit rule appears to have been evolved from language in this Court's opinion in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). In Spies the defendant requested an instruction to the effect that an affirmative act was necessary to constitute a willful attempt to evade or defeat a tax, within the meaning of § 145(b) of the Revenue Act of 1936, 49 Stat. 1703. The trial court refused the request. The Second Circuit affirmed. This Court reversed. We were concerned in Spies with a felony statute, § 145(b), applying to one 'who willfully attempts in any manner to evade or defeat any tax,' and with a companion misdemeanor statute, § 145(a), applying to one who 'willfully fails to pay such tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations.' These statutes were the predecessors of the current §§ 7201 and 7203, respectively of the 1954 Code. In distinguishing between the two offenses, the Court said:
24
'The difference between willful failure to pay a tax when due, which is made a misdemeanor, and willful attempt to defeat and evade one, which is made a felony, is not easy to detect or define. Both must be willful, and willful, as we have said, is a word of many meanings, its construction often being influenced by its context. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381. It may well mean something more as applied to nonpayment of a tax than when applied to failure to make a return. Mere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness. But in view of our traditional aversion to imprisonment for debt, we would not without the clearest manifestation of Congressional intent assume that mere knowing and intentional default in payment of a tax, where there had been no willful failure to disclose the liability, is intended to constitute a criminal offense of any degree. We would expect willfulness in such a case to include some element of evil motive and want of justification in view of all the financial circumstances of the taxpayer.
25
'Had § 145(a) nor included willful failure to pay a tax, it would have defined as misdemeanors generally a failure to observe statutory duties to make timely returns, keep records, or supply information—duties imposed to facilitate administration of the Act even if, because of insufficient net income, there were no duty to pay a tax. It would then be a permissible and perhaps an appropriate construction of § 145(b) that it made felonies of the same willful omissions when there was the added element of duty to pay a tax. The definition of such nonpayment as a misdemeanor, we think, argues strongly against such an interpretation.' 317 U.S., at 497—498, 63 S.Ct. at 367.
26
In Abdul the court considered an appeal by a taxpayer convicted of tax misdemeanors (§ 2707(b) of the 1939 Code and § 7203 of the 1954 Code) based on failure to file but acquitted of tax felonies (§ 2707(c) of the 1939 Code and § 7202 of the 1954 Code) based on failure to account for and pay withholding taxes. The defense was inability to pay. The trial judge instructed the jury that the term 'wilful' in the misdemeanor counts meant, among other things, 'capriciously or with a careless disregard whether one has the right so to act,' whereas the same word in the felony counts meant 'with knowledge of one's obligation to pay the taxes due and with intent to defraud the Government of that tax by any affirmative conduct.' 254 F.2d, at 294. Relying on Spies, the Court of Appeals approved these instructions and concluded that
27
'the word 'wilful' as used in the misdemeanor statute means something less when applied to a failure to make a return than as applied to a felony non-payment of a tax. This being true, then the words used in the instruction defining 'wilful' as relates to a misdemeanor adequately and clearly point up that difference.' Ibid.
28
Because of an error in the cross-examination of Abdul, his conviction was reversed. On retrial, he was again convicted. He appealed, and the judgment was affirmed. Abdul v. United States, 278 F.2d 234 (C.A.9 1960). When Abdul sought certiorari, the Solicitor General conceded that the sentence under one of the counts could not stand and undertook to say that the Government would present to the District Court a motion for correction of the sentence. Certiorari, accordingly, was denied. Two Justices would have granted the writ to review the correctness of the charge 'regarding the requirement of willfulness.' 364 U.S. 832, 81 S.Ct. 44, 5 L.Ed.2d 58 (1960).
29
In the present case the Court of Appeals continued this Abdul distinction between willfulness in tax misdemeanor charges and willfulness in tax felony charges. Section 7207, it was said, requires only a showing of 'unreasonable, capricious, or careless disregard for the truth or falsity of income tax returns filed,' whereas § 7206(1) 'requires proof of an evil motive and bad faith.' 455 F.2d, at 615. The level of willfulness, thus, would create a disputed factual element that made appropriate a lesser-included-offense instruction.
30
B. The decisions of this Court do not support the holding in Abdul, and implicitly they reject the approach taken by the Court of Appeals. In Spies, the Court speculated, 317 U.S., at 495—498, 63 S.Ct. at 366, that Congress could have distinguished between the regulatory aspects of the tax system, which call for compliance regardless of financial status, and the revenue-collecting aspects, which may place demands on a taxpayer he cannot meet. Since the antecedent of § 7203 (as does that section itself today) punished both failure to file and failure to pay as misdemeanors, the Court concluded that Congress had not drawn the line between felonies and misdemeanors on the basis of distinctions between the system's regulatory aspects and its revenue-collecting aspects. The reliance in Abdul on that hypothetical statutory scheme, discussed by this Court in Spies but found not in line with what Congress had actually done, was misplaced. Utilizing the unsupported Abdul distinction as a foundation, the Court of Appeals constructed the further general distinction between tax felonies and tax misdemeanors, a distinction also inconsistent with prior decisions of this Court.
31
In Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), a defendant was convicted of violating the antecedent of § 7201, namely, § 145(b) of the 1939 Code, a felony statute identical, for present purposes, with the section of the same number in the Revenue Act of 1936 at issue in Spies. The defendant claimed that he was entitled to a lesser-included-offense instruction based on § 3616(a) of the 1939 Code, the antecedent of § 7207. The Court rejected this contention, concluding that the two sections of the 1939 Code then 'covered precisely the same ground.' 351 U.S., at 134, 76 S.Ct. at 687. Implicit in this was the conclusion that the level of intent required for tax misdemeanors was not automatically lower than the level of intent required for tax felonies.
32
Although the misdemeanor statute, § 3616(a), proffered by the defendant in Berra did not contain the word 'willfully,' the Berra facts were presented to the Court again in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965), when the misdemeanor statutes there in issue, §§ 7207 and 7203 of the 1954 Code, both contained the word 'willfully.'5 In Sansone the Court rejected the argument that a set of facts could exist that would satisfy the willfulness element in the § 7207 misdemeanor but not in the § 7201 felony:
33
'Given petitioner's material misstatement which resulted in a tax deficiency, if, as the jury obviously found, petitioner's act was willful in the sense that he knew that he should have reported more income than he did for the year 1957, he was guilty of violating both §§ 7201 and 7207. If his action was not willful, he was guilty of violating neither.' 380 U.S., at 353, 85 S.Ct., at 1011.
34
The same analysis was applied to the requested lesser-included-offense instruction for § 7203. Id., at 352, 85 S.Ct. 1010. The clear implication of the decision in Sansone is that the word 'willfully' possesses the same meaning in §§ 7201, 7203, and 7207. Sansone thus foreclosed the argument that the word 'willfully' was to be given one meaning in the tax felony statutes and another meaning in the tax misdemeanor statutes.
35
The thesis relied upon by the Court of Appeals, therefore, was incorrect.
V
36
It would be possible, of course, that the word 'willfully' was intended by Congress to have a meaning in § 7206(1) different from its meaning in § 7207, and we turn now to that possibility.
37
We continue to recognize that context is important in the quest for the word's meaning. See United States v. Murdock, 290 U.S. 389, 394—395, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933). Here, as in Spies, the 'legislative history of the section(s) contains nothing helpful on the question here at issue, and we must find the answer from the (sections themselves) and (their) context in the revenue laws.'6 317 U.S., at 495, 63 S.Ct., at 366. We consider first, then, the sections themselves.
38
A. Respondent argues that both §§ 7206(1) and 7207 apply to a fraudulent 'return' and cover the same ground if the word 'willfully' has the same meaning in both sections. Since 'it would be unusual and we would not readily assume that Congress by the felony . . . meant no more than the same derelictions it had just defined . . . as a misdemeanor,' 317 U.S., at 497, 63 S.Ct., at 367, respondent concludes that Congress must have intended to require a more willful violation for the felony than for the misdemeanor.
39
The critical difficulty for respondent is that the two sections have substantially different express terms. The most obvious difference is that § 7206(1) applies only if the document 'contains or is verified by a written declaration that it is made under the penalties of perjury.' No equivalent requirement is present in § 7207. Respondent recognizes this but then relies on the presence of perjury declarations on all federal income tax returns, a fact that effectively equalizes the sections where a federal tax return is at issue. See 26 U.S.C. § 6065(a).7
40
This approach, however, is not persuasive for two reasons. First, the Secretary or his delegate has the power under § 6065(a) to provide that no perjury declaration is required. If he does so provide, then § 7207 immediately becomes operative in the area theretofore covered by § 7206(1). Second, the term 'return' is not necessarily limited to a federal income tax return. A state or other nonfederal return could be intended and might not contain a perjury warning. If this type of return were submitted in support of a federal return, or in the course of a tax audit, § 7207 could apply even if § 7206(1) could not.
41
There are other distinctions. The felony applies to a document that a taxpayer '(w)illfully makes and subscribes . . . and which he does not believe to be true and correct as to every material matter,' whereas the misdemeanor applies to a document that a taxpayer 'willfully delivers or discloses to the Secretary or his delegate . . . known by him . . . to be false as to any material matter.' In the felony, then, the taxpayer must verify the return or document in writing, and he is liable if he does not affirmatively believe that the material statements are true. For the misdemeanor, however, a document prepared by another could give rise to liability on the part of the taxpayer if he delivered or disclosed it to the Service; additional protection is given to the taxpayer in this situation because the document must be known by him to be fraudulent or to be false.
42
These differences in the respective applications of §§ 7206(1) and 7207 provide solid evidence that Congress distinguished the statutes in ways that do not turn on the meaning of the word 'willfully.' Judge Hastie, in analyzing this Court's holding in Spies, appropriately described this disctinction as follows:
43
'However, this distinction is found in the additional misconduct which is essential to the violation of the felony statute . . . and not in the quality of willfulness which characterizes the wrongdoing.' United States v. Vitiello, 363 F.2d 240, 243 (C.A.3 1966).
44
Thus the word 'willfully' may have a uniform meaning in the several statutes without rendering any one of them surplusage. We next turn to context.
45
B. The hierarchy of tax offenses set forth in §§ 7201—7207, inclusive, utilizes the mental state of the offender as a guide in establishing the penalty. Section 7201, relating to attempts to evade or defeat tax, has been described and recognized by the Court as the 'climax of this variety of sanctions' and as the 'capstone of a system of sanctions which singly or in combination were calculated to induce prompt and forthright fulfillment of every duty under the income tax law and to provide a penalty suitable to every degree of delinquency.' Spies, 317 U.S., at 497, 63 S.Ct. 367; Sansone, 380 U.S., at 350—351, 85 S.Ct. at 1009. The actor's mental state is described both by the requirement that acts be done 'willfully' and by the designation of certain express elements of the offenses. In § 7201, for example, the Court has held that, by requiring an attempt to evade, 'Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors.' Spies, 317 U.S., at 499, 63 S.Ct. at 368. Similarly, in § 7207, the Government must show that the document was known by the taxpayer to be fraudulent or to be false as to a material matter.
46
All these offenses, except two subsections of § 7206, viz., subsections (3) and (4), require that acts be done 'willfully.' Although the described states of mind might be included in the normal meaning of the word 'willfully,' the presence of both an express designation and the simultaneous requirement that a violation be committed 'willfully' is strong evidence that Congress used the word 'willfully' to describe a constant rather than a variable in the tax penalty formula.8
47
The Court, in fact, has recognized that the word 'willfully' in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as 'bad faith or evil intent,' Murdock, 290 U.S., at 398, 54 S.Ct. at 226, or 'evil motive and want of justification in view of all the financial circumstances of the taxpayer,' Spies, 317 U.S., at 498, 63 S.Ct. at 368, or knowledge that the taxpayer 'should have reported more income than he did.' Sansone, 380 U.S., at 353, 85 S.Ct. at 1011. See James v. United States, 366 U.S. 213, 221, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961); McCarthy v. United States, 394 U.S. 459, 471, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
48
This longstanding interpretation of the purpose of the recurring word 'willfully' promotes coherence in the group of tax crimes. In our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law. The Court has said, 'It is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.' Spies, 317 U.S., at 496, 63 S.Ct. at 367. Degrees of negligence give rise in the tax system to civil penalties. The requirement of an offense committed 'willfully' is not met, therefore, if a taxpayer has relied in good faith on a prior decision of this Court. James v. United States, 366 U.S., at 221—222, 81 S.Ct., at 1056. Cf. Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). The Court's consistent interpretation of the word 'willfully' to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.
49
Until Congress speaks otherwise, we therefore shall continue to require, in both tax felonies and tax misdemeanors that must be done 'willfully,' the bad purpose or evil motive described in Murdock, supra. We hold, consequently, that the word 'willfully' has the same meaning in § 7207 that it has in § 7206(1). Since the only issue in dispute in this case centered on willfulness, it follows that a conviction of the misdemeanor would clearly support a conviction for the felony.9 Under these circumstances a lesser-included-offense instruction was not required or proper, for in the federal system it is not the function of the jury to set the penalty. Berra v. United States, 351 U.S., at 134—135, 76 S.Ct. at 687.
50
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings. It is so ordered.
51
Reversed and remanded.
52
Mr. Justice DOUGLAS would affirm the judgment of the Court of Appeals for the Ninth Circuit on the opinion written for that court by Judge Powell. 455 F.2d 612.
1
Title 18 U.S.C. § 1 defines felony and misdemeanor:
§ 1. Offenses classified.
'Notwithstanding any Act of Congress to the contrary:
'(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
'(2) Any other offense is a misdemeanor.'
2
Compare United States v. Vitiello, 363 F.2d 240, 243 (C.A.3 1966) (§§ 7201 and 7203), and Haner v. United States, 315 F.2d 792, 794 (C.A.5 1963) (§ 7203), where the Ninth Circuit analysis was rejected, with United States v. Fahey, 411 F.2d 1213 (C.A.9), cert. denied, 396 U.S. 957, 90 S.Ct. 430, 24 L.Ed.2d 422 (1969) (§ 7203); Martin v. United States, 317 F.2d 753 (C.A.9 1963) (§ 7203); Abdul v. United States, 254 F.2d 292 (C.A.9 1958) (§ 2707(b) and (c) of the 1939 Code and §§ 7202 and 7203 of the 1954 Code). See also Janko v. United States, 281 F.2d 156, 166—167 (C.A.8 1960), rev'd on confession of error by the Solicitor General, 366 U.S. 716, 81 S.Ct. 1662, 6 L.Ed.2d 846 (1961) (§§ 7201 and 7207); Lumetta v. United States, 362 F.2d 644, 646 n. 3 (C.A.8 1966) (§§ 7201 and 7203); Escobar v. United States, 388 F.2d 661 (C.A.5 1967), cert. denied, 390 U.S. 1024, 88 S.Ct. 1141, 20 L.Ed.2d 282 (1968)
(§§ 7206(1) and 7207). Other inconsistencies in interpreting the word 'willfully' have compounded the confusion. See n. 8, infra. Cf. United States v. Lachmann, 469 F.2d 1043 (C.A.1 1972) (§§ 7201 and 7203).
3
United States v. Haseltine, 9 Cir., 419 F.2d 579, 581 (1970) (§§ 7201 and 7203); United States v. Fahey, n. 2, supra; Eustis v. United States, 9 Cir., 409 F.2d 228 (1969) (§ 7203); Edwards v. United States, 9 Cir., 375 F.2d 862 (1967) (§§ 7201, 7203, and 7206(2)); Martin v. United States, n. 2, supra; Abdul v. United States, n. 2, supra.
4
One possible result of this distinction, of course, is that the Government's burden in a misdemeanor case could be less than in a felony case.
5
The applicability of § 3616(a) of the 1939 Code to income tax returns was not contested in Berra v. United States, 351 U.S. 131, 133, 76 S.Ct. 685, 687, 100 L.Ed. 1013 (1956), but the Court soon held that that statute 'did not apply to evasion of the income tax.' Achilli v. United States, 353 U.S. 373, 379, 77 S.Ct. 995, 998, 1 L.Ed.2d 918 (1957). In Sansone, however, statutory revisions effected by the enactment of the 1954 Code were held to make § 7207 applicable to income tax violations. Sansone v. United States, 380 U.S. 343, 347—349, 85 S.Ct. 1004, 1008, 13 L.Ed.2d 882 (1965).
6
See H.R.Rep.No.1337, 83d Cong., 2d Sess., A425 (1954); S.Rep.No.1622, 83d Cong., 2d Sess., 602—603 (1954). The predecessor to § 7206(1) was § 3809(a) of the 1939 Code. The antecedent to § 7207 was, as we have noted above, § 3616(a) of the 1939 Code. See Sansone, 280 U.S., at 347, 85 S.Ct., at 1008.
7
'§ 6065. Verification of returns.
'(a) Penalties of perjury.
'Except as otherwise provided by the Secretary or his delegate, any return, declaration, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.' See also Treas.Reg. § 1.6065—1 (1972).
8
Semantic confusion sometimes has been created when courts discuss the express requirement of an 'attempt to evade' in § 7201 as if it were implicit in the word 'willfully' in that statute. This type of analysis produces language suggesting that 'willfully' in § 7201 has a different meaning from the same term in § 7203. See United States v. Ming, 466 F.2d 1000, 1004 (C.A.7), cert. denied, 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176 (1972) (§§ 7201 and 7203); United States v. Matosky, 421 F.2d 410 (CA7), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62 (1970) (§ 7203); United States v. Haseltine, 419 F.2d, at 581; Edwards v. United States, 375 F.2d, at 867; United States v. Schipani, 362 F.2d 825, 831 (CA2), cert. denied, 385 U.S. 934, 87 S.Ct. 293, 17 L.Ed.2d 214 (1966). This Court may be somewhat responsible for this imprecision because a similar analysis was employed in Spies v. United States, 317 U.S. 492, 497—499, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943). Greater clarity might well result from an analysis that distinguishes the express elements, such as an 'attempt to evade,' prescribed by § 7201, from the uniform requirement of willfulness.
9
The Government has argued that the misdemeanor of § 7207 could never be a lesser included offense in § 7206(1) because the misdemeanor requires that the actor have knowledge of the falsity. This is said to create an additional element in the misdemeanor, not present in the felony, so the misdemeanor is not 'necessarily included' in the felony, within the meaning of Fed.Rule Crim.Proc. 31(c). Our conclusion that the word 'willfully' has the same meaning in both statutes makes it unnecessary to reach this contention.
| 01
|
412 U.S. 427
93 S.Ct. 2201
37 L.Ed.2d 48
Deborah A. NORTHCROSS et al.v.BOARD OF EDUCATION OF the MEMPHIS CITY SCHOOLS et al.
No. 72—1164.
June 4, 1973.
PER CURIAM.
1
This case presents the question of the propriety, under § 718 of the Emergency School Aid Act of 1972, 86 Stat. 369, 20 U.S.C. § 1617, of a denial of attorneys' fees to the successful plaintiffs in this litigation aimed at desegregating the public schools of Memphis, Tennessee. Section 718, which became effective on July 1, 1972, provides that '(u)pon the entry of a final order by a court of the United States against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof),' in any action seeking to redress illegal or unconstitutional discrimination with respect to 'elementary and secondary education, the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.' In this case, the United States Court of Appeals for the Sixth Circuit denied petitioners' motion for an award of attorneys' fees. The Court of Appeals did not, however, state reasons for the denial and it is therefore not possible for this Court to determine whether the Court of Appeals applied the proper standard in reaching this result.1
2
Section 718 tracks the wording of § 204(b) of the Civil Rights Act of 1964, 78 Stat. 244, 42 U.S.C. § 2000a—3(b), which provides that, in an action seeking to enforce Title II of that Act, 'the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . ..' In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), we held that, under § 204(b), 'one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' Id., at 402, 88 S.Ct., at 966. The similarity of language in § 718 and § 204(b) is, of course, a strong indication that the two statutes should be interpreted pari passu. Moreover, 'the two provisions share a common raison d'e tre. The plaintiffs in school cases are 'private attorneys general' vindicating national policy in the same sense as are plaintiffs in Title II actions. The enactment of both provisions was for the same purpose—'to encourage individuals injured by racial discrimination to seek judicial relief . . .." Johnson v. Combs, 471 F.2d 84, 86 (CA5 1972), quoting Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S., at 402, 88 S.Ct., at 966. We therefore conclude that, as with § 204(b), if other requirements of § 718 are satisfied, the successful plaintiff 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' 390 U.S., at 402, 88 S.Ct., at 966. Since it is impossible for us to determine whether the Court of Appeals applied this standard and, if so, whether it did so correctly, we grant the petition for certiorari, vacate the judgment below insofar as it relates to the denial of attorneys' fees, and remand to the Court of Appeals for further proceedings consistent with this opinion.2 See Taylor v. McKeithen, 407 U.S. 191, 92 S.Ct. 1980, 32 L.Ed.2d 648 (1972); cf. California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972).
3
Judgment vacated and case remanded.
4
Mr. Justice MARSHALL did not participate in the consideration or disposition of this case.
1
Respondents suggest that petitioners' motion for costs and attorneys' fees might have been denied due to untimeliness. Although it is clear that the petitions for rehearing en banc were denied as untimely, there is no indication that the bill of costs was filed out of time, or that costs and attorneys' fees were denied for that reason.
2
We need not, and therefore do not, decide whether § 718 authorizes an award of attorneys' fees insofar as those expenses were incurred prior to the date that that section came into effect. We also do not decide whether, and under what circumstances, an award of attorneys' fees is permissible in suits brought under 42 U.S.C. § 1983 in the absence of specific statutory authorization for such an award. See Knight v. Auciello, 453 F.2d 852 (CA1 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (CA5 1971).
| 56
|
412 U.S. 401
93 S.Ct. 2169
37 L.Ed.2d 30
UNITED STATES, Petitioner,v.CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.
No. 72—90.
Argued Feb. 26, 1973.
Decided June 4, 1973.
Syllabus
In this refund suit, respondent railroad seeks to recover an alleged income tax overpayment resulting from its failure to take deductions for depreciation with respect to the cost of facilities constructed at highway-railroad intersections and elsewhere that were paid for, not by respondent, but out of Government funds appropriated to further public safety and improve highway systems. Respondent claimed that the subsidies qualified as contributions to its capital by a nonshareholder under § 113(a)(8) of the Internal Revenue Code of 1939, thereby permitting respondent to depreciate the Government's cost in the assets. The Court of Claims ruled that respondent was entitled to the claimed depreciation deduction. Held: The governmental subsidies did not constitute contributions to respondent's capital within the meaning of § 113(a) (8); the assets in question have a zero basis; and respondent cannot claim a depreciation allowance with respect to those assets. As can be gleaned from Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286, and Brown Shoe Co. v. Commissioner of Internal Revenue, 339 U.S. 583, 70 S.Ct. 820, 94 L.Ed. 1081, to qualify as a nonshareholder contribution to capital, the asset must become a permanent part of the transferee's working capital structure; may not be compensation for the transferee's services; must be bargained for; must benefit the transferee commensurately with its value; and ordinarily will be used to produce additional income. Here, almost none of these criteria was met, since the facilities were not bargained for and, but for the governmental subsidies, would not have been constructed. No substantial incremental benefit in terms of income production was considered at the time the facilities were transferred, and such minor benefit as may have accrued to respondent from the facilities was merely peripheral to the railroad's business. Nor would respondent's asserted obligation to replace the facilities warrant the claimed depreciation. Pp. 2172—2177.
455 F.2d 993, 197 Ct.Cl. 264, reversed and remanded.
Richard B. Stone, Washington, D.C., for petitioner.
Richard J. Schreiber, Chicago, Ill., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The issue in this federal income tax case is whether the respondent, Chicago, Burlington & Quincy Railroad Company (CB&Q), an interstate common carrier railroad, may depreciate the cost of certain facilities paid for prior to June 22, 1954, not by it or by its shareholders, but from public funds.
2
Starting about 1930, CB&Q entered into a series of contracts with various Midwestern States. By these agreements the States were to fund some or all of the costs of construction of specified improvements, and the railroad apparently was to bear, at least in part, the costs of maintenance and replacement of the improvements once they had been installed. In 1933, as part of the program of the National Industrial Recovery Act, 48 Stat. 195, Congress authorized federal reimbursement to the States of the shares of the costs the States incurred in the construction of those improvements that inured to the benefit of public safety and improved highway traffic control.1 In 1944 Congress went further and authorized reimbursement, with stated limitations, to the States for the entire cost of the improvements, subject to the condition that a railroad that received a benefit from a facility so constructed was liable to the Government for up to 10% of the cost of the project pro rata in relation to the benefit received by the railroad.2
3
Under these programs CB&Q received, at public expense, highway undercrossings and overcrossings having a cost of $1,538,543; crossing signals, signs, and floodlights having a cost of $548,877; and jetties and bridges having a cost of $58,721.3 These improvements, aggregating $2,146,141, were carried on the railroad's books as capital assets even though most of the agreements between CB&Q and the several States did not expressly convey title to the railroad.
4
CB&Q instituted a timely suit in the Court of Claims alleging among other things, that it had overpaid its 1955 federal income tax because it had failed to assert, as a deduction on its return as filed, allowable depreciation on the subsidized assets.4 By a 4-to-3 decision on this issue (only one of several in the case), the Court of Claims concluded that, under § 167 of the Internal Revenue Code of 1954, 26 U.S.C. § 167, CB&Q was entitled to the depreciation deduction it claimed. This was on the theory that the subsidies qualified as contributions to the railroad's capital under §§ 362 and 1052(c) of that Code, 26 U.S.C. §§ 362 and 1052(c), and under § 113(a)(8) of the Internal Revenue Code of 1939.
5
In arriving at this conclusion, the Court of Claims majority relied on Brown Shoe Co. v. Commissioner of Internal Revenue, 339 U.S. 583, 70 S.Ct. 820, 94 L.Ed. 1081 (1950), and reasoned that, even though the governmental payments for the facilities may not have been intended as contributions to the railroad's capital, the 'principal purpose' being, instead, 'to benefit the community-at-large,' 455 F.2d, at 1000, 197 Ct.Cl., at 276, the facilities did in fact enlarge the railroad's working capital, were used in its business, and produced economic benefits for it, thereby qualifying as contributions to its capital under the cited section of the 1939 Code. The three dissenting judges disagreed with this interpretation of Brown Shoe, and instead, relied on Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286 (1943). They concluded that the critical features were the donor's attitude, purpose, and intent, and that, with governmental payments, there could be no intention to confer a benefit upon CB&Q. Instead, as the findings revealed,5 the intention was to expedite traffic flow and to improve public safety at highway-railroad crossings. 455 F.2d at 1023, 1026, 197 Ct.Cl., at 315, 320.
6
Because the Court of Claims decision apparently would afford a precedent for the tax treatment of substantial sums,6 we granted certiorari. 409 U.S. 947, 93 S.Ct. 291, 34 L.Ed.2d 217.
7
* Section 23(l) of the 1939 Code and its successor, § 167(a) of the 1954 Code, 26 U.S.C. § 167(a), allow a taxpayer 'as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear . . . of property used in the trade or business.' In the usual situation the taxpayer himself incurs cost in acquiring the asset as to which the depreciation deduction is asserted.7 But there are other and different situations formally recognized in the governing tax statutes. A familiar example is gift property.8 Another is property acquired by a corporation from its shareholders as paid-in surplus or as a contribution to capital.9 Another, and the one that is pertinent here, is covered by § 113(a)(8)10 of the 1939 Code and by the contrasting provisions of §§ 362(a) and (c) of the 1954 Code, 26 U.S.C. §§ 362(a) and (c).11 This concerns a contribution to capital by a nonshareholder. See Treas.Reg. 111, § 29.113(a)(8)—1 (1943). Under §§ 113(a)(8) and 114(a) of the earlier Code, the nonshareholder-contributed asset in the hands of the receiving corporation had the same basis, subject to adjustment, for depreciation purposes as it had in the hands of the transferor; under the 1954 Code, however, its basis for the transferee is zero.
8
Pertinent to all this is the Court's decision in Edwards v. Cuba R. Co., 268 U.S. 628, 45 S.Ct. 614, 69 L.Ed. 1124 (1925). The Court there held that subsidies granted by the Cuban Government to a railroad to promote construction in Cuba 'were not profits or gains from the use or operation of the railroad,' and did not constitute income to the receiving corporation. Id., at 633, 45 S.Ct., at 615. The holding in Edwards, taken with § 113(a)(8) of the 1939 Code, produced a seemingly anomalous result, for it meant that a corporate taxpayer receiving property from a nonshareholder as a contribution to capital not only received the property free from income tax but was allowed to assert a deduction for depreciation on the asset so received tax free. This result also ensued under the Court's holding in Brown Shoe and led to the enactment of the zero-basis provision, referred to above, in § 362(c) of the 1954 Code, 26 U.S.C. § 362(c). Veterans Foundation v. Commissioner of Internal Revenue, 317 F.2d 456, 458 (CA10 1963).
9
CB&Q argues that this very result should follow here. It is said that the railroad received no taxable income and incurred no income tax liability when it received, at governmental expense prior to June 22, 1954, the facilities as to which DB&Q now asserts depreciation. And, in providing the facilities, CB&Q argues, the Government intended to make a contribution to the railroad's capital, within the meaning of § 113(a)(8), thereby permitting CB&Q to depreciate the Government's cost in the assets. Whether the governmental subsidies qualified as income to the railroad is an issue not raised in this case, and we intimate no opinion with respect to it. The United States, however, asserts that the subsidies did not constitute a 'contribution to capital' under § 113(a)(8), and that, accordingly, the transferee railroad's tax basis is zero and no depreciation deduction is available.
10
Our inquiry, therefore, is a narrow one: whether the nonshareholder payment in this case constituted a 'contribution to capital,' within the meaning of § 113(a)(8). Because both Detroit Edison and Brown Shoe bear upon the issue, we turn to those two decisions.
II
11
Detroit Edison concerned customers' payments to a utility for the estimated costs of construction of service facilities (primary power lines) that the utility otherwise was not obligated to provide. For its tax years 1936 and 1937, to which the Revenue Act of 1936, 49 Stat. 1648, applied, the utility claimed the full cost of the facilities in its base for computing depreciation. The Commissioner disallowed, for depreciation purposes, that portion of the cost paid by customers and not refundable. The Board of Tax Appeals, 45 B.T.A. 358 (1941), and the Court of Appeals, 131 F.2d 619 (CA6 1942), sustained the Commissioner. This Court affirmed.
12
Mr. Justice Jackson, speaking for a unanimous Court (the Chief Justice not participating), observed, 'The end and purpose of it all (depreciation) is to approximate and reflect the financial consequences to the taxpayer of the subtle effects of time and use on the value of his capital assets.' 319 U.S., at 101, 63 S.Ct., at 904. The statute, § 113(a) of the 1936 Act, it was said, 'means . . . cost to the taxpayer,' even though the property 'may have a cost history quite different from its cost to the taxpayer.' Also, the 'taxpayer's outlay is the measure of his recoupment through depreciation accruals.' 319 U.S., at 102, 63 S.Ct., at 904. The utility's attempt to avoid this result by its contention that the payments were gifts or contributions to its capital, and entitled to the transferors' bases, was rejected.
13
'It is enough to say that it overtaxes imagination to regard the farmers and other customers who furnished these funds as makers either of donations or contributions to the Company. The transaction neither in form nor in substance bore such a semblance.
14
'The payments were to the customer the price of the service. . . . They have not been taxed as income. . . . But it does not follow that the Company must be permitted to recoup through untaxed depreciation accruals on investment it has refused to make.' Id., at 102—103, 63 S.Ct., at 904.
15
Detroit Edison, by itself, would appear almost to foreclose CB&Q's claims here, for there is an obvious parallel between the customers' payment for the utility service facilities in Detroit Edison, and the governmental payments for improvements to the railroad's service facilities in the case before us.
16
But Detroit Edison was not the last word. Brown Shoe was decided seven years later, and the opposite tax result was reached by an 8—1 vote of the Court, with Mr. Justice Black in dissent without opinion.
17
Brown Shoe concerned a corporate taxpayer's excess profits tax, under the Second Revenue Act of 1940, 54 Stat. 974, as amended, for its fiscal years 1942 and 1943. Community groups paid cash or transferred property to the taxpayer as an inducement for the location or expansion of factory operations in their communities. Contracts were entered into, and in each instance the taxpayer obligated itself to locate or enlarge a facility in the community and to operate it for at least a minimum term. The value of the payments and transfers was the focus of the controversy between the taxpayer and the Commissioner, for depreciation on the transferred assets was claimed and their inclusion in equity invested capital was asserted. The Tax Court overruled the Commissioner's disallowance with respect to the acquisitions paid for with cash, but sustained the Commissioner with respect to buildings transferred. 10 T.C. 291 (1948). The Court of Appeals upheld the Commissioner on both items. 175 F.2d 305 (CA8 1949). This Court reversed.
18
Mr. Justice Clark, writing the opinion for the majority of the Court, concluded that the assets transferred by the community groups to the taxpayer were contributions to capital, within the meaning of § 113(a)(8) of the 1939 Code. The Court noted that in time they would wear out and, if the taxpayer continued in business, the physical plant eventually would have to be replaced. Detroit Edison was cited and recognized, but was considered not to be controlling. In Brown Shoe there were 'neither customers nor payments for service,' and therefore the Court 'may infer a different purpose in the transactions between petitioner and the community groups.' 339 U.S., at 591, 70 S.Ct., at 824. The only expectation of the groups was that 'such contributions might prove advantageous to the community at large.' Thus, it was said, 'the transfers manifested a definite purpose to enlarge the working capital of the company.' Ibid.
19
The Court thus professed to distinguish and not at all to overrule Detroit Edison. It did so on an analysis of the purposes behind the respective transfers in the two cases. Where the facts were such that the transferors could not be regarded as having intended to make contributions to the corporation, as in Detroit Edison, the assets transferred were not depreciable. But where the transfers were made with the purpose, not of receiving direct service or recompense, but only of obtaining advantage for the general community, as in Brown Shoe, the result was a contribution to capital.
III
20
It seems fair to say that neither in Detroit Edison nor in Brown Shoe did the Court focus upon the use to which the assets transferred were applied, or upon the economic and business consequences for the transferee corporation. Instead, the Court stressed the intent or motive of the transferor and determined the tax character of the transaction by that intent or motive. Thus, the decisional distinction between Detroit Edison and Brown Shoe rested upon the nature of the benefit to the transferor, rather than to the transferee, and upon whether that benefit was direct or indirect, specific or general, certain or speculative.12 These factors, of course, are simply indicia of the transferor's intent or motive.
21
That this line of inquiry, and these distinctions, have relatively little to do with the economic and business consequences of the transaction seems selfevident.13 In both cases the assets transferred were actually used in the transferee's trade or business for the production of income. In neither case did the transferee provide the investment for the assets sought to be depreciated. Yet in both cases, the assets in question were transferred for a consideration pursuant to an agreement. If, at first glance, Detroit Edison and Brown Shoe seem somewhat inconsistent, they may be reconciled, and indeed must be, on the ground that in Detroit Edison the transferor intended no contribution to the transferee's capital, whereas in Brown Shoe the transferors did have that intent.
22
The statutory phrase 'contribution to capital' is nowhere expressly defined in either the 1939 Code or the 1954 Code, and our prior decisions provide only limited guidance as to its precise meaning. Detroit Edison might be said to be only a holding that a payment for services is not a contribution to capital. Brown Shoe sheds little additional light, for the Court stated only that because the community payments were not compensation for specific services rendered, and did not constitute gifts, they must have been made in order to enlarge the working capital of the company. 339 U.S., at 591, 70 S.Ct., at 824.
23
But other characteristics of a contribution to capital are implicit in the two cases and become apparent when viewed in the light of the facts presently before us. In Brown Shoe, for example, the contributed funds were intended to benefit not only the transferors but the transferee as well, for the assets were put to immediate use by the taxpayer for the generation of additional income. Without benefit to the taxpayer, the agreement certainly would not have been made. Perhaps to some extent this was true in Detroit Edison; that taxpayer, however, was a public utility, and the anticipated revenue from the service lines to the customers would not have warranted the investment by the utility itself. 319 U.S., at 99, 63 S.Ct., at 903. Its benefit, therefore, was marginal.
24
We can distill from these two cases some of the characteristics of a nonshareholder contribution to capital under the Internal Revenue Codes. It certainly must become a permanent part of the transferee's working capital structure. It may not be compensation, such as a direct payment for a specific, quantifiable service provided for the transferor by the transferee. It must be bargained for. The asset transferred foreseeably must result in benefit to the transferee in an amount commensurate with its value. And the asset ordinarily, if not always, will be employed in or contribute to the production of additional income and its value assured in that respect.
25
By this measure, the assets with which this case is concerned clearly do not qualify as contributions to capital. Although the assets were not payments for specific, quantifiable services performed by CB&Q for the Government as a customer, other characteristics of the transaction lead us to the conclusion that, despite this, the assets did not qualify as contributions to capital. The facilities were not in any real sense bargained for by CB&Q. Indeed, except for the orders by state commissions and the governmental subsidies, the facilities most likely would not have been constructed at all.14 See Nashville, C. & St. L.R. Co. v. Walters, 294 U.S. 405, 421—424, 55 S.Ct. 486, 491—493, 79 L.Ed. 949 (1935). The transaction in substance was unilateral: CB&Q would accept the facilities if the Government would require their construction and would pay for them. Any incremental economic benefit to CB&Q from the facilities was marginal; its extent and importance were indicated and accounted for by the requirement that the railroad pay not to exceed 10% of the cost in relation to its own benefit.15 The facilities were peripheral to its business and did not materially contribute to the production of further income by the railroad. They simply replaced existing facilities or provided new, better, and safer ones where none otherwise would have been deemed necessary. As the Court of Claims found, the facilities were constructed 'primarily for the benefit of the public to improve safety and to expedite highway traffic flow,'16 and the need of the railroad for capital funds was not considered, 455 F.2d 993, 197 Ct.Cl., at 326. While some incremental benefit from lower accident rates, from reduced expenses of operating crossing facilities, and from possibly higher train speed might have resulted, these were incidental and insubstantial in relation to the value now sought to be depreciated, and they were presumably considered in computing the railroad's maximum 10% liability under the Act. In our view, no substantial incremental benefit in terms of the production of income was foreseeable or taken into consideration at the time the facilities were transferred. Accordingly, no contribution to capital was effected.
26
CB&Q nevertheless contends that it is entitled to depreciate the facilities because of its obligation to maintain and replace them. Whatever may be the desirability of creating a depreciation reserve under these circumstances, as a matter of good business and accounting practice, the answer is, as Judge Davis of the Court of Claims observed in dissent, 455 F.2d, at 1025, 197 Ct.Cl., at 318, 'Depreciation reflects the cost of an existing capital asset, not the cost of a potential replacement.' Reisinger v. Commissioner of Internal Revenue, 144 F.2d 475, 478 (CA2 1944). See United States v. Ludey, 274 U.S. 295, 300—301, 47 S.Ct. 608, 610, 71 L.Ed. 1054 (1927); Weiss v. Wiener, 279 U.S. 333, 335—336, 49 S.Ct. 337, 338, 73 L.Ed. 720 (1929); Helvering v. F. & P. Lazarus & Co., 308 U.S. 252, 254, 60 S.Ct. 209, 210, 84 L.Ed. 226 (1939); Massey Motors v. United States, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592 (1960); Fribourg Nav. Co. v. Commissioner of Internal Revenue, 383 U.S. 272, 86 S.Ct. 862, 15 L.Ed.2d 751 (1966).
27
We conclude that the governmental subsidies did not constitute contributions to CB&Q's capital, within the meaning of § 113(a)(8) of the 1939 Code; that the assets in question in the hands of CB&Q have a zero basis, under §§ 113 and 114 of that Code and § 1052(c) of the 1954 Code, 26 U.S.C. § 1052(c); and that CB&Q is therefore precluded from claiming a depreciation allowance with respect to those assets.17 The judgment of the Court of Claims on this issue is reversed and the case is remanded for further proceedings.
28
It is so ordered.
29
Reversed and remanded.
30
Mr. Justice POWELL took no part in the consideration or decision of this case.
31
Mr. Justice DOUGLAS, dissenting.
32
While I join the dissent of Mr. Justice STEWART, I add a few words. Funds were contributed by the States and by the Federal government to respondent for the construction of highway overpasses and underpasses and for grade-crossing protection equipment. While the Government provided most of the funds, the respondent did most of the construction work—all as found by the Court of Claims. 455 F.2d 993, 997—998, 197 Ct.Cl. 264, 271.
33
This case is not controlled by Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286, as Mr. Justice STEWART says, for there the advances were made by customers of a utility as part of 'the price of the service.' Id., at 103, 63 S.Ct., at 904. Here, however, the situation was different. As the Court of Claims found:
34
'(U)nder all the agreements, plaintiff was obligated to maintain and replace as necessary, at its own expense, facilities originally built. The facilities were constructed primarily for the benefit of the public to improve safety and to expedite motor-vehicle traffic flow. The record shows, however, that plaintiff received economic benefits from the facilities, e.g., probable lower accident rates, reduced expenses of operating crossing equipment and, where permitted, higher train speed limits. Plaintiff also received intangible benefits, e.g., goodwill from the community-at-large, which was to plaintiff's long-term economic advantage.' 455 F.2d, at 998, 197 Ct.Cl., at 272.
35
The case is therefore on all fours with Brown Shoe Co. v. Commissioner of Internal Revenue, 339 U.S. 583, 70 S.Ct. 820. In distinguishing Detroit Edison we said:
36
'Since in this case there are neither customers nor payments for service, we may infer a different purpose in the transactions between petitioner and the community groups. The contributions to petitioner were provided by citizens of the respective communities who neither sought nor could have anticipated any direct service or recompense whatever, their only expectation being that such contributions might prove advantageous to the community at large. Under these circumstances the transfers manifested a definite purpose to enlarge the working capital of the company.' Id., at 591, 70 S.Ct., at 824.
37
I would affirm the judgment of the Court of Claims.
38
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS joins, dissenting.
39
This case involves the depreciation of certain railroad facilities constructed with public funds prior to June 22, 1954. The precise question before the Court is whether those facilities constituted 'contributions to capital' within the meaning of § 113(a)(8)(B) of the Internal Revenue Code of 1939.
40
Beginning in the early 1930's various state governments entered into agreements with the respondent railroad for the construction of highway overpasses and underpasses at highway-railroad intersections, and construction of grade-crossing protection equipment such as flashing-light signals and automatic gates. The agreements generally provided that the States would pay 50% or more of the total cost, and subsequently Congress authorized the Federal Government to assume the State's share of the construction costs. See National Industrial Recovery Act § 204(a), 48 Stat. 203. Under the Federal-Aid Highway Act of 1944, § 5, 58 Stat. 840, the Federal Government reimbursed the States for the entire cost of the highway-railroad crossing projects, subject to payment by the railroads for up to 10% of the cost of the project if the railroads were benefited by the facilities.
41
The respondent filed suit in the Court of Claims seeking a refund on its 1955 income taxes, claiming that the Commissioner of Internal Revenue had erred by refusing to allow a depreciation deduction for these publicly contributed facilities. The respondent asserted that these facilities were 'depreciable property' held throughout 1955 'for use in its trade or business,' and that they were acquired prior to June 22, 1954, as 'contributions to capital.'
42
The respondent's claim was an uncomplicated one. Section 167 of the Internal Revenue Code of 1954, 26 U.S.C. § 167, applicable to the respondent's 1955 income tax return, allowed as a depreciation deduction 'a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) (1) of property used in the trade or business . . ..' Section 1052(c) of the 1954 Code, 26 U.S.C. § 1052(c), provided for using the basis rules of the 1939 Code for certain property that was acquired in transactions to which the 1939 Code applied, including 'contributions to capital.'1 The respondent contended that the publicly contributed facilities were 'contributions to capital,' and that under § 113(a)(8)(B) of the 1939 Code, it could carryover the transferor's basis; in short, it claimed that its basis for the highway-safety facilities was the cost of the facilities to the governments that had financed them.2
43
The Court of Claims agreed with the respondent that these facilities were exhaustible assets properly depreciable to the full extent of their value. 455 F.2d 993, 1002, 197 Ct.Cl. 264, 276. The depreciable nature of the facilities was undisputed, since the Government conceded that 'the facilities are of a character normally subject to allowance for depreciation and that to the extent they were paid for by (the respondent), appropriate depreciation deductions are proper.' 455 F.2d, at 999, 197 Ct.Cl., at 273—274. The court concluded that the facilities were 'contributions to capital' under § 113(a)(8)(B) of the 1939 Code and that the Government's cost basis in the facilities was, therefore, available to the respondent.3 'The facilities were constructed primarily for the benefit of the public to improve safety and to expedite motor-vehicle traffic flow. The record shows, however, that (the respondent) received economic benefits from the facilities, e.g., probable lower accident rates, reduced expenses of operating crossing equipment and where permitted, higher train speed limits. (The respondent) also received intangible benefits, e.g., goodwill from the community-at-large, which was to (the respondent's) long-term economic advantage.' 455 F.2d, at 998, 197 Ct.Cl., at 272.4 The Court thus concluded 'that the facilities enlarged (the respondent's) working capital and were used by (the respondent) in its business; and though they may not produce income to the same extent as other railroad property, such as track or freight cars, (the respondent) derived economic benefits from them' 455 F.2d at 1000, 197 Ct.Cl., at 276. fn3. It was undisputed that the facilities had been 'contributed' to the respondent by the States, 'and this is taken to mean that (the respondent) owns them . . ..' 455 F.2d 993, 998, 197 Ct.Cl. 264, 272.
44
I think the Court of Claims was entirely right in holding that these publicly contributed facilities constituted contributions to capital within the meaning of § 113(a)(8)(B) of the 1939 Code.5 The facilities at issue fall within the plain language of a 'contribution to capital.' As the Court noted, they were 'contributed' to the respondent in the sense that the railroad now owns them. And they are now part of the 'capital' of the railroad as that term is generally used in business and accounting practice, part of the permanent investment in the business. See Brown Shoe Co. v. Commissioner of Internal Revenue, 339 U.S. 583, 589 and n. 11, 70 S.Ct. 820, 823, 94 L.Ed. 1081; Texas & Pacific R. Co. v. United States, 286 U.S. 285, 52 S.Ct. 528, 76 L.Ed. 1108; Edwards v. Cuba R. Co., 268 U.S. 628, 631—633, 45 S.Ct. 614, 615—616, 69 L.Ed. 1124; H. Guthmann & H. Dougall, Corporate Financial Policy 136—138 (4th ed.); R. Marple, Capital Surplus and Corporate Net Worth 136 137; 1 J. Mertens, Law of Federal Income Taxation § 5.06 n. 47 (J. Malone rev. ed.); Harvey, Some Indicia of Capital Transfers Under the Federal Income Tax Laws, 37 Mich.L.Rev. 745, 747—749.6
45
The only two prior decisions of this Court that bear directly on the question before us—Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286, and Brown Shoe Co. v. Commissioner of Internal Revenue, supra—confirm that these publicly contributed facilities are contributions to the respondent's capital.
46
In Detroit Edison Co. v. Commissioner of Internal Revenue, supra, prospective customers of an electric company were required to pay for the construction of additional facilities in order to receive the company's services. The Court rejected the contention that those payments were contributions to capital: '(I) t overtaxes imagination to regard the farmers and other customers who furnished these funds as makers either of donations or contributions to the Company. . . . The payments were to the customer the price of the service.' Id., at 102—103, 63 S.Ct., at 904.
47
In Brown Shoe, supra, various community groups contributed cash and property to the taxpayer corporation to induce it to locate in or expand its operations in the respective communities. The Court held these assets to be 'contributions to capital' within the meaning of § 113(a)(8)(B), stressing the fact that they were in a very practical sense an addition to the corporation's capital: "(T)he assets received . . . are being used by the taxpayer in the operation of its business. They will in time wear out, and if (the taxpayer) is to continue in business, the physical plant must eventually be replaced. Looking as they do toward business continuity, the Internal Revenue Code's depreciation provisions—and especially those which provide for a substituted rather than a cost basis—would seem to envision allowance of a depreciation deduction in situations like this. . . ." Id., at 590, 70 S.Ct., at 824 (quoting Commissioner of Internal Revenue, v. McKay Products Corp., 3 Cir., 178 F.2d 639, 643). The Court explained Detroit Edison as a case of payments for services rather than contributions to capital. By contrast, in Brown Shoe, '(t)he contributions to (the taxpayer) were provided by citizens of the respective communities who neither sought nor could have anticipated any direct service or recompense whatever, their only expectation being that such contributions might prove advantageous to the community at large.' Id., at 591, 70 S.Ct. at 824.7
48
It seems plain to me that the present case is controlled by Brown Shoe. As in that case, these publicly contributed facilities were in no sense direct payments for services. The State and Federal Governments did not purchase any services in connection with construction of the facilities. Rather, to achieve the public goal of transportation safety they transferred assets to the railroad which increased its working capital. In short, these assets fell within the practical, working definition of 'contributions to capital' that was recognized by the Court in Brown Shoe, and they did not fall within the narrow exception of payments for services that the Court found significant in Detroit Edison.
49
The Government urges us to read Brown Shoe as holding that, in order to establish a 'contribution to capital,' a taxpayer must prove that the transferor of the asset had a definite purpose to enlarge the taxpayer's working capital. But that case did not turn on the presence of any such specific purpose. The purpose of the community contributions in Brown Shoe was to induce the taxpayer to locate or expand its operations in the local area, and this purpose was accomplished by contributing assets; there was no gratuitous attempt to enlarge the taxpayer's capital. The Court noted, in passing, the existence of a purpose to enlarge the taxpayer's working capital only in order to underline the fact that the community groups there were not customers paying compensation for services rendered. And, as in Brown Shoe, the State and Federal Governments here attempted to accomplish a general public goal by contributing facilities to the taxpayer. As in Brown Shoe, they were not paying for services.
50
The Court today, however, does not appear to decide this case on the presence or absence of any specific motive, intent, or purpose. Rather, the Court constructs a series of guidelines that must be met before there can be a 'contribution to capital.' These guidelines seem to be based upon the value of the assets to the transferee. For the Court relies primarily on the fact that the publicly financed facilities were 'peripheral' to the railroad's business and did not materially contribute to the production of further income, and concludes that they were not therefore contributions to the railroad's capital. But the Court cites nothing in the statute, the regulations, or our prior cases to warrant this strange definition of 'capital' when that term is used in the phrase 'contribution to capital.'
51
Brown Shoe made clear that 'capital' was to be defined 'as that term has commonly been understood in both business and accounting practice . . ..' 339 U.S. at 589, 70 S.Ct., at 823. The facilities in the present case meet that test. They are certainly part of the respondent's capital under any traditional understanding of that term; they are assets permanently invested in the railroad's business. See supra, at 421. Indeed, many of these facilities are essential to the railroad's continued operation—a railroad bridge, for example, is an obvious physical necessity if the railroad is to operate. All of the facilities enlarged the railroad's working capital, were used in its business, and yielded tangible and intangible economic benefits to the railroad. And the Court even appears to acknowledge that these assets are 'capital' in the normal sense of that term, since it concedes that the portion of the facilities constructed by the railroad with its own funds is depreciable.8 I do not understand why that portion of the same assets that was contributed to the railroad is not also part of the railroad's capital. I would maintain the straightforward approach taken by Brown Shoe and Detroit Edison—nonshareholder additions to capital are 'contributions to capital' unless they are direct payments for services rendered.
52
The Government argues that to allow the railroad to claim a depreciation deduction on these facilities as 'contributions to capital' would lead to the 'anomalous' result that although the railroad had incurred no expense with respect to the publicly financed facilities, it could nevertheless recoup their cost. But if this is an anomaly, it is the same anomaly that existed in Brown Shoe. The taxpayer there had not paid for the property contributed by the community groups, yet it was able to claim a full depreciation deduction on it. In short, this so-called anomaly is the ineluctable result of § 113(a)(8) (B) which allowed a carryover basis for nonshareholder contributions to capital. It was Congress that had created the anomaly, and it was for Congress to correct it. In enacting § 362(c) of the 1954 Code,9 Congress did precisely that. It eliminated any depreciation deduction for nonshareholder contributions to capital by providing a zero basis for such transfers, but it did so only for property acquired on or after June 22, 1954.
53
In sum, Congress in 1954 rewrote the tax law so as to overrule Brown Shoe and prohibit depreciation to be taken on contributions to capital made by nonshareholders on or after June 22, 1954.10 As it now turns out, Congress could have saved itself the trouble. For today the Court rewrites the law and prohibits depreciation to be taken on such assets the railroad has owned since the 1930's. I would follow the law as Congress wrote it and affirm the judgment of the Court of Claims.
1
National Industrial Recovery Act, § 204(a)(1), 48 Stat. 203.
2
Federal-Aid Highway Act of 1944, § 5, 58 Stat. 840.
3
The Court of Claims, both the majority and dissenters, asserted, and indeed found, that the $1,538,543 figure related to highway undercrossings and overcrossings. 455 F.2d 993, 997—998, 197 Ct.Cl. 264, 271—272, 325 (1972). CB&Q, in its Brief, p. 3, and in oral argument, Tr. of Oral Arg. 25, claims that this figure has to do only with railroad bridges and that the assets sought to be depreciated relate only to railroad use. According to CB&Q, no facilities directly related to highway use are involved. Inasmuch as the resolution of this factual issue would not affect the result we reach, it need not be resolved.
4
The parties are in agreement as to what the adjusted bases of the assets in question would be, and as to the applicable rates of depreciation, if depreciation for tax purposes is allowable at all.
5
The Trial Commissioner and the Court of Claims made the following finding of fact:
'9. The facilities noted in finding 7 were constructed primarily for the benefit of the public to improve safety and to expedite highway traffic flow. Plaintiff (CB&Q), however, received benefits from the facilities, among others, probable lower accident rates, reduced expenses of operating crossing facilities, and, where permitted, higher train speed limits, all of which permitted plaintiff to function more efficiently and presumably less expensively.' 455 F.2d 993, 197 Ct.Cl., at 326—327.
6
The Solicitor General asserts, Pet. for Cert. 15—16, that $623,000,000 in federal funds were paid out for projects and improvements at railroad-highway grade crossings alone between 1934 and 1954. See U.S. Department of Transportation, Report to Congress: Railroad-Highway Safety, Part I: A Comprehensive Statement of the Problem 38 (1971). The Commissioner of Internal Revenue estimates that, taking into account grants of this kind to railroads and federal grants to utility companies, depreciation on property with asserted cost bases between a half billion and one billion dollars is dependent upon the resolution of this issue and is still litigable. Pet. for Cert. 16.
7
Section 113(a) of the 1939 Code and § 1012 of the 1954 Code, 26 U.S.C. § 1012, state the general rule that the 'basis of property shall be the cost of such property.'
8
Section 113(a)(2) of the 1939 Code provides that with respect to 'property . . . acquired by gift after December 31, 1920, the basis shall be the same as it would be in the hands of the donor or the last preceding owner by whom it was not acquired by gift, except . . ..' This provision was carried over into § 1015(a), of the 1954 Code, 26 U.S.C. § 1015(a). The language of § 362(c) of the 1954 Code, to the effect that the basis of a nonshareholder's contribution made on or after June 22, 1954, to the capital of a corporation shall be zero in the hands of the transferee, has been said not to affect the availability of a carryover basis with respect to gifts. See H.R.Rep. No. 1337, 83d Cong., 2d Sess., A128 (1954); S.Rep. No. 1622, 83d Cong., 2d Sess., 272 (1954), U.S.Code Cong. & Admin.News 1954, pp. 4025, 4629; B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 3.14, pp. 3—51 and n. 81 (3d ed. 1971); 3A J. Mertens, Law of Federal Income Taxation § 21.134 (1968 rev.).
9
Section 113(a)(8) of the 1939 Code; § 362(a) of the 1954 Code, 26 U.S.C. § 362(a).
10
'§ 113. Adjusted basis for determining gain or loss.
'(a) Basis (unadjusted) of property.
'The basis of property shall be the cost of such property; except that—
'(8) Property acquired by issuance of stock or as paid-in surplus.
'If the property was acquired after December 31, 1920, by a corporation—
'(A) by the issuance of its stock or securities in connection with a transaction described in section 112(b)(5) (including, also, cases where part of the consideration for the transfer of such property to the corporation was property or money, in addition to such stock or securities), or
'(B) as paid-in surplus or as a contribution to capital, then the basis shall be the same as it would be in the hands of the transferor, increased in the amount of gain or decreased in the amount of loss recognized to the transferor upon such transfer under the law applicable to the year in which the transfer was made.'
11
'§ 362. Basis to corporations.
'(a) Property acquired by issuance of stock or as paid-in surplus.
'If property was acquired on or after June 22, 1954, by a corporation—
'(1) in connection with a transaction to which section 351 (relating to transfer of property to corporation controlled by transferor) applies, or
'(2) as paid-in surplus or as a contribution to capital, then the basis shall be the same as it would be in the hands of the transferor, increased in the amount of gain recognized to the transferor on such transfer.
'(c) Special rule for certain contributions to capital.—
'(1) Property other than money.—
'Notwithstanding subsection (a)(2), if property other than money—
'(A) is acquired by a corporation, on or after June 22, 1954, as a contribution to capital, and
'(B) is not contributed by a shareholder as such, then the basis of such property shall be zero.
'(2) Money.—
'Notwithstanding subsection (a)(2), if money—
'(A) is received by a corporation, on or after June 22, 1954, as a contribution to capital, and
'(B) is not contributed by a shareholder as such, then the basis of any property acquired with such money during the 12-month period beginning on the day the contribution is received shall be reduced by the amount of such contribution.'
12
See, for example, Teleservice Co. of Wyoming Val. v. Commissioner of Internal Revenue, 254 F.2d 105 (CA3 1958), cert. denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d 1364 (1959); United Grocers, Ltd. v. United States, 308 F.2d 634 (CA9 1962). There is support in the legislative history of § 118 of the 1954 Code, 26 U.S.C. § 118, providing for the exclusion from gross income of 'any contribution to the capital of the taxpayer,' for the indirect benefit—prepayment-for-futureservices distinction. H.R.Rep. No. 1337, 83d Cong., 2d Sess., 17 (1954), U.S.Code Cong. & Admin.News 1954, p. 4042.
13
The distinctions wrought by Detroit Edison and Brown Shoe have been the subject of scholarly criticism. See, for example, Note, Taxation of Nonshareholder Contributions to Corporate Capital, 82 Harv.L.Rev. 619 (1969); Landis, Contributions to Capital of Corporations, 24 Tax.L.Rev. 241 (1969); Note, Tax Consequences of Non-Shareholder Contributions to Corporate Capital, 66 Yale L.J. 1085 (1957); Freeman & Speiller, Tax Consequences of Subsidies to Induce Business Location, 9 Tax.L.Rev. 255 (1954). In the article last cited the authors suggest that Detroit Edison and Brown Shoe are irreconcilable, the latter in effect overruling the former. Id. at 262. See also The Supreme Court, 1949 Term, 64 Harv.L.Rev. 114, 149—151 (1950).
14
Counsel for CB&Q stated at oral argument that the railroad was under a 'preexisting legal obligation to construct these facilities' that were funded by the governmental subsidies. Tr. of Oral Arg. 30, 35—36.
15
The Government does not challenge the CB&Q's right to depreciate those portions of a facility for which it was required to pay.
16
See n. 5, supra.
17
The Government has argued, in the alternative, that, by virtue of a 'terms letter' agreement entered into by CB&Q and the Commissioner with respect to a change in the railroad's accounting method from retirement to straight-line depreciation, CB&Q irrevocably agreed to exclude donated property, or contributions or grants in aid of construction from any source, from its depreciation base. Because of our conclusion that the governmental payments did not qualify as contributions to capital, we need not determine whether the 'terms letter' agreement barred CB&Q from claiming depreciation on the assets in question.
1
The basis provision of the 1954 Code, which provides a zero basis for nonshareholder contributions to capital, applies only to property acquired on or after June 22, 1954. 26 U.S.C. § 362. See n. 9, infra. All the property at issue in the present case was acquired before June 22, 1954.
2
Section 113(a)(8) provides in pertinent part:
'If the property was acquired after December 31, 1920, by a corporation—
'(B) as paid-in surplus or as a contribution to capital, then the basis shall be the same as it would be in the hands of the transferor, increased in the amount of gain or decreased in the amount of loss recognized to the transferor upon such transfer under the law applicable to the year in which the transfer was made.'
3
It was undisputed that the facilities had been "contributed" to the respondent by the States, "and this is taken to mean that [the respondent] owns them . . . ." 455 F.2d 993, 998, 197 Ct.Cl. 264, 272.
4
The Findings of Fact of the Trial Commissioner which were accepted by the court indicated as follows:
'The facilities . . . were constructed primarily for the benefit of the public to improve safety and to expedite highway traffic flow. (The respondent), however, received benefits from the facilities, among others, probable lower accident rates, reduced expenses of operating crossing facilities, and, where permitted, higher train speed limits, all of which permitted (the respondent) to function more efficiently and presumably less expensively.' 455 F.2d 993, 197 Ct.Cl., at 326—327.
5
The Government has suggested as an alternative basis for reversal that the respondent entered into a 'terms letter' agreement with the Commissioner whereby it agreed to exclude contributed property from its depreciation base. The Court does not reach this contention. I agree with the reasoning of the Court of Claims in holding that the terms letter did not bar the respondent from claiming a depreciation deduction on contributed property.
6
The text of § 113 indicates that there is no significance in the fact that the State and Federal Governments attempted here to achieve the public goal of transportation safety rather than simply to make a gratuitous transfer to the railroad. For if a donative purpose were required for a 'contribution to capital' then that provision would simply be duplicative of § 113(a)(2) of the 1939 Code which allows a carryover basis for gifts.
And similarly it is of no consequence that the contribution was by a nonshareholder, for a contribution by a shareholder would have a carryover basis under the 'paid-in surplus' provision of § 113(a)(8)(B). See Treas.Reg. 111, § 29.113(a)(8)—1.
In short, a 'contribution to capital' is any nongratuitous transfer to a corporation by a nonshareholder, such as is involved in the present case. See Freeman & Speiller, Tax Consequences of Subsidies to Induce Business Location, 9 Tax L.Rev. 255, 261.
7
Federal courts in distinguishing between Brown Shoe and Detroit Edison have relied on the fact that Detroit Edison involved direct payments by customers for services. See United Grocers, Ltd. v. United States, 308 F.2d 634, 639—640 (CA9 1962); Teleservice Co. v. Commissioner of Internal Revenue, 254 F.2d 105, 110—111 (CA3). See also Note, Taxation of Nonshareholder Contributions to Corporate Capital, 82 Harv.L.Rev. 619, 626—627.
8
There is no dispute that the railroad can claim a depreciation deduction for its 10% share of the cost of the facilities.
9
Section 362 of the Internal Revenue Code of 1954, 26 U.S.C. § 362, provides in pertinent part:
'(a) Property acquired by issuance of stock or as paid-in surplus.
'If property was acquired on or after June 22, 1954, by a corporation—
'(2) as paid-in surplus or as a contribution to capital, then the basis shall be the same as it would be in the hands of the transferor, increased in the amount of gain recognized to the transferor on such transfer.
'(c) Special rule for certain contributions to capital.
'(1) Property other than money.
'Notwithstanding subsection (a)(2), if property other than money—
'(A) is acquired by a corporation, on or after June 22, 1954, as a contribution to capital, and
'(B) is not contributed by a shareholder as such,
'then the basis of such property shall be zero.
'(2) Money.
'Notwithstanding subsection (a)(2), if money—
'(A) is received by a corporation, on or after June 22, 1954, as a contribution to capital, and
'(B) is not contributed by a shareholder as such,
'then the basis of any property acquired with such money during the 12-month period beginning on the day the contribution is received shall be reduced by the amount of such contribution. The excess (if any) of the amount of such contribution over the amount of the reduction under the preceding sentence shall be applied to the reduction (as of the last day of the period specified in the preceding sentence) of the basis of any other property held by the taxpayer. The particular properties to which the reductions required by this paragraph shall be allocated shall be determined under regulations prescribed by the Secretary or his delegate.'
10
It was explicitly recognized that 26 U.S.C. § 362(c) was enacted to overcome the effect of Brown Shoe. H.R.Rep.No. 1337, 83d Cong., 2d Sess. A128; S.Rep.No. 1622, 83d Cong., 2d Sess., 271 272, U.S.Code Cong. & Admin.News 1954, pp. 4025, 4629; Veterans Foundation v. Commissioner of Internal Revenue, 317 F.2d 456, 458 (CA10 1963).
| 1112
|
412 U.S. 430
93 S.Ct. 2199.
37 L.Ed.2d 52
James R. DOUGLASv.William E. BUDER, Judge.
No. 72—6198.
June 4, 1973.
PER CURIAM.
1
In November 1971, petitioner, a 50-year-old truck driver with no prior offenses, pleaded guilty to two counts of manslaughter and was given a suspended sentence and placed on probation for a period of four years by the respondent Missouri Circuit Court Judge. One of the conditions of probation was that '(a)ll arrests for any reason must be reported without delay to (petitioner's) probation and parole officer.' In January 1972, petitioner was involved in a seven-vehicle chain-reaction accident on an Arkansas highway. The driver of the first vehicle was issued a traffic citation for failure to yield the right of way, and petitioner, along with four other drivers involved in the accident, was issued a citation for driving too fast for existing conditions. At the next scheduled meeting with his probation officer, 11 days after the accident, petitioner mentioned the accident and the receipt of the traffic citation. On the same day, the probation officer reported this information to respondent who thereupon scheduled a hearing for the purpose of determining whether petitioner's probation should be revoked. At the hearing, both the probation officer and the prosecutor took the position that petitioner had not violated any of the conditions of his probation and both recommended that probation be continued. Nevertheless, respondent, stating that petitioner's failure to report the accident and the traffic citation 'displayed poor attitude toward his probation' and was not in 'strict compliance with the terms of the probation,' revoked probation and sentenced petitioner to concurrent terms of two years on each of the original two counts. Petitioner sought a writ of prohibition in the Missouri Supreme Court, but that court, in a 4—3 decision, concluded that respondent had not abused his discretion and therefore denied relief.
2
The apparent premise upon which respondent proceeded in revoking petitioner's probation was that petitioner had failed promptly to report an 'arrest.' But the issuance of the traffic citation was not an 'arrest' under either Missouri or Arkansas law. By statute, Missouri defines an 'arrest' as 'an actual restraint of the person of the defendant, or . . . submission to the custody of the officer, under authority of a warrant or otherwise.' Mo.Rev.Stat. § 544.180 (1953). Similarly, Arkansas defines an 'arrest' as the 'placing of the person of the defendant in restraint, or . . . submitting to the custody of the person making the arrest.' Ark.Stat.Ann. § 43—412 (1947). The record before us discloses absolutely no evidence that petitioner was subjected to an 'actual restraint' or taken into 'custody' at the scene of the accident or elsewhere. Consequently, we conclude that the finding that petitioner had violated the conditions of his probation by failing to report 'all arrests . . . without delay' was so totally devoid of evidentiary support as to be invalid under the Due Process Clause of the Fourteenth Amendment. Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961).
3
The State argues, however, that the revocation of petitioner's probation should be viewed as a determination by respondent that, for purposes of Missouri law, a traffic citation is the equivalent of an arrest even though not accompanied by an actual restraint. But neither respondent nor the Missouri Supreme Court specifically made such a finding and no prior Missouri decisional law is cited to support the contention that a traffic citation has ever before been treated as the equivalent of an arrest. Moreover, even if it were clear that respondent had declared Missouri law to be that a traffic citation is the equivalent of an arrest, we would have to conclude that under the rationale of Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), the unforeseeable application of that interpretation in the case before us deprived petitioner of due process. We held in Bouie that '(w)hen . . . (an) unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.' Id., at 354—355, 84 S.Ct. at 1703. And that same principle of due process is fully applicable in the context of the case before us.
4
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed and the cause is remanded to the Missouri Supreme Court for proceedings not inconsistent with this opinion.
5
Reversed and remanded.
6
THE CHIEF JUSTICE and Mr. Justice REHNQUIST concur in the result.
7
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
| 34
|
412 U.S. 391
93 S.Ct. 2202
37 L.Ed.2d 22
UNITED STATES, Petitioner,v.Archie L. MASON et al. State of OKLAHOMA, Petitioner, v. Archie L. MASON and Margaret R. Mason, etc., et al.
Nos. 72—654, 72—606.
Argued April 18, 1973.
Decided June 4, 1973.
Syllabus
The United States did not breach its fiduciary duty as trustee of Indian property by paying the Oklahoma inheritance tax assessed against the estate of decedent, a restricted Osage Indian, in reliance on West v. Oklahoma Tax Comm'n, 334 U.S. 717, 68 S.Ct. 1223, 92 L.Ed. 1676, which had upheld the validity of that tax as applied to the same kind of estate. Pp. 394—400.
198 Ct.Cl. 599, 461 F.2d 1364, reversed.
Sol. Gen. Erwin N. Griswold, for the United States.
Paul C. Duncan, Oklahoma City, Okl., for State of Oklahoma.
Charles A. Hobbs, Washington, D.C., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The issue in these cases is whether a trustee in the course of administering its fiduciary obligations is entitled to rely on a directly relevant decision of this Court which has neither been overruled nor questioned. The Court of Claims ruled that the United States breached its fiduciary duty by failing to resist payment of Oklahoma's estate tax on certain trust property held by the United States acting as trustee for the benefit of the Osage Indians. The Court of Claims recognized that this Court, in West v. Oklahoma Tax Comm'n, 334 U.S. 717, 68 S.Ct. 1223, 92 L.Ed. 1676 (1948), had squarely upheld the validity of Oklahoma's inheritance tax as applied to restricted Osage Indians. But the lower court believed that West had been so undermined by later decisions of this and other courts that the United States had an obligation to challenge its continuing validity. Since the court also believed that such a challenge would have been successful, it upheld both the plaintiffs' claim against the United States for the amount of the tax and the United States' third party claim against Oklahoma for indemnification. We reverse. We hold that the United States was entitled to rely on West in paying the tax and thus did not breach its fiduciary obligations. It follows that the plaintiffs below suffered no compensable damages and that the claim over by the United States drops out of the case.
2
* The facts and legal background of this dispute may be briefly stated. Before 1906, the Osage Reservation was held in trust for the Osage Tribe by the United States.1 In that year the Osage Allotment Act, 34 Stat. 539, was passed, which divided tribal land equally among members of the Tribe. However, an individual Indian was not permitted to alienate the land unless 'the Secretary of the Interior, in his discretion, . . . (issued) . . . a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of this Act.'2 34 Stat. 542.3 In addition, the Act created so-called 'headrights' which are each tribal member's individual share of the income derived from the minerals located on the land. The minerals and this income were to be placed in trust for the individual tribal members, subject to periodic distribution from income, until 1984, when legal title to the minerals together with the accumulated income would vest in the individual Indians.4 Various tribal funds were also placed in trust until that year. As amended, the Act provides that land and funds which are either restricted or held in trust 'shall not be subject to lien, levy, attachment, or forced sale . . . prior to the issuance of a certificate of competency.' 61 Stat. 747.
3
The decedent in this case, Rose Mason, was an Osage Indian who had not received a certificate of competency. Pursuant to the Osage Allotment Act, the United States held certain of her property in trust for her. Upon her death intestate, an Oklahoma estate tax return was filed which included in her gross estate these trust properties. The Federal Government then paid Oklahoma some $8,087.10 in estate taxes out of the trust properties. Although the decedent's administrators were discharged in 1968, in 1970 the estate was reopened for the purpose of permitting the administrators to challenge the United States' payment of the tax. A suit was filed in the Court of Claims alleging that the United States had breached its fiduciary duty in making the payment,5 and that court upheld the claim together with the United States' third-party claim against Oklahoma. See 198 Ct.Cl. 599, 461 F.2d 1364 (1972). We granted certiorari because of the seeming inconsistency between the decision below and our prior decision in West v. Oklahoma Tax Comm'n, supra.6 409 U.S. 1124, 93 S.Ct. 936, 35 L.Ed.2d 256.
II
4
In Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943), this Court ruled that it could not infer a tax immunity extending to estate taxes on Osage property from the fact that Congress had placed restrictions on the alienability of the property. The West Court extended that ruling to property, such as that involved in this case, held in trust for the Osage Indians. The Court held that by placing the property in trust, Congress did not intend to immunize it from local taxation. Moreover, the federal-instrumentality doctrine was found to be no bar to Oklahoma's estate tax. Although this doctrine had been used in earlier cases to invalidate state property taxes on trust property, see, e.g., McCurdy v. United States, 264 U.S. 484, 44 S.Ct. 345, 68 L.Ed. 801 (1924); United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532 (1903), the Court distinguished estate taxes since '(a)n inheritance or estate tax is not levied on the property of which an estate is composed. Rather it is imposed upon the shifting of economic benefits and the privilege of transmitting or receiving such benefits.' 334 U.S., at 727, 68 S.Ct., at 1228. Discerning no congressional intent to immunize Osage trust property from state taxation and no constitutional bar to the tax, the Court upheld Oklahoma's claim.
5
As the Court of Claims itself recognized, the West decision 'applied to the very type of trust property now before us.' 198 Ct.Cl., at 609, 461 F.2d, at 1370. Nonetheless, the court thought that the rationale of West had been substantially undermined by Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883 (1956), which held that the profits from the sale of timber on the land of a Quinaielt Indian held in trust for him pursuant to the General Allotment Act, 25 U.S.C. § 331, was immune from federal capital gains taxes.
6
It must be noted, however, that the Squire Court did not purport to question or overrule West, and, indeed, did not so much as mention that decision. The Squire case involved a different tax by a different level of government on the trust properties of a different tribe held pursuant to a different statute. As the West decision itself made clear, decisions relating to other types of taxes are not readily transferable to the area of estate and gift taxation where the tax is imposed on the transfer of property rather than on the property itself or the income it generates. Cf. Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998 (1900). Moreover, the Squire decision rested heavily on the provision in the General Allotment Act providing for the removal of 'all restrictions as to sale, encumbrance, or taxation' when Indian property is granted in fee—a provision which has no analogue in the Osage Allotment Act insofar as these trust properties are concerned.7
7
Nor can we agree with the Court of Claims that the foundations of West have been substantially weakened by subsequent lower court decisions. Apart from our difficulty in comprehending how decisions by lower courts can ever undermine the authority of a decision of this Court, we think it clear that each of the cases relied upon below is distinguishable from West. Thus, while it is true that the Ninth Circuit construed the Mission Indian Act, 26 Stat. 712, to invalidate California's estate tax as applied to a California Mission Indian in Kirkwood v. Arenas, 243 F.2d 863 (CA9 1957), the Kirkwood court carefully distinguished West and recognized its continuing validity. See id., at 865. Similarly, the Court of Claims' reliance on its own decision in Big Eagle v. United States, 156 Ct.Cl. 665, 300 F.2d 765 (1962), is misplaced since that decision, like Squire, concerned a federal income tax. See also United States v. Hallam, 304 F.2d 620 (CA10 1962). And cases such as Nash v. Wiseman, 227 F.Supp. 552 (WD Okla.1963), and Asenap v. United States, 283 F.Supp. 566 (WD Okla.1968), are of questionable relevance, since they arose under the General Allotment Act rather than the Osage Allotment Act. Cf. Rev.Rul. 69—164, 1969—1 Cum.Bull. 220.8
8
Thus, as the Court of Claims itself conceded, 'since the West case in 1948, there has been no holding exactly on the precise issue now before us—the liability of such Osage property to state death taxation. 198 Ct.Cl., at 613, 461 F.2d, at 1372. Although it might be fair to say that over the years the fringes of the West doctrine have been worn away, its core holding remains unimpeached by any decisions of this or any other court.
9
We need not decide, however, whether in a case squarely presenting the issue, we would continue to adhere to West. For the issue in this case is not whether West should be overruled, but rather whether the United States breached its fiduciary duty in failing to anticipate that it would be overruled. Cf. Helvering v. Griffiths, 318 U.S. 371, 394, 63 S.Ct. 636, 648, 87 L.Ed. 843 (1943).9
10
When the question is so posed, we think that the answer is obvious. There is no doubt that the United States serves in a fiduciary capacity with respect to these Indians and that, as such, it is duty bound to exercise great care in administering its trust. See, e.g., Seminole Nation v. United States, 316 U.S. 286, 296—297, 62 S.Ct. 1049, 1054—1055, 86 L.Ed. 1480 (1942). But it has long been recognized that a trustee is not an insurer of trust property. As Professor Scott has written, 'A trustee is under a duty in administering the trust to exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property.' 2 A. Scott, Trusts 1408 (3d ed. 1967) (hereinafter cited as Scott). See, e.g., Phelps v. Harris, 101 U.S. 370, 383, 25 L.Ed. 855 (1880). It follows that '(i)f the trust property is lost or destroyed or diminished in value, the trustee is not subject to a surcharge unless he failed to exercise the required care and skill.' 2 Scott 1419.
11
Applying these familiar principles to the facts before us, we are required to decide whether the United States can be said to have acted with less than the requisite care in refusing to contest the Oklahoma tax. When the State asserts a doubtful tax claim against trust property, the trustee is often presented with a close question. Normally, the trustee is obligated to pay taxes on the trust estate, and, indeed, if he negligently fails to do so, he may be held liable for any resulting penalty. See, e.g., 2 Scott 1422. Yet, as these cases demonstrate, if he pays the tax, he may similarly be called upon to reimburse the trust estate for the amount of the tax.
12
In order to avoid placing a trustee on the horns of this dilemma, most courts which have considered the problem have given a trustee broad discretion to pay taxes claimed by the State so long as the trustee's judgment that the taxes are valid or that the costs and risks of litigation outweigh the advantages is not wholly unreasonable. See, e.g., Crutcher v. Joyce, 146 F.2d 518, 519 (CA10 1945); In re Estate of Miller, 259 Cal.App.2d 536, 550, 551, 66 Cal.Rptr. 756, 766 (1968); In re Estate of Wehrhane, 41 N.J.Super. 158, 166, 124 A.2d 334, 338 (1956); Henshie v. McPherson and Citizens State Bank, 177 Kan. 458, 479, 280 P.2d 937, 953 (1955); In re Vanderbilt's Will, 77 N.Y.S.2d 403, 427, 190 Misc. 824, 850 (1948); Selleck v. Hawley, 331 Mo. 1038, 1056—1057, 56 S.W.2d 387, 395—396 (1932).
13
Thus, even if the West case had never been decided, the plaintiffs below would still have had difficulty in making out a case that the United States had breached its fiduciary duty by paying the tax. But, of course, West had been decided at the time the tax was paid, and we therefore deal here with an assertion of taxing authority which was not merely plausible but had been expressly approved by a decision of this Court. Generally, when a trustee is in doubt as to what course to pursue, the proper procedure for him to follow is to conform his conduct to the instructions given him by the courts. See, e.g., Mosser v. Darrow, 341 U.S. 267, 274, 71 S.Ct. 680, 95 L.Ed. 927 (1951). Here, the United States did just that, and plaintiffs below ask us to find that obedience to the instructions of this Court constitutes a breach of fiduciary duty.
14
It is, of course, true that Supreme Court decisions are on occasion overruled and that the opportunity to overrule them would never arise if litigants did not continue to challenge their validity. But, in this context at least, it is unnecessary to penalize the United States' proper reliance on our past decisions in order to re-examine them, since there is no bar to a suit by plaintiffs below directly against Oklahoma for recovery of the tax. Cf. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.2d 1238 (1968). And if the doctrine of stare decisis has any meaning at all, it requires that people in their everyday affairs be able to rely on our decisions and not be needlessly penalized for such reliance. Cf. Flood v. Kuhn, 407 U.S. 258, 283, 92 S.Ct. 2099, 2112, 32 L.Ed.2d 728 (1972); Wallace v. McConnell, 13 Pet. 136, 150, 10 L.Ed. 95 (1839).
15
We do not have to say that a fiduciary may never be held liable for reliance on prior decisions of this Court. But, as the discussion above demonstrates, the United States' reliance on West was reasonable in this situation. The West decision has neither been overruled nor questioned in our subsequent cases. It is fully consistent with later developments and has been followed without protest for 24 years. Since we find that the United States acted with the requisite care and prudence in following West, the decision below must be reversed with instructions to enter judgment dismissing the complaint.
16
Reversed with instructions.
17
Mr. Justice DOUGLAS concurs in the result.
1
The land in question originally belonged to the Cherokee Nation, but in 1866, the Cherokees entered a treaty with the United States authorizing the United States to settle friendly Indians in Cherokee territory. See 14 Stat. 799. Pursuant to this treaty, the Osage Indians settled the land in question, and in 1883, the Cherokees conveyed the area to the United States to be held in trust for the Osage Indians. See West v. Oklahoma Tax Comm'n, 334 U.S. 717, 720, 68 S.Ct. 1223, 1224, 92 L.Ed. 1676 (1948).
2
The Act followed the pattern of the General Allotment Act of 1887, 24 Stat. 388, 25 U.S.C. § 331, which empowered the President to allot reservation land to certain Indians, but from which the Osage Indians were omitted.
3
The Act has been frequently amended. 78 Stat. 1008; 61 Stat. 747; 52 Stat. 1034; 45 Stat. 1478; 37 Stat. 86.
4
Originally, the Act provided that the property in question would vest in the Indians in 25 years. See 34 Stat. 544. However, an amendment was passed in 1938 extending the trust period to 1984. See 52 Stat. 1035.
5
The suit was brought under 28 U.S.C. § 1491, which gives the Court of Claims jurisdiction 'to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.'
6
Both the United States, as defendant below, and Oklahoma, as third-party defendant below, petitioned for certiorari. We granted both petitions, cf. 41 U.S.C. § 114(b), and consolidated the cases.
7
Respondents argue before this Court that our recent decision in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), substantially extended the protection afforded Indian tribes against state taxation and therefore undermined West. McClanahan, however, concerned a state income tax on the income of a reservation Indian which was earned within the reservation—a situation wholly different from that presented here. Moreover, McClanahan cited Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943), the predecessor of West, with approval, and specifically distinguished the case of the Osage Indians by holding that 'the (Indian sovereignty) doctrine has not been rigidly applied in cases where Indians have left the reservation and become assimilated into the general community.' 411 U.S., at 171, 93 S.Ct., at 1262.
8
The Court of Claims relied in part upon a Technical Advice Memorandum issued by the Internal Revenue Service to the Oklahoma District Director of Internal Revenue on August 15, 1969. The Memorandum announced that, henceforth, Osage trust property would be exempt from federal estate taxation. The court also pointed to Beartrack v. United States, Ct.Cl. No. 281—67, in which the United States settled a suit for refund of federal estate taxes paid on restricted trust properties. It is obvious, however, that Internal Revenue Service decisions as to the scope of its own taxing power have no effect on the taxing power of the States.
9
As all parties apparently recognize, the scope of the United States' fiduciary duty in administering the trust property is a question of federal law. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943).
| 78
|
412 U.S. 363
93 S.Ct. 2183
37 L.Ed.2d 1
UNITED STATES, Appellant,v.STATE TAX COMMISSION OF MISSISSIPPI et al.
No. 72—350.
Argued March 19, 1973.
Decided June 4, 1973.
Syllabus
The United States brought this action contesting the validity of appellee Tax Commission's regulation requiring out-of-state liquor distillers and sumpliers to collect and remit to the Commission a wholesale markup on liquor sold to military officers' clubs and other nonappropriated fund activities located on bases within Mississippi, over two of which the United States exercises exclusive jurisdiction, and the remaining two of which concurrent jurisdiction. Relying on the Twenty-first Amendment, the District Court upheld the regulation. Held:
1. The twenty-first Amendment does not empower a State to tax or otherwise regulate the importation of distilled spirits into a terriory over which the United States exercises exclusive jurisdiction, Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502, regardless of whether some of the liquor may have been consumed off base. Pp. 369—378.
2. Whether the markup can be viewed as a sales tax to whose imposition in the context of the two exclusive-jurisdiction bases the United States has consented under the Buck Act, and whether, in any event, the markup unconstitutionally taxes federal instrumentalities, and violates the Supremacy Clause as conflicting with federal procurement regulations and policy, are issues that the District Court did not reach and should consider initially on remand. Pp. 378—381.
D.C., 340 F.Supp. 903, vacated and remanded.
Jewell S. Lafontant, Dept. of Justice, Washington, D.C., for appellant.
Robert L. Wright, Washington, D.C., for appellees.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In this case we are called upon the review the judgment of the District Court for the Southern District of Mississippi that the State of Mississippi may require out-of-state liquor distillers and suppliers to collect and remit to the State a wholesale markup on liquor sold to officers' clubs, ship's stores, and post exchanges located on various military bases over which the United States exercises either exclusive jurisdiction or jurisdiction concurrent with the State.
2
Prior to 1966, the State of Mississippi prohibited the sale or possession of alcoholic beverages within its borders. In that year, Mississippi passed a local option alcoholic beverage control law subject to the requirement that the State Tax Commission be the sole importer and wholesaler of alcoholic beverages distributed within the State.1 The Tax Commission was given exclusive authority to act as wholesale distributor in the sale of alcoholic beverages to licensed retailers within the State 'including, at the discretion of the Commission, any retail distributors operating within any military post . . . within the boundaries of the State, . . . exercising such control over the distribution of alcoholic beverages as (seems) right and proper in keeping with the provisions and purposes of this act.'2 In conjunction with these transactions with retailers, the Commission was directed to 'add to the cost of all alcoholic beverages such . . . markups as in its discretion will be adequate to cover the cost of operation of the State wholesale liquor business, yield a reasonable profit, and be competitive with liquor prices in neighboring states.'3 Under the authority granted to it by the Act, the Tax Commission promulgated Regulation 254 which gives military post exchanges, ship's stores, and officers' clubs the option of purchasing liquor either from the Commission or directly from the distiller. However, insofar as purchases are made directly from the distillers by such military facilities, the regulation requires the distiller to collect and remit to the Tax Commission the latter's 'usual wholesale markup.' During the period involved in this case, the Tax Commission's wholesale markup was 17% on distilled spirits and 20% on wine.
3
Four United States military bases are located in the State of Mississippi—Keesler Air Force Base, the Naval Construction Battalion Center, Columbus Air Force Base, and Meridian Naval Air Station. Prior to 1966, the officers' clubs, the post exchanges, and the ship's stores—which are run with funds derived from operations rather than from funds appropriated by the United States—on these four bases had purchased liquor from distillers and suppliers located outside the State of Mississippi. Following the passage of the Mississippi local option law, these nonappropriated fund activities elected to continue the practice of purchasing liquor supplies outside the State rather than to purchase liquor from the Commission. Efforts were made by military authorities to convince the Commission not to collect the markup on out-of-state liquor purchases by nonappropriated fund activities, but these efforts failed, and the Commission compelled out-of-state distillers and suppliers to collect and remit the markup on military sales under threat of criminal prosecution and of delisting, that is, withdrawal of the privilege of selling to the Commission for retailing within Mississippi.5 The military authorities sought to pay the markup into an escrow fund pending judicial determination of the legality of the markup as applied to military purchases. But the Commission refused to accept such an arrangement, and in order to obtain liquor supplies the nonappropriated fund activities have had to pay the markup to the distillers and suppliers, albeit under protest.6
4
In November 1969, the United States brought this action seeking declaratory and injunctive relief against the continued enforcement of Regulation 25, plus a judgment in the total amount paid to the Commission, through the suppliers, since the imposition of the markup on military purchases. The complaint alleged that the United States has exclusive jurisdiction over Keesler Air Force Base and the Naval Construction Battalion Center, and that Mississippi and the United States exercise concurrent jurisdiction over Columbus Air Force Base and Meridian Naval Air Station. The complaint contended that the Regulation was invalid because it constituted an attempt by the State to legislate with respect to military facilities and territory over which the Congress has exclusive legislative authority;7 to impose a tax on federal instrumentalities and thereby infringe upon the Federal Government's immunity from state taxation;8 and to interfere with federal procurement regulations and policy established by the Secretary of Defense pursuant to authority granted to him by Congress.9 The complaint also asked that a three-judge court be convened.
5
On cross-motions for summary judgment, the District Court ruled in favor of the Commission, upholding the validity of the challenged Regulation. 340 F.Supp. 903 (S.D.Miss.1972). The District Court agreed that the United States has exclusive jurisdiction over two of the four bases and concurrent jurisdiction over the remaining two. But it concluded that Congress' constitutional powers over the military forces and over territory belonging to the United States 'are diminished by the express prohibition of the XXI Amendment as to all packaged liquor transactions which (1) are made an exclusively federal enclaves but without restriction upon use and consumption of such liquors outside the base, or (2) take place on military installations over which the state and federal government exercise concurrent jurisdiction.' Id., at 904. In light of this conclusion the District Court found it unnecessary to consider the import of the procurement regulations issued by the Secretary of Defense. Nor did it discuss the contention that the markup constituted an impermissible tax upon federal instrumentalities. On appeal by the United States, we noted probable jurisdiction, 409 U.S. 1005, 93 S.Ct. 437, 34 L.Ed.2d 298 (1972).10 For the reasons which follow, we now hold that the District Court erred in concluding that the Twenty-first Amendment provides the State with sufficient authority over liquor transactions to support the application of the Regulation to the two bases over which the United States exercises exclusive jurisdiction,11 and we vacate and remand the case to the District Court for consideration of further arguments, relevant to the nonappropriated fund activities on all four bases, that it did not reach.
6
* A. With respect to the two bases over which it claims exclusive jurisdiction, Keesler Air Force Base and the Naval Construction Battalion Center, the Government places principal reliance upon Art. I, § 8, cl. 17, of the Constitution. That clause empowers Congress to 'exercise exclusive Legislation . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.'
7
In Pacific Coast Dairy, Inc. v. Dept. of Agriculture, 318 U.S. 285, 63 S.Ct. 628, 87 L.Ed. 761 (1943), the Court considered that clause sufficient to render ineffective an attempt by the State of California to fix the prices at which California milk producers could sell milk to military authorities at Moffett Field, over which the United States exercised exclusive jurisdiction.
8
'When the federal government acquired the tract (upon which Moffett Field was located), local law not inconsistent with federal policy remained in force until altered by national legislation. The state statute involved was adopted long after the transfer of sovereignty and was without force in the enclave. It follows that contracts to sell and sales consummated within the enclave cannot be regulated by the California law. To hold otherwise would be to affirm that California may ignore the Constitutional provision that 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; . . .' It would be a denial of the federal power 'to exercise exclusive Legislation.' As respects such federal territory Congress has the combined powers of a general and a state government.' Id., at 294, 63 S.Ct., at 630 (footnotes omitted).
9
The view of Art. I, § 8, cl. 17, expressed in Pacific Coast Dairy was reaffirmed in Paul v. United States, 371 U.S. 245, 263 270, 83 S.Ct. 426, 437—441, 9 L.Ed.2d 292 (1963). There the Court was confronted with another attempt by California to enforce minimum wholesale price regulations on sales of milk to the United States at three other military installations located within the State. A portion of the milk was purchased—as are the liquor supplies here at issue—with nonappropriated funds for use at officers' clubs and for resale at post exchanges. As to these nonappropriated fund purchases, the Court found it necessary to remand the case to determine whether the state regulatory scheme predated the transfer of sovereignty over any of the particular bases to the United States,12 and, even if not, whether the United States in fact exercised exclusive jurisdiction over the areas in which purchases and sales of milk were made. But in so doing the Court emphasized that '(t)he cases make clear that the grant of 'exclusive' legislative power to Congress over enclaves that meet the requirements of Art. I, § 8, cl. 17, by its own weight, bars state regulation without specific congressional action.' Id., at 263, 83 S.Ct., at 437.
10
Were it not for the fact that we deal here with a State's attempt to regulate and derive income from wholesale transactions in liquor—a fact which raises further questions as to the extent of the power conferred upon the States under the Twenty-first Amendment and the possibility of consent by the United States to state taxation—Pacific Coast Dairy and Paul would seem to be sufficient to dispose of this case insofar as Keesler Air Force Base and the Naval Construction Battalion Center are concerned. See also James v. Daravo Contracting Co., 302 U.S. 134, 140, 58 S.Ct. 208, 212, 82 L.Ed. 155 (1937); Standard Oil Co. v. California, 291 U.S. 242, 54 S.Ct. 381, 78 L.Ed. 775 (1934). The transactions here at issue are strictly between the United States and out-of-state distillers and suppliers. The goods are ordered by the officers' clubs and other nonappropriated fund activities and then delivered within the military bases over which the United States claims exclusive jurisdiction. Thus, with respect to the initial sale and delivery of the liquor by the suppliers to military facilities located in exclusively federal enclaves, nothing occurs within the State that gives it jurisdiction to regulate the initial wholesale transaction.13 Cf. Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361, 382—383, 84 S.Ct. 378, 390, 11 L.Ed.2d 389 (1964); Penn Dairies, Inc. v. Milk Control Comm'n, 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed. 748 (1943).
11
There can be no question that the tracts of land upon which Keesler Air Force Base and the Naval Construction Battalion Center are located were 'purchased by the Consent of the Legislature' of Mississippi with the meaning of Art. I, § 8, cl. 17. Despite its ultimate resolution of the case, the District Court acknowledged that the United States had acquired exclusive jurisdiction over these two bases. 340 F.Supp., at 904, 906. The Federal Government acquired the relevant lands by condemnation between 1941 and 1950.14 And, throughout the period of acqusition, the State had expressly given its 'consent . . ., in accordance with the 17th clause, 8th section, and of the 1st article of the Constitution of the United States, to the acquisition by the United States, by purchase, condemnation or otherwise, of any land in this state . . . for custom houses, post offices, or other public buildings,'15 subject only to the right of the State to serve civil and criminal process upon such public lands.16 True, the assent of the United States to the exercise of exclusive jurisdiction over the lands occupied by the two bases was a necessary final step in light of 40 U.S.C. § 255,17 but such assent was given through a series of letters from Government officials to the Governors of Mississippi between 1942 and 1950.18
12
Accordingly, unless the fact that in this case the State has attempted to derive revenue from private wholesale liquor transactions provides a decisive distinction, our prior cases make it clear that the Tax Commission could not attach its markup to the sale and delivery of liquor by out-of-state suppliers to nonappropriated fund activities within Keesler Air Force Base and the Naval Construction Battalion Center.
13
B. But the Tax Commission contends—as the District Court held that the application of the markup regulation to the two bases over which the United States exercises exclusive jurisdiction is sustainable on the basis of the broad regulatory authority conferred upon the States by the Twenty-first Amendment. The second section of the Twenty-first Amendment provides:
14
'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.'
15
In Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502 (1938), a concessionaire which operated hotels, camps, and stores in Yosemite National Park, under a contract with the Secretary of the Interior, sought to enjoin the efforts of California authorities to enforce the State's Alcoholic Beverage Control Act within the limits of the Park. The state liquor law would have required the concessionaire to apply for permits for the importation and sale of liquor and to pay related taxes and fees. The Court found that the State had ceded to the United States, and that the United States had accepted, exclusive jurisdiction over Yosemite National Park, except insofar as the State had expressly reserved the right to tax persons and corporations within the Park. Id., at 527—530, 58 S.Ct., at 1013 1015. In light of this determination, the Court held that '(a)s there is no reservation of the right to control the sale or use of alcoholic beverages, such regulatory provisions as are found in the Act'—namely, the provisions concerning importation and sales permits—'are unenforceable in the Park.' Id., at 530, 58 S.Ct., at 1014. In support of its attempt to apply the permit provisions within the Park, the State placed specific reliance upon the regulatory authority conferred upon it by § 2 of the Twenty-first Amendment. But the Court rejected this argument, agreeing instead with the District Court's conclusion 'that though the Amendment may have increased 'the state's power to deal with the problem . . . (of liquor importation), it did not increase its jurisdiction." Id., at 538, 58 S.Ct., at 1018. The Court then went on to state:
16
'As territorial jurisdiction over the Park was in the United States, the State could not legislate for the area merely on account of the XXI Amendment. There was no transportation into California 'for delivery or use therein.' The delivery and use is in the Park, and under a distinct sovereignty. Were exclusive jurisdiction is in the United States, without power in the State to regulate alcoholic beverages, the XXI Amendment is not applicable.' Ibid. (Footnotes omitted.)
17
It is true, as the Tax Commission argues, that the Court did sustain the application of the tax provisions of the state liquor law within the Park. But this aspect of the decision was bottomed specifically on the State's reservation of taxing authority in its cession of lands to the United States, id., at 532, 536, 58 S.Ct., at 1016, 1017.
18
Collins would seem to compel the conclusion that absent an appropriate express reservation—which is lacking here—the Twenty-first Amendment confers no power on a State to regulate whether by licensing, taxation, or otherwise—the importation of distilled spirits into territory over which the United States exercises exclusive jurisdiction. See also Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 (1944). Certainly, the Amendment was intended to free the State of 'traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' Hostetter v. Idelewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350 (1964). See also Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 42, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966). But the Government contends that here, as in Collins, there was no 'transportation or importation (of liquor) into (the) State . . . for delivery or use therein' within the meaning of the second section and therefore the Twenty-first Amendment does not assist the Tax Commission's case. We agree.
19
The District Court acknowledged that Keesler Air Force Base and the Naval Construction Battalion Center 'are to Mississippi as the territory of one of her sister states or a foreign land. They constitute federal islands which no longer constitute any part of Mississippi nor function under its control.' 340 F.Supp., at 906. And it recognized that in light of Collins, '(t)he importation of property onto these bases for use thereon would clearly be outside the ambit of the XXI Amendment.' Id., at 906—907. But the court considered Collins to be limited strictly to the situation in which delivery and use of the liquor was restricted to the exclusive enclave, whereas in this case '(t)he undisputed facts show that it was acquired for the purpose of being sold to individuals for their use and consumption either on the base or in the surrounding state.' Id., at 907. Such off-base consumption was sufficient, in the District Court's view, to subject the transactions between the out-of-state suppliers and the nonappropriated fund activities to the regulatory authority granted to Mississippi under the Twenty-first Amendment. We think, however, that the District Court unjustifiably narrowed the decision in Collins.
20
There is, in fact, no indication in Collins that the liquor purchased from the concessionaire's facilities in the Park was always consumed within the limits of the Park. To the contrary, the complaint in that case specifically stated that the liquor imported for sale in the park facilities was sold 'for consumption on or off the premises where sold.'19 Hence, it is just as reasonable to assume that some of the liquor sold in the Park was consumed outside its limits in the State of California as it is to assume that some of the liquor sold on these two bases was ultimately consumed in the State of Mississippi.20 The Col lins Court, in rejecting California's reliance upon the Twenty-first Amendment, pointed, to be sure, to the fact that 'delivery and use' of the liquor was 'in the Park,' 304 U.,.s, at 538, 58 S.Ct., at 1018. But, considered in the context of the case, the Court's reference clearly was to the transaction between the out-of-state suppliers and the park concessionaire. It was that transaction which California sought to regulate, and insofar as that transaction was concerned, the delivery and use—that is, the delivery, storage, and sale—of the liquor occurred exclusively within the Park. The particular transactions at issue in this case between out-of-state suppliers and the military facilities stand on no different footing, and thus, given that the State has retained only the right to serve process on the two bases, Collins is dispositive of the Commission's effort to invoke the State's authority under the second section of the Twenty-first Amendment to impose its markup on these transactions.
21
This is not to suggest that the State is without authority either to regulate liquor shipments destined for the bases while such shipments are passing through Mississippi or to regulate the transportation of liquor off the bases and into Mississippi for consumption there. Thus, while it may be true that the mere 'shipment (of liquor) through a state is not transportation or importation into the state within the meaning of the (Twenty-first) Amendment,' Carter v. Virginia, 321 U.S. 131, 137, 64 S.Ct. 464, 468, 88 L.Ed. 605 (1944), a State may, in the absence of conflicting federal regulation, properly exercise its police powers to regulate and control such shipments during their passage through its territory insofar as necessary to prevent the 'unlawful diversion' of liquor 'into the internal commerce of the State,' see Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S., at 333, 331 n. 10, 84 S.Ct., at 1299; Carter v. Virginia, supra; Duckworth v. Arkansas, 314 U.S. 390, 62 S.Ct. 311, 86 L.Ed. 294 (1941). And the State, of course remains free to regulate or restrict, under § 2 of the Twenty-first Amendment, the transportation off the two bases of liquor that has been purchased and is in fact 'destined for use, distribution, or consumption' within its borders, see Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S., at 42, 86 S.Ct., at 1259; see also California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972).
22
But there is no indication here that the markup is an effort to deal with problems of diversion of liquor from out-of-state shipments destined for one of the two bases. Nor need we now decide the precise parameters of the State's authority to regulate efforts to import liquor from the exclusively federal enclaves, since that question is not before us. For our purposes here, it suffices to note that any legitimate state interest in regulating the importation into Mississippi of liquor purchased on the bases by individuals cannot effect an extension of the State's territorial jurisdiction so as to permit it to regulate the distinct transactions between the suppliers and the nonappropriated fund activities that involve only the importation of liquor into the federal enclaves which 'are to Mississippi as the territory of one of her sister states or a foreign land,' 340 F.Supp., at 906. To conclude otherwise would be to give an unintended scope to a provision designed only to augment the powers of the States to regulate the importation of liquor destined for use, distribution, or consumption in its own territory, not to "increase its jurisdiction," Collins v. Yosemite Park & Curry Co., 304 U.S., at 538, 58 S.Ct., at 1018.
23
C. Before this Court the Tax Commission also asserts that the markup might properly be viewed as a sales tax and that the United States has consented to the imposition of such a 'tax' in the context of the two exclusive jurisdiction bases under the Buck Act of 1940, 54 Stat. 1059, now 4 U.S.C. §§ 105—110. Section 105(a) of that Act provides in part:
24
'No person shall be relieved from liability for payment of, collection of, or accounting for any sales or use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal Area . . ..' 4 U.S.C. § 105(a).
25
However, § 107(a) of the Act spells out certain exceptions to the consent provision contained in § 105(a). Specifically, § 107(a) states that § 105(a) 'shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof . . ..' Whether the markup should be treated as a tax on sales occurring within a federal area within the meaning of § 105(a), see also 4 U.S.C. § 110(b), and, if so, whether the exception contained in § 107(a) nevertheless serves to remove the markup from the consent provision for purposes of the two exclusively federal enclaves are issues which the record reveals were never considered, much less decided, by the District Court. Having found that the District Court erred in the basis on which it did dispose of this case, we think that these additional issues are appropriately left for determination by that court in the first instance on remand.
II
26
The two bases over which the United States claims to exercise jurisdiction concurrent with the State—Columbus Air Force Base and Meridian Naval Air Station—present somewhat different problems. Since the United States has not acquired exclusive jurisdiction over the land upon which these bases are located, the Government is unable to rest its claims for immunity from the markup with respect to purchases of liquor for the nonappropriated fund activities of these bases on Art. I, § 8, cl. 17. Rather, it bases its argument on the theories that the markup either is an unconstitutional tax upon instrumentalities of the United States21 or is invalid under the Supremacy Clause because it conflicts with federal procurement regulations and policy.22 The District Court specifically found it unnecessary to reach the Government's argument under the Supremacy Clause, and implicitly declined to reach the Government's argument concerning taxation of United States instrumentalities. Instead, having concluded that, despite Art. I, § 8, cl. 17, the Twenty-first Amendment permitted the Tax Commission to apply the markup to out-of-state purchases destined for nonappropriated fund activities on the two bases over which the United States exercises exclusive jurisdiction, the District Court simply reasoned that '(a) fortiori, the liquor sales made on the two bases over which the federal and state governments exercise concurrent jurisdiction—Meridian and Columbus—are similarly subject to Mississippi law.' 340 F.Supp., at 907.
27
The District Court's rationale for adopting this view is not entirely clear. Certainly it was correct when it further observed that 'as to the concurrent jurisdiction bases, the liquor sales transactions occurred within the jurisdiction of the State of Mississippi, even where the consumption or other use of the liquor was consummated within the territorial confines of the base.' Ibid. But this serves only to dispose of any question under Art. I, § 8, cl. 17. As already noted, however, the Government does not purport to rest its case with respect to transactions involving the two bases over which it exercises only concurrent jurisdiction upon that clause. In any event, we have now concluded that the District Court erred in ruling that the Twenty-first Amendment empowered the State Tax Commission to apply the markup to transactions between out-of-state distillers and nonappropriated fund activities located on the two exclusively federal enclaves. Our conclusion eliminates the essential premise of the District Court's decision concerning the two concurrent jurisdiction bases. While the arguments upon which the Government does rely with respect to the purchase of liquor destined for those two bases present, to be sure, only questions of law which we might now decide, we believe it would be useful to have the views of the District Court on these additional arguments, and we therefore remand the case to the District Court to allow it to consider initially the Government's instrumentality and Supremacy Clause arguments. Cf. Lewis v. Martin, 397 U.S. 552, 560, 90 S.Ct. 1282, 1286, 25 L.Ed.2d 561 (1970); FCC v. WJR, 337 U.S. 265, 285, 69 S.Ct. 1097, 1108, 93 L.Ed. 1353 (1949).
28
The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.
29
It is so ordered.
30
Judgment vacated and case remanded.
31
Mr. Justice DOUGLAS, with whom Mr. Justice REHNQUIST concurs, dissenting.
32
This is an amazing decision doing irreparable harm to the cause of States' rights under the Twenty-first Amendment. That Amendment gives the States pervasive control over the 'transportation . . . into (the) State . . . for delivery or use therein of intoxicating liquors, in violation' of its laws. The liquors cannot reach these federal enclaves unless they are transported into or across the State and they are obviously delivered and used within Mississippi.
33
Two of the posts are inland enclaves within the State. Two are on Mississippi's coastline. But to reach the latter by water a vessel must enter Mississippi's territorial waters. As we held in Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85.l.Ed. 1193, the territorial waters are part of the domain over which the coastal State has sovereignty. These shipments therefore constitute 'transportation or importation into' Mississippi for 'delivery . . . therein of intoxicating liquors' within the meaning of the Twenty-first Amendment. The power of the State to bar the transportation of liquor into the State certainly includes the power to manage its distribution within the State. Mississippi has done no more than that. So it seems clear to me that this is a classic example of the exercise of basic States' rights under the Twenty-first Amendment.
34
Mississippi in her regulation of alcoholic beverages is a so-called monopoly State,1 like 17 other States. Some of these monopoly States make themselves the exclusive wholesaler2 of liquor and wine and exclusive retailer as well. Mississippi only makes itself the exclusive wholesaler. The sales involved in this litigation are wholesale sales to clubs of members of the Armed Services on four federal bases in Mississippi, over two of which Mississippi and the United States have concurrent jurisdiction, the United States having exclusive jurisdiction over the other two.
35
Under Mississippi law these post exchanges and other facilities (hereafter post exchanges) may order liquor direct from the distiller or from the state commission. The Mississippi regulation provides, 'All orders of such organizations shall bear the usual wholesale markup3 in price but shall be exempt from all state taxes.' The wholesale markup on distilled spirits is 17% and on wine, 20%. If the purchase is made from the distiller, it remits the wholesale markup to the State. A distiller who fails or refuses to observe these conditions is deprived of the benefits of this state law and may be prosecuted.
36
This suit brought before a three-judge district court was to collect the amount of the markups paid by the post exchanges and to enjoin the enforcement of the Mississippi regulation against distillers or suppliers doing business with the post exchanges on the terms of Mississippi law. The three-judge District Court, relying on the Twenty-first Amendment,4 gave appellees a summary judgment, 340 F.Supp. 903. Its judgment should be affirmed.
37
The four federal enclaves involved in this dispute are in the State of Mississippi. The spirits are made out of State and delivered to the post exchanges within the State. The question is whether the terms of the Twenty-first Amendment are met, that is to say, whether there is 'transportation . . . into . . . (the) State . . . for delivery or use therein of intoxicating liquors.'
38
The spirits are not all consumed on or at the post exchanges. Rather, they are resold to members of the Armed Services, to retired members and the families of members; and some of the spirits are consumed in Mississippi and outside the federal enclaves by guests of members and retirees and their families. As the District Court said, the spirits are not brought into the federal enclaves for sole use there. The spirits are resold to individuals for their use or consumption either on the federal enclave or in the surrounding state area.
39
Private retailers in Mississippi pay the State a tax of $2.50 a gallon on distilled spirits. The Post Exchanges pay no state tax on their resales; and it is stipulated that these post exchanges each make a profit.
40
Section 6 of the Universal Military Training and Service Act, as amended in 1951, authorizes the Secretary of Defense to make regulations 'governing the sale, consumption, possession of or traffic in . . . intoxicating liquors to or by members' of the Armed Forces 'at or near any camp, station, post, or other place primarily occupied by (them)' 50 U.S.C.App. § 473. And it makes criminal, knowing violations of such regulations. Department of Defense Directive 1330.15 issued May 4, 1964, and amended June 9, 1966, provides that 'the purchase of all alcoholic beverages for resale at any camp post, station, base or other place primarily occupied by members of the Armed Forces within the United States shall be in such a manner and under such conditions as shall obtain for the Government the most advantageous contract, price and other factors considered.' The Act and the Department of Defense regulation do not on their face purport to override or displace state price control of liquor. It is said, however, that that is immaterial.
41
The Solicitor General relies on Art. I, § 8, cl. 17, of the Constitution, which empowers Congress to 'exercise exclusive Legislation . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-yards, and other needful Buildings.' This provision, it is said, bars state price regulations as respects sales to post exchanges on the two federal enclaves over which the United States has exclusive jurisdiction even in absence of a conflicting federal statute or regulation. Reliance is placed on Paul v. United States, 371 U.S. 245, 263—268, 83 S.Ct. 426, 437—440, 9 L.Ed.2d 292. The Paul case did not involve the Twenty-first Amendment. There post exchanges resold milk and California provided minimum wholesale price regulations; and we held that Art. I, § 8, cl. 17, 'by its own weight, bars state regulation without specific congressional action.' Id., at 263, 83 S.Ct., at 437.
42
The Twenty-first Amendment and Art. I, § 8, cl. 17, are parts of the same Constitution. In Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350, we held that while the Twenty-first Amendment gave the States control where otherwise the Commerce Clause would be a bar to its action (id., at 330, 84 S.Ct., at 1296), the Twenty-first Amendment did not give a State the power to prohibit the passage of liquor through its territory for delivery to consumers in foreign countries. Congress had enacted a law governing traffic in liquor to foreign nations; and that aspect of the Commerce Clause gave Congress exclusive authority over foreign trade. Hence it is argued here that the power of Congress to exercise exclusive jurisdiction over a federal enclave preempts state power. But all that we have here is 'transportation' into a State, not beyond it.
43
Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502, held as respects a state regulatory regime of alcoholic beverages within Yosemite National Park in California that the Twenty-first Amendment gave the State no power to supervise liquor transactions within the federal enclave. The Court said:
44
'As territorial jurisdiction over the Park was in the United States, the State could not legislate for the area merely on account of the XXI Amendment. There was no transportation into California 'for delivery or use therein.' The delivery and use is in the Park, and under a distinct sovereignty. Where exclusive jurisdiction is in the United States, without power in the State to regulate alcoholic beverages, the XXI Amendment is not applicable.' Id., at 538, 58 S.Ct., at 1018.
45
That observation was apt, for California undertook to assert a regulatory authority within the park. The Solicitor General presses for an application of Collins to the present post exchanges. Yet Mississippi asserts no regulatory power over these military bases or over the dispensing of liquor by the post exchanges. Mississippi only collects a tax from out-of-state distillers and suppliers who ship liquor to the post exchanges. Those shipments, as noted, must enter Mississippi to reach the military bases.
46
Moreover, Mississippi asserts no authority to collect the tax from the Federal Government or its instrumentalities, the post exchanges. The legal incidence of the so-called sales tax is on the distributor only. The economic incidence is, of course, on the post exchanges. But it has long been held that there is no constitutional barrier to that result.
47
That raises the other phase of the case which should be decided here, as it is covered by our decisions and requires no additional factfindings for its resolution.
48
At least since Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, state taxes have been upheld on those doing business with the Federal Government even as respects cost-plus contracts where the terms of the contract forced their payment out of the federal treasury.5 The principle of king & Boozer permits no exception for distillers who make wholesale transactions with post exchanges, as the legal incidence of the tax is on the distillers, not on the post exchanges. Moreover, the Buck Act, 54 Stat. 1059, now 4 U.S.C. § 105 et seq., authorizes the application of state sales and use taxes to all post exchange purchases where 'the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area.' The Buck Act exempts from such taxes, sales, purchases, storage, or use of personal property sold by the United States or any instrumentality thereof to 'any authorized purchaser' (s 107), who is defined as one permitted to purchase at commissaries, ship's stores, post exchanges, and the like, by regulations of the departmental Secretary.
49
It also does not authorize 'the levy or collection of any tax on or from the United States or any instrumentality thereof.' 4 U.S.C. § 107(a).
50
The markup which the State requires wholesalers of liquor to make is in its worst light a sales tax. There is no 'levy or collection' by the State from a post exchange in any technical, legal sense. As noted, the economic but not the legal incidence of the tax is in the post exchanges. The post exchange is merely paying indirectly the cost of doing business in the manner in which King & Boozer held that there was no constitutional immunity from state taxation.
51
That alone is sufficient to distinguish the present case from Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292, where state minimum price regulations were held to be inoperative as applied to purchases of milk by federal instrumentalities, such as post exchanges. Paul in other words involved no tax at all. The levy of Mississippi on wholesalers is, as noted, a sum designed to cover the cost to the State of operating the wholesale liquor business, yield a reasonable profit, and be competitive with liquor prices in neighboring States. It is plainly, therefore, a tax on sales and in my view authorized by Congress under the Buck Act. The Solicitor General concedes in his brief that the Mississippi regulation is meant only 'to raise revenue.' By reason of the Buck Act it matters not, therefore, that the post exchanges, as held in Paul, are federal instrumentalities. Here, as in King & Boozer, we deal only with the 'economic' burden of the local tax, its legal incidence being solely on the distributor.
52
First Agricultural National Bank v. State Tax Comm'n, 392 U.S. 339, 88 S.Ct. 2173, 20 L.Ed.2d 1138, is inapposite. In that case Congress had specifically provided four ways in which the States could tax national banks, apart from taxes on their real estate. Id., at 341—342, 88 S.Ct., at 2174—2175. Efforts to allow broader taxation were defeated in Congress. Because of that history, we read the Massachusetts sales tax closely and nothing that the tax was "recoverable at law" from the national bank, Id., at 347, 88 S.Ct. at 2177, held that it transcended the congressional waiver of immunity.
53
That case does not control here for two reasons.
54
First, the legal incidence of the present tax is not in the post exchanges, only the economic incidence.
55
Second, the Massachusetts sales tax had no relation to the Twenty-first Amendment. The present case involves 'transportation or importation' of liquor into the State of Mississippi over which the State has plenary control. The State, having the power to bar liquor completely from Mississippi, can admit it on such terms and conditions as she chooses. If she sought to levy a tax on the post exchanges a different issue would arise. But there is no federal immunity against including state costs in federal contracts.
56
While the Buck Act by § 107(a) bars a state tax on federal instrumentalities—which as Paul holds includes post exchanges—King & Boozer allows a state tax on those who, like the wholesalers in this case, do business with the United States. King & Boozer, decided in 1941, after the Buck Act, stated the modern version of the scope of intergovernmental immunity.6 The present case is therefore on all fours with the excise tax imposed by Florida on milk distributors who in turn sold to federal enclaves. In referring to the Buck Act we said:
57
'We think this provision provides ample basis for Florida to levy a tax measured by the amount of milk Polar distributes monthly, including milk sold to the United States for use on federal enclaves in Florida.' Polar Ice Cream and Creamery Co. v. Andrews, 375 U.S. 361, 383, 84 S.Ct. 378, 391, 11 L.Ed.2d 389.
58
The judgment below should be affirmed.
1
Miss.Code Ann. § 10265—01 et seq. (Supp. 1972).
2
Id., § 10265—18(c).
3
Id., § 10265—106.
4
The Regulation, which was originally numbered 22, reads as follows:
'Post exchanges, ship stores, and officers' clubs located on military reservations and operated by military personnel (including those operated by the National Guard) shall have the option of ordering alcoholic beverages direct from the distiller or from the Alcoholic Beverage Control Division of the State Tax Commission. In the event an order is placed by such organization directly with a distiller, a copy of such order shall be immediately mailed to the Alcoholic Beverage Control Division of the State Tax Commission.
'All orders of such organizations shall bear the usual wholesale markup in price but shall be exempt from all state taxes. The price of such beverages shall be paid by such organizations directly to the distiller, which shall in turn remit the wholesale markup to the Alcoholic Beverage Control Division of the State Tax Commission monthly covering shipments made for the previous month.'
5
See Stipulation of Facts, (hereinafter Stipulation) App. 36—38.
6
Out-of-state suppliers had been paid $648,421.92 under protest for such markups by July 31, 1971.
7
See U.S.Const., Art. I, § 8, cls. 14 and 17, Art. IV, § 3.
8
See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819).
9
See 32 CFR § 261.4(c).
10
See Paul v. United States, 371 U.S. 245, 249—250, 83 S.Ct. 426, 430, 9 L.Ed.2d 292 (1963).
11
In a special concurring opinion, Judge Cox added that recoupment of the sums paid under the markup was also barred because, in his view, the payments had been voluntarily made by the nonappropriated fund activities. 340 F.Supp., at 909. It is true that where voluntary payment is knowingly made pursuant to an illegal demand, recovery of that payment may be denied. See, e.g., United States v. New York & Cuba Mail S.S. Co., 200 U.S. 488, 493 494, 26 S.Ct. 327, 329—330, 50 L.Ed. 569 (1906); Little v. Bowers, 134 U.S. 547, 554, 10 S.Ct. 620, 621, 33 L.Ed. 1016 (1890); Railroad Co. v. Commissioners, 98 U.S. 541, 543—544, 25 L.Ed. 196 (1879). But no such voluntary payments are involved here. The Tax Commission refused to accept an escrow arrangement and it made clear to the out-of-state suppliers that severe sanctions would be applied to anyone who failed to charge the markup and to remit the resulting funds to it. Thus, the Tax Commission gave the non-appropriated fund activities no choice except to pay the markup—either to itself or to the out-of-state suppliers—in order to obtain liquor supplies or else to cease dispensing alcoholic beverages altogether—that is, to discontinue an entire line of business. Obviously, this was no choice at all. The payments of the markup were obtained only by coercion; they were paid under protest; and thus they hardly can be said to have been voluntary. See, e.g., Ward v. Board of County Comm'rs of Love County, 253 U.S. 17, 23, 40 S.Ct. 419, 421, 64 L.Ed. 751 (1920); Atchison, T. & S.F.R. Co. v. O'Connor, 223 U.S. 280, 286—287, 32 S.Ct. 216, 217, 56 L.Ed. 436 (1912); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 329, 29 S.Ct. 671, 672, 53 L.Ed. 1013 (1909); Swift Co. v. United States, 111 U.S. 22, 28—29, 4 S.Ct. 244, 247, 28 L.Ed. 341 (1884).
12
'The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be without a developed legal system for private rights.' James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99—100, 60 S.Ct. 431, 433, 84 L.Ed. 596 (1940).
See also Pacific Coast Dairy, Inc. v. Dept. of Argiculture, 318 U.S. 285, 294, 63 S.Ct. 628, 630, 87 L.Ed. 761 (1943); Murray v. Joe Gerrick & Co., 291 U.S. 315, 318, 54 S.Ct. 432, 433, 78 L.Ed. 821 (1934); Chicago, R.I. & P.R. Co. v. McGlinn, 114 U.S. 542, 546—547, 5 S.Ct. 1005, 1007, 29 L.Ed. 270 (1885).
13
The State's power to regulate transportation of alcoholic beverages through its territory to the bases or from the bases back into its jurisdiction is, however, a different question, see infra, at 377—378.
14
See Stipulation, App. 28—29, and Ex. 1—7. It is well established that land which the Government acquires by condemnation has been 'purchased' within the meaning of Clause 17. See Paul v. United States, 371 U.S., at 264, 83 S.Ct., at 437; Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 371—372, 84 S.Ct. 857, 859, 11 L.Ed.2d 782 (1964).
15
Miss.Code Ann. § 4153. General consent statutes are not uncommon, see Paul v. United States, supra, 371 U.S., at 265 and n. 31, 83 S.Ct., at 438; James v. Dravo Contracting Co., 302 U.S. 134, 143 and n. 4, 58 S.Ct. 208, 213, 82 L.Ed. 155 (1937), and they are as effective for purposes of Art. I, § 8, cl. 17, as consent to each particular acquisition, see Paul v. United States, supra, 371 U.S., at 268—269, 83 S.Ct., at 439—440.
16
See Miss.Code Ann. § 4154. The effectiveness of such qualifications to consent has long been accepted, see, e.g., Paul v. United States, supra, 371 U.S., at 264—265, 83 S.Ct., at 437 438; James v. Dravo Contracting Co., supra, 302 U.S., at 146—149, 58 S.Ct., at 214—216.
17
Section 255 provides in relevant part:
'Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department of independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.'
18
See Stipulation, App. 28—29, and Ex. 1—7.
Since the challenged regulation first became effective in 1966, long after the United States had acquired jurisdiction over the bases, there is no question here as to the application within a federal enclave of a state law that predates the transfer of sovereign authority, see n. 12, supra.
19
Transcript of Record, No. 870, O.T. 1937, p. 3.
20
In fact, the record in this case contains no express indication as to the extent to which packaged liquor purchased from the nonappropriated fund activities is consumed outside the jurisdiction of the two bases. The District Court inferred off-base consumption from the facts that 'numerous classes of non military persons are authorized to make purchases; and every selling facility exacts a promise from each purchaser that he will obey the laws of the state as to such of the liquor bought as may be taken off of the installation.' 340 F.Supp., at 905. By a parity of reasoning the likelihood that some of the liquor purchased from stores located in Yosemite National Park was transported to and consumed in California is ever greater since those stores were open to the public at large.
21
See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819).
22
See 32 CFR § 261.4(c). See also Paul v. United States, 371 U.S., at 253, 83 S.Ct., at 432.
1
Miss.Code Ann. § 10265—01 et seq. (Supp. 1972).
2
Wholesaler is defined as 'any person, other than a manufacturer, engaged in distributing or selling any alcoholic beverage at wholesale for delivery within or without this State when such sale is for the purpose of resale by the purchaser.' Id., § 10265—05(g).
3
The Act provides in § 10265—106, 'The Commission shall add to the cost of all alcoholic beverages such various markups as in its discretion will be adequate to cover the cost of operation of the State wholesale liquor business, yield a reasonable profit, and be competitive with liquor prices in neighboring states.'
4
It provides in § 2, 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the law thereof, is hereby prohibited.'
5
In New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326, in discussing the Federal Government's right to levy taxes on New York State's sale of mineral waters, the Court stated, 'In the older cases, the emphasis was on immunity from taxation. The whole tendency of recent cases reveals a shift in emphasis to that of limitation upon immunity. They also indicate an awareness of the limited role of
courts in assessing the relative weight of the factors upon which immunity is based.' Id., at 581, 66 S.Ct., at 314.
That trend continued in Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S.Ct. 800, 97 L.Ed. 1174, where the Court upheld the validity of a state privilege tax on Esso, occasioned by its storage of gasoline owned by the United States, even though it was shown that the United States had contractual obligated itself to reimburse the contractor for any state tax liability incurred. The Court distinguished those cases which had held that there could be no state tax on federally owned property by indicating that in Esso the tax was on the privilege of storing Government property.
United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424, and United States v. Muskegon, 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436, concerned the application of a 1953 Michigan statute providing that when tax-exempt real property is used by a private person in a business conducted for profit the private person is subject to taxation to the same extent as if he were the owner of the property. Both cases involved Government contractors occupying defense plants, one under a lease and the other under a permit which could be terminated at will. The Court upheld the imposition of the tax, saying the constitutional immunity of the Federal Government from state taxation was not violated and that the state statute was not discriminatory nor was the statute discriminatorily administered. This result was reached notwithstanding the fact that the Federal Government had for years reimbursed its contractors for the costs of possessory interest taxes.
In City of Detroit v. Murray Corp. of America, 355 U.S. 489, 78 S.Ct. 458, 461, 2 L.Ed.2d 441, the Court upheld a tax imposed on Murray, an Air Force subcontractor, on the basis of work in process and inventory, title to which was in the Federal Government on the tax day. The Court found no constitutional impediment to permitting a possessory-interest tax on Government-owned personal property. Unlike the real property situation, the Michigan statute did not specifically authorize such tax, but it was imposed pursuant to the usual personal property tax statute, levying the tax on the property. In commenting on the disparity between the statutes, the Court stated, 'It is true that the particular Michigan taxing statutes involved here do not expressly state that the person in possession is taxed 'for the privilege of using or possessing' personal property, but to strike down a tax on the possessor because of such a verbal omission would only prove a victory for empty
formalisms. And empty formalisms are too shadowy a basis for invalidating state tax laws. . . . In the circumstances of this case the State could obviate such grounds for invalidity by merely adding a few words to its statutes.' Id., at 493, 78 S.Ct., at 461.
6
During the first third of this century the doctrine of intergovernmental immunity, as it applies to state taxation of allegedly federal governmental activities, went through a highly expansive phase. Among the taxes held invalid were the following: sales tax on articles sold to the Government, Panhandle Oil Co. v. Mississippi, 277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857; income tax on earnings from patents and copyrights, Long v. Rockwood, 277 U.S. 142, 48 S.Ct. 463, 72 L.Ed. 824; income tax on income derived by lessees of public lands, Gillespie v. Oklahoma, 257 U.S. 501, 42 S.Ct. 171, 66 L.Ed. 338.
At the same time, however, a number of inroads or qualifications on the doctrine were established. Among the taxes held valid were the following: corporate franchise tax measured by income including that from Government bonds, Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389, inheritance or estate tax measured in part by Government bonds, Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998; Income tax on capital gain on resale of Government bonds, Willcuts v. Bunn, 282 U.S. 216, 51 S.Ct. 125, 75 L.Ed. 304; income tax on net income of contractors with the Government, Metcalf & Eddy v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384. This trend culminated in the decision of the Court in Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3.
That trend led a commentator to note, 'Today, the United States conducts much of its business through a vast number of private parties. The trend in the U.S. Supreme Court has been to reject immunizing these private parties from nondiscriminatory state taxes, as a matter of constitutional law, even though the United States bears the economic brunt of the tax, indirectly in some instance, by inclusion in price, and more directly in many instances, by reimbursement to the contractor as an item of cost.' Rollman, Recent Developments in Sovereign Immunity of the Federal Government from State and Loca Taxes, 38 N.D.L.Rev. 26, 30.
| 910
|
412 U.S. 521
93 S.Ct. 2215.
37 L.Ed.2d 121
Orval C. LOGUE et al., Petitioners,v.UNITED STATES.
No. 72—656.
Argued April 24, 1973.
Decided June 11, 1973.
Syllabus
Petitioners, claiming that their son's suicide while he was confined as a federal prisoner in a county jail was proximately caused by the negligence of Government agents and employees, brought suit under the Federal Tort Claims Act, which establishes Government liability for negligent acts or omissions of an 'employee of the Government,' defined, inter alia, as a person officially 'acting on behalf of a federal agency . . . with or without compensation.' The Act excludes any contractor with the United States from the definition of federal agency. Though finding that the county had contracted with the Federal Government to house federal prisoners in its jail, the District Court held that the Government was liable on the grounds that the sheriff's employees negligently failed to maintain adequate surveillance of the decedent (who had attempted suicide while initially incarcerated) and that the Deputy United States Marshal negligently failed specifically to arrange for constant surveillance. The Court of Appeals reversed on the grounds that under the 'contractor' exclusion the United States was not accountable for the negligence of the sheriff's employees and those employees were not acting on behalf of a federal agency in an official capacity within the meaning of the Act. Held:
1. The Court of Appeals correctly concluded that, contrary to petitioners' contention, the deputy marshal had no authority to control the activities of the sheriff's employees and that the jail was a 'contractor,' not a 'Federal agency,' within the meaning of the Act; and the statutory authorization for the housing of federal prisoners in state facilities clearly contemplated that the day-to-day operation of the contractor's facilities was to be in the contractor's, not the Government's, hands. Pp. 526—530.
2. Petitioners' alternative contention that even though the sheriff's employees might not be 'employees' of a federal agency, they might nonetheless be 'acting on behalf of a Federal agency in an official capacity' and thus 'employee(s) of the Government' within the meaning of the Act is not consistent with the legislative purpose of the Act. Pp. 530—532.
3. The Court of Appeals, not having given consideration to the question of the deputy marshal's negligence apart from other issues, should address itself to that question on remand. P. 2222.
459 F.2d 408 and 463 F.2d 1340, vacated and remanded.
James DeAnda, Corpus Christi, Tex., for petitioners.
Mark L. Evans, Washington, D.C., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Reagan Logue, a federal prisoner confined in a county jail pending trial, fashioned a noose from a bandage covering a laceration on his left arm and hanged himself. His mother and adoptive father sued the United States for damages under the Federal Tort Claims Act, 28 U.S.C. § 1346(b),1 claiming that negligence on the part of Government agents and employees proximately caused the death of their son. The District Court determined that Logue's death was the result of negligence for which the United States was liable, and awarded damages. 334 F.Supp. 322 (S.D.Tex.1971). The Court of Appeals reversed this judgment, 459 F.2d 408 (1972), rehearing en banc denied, 463 F.2d 1340 (1972). We granted certiorari in order to consider the application to this case of the Act's exclusion of employees of a 'contractor with the United States'. 28 U.S.C. § 2671.
2
On May 22, 1968, Reagan Logue was arrested by Deputy United States Marshal Del Bowers on a bench warrant charging Logue with conspiracy to smuggle 229 pounds of marihuana into the United States. After a hearing, he was taken to the Nueces County jail in Corpus Christi, Texas, to await trial. This jail is one of some 800 institutions operated by state and local governments that contract with the Federal Bureau of Prisons to provide for the safekeeping, care, and subsistence of federal prisoners.2
3
On the day after his initial incarceration Logue attempted to commit suicide by slashing veins in his left arm. He was immediately taken to a hospital emergency room for treatment of the laceration. While the wound turned out to be relatively minor, Logue was admitted to the hospital's psychiatric floor because of the attending doctor's observation that he was actively hallucinating and out of touch with reality. The psychiatrist who later took charge of the case, recognizing Logue's suicidal tendencies, recommended to federal officials that he be committed to a medical facility for rehabilitation.3
4
On the following day, May 24, the District Court ordered that Logue be transferred to a federal medical facility pursuant to 18 U.S.C. § 4244. While awaiting the processing of papers and other steps preparatory to the actual transfer, however, federal officials made arrangements to transfer Logue back to the Nueces County jail.4 Before the transfer, Bowers informed the chief jailer of Logue's suicidal tendencies and requested that he prepare for Logue a special cell removed of all dangerous objects that might be used in another suicide attempt. Such a cell was prepared by the jail authorities, and Logue was placed in it. Bowers made no specific arrangements for constant surveillance of Logue once he was confined, and the jail employees made only periodic checks when they were on that floor for some other reason. The day after his return to the jail, Logue removed the Kerlix bandage that had been applied to the laceration on his left arm and hanged himself.
5
The District Court found that there had been a contract between the Government and Nueces County whereby the latter undertook to house federal prisoners in the county jail at Corpus Christi. That court nonetheless found that the United States was liable for the negligence of the employees of the Nueces County sheriff as well as for the negligence of its own employee. The court found the former to have been negligent because their surveillance of Logue was 'inadequate,' and it found Bowers to have been negligent in failing to make 'specific arrangements . . . for constant surveillance of the prisoner.'
6
The Court of Appeals reversed the judgment of the District Court, stating in its opinion that:
7
'We interpret (18 U.S.C. § 4002) as fixing the status of the Nueces County jail as that of a 'contractor.' Title 28 U.S.C., Sec. 2671 . . .. This insulates the United States from liability under the FTCA for the negligent acts or omissions of the jail's employees. We find no support in the record for holding that Deputy Marshal Bowers had any power or authority to control any of the internal functions of the Nueces County jail. The deputy marshal, accordingly, violated no duty of safekeeping with respect to the deceased.' 459 F.2d, at 411.
8
The Federal Tort Claims Act makes the United States liable for money damages 'caused by the negligent or wrongful act or omission of any employee of the Government . . ..' 28 U.S.C. § 1346(b). Section 2671 of Title 28 U.S.C. contains the following definitions:
9
'As used in this chapter and sections 1346(b) and 2401(b) of this title, the term 'Federal agency' includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.
10
"Employee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.'
11
For the Government to be liable for the negligence of an employee of the Nueces County jail, he must be shown to be an 'employee of the Government' as that term is used in the Federal Tort Claims Act. Though petitioners do not always distinguish between their two theories, they appear to contend alternatively that the Nueces County jail is a 'Federal agency' by reason of its contract for the care of federal prisoners, or that the employees of the jail are 'acting on behalf of' the Bureau of Prisons or the Government in performing services for federal prisoners. The Court of Appeals rejected these contentions, and we believe that it was right in doing so.
12
We read that portion of the Court of Appeals' opinion quoted supra as treating the 'contractor' exemption from the definition of 'Federal agency' in § 2671 as adopting the common-law distinction between the liability of an employer for the negligent acts of his own employees and his liability for the employees of a party with whom he contracts for a specified performance. Both the modern common law as reflected in the Restatement of Agency5 and the law of Texas6 make the distinction between the servant or agent relationship and that of independent contractor turn on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract.
13
In Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965), one of the factors relied upon by the Court in determining that both military and civilian National Guard personnel were employees of the States, rather than of the United States, for purposes of the Federal Tort Claims Act, was the 'supervision exercised by the States over both military and civilian personnel,' id., at 53, 85 S.Ct., at 1300. The courts of appeals that have had occasion to decide the question appear to have unvaryingly held that the 'contractor with the United States' language of § 2671 adopts the traditional distinction between employees of the principal and employees of an independent contractor with the principal, and to have also held that the critical factor in making this determination is the authority of the principal to control the detailed physical performance of the contractor. See, e.g., Gowdy v. United States, 412 F.2d 525, 534 (CA6 1969); Eutsler v. United States, 376 F.2d 634 (CA10 1967); Yates v. United States, 365 F.2d 663 (CA4 1966); Kirk v. United States, 270 F.2d 110 (CA9 1959).
14
Petitioners cite the commentary to the Restatement (Second) of Torts § 409 (1965), to the effect that the common-law distinction that shields the employer from liability for injuries caused to another by the negligent act of a contractor or his servant is subject to so many exceptions that it is the general rule 'only in the sense that it is applied where no good reason is found for departing from it.' Congress, of course, could have left the determination as to whose negligence the Government should be liable for under the Federal Tort Claims Act to the law of the State involved, as it did with other aspects of liability under the Act. But it chose not to do this, and instead incorporated into the definitions of the Act the exemption from liability for injury caused by employees of a contractor. While this congressional choice leaves the courts free to look to the law of torts and agency to define 'contractor,' it does not leave them free to abrogate the exemption that the Act provides.
15
Petitioners suggest that because 18 U.S.C. § 4042 imposes a duty on the Bureau of Prisons to 'provide for the safekeeping, care, and subsistence of all persons charged with . . . offenses against the United States . . .' the Nueces County employees who were discharging the Government's obligation by contract should be held to be employees of the Government for purposes of liability under the Act.7 This Court held in United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), that a breach of the duty imposed on the Government by 18 U.S.C. § 4042 was actionable under the Act. But the same public law that imposed this duty on the Government also authorized the Government to contract with state and local authorities to provide safekeeping and care:
16
'For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons.
17
'The rates to be paid for the care and custody of said persons shall take into consideration the character of the quarters furnished, sanitary conditions, and quality of subsistence and may be such as will permit and encourage the proper authorities to provide reasonably decent, sanitary, and healthful quarters and subsistence for such persons.' 18 U.S.C. § 4002 (emphasis added).
18
Thus, Congress not only authorized the Government to make contracts such as the one here in question, but rather clearly contemplated that the day-to-day operations of the contractor's facilities were to be in the hands of the contractor, with the Government's role limited to the payment of sufficiently high rates to induce the contractor to do a good job. The contract entered into between the Government and Nueces County reflects a similar division of responsibility. The county undertakes to provide custody in accordance with the Bureau of Prisons' 'rules and regulations governing the care and custody of persons committed' under the contract. These rules in turn specify standards of treatment for federal prisoners, including methods of discipline, rules for communicating with attorneys, visitation privileges, mail, medical services, and employment. But the agreement gives the United States no authority to physically supervise the conduct of the jail's employees; it reserves to the United States only 'the right to enter the institution . . . at reasonable hours for the purpose of inspecting the same and determining the conditions under which federal offenders are housed.'
19
The Court of Appeals' conclusion that the deputy marshal had no authority to control the activities of the sheriff's employees is supported by both the enabling statute and the contract actually executed between the parties. We agree with its resultant holding that the sheriff's employees were employees of a 'contractor with the United States,' and not, therefore, employees of a 'Federal agency.'
20
The judges of the Court of Appeals who dissented from the denial of rehearing en banc pointed out that petitioners alternatively contended in that court, as they do here, that even though the sheriffs' employees might not be 'employees' of a federal agency, they might nonetheless be 'acting on behalf of a federal agency in an official capacity . . ..' 463 F.2d, at 1342. If petitioners were successful in establishing this contention, of course, an employee of the Nueces County jail would be an 'employee of the government' under § 2671 even though he was not an 'employee' of a federal agency.
21
The legislative history to which we are referred by the parties sheds virtually no light on the congressional purpose in enacting the 'acting on behalf of' language of § 2671. The long gestation period of the Act in the committees of Congress has been recounted in Dalehite v. United States, 346 U.S. 15, 24—30, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), and this lengthy period may have something to do with the paucity of helpful committee reports on this point. One of the more immediate antecedents of the bill that Congress enacted contained identical 'acting on behalf of' language: 'and persons acting on behalf of a Federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.' H.R. 5373, 77th Cong., 2d Sess., § 101 (1942), quoted in Hearings on H.R. 5373 and H.R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 1 (1942). One of the appendices to the hearings on these bills compares the provisions of H.R. 6463, containing the 'acting on behalf of' language, with previous drafts, and states that "Employee of the Government' in the present bill is defined to include uncompensated or temporary officers or employees of the United States.' Hearings, supra, at 58. The committee's observation thus affords some support to the Government's contention that the language is designed to cover special situations such as the 'dollar-a-year' man who is in the service of the Government without pay, or an employee of another employer who is placed under direct supervision of a federal agency pursuant to contract or other arrangement.
22
The dissenting judges in the Court of Appeals expressed the view that 'when the Government decides that a particular individual should assume obligations and responsibilities virtually identical to those of a salaried Federal employee, there may very well be some persuasive basis for the suggestion that such an individual's breach of a specific statutory duty owed by the salaried employee to a specific class of persons should visit identical liability upon the United States.' 463 F.2d, at 1342 1343. But we are not persuaded that employees of a contractor with the Government, whose physical performance is not subject to governmental supervision, are to be treated as 'acting on behalf of' a federal agency simply because they are performing tasks that would otherwise be performed by salaried employees of the Government. If this were to be the law, the exclusion of contractors from the definition of 'Federal agency' in § 2671 would be virtually meaningless, since it would be a rare situation indeed in which an independent contractor with the Government would be performing tasks that would not otherwise be performed by salaried Government employees.8
23
While we therefore agree with the conclusion of the Court of Appeals that the Government was not liable for the negligence of the employees of Nueces County, we disagree with its implicit determination that such a conclusion ends the case. For the District Court imposed liability on the Government, not only for the negligent acts of employees of the Nueces County sheriff, but also for negligent acts of Deputy Marshal Bowers, who was concededly an employee of the Government. The District Court found that Bowers, knowing of the prisoner's suicidal tendencies, should have made 'specific arrangements . . . for constant surveillance of the prisoner,' and that his failure to do so was negligence. The Court of Appeals in that portion of its opinion quoted supra, at 525, stated that '(t)he deputy marshal, accordingly, violated no duty of safekeeping with respect to the deceased.' 459 F.2d, at 411. But that conclusion appears to us to follow from the court's discussion of the nature of the intergovernmental relationship and the status of the sheriff's employees rather than being a separate rejection of the finding of the District Court that Bowers himself was negligent. Since the Court of Appeals thus did not consider the distinct question regarding the negligence of Bowers, we believe that the parties' arguments on that question should be addressed in the first instance to the Court of Appeals.
24
We therefore vacate the judgment of the Court of Appeals and remand the case for consideration of the liability of the Government insofar as that liability may be based on the negligence of Deputy Marshal Bowers.
25
It is so ordered.
26
Vacated and remanded.
27
Mr. Justice STEWART and Mr. Justice MARSHALL join the opinion of the Court upon the understanding that, upon remand, the Court of Appeals' consideration of Bowers' negligence will not be limited to his alleged failure to make 'specific arrangements . . . for constant surveillance of the prisoner.'
1
'Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death 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).
2
The Federal Bureau of Prisons has statutory authority to contract with state prisons for the housing of federal prisoners:
'For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons.
'Such Federal prisoners shall be employed only in the manufacture of articles for, the production of supplies for, the construction of public works for, and the maintenance and care of the institutions of, the State or political subdivision in which they are imprisoned.
'The rates to be paid for the care and custody of said persons shall take into consideration the character of the quarters furnished, sanitary conditions, and quality of subsistence and may be such as will permit and encourage the proper authorities to provide reasonably decent, sanitary, and healthful quarters and subsistence for such persons.' 18 U.S.C. § 4002.
The contract with the Nueces County jail incorporates by reference the standard of care set forth in this statute.
3
There was testimony that Logue had twice before made suicide attempts.
4
There was testimony at trial that it normally takes about a week or two after a commitment order has been entered before a prisoner can be physically transferred to a mental institution. There was also testimony that this process can be expedited to obtain commitment as early as 24 hours after an order has been signed.
5
Restatement (Second) of Agency § 2 (1958):
'(1) A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
'(2) A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
'(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent.'
6
E.g., Great Western Drilling Co. v. Simmons, 157 Tex. 268, 302 S.W.2d 400 (1957).
7
This argument is also put in terms of a 'non-delegable duty' owed by the Government to a prisoner under 18 U.S.C. § 4042.
8
The two courts of appeals' cases relied upon by petitioners involved findings of control by the Government that are contrary to the determination of the Court of Appeals in this case. In Close v. United States, 130 U.S.App.D.C. 125, 397 F.2d 686 (1968), the court reversed a summary judgment in favor of the Government, observing that there was no reason to assume that the Attorney General was without power to supervise the District of Columbia's jailer. The court expressly noted that no contention was made that the District of Columbia jail was a 'contract' jail. Id., at 126, 397 F.2d, at 687. In Witt v. United States, 462 F.2d 1261 (CA2 1972), the court held that the supervising employee 'was certainly amenable to some degree of control by the Disciplinary Barracks,' id., at 1264, and that he was therefore 'acting on behalf of' the Government.
| 78
|
412 U.S. 441
93 S.Ct. 2230
37 L.Ed.2d 63
John W. VLANDIS, Director of Admissions, the University of Connecticut, Appellant,v.Margaret Marsh KLINE and Patricia Catapano.
No. 72—493.
Argued March 20, 1973.
Decided June 11, 1973.
Syllabus
Connecticut requires nonresidents enrolled in the state university system to pay tuition and other fees at higher rates than state residents and provides an irreversible and irrebuttable statutory presumption that because the legal address of a student, if married, was outside the State at the time of application for admission or, if single, was outside the State at some point during the preceding year, he remains a nonresident as long as he is a student in Connecticut. Appellees challenge that presumption, claiming that they have a constitutional right to controvert it by presenting evidence of bona fide residence in the State. The District Court upheld their claim. Held: The Due Process Clause of the Fourteenth Amendment does not permit Connecticut to deny an individual the opportunity to present evidence that he is a bona fide resident entitled to in-state rates, on the basis of a permanent and irrebuttable presumption of nonresidence, when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination. Pp. 446—454.
D.C., 346 F.Supp. 526, affirmed.
John G. Hill, Jr., Asst. Atty. Gen., Storrs, Conn., for appellant.
John A. Dziamba, Willimantic, Conn., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
Like many other States, Connecticut requires nonresidents of the State who are enrolled in the state university system to pay tuition and other fees at higher rates than residents of the State who are so enrolled. Conn.Gen.Stat.Rev. § 10—329b (Supp.1969), as amended by Public Act No. 5, § 126 (June Sess. 1971).1 The constitutional validity of that requirement is not at issue in the case before us. What is at issue here is Connecticut's statutory definition of residents and nonresidents for purposes of the above provision.
2
Section 126(a)(2) of Public Act No. 5, amending § 10—329b, provides that an unmarried student shall be classified as a nonresident, or 'out of state,' student if his 'legal address for any part of the one-year period immediately prior to his application for admission at a constituent unit of the state system of higher education was outside of Connecticut.' With respect to married students, § 126(a)(3) of the Act provides that such a student, if living with his spouse, shall be classified as 'out of state' if his 'legal address at the time of his application for admission to such a unit was outside of Connecticut.' These classifications are permanent and irrebuttable for the whole time that the student remains at the university since § 126(a)(5) of the Act commands that: 'The status of a student, as established at the time of his application for admission at a constituent unit of the state system of higher education under the provisions of this section, shall be his status for the entire period of his attendance at such constituent unit.' The present case concerns the constitutional validity of this conclusive and unchangeable presumption of nonresident status from the fact that, at the time of application for admission, the student, if married, was then living outside of Connecticut, or, if single, had lived outside the State at some point during the preceding year.
3
One appellee, Margaret Marsh Kline, is an undergraduate student at the University of Connecticut. In May of 1971, while attending college in California, she became engaged to Peter Kline, a lifelong Connecticut resident. Because the Klines wished to reside in Connecticut after their marriage, Mrs. Kline applied to the University of Connecticut from California. In late May, she was accepted and informed by the University that she would be considered an in-state student. On June 26, 1971, the appellee and Peter Kline were married in California, and soon thereafter took up residence in Storrs, Connecticut, where they have established a permanent home. Mrs. Kline has a Connecticut driver's license, her car is registered in Connecticut, and she is registered as a Connecticut voter. In July 1971, Public Act No. 5 went into effect. Accordingly, the appellant, Director of Admissions at the University of Connecticut, irreversibly classified Mrs. Kline as an out-of-state student, pursuant to § 126(a)(3) of that Act. As a consequence, she was required to pay $150 tuition and a $200 nonresident fee for the first semester, whereas a student classified as a Connecticut resident paid no tuition; and upon registration for the second semester, she was required to pay $425 tuition plus another $200 nonresident fee, while a student classified as a Connecticut resident paid only $175 tuition.2
4
The other appellee, Patricia Catapano, is an unmarried graduate student at the same University. She applied for admission from Ohio in January 1971, and was accepted in February of that year. In August 1971, she moved her residence from Ohio to Connecticut and registered as a full-time student at the University. Like Mrs. Kline, she has a Connecticut driver's license, her car is registered in Connecticut, and she is registered as a Connecticut voter. Pursuant to § 126(a)(2) of the 1971 Act, the appellant classified her permanently as an out-of-state student. Consequently, she, too, was required to pay $150 tuition and a $200 nonresident fee for her first semester, and $425 tuition plus a $200 nonresident fee for her second semester.
5
Appellees then brought suit in the District Court pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, contending that they were bona fide residents of Connecticut, and that § 126 of Public Act No. 5, under which they were classified as nonresidents for purposes of their tuition and fees, infringed their rights to due process of law and equal protection of the laws, guaranteed by the Fourteenth Amendment to the Constitution.3 After the convening of a three-judge District Court, that court unanimously held §§ 126(a)(2), (a)(3), and (a)(5) unconstitutional, as violative of the Fourteenth Amendment, and enjoined the appellant from enforcing those sections. D.C., 346 F.Supp. 526 (1972). The court also found that before the commencement of the spring semester in 1972, each appellee was a bona fide resident of Connecticut; and it accordingly ordered that the appellant refund to each of them the amount of tuition and fees paid in excess of the amount paid by resident students for that semester. On December 4, 1972, we noted probable jurisdiction of this appeal. 409 U.S. 1036, 93 S.Ct. 521, 34 L.Ed.2d 485.
6
The appellees do not challenge, nor did the District Court invalidate, the option of the State to classify students as resident and nonresident students, thereby obligation nonresident students to pay higher tuition and fees than do bona fide residents. The State's right to make such a classification is unquestioned here. Rather, the appellees attack Connecticut's irreversible and irrebuttable statutory presumption that because a student's legal address was outside the State at the time of his application for admission or at some point during the preceding year, he remains a non-resident for as long as he is a student there. This conclusive presumption, they say, is invalid in that it allows the State to classify as 'out-of-state students' those who are, in fact, bona fide residents of the State. The appellees claim that they have a constitutional right to controvert that presumption of nonresidence by presenting evidence that they are bona fide residents of Connecticut. The District Court agreed: 'Assuming that it is permissible for the state to impose a heavier burden of tuition and fees on non-resident than on resident students, the state may not classify as 'out of state students' those who do not belong in that class.' 346 F.Supp., at 528. We affirm the judgment of the District Court.
7
Statutes creating permanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments. In Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932), the Court was faced with a constitutional challenge to a federal statute that created a conclusive presumption that gifts made within two years prior to the donor's death were made in contemplation of death, thus requiring payment by his estate of a higher tax. In holding that this irrefutable assumption was so arbitrary and unreasonable as to deprive the taxpayer of his property without due process of law, the Court stated that it had 'held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment.' Id., at 329, 52 S.Ct., at 362. See, e.g., Schlesinger v. Wisconsin, 270 U.S. 230, 46 S.Ct. 260, 70 L.Ed. 557 (1926); Hoeper v. Tax Comm'n, 284 U.S. 206, 52 S.Ct. 120, 76 L.Ed. 248 (1931). See also Tot v. United States, 319 U.S. 463, 468—469, 63 S.Ct. 1241, 1245—1246, 87 L.Ed. 1519 (1943); Leary v. United States, 395 U.S. 6, 29—53, 89 S.Ct. 1532, 1544—1557, 23 L.Ed.2d 57 (1969). Cf. Turner v. United States, 396 U.S. 398, 418—419, 90 S.Ct. 642, 653—654, 24 L.Ed.2d 610 (1970).
8
The more recent case of Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), involved a Georgia statute which provided that if an uninsured motorist was involved in an accident and could not post security for the amount of damages claimed, his driver's license must be suspended without any hearing on the question of fault or responsibility. The Court held that since the State purported to be concerned with fault in supending a driver's license, it could not, consistent with procedural due process, conclusively presume fault from the fact that the uninsured motorist was involved in an accident, and could not, therefore, suspend his driver's license without a hearing on that crucial factor.
9
Likewise, in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court struck down, as violative of the Due Process Clause of the Fourteenth Amendment, Illinois' irrebuttable statutory presumption that all unmarried fathers are unqualified to raise their children. Because of that presumption, the statute required the State, upon the death of the mother, to take custody of all such illegitimate children, without providing any hearing on the father's parental fitness. It may be, the Court said, 'that most unmarried fathers are unsuitable and neglectful parents. . . . But all unmarried fathers are not in this category; some are wholly suited to have custody of their children.' Id., at 654, 92 S.Ct., at 1214. Hence, the Court held that the State could not conclusively presume that any individual unmarried father was unfit to raise his children; rather, it was required by the Due Process Clause to provide a hearing on that issue. According to the Court, Illinois '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 . . ..' Id., at 658, 92 S.Ct., at 1216.4
10
The same considerations obtain here. It may be that most applicants to Connecticut's university system who apply from outside the State or within a year of living out of State have no real intention of becoming Connecticut residents and will never do so. But it is clear that not all of the applicants from out of State inevitably fall in this category. Indeed, in the present case, both appellees possess many of the indicia of Connecticut residency, such as year-round Connecticut homes, Connecticut drivers' licenses, car registrations, voter registrations, etc.; and both were found by the District Court to have become bona fide residents of Connecticut before the 1972 spring semester. Yet, under the State's statutory scheme, neither was permitted any opportunity to demonstrate the bona fides of her Connecticut residency for tuition purposes, and neither will ever have such an opportunity in the future so long as she remains a student.
11
The State proffers three reasons to justify that permanent irrebuttable presumption. The first is that the State has a valid interest in equalizing the cost of public higher education between Connecticut residents and nonresidents, and that by freezing a student's residential status as of the time he applies, the State ensures that its bona fide in-state students will receive their full subsidy. The State's objective of cost equalization between bona fide residents and nonresidents may well be legitimate, but basing the bona fides of residency solely on where a student lived when he applied for admission to the University is using a criterion wholly unrelated to that objective. As is evident from the situation of the appellees, a student may be a bona fide resident of Connecticut even though he applied to the University from out of State. Thus, Connecticut's conclusive presumption of nonresidence, instead of ensuring that only its bona fide residents receive their full subsidy, ensures that certain of its bona fide residents, such as the appellees, do not receive their full subsidy, and can never do so while they remain students.
12
Second, the State argues that even if a student who applied to the University from out of State may at some point become a bona fide resident of Connecticut, the State can nonetheless reasonably decide to favor with the lower rates only its established residents, whose past tax contributions to the State have been higher. According to the State, the fact that established residents or their parents have supported the State in the past justifies the conclusion that applicants from out of State—who are presumed not to be such established residents—may be denied the lower rates, even if they have become bona fide residents.
13
Connecticut's statutory scheme, however, makes no distinction on its face between established residents and new residents. Rather, through § 122, the State purports to distinguish, for tuition purposes, between residents and nonresidents by granting the lower rates to the former and denying them to the latter.5 In these circumstances, the State cannot now seek to justify its classification of certain bona fide residents as nonresidents, on the basis that their Connecticut residency is 'new.'
14
Moreover, § 126 would not always operate to effectuate the State's asserted interest. For it is not at all clear that the conclusive presumption required by that section prevents only 'new' residents, rather than 'established' residents, from obtaining the lower tuition rates. For example, a student whose parents were life-long residents of Connecticut, but who went to college at Harvard, established a legal address there, and applied to the University of Connecticut's graduate school during his senior year, would be permanently classified as an 'out of state student,' despite his family's status as 'established' residents of Connecticut. Similarly, the appellee Kline may herself be a 'new' resident of Connecticut; but her husband is an established, lifelong resident, whose past tax contribution to the State, under the State's theory, should entitle his family to the lower rates. Conversely, the State makes no attempt to ensure that those students to whom it does grant in-state status are 'established' residents of Connecticut. Any married person, for instance, who moves to Connecticut before applying to the University would be considered a Connecticut resident, even if he has lived there only one day. Thus, even in terms of the State's own asserted interest in favoring established residents over new residents, the provisions of § 126 are so arbitrary as to constitute a denial of due process of law.6
15
The third ground advanced to justify § 126 is that it provides a degree of administrative certainty. The State points to its interest in preventing out-of-state students from coming to Connecticut solely to obtain an education and then claiming Connecticut residence in order to secure the lower tuition and fees. The irrebuttable presumption, the State contends, makes it easier to separate out students who come to the State solely for its educational facilities from true Connecticut residents, by eliminating the need for an individual determination of the bona fides of a person who lived out of State at the time of his application. Such an individual determination, it is said, would not only be an expensive administrative burden, but would also be very difficult to make, since it is hard to evaluate when bona fide residency exists. Without the conclusive presumption, the State argues, it would be almost impossible to prevent out-of-state students from claiming a Connecticut residence merely to obtain the lower rates.
16
In Stanley v. Illinois, supra, however, the Court stated that 'the Constitution recognizes higher values than speed and efficiency.' 405 U.S., at 656, 92 S.Ct., at 1215. The State's interest in administrative ease and certainty cannot, in and of itself, save the conclusive presumption from invalidity under the Due Process Clause where there are other reasonable and practicable means of establishing the pertinent facts on which the State's objective is premised. In the situation before us, reasonable alternative means for determining bona fide residence are available. Indeed, one such method has already been adopted by Connecticut; after § 126 was invalidated by the District Court, the State established reasonable criteria for evaluating bona fide residence for purposes of tuition and fees at its university system.7 These criteria, while perhaps more burdensome to apply than an irrebuttable presumption, are certainly sufficient to prevent abuse of the lower, in-state rates by students who come to Connecticut solely to obtain an education.8
17
In sum, since Connecticut purports to be concerned with residency in allocating the rates for tuition and fees in its university system, it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence, when that presumption is not necessarily or universally true, in fact, and when the State has reasonable alternative means of making the crucial determination. Rather, standards of due process require that the State allow such an individual the opportunity to present evidence showing that he is a bona fide resident entitled to the in-state rates. Since § 126 precluded the appellees from ever rebutting the presumption that they were nonresidents of Connecticut, that statute operated to deprive them of a significant amount of their money without due process of law.
18
We are aware, of course, of the special problems involved in determining the bona fide residence of college students who come from out of State to attend that State's public university. Our holding today should in no wise be taken to mean that Connecticut must classify the students in its university system as residents, for purposes of tuition and fees, just because they go to school there. Nor should our decision be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement, which can be met while in student status.9 We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis.
19
We hold only that a permanent irrebuttable presumption of nonresidence—the means adopted by Connecticut to preserve that legitimate interest—is violative of the Due Process Clause, because it provides no opportunity for students who applied from out of State to demonstrate that they have become bona fide Connecticut residents. The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates. Indeed, as stated above, such criteria exist; and since § 126 was invalidated, Connecticut, through an official opinion of its Attorney General, has adopted one such reasonable standard for determining the residential status of a student. The Attorney General's opinion states:
20
'In reviewing a claim of in-state status, the issue becomes essentially one of domicile. In general, the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning. This general statement, however, is difficult of application. Each individual case must be decided on its own particular facts. In reviewing a claim, relevant criteria include year-round residence, voter registration, place of filing tax returns, property ownership, driver's license, car registration, marital status, vacation employment, etc.'10
21
Because we hold that the permanent irrebuttable presumption of nonresidence created by subsections (a)(2), (a)(3), and (a)(5) of Conn.Gen.Stat.Rev. § 10—329b (Supp.1969), as amended by Public Act No. 5, § 126 (June Sess. 1971), violates the Due Process Clause of the Fourteenth Amendment, the judgment of the District Court is affirmed. It is so ordered.
22
Judgment reversed.
23
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring.
24
I join the opinion of the Court except insofar as it suggests that a State may impose a one-year residency requirement as a prerequisite to qualifying for instate tuition benefits. See ante, at 452 and n. 9. That question is not presented by this case since here we deal with a permanent, irrebuttable presumption of nonresidency based on the fact that a student was a nonresident at the time he applied for admission to the state university system. I recognize that in Starns v. Malkerson, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), we summarily affirmed a district court decision sustaining a one-year residency requirement for receipt of in-state tuition benefits. But I now have serious question as to the validity of that summary decision in light of well-established principles, under the Equal Protection Clause of the Fourteenth Amendment, which limit the States' ability to set residency requirements for the receipt of rights and benefits bestowed on bona fide state residents. See Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Because the Court finds sufficient basis in the Due Process Clause of the Fourteenth Amendment to dispose of the constitutionality of the Connecticut statute here at issue, it has no occasion to address the serious equal protection questions raised by this and other tuition residency laws. In the absence of full consideration of those equal protection questions, I would leave the validity of a one-year residence requirement for a future case in which the issue is squarely presented.
25
In addition, I cannot agree with my Brother REHNQUIST'S assertion in dissent that the Court's opinion today represents a return to the doctrine of substantive due process. This case involves only the validity of the conclusive presumption of nonresidency erected by the State, and, as such, concerns nothing more than the procedures by which the State determines whether or not a person is a resident for tuition purposes.
26
Mr. Justice WHITE, concurring in the judgment.
27
In Starns v. Malkerson, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), a regulation issued by the Board of Regents provided that no student could qualify for the lower, in-state tuition to the University of Minnesota until he had been a bona fide domiciliary of the State for one year. The District Court upheld the law, 326 F.Supp. 234 (Minn.1970), and we affirmed summarily, although the effect of the Regents' regulation was to prevent an admitted Minnesota domiciliary from being treated as such for a period of one year. I thought the case warranted plenary treatment, but I did not then, nor do I now, disagree with the judgment. Because I have difficulty distinguishing, on due process grounds, whether deemed procedural or substantive or whether put in terms of conclusive presumptions, between the Minnesota one-year requirement and the Connecticut law that, for tuition purposes, does not permit Connecticut residence to be acquired while attending Connecticut schools, I cannot join the Court's opinion.
28
I concur in the judgment, however, because Connecticut, although it may legally discriminate between its residents and nonresidents for purposes of tuition, here invidiously discriminates among at least three classes of bona fide Connecticut residents. First, there are those unmarried students who have resided in Connecticut one year prior to application or who later reside in Connecticut for a year without going to school. They pay the substantially lower in-state tuition. Second, there are the married students who have a legal address in Connecticut at the time of application. They also pay the lower tuition, whether or not they have resided in Connecticut for a year prior to application. Third, there are the unmarried students whose legal address has been outside Connecticut at some time during the year prior to application but who later become legal residents of Connecticut, before or after application or before or after matriculation, and remain such for at least one year. These students, although year-long residents, must continue to pay out-of-state tuition for as long as they are in school.
29
This discrimination between classes of bona fide residents of the State is sought to be justified, as I understand it, on the sole ground that too few students from out of State actually become Connecticut residents to require the State to sort out this small number by investigating the inevitably larger number of residency claims which would be submitted if the rule were otherwise but which for the most part would be bogus.
30
In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), under the applicable state law a driver's license could not be revoked without proof of fault, but, upon the occurrence of an accident, the State automatically suspended the license without showing even probable fault and without an opportunity to prove nonfault. The State neither argued nor claimed that there was a more likely than not inference of fault from the mere event of an accident.
31
In Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), the State refused those in active military service the opportunity to prove residence in the State and thus their eligibility to vote. The Court struck down this restriction. The State's interest in avoiding the task of verifying claims of residency was insufficiently weighty to warrant interference with the right to vote of the military personnel who had actually become domiciled in the State.
32
In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1209, 31 L.Ed.2d 551 (1972), the state standard for separating child and parent was unfitness of parent. Accepting the State's argument that most unwed fathers are unfit, we nevertheless required the State to give those fathers a hearing on their fitness prior to depriving them of the custody of their children. It was administratively convenient for the State to presume unfitness and so avoid hearings to identify the perhaps smaller number of fit, unwed fathers; but this justification was found insufficient in view of the strong interest of a natural parent in the custody of his child, an interest that we thought came to this Court "with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." Id., at 651, 92 S.Ct., at 1212, quoting from kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring). The unwed father's interest was at least cognizable and substantial enough to prohibit the State, in the name of administrative convenience, from denying the unwed father a hearing on parental fitness prior to declaring his child a ward of the State. The same considerations led us to conclude that the unwed father was denied equal protection of the laws.
33
From these and other cases, such as Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), it is clear that we employ not just one, or two, but, as my Brother Marshall has so ably demonstrated, a 'spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause.' San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 98—99, 93 S.Ct. 1278, 1330, 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting). Sometimes we just say the claim is 'invidious ' and let the matter rest there, as Mr. Justice Stewart did, for example, in concurring in the judgment in Frontiero. But at other times we sustain the discrimination, if it is justifiable on any conceivable rational basis, or strike it down, unless sustained by some compelling interest of the State, as, for example, when a State imposes a discrimination that burdens or penalizes the exercise of a constitutional right. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). I am unconfortable with the dichotomy, for it must now be obvious, or has been all along, that, as the Court's assessment of the weight and value of the individual interest escalates, the less likely it is that mere administrative convenience and avoidance of hearings or investigations will be sufficient to justify what otherwise would appear to be irrational discriminations.
34
Here, it is enough for me that the interest involved is that of obtaining a higher education, that the difference between in-state and out-of-state tuition is substantial, and that the State, without sufficient justification, imposes a one-year residency requirement on some students but not on others, and also refuses, no matter what the circumstances, to permit the requirement to be satisfied through bona fide residence while in school. It is plain enough that the State has only the most attenuated interest in terms of administrative convenience in maintaining this bizarre pattern of discrimination among those who must or must not pay a substantial tuition to the University. The discrimination imposed by the State is invidious and violates the Equal Protection Clause.
35
Mr. Chief Justice BURGER, with whom Mr. Justice REHNQUIST joins, dissenting.
36
I find myself unable to join the action taken today because the Court in this case strays from what seem to me sound and established constitutional principles in order to reach what it considers a just result in a particular case; this gives meaning to the ancient warning that 'hard cases make bad law.' The Court permits this 'hard' case to make some very dubious law.
37
A state university today is an establishment with capital costs of many millions of dollars of investment. Its annual operating costs likewise may run into the millions. Parents and other taxpayers willingly carry this heavy burden because they believe in the values of higher education. It is not narrow provincialism for the State to think that each State should carry its own educational burdens. Until we redefine our system of government—as we are free to do by constitutionally prescribed means—the States may restrict subsidized education to their own residents. This much the Court recognizes and it likewise recognizes that the statutory scheme under review reasonably tends to support that end.
38
Commendably, the Court has tried to cast the opinion in the narrowest possible terms, but it seems nonetheless to accomplish a transferrence of the elusive and arbitrary 'compelling state interest' concept into the orbit of the Due Process Clause. The Court categorizes the Connecticut statutory classification as a 'permanent and irrebuttable presumption'; it explains that this 'presumption' leads to unseemly results in this and other isolated cases; and it relies upon the State's stopgap guidelines for determining bona fide residency to demonstrate that 'the State has reasonable alternative means of making the crucial determination.' This is the language of strict scrutiny. We ought not try to correct 'unseemly results' of state statutes by resorting to constitutional adjudication.
39
Distressingly, the Court applies 'strict scrutiny' and invalidates Connecticut's statutory scheme without explaining why the statute impairs a genuine constitutional interest truly worthy of the standard of close judicial scrutiny. The real issue here is not whether holes can be picked in the Connecticut scheme; of course, that is readily done with this 'bad' statute. Whether we deal with statutes of Connecticut or of Congress, we can find flaws, gaps, and hard and unseemly results at times. But our function in constitutional adjudication is not to see whether there is some conceivably 'less restrictive' alternative to the statutory classifications under review. The Court's task is to explain why the 'strict scrutiny' test, previously confined to the areas, should now in practical effect be read into the Due Process Clause. The drift of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), on which the Court relies heavily, was to apply a similar test, but at least there the Court essayed to explain that the rights of fatherhood and family were regarded as "essential" and "basic civil rights of man," id., at 651, 92 S.Ct., at 1212, and to provide an analytic basis for the result reached. To the same effect was Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), where the Court noted that suspension of a driver's license might impair the pursuit of a livelihood, thereby infringing 'important interests of the licensees.' Id., at 539, 91 S.Ct., at 1589. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), an equal protection case, involved deprivation of the right to vote, by the Court's, and Mr. Justice Stewart's own description, a matter 'close to the core of our constitutional system.' Id., at 96, 85 S.Ct., at 780.*
40
There will be, I fear, some ground for a belief that the Court now engrafts the 'close judicial scrutiny' test onto the Due Process Clause whenever we deal with something like 'permanent irrebuttable presumptions.' But literally thousands of state statutes create classifications permanent in duration, which are less than perfect, as all legislative classifications are, and might to improved on by individualized determinations so as to avoid the untoward results produced here due to the very unusual facts of this case. Both the anomaly present here and the arguable alternatives to it do not differ from those present when, for example, a State provides that a person may not be licensed to practice medicine or law unless he or she is a graduate of an accredited professional graduate school; a perfectly capable practitioner may as a consequence be barred 'permanently and irrebuttably' from pursuing his calling, without ever having an opportunity to prove his personal skills. The doctrinal difficulties of the Equal Protection Clause are indeed trying, but today the Court makes an uncharted drift toward complications for the Due Process Clause comparable in scope and seriousness with those we are encountering in the equal protection area. Can this be what we are headed for?
41
The pressure of today's holding may well push the States to enact reciprocal statutes to the end that Connecticut will undertake to admit as 'resident' students only those students from other States that give the same status to Connecticut residents. When a State allocates a large share of its resources to create and maintain a university whose quality is found attractive to many students from other States, its very success and stature may well operate to cripple it because then, not unnaturally, it will be flooded with applications from students from afar. Perhaps on less 'high ground' students who favor winter sports will flock to the Northeast and Northwest and the sun worshipers will head South. Is the Court willing to say that Connecticut may not grant partial scholarships to persons who have attended a Connecticut secondary school for let us say—at least one full school year and then set nonresident tuition as it does now? We should not be surprised at the natural response of States which, having placed high value on universities, having developed great institutions at large cost, believe that other States should do the same and therefore seek ways to keep the institution in being for its own citizens. I do not suggest these things ought to be done or that they are desirable; rather, I submit, when we examine a statute of a State we should lay aside preferences for or against what the State does in a few particular or isolated cases and look only to what the Constitution forbids a State to do, so as to avoid putting pressure on the States to engage in legislative devices to escape from the hobbles we place on them on matters of purely state concern.
42
The urge to cure every disadvantage human beings can experience exerts an inexorable pressure to expand judicial doctrine. But that urge should not move the Court to erect standards that are unrealistic and indeed unexplained for evaluating the constitutionality of state statutes.
43
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
44
The Court's opinion relegates to the limbo of unconstitutionality a Connecticut law that requires higher tuition from those who come from out of State to attend its state universities than from those who come from within the State. The opinion accomplishes this result by a highly theoretical analysis that relies heavily on notions of substantive due process that have been authoritatively repudiated by subsequent decisions of the Court. Believing as I do that the Connecticut statutory scheme is a constitutionally permissible means of dealing with an increasingly acute problem facing state systems of higher education, I dissent.
45
This country's system of higher education presently faces a serious crisis, produced in part by escalating costs of furnishing educational services and in part by sharply increased demands for those services. Because state systems have available to them state financial resources that are not available to private institutions, they may find it relatively easier to grapple with the financial aspect of this crisis. But for this very reason, States have generally felt that state resources should be devoted, at least in large part, to the education of children of the State's own residents, and that those who come from elsewhere to attend a state university should have to make a more substantial contribution toward the full costs of the education they would receive than the all but nominal tuition required of those who come from within the State.
46
One way to accomplish such a differentiation would be to make the tuition differential turn on whether or not the student was a 'resident' or 'nonresident' of the State at the time tuition is paid. The Court, at least by implication, concedes that such a differentiation would violate no command of the Constitution, but even a capsule examination of how such a plan would operate indicates why it did not commend itself to the Connecticut Legislature. The very act of enrolling in a Connecticut university with the intention of completing a program of studies leading to a degree necessitates the physical presence of the student in the State of Connecticut. Additional indicia of residency, by which the Court apparently sets great store—obtaining a Connecticut motor vehicle registration or driver's license, registering to vote in Connecticut—impose no significant burden on the out-of-state student in comparison with the thousands of dollars he will save in tuition and fees during the pursuit of a four-year course in undergraduate studies. Thus, what the Court concedes to the States in the way of distinguishing between resident and nonresident students, while perhaps a valuable bit of authority in issuing fishing and hunting licenses, is all but useless in making students who come from out of State pay even a portion of their fair share of the cost of the education that they seek to receive in Connecticut state universities.
47
The system to which Connecticut has turned is one that limits the virtually complete subsidy that is afforded to those who pay in-state tuition to those who resided in Connecticut at the time of applying for admission, and whose residence in Connecticut did not result from their desire to attend the state universities. Some such plan must be devised by any State that wishes to differentiate between those who have paid taxes to the State over a period of years in order to support the university, and those who have simply come to the State in order to attend the university. Since institutions of higher learning are not built in a year or in a decade, such a distinction strikes me as entirely rational, and I do not understand the Court to hold otherwise.
48
Understandably, any such general principle will have a number of specific applications, and just as understandably a capable lawyer will be able to focus on one or more of these specific applications that appear to diverge from the principle that the State is attempting to enforce. The Court's opinion deals with the situation of the particular litigants here involved, doubtless chosen with an eye to illustrating the Connecticut system at its worst, and with still other hypothetical examples upon which it expatiates during the course of its opinion. But the fact that a generally valid rule may have rough edges around its perimeter does not make it unconstitutional under the Due Process Clause of the Fourteenth Amendment:
49
'(T)he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.' Williamson v. Lee Optical Co., 348 U.S. 483, 487—488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955).
50
Throughout the Court's opinion are found references to the 'irrebuttable' presumption as to residency created by the Connecticut statutes. But a fair reading of these laws indicates that Connecticut has not chosen to define eligibility for a state-subsidized education in terms of 'residency' at the moment that the applicant seeks admission to the university system, but instead has insisted that the applicant have some prior connection with the State of Connecticut independent of the desire to attend a state-supported university. Thus, it would not satisfy Connecticut's goals in seeking to subsidize the education of Connecticut's young people in Connecticut state universities to impose a classic residency test as of the moment of entry into the system of higher education. All students, and not only those with substantial Connecticut connections, will be present in Connecticut on this date, and those who have been astute enough to consult counsel will have obtained Connecticut drivers' licenses, registered their cars in Connecticut, and registered to vote in Connecticut.
51
Meaningful differentiation between children of families who have supported the state educational system by payment of taxes to the State of Connecticut, and children from families who have not done this, would be impossible if the test were residency as of the date of admission, or the date on which tuition is due, at least as the Court enunciates such a test. But this is not what Connecticut tried to do, and, as I read the Court's opinion Connecticut is not limited to the imposition of such an easily circumvented test. For the Court reaffirms Starns v. Malkerson, 326 F.Supp. 234 (Minn.1970), aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), in which the State of Minnesota had by regulation provided that no student could qualify as a resident for tuition purposes unless he had been a bona fide domiciliary of the State for at least a year immediately prior thereto. A regulation such as Minnesota's enables the State partially to maintain the distinction that Connecticut has sought to protect here. The Court indicates that the critical distinction between the Minnesota regulation and the Connecticut statute is that the Minnesota regulation operated to fix nonresidency only for the first year of attendance at the university. But this supposed distinction merely highlights the error in the Court's approach to this entire problem. Minnesota was no more concerned during the first year than is Connecticut with 'residency' as that term is used in other legal contexts. One who had his vehicle licensed in Minnesota, obtained a Minnesota driver's license, and registered to vote in Minnesota could make the same attack on the 'irrebuttable' presumption of residency involved in Starns as these appellees do on the Connecticut statute. The Court's response is that while Minnesota's fixing of residency as of a date prior to application endured for only one year, Connecticut's endures for four years. This is admittedly a factual difference, but one may read the Court's opinion in vain to ascertain why it is a difference of constitutional significance.
52
The majority's reliance on cases such as Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932), harks back to a day when the principles of substantive due process had reached their zenith in this Court. Later and sounder cases thoroughly repudiated these principles in larger part. Ten years ago, the Court reviewed these doctrines in Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963), and made the following observation:
53
'The doctrine that prevailed in lockner (Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937), Coppage (Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441); Adkins (Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785), Burns (Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813), and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. As this Court stated in a unanimous opinion in 1941, 'We are not concerned . . . with the wisdom, need, or appropriateness of the legislation."
54
The Court's highly abstract and theoretical analysis of this practical problem leads to a conclusion that is contrary to the teaching of Ferguson, supra.
55
The typical 18-year-old entering college as a freshman, doubtless typifying the largest group of entering students in Connecticut as elsewhere, has in most cases made little or no contribution by way of tax payment to the cost of his public higher education whether it be in Connecticut or elsewhere. More likely it is his parents, themselves long past college age, who have supported the state universities over a period of years with the thought that they would eventually realize some return from this involuntary investment in the form of in-state tuition for their own children who sought to attend a state university. The State of Connecticut has sought to allow this hope to be realized through the distinction that it has made between those who are to pay nominal tuition and those who are to pay the more substantial out-of-state tuition. To the extent that today's decision requires students with no previous connection with the State of Connecticut to be admitted to that State's university system as in-state students, upon obtaining a driver's license and registering to vote, it means that longtime Connecticut residents will not only continue to support the state university system, but that they will be required to support it in increased measure in order to help subsidize the education of nonresidents. The Court's invalidation of the Connecticut plan is quite inconsistent with doctrines of substantive due process that have obtained in this Court for at least a decade, and to which I would continue to adhere.
1
Section 122 of that Action provides that 'the board of trustees of The University of Connecticut shall fix fees for tuition of not less than three hundred fifty dollars for residents of this state and not less than eight hundred fifty dollars for nonresidents . . ..' Pursuant to this statute, the University promulgated regulations fixing the tuition per semester as follows:
Fall semester Spring semester
In state student None $175.00
Out-of-state student $150.00 $425.00
In addition, out-of-state students must pay a $200 nonresident fee per semester.
2
See n. 1, supra.
3
While the case was pending in the District Court, the Connecticut Legislature passed a bill relating to tuition payments by nonresidents, House Bill No. 5302, which would have repealed the particular portions of the statute that were under constitutional attack. On May 18, 1972, however, the Governor of Connecticut vetoed that bill.
4
Moreover, in Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), the Court held that a permanent irrebuttable presumption of nonresidence violated the Equal Protection Clause of the Fourteenth Amendment. That case involved a provision of the Texas Constitution which prohibited any member of the Armed Forces who entered the service as a resident of another State and then moved his home to Texas during the course of his military duty, from ever satisfying the residence requirement for voting in Texas elections, so long as he remained a member of the Armed Forces. The effect of that provision was to create a conclusive presumption that all servicemen who moved to Texas during their military service, even if they became bona fide residents of Texas, nonetheless remained nonresidents for purposes of voting. The Court held that '(b)y forbidding a soldier ever to controvert the presumption of nonresidence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment.' Id., at 96, 85 S.Ct., at 780. See also Dunn v. Blumstein, 405 U.S. 330, 349—352, 92 S.Ct. 995, 1006—1008, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
5
See n. 1, supra.
6
But even if we accepted the State's argument that its statutory scheme operates to apportion tuition rates on the basis of old and new residency, that justification itself would give rise to grave problems under the Equal Protection Clause of the Fourteenth Amendment. For in Shapiro v. Thompson, supra, the Court rejected the contention that a challenged classification could be sustained as an attempt to distinguish between old and new residents on the basis of the contribution they have made to the community through past payment of taxes. That reasoning, the Court stated, 'would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services.' 394 U.S., at 632—633, 89 S.Ct., at 1330. Cf. Carrington v. Rash, 380 U.S., at 96, 85 S.Ct., at 780. Dunn v. Blumstein, 405 U.S., at 354, 92 S.Ct., at 1009.
7
See infra, at 454.
8
Cf. Carrington v. Rash, supra, 380 U.S., at 95—96, 85 S.Ct., at 779—780; Dunn v. Blumstein, supra, 405 U.S., at 349—352, 92 S.Ct., at 1006—1008; Shapiro v. Thompson, supra, 394 U.S., at 636, 89 S.Ct., at 1332.
9
In Starns v. Malkerson, 326 F.Supp. 234 (Minn.1970), the District Court upheld a regulation of the University of Minnesota
providing that no student could qualify as a resident for tuition purposes unless he had been a bona fide domiciliary of the State for at least a year immediately prior thereto. This Court affirmed summarily. 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971). Minnesota's one-year durational residency requirement, however, differed in an important respect from the permanent irrebuttable presumption at issue in the present case. Under the regulation involved in Starns, a student who applied to the University from out of State could rebut the presumption of non-residency, after having lived in the State for one year, by presenting sufficient other evidence to show bona fide domicile within Minnesota. In other words, residence within the State for one year, whether or not in student status, was merely one element which Minnesota required to demonstrate bona fide domicile. By contrast, the Connecticut statute prevents a student who applied to the University from out of State, or within a year of living out of State, from ever rebutting the presumption of nonresidence during the entire time that he remains a student, no matter how long he has been a bona fide resident of the State for other purposes. Under Minnesota's durational residency requirement, a student could qualify for in-state rates by living within the State for a year in student status; whereas under Connecticut's scheme, a person who applied from out of State can never so qualify so long as he remains in student status. See also Kirk v. Board of Regents of Univ. of California, 273 Cal.App.2d 430, 78 Cal.Rptr. 260, (1969), appeal dismissed, 396 U.S. 554, 90 S.Ct. 754, 24 L.Ed.2d 747 (1970).
10
Opinion of the Attorney General of the State of Connecticut Regarding Non-Resident Tuition, Sept. 6, 1972 (un-reported).
*
Implicit in my dissenting vote, of course, is my disagreement with Mr. Justice WHITE'S suggestion that the 'weight and value' of the appellees' interest in obtaining a higher education require us to pay something less than the usual deference to the judgment of the Connecticut Legislature. If appellees' chances of securing higher education were truly in jeopardy as a result of the tuition differential at issue here, there would at least be an arguable basis for special concern, though for me the San Antonio case would provide a serious obstacle to any departure from the traditional 'rational basis' test. In this case, there is, in any event, no allegation by either appellee that the higher out-of-state tuition charge does, will, or even may deprive her of the opportunity to attend the University of Connecticut. Thus, try as I may, I find it impossible to understand why the interest of appellees at issue here amounts to any more or any less than the number of dollars they are required to pay in excess of Connecticut's in-state tuition rate. That amount may be 'substantial,' but the Court has never suggested that financial impact, per se, requires abandonment of the 'rational basis' test of equal protection review as Mr. Justice WHITE suggests. Indeed, I had always thought that a simple financial deprivation was the classic case for judicial deference to legislative choices.
| 34
|
412 U.S. 481
93 S.Ct. 2245
37 L.Ed.2d 92
Raymond MATTZ, Petitioner,v.G. Raymond ARNETT, Etc.
No. 71—1182.
Argued March 27 and 28, 1973.
Decided June 11, 1973.
Syllabus
Petitioner, a Yurok, or Klamath River, Indian, intervened in a forfeiture proceeding, seeking the return of five gill nets confiscated by a California game warden. He alleged that the nets were seized in Indian country, within the meaning of 18 U.S.C. § 1151, and that the state statutes prohibiting their use did not apply to him. The state trial court found that the Klamath River Reservation in 1892 'for all practical purposes almost immediately lost its identity,' and concluded that the area was not Indian country. The state Court of Appeal affirmed, holding that since the area had been opened for unrestricted homestead entry in 1892, the earlier reservation status of the land had terminated. Indian country is defined by § 1151 as including 'all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent.' The Klamath River Reservation was established by Executive Order in 1855 and included the area in question. In 1891, by Executive Order, the Klamath River Reservation was made part of the Hoopa Valley Reservation. The Act of June 17, 1892, provided that 'all of the lands embraced in what was Klamath River Reservation' reserved under the 1855 Executive Order, are 'declared to be subject to settlement, entry, and purchase under the laws of the United States granting homestead rights . . . Provided, That any Indian now located upon said reservation may, at any time within one year . . . apply to the Secretary of the Interior for an allotment of land . . .. And the Secretary of the Interior may reserve from settlement, entry, or purchase any tract . . . upon which any village or settlement of Indians is now located, and may set apart the same for the permanent use and occupation of said village or settlement of Indians.' The Act further provided that proceeds from the sale of the lands 'shall constitute a fund . . . for the maintenance and education of the Indians now residing on said lands and their children.' Held: The Klamath River Reservation was not terminated by the Act of June 17, 1892, and the land within the reservation boundaries is still Indian country, within the meaning of 18 U.S.C. § 1151. Pp. 494—506.
(a) The allotment provisions of the 1892 Act, rather than indicating an intention to terminate the reservation, are completely consistent with continued reservation status. Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346. Pp. 496—497.
(b) The reference in the Act to the Klamath River Reservation in the past tense did not manifest a congressional purpose to terminate the reservation, but was merely a convenient way of identifying the land, which had just recently been included in the Hoopa Valley Reservation. Pp. 498—499.
(c) The Act's legislative history does not support the view that the reservation was terminated, but by contrast with the final enactment, it compels the conclusion that efforts to terminate by denying allotments to the Indians failed completely. Pp. 499—504.
(d) A congressional determination to terminate a reservation must be expressed on the face of the statute or be clear from the surrounding circumstances and legislative history, neither of which obtained here. Pp. 504—505.
(e) The conclusion that the 1892 Act did not terminate the Reservation is reinforced by repeated recognition thereafter by the Department of the Interior and by the Congress. Congress has recognized the reservation's continued existence by extending, in 1942, the period of trust allotments, and in 1958, by restoring to tribal ownership certain vacant and undisposed-of ceded lands in the reservation. P. 505.
20 Cal.App.2d 729, 97 Cal.Rptr. 894, reversed and remanded.
Lee J. Sclar, Berkeley, Cal., for petitioner.
Harry R. Sachse, New Orleans, La., for United States, as amicus curiae, by special leave of Court.
Roderick Walston, San Francisco, Cal., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Our decision in this case turns on the resolution of the narrow question whether the Klamath River Indian Reservation in northern California was terminated by Act of Congress or whether it remains 'Indian country,' within the meaning of 18 U.S.C. § 1151.1 When established, the reservation was described as 'a strip of territory commencing at the Pacific Ocean and extending 1 mile in width on each side of the Klamath River' for a distance of approximately 20 miles, encompassing an area not exceeding 25,000 acres. This description is taken from President Franklin Pierce's Executive Order issued November 16, 1855, pursuant to the authority granted by the Act of March 3, 1853, 10 Stat. 226, 238, and the Act of March 3, 1855, 10 Stat. 686, 699.2
2
Petitioner Raymond Mattz is a Yurok, or Klamath River, Indian, who since the age of nine, regularly fished, as his grandfather did before him, with dip, gill, and trigger nets, at a location called Brooks Riffle on the Klamath River. On September 24, 1969, a California game warden confiscated five gill nets owned by Mattz. The nets were stored near Brooks Riffle, approximately 200 feet from the river, and within 20 miles of the river's mouth.
3
The respondent Director of the Department of Fish and Game instituted a forfeiture proceeding in state court. Mattz intervened and asked for the return of his nets. He alleged, among other things, that he was an enrolled member of the Yurok Tribe, that the nets were seized within Indian country, and that the state statutes prohibiting the use of gill nets, Cal.Fish & Game Code §§ 8664, 8686, and 8630, therefore were inapplicable to him. The state trial court, relying on Elser v. Gill Net Number One, 246 Cal.App.2d 30, 54 Cal.Rptr. 568 (1966), found that the Klamath River Reservation in 1892 'for all practical purposes almost immediately lost its identity,'3 and concluded that the area where the nets were seized was not Indian country. The court thereby disposed of petitioner's primary defense to the forfeiture. It did not reach other issues bearing upon the application of the California statutes to Indian country and the existence of Indian fishing rights there.
4
On appeal, the State Court of Appeal affirmed, holding that, inasmuch as the area in question had been opened for unrestricted homestead entry in 1892, the earlier reservation status of the land had terminated. 20 Cal.App.3d 729, 97 Cal.Rptr. 894 (1971). The Supreme Court of California, one judge dissenting, denied a petition for hearing. See 20 Cal.App.3d, at 735, 97 Cal.Rptr., at 898. We granted certiorari, 409 U.S. 1124, 93 S.Ct. 933, 35 L.Ed.2d 255 (1973), because the judgments of the state courts appeared to be in conflict with applicable decisions of this Court.
5
We now reverse. The reversal, of course, does not dispose of the underlying forfeiture issue. On remand, the questions relating to the existence of Mattz' fishing rights and to the applicability of California law notwithstanding reservation status will be addressed. We intimate no opinion on those issues.
6
* While the current reservation status of the Klamath River Reservation turns primarily upon the effect of an 1892 Act of Congress which opened the reservation land for settlement, the meaning and effect of that Act cannot be determined without some reference to the Yurok Tribe and the history of the reservation between 1855 and 1892.
7
The Yurok Indians apparently resided in the area of the lower Klamath River for a substantial period before 1855 when the Klamath River Reservation was established. Little is known of their prior history. There are sources, however, that provide us with relatively detailed information about the tribe, its culture, living conditions, and customs for the period following 1855.4 That the tribe had inhabited the lower Klamath River well before 1855 is suggested by the name. Yurok means 'down the river.' The names of the neighboring tribes, the Karok and the Modok, mean, respectively, 'up the river' and 'head of the river,' and these appellations, as would be expected, coincide with the respective homelands. Powers 19; Kroeber 15.5
8
By the Act of March 3, 1853, 10 Stat. 238, the President was 'authorized to make five military reservations from the public domain in the State of California or the Territories of Utah and New Mexico bordering on said State, for Indian purposes.' The Act of March 3, 1855, 10 Stat. 699, appropriated funds for 'collecting, removing, and subsisting the Indians of California . . . on two additional military reservations, to be selected as heretofore . . . Provided, That the President may enlarge the quantity of reservations heretofore selected, equal to those hereby provided for.' President Pierce then issued his order of November 16, 1855, specifying the Klamath River Reservation and stating, 'Let the reservation be made, as proposed.' Kappler 817.
9
The site was ideally selected for the Yuroks. They had lived in the area; the arable land, although limited, was 'peculiarly adapted to the growth of vegetables,' 1856 Report 238; and the river, which ran through a canyon its entire length, abounded in salmon and other fish. Ibid.; 1858 Report 286.6
10
In 1861 nearly all the arable lands on the Klamath River Reservation were destroyed by a Freshet, and, upon recommendation of the local Indian agent, some of the Indians were removed to the Smith River Reservation, established for that purpose in 1862. Only a small number of Yuroks moved to the new reservation, however, and nearly all those who did move returned within a few years to the Klamath River. Crichton v. Shelton, 33 I.D. 205, 208 (1904); Kappler 830; 1864 Report 122. The Smith River Reservation was then discontinued. Act of July 27, 1868, 15 Stat. 198, 221.
11
The total Yurok population on the Klamath River Reservation in the 1860's cannot be stated with precision. In 1852, based in part on a rough census made by a trader, it was estimated at 2,500. Kroeber 16—17.7 The effect of the 1861 flood cannot be firmly established; but it is clear that the tribe remained on the Klamath thereafter.8 For later years, Kroeber estimated that the population in 1895 was 900, and, in 1910, 668, Kroeber 19. From this it would appear that the flood at least did not cause a dissolution of the tribe; on the contrary, the Yuroks continued to reside in the area through the turn of the century and beyond.
12
The Act of April 8, 1864, 13 Stat. 39, designated California as one Indian superintendency. It also recited that 'there shall be set apart by the President, and at his discretion, not exceeding four tracts of land, within the limits of said state, to be retained by the United States for the purposes of Indian reservations.' It further provided that 'the several Indian reservations in California which shall not be retained . . . under . . . this act, shall . . . be surveyed into lots or parcels . . . and . . . be offered for sale at public outcry, and thence afterward shall be held subject to sale at private entry.' Id., at 40.
13
At the time of the passage of the 1864 Act there were, apparently, three reservations in California: the Klamath River, the Mendocino, and the Smith River. It appears, also, that the President did not take immediate action, upon the passage of the Act, to recognize reservations in California. It was not until 1868 that any formal recognition occurred, and then it was the Congress rather than the President, that acted. In that year Congress discontinued the Smith River Reservation, 15 Stat. 221, and restored the Mendocino to the public lands. Id., at 223. No similar action was taken with respect to the Klamath River Reservation. Crichton v. Shelton, 33 I.D., at 209. Congress made appropriations for the Round Valley Reservation, 15 Stat. 221, and for it and the Hoopa Valley Reservation in 1869, 16 Stat. 37, although neither of these, apparently, had been established theretofore by formal Executive Order.9
14
The Klamath River Reservation, although not reestablished by Executive Order or specific congressional action, continued, certainly, in de facto existence. Yuroks remained on reservation land, and the Department of Indian Affairs regarded the Klamath River Reservation as 'in a state of reservation' throughout the period from 1864 to 1891.10 No steps were taken to sell the reservation, or parts thereof, under the 1864 Act. Indeed, in 1879, all trespassers there were removed by the military. In 1883 the Secretary of the Interior directed that allotments of land be made to the Indians on the reservation.11 In February 1889, the Senate, by resolution, directed the Secretary of the Interior 'to inform the Senate what proceedings, if any, have been had in his Department relative to the survey and sale of the Klamath Indian reservation . . . in pursuance of the provisions of the act approved April 8, 1864.' 20 Cong.Rec. 1818. In response, the Commissioner of Indian Affairs, by letter dated February 18, 1889, to the Secretary disclosed that no proceedings to this effect had been undertaken.12 An assistant Attorney General for the Department of the Interior expressed a similar view in an opinion dated January 20, 1891.13
15
In 1888, in a forfeiture suit, the United States District Court for the Northern District of California concluded that the area within the Klamath River Reservation was not Indian country, within the meaning of Rev.Stat. § 2133, prescribing the penalty for unlicensed trading in Indian country. The court concluded that the land composing the reservation was not retained or recognized as reservation land pursuant to the 1864 Act and that, therefore, it no longer constituted an Indian reservation. United States v. Forty-eight Pounds of Rising Star Tea, etc., 35 F. 403 (N.D.Cal. 1888). This holding was expressly affirmed on appeal to a circuit judge. 30 F. 400 (CCND Cal.1889). The Assistant Attorney General, in the opinion referred to above, conceded the probable correctness of the judgment but was not convinced that his own views were erroneous, and he could not assent to the reasoning of the court. He felt that the court's comments as to the abandoned status of the reservation 'were dicta and not essential to the decision of the case before the court.' Crichton v. Shelton, 33 I.D., at 215.
16
Thus, as of 1891, it may be fair to say that the exact legal status of the Klamath River Reservation was obscure and uncertain. The petitioner in his brief here, p. 14, states that the reservation 'ceased to exist in 1876, at the latest.'
17
Any question concerning the reservation's continuing legal existence, however, appears to have been effectively laid to rest by an Executive Order dated October 16, 1891, issued by President Benjamin Harrison14 By the specific terms of that order, the Hoopa Valley Reservation, which, as we already have noted, was located in 1864 and formally set apart in 1876, and which was situated about 50 miles upstream from the Klamath River's mouth, was extended so as to include all land, one mile in width on each side of the river, from 'the present limits' of the Hoopa Valley Reservation to the Pacific Ocean. The Klamath River Reservation, or what had been the reservation, thus was made part of the Hoopa Valley Reservation, as extended.
18
The reason for incorporating the Klamath River Reservation in the Hoopa Valley Reservation is apparent. The 1864 Act had authorized the President to 'set apart' no more than four tracts for Indian reservations in California. By 1876, and certainly by 1891, four reservations already had been so set apart. These were the Round Valley, referred to above, the Mission,15 the Hoopa Valley, and the Tule River. Kappler 830—831. Thus, recognition of a fifth reservation along the Klamath River was not permissible under the 1864 Act. Accordingly, the President turned to his authority under the Act to expand an existing, recognized reservation. He enlarged the Hoopa Valley Reservation to include what had been the Klamath River Reservation as well as an intervening riparian strip connecting the two tracts.16 The President's continuing authority so to enlarge reservations and, specifically, the legality of the 1891 Executive Order, was affirmed by this Court in Donnelly v. United States, 228 U.S. 243, 255—259, 33 S.Ct. 449, 452—454, 57 L.Ed. 820 (1913), reh. denied, 228 U.S. 708, 33 S.Ct. 1024, 57 L.Ed. 1035, and is not challenged here.
II
19
This general background as to the origin and development of the Klamath River Reservation is not contested by either party. The reservation's existence, pursuant to the Executive Order of 1891, is conceded. The present controversy relates to its termination subsequent to 1891, and turns primarily upon the effect of the Act of June 17, 1892, 27 Stat. 52 entitled 'An act to provide for the disposition and sale of lands known as the Klamath River Indian Reservation.' This Act provided:
20
'That all of the lands embraced in what was Klamath River Reservation in the State of California, as set apart and reserved under authority of law by an Executive order dated November sixteenth, eighteen hundred and fifty-five, are hereby declared to be subject to settlement, entry, and purchase under the laws of the United States granting homestead rights and authorizing the sale of mineral, stone, and timber lands: Provided, That any Indian now located upon said reservation may, at any time within one year from the passage of this act, apply to the Secretary of the Interior for an allotment . . .. And the Secretary of the Interior may reserve from settlement, entry, or purchase any tract or tracts of land upon which any village or settlement of Indians is now located, and may set apart the same for the permanent use and occupation of said village or settlement of Indians. . . . Provided further, That the proceeds arising from the sale of said lands shall constitute a fund to be used under the direction of the Secretary of the Interior for the maintenance and education of the Indians now residing on said lands and their children.'
21
The respondent Director argues that this statute effected the termination of the Klamath River Reservation. The petitioner urges the contrary. It is our task, in light of the language and purpose of the Act, as well as of the historical background, outlined above, to determine the proper meaning of the Act and, consequently, the current status of the reservation.
22
The respondent relies upon what he feels is significant language in the Act and upon references in the legislative history. He contends, 'The fact that the lands were to be opened up for settlement and sale by homesteaders strongly militates against a continuation of such reservation status.' Brief for Repondent 3.
23
We conclude, however, that this is a misreading of the effect of the allotment provisions in the 1892 Act. The meaning of those terms is to be ascertained from the overview of the earlier General Allotment Act of 1887, 24 Stat. 388. That Act permitted the President to make allotments of reservation lands to resident Indians and, with tribal consent, to sell surplus lands. Its policy was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished.17 Unallotted lands were made available to non-Indians with the purpose, in part, of promoting interaction between the races and of encouraging Indians to adopt white ways. See § 6 of the General Allotment Act, 24 Stat. 390; United States Department of the Interior, Federal Indian Law 115—117, 127—129, 776—777 (1958).18 Under the 1887 Act, however, the President was not required to open reservation land for allotment; he merely had the discretion to do so.
24
In view of the discretionary nature of this presidential power, Congress occasionally enacted special legislation in order to assure that a particular reservation was in fact opened to allotment.19 The 1892 Act was but one example of this. Its allotment provisions, which do not differ materially from those of the General Allotment Act of 1887, and which in fact refer to the earlier Act, do not, alone, recite or even suggest that Congress intended thereby to terminate the Klamath River Reservation. See Seymour v. Superintendent, 368 U.S. 351, 357—358, 82 S.Ct. 424, 427—429, 7 L.Ed.2d 346 (1962). Rather, allotment under the 1892 Act is completely consistent with continued reservation status. This Court unanimously observed, in an analogous setting in Seymour, id., at 356, 82 S.Ct., at 427, 'The Act did no more (in this respect) than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards.' See United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195 (1909); United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192 (1916). See also Wilbur v. United States, 281 U.S. 206, 50 S.Ct. 320, 74 L.Ed. 809 (1930); Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913).
III
25
The respondent further urges, however, that his view of the effect of the 1892 Act is supported by the Act's reference to 'what was (the) Klamath River Reservation.' According to the respondent, this reference, and other references in the legislative history, compel the conclusion that Congress intended to terminate the reservation in 1892.
26
The 1892 Act, to be sure, does refer to the Klamath River Reservation in the past tense. But this is not to be read as a clear indication of congressional purpose to terminate. Just a few weeks before the bill (H.R. 38, 52d Cong., 1st Sess.), which eventually became the Act, was reported out of committee on February 5, 1892, H.R.Rep. No. 161, 52d Cong., 1st Sess., the President had formally extended the Hoopa Valley Reservation to include the Klamath River Reservation. And only that portion of the extension which had been the Klamath River Reservation was the subject of the 1892 Act. The reference to the Klamath River Reservation in the past tense seems, then, merely to have been a natural, convenient, and shorthand way of identifying the land subject to allotment under the 1892 Act.20 We do not believe the reference can be read as indicating any clear purpose to terminate the reservation directly or by innuendo.
27
The respondent also points to numerous statements in the legislative history that, in his view, indicate that the reservation was to be terminated. We need not refer in detail to the cited passages in H.R.Rep.No.161, supra, or to the debates on the bill, 23 Cong.Rec. 1598—1599, 3918—3919 (1892), for there is no challenge here to the view that the House was generally hostile to continued reservation status of the land in question. In our estimation, however, this very fact, in proper perspective, supports the petitioner and undermines the respondent's position.
28
As early as 1879, there were efforts in Congress to abolish the Klamath River Reservation. From that date to 1892 strong sentiment existed to this effect. But it does not appear that termination ever commanded majority support. The advocates of termination argued that the reservation, as of 1879, long had been abandoned; that the land was useless as a reservation; and that many white settlers had moved on to the land and their property should be protected. See H.R.Rep.No.1354, 46th Cong., 2d Sess., 5 (1880). That whites had settled there is clear, but the view that no Indians remained after the flood of 1861 appears to have been a gross misconception on the part of those who sought termination.21
29
The first bill providing for public entry and sale of the Klamath River Reservation was introduced in the Senate on May 28, 1879. S.Res. 34, 46th Cong., 1st Sess.; 9 Cong.Rec. 1651. The resolution referred to the reservation's having been 'abandoned' in 1855 'and the tribe removed to another reservation established for its use.' No action was taken on the bill, and another, of the same purport, was introduced on January 12, 1880, in the House. H.R. 3454, 46th Cong., 2d Sess.; 10 Cong.Rec. 286. This bill provided that the reservation 'be, and the same is hereby, abolished,' and authorized and directed the Secretary of the Interior to survey the lands and have them made subject to homestead and preemption entry and sale 'the same as other public lands.' It is clear from the report on this second bill, H.R.Rep.No.1354, supra, at 1—5, that the establishment of the reservation in 1855 was viewed as a mistake and an injustice. According to the Report, the reservation had been abandoned after the 1861 freshet, and the Indians had moved to the Smith River and, later, the Hoopa Valley Reservations. White settlers had moved in and wished to exploit the lumber and soil of the area which, some said, 'has no equal in California as a fruit and wine growing country.' Id., at 5. Inasmuch as the reservation blocked access to the river, the resources of the area could not be developed. Although unmentioned in that Report, the Office of Indian Affairs opposed the bill. See H.R.Rep.No.1148, 47th Cong., 1st Sess., 1 (1882). The bill as reported was recommitted and no further action was taken. 10 Cong.Rec. 3126 (1880).
30
An identical bill was introduced in the following Congress. H.R. 60, 47th Cong., 1st Sess.; 13 Cong.Rec. 90 (1881). The Commissioner of Indian Affairs opposed the bill as introduced, but stated that he would not oppose it if provision for prior allotments to the Indians was made. H.R.Rep.No.1148, supra, at 2. The Commissioner's proposed amendment was approved by the Committee, 13 Cong.Rec. 3414 (1882), but no action on the bill was taken by the full House.
31
In 1883 and 1884 three more bills were introduced. It is of interest to note that each acceded to the request of the Commissioner that provision be made for prior allotments to resident Indians. H.R. 112, 48th Cong., 1st Sess.; 15 Cong.Rec. 62 (1883); S. 813, 48th Cong., 1st Sess.; 15 Cong.Rec. 166 (1883); H.R. 7505, 48th Cong., 1st Sess.; 15 Cong.Rec. 5923 (1884). Each bill would have 'abolished' the reservation and would have made the land subject to homestead and pre-emption entry. None of the bills was enacted, although passage must have been generally regarded as likely, for the Indian Bureau in 1883 began the work of allotment and survey, perhaps in anticipation of passage.
32
In 1885 two bills were introduced in the House. Each was substanially identical to those introduced in 1883 and 1884. H.R. 158 and H.R. 165, 49th Cong., 1st Sess.; 17 Cong.Rec. 370 (1885). No action was taken on either bill.
33
No further bills, apparently, were introduced until 1889. During the intervening period, however, the General Allotment Act of 1887, 24 Stat. 388, was passed and thereafter amended, 26 Stat. 794, The Rising Star Tea case, 35 F. 403, was also decided.
34
In 1889 a bill providing for the allotment of the Klamath River Reservation was introduced. The allotments, however, were to be made in a manner inconsistent with the General Allotment Act. H.R. 12104, 50th Cong., 2d Sess.; 20 Cong.Rec. 756 (1889). And after affirmance of the Rising Star Tea case by the circuit court, 38 F. 400 (1889), identical bills were introduced in the House and the Senate providing, without mention of allotment, that 'all of the lands embraced in what was Klamath River Reservation . . . are hereby declared to be subject to settlement, entry, and purchase' under the land laws. H.R. 113, 51st Cong., 1st Sess.; 21 Cong.Rec. 229 (1889); S. 2297, 51st Cong., 1st Sess.; 21 Cong.Rec. 855 (1890). The Indian Office opposed the bills, recommending that they be amended to provide for allotments to the Indians under the General Allotment Act, that surplus lands be restored to the public domain, and that the proceeds be held in trust for the Klamath River Indians. See Short v. United States, No. 102—63, pp. 44—45 (Report of Commissioner, Court of Claims, 1972). H.R. 113 was reported out of committee with certain amendments, including one to the effect that proceeds arising from the sale of lands were to be used for the 'removal, maintenance, and education' of the resident Indians, the Hoopa Valley Reservation being considered the place of removal. Allotments to the Indians on the Klamath Reservation, however, were emphatically rejected. H.R.Rep.No.1176, 51st Cong., 1st Sess., 2 (1890). The bill was so amended and passed the House. 21 Cong.Rec. 10701—10702 (1890). It died in the Senate.
35
In light of the passage of this last bill in the House and the presence of the Rising Star Tea opinions, the Indian Department moved to have the Klamath River Reservation land protected for the Indians residing there. The details of this effort, including the opinion of the Assistant Attorney General, referred to above, are outlined in the Commissioner's report in Short v. United States, supra, at 45—50. These efforts culminated in President Harrison's Executive Order of October 1891 expanding the Hoopa Valley Reservation to include the Klamath River Reservation.
36
It is against this background of repeated legislative efforts to terminate the reservation, and to avoid allotting reservation lands to the Indians, that the 1892 Act was introduced. H.R. 38, 52d Cong., 1st Sess.; 23 Cong. Rec. 125 (1892). The bill provided for the settlement entry, and purchase of the reservation land and specified that the proceeds should be used for the 'removal, maintenance, and education' of the resident Indians. No allotments were provided for, as the Indians were 'semicivilized, disinclined to labor, and have no conception of land values or desire to cultivate the soil.' H.R.Rep.No.161, 52d Cong., 1st Sess., 1 (1892). The House Committee on Indian Affairs amended the bill by changing the word 'and' to 'or' in the proviso relating to the use of proceeds. Id., at 2.
37
The bill passed the House without change. 23 Cong.Rec. 1598 1599 (1892). It was struck out in the Senate, however, and another version was substituted deleting reference to the removal of the Indians and providing that before public sale the land should be allotted to the Indians under the General Allotment Act of 1887, as amended. Id., at 3918—3919. This substitute measure had the support of the Interior Department. Id., at 3918. The Senate called for a conference with the House, id., at 3919, and the conference adopted the Senate version with amendments. Sen.Misc.Doc.No.153, 52d Cong., 1st Sess. (1892). The bill was then passed and became the 1892 Act.
IV
38
Several conclusions may be drawn from this account. First, the respondent's reliance on the House Report and on comments made on the floor of the House is not well placed. Although the primary impetus for termination of the Klamath River Reservation had been with the House since 1871, this effort consistently had failed to accomplish the very objectives the respondent now seeks to achieve. Likewise, the House in 1892 failed to accomplish these objectives, for the Senate version, supported by the Interior Department, was substituted for that of the House. The Senate version, ultimately enacted, provided for allotments to the Indians and for the proceeds of sales to be held in trust for the 'maintenance and education,' not the removal, of the Indians. The legislative history relied upon by the respondent does not support the view that the reservation was terminated; rather, by contrast with the bill as finally enacted, it compels the conclusion that efforts to terminate the reservation by denying allotments to the Indians failed completely.
39
A second conclusion is also inescapable. The presence of allotment provisions in the 1892 Act cannot be interpreted to mean that the reservation was to be terminated. This is apparent from the very language of 18 U.S.C. § 1151, defining Indian country 'notwithstanding the issuance of any patent' therein. More significantly, throughout the period from 1871—1892 numerous bills were introduced which expressly provided for the termination of the reservation and did so in unequivocal terms. Congress was fully aware of the means by which termination could be effected. But clear termination language was not employed in the 1892 Act. This being so, we are not inclined to infer an intent to terminate the reservation.22 The Court stated in United States v. Celestine, 215 U.S., at 285, 30 S.Ct., at 94, that 'when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.' A congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history. See Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962); United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192 (1916).23
40
Finally, our conclusion that the 1892 Act did not terminate the Klamath River Reservation is reinforced by repeated recognition of the reservation status of the land after 1892 by the Department of the Interior and by Congress. In 1904 the Department, in Crichton v. Shelton, 33 I.D. 205, ruled that the 1892 Act reconfirmed the continued existence of the reservation. In 1932 the Department continued to recognize the Klamath River Reservation, albeit as part of the Hoopa Valley Reservation,24 and it continues to do so today. And Congress has recognized the reservation's continued existence by extending the period of trust allotments for this very reservation by the 1942 Act, described above, 25 U.S.C. § 348a, and by restoring to tribal ownership certain vacant and undisposed-of ceded lands in the reservation by the 1958 Act, supra.25 We conclude that the Klamath River Reservation was not terminated by the Act of June 17, 1892, and that the land within the boundaries of the reservation is still Indian country, within the meaning of 18 U.S.C. § 1151.
41
The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings.
42
It is so ordered.
43
Reversed and Remanded.
APPENDIX TO OPINION OF THE COURT [NOTE; MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
1
Title 18 U.S.C. § 1151 defines the term 'Indian country' to include, inter alia, 'all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent . . ..'
Title 18 U.S.C. § 1162(a) provides that, with respect to Indian country within California, that State 'shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country . . . to the same extent that such State . . . has jurisdiction over offenses committed elsewhere within the State . . ., and the criminal laws of such State . . . shall have the same force and effect within such Indian country as they have elsewhere within the State . . ..' Section 1162(b) provides, however, 'Nothing in this section . . . shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.'
Finally, the California Fish & Game Code § 12300 (Supp.1973), reads:
'Irrespective of any other provision of law, the provisions of this code are not applicable to California Indians whose names are inscribed upon the tribal rolls, while on the reservation of such tribe and under those circumstances in this State where the code was not applicable to them immediately prior to the effective date of Public Law 280, Chapter 505, First Session, 1953, 83d Congress of the United States (18 U.S.C. § 1162).'
2
The Executive Order is reproduced in 1 C. Kappler, Indian Affairs—Laws and Treaties 817 (1904) (hereinafter Kappler).
At the end of this opinion, as the Appendix, is a map of the Klamath River Reservation. The area described in the text is indicated as the 'Old Klamath River Reservation.'
3
See Pet. for Cert., App. B 4—5.
4
A. Kroeber, Handbook of the Indians of California, cc. 1 4, published as Bulletin 78, Bureau of American Ethnology 1—97 (1925) (hereinafter Kroeber); S. Powers, Tribes of California, cc. 4 and 5, published as 3 Contributions to North American Ethnology 44—64 (1877) (hereinafter Powers). Various Annual Reports of the Commissioner of Indian Affairs provide further information; see, for example, the 1856 Report of the Commissioner of Indian Affairs 249—250 (hereinafter Report).
5
Kroeber, in the preface to his work, suggests that the factual material contained in Powers' manuscript is subject to some criticism. Kroeber's reference to Powers deserves reproduction in full here:
'I should not close without expressing my sincere appreciation of my one predecessor in this field, the late Stephen Powers, well known for his classic 'Tribes of California,' one of the most remarkable reports ever printed by any government. Powers was a journalist by profession and it is true that his ethnology is often of the crudest. Probably the majority of his statements are inaccurate, many are misleading, and a very fair proportion are without any foundation or positively erroneous. He possessed, however, an astoundingly quick and vivid sympathy, a power of observation as keen as it was untrained, and an invariably spirited gift of portrayal that rises at times into the realm of the sheerly fascinating. Anthropologically his great service lies in the fact that with all the looseness of his data and method he was able to a greater degree than anyone before or after him to seize and fix the salient qualities of the mentality of the people he described. The ethnologist may therefore by turns writhe and smile as he fingers Powers's pages, but for the broad outlines of the culture of the California Indian, for its values with all their high lights and shadows, he can still do no better than consult the book. With all its flimsy texture and slovenly edges, it will always remain the best introduction to the subject.' Kroeber ix.
6
Of this area one agent stated, 'No place can be found so well adapted to these Indians, and to which they themselves are so well adapted, as this very spot. No possessions of the Government can be better spared to them. No territory offers more to these Indians and very little territory offers less to the white man. The issue of their removal seems to disappear.' 1885 Report 266.
7
It is interesting to note that Powers believed the Yurok population at one time far exceeded 2,500 and perhaps numbered over 5,000. This was, as Powers stated, 'before the whites had come among them, bringing their corruptions and their maladies . . ..' Powers 59. The renowned Major John Wesley Powell, who was then in charge of the United States Geographical and Geological Survey of the Rocky Mountain Region, Department of the Interior, placed little faith in Powers' figures and requested that he modify his estimates. Powers expressed his displeasure at this in a letter to Major Powell stating, in characteristic fashion,
'I have the greatest respect for your views and beliefs, and, with your rich fund of personal experience and observation; if you desire to cut out the paragraph and insert one under your own signature, in brackets, or something of that kind, I will submit without a murmur, if you will add this remark, as quoted from myself, to wit: 'I desire simply to ask the reader to remember that Major Powell has been accustomed to the vast sterile wastes of the interior of the continent, and has not visited the rich forests and teeming rivers of California.' But I should greatly prefer that you would simply disavow the estimates, and throw the whole responsibility upon me.
'This permission I give you; but I have waded too many rivers and climbed too many mountains to abate one jot of my opinions or beliefs for any carpet-knight who yields a compiling-pen in the office of the —- or —-. If any critic, sitting in his comfortable parlor in New York, and reading about the sparse aboriginal populations of the cold forests of the Atlantic States, can overthrow any of my conclusions with a dash of his pen, what is the use of the book at all? As Luther said, at the Diet of Worms, 'Here I stand; I cannot do otherwise.'
'I beg you, my dear major, not to consider anything above written as in the slightest degree disrespectful to yourself; such is the farthest remove from my thoughts.' Powers 2—3.
Powers' estimates were not altered, and the above-quoted letter was placed sympathetically by Major Powell in the introductory section of Powers' published study.
8
1864 Report 122; Opinion dated Jan. 20, 1891, of the Assistant Attorney General for the Department of the Interior, quoted in Crichton v. Shelton, 33 I.D. 205, 210 (1904); Kroeber 19. Another source estimates that in 1871 the Indian population along the Klamath was 2,500. Report of D. H. Lowry, Indian Agent, Sept. 1, 1871, noted in Short v. United States, No. 102—63, at 35 (Report of Commissioner, Court of Claims, 1972).
9
The Hoopa Valley Reservation was located August 21, 1864, but formally set apart for Indian purposes, as authorized by the 1864 Act, by President Grant only by Executive Order dated June 23, 1876. Kappler 815. See Appendix map. The area is that described as the 'Original Hoopa Valley Reservation.'
10
Letter dated Apr. 4, 1888, from the Commissioner of Indian Affairs to the Secretary of the Interior, quoted in Crichton v. Shelton, 33 I.D., at 211.
11
The allotments, however, were postponed 'on account of the discovery of gross errors in the public surveys.' Ibid.; 1885 Report XLVIII.
12
'In response to said resolution, I have to state that I am unable to discover from the records or correspondence of this office that any proceedings were ever had or contemplated by this Department for the survey and sale of said reservation under the provisions of the act aforesaid; on the contrary, it appears to have been the declared purpose and intention of the superintendent of Indian affairs for California, who was charged with the selection of the four reservations to be retained under said act, either to extend the Hoopa Valley Reservation (one of the reservations selected under the act), so as to include the Klamath River Reservation, or else keep it as a separate independent reservation, with a station or subagency there, to be under control of the agent at the Hoopa Valley Reservation, and the lands have been held in a state of reservation from that day to this (Ex.Doc. 140, pp. 1, 2).' Quoted in Crichton v. Shelton, 33 I.D., at 212.
13
'Pushing aside all technicalities of construction, can any one doubt that for all practical purposes the tract in question constitutes an Indian reservation? Surely, it has all the essential characteristics of such a reservation; was regularly established by the proper authority; has been for years and is so occupied by Indians now, and is regarded and treated as such reservation by the executive branch of the government, to which has been committed the management of Indian affairs and the administration of the public land system . . .. It is said, however, that the Klamath River reservation was abolished by section three of the act of 1864. Is this so?
'In the present instance, the Indians have lived upon the described tract and made it their home from time immemorial; and it was regularly set apart as such by the constituted authorities, and dedicated to that purpose with all the solemnities known to the law, thus adding official sanction to a right of occupation already in existence. It seems to me something more than a mere implication, arising from a rigid and technical construction of an act of Congress, is required to show that it was the intention of that body to deprive these Indians of their right of occupancy of said lands, without consultation with them or their assent. And an implication to that effect is all, I think that can be made out of that portion of the third section of the act of 1864 which is supposed to be applicable.' Quoted in Crichton v. Shelton, 33 I.D., at 212—213.
14
'It is hereby ordered that the limits of the Hoopa Valley Reservation in the state of California, a reservation duly set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in said State, by Act of Congress approved April (8), 1864, (13 Stats., 39), be and the same are hereby extended so as to include a tract of country one mile in width on each side of the Klamath River, and extending from the present limits of the said Hoopa Valley reservation to the Pacific Ocean; Provided, however, That any tract or tracts included within the above described boundaries to which valid rights have attached under the laws of the United States are hereby excluded from the reservation as hereby extended.' Kappler 815.
15
Kappler 819—824. It is noteworthy that the boundaries of the Mission Reservation were altered repeatedly between 1870 and 1875, and even thereafter. These actions were taken under the President's continuing authority to set apart and add to or diminish the four reservations authorized under the 1864 Act. Donnelly v. United States, 228 U.S. 243 and 708, 33 S.Ct. 449 and 1024, 57 L.Ed. 820 and 1035 (1913). In its final form, the Mission Reservation consisted of no less than 19 different and noncontiguous tracts. Kappler 819—824; Crichton v. Shelton, 33 I.D., at 209—210.
16
See Appendix map. The strip of land between the Hoopa Valley Reservation and the Klamath River Reservation is referred to there as the 'Connecting Strip.' Under the 1891 Executive Order the Hoopa Valley Reservation was extended to encompass all three areas indicated on the map. The connecting strip and the old Klamath River Reservation frequently are referred to as the Hoopa Valley Extension.
17
The trust period on allotments to Indians on the Klamath River Reservation expired in 1919, but was later extended by Congress by the Act of Dec. 24, 1942, 56 Stat. 1081, 25 U.S.C. § 348a. See S.Rep. No. 1714, 77th Cong., 2d Sess. (1942). And in 1958 Congress restored to tribal ownership vacant and undisposed-of ceded lands on various reservations, including 159.57 acres on the Klamath River Reservation. Pub.L. 85—420, 72 Stat. 121.
18
For an extended treatment of allotment policy, see D. Otis, History of the Allotment Policy, in Readjustment of Indian Affairs, Hearings on H.R. 7902 Before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 428—440 (1934). The policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, now amended and codified as 25 U.S.C. § 461 et seq.
19
See, for example, the Act of Mar. 2, 1889, 25 Stat. 888 (Sioux Reservations), and United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192 (1916); the Act of Mar. 22, 1906, 34 Stat. 80 (Colville Reservation), and Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962); the Act of May 29, 1908, 35 Stat. 460 (Cheyenne River and Standing Rock Reservations), and United States ex rel. Condon v. Erickson, 459 F.2d 663 (CA8 1973), aff'g 344 F.Supp. 777 (SD 1972).
20
The respondent argues, however, that Congress, perhaps unacquainted with the Executive Order of October 1891, intended this language to convey the view expressed in the House Report, H.R.Rep.No.161, supra, 23 Cong.Rec. 1598—1599 (1892), that the Klamath River Reservation had long been abandoned and, in fact and in law, had already been terminated.
It is clear from the text, infra, that there were efforts in certain quarters of the House to terminate the reservation and open it for white settlement. See Short v. United States, supra, n. 8, at 34—52. While the respondent's interpretation of the phrase is plausible, it is no less plausible to conclude, in light of the repeated and unsuccessful efforts by the House to terminate the reservation, that the Senate proponents of the legislation were not inclined to make their cause (of requiring allotments) less attractive to the House by amending the bill to refer to the 'former Klamath River Reservation, now part of the Hoopa Valley Reservation' rather than 'what was (the) Klamath River Reservation.'
21
The Department of the Interior took issue with the Committee's population estimates. H.R.Rep. No. 1148, 47th Cong., 1st Sess., 1—3 (1882). In a letter transmitted to the Committee on Indian Affairs in 1881, an infantry lieutenant, acting as Indian Agent, suggested that the Committee's population estimates were 'gleaned principally from civilians, who are, I believe, somewhat inclined to lessen the number, thinking doubtlessly that the smaller the number the greater the likelihood of its being thrown open to settlers.' Id., at 2.
22
Congress has used clear language of express termination when that result is desired. See, for example, 15 Stat. 221 (1868) ('the Smith River reservation is hereby discontinued'); 27 Stat. 63 (1892) (adopted just two weeks after the 1892 Act with which this case is concerned, providing that the North Half of the Colville Indian Reservation, 'the same being a portion of the Colville Indian Reservation . . . be, and is hereby, vacated and restored to the public domain'), and Seymour v. Superintendent, 368 U.S., at 354, 82 S.Ct., at 426, 7 L.Ed.2d 346; 33 Stat. 218 (1904) ('the reservation lines of the said Ponca and Otoe and Missouria Indian reservations be, and the same are hereby, abolished').
23
In United States ex rel. Condon v. Erickson, 459 F.2d 663 (1973), the United States Court of Appeals for the Eighth Circuit reached a similar conclusion in a case presenting issues not unlike those before us. The court concluded, id., at 689, that 'a holding favoring federal jurisdiction is required unless Congress has expressly or by clear implication diminished the boundaries of the reservation opened to settlement' (emphasis in original).
24
Hearings before a Subcommittee of the Senate Committee on Indian Affairs, Survey of Conditions of the Indians in the United States, pt. 29, California, 72d Cong., 1st Sess., 15532 (1934).
25
Although subsequent legislation usually is not entitled to much weight in construing earlier statutes, United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 2001, 20 L.Ed.2d 1001 (1968), it is not always without significance. See Seymour v. Superintendent, 368 U.S., at 356—357, 82 S.Ct., at 427 428.
| 12
|
412 U.S. 534
93 S.Ct. 2763
37 L.Ed.2d 132
UNITED STATES of America, plaintiff,v.States of NEVADA AND CALIFORNIA.
No. 59, Orig.
Supreme Court of the United States
June 11, 1973
Solicitor Gen. Erwin N. Griswold for plaintiff.
E. Barrett Prettyman, Jr., Washington, D. C., for defendant State of Nev.
Roderick Walston, for defendant State of Cal.
On motion for leave to file bill of complaint.
PER CURIAM.
1
The United States asks leave to file a bill of complaint pursuant to this Court's original jurisdiction against the States of California and Nevada seeking a declaration of the respective rights of the States and of the United States in the Truckee River, a navigable interstate stream. The Truckee rises in the High Sierra, flows into Lake Tahoe, through which the California-Nevada boundary runs, exits on the California side of the Lake, and flows 20 miles before crossing into Nevada. It then continues another 65 miles, through Reno and beyond, to its termination in Pyramid Lake, a desert lake 20 miles long and five miles wide, with no outlet and a water level determined by the balance or imbalance between inflow and evaporation.
2
The bill of complaint sought to be filed states that in 1859 the United States created a reservation for the Paiute Indian Tribe that included Pyramid Lake and an extensive area surrounding it. Allegedly, the United States intended at the time to reserve sufficient water from the Truckee River to maintain Pyramid Lake and the lower reaches of the river as a viable fishery on which the Indians could depend for their subsistence and livelihood. The level of the Lake, however, is said to have declined some 70 feet since 1906, due chiefly to upstream uses and diversions which make it imperative that the prior right of the United States to sufficient water to maintain Pyramid Lake be judicially declared as against each of the defendant States.
3
It appears from the bill of complaint that the United States has several other interests in the waters of the Truckee River, chief among which is the right to divert at its Derby Dam, some distance upstream from Pyramid Lake, large amounts of water from the Truckee River for transportation and use in connection with the Newlands Reclamation Project, initiated and completed by the United States pursuant to the Reclamation Act of 1902, 32 Stat. 388.* Judicial approval for this diversion was
4
x sought by the United States in a suit brought by it in 1913 in the United States District Court for the District of Nevada. United States v. Orr Water Ditch Co., Equity No. A-3 (1944). The decree entered in this action in 1944 authorized the United States to divert Truckee River water at Derby Dam for delivery to the Newlands Project; it also declared the prior right of the United States to sufficient Truckee River water to irrigate some 3,130 acres of bottom land and 2,745 acres of bench land on the Pyramid Lake Indian Reservation. App. D to Motion for Leave to File Complaint.
5
The foremost purpose of the United States in seeking to institute the present litigation is to perfect a prior water right against all upstream uses that will maintain Pyramid Lake at its current level and so prevent further deterioration of the lake and the river as a habitat for the native fish that have historically thrived in the Lake and that have provided sustenance for the Tribe.
6
The motion for leave to file a bill of complaint is denied. The States of California and Nevada have entered into a compact with respect to their respective shares in the Truckee River water, and that compact is the subject of pending bills in Congress. H.R. 15, S. 24, 93d Cong., 1st Sess. There is now no controversy between the two States with respect to the Truckee River. The complaint, therefore, as the United States concedes, is not one alleging a case or controversy between two States within the exclusive jurisdiction of this Court, under 28 U.S.C. § 1251(a), but a dispute between the United States and two States over which this Court has original but not exclusive jurisdiction under § 1251(b)(2).
7
We seek to exercise our original jurisdiction sparingly and are particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim. Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972); Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971); Massachusetts v. Missouri, 308 U.S. 1, 60 S.Ct. 39, 84 L.Ed. 3 (1939). Here, Nevada disputes the right of the United States to sufficient water to maintain Pyramid Lake at any particular level. It also asserts that the United States is bound by the 1944 Orr Ditch decree to respect the private water rights of hundreds of landowners who are served by the Newlands Project and whose rights are dependent upon the right of the United States to divert Truckee River water, the decree authorizing that diversion, and a contract with the United States to deliver the water to the project. This dispute over the Orr Ditch decree and the existence and extent of the prior water rights of the United States with respect to the Pyramid Lake Indian Reservation is within the jurisdiction of the District Court. We need not employ our original jurisdiction to settle competing claims to water within a single State. This is particularly the case where the individual users of water in the Newlands Project, who ordinarily would have no right to intervene in an original action in this Court, New Jersey v. New York, 345 U.S. 369, 373-375, 73 S.Ct. 689, 97 L.Ed. 1081 (1953), would have an opportunity to participate in their own behalf if this litigation goes forward in the District Court.
8
We recognize that the United States will not be able to join California as a defendant in a suit in Nevada to perfect Pyramid Reservation water rights and that, absent California's voluntary appearance, a Nevada decree would not bind that State. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 103, 58 S.Ct. 803, 82 L.Ed. 1202 (1938). But these are not determinative considerations. Under the proposed interstate compact, California and Nevada have agreed upon their respective shares of Truckee River water. Nevada has also agreed that any rights to the use of water in Nevada by the United States or its wards are to be charged against Nevada's share of Truckee water. For the purposes of dividing the waters of an interstate stream with another State, Nevada has the right, parens patriae, to represent all the nonfederal users in its own State insofar as the share allocated to the other State is concerned. It is therefore doubtful at best that there is now any dispute at all between California and the United States with respect to the latter's claim to water rights at Pyramid Lake. New Jersey v. New York, supra, 345 U.S. at 372-373, 73 S.Ct. 689; Hinderlider v. La Plata Co., supra, 304 U.S. at 106, 58 S.Ct. 803; Nebraska v. Wyoming, 295 U.S. 40, 43, 55 S.Ct. 568, 79 L.Ed. 1289 (1935); 325 U.S. 589, 612-615, 629, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945). It is true that upstream or downstream water uses and priorities are important considerations when the judiciary equitably apportions an interstate stream, Hinderlider v. La Plata River & Cherry Creek Ditch Co., supra, 304 U.S., at 102, 58 S.Ct. 803; Nebraska v. Wyoming, 325 U.S., at 617, 65 S.Ct. 1332; Wyoming v. Colorado, 259 U.S. 419, 470, 42 S.Ct. 552, 66 L.Ed. 999 (1922), but the United States would appear to have occasion to object to upstream diversions in California on the grounds of interference with its Pyramid Lake water rights only if the compact between the two States is not approved or Nevada, prior to such approval, disowns the agreed-upon division of Truckee River water. In that event, a dispute between the two States may arise, and the United States would then perhaps have some ground to participate and assert that California's share must be reduced in order to accommodate a prior, long-established use by the United States in the State of Nevada. Cf. Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); Nebraska v. Wyoming, supra. Any possible dispute with California with respect to United States water uses in that State can be settled in the lower federal courts in California; and the possibility of a ripe controversy between the United States and California with respect to Pyramid Lake water rights appears too remote to warrant granting the Government's motion for leave to file the instant complant. We deny the motion, but without prejudice to refiling it should the posture of the litigation change in a manner that presents a more substantial basis for the exercise of our original jurisdiction.
9
So ordered.
10
Mr. Justice DOUGLAS dissents.
*
The United States also operates the Washoe Reclamation Project in Nevada and California which was established under the Washoe Project Act of 1956, 70 Stat. 775. The Act provides, inter alia, for establishing facilities to permit increased releases of water from Lake Tahoe and restoration of the Pyramid Lake fishery, 43 U.S.C. § 614c.
In addition to the right claimed for Pyramid Lake, the United States seeks to have rights decreed for it to the use of waters in and on national forests within in the Tuckee River watershed, to waters reserved as public water holes and hot springs, to the use of waters in and on public lands where the waters have heretofore been put to beneficial use on those lands, and to the use of runoff waters from the Newlands Project for use in a wildlife refuge.
| 89
|
412 U.S. 543
93 S.Ct. 2264
37 L.Ed.2d 137
Sam DEANv.The GADSDEN TIMES PUBLISHING CORPORATION.
No. 72—1310.
June 11, 1973.
PER CURIAM.
1
Petitioner sued respondent, his employer, to recover compensation lost as a result of the employee's being required to serve as a juror. An Alabama statute provides that an employee excused for jury duty 'shall be entitled to his usual compensation received from such employment less the fee or compensation he received for serving' as a juror. Ala. Code of 1940, Tit. 30, § 7(1) (Supp.1971). It appears that petitioner served on a jury, received pay for the jury duty and submitted a bill of $63 to respondent, the difference between his regular wages and his jury pay. Respondent refused to pay; the trial court rendered a judgment for petitioner; but the Court of Civil Appeals of Alabama held the state Act unconstitutional. 49 Ala.App. 45, 268 So.2d 829. The Supreme Court of Alabama denied certiorari to review that judgment. 289 Ala. 743, 268 So.2d 834. The case is here on petition for a writ of certiorari which we grant.
2
The Court of Civil Appeals held that the Act deprives the employer of property in violation of the Due Process Clause of the Fourteenth Amendment, its main reliance being on Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441. Coppage declared unconstitutional as violative of due process a state statute which made it a misdemeanor for an employer to require an employee to agree not to join or remain a member of a union during his employment. That was when substantive due process was in its heyday. We cited Coppage along with other decisions of like tenor in Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469, where we sustained a state statute which made it a misdemeanor for an employer to deduct wages of an employee for four hours when the employee absents himself from his job in order to vote. We held that the requirement placed on the employer to pay wages for this brief period when the employee is voting stood constitutional muster.
We said:
3
'Most regulations of business necessarily impose financial burdens on the enterprise for which no compensation is paid. Those are part of the costs of our civilization. Extreme cases are conjured up where an employer is required to pay wages for a period that has no relation to the legitimate end. Those cases can await decision as and when they arise. The present law has no such infirmity. It is designed to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. The public welfare is a broad and inclusive concept. The moral, social, economic and physical well-being of the community is one part of it; the political well-being, another. The police power which is adequate to fix the financial burden for one is adequate for the other. The judgment of the legislature that time out for voting should cost the employee nothing may be a debatable one. It is indeed conceded by the opposition to be such. But if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision. We could strike down this law only if we returned to the philosophy of the Lochner,1 Coppage, and Adkins2 cases.' Id., at 424—425, 72 S.Ct. at 408.
4
The Alabama statute stands on no less sturdy a footing.
5
Reversed.
1
Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937.
2
Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785.
| 34
|
412 U.S. 507
93 S.Ct. 2222
37 L.Ed.2d 109
CITY OF KENOSHA, WISCONSIN et al., Appellants,v.Peter G. BRUNO et al.
No. 72—658.
Argued April 18, 1973.
Decided June 11, 1973.
Syllabus
Appellees, who apparently because of alleged nude dancing at their retail liquor establishments were denied renewal of their one-year liquor licenses, brought suit under 42 U.S.C. § 1983 for declaratory and injunctive relief against the cities of Racine and Kenosha. Appellees claimed deprivation of procedural due process arising from the cities' failure to hold full-blown adversary hearings before refusing to issue license renewals, and the unconstitutionality of the local licensing scheme. The Wisconsin Attorney General intervened as a party defendant in the proceedings. The cases were submitted on cross-motions for summary judgment and stipulations of fact. A three-judge District Court held that in light of the 'equitable nature' of the actions it had jurisdiction under 28 U.S.C. § 1343(3) and the court declared the statutory scheme unconstitutional and enjoined its enforcement. Held:
1. A city is not a 'person' under 42 U.S.C. § 1983 where equitable relief is sought, any more than it is where damages are sought, Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492, and the District Court, therefore, erred in concluding that it had jurisdiction over the complaints under 28 U.S.C. § 1343(3) since only the two municipalities were named as defendants. Pp. 511—513.
2. The District Court on remand should consider the jurisdictional questions presented by the State Attorney General's intervention and the availability of 28 U.S.C. § 1331 jurisdiction, as well as the decisions in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, which are germane to the due process issue, and the supervening decision in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342, dealing with broad state authority over liquor distribution. Pp. 513—515.
346 F.Supp. 43, vacated and remanded. AT LeRoy L. Dalton, Madison, Wis., for appellants.
James A. Walrath, Milwaukee, Wis., for appellees Sleepy's Inc. and others.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellees, owners of retail liquor establishments, were holders of tavern liquor licenses1 issued under Wisconsin law by appellants, the cities of Racine and Kenosha. Acting pursuant to Wis.Stat.Ann. §§ 176.05(1), (8) (1957 and Supp.1973), the cities denied appellees' applications for renewal of their one-year licenses after holding public 'legislative' hearings. Alleging, inter alia, deprivations of their Fourteenth Amendment procedural due process rights in such denials and, by amended complaints, the unconstitutionality of § 176.05(1), (8), appellees brought these federal civil rights actions for declaratory and injunctive relief naming in each case only the appropriate municipality as a defendant. The District Court entered temporary restraining orders commanding the immediate issuance of licenses and convened a three-judge district court pursuant to 28 U.S.C. § 2281 to rule on the constitutionality of the statutory licensing procedure. Thereafter, the Attorney General of Wisconsin was allowed to intervene as a party defendant on his own motion. On cross-motions for summary judgment, the District Court declared the statute unconstitutional and enjoined its enforcement. This direct appeal followed.
2
Under the Wisconsin local licensing scheme, the governing bodies of municipalities are authorized to grant liquor licenses 'to such persons entitled to a license under this chapter as they deem proper to keep places within their respective towns, villages, or cities for the sale of intoxicating liquors. . . .' Wis.Stat.Ann. § 176.05(1) (1957).2 The statutory scheme has been interpreted by the Wisconsin Supreme Court to require a 'legislative type of hearing wherein one is given notice of the hearing and a fair opportunity to state his position on the issue,' in situations where municipalities have denied an application for renewal of a license. State ex rel. Ruffalo v. Common Council of City of Kenosha, 38 Wis.2d 518, 524, 157 N.W.2d 568, 571 (1968). Such applications may not be rejected 'without a statement on the clerk's minutes as to the reasons for such rejection,' Wis.Stat.Ann. § 176.05(8) (Supp.1973),3 and the state courts have certiorari jurisdiction to review whether such refusals by the councils are arbitrary, capricious, or discriminatory. Ruffalo v. Common Council, supra.
3
In the case of the Racine denials,4 it was stipulated that the question of the appellees' applications for licenses was referred to the License and Welfare Committee of the Common Council and that at public hearings conducted by that Committee, appellees were present and heard oral objections to the renewal of the licenses for their taverns.5 After holding a public hearing, the Common Council followed the Committee's recommendation and voted to deny the applications, apparently because of the adverse effects on the community of nude dancing in the bars.
4
It was also stipulated that at all meetings, all persons including appellees were given an opportunity to speak, but no speaker was sworn. None of the testimony was recorded and no verbatim transcript was made. Appellees were not advised that they could cross-examine any of the speakers, and they did not request such an opportunity. And there was no advance written specification of the charges against any of the bars.
5
Relying on two Seventh Circuit decisions,6 the three-judge court (as had the single judge) held that 'in light of the equitable nature of this action' it had jurisdiction pursuant to 28 U.S.C. § 1343(3).7 Concluding that Racine's interest in being able to deny the renewal of liquor licenses with no other safeguard than a legislative hearing is 'minimal,' the court balanced that interest against that of appellees, assertedly their occupations and their investments, and determined that the Due Process Clause of the Fourteenth Amendment requires municipalities to grant an 'adversary-type hearing in which the applicant is given timely notice of the reasons urged for denial (of renewal of his license) and an opportunity to present, confront, and cross-examine witnesses under oath with a verbatim transcript.' 346 F.Supp. 43, 51.
6
* Neither party to the appeal has questioned the jurisdiction of the District Court, but 'it is the duty of this court to see to it that the jurisdiction of the (district court), which is defined and limited by statute, is not exceeded.' Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). Appellees alleged that they brought their action under 42 U.S.C. § 1983,8 and that the District Court therefore had jurisdiction under 28 U.S.C. § 1343. The District Court agreed. The only defendants named in the complaints, however, were the municipalities of Kenosha and Racine. In considering the reach of § 1983 in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), this Court examined the legislative history surrounding its enactment and said:
7
'The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word 'person' was used in this particular Act to include them.' Id., at 191, 81 S.Ct., at 486.
8
The District Court relied on Schnell v. City of Chicago, 407 F.2d 1084 (CA7 1969), and Adams v. City of Park Ridge, 293 F.2d 585 (CA7 1961), in holding that Monroe was limited to actions for damages and that cities were proper defendants under § 1983 where equitable relief was sought. Adams, supra,9 in turn, relied on this Court's per curiam opinion in Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955). But in none of the three opinions in Holmes was the issue of whether or not a municipality is a 'person' within the meaning of § 1983 discussed. The authority of that case as support for the proposition that a city is a 'person' under § 1983 where equitable relief is sought, but is not a 'person' under the same section where damages are prayed for, is at least seriously weakened by the following observation in Monroe, supra, 365 U.S., at 191, 81 S.Ct., at 486 n. 50:
9
'In a few cases in which equitable relief has been sought, a municipality has been named, along with city officials, as defendant where violations of 42 U.S.C. § 1983 were alleged. See, e.g., Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776. The question dealt with in our opinion was not raised in those cases, either by the parties or by the Court. Since we hold that a municipal corporation is not a 'person' within the meaning of § 1983, no inference to the contrary can any longer be drawn from those cases.'
10
We find nothing in the legislative history discussed in Monroe, or in the language actually used by Congress, to suggest that the generic word 'person' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, 'Congress did not undertake to bring municipal corporations within the ambit of' § 1983, id., at 187, 81 S.Ct., at 484, they are outside of its ambit for purposes of equitable relief as well as for damages. The District Court was therefore wrong in concluding that it had jurisdiction of appellees' complaints under § 1343.
11
As previously noted, after the complaints had been filed and issue joined the Attorney General of Wisconsin was allowed to intervene as a party defendant in the actions. The District Court, having concluded that it had jurisdiction to entertain the original complaints under § 1343, understandably did not address itself to the question of whether the intervention of the Attorney General as a party would cure the jurisdictional defect which we now find to exist in appellees' complaints. The District Court also observed that 'were not civil rights jurisdiction proper, each of the plaintiffs herein would be able to assert the necessary . . . controversy requirement of Title 28 U.S.C. § 1331.' 346 F.Supp., at 50. But although appellees in the Racine denials alleged jurisdiction pursuant to 28 U.S.C. § 1331 as well as § 1343, and in each complaint there was an allegation of an investment in a tavern of at least $20,000, the defendant municipal corporations answered by putting the appellees to their proof as to the amount in controversy. Since the cases were submitted and decided on cross-motions for summary judgment and stipulations of fact, and no stipulation as to the amount in controversy was filed, we cannot say on this state of the record whether or not jurisdiction over the complaints was affirmatively established. See Hague v. CIO, 307 U.S. 496, 507—508, 59 S.Ct. 954, 960, 83 L.Ed. 1423 (1939), and cases therein cited. With respect to the Kenosha denials, there was a stipulation as to jurisdictional amount in the proceedings before the single-judge District Court, and an allegation of the requisite jurisdictional amount in the amended complaint, which for the first time challenged the constitutional validity of the Wisconsin statutory licensing scheme. No answer was filed to the amended complaint prior to the entry of judgment by the District Court.
12
We have had the benefit of neither briefs, arguments, nor explicit consideration by the District Court of the jurisdictional questions presented by the intervention of the Attorney General as a party, and the availability of § 1331 jurisdiction in view of the state of the record below. We therefore remand the case to the District Court for consideration of these issues.
II
13
Appellees' licenses have been neither revoked nor suspended. Their claim of deprivation of Fourteenth Amendment procedural due process rights arises from the failure of the cities of Kenosha and Racine to hold full-blown adversary hearings before refusing to renew their one-year licenses. Our decisions last year in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), discussed the nature of 'liberty' and 'property' that is protected against denial without due process by the Fourteenth Amendment. The District Court did not discuss these recent cases, and it followed, in part, the decision of the Court of Appeals for the Seventh Circuit which was reversed in Roth. It therefore made no evaluation of 'property' or 'liberty' interests which might require a due process hearing, or of the nature of such a hearing if it were required in the light of our opinions in Roth, supra, and Perry, supra.
14
The District Court, also, did not have the benefit of this Court's decision in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). There we held again that while the Twenty-first Amendment did not abrogate a requirement of procedural due process, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), it did grant the States broad authority over the distribution and sale of liquor. We also held that regulations prohibiting the sale of liquor by the drink on premises where there were nude but not necessarily obscene performances were facially constitutional.
15
We, therefore, direct the District Court, after addressing the issue of jurisdiction, to reconsider its judgment in the light of Roth, Perry, and LaRue. The judgment of the District Court is vacated and the cause is remanded for proceedings consistent with this opinion.
16
It is so ordered.
17
Judgment vacated and cause remanded with directions.
18
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring.
19
Although I join the opinion of the Court, I would add that I find unimpeachably correct the District Court's conclusion that appellants failed to comply with the requirements of the Due Process Clause in denying renewal of appellees' liquor licenses. Nevertheless, since the defendants named in the complaints were the municipalities of Kenosha and Racine, jurisdiction cannot be based on 28 U.S.C. § 1343. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Appellees did assert 28 U.S.C. § 1331 as an alternative ground of jurisdiction, but I agree with the Court's conclusion that existence of the requisite amount in controversy is not, on this record, clearly established. If appellees can prove their allegation that at least $10,000 is in controversy, then § 1331 jurisdiction is available. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); cf. 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 (1971) and they are clearly entitled to relief.
20
Mr. Justice DOUGLAS, dissenting in part.
21
I have expressed my doubts in Moor v. County of Alameda, 411 U.S. 693, 722, 93 S.Ct. 1785, 1802, 36 L.Ed.2d 596 (dissenting opinion) that our decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, bars equitable relief against a municipality. In that case the legislative history* on which that construction of 'person' as used in 42 U.S.C. § 1983 was based related to the fear of mulcting municipalities with damage awards for unauthorized acts of its police officers. Monroe v. Pape may be read as containing dicta that a remedy by way of declaratory relief or by injunction is barred by § 1983 as well as suits for damages. Yet I do not think we should decide that question without full briefing and considered argument.
22
I do, however, concur in a remand for reconsideration by the District Court in light of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, and California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342.
23
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING IN PART
24
The holding in Monroe v. Pape that municipalities are not subject to suits for damages under § 1983 was based largely on Congress' rejection of the Sherman Amendment, which would have provided compensation for individuals from the county, city, or parish for any damage caused by riots, etc. Two theories were expressed in the debates for rejecting the amendment.
25
The first was the notion that civil liability for damages might destroy or paralyze local governments. Also, it was thought unjust that local governments (and indirectly the citizenry at large) should be subject to damages when they bore no responsibility. Although the Senate passed the amendment, Senator Stevenson stated in opposition:
26
'This amendment wholly ignores the municipal liability created by the omission of direct, absolute corporate duty. We are now, for the first time, presented with an enactment which undertakes to create a corporate liability for personal injury which no prudence or foresight could have prevented. . . .
27
'But, Mr. President, this amendment is clearly unconstitutional. If it is attempted to be carried out it will destroy the municipal government of every city and the local government of every county where this liability is created . . .. Let a judgment be recovered against any of our cities in the East or West and a lien is by this amendment created not only upon the municipal property of such city, but upon every dollar in the city treasury. The credit of the city, the means to discharge its contracts and its most solemn obligations are by the operation of this act to be applied to such judgment.
28
'I have heard no reason for such a lien. If carried out to its full extent, it must prove utterly destructive of the State municipalities! And whence does the Federal Government derive its power in any manner or form to touch the revenues of the State governments or any of its agencies? . . .' Cong.Globe, 42d Cong., 1st Sess., 762.
29
Senators Casserly and Bayard expressed similar concerns. Id., at 763—764, 776.
In the House, Congressman Kerr stated:
30
'There is, therefore, a total and absolute absence of notice, constructive or implied, within any decent limits of law or reason. And the bill itself is significantly silent on the subject of notice to these counties and parishes or cities. Under this section it is not required, before liability shall attach, that it shall be known that there was any intention to commit these crimes, so as to fasten liability justly upon the municipality. . . .. It takes the property of one and gives it to another by mere force, without right, in the absence of guilt or knowledge . . ..' Id., at 788.
31
See also id., at 791 (statement of Cong. Willard). And Congressman Farnsworth was concerned that the amendment would 'put the hand of the national Government into (local government') treasury.' Id., at 799.
32
There was another strain, however. Congressman Brooks viewed the amendment as raising the old struggle between the Federalists and the Democrats. Id., at 790. In the words of Congressman Poland, one of the House managers of the Conference Committee, '(w)ith these local subdivisions we have nothing to do. We can impose no duty upon them; we can impose no liability upon them in any manner whatever.' Id., at 793. He stated further:
33
'But the enforcing a liability, existing by their own contract, or by a State law, in the courts, is a very widely different thing from devolving a new duty or liability upon them by the national Government, which has no power either to create or destroy them, and no power or control over them whatever. . . .
34
'. . . Counties and towns are subdivisions of the State government, and exercise in a limited sphere and extent the powers of the State delegated to them; they are created by the State for the purpose of carrying out the laws and policy of the State, and are subject only to such duties and liabilities as State laws impose upon them.' Id., at 794.
35
After the House finally had defeated the Sherman Amendment and the Conference substitute for the amendment, Poland stated:
36
'I did understand from the action and vote of the House that the House had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of State law.' Id., at 804.
37
See also id., at 795 (statement of Cong. Burchard) 799 (statement of Cong. Farnsworth).
38
To the extent that the Sherman Amendment was directed only at liability for damages and the devastating effect those damages might have on municipalities, it seems that the defeat of the amendment does not affect the existence vel non of an equitable action. One may, of course, argue that the sweeping statements of Poland and others that Congress had no constitutional power (however defective that argument is in light of developed constitutional doctrine) to authorize any action against a subdivision of state government indicated a purpose to go the whole way and not allow even injunctive relief against a municipality. But this is a matter which the Court has never faced.
1
In the case of appellee Misurelli, it appears from the record that his partner was actually the holder of the expired license. The District Court held, however, that in substance his application was no different from those of the other appellees.
2
Wis.Stat.Ann. § 176.05 provides:
'(1) Authority to grant licenses. Each town board, village board or common council may grant retail licenses, under the conditions and restrictions in this chapter contained, to such persons entitled to a license under this chapter as they deem proper to keep places within their respective towns, villages, or cities for the sale of intoxicating liquors. No member of any such town board, village board or common council shall sell directly or indirectly or offer for sale, to any person, firm, or corporation that holds or applies for any such license any bond, material, product, or other matter or thing that may be used by any such licensee or prospective licensee in the carrying on of his or its said business.'
3
Wis.Stat.Ann. § 176.05 provides:
'(8) Annual license meetings. All town and village boards and common councils, or the duly authorized committees of such councils, shall meet not later than May 15 of each year and be in session from day to day thereafter, so long as it may be necessary, for the purpose of acting upon such applications for license as may be presented to them on or before April 15, and all applications for license so filed shall be granted, issued or denied not later than June 15 for the ensuing license year, provided that nothing shall prevent any governing body from granting any licenses which are applied for at any other time. As soon as an application has been approved, a duplicate copy thereof shall be forwarded to the secretary of revenue. No application for a license which is in existence at the time of such annual license meeting shall be rejected without a statement on the clerk's minutes as to the reasons for such rejection.'
4
The Racine denials were utilized by the District Court as the basis for the main opinion holding the Wisconsin scheme unconstitutional and the other cases were decided on the basis of the main opinion. We are therefore primarily considering the factual background of the Racine denials in our disposition.
5
No such stipulation was filed for appellee Robers, however.
6
Schnell v. City of Chicago, 407 F.2d 1084 (1969), and Adams v. City of Park Ridge, 293 F.2d 585 (1961).
7
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 . . .'
8
Title 42 U.S.C. § 1983 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 order proper proceeding for redress.'
9
The court in Schnell v. City of Chicago, supra, simply followed the previous circuit decision in Adams v. City of Park Ridge, supra, with no independent analysis.
*
See the Appendix to this opinion.
| 89
|
412 U.S. 470
93 S.Ct. 2208
37 L.Ed.2d 82
Ronald Dale WARDIUS, Petitioner,v.State of OREGON.
No. 71—6042.
Argued Jan. 10, 1973.
Decided June 11, 1973.
Syllabus
At petitioner's criminal trial, a witness' alibi evidence was struck as a sanction for petitioner's failure to file a notice of alibi in accordance with Oregon's statutory requirement, and petitioner himself was not allowed to give alibi testimony. Following petitioner's conviction the appellate court, affirming, rejected his constitutional challenge to the state statute, which grants no discovery rights to criminal defendants. Held: Reciprocal discovery is required by fundamental fairness and it is insufficient that although the statute does not require it, the State might grant reciprocal discovery in a given case. In the absence of fair notice that petitioner will have an opportunity to discover the State's rebuttal witnesses, petitioner cannot, consistently with due process requirements, be required to reveal his alibi defense. Pp. 473—479.
Reversed and remanded; see 6 Or.App. 391, 487 P.2d 1380.
J. Marvin Kuhn, Deputy Public Defender, Salem, Or., for petitioner.
W. Michael Gillette, Asst. Atty. Gen., Dept. of Justice, Salem, Or., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case involves important questions concerning the right of a defendant forced to comply with a 'notice-of-alibi' rule to reciprocal discovery.
2
In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), we upheld the constitutionality of Florida's notice-of-alibi rule which required criminal defendants intending to rely on an alibi defense to notify the prosecution of the place at which they claimed to be at the time in question, and of the names and addresses of witnesses they intended to call in support of the alibi.1 In so holding, however, we emphasized that the constitutionality of such rules might depend on 'whether the defendant enjoys reciprocal discovery against the State.' Id., at 82 n. 11, 90 S.Ct., at 1896.2 In the case presently before us, Oregon prevented a criminal defendant from introducing any evidence to support his alibi defense as a sanction for his failure to comply with a notice-of-alibi rule which, on its face, made no provision for reciprocal discovery.3 The case thus squarely presents the question left open in Williams, and we granted certiorari so that this question could be resolved. 406 U.S. 957, 92 S.Ct. 2066, 32 L.Ed.2d 343 (1972).
3
We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner, and his conviction must be reversed.4
4
* On May 22, 1970, petitioner was indicted under Ore.Rev.Stat. § 474.020 for unlawful sale of narcotics. The sale allegedly occurred the previous day. At trial, after the State had concluded its case, petitioner called one Colleen McFadden who testified that on the night in question, she had been with petitioner at a drive-in movie. The prosecutor thereupon brought to the judge's attention petitioner's failure to file a notice of alibi, and after hearing argument the trial judge granted the State's motion to strike McFadden's testimony because of this failure. Petitioner himself then took the stand and attempted to testify that he was at the drive-in with McFadden at the time when the State alleged the sale occurred. Once again, however, the State objected and the trial judge again refused to permit the evidence.
5
Petitioner was convicted as charged and sentenced to 18 months' imprisonment. On appeal, the Oregon Court of Appeals rejected petitioner's contentions that the Oregon statute was unconstitutional in the absence of reciprocal discovery rights and that the exclusion sanction abridged his right to testify in his own behalf and his right to compulsory process. 6 Or.App. 391, 487 P.2d 1380 (1971). In an unreported order, the Oregon Supreme Court denied petitioner's petition to review. See App. 21.
II
6
Notice-of-alibi rules, now in use in a large and growing number of States,5 are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial. See, e.g., Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q. 279; American Bar Association Project on Standards for Criminal Justice, Discovery and Procedure Before Trial 23—43 (Approved Draft 1970); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 (1960). The growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system. As we recognized in Williams, nothing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals. 'The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as 'due process' is concerned, for (a rule) which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.' 399 U.S., at 82 (footnote omitted), 90 S.Ct., at 1896.
7
Although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, but cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it does speak to the balance of forces between the accused and his accuser. Cf. In re Winship, 397 U.S. 358, 361—364, 90 S.Ct. 1068, 1070—1073, 25 L.Ed.2d 368 (1970).6 The Williams Court was therefore careful to note that 'Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant.' 399 U.S., at 81 (footnote omitted), 90 S.Ct., at 1896. The same cannot be said of Oregon law. As the State conceded at oral argument, see Tr. of Oral Arg. 19, Oregon grants no discovery rights to criminal defendants, and, indeed, does not even provide defendants with bills of particulars.7 More significantly, Oregon, unlike Florida, has no provision which requires the State to reveal the names and addresses of witnesses it plans to use to refute an alibi defense.8
8
We do not suggest that the Due Process Clause of its own force requires Oregon to adopt such provisions. Cf. United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). But we do hold that in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a 'search for truth' so far as defense witnesses are concerned, while maintaining 'poker game' secrecy for its own witnesses.9 It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.
9
Indeed, neither the respondent nor the Oregon Court of Appeals contests these principles. Nor does not State suggest any significant governmental interests which might support the lack of reciprocity. Instead, respondent has chosen to rest its case on a procedural point. While conceding that Oregon law fails to provide for reciprocal discovery on its face, the State contends that if petitioner had given notice of his alibi defense, the state courts might have read the Oregon statute as requiring the State to give the petitioner the names and addresses of state witnesses used to refute the alibi defense. Since petitioner failed to give notice, his alibi defense was not permitted and there were, therefore, no state rebuttal witnesses whose testimony tended to disprove the alibi. Since no such testimony was introduced, respondent argues that Oregon's willingness to permit reciprocal discovery remains untested. The State says, in effect, that petitioner should not be permitted to litigate the reciprocity issue in the abstract in federal court after bypassing an opportunity to contest the issue concretely before the state judiciary.10
10
It is, of course, true that the Oregon courts are the final arbiters of the State's own law, and we cannot predict what the state court might have done had it been faced with a defendant who had given the required notice of alibi and then sought reciprocal discovery rights. But it is this very lack of predictability which ultimately defeats the State's argument. At the time petitioner was forced to decide whether or not to reveal his alibi defense to the prosecution, he had to deal with the statute as written with no way of knowing how it might subsequently be interpreted. Nor could he retract the information once provided should it turn out later that the hoped-for reciprocal discovery rights were not granted.
11
For this reason, had petitioner challenged the lack of reciprocity by giving notice and then demanding discovery, he would have done so at considerable risk. To be sure, the state court might have construed the Oregon statutes so as to save the constitutionality of the notice requirement and granted reciprocal discovery rights. But the state court would also have had the option of reading state law as precluding reciprocal discovery. If the court adopted this latter alternative, it would have had to strike down the notice-of-alibi requirement. But petitioner would have had only a Pyrrhic victory, since once having given the State his alibi information, he could not have retracted it. Thus, under this scenario, even though the notice-of-alibi rule would have been invalidated, the State would still have had the benefit of nonreciprocal discovery rights in petitioner's case—the very result which petitioner wishes to avoid by challenging the rule.
12
The statute as written did not provide for reciprocal discovery, and petitioner cannot be faulted for taking the legislature at its word.11 Indeed, even at this stage of the proceedings, the respondent has made no representation that the State would in fact provide reciprocal discovery rights to a defendant who complied with the notice-of-alibi scheme. Respondent says only that the State might have granted such rights.12 But the State cannot constitutionally force compliance with its scheme on the basis of a totally unsubstantiated possibility that the statute might be read in a manner contrary to its plain language. Thus, in the absence of fair notice that he would have an opportunity to discover the State's rebuttal witnesses, petitioner cannot be compelled to reveal his alibi defense.
13
Since the trial court erred and since there is a substantial possibility that its error may have infected the verdict, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
14
Reversed and remanded.
15
THE CHIEF JUSTICE concurs in the result.
16
Mr. Justice DOUGLAS, concurring in the result.
17
In Williams v. Florida, 399 U.S. 78, 106, 90 S.Ct. 1893, 1908, 26 L.Ed.2d 446, I joined Mr. Justice Black in dissent from that part of the Court's decision which upheld the constitutionality of Florida's 'notice of alibi' rule. We concluded that the decision was 'a radical and dangerous departure from the historical and constitutionally guaranteed right of a defendant in a criminal case to remain completely silent requiring the State to prove its case without any assistance of any kind from the defendant himself.' Id., at 108, 90 S.Ct., at 1909. One need not go far for the textual support for this position. The Fifth Amendment, written with the inquisitorial practices of the Star Chamber firmly in mind, provides that '(n)o person . . . shall be compelled . . . to be a witness against himself.' It seems difficult to quarrel with the conclusion that a 'notice of alibi' provision contravenes this clear mandate, for the State would see no need for the rule unless it believed that such notice would ease its burden of proving its case or increase the efficiency of its presentation. In either case, the defendant has been compelled to aid the State in his prosecution.
18
The Court views the growth of 'such discovery devices' as a 'salutary development' because it increases the evidence available to both parties. Ante, at 474. This development, however, has altered the balance struck by the Constitution. The Bill of Rights does not envision an adversary proceeding between two equal parties. If that were so, we might well benefit from procedures patterned after the Rules of the Marquis of Queensberry. But, the Constitution recognized the awesome power of indictment and the virtually limitless resources of government investigators. Much of the Bill of Rights is designed to redress the advantage that inheres in a government prosecution. It is not for the Court to change that balance. See Williams v. Florida, supra, at 111—114, 90 S.Ct., at 1911—1913 (Black, J., dissenting).
19
I agree with the Court that petitioner's conviction must be reversed, but for the reasons stated by Mr. Justice Black in his dissent in Williams. To reverse it because of uncertainty as to the presence of reciprocal discovery is not to take the Constitution as written but to embellish it in the manner of the old masters of substantive due process.
1
The requirement was attacked as a violation of the defendant's due process right to a fair trial and an invasion of his privilege against self-incrimination. But the Court found that '(g)iven the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.' 399 U.S., at 81, 90 S.Ct., at 1896. Moreover, we held that 'the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.' Id., at 83, 90 S.Ct., at 1897.
2
The Florida rule provided:
"Not less than five days after receipt of defendant's witness list, or such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the State proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause." See 399 U.S., at 104, 90 S.Ct., at 1908.
3
Ore.Rev.Stat. § 135.875 provides:
'(1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, he shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of his purpose to offer such evidence, which notice shall state specifically the place or places where the defendant claims to have been at the time or times of the alleged offense together with the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence. If the defendant fails to file and serve such notice, he shall not be permitted to introduce alibi evidence at the trial of the cause unless the court for good cause orders otherwise.
'(2) As used in this section, 'alibi evidence' means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed.'
4
Petitioner also argues that even if Oregon's notice-of-alibi rule were valid, it could not be enforced by excluding either his own testimony or the testimony of supporting witnesses at trial. But in light of our holding that Oregon's rule is facially invalid, we express no view as to whether a valid rule could be so enforced. Cf. Williams v. Florida, supra, 399 U.S., at 83 n. 14, 90 S.Ct., at 1897.
5
See id., 82 n. 11, 90 S.Ct., at 1896; Note, The Preclusion Sanction—A Violation of the Constitutional Right to Present a Defense, 81 Yale L,J. 1342 n. 4 (1972).
6
This Court has therefore been particularly suspicious of state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial. See, e.g., Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 1924, 18 L.Ed.2d 1019 (1967); Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). Cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180—1192 (1960).
7
As the Oregon Court of Appeals has recently pointed out, 'Oregon's criminal code is almost completely lacking in pretrial discovery procedures.' State v. Kelsaw, 11 Or.App. 289, 295, 502 P.2d 278, 280—281 (1972), pet. for cert. pending, No. 72—6012.
8
The only discovery rights Oregon appears to permit are the rights to view written statements made by state witnesses and by the defendant, in the hands of the police. See State v. Foster, 242 Or. 101, 407 P.2d 901 (1965); Ore.Rev.Stat. §§ 133.750, 133.755. Cf. State v. Kelsaw, supra.
9
Indeed, the State's inherent information-gathering advantages suggest that if there is to be any imbalance in discovery rights, it should work in the defendant's favor. As one commentator has noted:
'Besides greater financial and staff resources with which to investigate and scientifically analyze evidence, the prosecutor has a number of tactical advantages. First, he begins his investigation shortly after the crime has been committed when physical evidence is more likely to be found and when witnesses are more apt to remember events. Only after the prosecutor has gathered sufficient evidence is the defendant informed of the charges against him; by the time the defendant or his attorney begins any investigation into the facts of the case, the trail is not only cold, but a diligent prosecutor will have removed much of the evidence from the field. In addition to the advantage of timing, the prosecutor may compel people, including the defendant, to cooperate. The defendant may be questioned within limits, and if arrested his person may be searched. He may also be compelled to participate in various nontestimonial identification procedures. The prosecutor may force third persons to cooperate through the use of grand juries and may issue subpoenas requiring appearance before prosecutorial investigatory boards. With probable cause the police may search private areas and seize evidence and may tap telephone conversations. They may use undercover agents and have access to vast amounts of information in government files. Finally, respect for government authority will cause many people to cooperate with the police or prosecutor voluntarily when the might not cooperate with the defendant.' Note, Prosecutorial Discovery under Proposed Rule 16, 85 Harv.L.Rev. 994, 1018—1019 (1972) (footnotes omitted).
10
Before this Court, respondent presses the related argument that petitioner failed to object to the exclusion of his alibi testimony at trial and that his conviction therefore rests on an independent state procedural ground. See Brief for Respondent 5 n. 2. But, as the transcript makes clear, the issue arose when the trial court sustained the State's objection to introduction of the alibi testimony. Petitioner then proceeded to make an 'offer of proof' in order to protect the record on appeal. Respondent cites us to no Oregon cases which would require petitioner to object to the sustaining of an objection in this context, and the state appellate court's willingness to reach the merits of petitioner's federal claims provides convincing proof that the judgment does not rest on adequate state grounds. See Warden v. Hayden, 387 U.S. 294, 297 n. 3, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967).
11
Nor did petitioner's attorney rest entirely on his own reading of Oregon's discovery provisions. As the attorney argued at trial,
'Several weeks ago this came up again—this came up in the Circuit Court here with Judge Perry, and Judge Perry allowed the alibi testimony in based upon (Williams v. Florida) and said that he at that time, based on our statute and based on this opinion, that he didn't feel that our criminal code and our statute should allow a substantive evidence (sic) that the defendant might have to be kept out due to this, and that is the reason that notice was not given. I relied somewhat upon that and my own interpretation of this case also.' App. 6.
12
The State cites us to State v. Kelsaw, supra, a recent Oregon Court of Appeals decision holding that a defendant must be given reciprocal information as to the time and place of the alleged offense before he can be required to comply with the notice of alibi rule. But merely informing the defendant of the time and place of the crime does not approach the sort of reciprocity which due process demands. Moreover, in view of the fact that Kelsaw was decided after petitioner's trial, it cannot be suggested that the decision gave him notice that even this limited reciprocity would be granted.
| 01
|
412 U.S. 434
93 S.Ct. 2260
37 L.Ed.2d 56
Clarence Eugene STRUNK, Petitioner,v.UNITED STATES.
No. 72—5521.
Argued April 24, 1973.
Decided June 11, 1973.
Syllabus
Petitioner was convicted of a federal offense and was sentenced to a term of five years, to run concurrently with a sentence of one to three years that he was serving pursuant to a state-court conviction. Before trial, the District Court denied his motion to dismiss the federal charge on the ground that he had been denied a speedy trial. The Court of Appeals reversed, holding that he had been denied a speedy trial, but that the 'extreme' remedy of dismissal of the charges was not warranted. The case was remanded to the District Court to reduce the sentence by 259 days, to compensate for the unnecessary delay that had occurred between the return of the indictment and petitioner's arraignment. The government did not file a cross-petition for certiorari challenging the finding of denial of a speedy trial. Held: In this case, the only question for review is the propriety of the remedy fashioned by the Court of Appeals. In light of the policies underlying the right to a speedy trial, dismissal must remain, as noted in Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 'the only possible remedy' for deprivation of this constitutional right. Pp. 2261—2264.
467 F.2d 969, reversed and remanded.
John R. Wideikis, Chicago, Ill., for petitioner, pro hac vice, by special leave of Court.
William Bradford Reynolds, Washington, D.C., for respondent.
Opinion of the Court by Mr. Chief Justice BURGER, announced by Mr. Justice DOUGLAS.
1
Petitioner was found guilty in United States District Court of transporting a stolen automobile from Wisconsin to Illinois in violation of 18 U.S.C. § 2312 and was sentenced to a term of five years. The five-year sentence was to run concurrently with a sentence of one to three years that petitioner was then serving in the Nebraska State Penitentiary pursuant to a conviction in the courts of that State.
2
Prior to trial, the District Court denied a motion to dismiss the federal charge, in which petitioner argued that he had been denied his right to a speedy trial. At trial petitioner called no witnesses and did not take the stand; the jury returned a verdict of guilty. The Court of Appeals reversed the District Court, holding that petitioner had in fact been denied a speedy trial. However, the court went on to hold that the 'extreme' remedy of dismissal of the charges was not warranted; the case was remanded to the District Court to reduce petitioner's sentence to the extent of 259 days in order to compensate for the unnecessary delay which had occurred between return of the indictment and petitioner's arraignment.
3
* Certiorari was granted on petitioner's claim that, once a judicial determination has been made that an accused has been denied a speedy trial, the only remedy available to the court is 'to reverse the conviction, vacate the sentence, and dismiss the indictment.' No cross-petition was filed by the Government to review the determination of the Court of Appeals that the defendant had been denied a speedy trial. The Government acknowledges that, in its present posture, the case presents a novel and unresolved issue, not controlled by any prior decisions of this Court.
4
The Court of Appeals stated that the 10-month delay which occurred was 'unusual and call(ed) for explanation as well as justification,' 467 F.2d 969, 972. The Government responded that petitioner had, after receiving the proper warnings, freely admitted his guilt to an FBI agent while incarcerated in the Nebraska Penitentiary, and had stated that he intended to demand a speedy trial under Fed.Rule Crim.Proc. 20. The Government claimed that it had postponed prosecution because of petitioner's reference to Rule 20, and consequently, that a large portion of the delay which ensued was attributable to petitioner. The Court of Appeals regarded this explanation as tenuous; it also rejected the lack of staff personnel in the United States Attorney's Office as a justification for the delay. The entire course of events from the time of arrest through the Court of Appeals plainly placed the Government on notice that the speedy trial issue was being preserved by the accused and would be pressed, as indeed it has been.
5
On this record, it seems clear that petitioner was responsible for a large part of the 10-month delay which occurred and that he neither showed nor claimed that the preparation of his defense was prejudiced by reason of the delay. It may also well be correct that the United States Attorney was understaffed due to insufficient appropriations and, consequently, was unable to provide an organization capable of dealing with the rising caseload in his office, especially with respect to criminal cases. Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense, in determining whether the Sixth Amendment has been violated but, as we noted in Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), they must
6
'nevertheless . . . be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.' This served to reaffirm what the Court held earlier in Dickey v. Florida, 398 U.S. 30, 37—38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970):
7
'Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.'1 (Footnote omitted.)
8
However, in the absence of a cross-petition for certiorari, questioning the holding that petitioner was denied a speedy trial, the only question properly before us for review is the propriety of the remedy fashioned by the Court of Appeals. Whether in some circumstances, and as to some questions, the Court might deal with an issue involving constitutional claims, absent its being raised by cross-petition, we need not resolve. Suffice it that in the circumstances presented here in which the speedy trial issue has been pressed by the accused from the time of arrest forward and resolved in his favor, we are not disposed to examine the issue since we must assume the Government deliberately elected to allow the case to be resolved on the issue raised by the petition for certiorari.
II
9
Turning to the remaining question of the power of the Court of Appeals to fashion what it appeared to consider as a 'practical' remedy, we note that the court clearly perceived that the accused had an interest in being tried promptly, even though he was confined in a penitentiary for an unrelated charge. Under these circumstances,
10
'the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed.' Smith v. Hooey,
11
393 U.S. 374, 378, 89 S.Ct. 575, 577, 21 L.Ed.2d 607 (1969) (footnote omitted).
The Court of Appeals went on to state:
12
'The remedy for a violation of this constitutional right has traditionally been the dismissal of the indictment or the vacation of the sentence. Perhaps the severity of that remedy has caused courts to be extremely hesitant in finding a failure to afford a speedy trial. Be that as it may, we know of no reason why less drastic relief may not be granted in appropriate cases. Here no question is raised about the sufficiency of evidence showing defendant's guilt, and, as we have said, he makes no claim of having been prejudiced in presenting his defense. In these circumstances, the vacation of the sentence and a dismissal of the indictment would seem inappropriate. Rather, we think the proper remedy is to remand the case to the district court with direction to enter an order instruction the Attorney General to credit the defendant with the period of time elapsing between the return of the indictment and the date of the arraignment Fed.R.Crim.P. 35 provides that the district court may correct an illegal sentence at any time. We choose to treat the sentence here imposed as illegal to the extent of the delay we have characterized as unreasonable.' 467 F.2d, at 973.
13
It is correct, as the Court of Appeals noted, that Barker prescribes 'flexible' standards based on practical considerations. However, that aspect of the holding in Barker was directed at the process of determining whether a denial of speedy trial had occurred; it did not deal with the remedy for denial of this right. By definition, such denial is unlike some of the other guarantees of the Sixth Amendment. For example, failure to afford a public trial, an impartial jury, notice of charges, or compulsory service can ordinarily be cured by providing those guaranteed rights in a new trial. The speedy trial guarantee recognizes that a prolonged delay may subject the accused to an emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial or of receiving a sentence longer than, or consecutive to, the one he is presently serving uncertainties that a prompt trial removes. Smith v. Hooey, 393 U.S., at 379, 89 S.Ct., at 577, 578; United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). We recognizes, as the Court did in Smith v. Hooey, that the stress from a delayed trial may be less on a prisoner already confined, whose family ties and employment have been interrupted,2 but other factors such as the prospect of rehabilitation may also be affected adversely. The remedy chosen by the Court of Appeals does not deal with these difficulties.
14
The Government's reliance on Barker to support the remedy fashioned by the Court of Appeals is further undermined when we examine the Court's opinion in that case as a whole. It is true that Barker described dismissal of an indictment for denial of a speedy trial as an 'unsatisfactorily severe remedy.' Indeed, in practice, 'it means that a defendant who may be guilty of a serious crime will go free, without having been tried.' 407 U.S., at 522, 92 S.Ct., at 2188, 33 L.Ed.2d 101. But such severe remedies are not unique in the application of constitutional standards. In light of the policies which underlie the right to a speedy trial, dismissal must remain, as Barker noted, 'the only possible remedy.' Ibid.
15
Given the unchallenged determination that petitioner was denied a speedy trial,3 the District Court judgment of conviction must be set aside; the judgment is therefore reversed and the case remanded to the Court of Appeals to direct the District Court to set aside its judgment, vacate the sentence, and dismiss the indictment.
16
Reversed and remanded.
1
American Bar Association Project on Standards for Criminal Justice, Speedy Trial 27—28 (Approved Draft 1968) (hereafter ABA, Speedy Trial).
2
It can also be said that an accused released pending trial often has little or no interest in being tried quickly; but this, standing alone, does not alter the prosecutor's obligation to see to it that the case is brought on for trial. The desires or convenience of individuals cannot be controlling. The public interest in a broad sense, as well as the constitutional guarantee, commands prompt disposition of criminal charges.
3
ABA, Speedy Trial 40—41.
| 01
|
412 U.S. 541
93 S.Ct. 2770
37 L.Ed.2d 140
Robert W. FRI, Acting Administrator of the Environmental Protection Agency, petitioner,v.SIERRA CLUB et al.
No. 72-804.
Supreme Court of the United States
June 11, 1973
Lawrence G. Wallace, Washington, D.C., for petitioner.
Bruce J. Terris, Washington, D.C., for respondents.
On writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice POWELL took no part in the decision of this case.
| 78
|
412 U.S. 735
93 S.Ct. 2321
37 L.Ed.2d 298
J. Brian GAFFNEY, Appellant,v.Theodore R. CUMMINGS et al.
No. 71—1476.
Argued Feb. 26 and 27, 1973.
Decided June 18, 1973.
Syllabus
Connecticut's legislative apportionment plan was held by the District Court to be unconstitutional because partisan political structuring had resulted in excessive population deviations in the House districting. Held:
1. Minor deviations from mathematical equality among state legislative districts do not make out a prima facie case of invidious discrimination under the Equal Protection Clause of the Fourteenth Amendment, and in this case, where the House districts deviated on the average by 1.9% and the maximum deviation was 7.83%, a prima facie case was not made out. Pp. 740—751.
2. A 'political fairness principle' that achieves a rough approximation of the statewide political strengths of the two major parties does not violate the Equal Protection Clause. Pp. 751—754.
341 F.Supp. 139, reversed.
Robert G. Dixon, Jr., Washington, D.C., for appellant.
Robert Satter, Hartford, Conn., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
The questions in this case are whether the population variations among the election districts provided by a reapportionment plan for the Connecticut General Assembly, proposed in 1971, made out a prima facie case of invidious discrimination under the Equal Protection Clause and whether an otherwise acceptable reapportionment plan is constitutionally vulnerable where its purpose is to provide districts that would achieve 'political fairness' between the political parties.
2
* The reapportionment plan for the Connecticut General Assembly became law when published by Connecticut's Secretary of State in December 1971. Under the State's Constitution, the legislature is given the initial opportunity to reapportion itself in the months immediately following the completion of a decennial census of the United States. Conn.Const., Art. III, § 6(b). In the present case, the legislature was unable to agree on a plan by the state constitutional deadline of April 1, 1971. The task was therefore transferred, as required by the constitution, to an eight-member bipartisan commission. Ibid. The Democratic and Republican Party leaders in the legislature each appointed four commissioners. The commission was given until July 1, 1971, to devise a reapportionment plan, id., § 6(c); but, although the commission approached agreement, it too was unable to adopt a plan within the deadline. Accordingly, as a final step in the constitutional process, a three-man bipartisan Board was constituted. Id., § 6(d). The Speaker of the House of Representatives, a Democrat, and the Republican Minority Leader of the House each chose a judge of the State Superior Court to be a Board member, and the two judges in turn designated a third Board member, who was a justice of the State Supreme Court. Ibid.
3
This Apportionment Board, using the census data available during the summer of 1971, and relying heavily on the legislative commission's tentative plans, filed a reapportionment plan on September 30, 1971, with one member dissenting.
4
According to the 1970 census data before the Board, the population of Connecticut is 3,032,217. The Board's reapportionment plan provides for a Senate consisting of 36 senators elected from single-member districts. The ideal senatorial district, in terms of population, would thus contain 84,228 people. The districts actually created deviate, on the average, by 0.45% from this ideal, the median deviation being 0.47%. The largest and smallest senatorial districts deviate by 0.88% and -0.93%, respectively, making the total maximum deviation 1.81%.1
5
The reapportionment plan proposed a House of 151 single-member districts. The population of the ideal assembly district would be 20,081. The average deviation from perfect equality for all the plan's assembly districts is 1.9%, the median deviation, 1.8%. The maximum deviation from the ideal is 3.93% and -3.9%. The maximum deviation between any two districts thus totals 7.83%.2
6
In Connecticut, towns rather than counties are the basic unit of local government. See Butterworth v. Dempsey, 229 F.Supp. 754, 761 (D.C.Conn.), aff'd, 378 U.S. 564, 84 S.Ct. 1818, 12 L.Ed.2d 1037 (1964). The State Constitution provides that 'no town shall be divided' for the purpose of creating House districts, except where districts are formed 'wholly within the town.' Art. III, § 4. No comparable directive exists for the creation of Senate districts. The constitution further provides, however, that the 'establishment of districts . . . shall be consistent with federal constitutional standards.' Id., § 5. To meet those standards and to reach what it thought to be substantial population equality, the Board cut the boundary lines of 47 of the State's 169 towns.3 The Board also consciously and overtly adopted and followed a policy of 'political fairness,' which aimed at a rough scheme of proportional representation of the two major political parties. Senate and House districts were structured so that the composition of both Houses would reflect 'as closely as possible . . . the actual (statewide) plurality of vote on the House or Senate lines in a given election.'4 Rather than focusing on party membership in the respective districts, the Board took into account the party voting results in the preceding three statewide elections, and, on that basis, created what was thought to be a proportionate number of Republican and Democratic legislative seats.
7
In November 1971, not long after the Board filed the reapportionment plan with the Secretary of the State, an action was brought in federal district court seeking declaratory and injunctive relief against implementation of the plan. The complaint alleged that the Board 'erroneously applied the one man-one vote doctrine of the Fourteenth Amendment . . . to achieve smaller deviations from population equality for the assembly districts than was required by the Fourteenth Amendment . . . and thereby was compelled to segment an excessive number of towns in forming assembly district.' The complaint further alleged the plan amounted to a political gerrymander and contained 'a built-in bias in favor of the Republican Party.' Appellant Gaffney, the Chairman of the State Republican Party, was permitted to intervene in support of the Board's plan and, after a three-judge court was empaneled, the court heard testimony in March 1972. At the hearing, plaintiff-appellees introduced three alternative House apportionment plans that required fewer town-line cuts, although all three plans involved total deviations from population equality in excess of those contained in the Board plan.5 A fourth plan for the House was submitted with a total maximum deviation from population equality among districts of 2.61%, as compared with the Board plan, which contained a 7.83% total maximum deviation. This alternative plan, however, was prepared without regard for town lines, which were cut substantially more times than in the Board plan.6 Considerable evidence was introduced demonstrating the obvious political considerations in the Board's district making.7 In late March, the District Court filed its decision invalidating the Board plan and permanently enjoining its use in future elections. 341 F.Supp. 139. The court held that 'the deviations from equality of populations of the Senate and House districts are not justified by any sufficient state interest and that the Plan denies equal protection of the law to voters in the districts of greater population . . ..' Id., at 148. The court relied in part on Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). More particularly, the court found that the policy of 'partisan political structuring,' 341 F.Supp., at 150, 'cannot be approved as a legitimate reason for violating the requirement of numerical equality of population in districting.' Id., at 149. The court therefore required that a plan reflecting 'closer adherence to the constitutional guidelines' be adopted. Jurisdiction over the case was retained for all purposes, and the court announced that it 'will appoint a master . . . to devise a plan conforming to federal and state constitutional requirements . . ..' Id., at 150.
8
On June 12, 1972, after a motion to expedite consideration of the appeal had been denied (406 U.S. 942, 92 S.Ct. 2047, 32 L.Ed.2d 330), this Court granted appellant's motion for a stay of the District Court's judgment. 407 U.S. 902, 92 S.Ct. 2441, 32 L.Ed.2d 679. On the basis of that stay, and a subsequent supportive state order,8 the 1972 fall elections for the State Assembly were held under the Board's reapportionment plan. When this Court convened in October 1972, we noted probable jurisdiction over the appeal. 409 U.S. 839, 93 S.Ct. 46, 34 L.Ed.2d 78. By this time, a Special Master had been appointed by the District Court and had prepared a reapportionment plan.
II
9
We think that appellees' showing of numerical deviations from population equality among the Senate and House districts in this case failed to make out a prima facie violation of the Equal Protection Clause of the Fourteenth Amendment, whether those deviations are considered alone or in combination with the additional fact that another plan could be conceived with lower deviations among the State's legislative districts. Put another way, the allegations and proof of population deviations among the districts fail in size and quality to amount to an invidious discrimination under the Fourteenth Amendment which would entitle appellees to relief, absent some countervailing showing by the State.
10
The requirement of Art. I, § 2, of the Constitution, that representatives be chosen 'by the People of the several States,' mandates that 'one man's vote in a congressional election is to be worth as much as another's.' Wesberry v. Sanders, 376 U.S. 1, 8, 84 S.Ct. 526, 530, 11 L.Ed.2d 481 (1964) (footnote omitted). This standard 'permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.' Kirkpatrick v. Preisler, 394 U.S., at 531, 89 S.Ct., at 1229. In Kirkpatrick and in Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), the Court found inconsistent with this standard state statutes creating congressional districts having total maximum deviations of 5.97% and 13.1%, respectively. It is the standard of these cases which is the prevailing rule under Art. I and which we confirm in White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335, today for the purposes of congressional reapportionment.
11
Earlier this Term, the question arose whether the same standard is applicable when reviewing state legislative reapportionments under the Equal Protection Clause of the Fourteenth Amendment. Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). We concluded that there are fundamental differences between congressional districting under Art. I and the Wesberry line of cases on the one hand, and, on the other, state legislative reapportionments governed by the Fourteenth Amendment and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and its progeny. Noting that the 'dichotomy between the two lines of cases has consistently been maintained,' 410 U.S., at 322, 93 S.Ct., at 984, we concluded that 'the constitutionality of Virginia's legislative redistricting plan was not to be judged by the more stringent standards that Kirkpatrick and Wells make applicable to congressional reapportionment, but instead by the equal protection test enunciated in Reynolds v. Sims,' id., at 324, 93 S.Ct., at 985, that test being that districts in state reapportionments be 'as nearly of equal population as is practicable,' Reynolds, supra, at 577, 84 S.Ct., at 1390, and that '(s)o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature.' Id., at 579, 84 S.Ct., at 1391. In Mahan, the ideal district was 46,485 persons per delegate. The maximum variation from the ideal was 16.4%—'the 12th district being overrepresented by 6.8% and the 16th district being underrepresented by 9.6%.' 410 U.S., at 319 (footnote omitted). The average percentage variation under the plan was 3.89%. Of the 52 house districts, 35 were within 4% of the ideal district, and nine exceeded a 6% variation from the ideal.
12
The asserted justification for the divergencies in Mahan was 'the State's policy of maintaining the integrity of political subdivision lines,' id., at 325, 93 S.Ct., at 985, a policy we found to be rational and wholly sufficient to justify the district population disparities of the size and quality that had been found to exist. We ruled that the 'relatively minor variations present in the Virginia plan contrast sharply with the larger variations in state legislative reapportionment plans that have been struck down by previous decisions of this Court,' id., at 329, 93 S.Ct., at 987, and that 'Virginia has not sacrificed substantial equality to justifiable deviations.' Ibid.
13
Although requiring that the population variations among legislative districts in Mahan be justified by substantial state considerations, we did not hold that in state legislative cases any deviations from perfect population equality in the districts, however small, make out prima facie equal protection violations and require that the contested reapportionments be struck down absent adequate state justification. Nor had we so held in any prior state reapportionment case. Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), and Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), required state justification of population variations found in state legislative reapportionments, but the variations involved in each of these cases exceeded those we dealt with in Mahan.
14
In the case now before us, appellant urges that the population variations among Senate and House districts in the Board plan did not in and of themselves demonstrate an equal protection violation and that the State was not required to justify them, absent further proof of invidiousness by appellees. For several reasons we think the point is well taken and that the District Court erred in holding to the contrary.
15
As we noted in Mahan v. Howell, Reynolds v. Sims recognized that a State must make an honest and good-faith effort to construct its districts 'as nearly of equal population as is practicable,' but that absolute equality was a 'practical impossibility': 'Mathematical exactness or precision is hardly a workable constitutional requirement.' 377 U.S., at 577, 84 S.Ct., at 1390. Moreover, the Reynolds court also noted that 'some distinctions may well be made between congressional and state legislative representation,' and that '(s) omewhat more flexibility may therefore be constitutionally permissible with respect to state legislative apportionment than in congressional districting.' Id., at 578, 84 S.Ct., at 1390. All that would be required was 'substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.' Id., at 579, 84 S.Ct., at 1396. In other words, '(s)imply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.' Id., at 568, 84 S.Ct. at 1385.
16
As these pronouncements have been worked out in our cases, it has become apparent that the larger variations from substantial equality are too great to be justified by any state interest so far suggested. There were thus the enormous variations struck down in the early cases beginning with Reynolds v. Sims,9 as well as the much smaller, but nevertheless unacceptable deviations, appearing in later cases such as Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967); Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967); and Whitcomb v. Chavis, 403 U.S. 124, 161—163, 91 S.Ct. 1858, 1878—1879, 29 L.Ed.2d 363 (1971). On the other hand, as Mahan v. Howell demonstrates, population deviations among districts may be sufficiently large to require justification but nonetheless be justifiable and legally sustainable. It is now time to recognize, in the context of the eminently reasonable approach of Reynolds v. Sims, that minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.
17
We doubt that Reynolds would mandate any other result, if for no other reason than that the basic statistical materials which legislatures and courts usually have to work with are the results of the United States census taken at 10-year intervals and published as soon as possible after the beginning of each decade. These figures may be as accurate as such immense undertakings can be, but they are inherently less than absolutely accurate. Those who know about such things recognize this fact,10 and, unless they are to be wholly ignored, it makes little sense to conclude from relatively minor 'census population' variations among legislative districts that any person's vote is being substantially diluted. The 'population' of a legislative district is just not that knowable to be used for such refined judgments.
18
What is more, it must be recognized that total population, even if absolutely accurate as to each district when counted, is nevertheless not a talismanic measure of the weight of a person's vote under a later adopted reapportionment plan. The United States census is more of an event than a process. It measures population at only a single instant in time. District populations are constantly changing, often at different rates in either direction, up or down. Substantial differentials in population growth rates are striking and well-known phenomena.11 So, too, if it is the weight of a person's vote that matters, total population—even if stable and accurately taken—may not actually reflect that body of voters whose votes must be counted and weighed for the purposes of reapportionment, because 'census persons' are not voters.12 The proportion of the census population too young to vote or disqualified by alienage or nonresidence varies substantially among the States and among localities within the States. The six congressional districts in Connecticut, for example, vary from one another by as much as 4% in their age-eligible voters, with the first district having 68% of its census population at voting age while the sixth district has 64% at 18 years or older. Bureau of the Census, Congressional District Data Book, 93d Congress, Connecticut 7—8 (1972). Other States have congressional districts that vary from one another by as much as 29% and as little as 1% with respect to their age-eligible voters.13 And these figures tell us nothing of the other ineligibles making up the substantially equal census populations among election districts: aliens, nonresident military personnel, nonresident students, for example. See Burns v. Richardson, 384 U.S. 73, 90—97, 86 S.Ct. 1286, 1295—1299, 16 L.Ed.2d 376 (1966); Davis v. Mann, 377 U.S. 678, 691—692, 84 S.Ct. 1441, 1448—1449, 12 L.Ed.2d 609 (1964); Ely v. Klahr, 403 U.S. 108, 115—116, n. 7, 91 S.Ct. 1803, 1807—1808, 29 L.Ed.2d 352 (1971); Mahan v. Howell, 410 U.S., at 330—332, 93 S.Ct., at 987 989. Nor do these figures tell anything at all about the proportion of all those otherwise eligible individuals whose vote cannot be counted or weighed because they either failed to register or failed to vote.14
19
Reynolds v. Sims, of course, dealt with more than the statistical niceties involved in equalizing individual voting strength. It argued that 'if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.' 377 U.S., at 562, 84 S.Ct., at 1382. To conclude differently, 'and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result.' Id., at 565, 84 S.Ct., at 1383. More fundamentally, Reynolds recognized that 'the achieving of fair and effective representation for all citizens is . . . the basic aim of legislative apportionment' id., at 565—566, 84 S.Ct., at 1383, and it was for that reason that the decision insisted on substantial equality of populations among districts.
20
This is a vital and worthy goal, but surely its attainment does not in any commonsense way depend upon eliminating the insignificant population variations involved in this case. Fair and effective representation may be destroyed by gross population variations among districts, but it is apparent that such representation does not depend solely on mathematical equality among district populations.15 There are other relevant factors to be taken into account and other important interests that States may legitimately be mindful of. See Mahan v. Howell, supra; Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971); Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Burns v. Richardson, supra. An unrealistic overemphasis on raw population figures, a mere nose count in the districts, may submerge these other considerations and itself furnish a ready tool for ignoring factors that in day-to-day operation are important to an acceptable representation and apportionment arrangement.
21
Nor is the goal of fair and effective representation furthered by making the standards of reapportionment so difficult to satisfy that the reapportionment task is recurringly removed from legislative hands and performed by federal courts which themselves must make the political decisions necessary to formulate a plan or accept those made by reapportionment plaintiffs who may have wholly different goals from those embodied in the official plan. From the very outset, we recognized that the apportionment task, dealing as it must with fundamental 'choices about the nature of representation,' Burns v. Richardson, 384 U.S., at 92, 86 S.Ct., at 1297, is primarily a political and legislative process. Reynolds v. Sims, 377 U.S., at 586, 84 S.Ct., at 1362. We doubt that the Fourteenth Amendment requires repeated displacement of otherwise appropriate state decisionmaking in the name of essentially minor deviations from perfect census-population equality that no one, with confidence, can say will deprive any person of fair and effective representation in his state legislature.
22
That the Court was not deterred by the hazards of the political thicket when it undertook to adjudicate the reapportionment cases does not mean that it should become bogged down in a vast, intractable apportionment slough, particularly when there is little, if anything, to be accomplished by doing so.
23
This very case represents what should not happen in the federal courts. The official state functionaries proposed a plan with a maximum variation among the districts of 7.83% in the House and 1.81% in the Senate, and with respective average variations of 1.90% and .45%. Appellees then proposed four alternate plans for the House, three of which involved slightly larger variations among districts but cut fewer town lines. The fourth cut more lines, but had a maximum variation between its largest and smallest district of only 2.6%. The District Court thought the state plan involved unacceptably large variations between districts, although in the House, with districts of about 20,000 people, the average variation involved only 399 people, and the largest variations involved only 1,573 people.16 But neither did the District Court adopt any of the plans submitted by appellees. Instead, it appointed its own Master to come up with still another scheme. That plan, we are told, involves a total maximum deviation in the House of only 1.16%.17 Was the Master compelled, as a federal constitutional matter, to come up with a plan with smaller variations than were contained in appellees' plans? And what is to happen to the Master's plan if a resourceful mind hits upon a plan better than the Master's by a fraction of a percentage point? Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally 'better' when measured against a rigid and unyielding population-equality standard.
24
The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it. Their work should not be invalidated under the Equal Protection Clause when only minor population variations among districts are proved. Here, the proof at trial demonstrated that the House districts under the State Apportionment Board's plan varied in population from one another by a maximum of only about 8% and that the average deviation from the ideal House district was only about 2%. The Senate districts had even less variations. On such a showing, we are quite sure that a prima facie case of invidious discrimination under the Fourteenth Amendment was not made out.
III
25
State legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment. A districting statute otherwise acceptable, may be invalid because it fences out a racial group so as to deprive them of their pre-existing municipal vote. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed 'to minimize or cancel out the voting strength of racial or political elements of the voting population.' Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). See White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Abate v. Mundt, 403 U.S., at 184 n. 2, 91 S.Ct., at 1906; Burns v. Richardson, 384 U.S., at 88—89, 86 S.Ct., at 1294—1295. We must, therefore, respond to appellees' claims in this case that even if acceptable populationwise, the Apportionment Board's plan was invidiously discriminatory because a 'political fairness principle' was followed in making up the districts in both the House and Senate.
26
The record abounds with evidence, and it is frankly admitted by those who prepared the plan, that virtually every Senate and House district line was drawn with the conscious intent to create a districting plan that would achieve a rough approximation of the statewide political strengths of the Democratic and Republican Parties, the only two parties in the State large enough to elect legislators from discernible geographic areas. Appellant insists that the spirit of 'political fairness' underlying this plan is not only permissible, but a desirable consideration in laying out districts that otherwise satisfy the population standard of the reapportionment cases. Appellees, on the other hand, label the plan as nothing less than a gigantic political gerrymander, invidiously discriminatory under the Fourteenth Amendment.18
27
We are quite unconvinced that the reapportionment plan offered by the three-member Board violated the Fourteenth Amendment because it attempted to reflect the relative strength of the parties in locating and defining election districts. It would be idle, we think, to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it. Our cases indicate quite the contrary. See White v. Regester, supra; Burns v. Richardson, supra; Whitcomb v. Chavis, supra; Abate v. Mundt, supra. The very essence of districting is to produce a different—a more 'politically fair' result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats. Politics and political considerations are inseparable from districting and apportionment. The political profile of a State, its party registration, and voting records are available precinct by precinct, ward by ward. These subdivisions may not be identical with census tracts, but, when overlaid on a census map, it requires no special genius to recognize the political consequences of drawing a district line along one street rather than another. It is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the political complexion of the area. District lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican, or make a close race likely. Redistricting may pit incumbents against one another or make very difficult the election of the most experienced legislator. The reality is that districting inevitably has and is intended to have substantial political consequences.
28
It may be suggested that those who redistrict and reapportion should work with census, not political, data and achieve population equality without regard for political impact. But this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results; and, in any event, it is most unlikely that the political impact of such a plan would remain undiscovered by the time it was proposed or adopted, in which event the results would be both known and, if not changed, intended.
29
It is much more plausible to assume that those who redistrict and reapportion work with both political and census data. Within the limits of the population equality standards of the Equal Protection Clause, they seek, through compromise or otherwise, to achieve the political or other ends of the State, its constituents, and its officeholders. What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment. As we have indicated, for example, multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized. See White v. Regester, supra; Whitcomb v. Chavis, supra. See also Gomillion v. Lightfoot, supra. Beyond this, we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States. Even more plainly, judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so. There is no doubt that there may be other reapportionment plans for Connecticut that would have different political consequences and that would also be constitutional. Perhaps any of appellees' plans would have fallen into this category, as would the court's, had it propounded one. But neither we nor the district courts have a constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.
30
Reversed.
1
The ratio of the largest Senate district to the smallest is 1.018 to 1.
2
The ratio of the largest assembly district to the smallest is 1.082 to 1.
3
Some town boundaries were cut more than once, resulting in what the parties have termed 'town segments,' or portions of a town that were used to form an assembly district not wholly within that town. The Board's plan creates 78 such segments in the formation of the 151 assembly districts.
4
Testimony of Judge George A. Saden, the Republican Board member. App. 264. According to Mr. James F. Collins, a staff member of the Board, the plan for the House resulted in approximately 70 safe Democratic seats, 55 to 60 safe Republican seats, with the balance characterized as probable or swing Democratic or Republican or 'just plain swing,' 341 F.Supp. 139, 147. See App. 126—127.
5
The Board's Senate plan was not challenged in the District Court and no alternative Senate plan was introduced. Appellees do not challenge the Senate districts on the ground of their population deviations. Brief for Appellees 14 n. 4; Tr. of Oral Arg. 20.
6
Plaintiff-appellees' plan resulted in 58 town-line cuts and 88 town segments, as opposed to the corresponding figures of 47 and 78 in the Board's plan.
7
Plaintiff-appellees further offered testimony illustrating the undesirability—in the context of the State's administrative apparatus—of excessive cutting of town lines.
8
The order was entered in a parallel state proceeding, Miller v. Schaffer, No. 173606, Super.Ct., Hartford County, filed November 12, 1971, which was directed at correcting certain clerical errors or omissions in the Board's plan.
9
Reynolds v. Sims involved the Alabama State Legislature, which had not reapportioned itself in over 60 years. Under the apportionment existing in 1964, some senatorial districts with the same number of representatives had over 40 times more people than others. House districts with identical representation could vary by 16 to 1. In Maryland in 1964, some House districts with nominally equal representation could have six times more people than others, while senatorial districts could be 32 times larger than others. Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964). The list may easily be expanded to include other States, and Connecticut is no exception. In 1964, the Connecticut towns of Hartford and Union had the same representation in the House, but Union had a population of 383 people, while Hartford had a population of 162,178. A vote in Union was thus weighted about 425 times more heavily than a vote in Hartford. At that time, it would have taken only 11.9% of Connecticut's population to elect a majority of its House, and only 31% to elect a Senate majority. See Butterworth v. Dempsey, 229 F.Supp. 754 (D.C.Conn.), aff'd, 378 U.S. 564, 84 S.Ct. 1918, 12 L.Ed.2d 1037 (1964).
10
See, e.g., H. Alterman, Counting People: The Census in History 262 (1969):
'A census, by its nature, can never be an exact count of a nation. This is especially true of the United States . . .. Thus, an error of 1 or 2 percent in the count of the total population is to be expected; professionally, it is regarded as an 'acceptable' error.'
The Census Bureau estimates that the 1970 census had an under-coverage rate of 2.5%, or about 5,300,000 people. Address of J. S. Siegel, Population Association of America Annual Meeting, in New Orleans, La., Apr. 26, 1973. See N.Y. Times, Apr. 26, 1973, p. 1, col. 1.
Inexactness of census data is most evident with respect to minorities. It is estimated, for example, that Negroes were underenumerated in the 1970 census by 7.7%, as compared to an estimated 1.9% undercount for white persons. Ibid. See also Siegel, Completeness of Coverage of the Nonwhite Population in the 1960 Census and Current Estimates, and Some Implications, in Social Statistics and the City 13 (D. Heer ed. 1968).
11
See, e.g., M. Spiegelman, Introduction to Demography 415 416 (1968); U.S. Bureau of the Census, 2 The Materials and Methods of Demography 806 (1971).
In Connecticut, for example, the population of the State as a whole grew by 19.6% during the 1960's. But the population in the area comprising the Second Congressional District grew by over 28%, while the population in the Fourth District grew by only 11.2%. The U.S. Bureau of the Census, Congressional District Data Book, 93d Congress, Connecticut 7 (1972).
12
See Burns v. Richardson, 384 U.S. 73, 91—92, 86 S.Ct. 1286, 1296—1297, 16 L.Ed.2d 376 (1966):
'We start with the proposition that the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured. . . . Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Unless a choice is one the Constitution forbids, cf., e.g., Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby.'
13
Utah, Rhode Island, New Hampshire, and Missouri have only 1% variations. New York has a 29% variation in ageeligible voters among its congressional districts, while California has a 25% and Illinois a 20% variation. These figures may be computed from the Bureau of the Census' Congressional District Data, 93d Congress, for the respective States.
14
Again using Connecticut congressional districts as an example, in the November 1972 elections, the percentage of registered voters who actually voted varied by a maximum of 2.8%. See Statement of Vote, General Election Nov. 7, 1972, State of Conn.Pub.Doc.No.26, p. 72 (1973). The percentages of registered voters who voted varied by as much as about 23% among the towns in the State. Id., at 65—71.
15
For discussions of the vast and growing literature in this area, see Reapportionment in the 1970s (N. Polsby ed. 1971).
16
Among the Senate districts (of about 84,000 people each), the average deviation involves only about 400 people and the maximum deviation only 1,532 people.
17
Reply Brief for Appellant 19. Apparently, more refined census data were available to the Master in preparing this later plan.
18
Appellees also maintain that the shapes of the districts would not have been so 'indecent' had the Board not attempted to 'wiggle and joggle' boundary lines to ferret out pockets of each party's strength. That may well be true, although any plan that attempts to follow Connecticut's 'oddly shaped' town lines (App. 98) is bound to contain some irregularly shaped districts. But compactness or attractiveness has never been held to constitute an independent federal constitutional requirement for state legislative districts. Cf. White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335; Wright v. Rockefeller, 376 U.S. 52, 54, 84 S.Ct. 603, 604, 11 L.Ed.2d 512 (1964), and id., at 59—61, 84 S.Ct., at 606—608 (Douglas, J., dissenting).
| 12
|
412 U.S. 755
93 S.Ct. 2332
37 L.Ed.2d 314
Mark WHITE, Jr., et al., Appellantsv.Diana REGESTER et al.
No. 72—147.
Argued Feb. 26, 1973.
Decided June 18, 1973.
Syllabus
In this litigation challenging the Texas 1970 legislative reapportionment scheme, a three-judge District Court held that the House plan, statewide, contained constitutionally impermissible deviations from population equality, and that the multimember districts provided for Bexar and Dallas Counties invidiously discriminated against cognizable racial or ethnic groups. Though the entire plan was declared invalid, the court permitted its use for the 1972 election except for its injunction order requiring those two county multimember districts to be reconstituted into single-member districts. Held:
1. This Court has jurisdiction under 28 U.S.C. § 1253 to consider the appeal from the injunction over applicable to the Bexar County and Dallas County districting, since the three-judge court had been properly convened, and this Court can review the declaratory part of the judgment below. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. Pp. 759—761.
2. State reapportionment statutes are not subject to the stricter standards applicable to congressional reapportionment under Art. I, § 2, and the District Court erred in concluding that this case, where the total maximum variation between House districts was 9.9%, but the average deviation from the ideal was 1.82%, involved invidious discrimination in violation of the Equal Protection Clause. Cf. Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298. Pp. 761—764.
3. The District Court's order requiring disestablishment of the multi-member districts in Dallas and Bexar Counties was warranted in the light of the history of political discrimination against Negroes and Mexican-Americans residing, respectively, in those counties and the residual effects of such discrimination upon those groups. Pp. 765—770.
D.C., 343 F.Supp. 704, affirmed in part, reversed in part, and remanded.
1
Leon Jaworski, Houston, Tex., for appellants.
2
David R. Richards, Austin, Tex., for appellees Regester and others.
3
Ed Idar, Jr., San Antonio, Tex., for the Mexican-American appellees, Bernal and others.
4
Thomas Gibbs Gee, Austin, Tex., for the Republican appellees Willeford and others.
5
Mr. Justice WHITE delivered the opinion of the Court.
6
This case raises two questions concerning the validity of the reapportionment plan for the Texas House of Representatives adopted in 1970 by the State Legislative Redistricting Board: First, whether there were unconstitutionally large variations in population among the districts defined by the plan; second, whether the multimember districts provided for Bexar and Dallas Counties were properly found to have been invidiously discriminatory against cognizable racial or ethnic groups in those counties.
7
The Texas Constitution requires the state legislature to reapportion the House and Senate at its first regular session following the decennial census. Tex.Const., Art. III, § 28 Vernon's Ann. St.1 In 1970, the legislature proceeded to reapportion the House of Representatives but failed to agree on a redistricting plan for the Senate. Litigation was immediately commenced in state court challenging the constitutionality of the House reapportionment. The Texas Supreme Court held that the legislature's plan for the House violated the Texas Constitution.2 Smith v. Craddick, 471 S.W.2d 375 (1971). Meanwhile, pursuant to the requirements of the Texas Constitution, a Legislative Redistricting Board had been formed to begin the task of redistricting the Texas Senate. Although the Board initially confined its work to the reapportionment of the Senate, it was eventually ordered, in light of the judicial invalidation of the House plan, to also reapportion the House. Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570 (1971).
8
On October 15, 1971, the Redistricting Board's plan for the reapportionment of the Senate was released, and, on October 22, 1971, the House plan was promulgated. Only the House plan remains at issue in this case. That plan divided the 150-member body among 79 single-member and 11 multimember districts. Four lawsuits, eventually consolidated, were filed challenging the Board's Senate and House plans and asserting with respect to the House plan that it contained impermissible deviations from population equality and that its multimember districts for Bexar County and Dallas County operated to dilute the voting strength of racial and ethnic minorities.
9
A three-judge District Court sustained the Senate plan, but found the House plan unconstitutional. Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972). The House plan was held to contain constitutionally impermissible deviations from population equality, and the multimember districts in Bexar and Dallas Counties were deemed constitutionally invalid. The District Court gave the Texas Legislature until July 1, 1973, to reapportion the House, but the District Court permitted the Board's plan to be used for purposes of the 1972 election, except for requiring that the Dallas County and Bexar County multi-member districts be reconstituted into single-member districts for the 1972 election.
10
Appellants appealed the statewide invalidation of the House plan and the substitution of single-member for multi-member district in Dallas County and Bexar County.3 Mr. Justice Powell denied a stay of the judgment of the District Court, 405 U.S. 1201, 92 S.Ct. 752, 30 L.Ed.2d 769 and we noted probable jurisdiction sub nom., Bullock v. Regester, 409 U.S. 840, 93 S.Ct. 70, 34 L.Ed.2d 79.
11
* We deal at the outset with the challenge to our jurisdiction over this appeal under 28 U.S.C. § 1253, which permits injunctions in suits required to be heard and determined by a three-judge district court to be appealed directly to this Court.4 It is first suggested that the case was not one required to be heard by a three-judge court. The contention is frivolous. A statewide reapportionment statute was challenged and injunctions were asked against its enforcement. The constitutional questions raised were not insubstantial on their face, and the complaint clearly called for the convening of a three-judge court. That the court declared the entire apportionment plan invalid, but entered an injunction only with respect to its implementation for the 1972 elections in Dallas and Bexar Counties, in no way indicates that the case required only a single judge. Appellants are therefore properly here on direct appeal with respect to the injunction dealing with Bexar and Dallas Counties, for the order of the court directed at those counties was literally an order 'granting . . . an . . . injunction in any civil action . . . required . . . to be heard and determined by a district court of three judges' within the meaning of § 1253.
12
We also hold that appellants, because they appealed from the entry of an injunction, are entitled to review of the District Court's accompanying declaration that the proposed plan for the Texas House of Representatives, including those portions providing for multimember districts in Dallas and Bexar Counties, was invalid statewide. This declaration was the predicate for the court's order requiring Dallas and Bexar Counties to be reapportioned into single districts; for its order that 'unless the Legislature of the State of Texas on or before July 1, 1973, has adopted a plan to reapportion the legislative districts within the State in accordance with the constitutional guidelines set out in this opinion this Court will so reapportion the State of Texas'; and for its order that the Secretary of State 'adopt and implement any and all procedures necessary to properly effectuate the orders of this Court in conformance with this Opinion . . ..' 343 F.Supp., at 737. In these circumstances, although appellants could not have directly appealed to this Court the entry of a declaratory judgment unaccompanied by any injunctive relief, Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970); Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), we conclude that we have jurisdiction of the entire appeal. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960). With the Texas reapportionment plan before it, it was in the interest of judicial economy and the avoidance of piecemeal litigation that the three-judge District Court have jurisdiction over all claims raised against the statute when a substantial constitutional claim was alleged, and an appeal to us, once properly here, has the same reach. Roe v. Wade, supra, 410 U.S. at 123, 93 S.Ct. at 711; Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Florida Lime & Avocado Growers v. Jacobsen, supra, 362 U.S. at 80, 80 S.Ct. at 573.
II
13
The reapportionment plan for the Texas House of Representatives provides for 150 representatives to be selected from 79 single-member and 11 multimember districts. The ideal district is 74,645 persons. The districts range from 71,597 to 78,943 in population per representative, or from 5.8% overrepresentation to 4.1% underrepresentation. The total variation between the largest and smallest district is thus 9.9%.5
14
The District Court read our prior cases to require any deviations from equal population among districts to be justified by 'acceptable reasons' grounded in state policy; relied on Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), to conclude that the permissible tolerances suggested by Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), had been substantially eroded; suggested that Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), in accepting total deviations of 11.9% in a county reapportionment was sui generis; and considered the 'critical issue' before it to be whether 'the State (has) justified any and all variances, however small, on the basis of a consistent, rational State policy.' 343 F.Supp., at 713. Noting the single fact that the total deviation from the ideal between District 3 and District 85 was 9.9%, the District Court concluded that justification by appellants was called for and could discover no acceptable state policy to support the deviations. The District Court was also critical of the actions and procedures of the Legislative Reapportionment Board and doubted 'that (the) board did the sort of deliberative job . . . worthy of judicial abstinence.' Id., at 717. It also considered the combination of single-member and multimember districts in the House plan 'haphazard,' particularly in providing single-member districts in Houston and multimember districts in other metropolitan areas, and that this 'irrationality, without reasoned justification, may be a separate and distinct ground for declaring the plan unconstitutional.'6 Ibid. Finally, the court specifically invalidated the use of multimember districts in Dallas and Bexar Counties as unconstitutionally discriminatory against a racial or ethnic group.
15
The District Court's ultimate conclusion was that 'the apportionment plan for the State of Texas is unconstitutional as unjustifiably remote from the ideal of 'one man, one vote,' and that the multi-member districting schemes for the House of Representatives as they relate specifically to Dallas and to Bexar Counties are unconstitutional in that they dilute the votes of racial minorities.' Id., at 735.7
16
Insofar as the District Court's judgment rested on the conclusion that the population differential of 9.9% from the ideal district between District 3 and District 85 made out a prima facie equal protection violation under the Fourteenth Amendment, absent special justification, the court was in error. It is plain from Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), and Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298, that state reapportionment statutes are not subject to the same strict standards applicable to reapportionment of congressional seats. Kirkpatrick v. Preisler did not dilute the tolerances contemplated by Reynolds v. Sims with respect to state districting, and we did not hold in Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), or Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), or later in Mahan v. Howell, supra, that any deviations from absolute equiality, however small, must be justified to the satisfaction of the judiciary to avoid invalidation under the Equal Protection Clause. For the reasons set out in Gaffney v. Cummings, supra, we do not consider relatively minor population deviations among state legislative districts to substantially dilute the weight of individual votes in the larger districts so as to deprive individuals in these districts of fair and effective representation. Those reasons are as applicable to Texas as they are to Connecticut; and we cannot glean an equal protection violation from the single fact that two legislative districts in Texas differ from one another by as much as 9.9%, when compared to the ideal district. Very likely, larger differences between districts would not be tolerable without justification 'based on legitimate considerations incident to the effectuation of a rational state policy,' Reynolds v. Sims, 377 U.S., at 579, 84 S.Ct. at 1391; Mahan v. Howell, supra, 410 U.S. at 325, 93 S.Ct. 985, but here we are confident that appellees failed to carry their burden of proof insofar as they sought to establish a violation of the Equal Protection Clause from population variations alone. The total variation between two districts was 9.9%, but the average deviation of all House districts from the ideal was 1.82%. Only 23 districts, all single-member, were overrepresented or underrepresented by more than 3%, and only three of those districts by more than 5%. We are unable to conclude from these deviations alone that appellees satisfied the threshold requirement of proving a prima facie case of invidious discrimination under the Equal Protection Clause. Because the District Court had a contrary view, its judgment must be reversed in this respect.8
III
17
We affirm the District Court's judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Mahan v. Howell, supra; see Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Reynolds v. Sims, supra.9 But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups. See Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Whitcomb v. Chavis, supra, at 149—150, 91 S.Ct. at 1872.
18
With due regard for these standards, the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. 343 F.Supp., at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called 'place' rule limiting candidacy for legislative office from a multimember district to a specified 'place' on the ticket, with the result being the election of representatives from the Dallas multimember district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought.10 More fundamentally, it found that since Reconstruction days, there have been only two Negroes in the Dallas County delegation to the Texas House of Representatives and that these two were the only two Negroes ever slated by the Dallas Committee for Responsible Government (DCRG), a white-dominated organization that is in effective control of Democratic Party candidate slating in Dallas County.11 That organization, the District Court found, did not need the support of the Negro community to win elections in the county, and it did not therefore exhibit good-faith concern for the political and other needs and aspirations of the Negro community. The court found that as recently as 1970 the DCRG was relying upon 'racial campaign tactics in white precincts to defeat candidates who had the overwhelming support of the black community.' Id., at 727. Based on the evidence before it, the District Court concluded that 'the black community has been effectively excluded from participation in the Democratic primary selection process,' id., at 726, and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner. These findings and conclusions are sufficient to sustain the District Court's judgment with respect to the Dallas multimember district and, on this record, we have no reason to disturb them.
IV
19
The same is true of the order requiring disestablishment of the multimember district in Bexar County. Consistently with Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), the District Court considered the Mexican-Americans in Bexar County to be an identifiable class for Fourteenth Amendment purposes and proceeded to inquire whether the impact of the multimember district on this group constituted invidious discrimination. Surveying the historic and present condition of the Bexar County Mexican-American community, which is concentrated for the most part on the west side of the city of San Antonio, the court observed, based upon prior cases and the record before it, that the Bexar community, along with other Mexican-Americans in Texas,12 had long 'suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others.' 343 F.Supp., at 728. The bulk of the Mexican-American community in Bexar County occupied the Barrio, an area consisting of about 28 contiguous census tracts in the city of San Antonio. Over 78% of Barrio residents were Mexican-Americans, making up 29% of the county's total population. The Barrio is an area of poor housing; its residents have low income and a high rate of unemployment. The typical Mexican-American suffers a cultural and language barrier13 that makes his participation in community processes extremely difficult, particularly, the court thought, with respect to the political life of Bexar County. '(A) cultural incompatibility . . . conjoined with the poll tax and the most restrictive voter registration procedures in the nation have operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.' 343 F.Supp., at 731. The residual impact of this history reflected itself in the fact that Mexican-American voting registration remained very poor in the county and that, only five Mexican-Americans since 1880 have served in the Texas Legislature from Bexar County. Of these, only two were from the Barrio area.14 The District Court also concluded from the evidence that the Bexar County legislative delegation in the House was insufficiently responsive to Mexican-American interests.
20
Based on the totality of the circumstances, the District Court evolved its ultimate assessment of the multimember district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county. Its judgment was that Bexar County Mexican-Americans 'are effectively removed from the political processes of Bexar (County) in violation of all the Whitcomb standards, whatever their absolute numbers may total in that County.' Id., at 733. Single-member districts were thought required to remedy 'the effects of past and present discrimination against Mexican-Americans,' ibid., and to bring the community into the full stream of political life of the county and State by encouraging their further registration, voting, and other political activities.
21
The District Court apparently paid due heed to Whitcomb v. Chavis, supra, did not hold that every racial or political group has a constitutional right to be represented in the state legislature, but did, from its own special vantage point, conclude that the multimember district, as designed and operated in Bexar County, invidiously excluded Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives. On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise.
22
Affirmed in part, reversed in part, and remanded.
23
APPENDIX TO OPINION OF THE COURT
The Redistricting Board's plan embodied the following districts:
Percent
Average Deviation
Multi- (Under) Over
District Population member Over (Under)
1 76,285 1,640 2.2
2 77,102 2,457 3.3
3 78,943 4,298 5.8
4 71,928 (2,717) (3.6)
5 75,014 369 .5
6 76,051 1,406 1.9
7 (3) 221,314 73,771 (874) (1.2)
8 74,303 (342) ( .5)
9 76,813 2,168 2.9
10 72,410 (2,235) (3.0)
11 73,136 (1,509) (2.0)
12 74,704 59 .1
13 75,929 1,284 1.7
14 76,597 1,952 2.6
15 76,701 2,056 2.8
16 74,218 ( 427) ( .6)
17 72,941 (1,704) (2.3)
18 77,159 2,514 3.4
19 (2) 150,209 75,104 459 .6
20 75,592 947 1.3
21 74,651 6 .0
22 73,311 (1,334) (1.8)
23 75,777 1,132 1.5
24 73,966 ( 679) ( .9)
25 75,633 988 1.3
26 (18) 1,327,321 73,740 ( 905) (1.2)
27 77,788 3,143 4.2
28 72,367 (2,278) (3.1)
29 76,505 1,860 2.5
30 77,008 2,363 3.2
31 75,025 380 .5
32 (9) 675,499 75,055 410 .5
33 73,071 (1,574) (2.1)
34 76,071 1,426 1.9
35 (2) 147,553 73,777 (868) (1.2)
36 74,633 (12) ( .0)
37 (4) 295,516 73,879 (766) (1.0)
Page 771
24
Percent
Average Deviation
Multi- (Under) Over
District Population member Over (Under)
38 78,897 4,252 5.7
39 77,363 2,718 3.6
40 71,597 (3,048) (4.1)
41 73,678 ( 967) (1.3)
42 74,706 61 .1
43 74,160 (485) ( .6)
44 75,278 633 .8
45 78,090 3,445 4.6
46 (11) 826,698 75,154 509 .7
47 76,319 1,674 2.2
48 (3) 220,056 73,352 (1,293) (1.7)
49 76,254 1,609 2.2
50 74,268 ( 377) ( .5)
51 75,800 1,155 1.5
52 76,601 1,956 2.6
53 74,499 ( 146) ( .2)
54 77,505 2,860 3.8
55 76,947 2,302 3.1
56 74,070 ( 575) ( .8)
57 77,211 2,566 3.4
58 75,120 475 .6
59 (2) 144,995 72,497 (2,148) (2.9)
60 75,054 409 .5
61 73,356 (1,289) (1.7)
62 72,240 (2,405) (3.2)
63 75,191 546 .7
64 74,546 ( 99) ( .1)
65 75,720 1,075 1.4
66 72,310 (2,335) (3.1)
67 75,034 389 .5
68 74,524 ( 121) ( .2)
69 74,765 120 .2
70 77,827 3,182 4.3
71 73,711 ( 934) (1.3)
72 (4) 297,770 74,442 ( 203) ( .3)
73 74,309 ( 336) ( .5)
74 73,743 ( 902) (1.2)
75 (2) 147,722 73,861 ( 784) (1.1)
76 76,083 1,438 1.9
77 77,704 3,059 4.1
78 71,900 (2,745) (3.7)
79 75,164 519 .7
80 75,111 466 .6
81 75,674 1,029 1.4
82 76,006 1,361 1.8
Page 772
25
Percent
Average Deviation
Multi- (Under) Over
District Population member Over (Under)
83 75,752 1,107 1.5
84 75,634 989 1.3
85 71,564 (3,084) (4.1)
86 73,157 (1,488) (2.0)
87 73,045 (1,600) (2.1)
88 75,076 431 .6
89 74,206 ( 439) ( .6)
90 74,377 ( 268) ( .4)
91 73,381 (1,264) (1.7)
92 71,908 (2,737) (3.7)
93 72,761 (1,884) (2.5)
94 73,328 (1,317) (1.8)
95 73,825 ( 820) (1.1)
96 72,505 (2,140) (2.9)
97 74,202 ( 443) ( .6)
98 72,380 (2,265) (3.0)
99 74,123 ( 522) ( .7)
100 75,682 1,037 1.4
101 75,204 559 .7
1
Article III, § 28, of the Texas Constitution provides:
'The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts, agreeable to the provisions of Sections 25, 26, and 26-a of this Article. In the event the Legislature shall at any such first regular session following the publication of a United States decennial census, fail to make such apportionment, same shall be done by the Legislature Redistricting Board of Texas, which is hereby created, and shall be composed of five (5) members, as follows: The Lieutenant Governor, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office, a majority of whom shall constitute a quorum. Said Board shall assemble in the City of Austin within ninety (90) days after the final adjournment of such regular session. The Board shall, within sixty (60) days after assembling, apportion the state into senatorial and representative districts, or into senatorial or representative districts, as the failure of action of such Legislature may make necessary. Such apportionment shall be in writing and signed by three (3) or more of the members of the Board duly acknowledged as the act and deed of such Board, and, when so executed and filed with the Secretary of State, shall have force and effect of law. Such apportionment shall become effective at the next succeeding statewide general election. The Supreme Court of Texas shall have jurisdiction to compel such Commission (Board) to perform it duties in accordance with the provisions of this section by writ of mandamus or other extraordinary writs conformable to the usages of law. The Legislature shall provide necessary funds for clerical and technical aid and for other expenses incidental to the work of the Board, and the Lieutenant Governor and the Speaker of the House of Representatives shall be entitled to receive per diem and travel expense during the Board's session in the same manner and amount as they would receive while attending a special session of the Legislature. This amendment shall become effective January 1, 1951. As amended Nov. 2, 1948.'
2
The Court held that the plan violated Art. III, § 26, of the Texas Constitution, which provides:
'The members of the House of Representatives shall be apportioned among the several counties, according to the number of population in each, as nearly as may be, on a ratio obtained by dividing the population of the State, as ascertained by the most recent United States census, by the number of members of which the House is composed; provided, that whenever a single county has sufficient population to be entitled to a Representative, such county shall be formed into a separate Representative District, and when two or more counties are required to make up the ratio of representation, such counties shall be contiguous to each other; and when any one county has more than sufficient population to be entitled to one or more Representatives, such Representative or Representatives shall be apportioned to such county, and for any surplus of population it may be joined in a Representative District with any other contiguous county or counties.'
3
In a separate appeal, we summarily affirmed that portion of the judgment of the District Court upholding the Senate plan. Archer v. Smith, 409 U.S. 808, 93 S.Ct. 62, 34 L.Ed.2d 68 (1972).
4
28 U.S.C. § 1253 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.'
5
See Appendix to opinion of the Court, post, p. 2342.
6
It may be, although we are not sure, that the District Court would have invalidated the plan statewide because of what it thought was an irrational mixture of multimember and single-member districts. Thus, in questioning the use of single-member districts in Houston but multimember districts in all other urban areas, and remarking that the State had provided neither 'compelling' nor 'rational' explanation for the differing treatment, the District Court merely concluded that this classification 'may be' an independent ground for invalidating the plan. But there are no authorities in this Court for the proposition that the mere mixture of multimember and single-member districts in a single plan, even among urban areas, is invidiously discriminatory, and we construe the remarks not as part of the District Court's declaratory judgment invalidating the state plan but as mere advance advice to the Texas Legislature as to what would or would not be acceptable to the District Court.
7
The District Court also concluded, contrary to the assertions of certain plaintiffs, that the Senate districting scheme for Bexar County did not 'unconstitutionally dilute the votes of any political faction or party.' 343 F.Supp. 704, 735. The majority of the District Court also concluded that the Senate districting scheme for Harris County did not dilute black votes.
8
The Court's conclusion that the variations in this case were not justified by a rational state policy would, in any event, require reconsideration and reversal under Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). The Texas Constitution, Art. III, § 26, expresses the state policy against cutting county lines wherever possible in forming representative districts. The District Court recognized the policy but, without the benefit of Mahan v. Howell, may have thought the variations too great to be justified by that policy. It perhaps thought also that the policy had not been sufficiently or consistently followed here. But it appears to us that to stay within tolerable population limits it was necessary to cut some county lines and that the State achieved a constitutionally acceptable accommodation between population principles and its policy against cutting county lines in forming representative districts.
9
See Whitcomb v. Chavis, 403 U.S. 124, 141—148, 91 S.Ct. 1858, 1867—1871, 29 L.Ed.2d 363 (1971), and the cases discussed in n. 22 of that opinion, including Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), where we affirmed the District Court's rejection of petitioners' contention that the combination of single-member, multimember, and floterial districts in a single reapportionment plan was 'an unconstitutional 'crazy quilt." Id., at 121, 87 S.Ct. at 821.
10
There is no requirement that candidates reside in subdistricts of the multimember district. Thus, all candidates may be selected from outside the Negro residential area.
11
The District Court found that 'it is extremely difficult to secure either a expresentative seat in the Dallas County delegation or the Democratic primary nomination without the endorsement of the Dallas Committee for Responsible Government.' 343 F.Supp., at 726.
12
Mexican-Americans constituted approximately 20% of the population of the State of Texas.
13
The District Court found that '(t)he fact that (Mexican-Americans) are reared in a sub-culture in which a dialect of Spanish is the primary language provides permanent impediments to their educational and vocational advancement and creates other traumatic problems.' 343 F.Supp., at 730.
14
Two other residents of the Barrio, a Negro and an Anglo-American, have also served in the Texas Legislature.
| 12
|
412 U.S. 609
93 S.Ct. 2469
37 L.Ed.2d 207
Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare, et al. Petitioners,v.HYNSON, WESTCOTT AND DUNNING, INCORPORATED. HYNSON, WESTCOTT AND DUNNING, INCORPORATED, Petitioner, v. Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare, et al.
Nos. 72—394, 72—414.
Argued April 17, 1973.
Decided June 18, 1973.
Syllabus
The Federal Food, Drug, and Cosmetic Act of 1938, as amended in 1962, establishes a system of premarketing clearance for drugs and prohibits in § 505 (a) the introduction into commerce of any 'new drug' unless a new drug application (NDA) filed with the Food and Drug Administration (FDA) was effective with respect to such drug. Under the Act procedures were established for filing 'new drug' applications not only for the safety of drugs but for their efficacy as well. Standards were provided under which, after notice and hearing, FDA could refuse to allow an NDA to become effective, or could suspend an NDA in effect on the basis of new evidence that the drug was not effective. FDA is directed to refuse approval of an NDA and to withdraw prior approval if 'substantial evidence' (§ 505(d)) that the drug is effective for its intended use is lacking. All NDA's 'effective' prior to 1962 were deemed 'approved' and manufacturers were given two years to develop substantial evidence of effectiveness during which previously approved NDA's could not be withdrawn by FDA for the drug's lack of effectiveness. The 1962 Act also contained a 'grandfather' clause exempting from the effectiveness requirements any drug which on the day proceeding enactment (1) was commercially used or sold in the United States, (2) was not a 'new drug' as defined in the 1938 Act, and (3) 'was not covered by an effective application' for a new drug under the 1938 Act. The FDA had permitted more than 9,000 NDA's to become effective between 1938 and 1962, of which some 4,000 were still on the market. Additionally, manufacturers have marketed thousands of 'me-too' drugs without applying for clearance, drugs similar or identical to drugs with effective NDA's, marketed in reliance on the 'pioneer' drug application approved by FDA. To aid it in fulfilling the statutory mandate to review all marketed drugs, whether or not previously approved, for their efficacy, FDA retained the National Academy of Sciences-National Research Council (NAS—NRC) to create expert panels to review by class the efficacy of each approved drug. Holders of NDA's were invited to furnish the panels with the best available data to establish efficacy and FDA announced that it would apply NAS—NRC efficacy findings to all drugs, including the 'me-too' drugs. Respondent in No. 72—394 (Hynson) had filed an application for a drug called Lutrexin under the 1938 Act. FDA informed Hynson that the studies submitted with the application were not sufficiently well controlled to justify the claims of effectiveness, but allowed the application to become effective since the 1938 Act permitted evaluation of a new drug solely on the basis of its safety. When the 1962 amendments became effective Hynson submitted evidence of the efficacy of the drug, but the NAS—NRC panel reported that Hynson had not satisfied the requirements. Notice of an intention to withdraw approval of the NDA's covering the drug was given by the Commissioner of Food and Drugs. Before the hearing, Hynson brought suit in the District Court for a declaratory judgment that the drug was exempt from the efficacy review provisions of the 1962 Act, or that there was no lack of substantial evidence of the drug's efficacy. Petitioners' motion to dismiss was granted. While the District Court litigation was pending, the Commissioner denied Hynson's request for a hearing based on claims of 'substantial evidence' of Lutrexin's effectiveness, and withdrew the NDA for the drug, ruling that it was not exempt from the 1962 amendments and that Hynson had not submitted adequate evidence that the drug was not a new drug or was effective. The Court of Appeals reversed, holding that while the drug was not exempt, Hynson was entitled to a hearing on the substantial-evidence issue. No. 72 414 is a cross-petition by Hynson from the judgment of the Court of Appeals, which suggested that only a district court has authority to determine whether Lutrexin is a 'new drug.' While Hynson agrees that the Commissioner has authority to determine new drug status in proceedings to withdraw approval of the product's NDA, some manufacturers, parties to other suits in this group of cases, advance the contrary view. Held:
1. The 1962 amendments and the regulations issued thereunder, which express well-established principles of scientific investigation, in their reduction of the 'substantial evidence' standard to detailed guidelines for the protection of the public, make FDA's so-called administrative summary judgment procedure appropriate. Pp. 617—619.
2. FDA's procedure, whereby it will not provide a formal hearing when it is apparent at the threshold that the applicant has not tendered any evidence which on its face meets the statutory standards as particularized by the regulations, is valid. United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081; FPC v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112. Pp. 620—622.
3. In No. 72—394, the Court of Appeals' holding that Hynson was entitled to a hearing on whether its submission of evidence satisfied its threshold burden of providing 'substantial evidence' is affirmed. Pp. 622—623.
4. The heart of the statutory procedure is the grant of primary jurisdiction to FDA, subject to judicial review when administrative remedies are exhausted. Pp. 623—627.
5. Although a drug can be 'generally recognized' by experts as effective for intended use within the meaning of the Act only when that expert consensus is founded upon 'substantial evidence,' any ruling on Lutrexin's 'new drug' status is premature, and must await the outcome of the hearing on whether Hynson submitted 'substantial evidence,' as held in No. 72—394 (item 3, supra). Pp. 628—632.
6. Lutrexin is not exempt under the 'grandfather' provisions of the 1962 Act, as held by FDA and the Court of Appeals, and their construction accords with the legislative history which suggests that the exemption is afforded only for drugs that never had been subject to new drug regulation. Pp. 632—634.
461 F.2d 215, affirmed as modified.
Opening statement by Daniel M. Friedman, Washington, D.C., for Caspar W. Weinberger, Secretary, HEW, in all five cases.
Andrew L. Frey, Washington, D.C., for Weinberger, and others.
Edward Brown Williams, Washington, D.C., for Hynson, Westcott and Dunning, Incorporated.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
These cases, together with Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235; CIBA Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230, and USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244, all here on certiorari, raise a series of questions under the 1962 amendments1 to the Federal Food, Drug, and Cosmetic Act of 1938. 52 Stat. 1040. The 1938 Act, which established a system of premarketing clearance for drugs, prohibited the introduction into commerce of any 'new drug' unless a new drug application (NDA) filed with the Food and Drug Administration (FDA)2 was effective with respect to that drug. § 505(a), 52 Stat. 1052. Under the 1938 Act a 'new drug' was one not generally recognized by qualified experts as safe for its intended use. § 201(p)(1). The Government could sue to enjoin violations, prosecute criminally, and seize and condemn the articles. §§ 301(d), 302(a), 303, 304. The Act established procedures for filing NDA's, § 505(b), and provided standards under which, after notice and hearing, FDA could refuse to allow an NDA to become effective, § 505(c) and (d), or could suspend an NDA in effect on the basis of new evidence that the drug was unsafe. § 505(e). Orders denying or suspending an NDA could be reviewed in a district court on the administrative record. § 505(h).
2
The 1962 Act amended § 201(p)(1) of the 1938 Act to define a 'new drug' as a drug not generally recognized among experts as effective as well as safe for its intended use. 21 U.S.C. § 321(p)(1). A new drug, as now defined, still may not be marketed unless an NDA is in effect. FDA is now directed to refuse approval of an NDA and to withdraw any prior approval if 'substantial evidence'3 that the drug is effective for its intended use is lacking. 21 U.S.C. § 355(d) and (e). Thus, the basic clearance system, requiring FDA approval of an NDA before a 'new drug' may be lawfully marketed, was continued, except that FDA now either must approve or disapprove an application within 180 days. 21 U.S.C. § 355(c). (Under the 1938 Act an application automatically became effective if it was not disapproved.) Judicial review was transferred to the courts of appeals. 21 U.S.C. § 355(h).
3
Since the Act as amended requires affirmative agency approval, all NDA's 'effective' prior to 1962 were deemed 'approved' under the new definition, and manufacturers were given two years to develop substantial evidence of effectiveness, during which previously approved NDA's could not be withdrawn by FDA for a drug's lack of effectiveness.4 The 1962 amendments also contain a 'grandfather' clause exempting from the effectiveness requirements any drug which on the day preceding enactment (1) was commercially used or sold in the United States, (2) was not a 'new drug' as defined in the 1938 Act (it being generally recognized as safe), and (3) 'was not covered by an effective application' for a new drug under the 1938 Act.5
4
Between 1938 and 1962 FDA had permitted 9,457 NDA's to become effective. Of these, some 4,000 were still on the market. In addition, there were thousands of drugs which manufacturers had marketed without applying to FDA for clearance. These drugs, known as 'me-toos,' are similar to or identical with drugs with effective NDA's and are marketed in reliance on the 'pioneer' drug application approved by FDA. In some cases, a manufacturer obtained an advisory opinion letter from FDA that its product was generally recognized among experts as safe.
5
To aid in its task of fulfilling the statutory mandate to review all marketed drugs for their therapeutic efficacy, whether or not previously approved, FDA retained the National Academy of Sciences-National Research Council (NAS—NRC) to create expert panels to review by class the efficacy of each approved drug. Holders of NDA's were invited to furnish the panels with the best available data to establish the effectiveness of their drugs.6 The panels reported to FDA; and on January 23, 1968, FDA announced its policy of applying the NAS—NRC efficacy findings to all drugs, including the related 'me-too' drugs.7
6
* Respondent in No. 72—394, Hynson, Westcott & Dunning, Inc., had filed an application under the 1938 Act for a drug called Lutrexin, recommended by Hynson for use in the treatment of premature labor, threatened and habitual abortion, and dysmenorrhea. FDA informed Hynson that Hynson's studies submitted with the application were not sufficiently well controlled to justify the claims of effectiveness and urged Hynson not to represent the drug as useful for threatened and habitual abortion. But FDA allowed the application to become effective, since the 1938 Act permitted evaluation of a new drug solely on the grounds of its safety. Before the 1962 amendments Hynson filed an application for a related drug which FDA, again on the basis of the test of safety, allowed to become effective. When the 1962 amendments became effective and NAS—NRC undertook to appraise the efficacy of drugs theretofore approved as safe, Hynson submitted a list of literature references, a copy of an unpublished study, and a representative sample testimonial letter on behalf of Lutrexin. The panel of NAS—NRC working in the relevant field reported to FDA that Hynson's claims for effectiveness of the drug were either inappropriate or unwarranted in the absence of submission of further appropriate documentation. At the invitation of the Commissioner of Food and Drugs, Hynson submitted additional data. But the Commissioner concluded that this additional information was inadequate and published notice of his intention to withdraw approval of the NDA's covering the drug, offering Hynson the opportunity for a prewithdrawal hearing. Before the hearing could take place, Hynson brought suit in the District Court for a declaratory judgment that the drugs in question were exempt from the efficacy review provisions of the 1962 amendments or, alternatively, that there was no lack of substantial evidence of the drug's efficacy. The Government's motion to dismiss was granted, the District Court ruling that FDA had primary jurisdiction and that Hynson had failed to exhaust its administrative remedies.
7
While the District Court litigation was pending, FDA promulgated new regulations establishing minimal standards for 'adequate and well-controlled investigations' and limiting the right to a hearing to those applicants who could proffer at least some evidence meeting those standards.8 Although Hynson maintained that it was not subject to the new regulations because its initial request for a hearing predated their issuance, it renewed its request and submitted the material which it claimed constituted 'substantial evidence' of Lutrexin's effectiveness. The Commissioner denied the request for a hearing and withdrew the NDA for Lutrexin. He ruled that Lutrexin is not exempt from the 1962 amendments and that Hynson had not submitted adequate evidence that Lutrexin is not a new drug or is effective. The Court of Appeals reversed, 461 F.2d 215, holding that while the drug in question was not exempt, Hynson was entitled to a hearing on the substantial-evidence question.
8
Section 505(e)9 directs FDA to withdraw approval of an NDA if the manufacturer fails to carry the burden of showing there is 'substantial evidence'10 respecting the efficacy of the drug. As the Court of Appeals says, 'substantial evidence' was substituted for 'preponderance' of the evidence. 461 F.2d, at 220. The Act and the Regulations, in their reduction of that standard to detailed guidelines,11 make FDA's so-called administrative summary judgment procedure appropriate.
9
The general contours of 'substantial evidence' are defined by § 505(d) of the Act to include 'evidence consisting of adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved, on the basis of which it could fairly and responsibly be concluded by such experts that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling or proposed labeling thereof.' 21 U.S.C. § 355(d). Acting pursuant to his 'authority to promulgate regulations for the efficient enforcement' of the Act, § 701(a), 21 U.S.C. § 371(a), the Commissioner has detailed the 'principles . . . recognized by the scientific community as the essentials of adequate and well-controlled clinical investigations. They provide the basis for the determination whether thre is 'substantial evidence' to support the claims of effectiveness for 'new drugs' . . ..' 21 CFR § 130.12(a)(5)(ii). They include a 'plan or protocol' setting forth the objective of the study and an adequate method for selecting appropriate subjects,12 explaining the methods of observation and steps taken to minimize bias, providing a comparison by one of four 'recognized' methods of the results of treatment or diagnosis with a control, and summarizing the methods of analysis, including any appropriate statistical methods. Id., § 130.12(a)(5)(ii)(a). No investigation will be considered 'adequate for approval of a new drug' unless the test drug is 'standardized as to identity, strength, quality, purity, and dosage form to give significance to the results of the investigation.' Id., § 130.12(a)(5)(ii)(b). Finally, the regulation provides that '(u)ncontrolled studies or partially controlled studies are not acceptable as the sole basis for the approval of claims of effectiveness. Such studies, carefully conducted and documented, may provide corroborative support . . .. Isolated case reports, random experience, and reports lacking the details which permit scientific evaluation will not be considered.' Id., § 130.12(a)(5)(ii)(c).
10
Lower courts have upheld the validity of these regulations,13 and it is not disputed here that they express well-established principles of scientific investigation. Moreover, their strict and demanding standards, barring anecdotal evidence indicating that doctors 'believe' in the efficacy of a drug, are amply justified by the legislative history. The hearings underlying the 1962 Act show a marked concern that impressions or beliefs of physicians, no matter how fervently held, are treacherous.14 Congress in its definition of 'substantial evidence' in § 505(d) wrote the requirement of 'evidence consisting of adequate and well-controlled investigations.' The Senate Report makes clear that an abrupt departure was being taken from old norms for marketing drugs. There had been mounting concern over efficacy of drugs we all as their safety.15 The Report stated:16
11
'(A) claim could be rejected if it were found (a) that the investigations were not 'adequate'; (b) that they were not 'well controlled'; (c) that they had been conducted by experts not qualified to evaluate the effectiveness of the drug for which the application is made; or (d) that the conclusions drawn by such experts could not fairly and responsibly be derived from their investigations.'
12
To be sure, the Act requires FDA to give 'due notice and opportunity for hearing to the applicant' before it can withdraw its approval of an NDA. § 505(e), 21 U.S.C. § 355(e). FDA, however, by regulation, requires any applicant who desires a hearing to submit reasons 'why the application . . . should not be withdrawn, together with a well-organized and full-factual analysis of the clinical and other investigational data he is prepared to prove in support of his opposition to the notice of opportunity for a hearing. . . . When it clearly appears from the data in the application and from the reasons and factual analysis in the request for the hearing that there is no genuine and substantial issue of fact . . ., e.g., no adequate and well-controlled clinical investigations to support the claims of effectiveness,' the Commissioner may deny a hearing and enter an order withdrawing the application based solely on these data. 21 CFR § 130.14(b). What the agency has said, then, is that it will not provide a formal hearing where it is apparent at the threshold that the applicant has not tendered any evidence which on its face meets the statutory standards as particularized by the regulations.
13
The propriety of such a procedure was decided in United States v. Storer Broadcasting Co., 351 U.S. 192, 205, 76 S.Ct. 763, 771, 100 L.Ed. 1081, and FPC v. Texaco, 377 U.S. 33, 39, 84 S.Ct. 1105, 1109, 12 L.Ed.2d 112. We said in Texaco:
14
'(T)he statutory requirement for a hearing under § 7 (of the Natural Gas Act) does not preclude the Commission from particularizing statutory standards through the rulemaking process and barring at the threshold those who neither measure up to them nor show reasons why in the public interest the rule should be waived.' Ibid.
15
There can be no question that to prevail at a hearing an applicant must furnish evidence stemming from 'adequate and well-controlled investigations.' We cannot impute to Congress the design of requiring, nor does due process demand, a hearing when it appears conclusively from the applicant's 'pleadings' that the application cannot succeed.17
16
The NAS—NRC panels evaluated approximately 16,500 claims made on behalf of the 4,000 drugs marketed pursuant to effective NDA's in 1962. Seventy percent of these claims were found not to be supported by substantial evidence of effectiveness, and only 434 drugs were found effective for all their claimed uses. If FDA were required automatically to hold a hearing for each product whose efficacy was questioned by the NAS—NRC study, even though many hearings would be an exercise in futility, we have no doubt that it could not fulfill its statutory mandate to remove from the market all those drugs which do not meet the effectiveness requirements of the Act.
17
If this were a case involving trial by jury as provided in the Seventh Amendment, there would be sharper limitations on the use of summary judgment,18 as our decisions reveal. See, e.g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 153—161, 90 S.Ct. 1598, 1606—1610, 26 L.Ed.2d 142; White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738. But Congress surely has great leeway in setting standards for releasing on the public, drugs which may well be miracles or, on the other hand, merely easy money-making schemes through use of fraudulent articles labeled in mysterious scientific dress. The standard of 'well-controlled investigations' particularized by the regulations is a protective measure designed to ferret out those drugs for which there is no affirmative, reliable evidence of effectiveness. The drug manufacturers have full and precise notice of the evidence they must present to sustain their NDA's, and under these circumstances we find FDA hearing regulations unexceptionable on any statutory or constitutional ground.
18
Our conclusion that the summary judgment procedure of FDA is valid does not end the matter, for Hynson argues that its submission to FDA satisfied its threshold burden. In reviewing an order of the Commissioner denying a hearing, a court of appeals must determine whether the Commissioner's findings accurately reflect the study in question and if they do, whether the deficiencies he finds conclusively render the study inadequate or uncontrolled in light of the pertinent regulations.'19 There is a contrariety of opinion within the Court concerning the adequacy of Hynson's submission. Since a majority are of the view that the submission was sufficient to warrant a hearing, we affirm the Court of Appeals on that phase of the case.
II
19
No. 72—414 is a cross-petition by Hynson from the judgment of the Court of Appeals. This cross-petition raises questions concerning the 'new drug' provisions of the 1962 amendments. The Court of Appeals suggested that only a district court has authority to determine whether Lutrexin is a 'new drug.' The Government contends that the Commissioner has authority to determine new drug status in proceedings to withdraw approval of the product's NDA under § 505(e). Although Hynson agrees, some of the manufacturers, parties to other suits in this group of cases, advance the contrary view.
20
Prior to 1938 there was no machinery for the premarketing approval of drugs sold in commerce. Under the 1906 Act, 34 Stat. 768, adulterated and misbranded drugs were narrowly defined, and the Act provided only criminal sanctions and seizure by libel for condemnation. As previously noted, the 1938 Act provided for regulatory clearance of drugs prior to marketing and for administrative suspension of any clearance if required in interests of public safety. To introduce a new drug an application had to be effective with respect to that drug. The application was to become effective within a fixed period unless the agency after notice and opportunity for hearing refused to permit it to become effective, finding that it could not determine from existing evidence or had not been shown that it was safe. 52 Stat. 1041—1042, 1052. Any NDA could be suspended if clinical experience or new testing showed that the drug was not safe. Id., at 1053. Orders denying or suspending an NDA were reviewable on the administrative record in a district court. Ibid. Marketing a new drug without an effective NDA could be enjoined or made the basis of a criminal prosecution, or the drug could be seized in libel and condemnation proceedings.
21
There was a steady stream of NDA's under that Act supported by voluminous data.20 Many new drugs claiming 'me-too' status were marketed illegally or were launched with an advisory opinion of FDA that they were recognzied as safe. It is estimated that by 1969 there were five identical or similar drugs for every drug with an effective NDA. Enormous administrative problems were created. Each NDA contained about 30 volumes, a stack 10 to 12 feet high; and some contained as many as 400 volumes of data.
22
It is clear to us that FDA has power to determine whether particular drugs require an approved NDA in order to be sold to the public. FDA is indeed the administrative agency selected by Congress to administer the Act, and it cannot administer the Act intelligently and rationally unless it has authority to determine what drugs are 'new drugs' under § 201(p) and whether they are exempt from the efficacy requirements of the 1962 amendments by the grandfather clause of § 107(c)(4).
23
Regulatory agencies have by the requirements of particular statutes usually proceeded on a case-by-case basis, giving each person subject to regulation separate hearings. But there is not always a constitutional reason why that must be done. United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081, is one example. We there upheld rules of the Federal Communications Commission limiting the number of broadcasting stations a single individual might own, saying that that was a proper exercise of the agency's 'rule-making authority necessary for the orderly conduct or its business.' Id., at 202, 76 S.Ct. at 770. The comprehensive, rather than the individual, treatment may indeed be necessary for quick effective relief. See Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312. A generic drug—which is found to be unsafe and/or lacking in efficacy—may be manufactured by several persons or manufacturers. To require separate judicial proceedings to be brought against each, as if each were the owner of a Black Acre being condemned, would be to create delay where in the interest of public health there should be prompt action. A single administrative proceeding in which each manufacturer may be heard is constitutionally permissible measured by the requirements of procedural due process.
24
FDA maintains that a withdrawal of any NDA approval covers all 'me-too' drugs. For the reasons stated, that procedure is a permissible one where every manufacturer of a challenged drug has an opportunity to be heard. FDA under § 554 of the Administrative Procedure Act may issue a declaratory order governing all drugs covered by a particular NDA. 5 U.S.C. § 554(e). That section prescribes the procedures an agency must follow 'in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.' § 554(a). The industry maintains that § 554(e) is of no avail to FDA because in a withdrawal proceeding a common issue is whether a drug is a 'new drug.' That issue, it is argued, can be resolved only in a court proceeding where there is an adjudication 'on the record of (a) hearing.' But that assumes an individualized hearing and adjudication as is common in regulatory proceedings. Section 554(e), however, does not place administrative proceedings in that straitjacket. It provides that an agency 'in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.' The termination of a controversy over a 'new drug' may often be of prime importance. This is an age of ever-expanding dockets at the administrative as well as at the judicial leval. If the administrative controls over drugs are to be efficient, they must be exercised with dispatch. Only paralysis would result if case-by-case battles in the courts were the only way to protect the public against unsafe or ineffective drugs. Moreover, if every 'me-too' drug in a particular generic category had to be put to the test in court actions, great inequities might well result. It might take months to eliminat one 'me-too' drug manufactured by one company from the market. Meanwhile, competitors selling drugs in the same category would go scot-free until the tedious and laborious procedures of litigation reached them. We cannot believe that Congress engaged in such an exercise in futility when it enacted the 1962 amendments. That would in effect restore the enforcement provisions to the status they enjoyed under the rather primitive 1906 Act. We hold that FDA by reasons of § 554(e) of the Administrative Procedure Act may issue a declaratory order to terminate a controversy over a 'new drug' or to remove any uncertainty whether a particular drug is a 'new drug' within the meaning of § 201(p)(1) of the 1938 Act. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681.
25
It is argued, however, that the only lawful purpose of an FDA hearing is to allow it a method for determining which lawsuits it will file in the future. Yet that is only another version of the tactics of delay and procrastination which the industry offers as the way best to serve industry's needs. The public needs are, however, opposed and paramount. We do not accept the invitation to hold that FDA has no jurisdiction to determine whether a particular drug is a 'new drug' and to decide whether an NDA should be withdrawn.
26
Its determination that a product is a 'new drug' or a 'me-too' drug is, of course, reviewable. But its jurisdiction to determine whether it has jurisdiction is as essential to its effective operation as is a court's like power. Cf. United States v. Shipp, 203 U.S. 563, 573, 27 S.Ct. 165, 166, 51 L.Ed. 319. The heart of the new procedures designed by Congress is the grant of primary jurisdiction to FDA, the expert agency it created. FDA does not have the final say, for review may be had, not in a district court (except in a limited group of cases we will discuss), but in a court of appeals. FDA does not have unbridled discretion to do what it pleases. Its procedures must satisfy the rudiments of fair play. Judicial relief is available only after administrative remedies have been exhausted.
27
It is argued that though FDA is empowered to decide the threshold question whether the drug is a 'new
28
'The term 'new drug' means—its power to approve or withdraw approval of NDA's. Some manufacturers, however, have no NDA's in effect and are not seeking approval of any drugs. Nevertheless, FDA may make a declaratory by scientific training and experience to While that order is not reviewable in the court of appeals under § 505(h), it is reviewable by the district court under the Administrative Procedure Act. 5 U.S.C. §§ 701—704; Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136; Abbott Laboratories v. Gardner, supra, at 139 148, 87 S.Ct. at 1510—1515. By analogy an agency order declaring a commodity not exempt from regulation is normally a declaratory order that is reviewable, as we held in Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 730.
29
The question then presented is whether FDA properly exercised its jurisdiction in this instance. As indicated above, Hynson in requesting an administrative hearing also asked FDA to decide that Lutrexin is not a 'new drug' within the meaning of § 201(p) as amended, 21 U.S.C. § 321(p).21 In addition, it asked that Lutrexin be 'grandfathered' under § 107(c)(4) of the 1962 amendments.22 The Commissioner rejected both claims. Finding that Hynson had failed to present any evidence of adequate and well-controlled investigations in support of Lutrexin's effectiveness, he concluded that 'there is no data base upon which experts can fairly and responsibly conclude that the safety and effectiveness of the drugs has been proven and is so well established that the drugs can be generally recognized among such experts as safe and effective for their intended uses.' The Commissioner also held that Lutrexin is not exempt under § 107(c)(4) because its NDA, which had become effective in 1953, had not been withdrawn prior to the enactment of the 1962 amendments and thus was 'covered by an effective application' within the meaning of § 107(c)(4)(C). The Court of Appeals affirmed the Commissioner's ruling that Lutrexin is not exempt under § 107(c)(4). It did not discuss his holding that Lutrexin currently is a 'new drug.' Although we agree that the Commissioner properly ruled that Lutrexin does not come within § 107(c)(4), we conclude that the Commissioner's order with respect to Lutrexin's 'new drug' status must be vacated.
30
The thrust of § 201(p) is both qualitative and quantitative. The Act, however, nowhere defines what constitutes 'general recognition' among experts. Hynson contends that the 'lack of substantial evidence' is applicable only to proof of the actual effectiveness of drugs that fall within the definition of a new drug and not to the initial determination under § 201(p) whether a drug is 'generally recognized' as effective. It would rely solely on the testimony of physicians and the extant literature, evidence that has been characterized as 'anecdotal.' We agree with FDA, however, that the statutory scheme and overriding purpose of the 1962 amendments compel the conclusion that the hurdle of 'general recognition' of effectiveness requires at least 'substantial evidence' of effectiveness for approval of an NDA. In the absence of any evidence of adequate and well-controlled investigation supporting the efficacy of Lutrexin, a fortiori Lutrexin would be a 'new drug' subject to the provisions of the Act.23
31
As noted, the 1962 amendments for the first time gave FDA power to scrutinize and evaluate drugs for effectiveness as well as safety. The Act requires the Commissioner to disapprove any application when there is a lack of 'substantial evidence' that the applicant's drug is effective. § 505(d), 21 U.S.C. § 355(d). Similarly, he may withdraw approval for any drug if he subsequently determines that there is a lack of such evidence. § 505(e), 21 U.S.C. § 355(e). Evidence may be accepted only if it consists of 'adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved . . ..' § 505(d), 21 U.S.C. § 355(d). The legislative history of the Act indicates that the test was to be a rigorous one. The 'substantial evidence' requirement reflects the conclusion of Congress, based upon hearings,24 that clinical impressions of practicing physicians and poorly controlled experiments do not constitute an adequate basis for establishing efficacy. This policy underlies the regulations defining the contours of 'substantial evidence': 'Uncontrolled studies or partially controlled studies are not acceptable as the sole basis for the approval of claims of effectiveness. Such studies, carefully conducted and documented, may provide corroborative support of well-controlled studies . . .. Isolated case reports, random experience, and reports lacking the details which permit scientific evaluation will not be considered.' 21 C.F.R. § 130.12(a)(5)(ii)(c).
32
These efficacy requirements were not designed to be prospective only. Clearly, after the initial two-year moratorium on existing drugs, FDA has the power to withdraw an application which became effective prior to the adoption of the 1962 amendments, if the applicant has not provided 'substantial evidence' of the drug's efficacy. The Act plainly contemplates that such drugs will be evaluated on the basis of adequate and well-controlled investigations. Hynson would have us hold that withdrawal proceedings can be thwarted by a showing of general recognition of effectiveness based merely on expert testimony and reports with respect to investigations and clinical observation regardless of the controls used. But, we cannot construe § 201(p) to deprive FDA of jurisdiction over a drug which, if subject to FDA regulation, could not be marketed because it had not passed the 'substantial evidence' test. To do so 'would be to impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.' Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 489, 68 S.Ct. 174, 178, 92 L.Ed. 88.
33
Moreover, the interpretation of § 201(p) urged by Hynson is not consistent with the statutory scheme as it operates on a purely prospective basis. Under subsection (2), a drug cannot transcend 'new drug' status until it has been used 'to a material extent or for a material time.' Yet, a drug cannot be marketed lawfully before an NDA has been approved by the Commissioner on the basis of 'substantial evidence.' As the Solicitor General argues, 'the Act is designed so that drugs on the market, unless exempt, will have mustered the requisite scientifically reliable evidence of effectiveness long before they are in a position to drop out of active regulation by ceasing to be a 'new drug."
34
It is well established that our task in interpreting separate provisions of a single Act is to give the Act 'the most harmonious, comprehensive meaning possible' in light of the legislative policy and purpose. Clark v. Uebersee Finanz-Korp., 332 U.S., at 488, 68 S.Ct., at 178; see United States v. Article of Drug . . . Bacto-Unidisk, 394 U.S. 784, 798, 89 S.Ct. 1410, 1418, 22 L.Ed.2d 726. We accordingly have concluded that a drug can be 'generally recognized' by experts as effective for intended use within the meaning of the Act only when that expert consensus is founded upon 'substantial evidence' as defined in § 505(d). We have held in No. 72—394, however, that the Commissioner was not justified in withdrawing Hynson's NDA without a prior hearing on whether Hynson had submitted 'substantial evidence' of Lutrexin's effectiveness. Consequently, any ruling as to Lutrexin's 'new drug' status is premature and must await the outcome of this hearing.
35
Finally, we cannot agree with Hynson that Lutrexin is exempt from the provisions of the Act by virtue of § 107(c)(4) of the 1962 amendments. That section provides that no drug will be treated as a 'new drug' if, on the day preceding the adoption of the amendments, the drug '(A) was commercially used or sold in the United States, (B) was not a new drug as defined by section 201(p) of the basic Act as then in force, and (C) was not covered by an effective application under section 505 of that Act . . ..' The applicability of this section turns solely on whether Lutrexin was 'covered' by an effective NDA immediately prior to the adoption of the 1962 amendments. Hynson argues that when Lutrexin became generally recognized as safe and was no longer a 'new drug,' its NDA ceased to be effective.25
36
That argument draws no statutory support. The 1938 Act did not provide any mechanism other than the Commissioner's suspension authority under § 505(e), whereby an NDA once effective could cease to be effective. Indeed, § 505(e) leads to the conclusion that an NDA remains effective unless it is suspended. That section empowers FDA to withdraw approval of an NDA whenever new evidence comes to light suggesting that the drug has become unsafe, whether or not the drug was generally recognized as safe in the interim.
37
Moreover, Hynson's argument, as the Court of Appeals recognized, would render clause (C) superfluous. Under Hynson's reasoning, any drug that could satisfy clause (B)—i.e., any drug that had become generally recognized as safe—automatically would satisfy clause (C). This construction, therefore, offends the well-settled rule of statutory construction that all parts of a statute, if at all possible, are to be given effect. See, e.G., Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859; D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704. The interpretation accorded by the Commissioner and the Court of Appeals, on the other hand, does give clause (C) operative effect. It would limit the exemption to drugs, generally recognized as safe, which had not come under the blanket of an effective NDA. This interpretation accords with the legislative history which suggests that the exemption is afforded only for drugs that never had been subject to new drug regulation.26
38
Except for the modification with respect to Lutrexin's 'new drug' status, the judgment of the Court of Appeals is affirmed.
39
Judgment affirmed.
40
Mr. Justice BRENNAN took no part in the consideration or decision of these cases.
41
Mr. Justice STEWART took no part in the decision of these cases.
APPENDIX TO OPINION OF THE COURT
Title 21 CFR § 130.12(a)(5) provides:
42
(ii) The following principles have been developed over a period of years and are recognized by the scientific community as the essentials of adequate and well-controlled clinical investigations. They provide the basis for the determination whether there is 'substantial evidence' to support the claims of effectiveness for 'new drugs' and antibiotic drugs.
43
(a) The plan or protocol for the study and the report of the results of the effectiveness study must include the following:
44
(1) A clear statement of the objectives of the study,
45
(2) A method of selection of the subjects that—
46
(i) Provides adequate assurance that they are suitable for the purposes of the study, diagnostic criteria of the condition to be treated or diagnosed, confirmatory laboratory tests where appropriate, and, in the case of prophylactic agents, evidence of susceptibility and exposure to the condition against which prophylaxis is desired.
47
(ii) Assigns the subjects to test groups in such a way as to minimize bias.
48
(iii) Assures comparability in test and control groups of pertinent variables, such as age, sex, severity, or duration of disease, and use of drugs other than the test drug.
49
(3) Explains the methods of observation and recording of results, including the variables measured, quantitation, assessment of any subject's response, and steps taken to minimize bias on the part of the subject and observer.
50
(4) Provides a comparison of the results of treatment or diagnosis with a control in such a fashion as to permit quantitative evaluation. The precise nature of the control must be stated and an explanation given of the methods used to minimize bias on the part of the observers and the analysts of the data. Level and methods of 'blinding,' if used, are to be documented. Geneally, four types of comparison are recognized:
51
(i) No treatment: Where objective measurements of effectiveness are available and placebo effect is negligible, comparison of the objective results in comparable groups of treated and untreated patients.
52
(ii) Placebo control: Comparison of the results of use of the new drug entity with an inactive preparation designed to resemble the test drug as far as possible.
53
(iii) Active treatment control: An effective regimen of therapy may be used for comparison, e.g., where the condition treated is such that no treatment or administration of a placebo would be contrary to the interest of the patient.
54
(iv) Historical control: In certain circumstances, such as those involving diseases with high and predictable mortality (acute leukemia of childhood), with signs and symptoms of predictable duration or severity (fever in certain infections), or in case of prophylaxis, where morbidity is predictable, the results of use of a new drug entity may be compared quantitatively with prior experience historically derived from the adequately documented natural history of the disease or condition in comparable patients or populations with no treatment or with a regimen (therapeutic, diagnostic, prophylactic) the effectiveness of which is established.
55
(5) A summary of the methods of analysis and an evaluation of data derived from the study, including any appropriate statistical methods.
56
Provided, however, That any of the above criteria may be waived in whole or in part, either prior to the investigation or in the evaluation of a completed study, by the Director of the Bureau of Drugs with respect to a specific clinical investigation; a petition for such a waiver may be filed by any person who would be adversely affected by the application of the criteria to a particular clinical investigation; the petition should show that some or all of the criteria are not reasonably applicable to the investigation and that alternative procedures can be, or have been, followed, the results of which will or have yielded data that can and should be accepted as substantial evidence of the drug's effectiveness. A petition for a waiver shall set forth clearly and concisely the specific provision or provisions in the criteria from which waiver is sought, why the criteria are not reasonably applicable to the particular clinical investigation, what alternative procedures, if any, are to be, or have been, employed, what results have been obtained, and the basis on which it can be, or has been, concluded that the clinical investigation will or has yielded substantial evidence of effectiveness, notwithstanding nonconformance with the criteria for which waiver is requested.
57
(b) For such an investigation to be considered adequate for approval of a new drug, it is required that the test drug be standardized as to identity, strength, quality, purity, and dosage form to give significance to the results of the investigation.
58
(c) Uncontrolled studies or partially controlled studies are not acceptable as the sole basis for the approval of claims of effectiveness. Such studies, carefully conducted and documented, may provide corroborative support of well-controlled studies regarding efficacy and may yield valuable data regarding safety of the test drug. Such studies will be considered on their merits in the light of the principles listed here, with the exception of the requirement for the comparison of the treated subjects with controls. Isolated case reports, random experience, and reports lacking the details which permit scientific evaluation will not be considered.
59
Mr. Justice POWELL, concurring in part, and concurring in the result in part.
60
I concur in Part II of the Court's opinion, which disposes of the issues raised by Hynson, Westcott & Dunning, Inc., in its cross-petition (No. 72—414). As to Part I, which addresses issues raised in the petition filed by the Commissioner of FDA (No. 72 394), I concur only in the result and state briefly the limited sense in which I accept the Court's conclusion.
61
Insofar as the Court today sustains the holding below that Hynson's submission to FDA raised 'a genuine and substantial issue of fact' requiring a hearing on the ultimate issue of efficacy, 21 CFR § 130.14(b), I am in accord. Hynson's presentation in support of the efficacy of Lutrexin clearly justified a hearing as to whether the drug was supported by 'adequate and well-controlled investigations,' 21 U.S.C. § 355(d), even as that term is defined in the Commission's regulations. 21 CFR § 130.12(a)(5). For this reason I concur in the result reached in this case. I cannot agree on this record, however, with any implications or conclusions in the Court's opinion to the effect that the regulations—as construed and applied by the Commissioner in this case—are either compatible with the statutory scheme or constitutional under the Due Process Clause.1 Such questions have not been squarely presented here and, in light of the Court's conclusion that Hynson has complied with the regulations, their resolution is unnecessary to the Court's decision.
62
Were we required to reach these issues, there might well be serious doubt whether the Commissioner's rigorous threshold specifications as to proof of 'adequate and well-controlled investigations,' coupled with his restrictive summary judgment regulation, go beyond the statutory requirements and in effect frustrate the congressional mandate for a prewithdrawal 'opportunity for hearing.' 21 U.S.C. § 355(e). There is also a genuine issue of procedural due process where, as in this case, the Commissioner construes his regulations to deny a hearing as to the efficacy of a drug established and used by the medical profession for two decades, and where its effectiveness is supported by a significant volume of clinical data and the informed opinions of experts whose qualifications are not questioned.2
63
These important and complex questions should await decision in future cases in which the issues are briefed fully and are necessary to the Court's decision.
1
Drug Amendments of 1962 (Harris-Kefauver Act), 76 Stat. 780, amending 21 U.S.C. § 301 et seq.
2
The Act originally provided for filing applications with the Secretary of Agriculture, but his functions were assigned to FDA. FDA is now part of the Department of Health, Education, and Welfare (HEW), and the Secretary of HEW has delegated his responsibilities under the Federal Food, Drug, and Cosmetic Act to the Commissioner of Food and Drugs. 21 CFR § 2.120.
3
'Substantial evidence' was defined to mean 'evidence consisting of adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved, on the basis of which it could fairly and responsibly be concluded by such experts that the drug will have the effect it purports or is represented to have . . ..' 21 U.S.C. § 355(d).
4
Drug Amendments of 1962, § 107(c)(2) and (c)(3)(B), 76 Stat. 788, note following 21 U.S.C. § 321.
5
Id., 107(c)(4).
6
31 Fed.Reg. 9426.
7
FDA has recently adopted a regulation declaring the manner in which Drug Efficacy Study Implementation Notices and Notices of Opportunity for Hearing apply to identical, related, and similar drugs. Any person with an interest in such drugs is provided an opportunity for hearing on any proposed withdrawal of NDA approval for the basic or pioneer drug. 37 Fed.Reg. 23185, adding § 130.40 to 21 CFR.
8
35 Fed.Reg. 7251, amending 21 CFR §§ 130.12(a)(5) and 130.14.
9
Section 505(e) as amended, 21 U.S.C. § 355(e), provides in relevant part:
'The Secretary shall, after the notice and opportunity for hearing to the applicant, withdraw approval of an application with respect to any drug under this section if the Secretary finds . . . (3) on the basis of new information before him with respect to such drug, evaluated together with the evidence available to him when the application was approved, that there is a lack of substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling thereof . . ..'
10
See n. 3, supra.
11
Title 21 CFR § 130.12(a)(5) as amended, 35 Fed.Reg. 7251, is set forth in relevant part in an Appendix to this opinion.
12
Subjects must be chosen so that they are 'suitable for the purposes of the study,' assigned to test groups in such a way as to minimize bias, and comparable in terms of 'pertinent variables, such as age, sex, severity, or duration of disease, and use of drugs other than the test drug.' 21 CFR § 130.12(a)(5)(ii)(a)(2).
13
Upjohn Co. v. Finch, 422 F.2d 944 (CA6); Pharmaceutical Manufacturers Ass'n v. Richardson, 318 F.Supp. 301 (D.C.Del.). FDA was enjoined from enforcing the regulations as originally issued on September 19, 1969, 34 Fed.Reg. 14596, on the ground that FDA had not complied with the notice requirements of the Administrative Procedure Act. Pharmaceutical Manufacturers Ass'n v. Finch, 307 F.Supp. 858 (D.C.Del.). The regulations were reissued in their current form on May 8, 1970. 35 Fed.Reg. 7251.
14
See Hearings on S. 1552 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 87th Cong., 1st Sess., pt. 1, pp. 195, 282, 411—412. Much of this aspect of the legislative background of the 1962 Act is reviewed in enlightening detail by Judge Latchum in Pharmaceutical Manufacturers Assn. v. Richardson, supra, 318 F.Supp., at 306 et seq.
15
S.Rep.No.1744, 87th Cong., 2d Sess., pt. 2, p. 1, U.S.Code Cong. & Admin.News 1962, p. 2884.
16
Id., at 6.
17
This applies, of course, only to those regulations that are precise. For example, the plan or protocol for a study must include '(a) summary of the methods of analysis and an evaluation of data derived from the study, including any appropriate statistical methods.' 21 CFR § 130.12(a)(5)(ii)(a)(5). A mere reading of the study submitted will indicate whether the study is totally deficient in this regard. Some of the regulations, however, are not precise, as they call for the exercise of discretion or subjective judgment in determining whether a study is adequate and well controlled. For example, § 130.12(a)(5)(ii)(a)(2)(i) requires that the plan or protocol for the study include a method of selection of the subjects that provide 'adequate assurance that they are suitable for the purposes of the study.' (Emphasis added.) The qualitative standards 'adequate' and 'suitable' do not lend themselves to clear-cut definition, and it may not be possible to tell from the face of a study whether the standards have been met. Thus, it might not be proper to deny a hearing on the ground that the study did not comply with this regulation.
18
Under the Rules of Civil Procedure the party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142.
19
Under the Administrative Procedure Act, a court reviews agency findings to determine whether they are supported by substantial evidence only in a case subject to the hearing provisions of 5 U.S.C. §§ 556 and 557 or 'otherwise reviewed on the record of an agency hearing provided by statute . . ..' 5 U.S.C. § 706(2)(E). This is not such a case. The question with which we are concerned involves the initial agency determination whether a hearing is required by statute. See Pfizer, Inc. v. Richardson, 434 F.2d 536, 546—547 (CA2).
20
1939 Annual Report FDA; 1941 Annual Report FDA; Annual Reports Federal Security Agency (1938—1952); Annual Reports HEW (1953—1962).
21
That section provides:
'The term (hew drug' means—
'(1) Any drug (except a new animal drug or an animal feed bearing or containing a new animal drug) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training an experience to evaluate the safety and effectiveness of drugs, as safe ans effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof, except that such a drug not so recognized shall not be deemed to be a 'new drug' if at any time prior to the enactment of this chapter it was subject to the Food and Drugs Act of June 30, 1906, as amended, and if at such time its labeling contained the same representations concerning the conditions of its use; or
'(2) Any drug (except a new animal drug or an animal feed bearing or containing a new animal drug) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized, but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions.'
22
That section provides:
'In the case of any drug which, on the day immediately preceding the enactment date, (A) was commercially used or sold in the United States, (B) was not a new drug as defined by section 201(p) of the basic Act as then in force, and (C) was not covered by an effective application under section 505 of that Act, the amendments to section 201(p) made by this Act shall not apply to such drug when intended solely for use under conditions prescribed, recommended, or suggested in labeling with respect to such drug on that day.'
23
It also follows that if Hynson were not entitled to a hearing under § 505(e), it would not be entitled to a hearing on its claim that Lutrexin is not a 'new drug.'
24
See Hearings, supra, n. 14.
25
Hynson also argues that Lutrexin is exempt by operation of § 107(c)(2), which provides:
'An application filed pursuant to section 505(b) of the basic Act which was 'effective' within the meaning of that Act on the day immediately preceding the enactment date shall be deemed as of the enactment date, to be an application 'approved' by the Secretary within the meaning of the basic Act as amended by this Act.' Hynson contends that Lutrexin, generally recognized as safe prior to 1962, was not a 'new drug' under applicable standards before the 1962 amendments. Thus, the argument goes, its NDA had ceased to be effective and could not be deemed 'approved' under § 107(c)(2). Consequently, there was no approval that could be withdrawn in administrative proceedings pursuant to § 505(e).
This argument shares a common thread with the argument under § 107(c)(4)—that the NDA for Lutrexin had ceased to be effective. The argument is no more persuasive under § 107(c)(2) than § 107(c)(4). In addition, the construction offered by Hynson would upset the carefully drawn transitionary provisions of § 107(c)(2) and (c)(3). Since the Commissioner now must affirmatively approve or disapprove all NDA's, § 107(c)(2) was enacted to remove the administrative burden of approving each and every NDA then effective. It also protected the marketing authority of all manufacturers that had effective NDA's. Without this provision, no manufacturer whose drug had become generally recognized as safe could have continued to market the drug if it was not also generally recognized as effective.
26
See S.Rep.No.1744, 87th Cong., 2d Sess., pt. 2, p. 8; H.R.Rep.No.2464, 87th Cong., 2d Sess., 12; H.R.Rep.No.2526, 87th Cong., 2d Sess. 22—23; U.S.Code Cong. & Admin.News 1962, p. 2884. Hynson contends that the construction afforded by FDA renders the exemption nugatory and defeats the legislative purpose. The provision, however, does exempt drugs that, as a generic class, were never subject to new drug regulation. These consist primarily of over-the-counter drugs which, although they were not 'grandfathered' under the 1938 Act, were not subject to new drug regulation because of universal recognition of the safety of their old, established ingredients at the time they came on the market.
1
Cf. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972), and cases cited therein. I do not question, of course, the authority of the Commissioner to adopt reasonable regulations consistent with the statute and which do not, as applied, deprive persons of their property without the elementary due process of a fair opportunity for a hearing.
2
There can be no doubt, both from the legislative history and the language of the 1962 amendments to the Act, that Congress intended to impose standards that would bar reliance upon anecdotal evidence or mere professions of belief by doctors as determinative of a drug's efficacy. But it is also clear that Congress intended to protect against the arbitrary withdrawal or withholding of approval of a drug where there is 'substantial evidence' of its effectiveness. To provide protection against such action, especially when authority is vested in an official who acts in an administrative as well as judicial capacity, the Act specifically provides for a hearing. The public interest is two-fold: (i) to remove from the market, in accordance with due process, drugs of no utility or effectiveness; and (ii) to retain on the market those drugs that are efficacious. In an understandable zeal to remove the former, an administrative agency must not overlook both the interest of the public and the right of the proprietor in protecting the drugs that are useful in the prevention, control, or treatment of illness.
| 78
|
412 U.S. 669
93 S.Ct. 2405
37 L.Ed.2d 254
UNITED STATES and Interstate Commerce Commission, Appellants,v.STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) et al. ABERDEEN AND ROCKFISH RAILROAD COMPANY et al., Appellants, v. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) et al.
Nos. 72—535 and 72—562.
Argued Feb. 28, 1973.
Decided June 18, 1973.
Syllabus
The Interstate Commerce Act permits railroads to file proposed freight rate increases, with at least 30 days' notice to the Interstate Commerce Commission (ICC) and the public before putting the new rates into effect. The ICC may, pursuant to § 15(7) of the Act, suspend the operation of the proposed rates for as long as seven months, in order to investigate the lawfulness of the rates. At the end of the seven-month period, the carrier may put the suspended rates into effect unless the ICC has completed its investigation and found the rates unlawful. Proceeding under the statutory scheme, substantially all the Nation's railroads sought a 2.5% surcharge on nearly all freight rates, as an emergency measure to obtain increased revenues pending adoption of selective rate increases on a permanent basis. Shippers, competing carriers, and other interested persons requested the ICC to suspend the tariff for the statutory seven-month period. Various environmental groups, including Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund, appellees here, protested that failure to suspend the surcharge would cause their members 'economic, recreational and aesthetic harm,' and specifically, that the new rate structure would discourage the use of 'recyclable' materials and promote the use of raw materials that compete with scrap, thus adversely affecting the environment. On February 1, 1972, the ICC issued an order announcing its decision not to suspend the surcharge for the seven-month period, and on April 24, 1972, ordered the proposed selective increases filed by the carriers to be suspended for the full seven-month period ending November 30, 1972, and permitted the collection of the surcharge until that date. SCRAP filed the present suit seeking, inter alia, an injunction to restrain enforcement of the February 1 and April 24 orders allowing the carriers to collect the surcharge. SCRAP, an unincorporated association formed by five law students to enhance the quality of the environment, claimed that its members 'suffered economic, recreational and aesthetic harm directly as a result of the adverse environmental impact of the railroad freight structure,' that each of its members was caused to pay more for finished products, that each of its members uses the forests, rivers, mountains, and other natural resources of the Washington, D.C., area and at his legal residence for camping, hiking, fishing, and other purposes, and that these uses have been adversely affected by increased freight rates. The main thrust of SCRAP's complaint was that the ICC's orders were unlawful for failure to include a detailed environmental impact statement as required by § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). The three-judge District Court found that appellees had standing to sue. The court held that its power to grant an injunction was not barred by Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52, because NEPA 'implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements . . . so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed.' The court concluded that the ICC's decision not to suspend the surcharge for the seven-month period was a 'major federal action significantly affecting the quality of the human environment,' and granted an injunction prohibiting the ICC 'from permitting' and the railroads 'from collecting' the surcharge 'insofar as that surcharge relates to goods being transported for purposes of recycling.' Held:
1. Appellees' pleadings sufficiently alleged that they were 'adversely affected' or 'aggrieved' within the meaning of § 10 of the Administrative Procedure Act to withstand a motion to dismiss on the ground of lack of standing to sue. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636, distinguished. Pp. 683—690.
(a) Standing is not confined to those who show economic harm, as '(a)esthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society.' Sierra Club, supra, at 734, 92 S.Ct. at 1366. P. 686.
(b) Here, the appellees claimed that the specific and allegedly illegal action of the ICC would directly harm them in their use of the natural resources of the Washington area. Pp. 686 687.
(c) Standing is not to be denied because many people suffer the same injury. Pp. 687—688.
(d) It cannot be said on these pleadings that appellees could not prove their allegations, which, if proved, would place them squarely among those persons injured in fact by the ICC's action and entitled to review under Sierra Club, supra. Pp. 688—690.
2. The District Court lacked jurisdiction to issue the injunction. Pp. 690—698.
(a) Arrow Transportation, supra, held that Congress in § 15(7) had vested exclusive jurisdiction in the ICC to suspend rates pending its final decision on their lawfulness and had deliberately extinguished judicial power to grant such relief; and the factual distinctions between the instant case and Arrow Transportation are inconsequential. Pp. 690—692.
(b) The alleged noncompliance by the ICC with NEPA did not give the District Court authority to grant the injunction, as NEPA was not intended to repeal by implication any other statute, and the policies identified in Arrow Transportation as the basis for § 15(7) would be substantially undermined if the courts were found to have suspension powers simply because of noncompliance with NEPA. Pp. 692—698.
346 F.Supp. 189, reversed and remanded.
1
Sol. Gen. Erwin N. Griswold, for the United States and Interstate Commerce Commission.
2
Hugh B. Cox, Washington, D.C., for the Aberdeen and Rockfish Railroad Company and others.
3
Peter H. Meyers, Washington, D.C., for Students Challenging Regulatory Agency Procedures, pro hac vice, by special leave of Court.
4
John F. Dienelt, Washington, D.C., for the Environmental Defense Fund, and others, pro hac vice, by special leave of Court.
5
Mr. Justice STEWART delivered the opinion of the Court.
6
Under the Interstate Commerce Act, the initiative for rate increases remains with the railroads. But in the absence of special permission from the Interstate Commerce Commission, a railroad seeking an increase must provide at least 30 days' notice to the Commission and the Public before putting the new rate into effect. 49 U.S.C. § 6(3).1 During that 30-day period, the Commission may suspend the operation of the proposed rate for a maximum of seven months pending an investigation and decision on the lawfulness of the new rates. 49 U.S.C. § 15(7).2 At the end of the seven-month period, the carrier may put the suspended rate into effect unless the Commission has earlier completed its investigation and found the rate unlawful.3
7
Proceeding under this regulatory scheme, on December 13, 1971, substantially all of the railroads in the United States requested Commission authorization to file on 5 days' notice a 2.5% surcharge on nearly all freight rates. The railroads sought a January 1, 1972, effective date for the new rates. The surcharge was proposed as an interim emergency measure designed to produce some $246 million annually in increased revenues pending adoption of selective rate increases on a permanent basis.
8
As justification for the proposed surcharge, the railroads alleged increasing costs and severely inadequate revenues. In its last general revenue increase case, less than two years earlier, the Commission had found:
9
'(T)he financial condition of the railroad industry as a whole, and the financial status of many individual carriers by rail, must be found to be at a dangerously low level. The precipitous decline in working capital and serious loss of liquidity has reduced many carriers to a truly marginal operation. This has been most clearly demonstrated by the recent bankruptcy application of the Penn Central. We think it undeniable that a number of other roads are approaching a similar financial crisis.' Ex parte Nos. 265/267, Increased Freight Rates, 1970 and 1971, 339 I.C.C. 125, 173.
10
The railroads alleged that, since the close of that proceeding, their costs had increased by over $1 billion on an annual basis, including $305 million in increased wages, while economic indicators such as decreased working capital and increased debt obligations pointed toward an ever-worsening financial condition.4
11
In an order dated December 21, 1971, the Commission acknowledged the need, particularly of some carriers, for increased revenues, but it concluded that five days' notice and a January 1, 1972, effective date 'would preclude the public from effective participation.' Ex parte No. 281, Increased Freight Rates and Charges, 1972, 340 I.C.C. 358, 361. The Commission authorized the railroads to refile the 2.5% surcharge with not less than 30 days' notice, and an effective date no earlier than February 5, 1972.
12
On January 5, 1972, the railroads refiled the surcharge, to become effective on February 5, 1972. Shippers, competing carriers, and other interested persons requested the Commission to suspend the tariff for the statutory seven-month period. Various environmental groups, including Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund (EDF), two of the appellees here, protested that failure to suspend the surcharge would cause their members 'economic, recreational and aesthetic harm.' Specifically, they claimed that the rate structure would discourage the use of 'recyclable' materials, and promote the use of new raw materials that compete with scrap, thereby adversely affecting the environment by encouraging unwarranted mining, lumbering, and other extractive activities. The members of these environmental groups were allegedly forced to pay more for finished products, and their use of forests and streams was allegedly impaired because of unnecessary destruction of timber and extraction of raw materials, and the accumulation of otherwise recyclable solid and liquid waste materials. The railroads replied that since this was a general rate increase, recyclable materials would not be made any less competitive relative to other commodities, and that in the past general rate increases had not discouraged the movement of scrap materials.
13
The Commission issued an order on February 1, 1972, shortly before the surcharge would have automatically become effective. It recognized that 'the railroads have a critical need for additional revenue from their interstate freight rates and charges to offset, in part, recently incurred increased operating costs,' and announced its decision not to suspend the 2.5% surcharge for the seven-month statutory period.5 In anticipation of the proposed permanent selective increases to be filed by the railroads and to avoid further complication of the tariff rates, the Commission specified that its refusal to suspend was conditioned upon the carriers' setting an expiration date for the surcharge of no later than June 5, 1972.6 The Commission ordered the investigation into the railroads' rates which had been instituted by its December 21 order to be held in abeyance until the carriers requested permission to file the indicated permanent rate increases on a selective basis. With respect to the appellees' environmental arguments, The Commission found that 'the involved general increase will have no significant adverse effect on the movement of traffic by railway or on the quality of the human environment within the meaning of the (National) Environmental Policy Act of 1969.'
14
The proposed permanent selective increases, averaging 4.1%, were subsequently filed with the Commission, and various parties again requested that these proposed rates also be suspended. By order served March 6, 1972, the Commission did not grant the railroads' request to have the selective increases go into effect on April 1, 1972, as they had sought but it allowed the carriers to republish their rates to become effective on May 1, 1972, upon not less than 45 days' notice to the public. The carriers did republish the rates, and on April 24, 1972, the Commission entered an order suspending the proposed selective increase for the full seven-month period allowed by statute, or to and including November 30, 1972.7 The investigation into the increased rates was continued. Since the selective increases were to supplant the temporary surcharge, and since they had been suspended, the Commission modified its February 1 order and authorized the railroads to eliminate the June 5 expiration date for the surcharge and to continue collecting the surcharge until November 30, 1972.
15
* On May 12, 1972, SCRAP filed the present suit against the United States and the Commission in the District Court for the District of Columbia seeking, along with other relief, a preliminary injunction to restrain enforcement of the Commission's February 1 and April 24 orders allowing the railroads to collect the 2.5% surcharge.
16
SCRAP stated in its amended complaint that it was 'an unincorporated association formed by five law students . . . in September, 1971. Its primary purpose is to enhance the quality of the human environment for its members, and for all citizens . . ..' To establish standing to bring this suit, SCRAP repeated many of the allegations it had made before the Commission in Ex parte 281. It claimed that each of its members 'suffered economic, recreational and aesthetic harm directly as a result of the adverse environmental impact of the railroad freight structure, as modified by the Commission's actions to date in Ex parte 281.' Specifically, SCRAP alleged that each of its members was caused to pay more for finished products, that each of its members '(u)ses the forests, rivers, streams, mountains, and other natural resources surrounding the Washington Metropolitan area and at his legal residence, for camping, hiking, fishing, sightseeing, and other recreational (and) aesthetic purposes,' and that these uses have been adversely affected by the increased freight rates, that each of its members breathes the air within the Washington metropolitan area and the area of his legal residence and that this air has suffered increased pollution caused by the modified rate structure, and that each member has been forced to pay increased taxes because of the sums which must be expended to dispose of otherwise reusable waste materials.
17
The main thrust of SCRAP's complaint was that the Commission's decisions of February 1 and April 24, insofar as they declined to suspend the 2.5% surcharge, were unlawful because the Commission had failed to include a detailed environmental impact statement as required by § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). NEPA requires such a statement in 'every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment . . ..' Ibid.8 SCRAP contended that because of its alleged adverse impact upon recycling, the Commission's action with respect to the surcharge constituted a major federal action significantly affecting the environment.
18
Three additional environmental groups, also appellees here, were allowed to intervene as plaintiffs, and a group of railroads, appellants here, intervened as defendants to support the 2.5% surcharge.9 After a single district judge had denied the defendants' motion to dismiss and SCRAP's motion for a temporary restraining order, a statutory three-judge district court was convened pursuant to 28 U.S.C. §§ 2284, 2325, to decide the motion for a preliminary injunction and the cross-motion to dismiss the complaint.
19
On July 10, 1972, the District Court filed an opinion, 346 F.Supp. 189, and entered an injunction prohibiting the Commission 'from permitting,' and the railroads 'from collecting' the 2.5% surcharge 'insofar as that surcharge relates to goods being transported for purposes of recycling, pending further order of this court.'10
20
The court first rejected the contention that the appellees were without standing to sue because they allegedly had no more than 'a general interest in seeing that the law is enforced,' id., at 195, and distinguished our recent decision in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636, on the basis that, unlike the petitioner in Sierra Club, the environmental groups here had alleged that their members used the forests, streams, mountains and other resources in the Washington area and that this use was disturbed by the environmental impact caused by nonuse of recyclable goods.
21
Second, the court found that its power to grant an injunction was not barred by our decision in Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 667, 83 S.Ct. 984, 988, 10 L.Ed.2d 52, where we held that in enacting 49 U.S.C. § 15(7), Congress had intentionally vested 'in the Commission the sole and exclusive power to suspend' and withdrew 'from the judiciary any pre-existing power to grant injunctive relief.' The court reasoned that NEPA 'implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements' 'so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed.' 346 F.Supp., at 197 and n. 11.
22
Finally, turning to the merits, the court concluded that the Commission's April 24 decision not to suspend the surcharge for the statutory seven-month period was a "major Federal action significantly affecting the quality of the human environment." Id., at 199. On the premise that an environmental impact statement is required 'whenever the action arguably will have an adverse environmental impact,' id., at 201, the court held that 'the danger of an adverse impact is sufficiently real to require a statement in this case.' Ibid.
23
The District Court declined to stay its injunctive order pending appeal to this Court, and on July 19, 1972, THE CHIEF JUSTICE, as Circuit Justice for the District of Columbia Circuit, denied applications to stay the preliminary injunction. 409 U.S. 1207, 93 S.Ct. 1, 34 L.Ed.2d 21. On December 18, 1972, we noted probable jurisdiction of the appeals filed by the United States, the Commission, and the railroads. 409 U.S. 1073, 93 S.Ct. 683, 34 L.Ed.2d 662.11
II
24
The appellants challenge the appellees' standing to sue, arguing that the allegations in the pleadings as to standing were vague, unsubstantiated, and insufficient under our recent decision in Sierra Club v. Morton, supra. The appellees respond that unlike the petitioner in Sierra Club, their pleadings sufficiently alleged that they were 'adversely affected' or 'aggrieved' within the meaning of § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702,12 and they point specifically to the allegations that their members used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing, and sightseeing, and that this use was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on those commodities. The District Court found these allegations sufficient to withstand a motion to dismiss. We agree.
25
The petitioner in Sierra Club, 'a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations,' 405 U.S., at 739, 92 S.Ct., at 1368, sought a declaratory judgment and an injunction to restrain federal officials from approving the creation of an extensive ski-resort development in the scenic Mineral King Valley of the Sequoia National Forest. The Sierra Club claimed standing to maintain its 'public interest' lawsuit because it had "a special interest in the conservation and (the) sound maintenance of the national parks, game refuges and forests of the country . . .." Id., at 730, 92 S.Ct., at 1364. We held those allegations insufficient.
26
Relying upon our prior decisions in Association of Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed. 184, and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192, we held that § 10 of the APA conferred standing to obtain judicial review of agency action only upon those who could show '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.' 405 U.S., at 733, 92 S.Ct., at 1365.13
27
In interpreting 'injury in fact' we made it clear that standing was not confined to those who could show 'economic harm,' although both Data Processing and Barlow had involved that kind of injury. Nor, we said, could the fact that many persons shared the same injury be sufficient reason to disqualify from seeking review of an agency's action any person who had in fact suffered injury. Rather, we explained: '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.' Id., at 734, 92 S.Ct., at 1366. Consequently, neither the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, nor the fact that all those who use those resources suffered the same harm, deprives them of standing.
28
In Sierra Club, though, we went on to stress the importance of demonstrating that the party seeking review be himself among the injured, for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. No such specific injury was alleged in Sierra Club. In that case the asserted harm '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,' id., at 735, 92 S.Ct., at 1366, yet '(t)he Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the . . . development.' Ibid. Here, by contrast, the appellees claimed that the specific and allegedly illegal action of the Commission would directly harm them in their use of the natural resources of the Washington Metropolitan Area.
29
Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club, the challenged agency action in this case is applicable to substantially all of the Nation's railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by major governmental actions. See, e.g., Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1097 (interests of consumers affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containing DDT); Reade v. Ewing, 2 Cir., 205 F.2d 630, 631—632 (interests of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration). To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.
30
But the injury alleged here is also very different from that at issue in Sierra Club because here the alleged injury to the environment is far less direct and perceptible. The petitioner there complained about the construction of a specific project that would directly affect the Mineral King Valley. Here, the Court was asked to follow a far more attenuated line of causation to the eventual injury of which the appellees complained—a general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area. The railroads protest that the appellees could never prove that a general increase in rates would have this effect, and they contend that these allegations were a ploy to avoid the need to show some injury in fact.
31
Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings in which the appellees alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected.14 If, as the railroads now assert, these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact.15 We cannot say on these pleadings that the appellees could not prove their allegations which, if proved, would place them squarely among those persons injured in fact by the Commission's action, and entitled under the clear import of Sierra Club to seek review. The District Court was correct in denying the appellants' motion to dismiss the complaint for failure to allege sufficient standing to bring this lawsuit.
III
32
We need not reach the issue whether, under conventional standards of equity, the District Court was justified in issuing a preliminary injunction, because we have concluded that the court lacked jurisdiction to enter an injunction in any event.
33
The District Court enjoined the Commission from 'permitting,' and the railroads from 'collecting,' the 2.5% interim surcharge on recyclable commodities. Finding that NEPA implicitly conferred authority 'on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements,' 346 F.Supp., at 197, it concluded that our decision in Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52, did not affect judicial power to issue an injunction in the circumstances of this case. We cannot agree.
34
In Arrow, the Commission had suspended a railroad's proposed rates for the statutory seven-month period, and the railroad had voluntarily deferred the proposed rate for an additional five months. When the Commission had not reached a final decision within that period, the railroad announced its intent to adopt the new rates. In a suit brought to enjoin the railroad from effectuating that change, we held that the courts were without power to issue such an injunction. From the language and history of § 15(7) of the Interstate Commerce Act, we concluded that Congress had vested exclusive power in the Commission to suspend rates pending its final decision on their lawfulness, and had deliberately extinguished judicial power to grant such relief. The factual distinctions between the present cases and Arrow are inconsequential.
35
It is true that the injunction in Arrow was sought after the statutory seven-month period had expired and thus represented an attempt to extend judicially the suspension period, while here the injunction was issued during the suspension period. But Arrow was grounded on the lack of power in the courts to grant any injunction before the Commission had finally determined the lawfulness of the rates, and that holding did not depend on the fact that the availability of the Commission's power of suspension had passed. Indeed, the federal court decisions cited and approved in Arrow involved instances where the courts had been asked to enjoin rates during the statutory seven-month period. See, e.g., M. C. Kiser Co. v. Central of Georgia R. Co., D.C., 236 F. 573, aff'd, 5 Cir., 239 F. 718; Freeport Sulphur Co. v. United States, D.C., 199 F.Supp. 913; Bison S.S. Corp. v. United States, D.C., 182 F.Supp. 63; Luckenbach S.S. Co. v. United States, D.C., 179 F.Supp. 605, 609—610, vacated in part as moot, 364 U.S. 280, 80 S.Ct. 1611, 4 L.Ed.2d 1719; Carlsen v. United States, D.C., 107 F.Supp. 398.
36
Similarly, there is no significance in the fact that, unlike Arrow, the injunction in this litigation ran against the Commission as well as the railroads. The only way in which the Commission could comply with the court's order would be to exercise its power of suspension and suspend the surcharge. The injunction constitutes a direct interference with the Commission's discretionary decision whether or not to suspend the rates. It would turn Arrow into a sheer formality and effectively amend § 15(7) if a federal court could accomplish by injunction against the Commission what it could not accomplish by injunction directly against the railroads. And, again, the federal court decisions on which Arrow relied were for the most part cases in which the courts had held that they were without power to compel the Commission to grant a rate suspension. See, e.g., Bison S.S. Corp. v. United States, supra; Luckenbach S.S. Co. v. United States, supra; Carlsen v. United States, supra; cf. Freeport Sulphur Co. v. United States, supra.16
37
Thus, the only arguably significant distinction between the present litigation and Arrow is that here the Commission allegedly failed to comply with NEPA. However, we cannot agree with the District Court that NEPA has amended § 15(7) sub silentio and created an implicit exception to Arrow so that judicial power to grant injunctive relief in this case has been revived.17 NEPA, one of the recent major federal efforts at reversing the deterioration of the country's environment, declares 'that it is the continuing policy of the Federal Government . . . to use all practicable means and measures . . . in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.' 42 U.S.C. § 4331. To implement these lofty purposes, Congress imposed a number of responsibilities upon federal agencies, most notably the requirement of producing a detailed environmental impact statement for 'major Federal actions significantly affecting the quality of the human environment.' 42 U.S.C. § 4332(2)(C).18 But nowhere, either in the legislative history or the statutory language, is there any indication that Congress intended to restore to the federal courts the power temporarily to suspend railroad rates, a power that had been clearly taken away by § 15(7) of the Interstate Commerce Act.
38
The statutory language, in fact, indicates that NEPA was not intended to repeal by implication any other statute. Thus, 42 U.S.C. § 4335 specifies that '(t)he policies and goals set forth in (NEPA) are supplementary to those set forth in existing authorizations of Federal agencies,' and 42 U.S.C. § 4334 instructs that the Act 'shall (not) in any way affect the specific statutory obligations of any Federal agency . . ..' Rather than providing for any wholesale overruling of prior law, NEPA requires all federal agencies to review their 'present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of (NEPA) and shall propose to the President . . . such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in (NEPA).' 42 U.S.C. § 4333. It would be anomalous if Congress had provided at one and the same time that federal agencies, which have the primary responsibility for the implementation of NEPA,19 must comply with present law and ask for any necessary new legislation, but that the courts may simply ignore what we described in Arrow as 'a clear congressional purpose to oust judicial power . . ..' 372 U.S., at 671 n. 22, 83 S.Ct., at 991.20
39
The District Court pointed to nothing either in the language or history of NEPA that suggests a restoration of previously eliminated judicial power. While it relied primarily on the decisions of the Court of Appeals for the District of Columbia Circuit in Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S.App.D.C. 33, 449 F.2d 1109, and Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 380, 463 F.2d 783, neither case supports an injunction under the circumstances of this case. Calvert Cliffs' held that a federal court had power to review rules promulgated by the Atomic Energy Commission, and there the court ordered further consideration of the rules on the ground that there had not been compliance with NEPA. In Committee for Nuclear Responsibility it was held that federal courts had jurisdiction to consider whether an executive decision to conduct a nuclear test had satisfied the procedural requirements of NEPA. The question here, however, is not whether there is general judicial power to determine if an agency has complied with NEPA, and to grant equitable relief if it has not, cf. Arrow Transportation Co. v. Southern R. Co., supra, 372 U.S., at 671 n. 22, 83 S.Ct. at 991, Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229, but rather whether in a specific context NEPA sub silentio revived judicial power that had been explicitly eliminated by Congress. Calvert Cliffs' and Committee for Nuclear Responsibility have nothing to say on this issue, for neither was concerned with a specific statute that restricts the power of the federal courts to grant injunctions.21
40
Our conclusion that the District Court lacked the power to grant the present injunction is confirmed by the fact that each of the policies that we identified in Arrow as the basis for § 15(7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged.
41
First, Arrow found that the Commission had been granted exclusive suspension powers in order to avoid the diverse results that had previously been reached by the courts. District courts had differed as to the existence and scope of any power to grant interim relief, with the consequence that the uniformity of rates had been jeopardized, and different shippers, carriers, and areas of the country had been subjected to disparate treatment. Similarly, since a suit to enjoin a national rate increase on NEPA grounds could be brought in any federal district court in the country, see 28 U.S.C. §§ 2284, 2321—2325, the result might easily be that the courts would '(reach) diverse results, . . . (engendering) confusion and (producing) competitive inequities.' 372 U.S., at 663, 83 S.Ct., at 987. In short, a rate increase allowed in New York might be disallowed in New Jersey.
42
Second, we stressed in Arrow that § 15(7) represents a careful accommodation of the various interests involved. The suspension period was limited as to time to prevent excessive harm to the carriers, for the revenues lost during that period could not be recouped from the shippers. On the other hand, Congress was aware that if the Commission did not act within the suspension period, then the new rates would automatically go into effect and the shippers would have to pay increased rates that might eventually be found unlawful. To mitigate this loss, Congress authorized the Commission to require the carriers to keep detailed accounts and eventually to repay the increased rates if found unlawful. To allow judicial suspension for noncompliance with NEPA, would disturb this careful balance of interests. A railroad may depend for its very financial life on an increased rate, and the rate may be perfectly just and reasonable. Granting an injunction against that rate based on the Commission's alleged noncompliance with NEPA, although the Commission had determined not to suspend the rate, would deprive the railroad of vitally needed revenues and result in an unjustified windfall to shippers.
43
Finally, we found in Arrow that any survival of a judicial power to grant interim injunctive relief would represent an undesirable interference with the orderly exercise of the Commission's power of suspension. Similarly, to grant an injunction in the present context, even though not based upon a substantive consideration of the rates, would directly interfere with the Commission's decision as to when the rates were to go into effect, and would ignore our conclusion in Arrow that 'Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction.' 372 U.S., at 668, 83 S.Ct., at 990. As the Court of Appeals for the Second Circuit explained in Port of New York Authority v. United States, 451 F.2d 783, 788, where, on the basis of alleged noncompliance with NEPA, an injunction was sought against a Commission order refusing to suspend rates:
44
'The basis of the decision in Arrow—that to permit judicial interference with the Commission's suspension procedures would invite the very disruption in the orderly review of the lawfulness of proposed tariffs that Congress meant to preclude—applies with equal force to the issue now before us.'
45
Accordingly, because the District Court granted a preliminary injunction suspending railroad rates when it lacked the power to do so,22 its judgment must be reversed and the cases remanded to that court for further proceedings consistent with this opinion.
46
Reversed and remanded.
47
Mr. Justice POWELL took no part in the consideration or decision of these cases.
48
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins, concurring.
49
I join the Court's judgment and its opinion, but because of the presence of the first sentence of Part III of the opinion, and to avoid any misunderstanding as to my posture, I add a few words.
50
For the reasons stated in my dissenting opinion in Sierra Club v. Morton, 405 U.S. 727, 755, 92 S.Ct. 1361, 1376, 31 L.Ed.2d 636 (1972), I would hold that the appellees here have standing to maintain this action based on their allegations of harm to the environment resulting from the Commission's order of April 24, 1972. And, in evaluating whether injunctive relief is warranted, I would not require that the appellees, in their individual capacities, prove that they in fact were injured. Rather, I would require only that appellees, as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact and that such injury would be irreparable and substantial.
51
Mr. Justice DOUGLAS, dissenting in part.
52
* These cases present important environmental problems. They concern rate-making for the shipment of litter for recycling. Paper, glass, and metals are the main items in today's garbage.1 As indicated by the Bureau of Mines in Appendix I to this opinion, America's method of disposing of garbage is either to use it for landfill or to put it first through incinerators and then to bury the residue. Sorting and recycling have several environmental impacts: (1) reduction in the use of incinerators lessens air pollution; (2) establishing or encouraging removal of litter from the landscape; (3) recycling saves both renewable and nonrenewable resources. As respects the last, the tons of paper that are recycled, rather than burned, can be translated into the number of standing trees that need not be cut for pulp the next year; the metals recycled protect our remaining nonrenewable supplies of ore, and so on.
53
Rates fixed so as to encourage vast shipments of litter are, therefore, perhaps the most immediate and dramatic illustration of a policy which will encourage protection of the environment against several erosive conditions.2 I would, therefore, affirm the eminently responsible decision of the District Court. 346 F.Supp. 189.
54
The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4321 et seq., declares a congressional policy
55
'which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.' 42 U.S.C. § 4321.
56
That broad policy is further expounded in § 4331(b) to include, inter alia, the objective that 'the Nation may . . . (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings . . . and (6) enhance the quality of renewable resources and . . . depletable resources.' The Government urges that appellees do not have standing to challenge the administrative determination of railroad freight rate increases. SCRAP alleged in its amended complaint that its members suffered environmental and economic injury as a result of the alleged increase, because the increase diminished the total amount of waste recycling in the United States, and made those products, which were in fact manufactured from the waste materials after the rate increase, more expensive in the marketplace. In addition, SCRAP alleged that each of its members in fact used the 'forests, rivers, streams, mountains, and other natural resources . . .' for recreational purposes, and these uses were adversely affected because the Commission's rate increases discourage the reuse of recyclable commodities, such as bottles and cans, and encourage the depletion of natural resources.
57
In Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 this Court stated that, 'We do not question that (environmental) harm may amount to an 'injury in fact' sufficient to lay the basis for standing under . . . the APA (5 U.S.C. § 702). 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.' The members of SCRAP have clearly alleged an 'injury in fact' to the environment and to their own personal continued use of it.
58
'There is nothing unusual or novel in granting the consuming public standing to challenge administrative actions.' Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994. This Court has indicated that where 'statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action.' Association of Data Processing Service v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184.
59
Littering is a commonplace phenomenon that affects every person, almost everywhere. From reports and writings we know that littering defaces mountain trails, alpine meadows, and even our highest peaks. Those in the valleys are often almost inundated with litter. Where a river is polluted and a person is dependent on it for drinking water, I suppose there would not be the slightest doubt that he would have standing in court to present his claim. I also suppose there is not the slightest doubt that where smog settles on a city, any person who must breathe that air or feel the sulphuric acid forming in his eyes, would have standing in court to present his claim. I think it is equally obvious that any resident of an area whose paths are strewn with litter, whose parks, or picnic grounds are defaced by it has standing to tender his complaint to the court. Sierra Club v. Morton, supra, would seem to cover this case, for littering abetted by the failure to recycle would clearly seem to implicate residents to whom 'the aesthetic and recreational values of the area' are important. Id., 405 U.S., at 735, 92 S.Ct., at 1366. For the reasons stated in my opinion in Sierra Club v. Morton, supra, I agree with the Court that appellees have standing, but like Mr. Justice BLACKMUN, I would not require appellees, in their individual capacity, to prove injury in fact. As Mr. Justice BLACKMUN states, it should be sufficient if appellees, 'as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact . . ..'
II
60
The Council on Environmental Quality (CEQ), created in the Executive Office of the President, 42 U.S.C. § 4342, estimated in 1969 that this Nation produced more than 4.3 billion tons of solid refuse, including about 30 million tons of paper, 30 million tons of industrial fly ash, 15 million tons of scrap metal, 4 million tons of plastics, 100 million automobile tires, 30 billion bottles, 60 billion cans, and millions of discarded automobiles and appliances. First Annual Report of CEQ, Aug. 1970, pp. 107—113. It reported that while most of the secondary material could be reused as a replacement for virgin material, only a small fraction was recycled. Ibid. One of the reasons for the absence of recycling was the high cost both of collection of the material and the transportation costs. Ibid.
61
As noted, one of the purposes of the Act was to 'enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.' 42 U.S.C. § 4331(b)(6). On October 9, 1970, Chairman Russell Train of CEQ wrote the Interstate Commerce Commission as follows:
62
'The Council on Environmental Quality is deeply concerned with all facets of environmental quality. Solid waste disposal is one important aspect of the total pollution problem, and recycling is a new and desirable alternative to solid waste disposal which the Council strongly supports. The degree to which this technique will be used depends almost entirely on economics. Transportation costs, to the degree they increase secondary or scrap materials costs compared to the raw materials with which they compete, act as a disincentive to recycling. The Council believes that several rail haul costs biases currently exist and would like to discuss these cases with you. . . . In general, across-the-board percentage increases only widen existing price biases against secondary materials. Also, these increases raise the costs of doing business which can hinder the salvage and reclamation industry.
63
'In light of the President's concern with environmental quality, the growing problems of solid waste and the importance of recycling to alleviating them, I would like to express the Council's hope that the Interstate Commerce Commission's actions on the key issue of scrap material transportation rates will be consistent with the Nation's environmental quality goals.' App. 68.
64
In December 1971 substantially all the railroads filed with the Commission a request to impose a 2.5% surcharge on virtually all freight. The procedural details which followed are not presently material. Suffice it to say that shippers of recyclable materials submitted verified statements in support of their view that rate increases would intensify the disincentives to shipment and use of recyclable materials. Thus the Institute for Scrap Iron and Steel submitted a study showing:
65
'(1) Present scrap markets are retarded because of transport rates which encourage the usage of iron ore. (2) Future scrap markets are being affected because new investment that would logically be directed to scrap-intensive steelmaking is diverted because of the existing freight rate structure to ore-intensive steelmaking. (3) Iron ore (a limited domestic natural resource) is being exploited when it can and should be conserved. (4) Some scrap iron that should be recycled is unable to move, thus the environment is despoiled by unnecessary accumulations of solid metallic waste.' T. Barnes, Impact of Railroad Freight Rates on the Recycling of Ferrous Scrap (Jan. 14, 1972).
66
The Commission instituted a proceeding concerning the guidelines which environmental impact statements required under the Act should follow. 339 I.C.C. 508. A spokesman for the eastern railroads filed an impact statement which said that 'any possible adverse environmental impact in the form of reduced movements of commodities by rail will come only if we fail to provide adequate and efficient service' and that the need of the railroads to that end was for increased revenues. Appellees filed a protest and a request for a suspension of the proposed surcharge alleging that the present railroad rate structure discourages the movement of 'recyclable' goods and that the surcharge would further discourage recycling.
67
The Commission, allowing the surcharge for a limited period, found that it would 'have no significant adverse effect in the movement of traffic by railway or on the quality of the human environment' within the meaning of the 1969 Act. See 340 I.C.C. 358; 341 I.C.C. 287.
68
Chairman Train of CEQ protested to the Commission on October 30, 1972.
69
'It is understandable that difficulties will be encountered in quantifying the environmental consequences of an incremental freight rate increase on recyclable materials. In our view, however, these consequences must be assessed in the light of the rate disparity between secondary and primary materials that gives rise to the problem in the first place. This disparity is a matter of an entirely different magnitude, calling for a thorough environmental assessment as a precondition to determining whether subsequent incremental increases require additional environmental impact statements. . . . Clearly at some point increases which might be individually 'insignificant' become cumulatively 'significant.' In addition, the claim that freight rates on recycled products must be increased to respond to 'emergency' revenue needs pending completion of the required, overall environmental evaluation, loses much of its force as months turn into years and the basic investigation remains uncompleted. Finally, even the 'emergency' argument itself, however legitimate, in no way forecloses the consideration of alternatives which would both meet revenue needs and at the same time avoid further potential environmental damage while the basic rate structure issue is being resolved. Alternatives of this sort were, in fact, suggested in the partial dissenting opinions of Commissioners Brown and Deason (who would have denied approval of increases for recyclable commodities), with no indication in the Commission's majority report that such measures would not have been sufficient to meet the revenue needs relied on to justify the rate increases. . . . In summary, the Council feels that the basic environmental issues related to the existing freight rate structure and changes thereto, must be evaluated in a logical, analytical and timely fashion in compliance with the requirements of the National Environmental Policy Act. The Commission's actions to date appear to be inconsistent with the objectives of NEPA, and the analyses undertaken to date by the Commission appear to offer an inadequate basis from which to draw conclusions concerning the impact of freight rates on recycling and environmental quality. Our staff is available to discuss the NEPA procedural issues as well as to assist in structuring the analytical work required to assess adequately the environmental impact of freight rates.'3 App. 87—89.
70
The three-judge District Court held that the conclusion of the Commission that the rate increase would have 'no significant adverse effect' on the environment within the meaning of EPA was 'transparent' and 'a ruse.' 346 F.Supp., at 200—201. This leads to an analysis of § 102 of NEPA.4
71
That section is directed to 'all agencies of the Federal Government,' which of course includes the Interstate Commerce Commission. It directs the agency to interpret and administer 'the policies, regulations, and public laws' which it administers 'to the fullest extent possible' in accordance with the policies of EPA. It directs the agency5 to include in 'major Federal actions significantly affecting the quality of the human environment' a detailed statement 'by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and view of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, . . . and shall accompany the proposal through the existing agency review processes.' 83 Stat. 853.
72
Rates affecting litter, like rates affecting other commodities, obviously are relevant to the ease and expedition with which it will be transported. To get the litter to appropriate recycling plants in the quantities needed to protect our fast depleting forests and our nonrenewable resources6 and to relieve our landscape of the litter that plagues us may need special incentive rates.
73
The report, H.R.Conf.Rep. No. 91—765, makes clear that no agency of the Federal Government is exempt and that each should comply unless existing law applicable to the agency 'expressly prohibits or makes full compliance with one of the directives impossible.' The report states:
74
'The purpose of the new language is to make it clear that each agency of the Federal Government shall comply with the directives set out in such subparagraphs (A) through (H) unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. If such is found to be the case, then compliance with the particular directive is not immediately required. However, as to other activities of that agency, compliance is required. Thus, it is the intent of the conferees that the provision 'to the fullest extent possible' shall not be used by any Federal agency as a means of avoiding compliance with the directives set out in section 102. Rather, the language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section 'to the fullest extent possible' under their statutory authorizations and that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance.' 2 U.S.Code Cong. & Admin.News, 91st Cong., 1st Sess.1969, p. 2770.
75
The District Court, acting responsibly in light of the broad and clear-cut policy of the Act concluded that it sets a "high standard" for federal agencies, that there is no "escape hatch for footdragging agencies," that the Act does not make the preparation and use of these impact statements "discretionary," that Congress did not intend that this Act be "a paper tiger." 346 F.Supp., at 199.7
76
Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52, does not preclude review here. In Arrow there were rates which the Commission had the power to suspend but had not suspended. The power of suspension was entrusted to the Commission only; and we held that the courts should not intrude when the Commission has not acted. Here the Commission has acted; it has found that 'the increases here proposed are just and reasonable, that the revenues derived therefrom will result in earnings and rates of return . . . not in excess of that required to enable' the carriers 'to render adequate and efficient transportation at the lowest cost consistent with the furnishing of such service.' Exparte 281, Order of Feb. 1, 1972 (unreported). The Commission said it was not prescribing rates, though it attached conditions on approval of the rates without suspension. It made clear it would suspend the new rates if the conditions were not added. As stated by the three-judge court: 'A suspension decision which effectively blackmails the carriers into submitting agency-authored rates is functionally indistinguishable from an agency order setting those rates.' 346 F.Supp., at 197.
77
Moreover, as the three-judge court held and as Judge Friendly observed in City of New York v. United States, D.C., 337 F.Supp. 150, 164, 'NEPA is a new and unusual statute imposing substantive duties which overlie those imposed on an agency by the statute or statutes for which it has jurisdictional responsibility.'
78
The Court today greatly weakens NEPA in a crucially important segment of the federal environmental field. Movement of litter to recycling plants8 is critically important, as Chairman Train makes abundantly clear. The alternative is to leave it underfoot or to cart it off as garbage to incinerators that pollute the air or to landfills that are getting more and more difficult to find.9 We know that recycled paper, recycled copper, recycled iron, and recycled glass are practical. The Federal Bureau of Mines in its pilot plant at Edmonston, Maryland, boasts that 'urban ore,' as it calls this debris, costs about $3 a ton and recycled is worth $11 a ton. We know that we deal here with nonrenewable resources. We are told that recycling paper saves thousands of acres of trees a year.10
79
Under the Act, the appraisal by the Council on Environmental Quality of which Russell Train is the chairman is a weighty one, for under § 204 of the Act it has the responsibility 'to appraise the various programs and activities of the Federal Government' in light of the policy of the Act and 'to develop and recommend . . . national policies to foster and promote the improvement of environmental quality.' 83 Stat. 855; 42 U.S.C. §§ 4344(3), (4). CEQ is, in other words, the expert ombudsman in the environmental area.
80
The apparent tendency among federal agencies, Congressman Dingell says,11 is to decide first what they want to do and then prepare an impact statement as an apologia for what they have done. That puts the cart before the horse. That is what the Commission did here. But that is to adopt 'an excessively narrow construction' of its statutory power 'to avoid compliance' with the new environmental standards—all as condemned in the Conference report, supra, at 10. That is to say, environmental considerations are, so far as possible, to shape all agency policies and decisions.
81
These cases are, indeed, Exhibit A of the current practice of federal agencies to undermine the policy announced by Congress in NEPA. Rail rates were long discriminatory in retarding the industrial development of the South. New York v. United States, 331 U.S. 284, 67 S.Ct. 1207, 91 L.Ed. 1492. The present rates are arguably discriminatory against the removal of the litter which is about to engulf us. The wisdom of Chairman Train, rather than the technical maneuvers of the Commission, should be our guide.
82
I would affirm the judgment of the District Court.
83
APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING IN PART
84
The Bureau of Mines had at Edmonston, Maryland, for several years an incinerator residue processing plant on the basis of which Lowell, Massachusetts, instituted its Resource Recovery Project.
85
The Edmonston project is now engaged in recycling of raw waste and the following is the Bureau's description of the nature and scope of that project.
FACT SHEET
86
Edmonston (Md.) Solid Waste Recycling Project Bureau of Mines
DEPARTMENT OF THE INTERIOR
87
An important part of the solid waste utilization research carried on by the Bureau of Mines is to develop methods and processes for recycling mineral materials present in urban refuse. Engineers from the Bureau's College Park (Md.) Metallurgy Research Center operate a pilot plant at Edmonston, Maryland, where they reclaim ferrous metals, nonferrous metals, glass, plastics, and paper from raw unburned refuse. The following facts are pertinent to the research underway at the Edmonston pilot plant.
88
xxx—100 pounds of typical municipal refuse contains:
89
36.6 pounds of paper and cardboard; 20.2 pounds of garbage; 8.4 pounds of metal; 8.5 pounds of glass; 17.4 pounds of leaves, grass, hedge clippings and tree prunings; 2.6 pounds of scrap wood; 1.1 pound of plastics; and 5.2 pounds of miscellaneous material including leather, rubber, textiles, bricks, stones, and dirt.
90
xxx—Urban refuse generated in the U.S. in 1972 totaled 300 million tons, or the equivalent of more than 8 pounds daily for every man, woman, and child.
91
xxx—Only 220 million tons of municipal refuse was regularly collected by public agencies and private firms. The remainder (80 million tons) was abandoned, dumped at the point of origin, or hauled to uncontrolled disposal sites.
92
xxx—The volume of municipal refuse accumulating in the U.S. in a single year would cover an area half the size of the State of Connecticut (2,500 sq. mi.) with a layer of refuse 1 foot deep. This refuse contains some 12 million tons of iron and steel, 13 million tons of glass, and over a million tons of aluminum, zinc, lead, tin, and copper.
93
xxx—Collecting and disposing of refuse costs cities an average of $23 per ton ($18, for collection and $5, for disposal). New York City, at a cost of $40 per ton, spends almost a million dollars each day to collect and dispose of solid waste. Total U.S. bill runs about $6 billion annually.
94
xxx—Most municipal refuse is disposed of by dumping, landfill, or incineration. About 30 million tons of municipal refuse is burned annually in more than 300 municipal incinerators. These incinerators generate 7.5 million tons of residues, which are then buried. The process developed by the Bureau to reclaim the values from incinerator residues has attracted world-wide attention. A commercial size plant of this type will soon be under construction in Lowell, Massachusetts, with seventy-five percent of the.$3.2 million required, being provided by the Environmental Protection Agency.
95
xxx—Successful reclamation of mineral values from incinerator residues at the Bureau's pilot plant prompted research to save also that part of municipal refuse that is now being lost during burning. This would reduce the need for building more municipal incinerators, saving their construction and operating costs, and would bring income from salvaged paper and plastics as well as metals and glass. It would also eliminate air pollution problems connected with incineration.
96
xxx—Equipment for mechanical separation of metals, glass, paper, and plastics from municipal refuse before incineration has been assembled at Edmonston. The process involves coarse shredding of the refuse, followed with air classification, magnetic separation, screening, optical sorting, electrostatic separation, and gravity concentration—all proven methods used in the minerals industries.
97
xxx—Other refuse recycling schemes have been proposed and some are already under development. The process developed by the Bureau is unique in the following major respects: (1) it is the only process that embodies a complete system, (2) it is the only process capable of capturing and concentrating putrescibles and glass, (3) it is the only process that produces a tin can product suitable for detinning, (4) it is the only process capable of accepting extremely massive pieces of metal, (5) it is the only process that can successfully separate plastics and paper, and (6) energy requirements for the Bureau's process are by far the least of all proposed processes.
98
xxx—A plant processing 1,000 tons of raw refuse per day could be expected to reclaim each day enough ferrous metal to make all the iron and steel parts for more than 55 4-door sedans.
99
xxx—About 36 billion bottles are discarded each year in the U.S. as solid waste. Each American discards a glass bottle on the average of about one every two days. The average returnable beer bottle used to make 31 round trips from the brewery, to the consumer, and back to the brewery. The average is now 19 trips. In some cities, it is only 4. People are discriminating less between returnable and nonreturnable bottles.
100
xxx—Glass reclaimed from raw refuse can be used in making new glass, or for such salable products as building bricks, mineral wool for insulation, and road surfacing (when ground and mixed with asphalt).
101
xxx—Aluminum present in refuse in the form of cans alone amounts to 10 percent of the total primary production. This metal together with other aluminum recovered from refuse would find a ready market at existing secondary smelters for conversion to high grade casting alloys.
102
xxx—The other heavy nonferrous metals could be used readily in producing brass ingot or the mixture could be further refind and separated into the constituent metals.
103
xxx—The rate at which we generate further refined and separated into within 20 years, even if we are able to recycle 70 percent of our solid wastes our needs for landfill space will remain the same. And landfill space is, even now, becoming harder and harder to find.
104
(Refuse-disposal and refuse-recovery charts appear on pp. 718 and 719 respectively.)
105
URBAN REFUSE DISPOSAL IN THE UNITED STATES 1972
106
[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
BUREAU OF MINES DRYSORT REFUSE RECOVERY SYSTEM
107
[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
108
APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING IN PART
109
Section 102 of the National Environmental Policy Act, 42 U.S.C. § 4332 provides:
110
§ 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts.
111
The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—
112
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment;
113
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;
114
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
115
(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
116
(iii) alternatives to the proposed action,
117
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
118
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
119
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;
120
(d) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;
121
(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;
122
(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;
123
(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and
124
(H) assist the Council on Environmental Quality established by subchapter II of this chapter.
125
Pub.L. 91—190, Title I, § 102, Jan. 1, 1970, 83 Stat. 853.
126
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting in part.
127
I would reverse the judgment of the District Court and order the complaint dismissed because appellees lack standing to bring this suit. None of our cases, including inferences that may be drawn from dicta in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), where we denied standing to petitioner there, are sufficient to confer standing on plaintiffs in circumstances like these. The allegations here do not satisfy the threshold requirement of injury in fact for constituting a justiciable case or controversy. The injury alleged is that the failure of the Commission to suspend a 2.5% freight rate increase may discourage the transportation of recyclable materials thus retarding the use of recycled materials, causing further consumption of our forests and natural resources (some of which might be taken from the Washington metropolitan area), and resulting in more refuse and undisposable materials to further pollute the environment.
128
The majority acknowledges that these allegations reflect an 'attenuated line of causation,' ante, p. 688, but is willing to suspend its judgment in the dim hope that proof at trial will in some unexplained way flesh them out and establish the necessary nexus between these appellees and the across-the-board rate increase they complain of. To me, the alleged injuries are so remote, speculative, and insubstantial in fact that they fail to confer standing. They become no more concrete, real, or substantial when it is added that materials will cost more at the marketplace and that somehow the freight rate increase will increase air pollution. Allegations such as these are no more substantial and direct and no more qualify these appellees to litigate than allegations of a taxpayer that governmental expenditures will increase his taxes and have an impact on his pocketbook, Massachusetts v. Mellon, 262 U.S. 447, 486—489, 43 S.Ct. 597, 600—601, 67 L.Ed. 1078 (1923), or allegations that governmental decisions are offensive to reason or morals. The general 'right, possessed by every citizen, to require that the government be administered according to law and that the public moneys be not wasted' does not confer standing to litigate in federal courts. Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 275, 66 L.Ed. 499 (1922). New York did not have standing to complain when it asserted merely the possible adverse effects of diversion of water from Lake Michigan upon hypothetical power developments in 'the indefinite future.' New York v. Illinois, 274 U.S. 488, 490, 47 S.Ct. 661, 71 L.Ed. 1164 (1927). Assumed potential invasions are insufficient bases for a justiciable case or controversy. Arizona v. California, 283 U.S. 423, 462, 51 S.Ct. 522, 528, 75 L.Ed. 1154 (1931). As I see allegations in this case, they are in reality little different from the general-interest allegations found insufficient and too remote in Sierra Club. If they are sufficient here, we are well on our way to permitting citizens at large to litigate any decisions of the Government which fall in an area of interest to them and with which they disagree.
129
Assuming, however, that a majority of the Court adheres to the conclusion that a constitutional case or controversy exists in these circumstances and that plaintiffs may use, I would agree that the District Court erred in entering an injunction which Congress quite clearly had long since divested it of the power to enter. Accordingly, I join Part III of the Court's opinion. I add only that failure to maintain this country's railroads even in their present anemic condition will guarantee that recyclable materials will stay where they are—far beyond the reach of recycling plants that as a consequence may not be built at all.
130
Mr. Justice MARSHALL, concurring in part and dissenting in part.
131
I fully agree with and join in Part II of the Court's opinion wherein it sustains the District Court's determination that the appellees have standing to challenge the 2.5% interim surcharge on the ground that the Interstate Commerce Commission's order of Appril 24 permitting the surcharge to take effect was not issued in compliance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The Court goes on, however, to hold in Part III of its opinion that the District Court lacked power to issue a preliminary injunction barring implementation of the surcharge due to the Commission's alleged failure to comply with NEPA in the suspension stage of the rate proceeding. The Court's decision in this respect is, to be sure, a very narrow one; the decision clearly concerns only the scope of remedies available to the District Court in the context of a case of this particular character,1 that is, an ICC rate suspension case. The Court specifically refrains from deciding whether or not the Commission's alleged failure to comply with NEPA in the suspension stage is a proper subject for judicial review and, if so, what would constitute adequate compliance with NEPA at that juncture in the administrative process. See at p.2421 n. 22. Nonetheless, I am unable to join the third portion of the Court's opinion, for I am convinced that there is no lack of judicial power to issue a preliminary injunction against the interim surcharge in the context of these cases. I therefore must respectfully dissent from Part III of the Court's opinion.
132
At the outset, it is essential for purposes of analysis to put the issue upon which the Court disposes of the cases in proper perspective. Since the Court addresses only the issue of the District Court's power to grant preliminary relief, we must, of course, assume for the sake of argument that the issues which the Court does not now reach—namely, whether the procedural requirements of NEPA2 are applicable at the suspension stage and whether the issue of Commission compliance is a proper one for judicial review3—are to be decided in appellees' favor. In addition, we must accept for the present appellees' assertions that the interim surcharge, by raising the cost of shipping recyclable materials, will further accentuate the allegedly unjustifiable disparity between the cost of shipping those materials and the cost of shipping primary goods, thereby irrationally encouraging the use of primary goods which will lead to a further degradation of our environment. In other words, in considering the question of judicial power, we must accept the correctness of the District Court's determination that there was a 'strong likelihood' that the Commission had erred in its conclusion that the interim surcharge "will have no significant adverse effect on . . . the quality of the human environment within the meaning of the Environmental Policy Act of 1969," 346 F.Supp., at 200, 201, a conclusion that had effectively excused the Commission from compliance with the procedural requirements of NEPA in the context of the surcharge, see 42 U.S.C. § 4332(2)(C).
133
Turning then to the issue of judicial power, it must first be recalled that we deal here with the grant of only a preliminary injunction; that District Court did not permanently enjoin enforcement of the interim surcharge upon determining that the Commission had, in all likelihood, failed to comply with NEPA in the suspension stage. Properly viewed, I think the injunction at issue in this case amounts to nothing more than a legitimate effort by the District Court, following the Commission's refusal to suspend the surcharge, to maintain the status quo pending final judicial determination of the legality of the Commission's action at the suspension stage in light of the requirements of NEPA. And, by now, the equitable power of the federal courts to grant interim injunctive relief pending determination of an appeal is well established. The nature of that power was explored at length by the Court in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942), where it was held that a court of appeals had power, pending determination of an appeal, to stay the Federal Communications Commission's grant of a construction permit although the Federal Communications Act made no provision for such a stay. Speaking for the Court, Mr. Justice Frankfurter explained:
134
'No court can make time stand still. The circumstances surrounding a controversy may change irrevocably during the pendency of an appeal, despite anything a court can do. But within these limits it is reasonable that an appellate court should be able to prevent irreparable injury to the parties or to the public resulting from the premature enforcement of a determination which may later be found to have been wrong. It has always been held, therefore, that as a part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal.' Id., at 9—10, 62 S.Ct., at 880.
135
See also FTC v. Dean Foods Co., 384 U.S. 597, 604, 86 S.Ct. 1738, 1742, 16 L.Ed.2d 802 (1966); Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 425, 85 S.Ct. 551, 560, 13 L.Ed.2d 386 (1965).
136
This Court has consistently adhered to the view that it will find federal courts to have been deprived of their traditional power to stay orders under review only in the face of the clearest possible evidence of a congressional intent to do so. See Scripps-Howard Radio, Inc. v. FCC, supra, 316 U.S., at 11, 15, 62 S.Ct., at 880, 882. No such clear intent is to be found in the Interstate Commerce Act, at least not with respect to a case such as this where the Commission has already acted on the relevant issue and the issue lies in an area outside the Commission's traditional expertise.4 In Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 664, 83 S.Ct. 984, 987, 10 L.Ed.2d 52 (1963), this Court specifically acknowledged that '(i)t cannot be said that the legislative history of the grant of the suspension power to the Commission includes unambiguous evidence of a design to extinguish whatever judicial power may have existed prior to (the establishment of suspension powers in the Commission) to suspend proposed rates.' The Arrow Court was asked to extend by injunction the statutory seven-month suspension period, see 49 U.S.C. § 15(7), because the Commission had not reached a decision on the lawfulness of the proposed rates at the end of the suspension period and the rail carriers, following a period of voluntary suspension, were threatening to implement the rate change without awaiting final agency action. Despite the ambiguity of the legislative history, the Court, upon careful examination of the character of and reasons for the suspension scheme, concluded that Congress must have intended to deprive the federal courts of the power to suspend rates pending completion of agency action and thus that the traditional equitable powers of the federal courts had been overridden to that extent. But, as detailed consideration of the factors that motivated the decision in Arrow reveals, this litigation presents a significantly different problem.
137
The Arrow Court felt that an injunction extending the suspension period pending final agency action would involve a serious, unintended intrusion on the primary jurisdiction of the Commission. This problem of primary jurisdiction had two aspects in Arrow. First, where the issue is the reasonableness of proposed rates, an application for an injunction against implementation of those rates pending final agency action would necessarily require a federal court 'to pass before final Commission action upon the question of reasonableness of a rate,' 372 U.S., at 671, 83 S.Ct., at 991, thereby providing, in effect, an advisory judicial opinion to the Commission on an issue which Congress intended that the Commission decide in the first instance. Certainly, the Commission's expertise in matters of rail carrier operations and economics is well recognized, and Arrow clearly indicates that the courts should not interfere with the exercise of that expertise. However, the grant of preliminary relief here involves no such interference with the Commission's initial exercise of its particular expertise.
138
So far as I am aware, the Commission has never been deemed especially expert in matters of environmental policy or impact.5 It is, of course, true that the Commission must decide in the first instance whether particular proposed action constitutes 'major Federal action significantly affecting the quality of the human environment,' thus necessitating agency compliance with the detailed requirements of § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). But that decision had already been made in this case prior to the time when judicial intervention by the District Court was sought—in contrast to the situation in Arrow where the question of the reasonableness of the rates remained unresolved by the Commission. Even assuming that some element of agency expertise is involved in the decision at issue here, the District Court, in granting preliminary relief against the interim surcharge, passed only upon a question of which the Commission had finally disposed, namely, the environmental impact of not suspending the interim surcharge and of permitting it to take effect at once. Thus, for purposes of the particular issue raised here, the District Court was presented with final agency action6 and was not in danger of interfering with the Commission's expertise when it stayed the Commission's order pending final determination of the appeals.7
139
The other aspect of the problem of primary jurisdiction focused upon in Arrow was the timing of the implementation of new rates. The Court concluded that Congress had intended that the Commission should determine when new rates should take effect. See 372 U.S., at 668, 83 S.T., at 989. Insofar as the economic impact of rate increases was concerned, Congress enacted a scheme which permitted the Commission to take into account the interests of both rail carriers and shippers. Thus, Congress recognized that economic necessity might persuade the Commission to permit otherwise questionable rates to go unsuspended while they were being investigated, and, at most, it allowed the Commission to suspend proposed rates for only seven months, see 49 U.S.C. § 15(7). At the same time, Congress attempted to accommodate the economic interests of shippers, for it gave the Commission power, pending final agency action, to require the rail carriers to maintain detailed records of monies received due to the increase and to compel payment of refunds if a rate increase was ultimately found to be unreasonable.8 See ibid.
140
But where does the Interstate Commerce Act make provision for an accounting and 'refund' to the people of our Nation for the irreversible ecological damage that results from a rate increase which discriminates unreasonably against recyclable materials and has been allowed to take effect without compliance with the procedural requirements of NEPA?9 The Court today says that '(t)o allow judicial suspension for noncompliance with NEPA, would disturb the careful balance of interests' struck by Congress in the suspension and refund provisions. At 697. Yet the simple fact is that in the carefully designed suspension and refund scheme no balance was struck with respect to the environmental interests that have been recognized by Congress in NEPA since the introduction of the suspension provisions into the Interstate Commerce Act. Under these circumstances, we can hardly infer an intent on the part of Congress to deprive the federal courts of their traditional responsibility, in passing upon a request for equitable relief, to work an accommodation in each particular case of the competing interests of the relevant parties10—that is, of a rail carrier's alleged need for increased income that will otherwise be forever lost each day that the new rate is not charged and of the extent of irreversible environmental damage that might result if the rates are not suspended. The District Court, in its effort to preserve the status quo pending final review of the Commission's April 24 order, gave full consideration to the effects on all parties of either granting or denying preliminary relief against the interim surcharge.11 In then temporarily enjoining the surcharge, I believe that the District Court acted within the scope of its legitimate powers.
141
To summarize, then, I obviously cannot agree with the Court's assertion that 'each of the policies that we identified in Arrow as the basis for § 15(7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged.' At 2420. In Arrow itself, the Court was at pains to point out that its decision did not 'reflect in any way upon decisions which have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels.' 372 U.S., at 671 n. 22, 83 S.Ct., at 991. True, the Court went on to say there that '(s)uch power . . . has never been recognized in derogation of such a clear congressional purpose to oust judicial power as that manifested in the Interstate Commerce Act.' Ibid. But the import of that remark must be judged with a full understanding of the factors underlying the Arrow Court's finding of 'such a clear congressional purpose.' As has been seen, close analysis of those factors identified certainly does not compel extension of the Arrow holding to the request for preliminary injunctive relief in this litigation.12 The Court would do well to remember that '(w)here Congress wished to deprive the courts of (their) historic power (to enjoin orders pending review), it knew how to use apt words. . . .' Scripps-Howard Radio, Inc. v. FCC, 316 U.S., at 17, 62 S.Ct. at 883. Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329, 564 S.Ct. 587, 591, 88 L.Ed. 754 (1944). Nothing in the language of the Interstate Commerce Act or in the particular structure of that Act or even in our decision in Arrow compels the conclusion that Congress has done so here. I must therefore dissent from the Court's ultimate disposition of these cases.
1
Title 49 U.S.C. § 6(3) provides: No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided, That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions: Provided further, That the Commission is authorized to make suitable rules and regulations for the simplification of schedules of rates, fares, charges, and classifications and to permit in such rules and regulations the filing of an amendment of or change in any rate, fare, charge, or classification without filing complete schedules covering rates, fares, charges, or classifications not changed if, in its judgment, not inconsistent with the public interest.'
2
Title 49 U.S.C. § 15(7) provides in pertinent part: 'Whenever there shall be filed with the Commission any schedule stating a new . . . rate, fare, or charge, . . . the Commission shall have . . . authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare, (or) charge . . .; and pending such hearing and the decision thereon the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate, fare, (or) charge . . ., but not for a longer period than seven months beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, (or) charge . . . goes into effect, the Commission may make such order will reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate, fare, (or) charge . . . shall go into effect at the end of such period; but in case of a proposed increased rate or charge for or in respect to the transportation of property, the Commission may by order require the interested carrier or carriers to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require the interested carrier or carriers to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased rates or charges as by its decision shall be found not justified. At any hearing involving a change in a rate, fare, (or) charge . . . after September 18, 1940, the burden of proof shall be upon the carrier to show that the proposed changed rate, fare, (or) charge . . . is just and reasonable, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible.'
3
Other statutory provisions giving suspension powers to the Commission include 49 U.S.C. §§ 316(g), 318(c) (Motor Carrier Act); 49 U.S.C. §§ 907(g), (i) (Water Carrier Act); 49 U.S.C. § 1006(e) (Freight Forwarders Act).
4
Figures reported to the Commission indicated that the net working capital of the Class I railroads for the 12 months ending September 30, 1671, was only $75.4 million, approximately $33.7 million less than the year-end 1970 figure. Long-term debt maturing within one year from September 30, 1971, was $43.6 million higher than on December 31, 1970. Equipment obligations at the end of 1970 were $4,448 million, or almost twice the total in 1960.
5
The order of the ICC is unreported.
6
The Commission also imposed as a condition on its refusal to suspend the exclusion of increased rates 'on freight in trailer bodies, semi-trailers, vehicles or containers on flat cars, on export and import traffic.' Since such increases had been proposed only by the western and southern carriers and not by the eastern carriers, such increases would, in the Commission's view, have disrupted existing port relationships.
Finally, the Commission conditioned its action on the provision that the proposed surcharge would not apply to shipments originating prior to February 5, 1972, and moving under transit arrangements.
7
The March 6 and April 24 orders of the ICC are unreported.
8
Section 102, 42 U.S.C. § 4332, provides in pertinent part:
'The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—
'(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
'(i) the environmental impact of the proposed action.
'(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
'(iii) alternatives to the proposed action,
'(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
'(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
'Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public . . . and shall accompany the proposal through the existing agency review processes.'
9
The Environmental Defense Fund, National Parks and Conservation Association, and Izaak Walton League of America intervened as plaintiffs. The allegations as to standing made by each of these groups were similar to those made by SCRAP. EDF, for example, alleged as follows:
'EDF has a nationwide membership of over 32,000 persons composed of scientists, educators, lawyers and other citizens dedicated to the protection of our environment and the wise use of our natural resources. Each of EDF's members has a personal interest in the maintenance of a safe, healthful, productive environment as free from waste substances as is possible. EDF's members have contributed financially to EDF in part so that they may obtain adequate representation of their legally protected environmental interests, which representation they could not otherwise individually afford. Each of EDF's members has under § 101(c) of NEPA, 'a responsibility to contribute to the preservation and enhancement of the environment,' which responsibility they fulfill in part by becoming a member of and contributing to EDF.
'The increased freight rates and charges in Ex Parte 281 and the continuance of the underlying rate structure, which discriminate against movement of secondary (recyclable) materials, will cause EDF members individualized injury and adversely affect them in one or more of their activities and pasttimes. Specifically, each EDF member: (i) has been or will be caused to pay more for products in the market place, made more expensive by both the non-use of recycled materials in their manufacture, and the need to use comparatively more energy in processing primary raw materials as opposed to secondary (recyclable) materials, (ii) uses the nation's forests, rivers, streams, mountains, and other natural resources for camping, hiking, fishing, sightseeing, and other recreational and aesthetic purposes. These uses have been and will continue to be adversely affected to the extent that the freight rate structure, as modified thus far in Ex Parte 281, encourages destruction of virgin timber, the unnecessary extraction of nonrenewable resources, and the discharge and accumulation of otherwise recyclable materials.'
10
The court dismissed as moot that part of the complaint relating to the Commission's February 1 order because that order had expired by its own terms on June 5. Since the environmental groups have not appealed from the judgment below, we have before us for review only the District Court's action with regard to the Commission's April 24 order that allowed the surcharge to continue until November 30, 1972.
The court also concluded that since the Commission had taken no final action with respect to the 4.1% selective increase, the lawfulness of that tariff was not ripe for review. The court did, however, retain jurisdiction over the case to review the final order of the Commission.
11
While subsequent events do not bear directly on the validity of the District Court's action in granting the preliminary injunction, they do highlight the problems that hover in the background of this litigation.
On October 4, 1972, the Commission served its report and order in Ex parte 281 approving, with some exceptions, the general increases filed by the railroads. Increased Freight Rates and Charges, 1972, 341 I.C.C. 290. In that report, although the Commission gave extensive consideration to environmental aspects of the rate increases, it declined to include a formal environmental impact statement because it concluded that its actions 'will neither actually nor potentially significantly affect the quality of the human environment . . ..' Id., at 314.
The selective increases were to become effective on October 23, 1972, but the Commission delayed until November 12 the effective date for rate increases on recyclable commodities in order to allow the submission of comments by interested parties. Upon the submission of critical comments, the Commission, in an unreported order served on November 8, reopened the rate proceeding in Ex parte 281 for further evaluation of the rates on recyclable commodities, and ordered the proposed selective tariff increases on those commodities suspended for the full seven-month period authorized by statute—until June 10, 1973. Accordingly, with respect to recyclable commodities on which the proposed selective increase had been suspended, the Commission extended the expiration date of the 2.5% surcharge until June 10, 1973, the expiration date for the suspension of the selective increases. But the Commission acknowledged that the power to collect the surcharge on these recyclable commodities was barred by the preliminary injunction issued by the District Court in the present case and which is the subject of the present appeals. In short, the temporary 2.5% surcharge would have been in effect throughout this period on recyclable commodities but for the District Court's resilient preliminary injunction. Whether the Commission deliberately continued the surcharge beyond the time it would have been supplanted by the selective increases in order to
give the surcharge and the District Court's injunction continuing effect and thus avoid mooting this litigation, and whether the Commission acted beyond it powers under 49 U.S.C. § 15(7) by suspending the selective increases for a second seven-month period and by treating the District Court's injunction as having continuing effect, are questions not raised here. No party now maintains that these cases are moot. Cf. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310.
Both sets of appellees filed motions in the District Court: SCRAP sought a preliminary injunction against the Commission's October 4 order, and EDF and the other intervening plaintiffs sought leave to file an amended and supplemental complaint and requested other relief. On January 9, 1973, the court deferred consideration of the EDF motions and denied SCRAP's request for a preliminary injunction. The court found that as a result of the Commission's November 8 order, neither the selective rate increases nor the temporary surcharge could be assessed on recyclable commodities. Consequently, the court found, no injunctive relief was justified as to those materials. While the permanent rate increase approved by the Commission in Ex parte 281 was then being collected on shipments of all other commodities, and although the Commission had concededly failed to file an impact statement, the court concluded that 'the danger of an adverse impact appears to be sufficiently speculative . . . that it would be unsound to grant preliminary relief.' The court continued: 'The record indicates that many railroads are in dire financial straits—some on the verge of bankruptcy—and badly need the revenues now being obtained under the Commission's rate increase. The increase amounts to some $340 millon per year, and were this revenue flow halted it could not easily be recouped should it later appear that no NEPA statement was necessary.' The merits of neither the Commission's October 4 order nor the District Court's January 9 decision are before us, and we therefore express no opinion on them.
On May 7, 1973, the Commission served its final environmental impact statement relating to the selective rate increases on recyclable commodities. It concluded that the proposed increases would have no significant adverse effect on the environment. Contending that the impact statement was inadequate, EDF and SCRAP sought to
enjoin collection of the selective rate increases. On June 7, 1973, the District Court temporarily enjoined the railroads from collecting the selective increases on recyclable commodities. On June 8, 1973, THE CHIEF JUSTICE, as Circuit Justice for the District of Columbia Circuit, stayed the District Court's injunction pending further order of this Court.
12
Like the petitioner in Sierra Club, the appellees here base their standing to sue upon the APA, 5 U.S.C. § 702, which provides:
'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.'
13
As in Sierra Club, it is unnecessary to reach any question concerning the scope of the 'zone of interests' test or its application to this case. It is undisputed that the 'environmental interest' that the appellees seek to protect is within the interests to be protected by NEPA, and it is unnecessary to consider the various allegations of economic harm on which the appellees also relied in their pleadings and which the Government contends are outside the intended purposes of NEPA.
14
The Government urges us to limit standing to those who have been 'significantly' affected by agency action. But, even if we could begin to define what such a test would mean, we think it fundamentally misconceived. 'Injury in fact' reflects the statutory requirement that a person be 'adversely affected' or 'aggrieved,' and it serves to distinguish a person with a direct stake in the outcome of a litigation—even though small—from a person with a mere interest in the problem. We have allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote, see Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; a $5 fine and costs, see McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; and a $1.50 poll tax, Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169. While these cases were not dealing specifically with § 10 of the APA, we see no reason to adopt a more restrictive interpretation of 'adversely affected' or 'aggrieved.' As Professor Davis has put it: 'The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.' Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 613. See also K. Davis, Administrative Law Treatise §§ 22.09—5, 22.09—6 (Supp. 1970).
15
The railroads object to the fact that the allegations were not more precise—that no specific 'forest' was named, that there was no assertion of the existence of any lumbering camp or other extractive facility in the area. They claim that they had no way to answer such allegations which were wholly barren of specifics. But, if that were really a problem, the railroads could have moved for a more definite statement, see 12(e), Fed.Rule Civ.Proc., and certainly normal civil discovery devices were available to the railroads.
Similarly, the District Court cannot be faulted for failing to take evidence on the issue of standing. This case came before the court on motions to dismiss and for a preliminary injunction. If the railroads thought that it was necessary to take evidence, or if they believed summary judgment was appropriate, they could have moved for such relief.
16
EDF suggests that the April 24 order of the Commission was in fact a final order finding the surcharge 'just and reasonable,' not simply a refusal to suspend the surcharge. But the Commission's reference to the 'just and reasonable' nature of the surcharge was a preliminary assessment commonly made in suspension orders. See, e.g., the suspension orders quoted in Naph-Sol Refining Co. v. United States, D.C., 269 F.Supp. 530, 531; Oscar Mayer & Co. v. United States, D.C., 268 F.Supp. 977, 978—979. It did not represent a final determination by the Commission that any particular rate was just and reasonable. Indeed the Commission made it clear in its February 1 order that the surcharge was not considered a prescribed rate within the meaning of Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348, and was subject to complaint and investigation under the Act.
17
An alternative ground for avoiding the Arrow decision, which was suggested but not relied on by the District Court, was that the surcharge here was an 'agency-made' rate, not a 'carrier-made' rate. Moss v. CAB, 139 U.S.App.D.C. 150, 430 F.2d 891, which was cited by the court is, however, plainly inapposite. There the CAB suspended the rates proposed by the carriers, but suggested in their place 'a complete and innovative scheme for setting all passenger rates for the continental United States.' Id., at 899. It was clear that when the carriers filed the rates suggested by the Board they would not be suspended. 'Even a cursory reading of the order makes it clear that the Board told the carriers what rates to file; it set forth a step-by-step formula requiring major changes in rate-making practices and in rates which it expected the carriers to adopt.' Id., at 899—900. Here, by contrast, the level and structure of the rates were proposed entirely by the carriers. While the Commission suggested an expiration date for the surcharge, this was simply to make the surcharge expire when the general selective increases went into effect. This expiration date and the other standard conditions attached to the Commission's refusal to suspend the surcharge did not, in any meaningful sense, transform the carrier-made rate into a Commission-made rate.
18
See n. 8, supra.
19
See Greene County Planning Board v. FPC, 2 Cir., 455 F.2d 412, 420; Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S.App.D.C. 33, 43, 449 F.2d 1109, 1119; City of New York v. United States, D.C., 337 F.Supp. 150, 160; Cohen v. Price Comm'n, D.C., 337 F.Supp. 1236, 1241.
20
The argument that NEPA implicitly restored to the courts the injunctive power that § 15(7) had divested is similar to a contention rejected in Arrow itself. There the petitioners claimed that congressional adoption of the National Transportation Policy, 54 Stat. 899, had implicitly altered § 15(7). They claimed that the proposed new railroad rates would drive the barge lines out of existence, contrary to the congressional declaration of concern for the protection of water carriers threatened by rail competition. The Court concluded that 'nothing in the National Transportation Policy, enacted many years after . . . § 15(7), indicates that Congress intended to revive a judicial power which . . . was extinguished when the suspension power was vested in the Commission.' Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 673, 83 S.Ct. 984, 992. In addition, the Court noted that, as is also true with NEPA, the mandate was directed not to the courts but to the Commission. There is nothing about NEPA that makes it any more amenable for finding an implicit amendment of § 15(7), than the National Transportation Policy was.
21
Indeed Calvert Cliffs' indicated that the requirements of § 102 of NEPA, see n. 8, supra, did not have to be complied with, if such compliance was precluded by another statutory provision. 146 U.S. App.D.C., at 39, 449 F.2d, at 1115. And Committee for Nuclear Responsibility, in another context, endorsed a principle, equally applicable here, that 'repeal by implication is disfavored.' 149 U.S.App.D.C. 380, 382, 463 F.2d 783, 785.
22
In view of our conclusion that there was no power to grant the preliminary injunction, it is unnecessary for us to reach the other questions posed by the parties. For example, the Government and the railroads urge that, because of the pressures of time, an environmental impact statement is not required at the suspension stage of a rate proceeding, and, in any event, a decision by the Commission whether or not to suspend rates is not subject to judicial review. See Port of New York Authority v. United States, 2 Cir., 451 F.2d 783; Oscar Mayer & Co. v. United States, D.C., 268 F.Supp. 977; M. C. Kiser Co. v. Central of Georgia R. Co., 236 F. 573; Freeport Sulphur Co. v. United States, 199 F.Supp. 913; Luckenback S.S. Co. v. United States, 179 F.Supp. 605; Carlsen v. United States, 107 F.Supp. 398. The appellees in turn contend that some compliance with NEPA is possible at the suspension stage, and that such compliance is required if the statute is to be enforced 'to the fullest extent possible.' See 42 U.S.C. § 4332. And they urge that there, is or should be, an exception to the general principle of nonreviewability of suspension decisions for those cases where the Commission has acted beyond its statutory authority, or in violation of a clear statutory command or a procedural requirement, a standard that the appellees view as broad enough to encompass alleged noncompliance with NEPA. See Naph-Sol Refining Co. v. United States, D.C., 269 F.Supp. 530, 532; Oscar Mayer & Co. v. United States, supra, 268 F.Supp. at 982 (Doyle, J., concurring); Long Island R. Co. v. United States, D.C., 193 F.Supp. 795. We express no view on any of these issues.
1
In a Bureau of Mines' survey, it was established that metals and glass account for approximately 75 percent of the weight of the residues in municipal incinerator waste. Economics of Recycling Metals and Minerals from Urban Refuse, Bureau of Mines Technical Progress Report, No. 33, p. 2 (Apr. 1971). From these materials, if recycled, familiar products such as bottles, newspapers, iron ingots, paper pulp, fuel oil, and methane gas can be manufactured. In addition, new products are being developed, such as glass-phalt for street paving, insulation, glass wool, and glass bricks, in various colors that meet specifications for 'severe weather' facing brick. Id., at 7.
This project was launched under the Resource Recovery Act of 1970, 84 Stat. 1227, 42 U.S.C. § 3251 et seq., under which the Secretary of HEW was authorized to provide technical and financial assistance in planning and developing resource recovery and solid waste disposal programs.
For a detailed account of a Resource Recovery Mill see Ross, How to Succeed in Recycling, Environmental Quality Magazine, June 1973, p. 51.
2
The necessity of reasonable transportation rates is even more apparent when it is realized that the volume of residue which is processed at a major recycling plant is between 250 and 1,000 tons per day. (Economics of Recycling Metals and Minerals from Urban Refuse, supra, n. 1, at 1.) Massive bulk transportation is therefore essential to these plant operations.
The problem is even more critical in urban areas where there is a high concentration of solid waste being generated and transportation to outlying recycling plants is a major cost factor. In 1968 a national survey found that an average of 8.2 pounds of waste per capita was collected daily in urban areas; this figure has now risen to 9 pounds. If present trends continue, this figure could be as high as 12 pounds in another 10 years. In our urban areas as a whole, the solid waste generated is fast approaching a ton a year for each man, woman, and child. Kramer, Energy Conservation and Waste Recycling, Science and Public Affairs 13, 17 (Apr. 1973).
3
In his report before the Senate, Senator Jackson, one of the three legislators most responsible for NEPA, stated: 'To insure that the policies and goals defined in this act are infused into the ongoing programs and actions of the Federal Government, the act also establishes some important 'action-forcing' procedures. Section 102 authorizes and directs all Federal agencies, to the fullest extent possible, to administer their existing laws, regulations, and policies in conformance with the policies set forth in this act. It also directs all agencies to assure consideration of the environmental impact of their actions in decision-making. It requires agencies which propose actions to consult with appropriate Federal and State agencies having jurisdiction or expertise in environmental matters and to include any comments made by these agencies which outline the environmental considerations involved with such proposals.
'Taken together, the provisions of section 102 directs (sic) any Federal agency which takes action that it must take into account environmental management and environmental quality considerations.' 115 Cong.Rec. 40416 (1969).
4
The totality of § 102 is so important to this litigation that I have set it forth in Appendix II to this dissent.
5
Senator Jackson was reported as saying:
'We expected Section 102 of the act which requires environmental impact statements and analysis of alternatives for all major federal actions significantly affecting the quality of the human environment to force the agencies to move. . . . We did not anticipate that it would be private parties through the courts that would force the compliance. This is what has made it work.' Cahn, Can Federal Law Help Citizens Save Nature's Fragile Beauty?, Christian Science Monitor 12 (Feb. 28, 1973).
6
Waldo E. Smith, of the American Geophysical Union, recently stated: 'The total supply of most metals is sharply limited; even now we must dig deeper, go farther, and use lower grade ores. No optimism is justified here. The supply can be extended substantially by intelligent recycling, which should be an important by-product of our cleaning up to maintain a clean environment.' Resources and Long-Forecasts, Science and Public Affairs 21, 22 (May 1973).
7
When Congress desires exceptions to be made to the impact statement requirement under the NEPA, express exemption is provided. For example, Pub.Law 92—307, 86 Stat. 191,
provides that the Atomic Energy Commission can grant a temporary operating license for a nuclear power reactor without the completion of an environmental impact statement, if the application for the operating license was filed before September 9, 1971, and the Commission holds a hearing which leads to the findings, among others, that the operation of the facility during the period of the temporary operating license in accordance with its terms and conditions will provide adequate protection of the environment during that period and that the operation of the facility is essential toward insuring the power generating capacity of a utility system. The Commission is empowered to impose such terms and conditions as it deems necessary, and its decision is subject to judicial review.
Some federal agencies are taking affirmative action to promote the purposes of § 105. Thus the Securities and Exchange Commission recently adopted amendments to its registration and reporting forms to require more meaningful disclosure of certain items pertaining to the effect on the issuer's business of compliance with federal, state, and local laws and regulations relating to the protection of the environment. The amendments will require as a part of the description of the issuer's business, appropriate disclosures with respect to the material effects which compliance with environmental laws and regulations may have upon the capital expenditures, earnings, and competitive position of the issuer and its subsidiaries. Other amendments describe the extent to which litigation disclosures should contain specific descriptions of environmental proceedings. Securities and Exchange Comm'n Release (Securities Act Rel. No. 5386, Apr. 20, 1973). See Scientists' Institute v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, holding that an impact statement must be filed for the Atomic Energy Commission's liquid metal fast breeder reactor program.
8
Senator Jackson recently was reported as saying about these impact statements:
'We should also be able to get generic environmental impact statements—updated every six months or so—for energy policy, transportation policy, and other major policy decisions.' Cahn, supra, n. 5.
9
Most of the Nation's waste is relocated into dumps with only approximately 10% to 15% finding its way into sanitary landfills. Kramer, supra, n. 2, at 17.
10
Congressman Dingell, another main sponsor of NEPA, recently was reported as saying:
'The success of the environmental impact statements is not so much that they were used as we intended they should, but that citizens have been able to use the process as a (way) to get into courts. . . . Some agencies are complying poorly. They decide what they are going to do and then write an environmental impact statement to support the decision. That is not what Congress had in mind. I am fearful that we are breeding a race of impact statement writers who put all the right words down but don't really get environmental concerns involved in the decision-making process. The impact statement itself is not important. The important thing is that proper judgments are made reflecting environmental considerations in the decision-making process. The impact statement should be a discipline for this and also a process by which the public can be informed and brought into the decision-making process.' Cahn, supra, n. 5.
For a recent account of impact statements on transportation problems see Robert Cahn (former member of CEQ), Environmentalists Wary of Transport Trend, Christian Science Monitor 12 (Feb. 28, 1973).
11
See n. 10, supra.
1
Given that the Court holds only that the District Court lacked power to grant preliminary injunctive relief, it presumably remains open to appellees to challenge the Commission's alleged failure to comply with NEPA in the suspension stage of the proceedings concerning the interim surcharge in an action for declaratory relief. Nor does anything in the Court's opinion today deny to the district courts power to enjoin the Commission to comply with NEPA in the context of a particular rate proceeding so long as to injunction is issued barring implementation of the rates themselves, cf. Atchison, T. & S.F.R. Co. v. Wichita Board of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350.
2
See in particular § 102(2)(C) of the Act, 42 U.S.C. § 4332(2)(C).
3
Cf. e.g., Upper Pecos Ass'n v. Stans, 452 F.2d 1233 (C.A.10 1971), vacated and remanded for consideration of mootness sub nom. Upper Pecos Ass'n v. Peterson, 409 U.S. 1021, 93 S.Ct. 458, 34 L.Ed.2d 313 (1973); Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); City of New York v. United States, 337 F.Supp. 150, 158—160 (E.D.N.Y.1972).
4
Thus, I cannot accept the Court's assertion that the question here is 'whether in a specific context NEPA sub silentio revived judicial power that had been explicity eliminated by Congress.' At p. 696. That is a question which I do not believe need ever be reached here, for—as shall be seen—Congress has not, to begin with, deprived the federal courts of their traditional equitable powers in the context of these cases.
5
Administrative expertise in such matters is surely lodged with the Environmental Protection Agency and the Council on Environmental Quality.
6
Cf. L. Jaffe, Judicial Control of Administrative Action 688 (1965).
7
Contrast Atchison, T. & S.F.R. Co., v. Wichita Board of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350.
8
Moreover, even if the Commission fails to require recordkeeping and the payment of refunds sua sponte, Congress also provided a mechanism by which shippers may initiate an action before the Commission to seek reparations from a carrier on the ground that particular rates are unreasonable. See 49 U.S.C. § 13(1).
Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), to be sure did not involve an economic dispute between shippers and rail carriers, but was, instead, an action brought by water carriers which contended that certain challenged decreases in the rates of competing rail carriers were designed to destroy them rather than to reach legitimate economic objectives. Obviously, the refund and reparation provisions of the Interstate Commerce Act were of no more value to the water carriers in Arrow than they are to the nonshipper appellees in this case. But, as the Court pointed out in Arrow, '(c)onflicts over rates between competing carriers were familiar to the Commission long before (the enactment of the suspension provisions) . . .. Indeed, in another provision (namely, 49 U.S.C. § 4(2)) of the very same statute (that established the suspension powers) Congress . . . dealt explicitly with the reduction of rates by railroads competing with water carriers . . . In addition § 8 of the Act, 49 U.S.C. § 8, creates a private right of action for damages—based upon conduct violative of the Act—which might be available . . ..' 372 U.S., at 669, 83 S.Ct., at 990. Thus, Congress had taken into account, and had provided for, disputes between competing carriers, as well as between shippers and carriers, in enacting the suspension provisions. The same can hardly be said for conflicts between the environmental policies of NEPA and the Commission's suspension power.
9
Indeed, given the substantial element of public interest at stake in a case such as this, it is appropriate to recall Mr. Justice Stone's oft-quoted admonition: 'Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.' Virginian R. Co. v. Systems Federation No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937).
10
Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64 S.Ct. 587, 591—592, 88 L.Ed. 754 (1944).
11
Thus, the District Court, fully recognizing the financial plight of the rail carriers, carefully limited its preliminary injunction to the application of the interim surcharge to recyclable materials, 'allowing (the rail carriers) to collect the surcharge on all nonrecyclable goods.' 346 F.Supp., at 202.
12
The Arrow Court also pointed out that experience with judicial injunctions against rates prior to the establishment of the Commission's suspension powers in § 15(7) had 'resulted in disparity of treatment as between different shippers, carriers, and sections of the country, causing in turn 'discrimination and hardship to the general public." 372 U.S., at 664, 83 S.Ct., at 987. These results were due both to the conflicting views of lower federal courts as to their power to enjoin rates pending agency determination of their lawfulness and conflicting judgments of different courts as to the reasonableness of the same rates. See id., at 663—664, 83 S.Ct. at 986—987. But the danger of conflicting judgments concerning the same rates and unevenhanded treatment of shippers and carriers, merely because of the fortuity of the particular judicial district in which they are located, is not present where, as here, the allegation is that the Commission has failed to follow the requirements of a statute—NEPA—relevant NEPA—relevant to the exercise of its regulatory jurisdiction and the Commission has, as a consequence, been joined in the suit as a defendant. So long as the Commission has been made a party, it is possible to ensure uniformity of treatment by enjoining the Commission to exercise its suspension powers where a failure to comply with NEPA is believed to exist. This is what the District Court did here when it enjoined the Commission 'from permitting . . . the 2.5 per cent surcharge' to be collected by the rail carriers 'pending further order of this court.' See Jurisdictional Statement 30a. It may be that the danger of conflicting results where the Commission has not been made a party would warrant a court staying its hand, but that is not a problem here.
| 78
|
412 U.S. 580
93 S.Ct. 2389
37 L.Ed.2d 187
UNITED STATES, Petitioner,v.LITTLE LAKE MISERE LAND COMPANY, INC., et al.
No. 71—1459.
Argued Jan. 15 and 16, 1973.
Decided June 18, 1973.
Syllabus.
Pursuant to the Migratory Bird Conservation Act, the United States acquired land parcels in Louisiana for a wildlife refuge, one by deed in 1937, the other by condemnation in 1939. Mineral rights were reserved to the respondent former owners for a period of 10 years, subject to extension if certain detailed exploration and production conditions were met, after which complete fee title was to vest in the United States. The 10-year period expired without the extension conditions being met. Respondents continued to claim the mineral rights, relying on Louisiana Act 315 of 1940, which, as applied retroactively, provides that mineral rights reserved in land conveyances to the United States shall be 'imprescriptible,' thus, in effect, extending indefinitely the former owners' mineral reservations. The Government brought this suit to quiet title. The District Court entered summary judgment for the respondents, concluding that Leiter Minerals, Inc. v. United States, 5 Cir., 329 F.2d 85, was dispositive of the issues, notwithstanding that that judgment had been vacated by this Court and the case remanded with instructions to dismiss the complaint as moot. The Court of Appeals affirmed. Held: Under settled principles governing the choice of law by federal courts, Louisiana's Act 315 of 1940 does not apply to the mineral reservations agreed to by the parties in 1937 and 1939. Pp. 590 593.
(a) Here, where the land acquisition to which the United States is a party arises from and bears heavily upon a federal regulatory program, the choice of law task is a federal one for federal courts, as defined by Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. Pp. 590—593.
(b) Absence of a provision dealing with choice of law in the Migratory Bird Conservation Act does not limit the reach of federal law, as interstitial federal lawmaking is a basic responsibility of the federal courts. P. 593.
(c) Even assuming that the established body of state property law should generally govern federal land acquisitions, Act 315, as retroactively applied, may not, because in determining the appropriateness of 'borrowing' state law, specific aberrant or hostile state rules do not provide appropriate standards for federal law. Under Act 315 land acquisitions explicitly authorized by federal statute are made subject to a rule of retroactive imprescriptibility, a rule plainly hostile to the United States, and one that deprives the United States of bargained-for contractual interests. Pp. 594—593.
(d) To permit state legislation to abrogate the explicit terms of a prior federal land acquisition would seriously impair federal statutory programs and the certainty and finality that are indispensable to land transactions. Pp. 597—599.
(e) Act 315, as applied retroactively, serves no legitimate and important state interests the fulfillment of which Congress might have contemplated through application of 'borrowed' state law. Pp. 599—602.
(f) In 1937 and 1939, the Government could not anticipate that the mineral reservations in issue might be characterized, under present Louisiana law, as indefinite in duration and freely revocable. A late-crystallizing state law doctrine may not modify the clear and explicit contractual expectations of the United States. Pp. 602—603.
(g) As it is clear that Act 315 does not apply here, it is not necessary to choose between 'borrowing' some residual state rule of interpretation or formulating an independent federal 'common law' rule; neither rule is the law of Louisiana, yet either rule resolves this dispute in the Government's favor. Pp. 603—604.
453 F.2d 360, reversed and remanded.
William Bradford Reynolds, Washington, D.C., for petitioner.
Austin W. Lewis, New Orleans, La., for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ in this case to consider whether state law may retroactively abrogate the terms of written agreements made by the United States when it acquires land for public purposes explicitly authorized by Congress.
2
The United States initiated this litigation in 1969 in the United States District Court for the Western District of Louisiana, seeking to quiet title to two adjacent parcels of land in Cameron Parish, Louisiana, which the Government had acquired pursuant to the Migratory Bird Conservation Act, 45 Stat. 1222, 16 U.S.C. § 715 et seq., as part of the Lacassine Wildlife Refuge.1 Title to one parcel was acquired by the United States by purchase on July 23, 1937; to the other parcel by a judgment of condemnation entered August 30, 1939. Both the 1937 act of sale and the 1939 judgment of condemnation reserved to the respondent Little Lake Misere oil, gas, sulphur, and other minerals for a period of 10 years from the date of vesting of title in the United States.2 The reservation was to continue in effect 'as long (after the initial ten-year period) as oil, gas, sulphur or other mineral is produced . . . or so long thereafter as (respondents) shall conduct drilling or reworking operations thereon with no cessation of more than sixty (60) days consecutively until production results; and, if production results, so long as such mineral is produced.' The deed and the judgment of condemnation further recited that at the end of 10 years or at the end of any period after 10 years during which the above conditions had not been met, 'the right to mine, produce and market said oil, gas, sulphur or other mineral shall terminate . . . and the complete fee title to said lands shall thereby become vested in the United States.'
3
The parties stipulated, and the District Court found, that as to both the parcels in issue here, no drilling, reworking, or other operations were conducted and no minerals were obtained for a period of more than 10 years following the act of sale and judgment of condemnation, respectively. Thus, under the terms of these instruments, fee title in the United States ripened as of 1947 and 1949, respectively—10 years from the dates of creation. In 1955, the United States issued oil and gas leases applicable to the lands in question.
4
Respondents, however, continued to claim the mineral rights and accordingly entered various transactions purporting to dispose of those rights. Respondents relied upon Louisiana Act 315 of 1940, La.Rev.Stat. § 9:5806, subd. A (Supp. 1973), which provides:
5
'When land is acquired by conventional deed or contract, condemnation or expropriation proceedings by the United States of America, or any of its subdivisions or agencies from any person, firm or corporation, and by the act of acquisition, order or judgment, oil, gas or other minerals or royalties are reserved, or the land so acquired is by the act of acquisition conveyed subject to a prior sale or reservation of oil, gas, or other minerals or royalties, still in force and effect, the rights so reserved or previously sold shall be imprescriptible.'
6
Respondents contended that the 1940 enactment rendered inoperative the conditions set forth in 1937 and 1939 for the extinguishment of the reservations. The District Court concluded that the Court of Appeals' prior decision in Leiter Minerals, Inc. v. United States, 329 F.2d 85 (CA5 1964), required resolution of this case in favor of respondents, notwithstanding that we had vacated the Court of Appeals' judgment in Leiter Minerals and remanded with instructions to dismiss the complaint as moot. 381 U.S. 413, 85 S.Ct. 1575, 14 L.Ed.2d 692 (1965). The Court of Appeals affirmed, for the reasons stated in its Leiter Minerals holding. It rejected the Government's Contract Clause and Supremacy Clause objections on the authority of United States v. Nebo Oil Co., 190 F.2d 1003 (CA5 1951), and further rejected the Government's argument that Act 315 was unconstitutionally discriminatory against the United States. The Court of Appeals observed 'that the same principle applies to acquisitions by the State of Louisiana (La.Rev.Stat. § 9:5806, subd. B), and that the act really does nothing more than place citizens of Louisiana in the same position as citizens of other states whose land has been purchased or condemned by the United States.' 453 F.2d 360, 362 (1971). We reverse.
7
* Litigation involving Act 315 began more than a quarter century ago. The Leiter Minerals case, upon which the Court of Appeals based its decision in this case, is only the principal holding in the area. The first case to arise involving Act 315, Whitney Nat. Bank v. Little Creek Oil Co., grew out of a 1932 sale of mineral rights that specified a 10-year period of prescription. The surface property was conveyed to the United States in 1936, subject to the 1932 mineral sale, and in 1947 the question arose whether Act 315 of 1940 had the effect of extending indefinitely the servitude created by the 1932 sale. The Louisiana Supreme Court held that Act 315 of 1940 was fully applicable to the 1936 transaction—'not because there is anything in the terms of the statute to indicate that it was intended to have a retroactive application, but because of the general rule of law established by the jurisprudence of this court that laws of prescription and those limiting the time within which actions may be brought are retrospective in their operation.' 212 La. 949, 958, 33 So.2d 693, 696 (1947).3 The court acknowledged the contention that if Act 315 were applied retroactively, it might be unconstitutional, but dismissed the constitutional issue without resolving it for failure to join the United States, a necessary party.
8
Whitney Bank set the stage for the first federal court test of Act 315, as construed to have retroactive application, in United States v. Nebo Oil Co., supra, aff'g, 90 F.Supp. 73 (WD La.1950). There the United States brought suit against Nebo Oil (the successor to the 1932 mineral purchaser of the (Whitney Bank case) to secure a declaratory judgment that the United States owned the acreage it purchased in 1936 subject only to the 10-year rule of prescription specified at the time of the original 1932 sale of mineral rights. But the Court of Appeals upheld the application of Act 315 to the previously consummated transaction, stressing that reversionary estates are unknown in Louisiana law and that, as a result, the United States in 1936 took 'nothing more than a mere expectation, or hope, based upon an anticipated continuance of the applicable general laws . . .. (This) mere expectancy . . . cannot be regarded as a vested right protected by the Constitution.' 190 F.2d at 1008—1009.4
9
In the Leiter Minerals litigation, retrospective application of Act 315 to a detailed, conditional mineral reservation was in issue for the first time. Leiter Minerals, Inc., succeeded to the interests of the Leiter family, which in 1938 had sold a substantial tract in Placquemines Parish, Louisiana, to the United States. Leiter's federal sale was subject to a mineral reservation in Leiter's favor, providing in essence that the reservation would be extended for five years beyond its initial 10-year duration whenever commercially advantageous mineral extraction had occurred during 50 days of a defined period.5 At the expiration of any period during which the conditions for extension had not been met, the right to mine would terminate 'and complete fee in the land becomes vested in the United States.' The mineral reservation expired by its own terms; the Government granted a valuable mineral lease; and Leiter invoked Act 315 to support its claim to a servitude of continuing duration.
10
After a false start in the Louisiana courts, the ensuing litigation found its way into a federal forum. The United States used in the Eastern District of Louisiana to quiet title and to enjoin the concurrent state court proceedings initiated by Leiter. The Court of Appeals affirmed an injunction granted by the District Court,6 and this Court agreed, but remanded to the Court of Appeals with instructions to secure an authoritative construction of Act 315 before proceeding to the difficult constitutional issues in the case. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 229, 77 S.Ct. 287, 292, 1 L.Ed.2d 267 (1957).7
11
Adhering to the terms of the remand, Leiter sought a declaratory judgment in the Louisiana courts, which expressed some continuing doubt over the breadth of their responsibility for resolving the Leiter controversy on its own facts. Ultimately, the Louisiana Supreme Court took jurisdiction of the case and rendered a declaratory judgment limited to general elucidation of Act 315, without applying the Act to the specific terms of the Leiter mineral reservation itself. Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845 (1961). The Louisiana Supreme Court expressed its conclusions as follows:
12
'First, that if the reservation in the Leiter deed is construed as establishing a mineral servitude for a definite, fixed, and specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied; and second, that if the reservation is construed as not establishing a servitude for a fixed, definite and certain time, and if it is decided that the provisions of the reservation show that the parties were stipulating for a period of contractual prescription for the conditional extinguishment of the mineral servitude created, then Act 315 of 1940 is applicable and constitutional.' Id., at 942, 132 So.2d, at 854—855.
13
Recognizing that 'the interpretation of this reservation is for the United States courts, and not for us in this proceeding,' id., at 930, 132 So.2d, at 850, that court nevertheless hinted broadly that it viewed the Leiter reservation as one establishing a reservation for an indefinite period of time, and thus one subject to retroactive application of Act 315. See id., at 936, 938, 132 So.2d, at 852, 853.
14
The parties then returned to federal court. The District Court held that the mineral reservation in the Leiter deed created a mineral servitude for a fixed period and that, under the terms of the Louisiana Supreme Court's declaratory ruling, as a matter of state law the reservation was not affected by Act 315. 204 F.Supp. 560 (ED La. 1962). The Court of Appeals reversed. It rejected the Government's contention that federal law controlled the rights of the United States under the reservation, and held, instead, that those rights were to be governed by Louisiana law. The Court of Appeals believed that the Louisiana Supreme Court had viewed Leiter's servitude as 'one of indefinite duration' and it agreed with that view. Under Louisiana law, therefore, the reservation 'provide(d) for a contractual prescription for the conditional extinguishment of the mineral servitude which was rendered inoperative by (Act 315).' 329 F.2d, at 93. As to the Government's contention that the Act, as so construed, unconstitutionally impaired the obligation of contract, the Court of Appeals concluded that the discussion of that matter in its prior decision in Nebo Oil, supra, and in the Louisiana Supreme Court's Leiter opinion, made it 'unnecessary further to labor' the point. Id., at 94. Judge Gewin dissented. On being advised by the parties that the case had been settled, we granted certiorari, vacated the judgment of the Court of Appeals, and remanded the cause to the District Court with instructions to dismiss the complaint as moot. 381 U.S. 413, 85 S.Ct. 1575, 14 L.Ed.2d 692 (1965).
II
15
The essential premise of the Court of Appeals' decision in the Leiter Minerals case was that state law governs the interpretation of a federal land acquisition authorized by the Migratory Bird Conservation Act. The Court of Appeals did not set forth in detail the basis for this premise,8 but that court's opinion seems to say that state law governs this land acquisition because at bottom, it is an 'ordinary' 'local' land transaction to which the United States happens to be a party. The suggestion is that this Court's decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), compels application of state law here because the Rules of Decisions Act, 28 U.S.C. § 1652,9 requires application of state law in the absence of an explicit congressional command to the contrary. We disagree.
16
The federal jurisdictional grant over suits brought by the United States is not in itself a mandate for applying federal law in all circumstances. This principle follows from Erie itself, where, although the federal courts had jurisdiction over diversity cases, we held that the federal courts did not possess the power to develop a concomitant body of general federal law. Mishkin, The Variousness of 'Federal Law': Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 799 (1957). It is true, too, that '(t)he great body of law in this country which controls acquisition, transmission, and transfer of property, and defines the rights of its owners in relation to the state or to private parties, is found in the statutes and decisions of the state.' Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155, 64 S.Ct. 474, 480, 88 L.Ed. 635 (1944). Even when federal general law was in its heyday, an exception was carved out for local laws of real property. Swift v. Tyson, 16 Pet. 1, 18, 10 L.Ed. 865 (1842); see Kuhn v. Fairmont Coal Co., 215 U.S. 349, 360, 30 S.Ct. 140, 143, 54 L.Ed. 228 (1910). Indeed, before Erie R. Co. v. Tompkins, supra, this Court's opinions left open the possibility that even 'the United States, while protected by the Constitution from discriminatory state action, and perhaps certain other special forms of state control, was nevertheless governed generally in its ordinary proprietary relations by state law.' Hart, The Relations Between State and Federal Law, 54 Col.L.Rev. 489, 533 (1954). See, e.g., Mason v. United States, 260 U.S. 545, 558, 43 S.Ct. 200, 203, 67 L.Ed. 396 (1923).
17
Despite this arguable basis for its reasoning the Court of Appeals in the instant case seems not to have recognized that this land acquisition, like that in Leiter Minerals, is one arising from and bearing heavily upon a federal regulatory program. Here, the choice-of-law task is a federal task for federal courts, as defined by Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Since Erie, and as a corollary of that decision, we have consistently acted on the assumption that dealings which may be 'ordinary' or 'local' as between private citizens raise serious questions of national sovereignty when they arise in the context of a specific constitutional or statutory provision; particularly is this so when transactions undertaken by the Federal Government are involved, as in this case10 In such cases, the Constitution or Acts of Congress 'require' otherwise than that state law govern of its own force.
18
There will often be no specific federal legislation governing a particular transaction to which the United States is a party; here, for example, no provision of the Migratory Bird Conservation Act guides us to choose state or federal law in interpreting federal land acquisition agreements under the Act. But silence on that score in federal legislation is no reason for limiting the reach of federal law, as the Court of Appeals thought in Leiter Minerals. To the contrary, the inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts. 'At the very least, effective Constitutionalism requires recognition of power in the federal courts to declare, as a matter of common law or 'judicial legislation,' rules which may be necessary to fill in interstitially or otherwise effectuate the statutory patterns enacted in the large by Congress. In other words, it must mean recognition of federal judicial competence to declare the governing law in an area comprising issues substantially related to an established program of government operation.' Mishkin, 105 U.Pa.L.Rev., at 800.
19
This, then, is what has aptly been described as the 'first' of the two holdings of Clearfield Trust Co. v. United States, supra—that the right of the United States to seek legal redress for duly authorized proprietary transactions 'is a federal right, so that the courts of the United States may formulate a rule of decision.' Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N.Y.U.L.Rev. 383, 410 (1964). At least this first step of the Clearfield analysis is applicable here. We deal with the interpretation of a land acquisition agreement (a) explicitly authorized, though not precisely governed, by the Migratory Bird Conservation Act and (b) to which the United States itself is a party. Cf. Bank of America National Trust & Savings Ass'n v. Parnell, 352 U.S. 29, 33, 77 S.Ct. 119, 121, 1 L.Ed.2d 93 (1956). As in Clearfield and its progeny, '(t)he duties imposed upon the United States and the rights acquired by it . . . find their roots in the same federal sources. . . . In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.' 318 U.S., at 366—367, 63 S.Ct., at 575; United States v. Allegheny County, 322 U.S. 174, 183, 64 S.Ct. 908, 913, 88 L.Ed. 1209 (1944); United States v. Standard Oil Co., 332 U.S. 301, 305, 67 S.Ct. 1604, 1606, 91 L.Ed. 2067 (1947); Board of County Comm'rs v. United States, 308 U.S. 343, 349—350, 60 S.Ct. 285, 287—288, 84 L.Ed. 313 (1939).11
III
20
The next step in our analysis is to determine whether the 1937 and 1939 land acquisition agreements in issue should be interpreted according to 'borrowed' state law—Act 315 of 1940. The availability of this choice was explicitly recognized in Clearfield Trust itself12 and fully elaborated some years later in United States v. Standard Oil Co., supra. There we acknowledged that 'in many situations, and apart from any supposed influence of the Erie decision, rights, interests and legal relations of the United States are determined by application of state law, where Congress has not acted specifically.' 332 U.S., at 308, 67 S.Ct., at 1608. We went on to observe that whether state law is to be applied is a question 'of federal policy, affecting not merely the federal judicial establishment and the groundings of its action, but also the Government's legal interests and relations, a factor not controlling in the types of cases producing and governed by the Erie ruling. And the answer to be given necessarily is dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.' Id., at 309—310, 67 S.Ct., at 1609. See also De Sylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 979, 100 L.Ed. 1415 (1956); RFC v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172 (1946); Board of County Comm'rs v. United States, 308 U.S., at 351—352, 30 S.Ct., at 288—289; Royal Indemnity Co. v. United States, 313 U.S. 289, 296, 61 S.Ct. 995, 997, 85 L.Ed. 1361 (1941); United States v. Yazell, 382 U.S. 341, 356—357, 86 S.Ct. 500, 508—509, 15 L.Ed.2d 404 (1966); cf. United States v. Mitchell, 403 U.S. 190, 91 S.Ct. 1763, 29 L.Ed.2d 406 (1971).
21
The Government urges us to decide, virtually without qualification, that land acquisition agreements of the United States should be governed by federally created federal law. Cf. United States v. 93.970 Acres, 360 U.S. 328, 79 S.Ct. 1193, 3 L.Ed.2d 1275 (1959). We find it unnecessary to resolve this case on such broad terms. For even if it be assumed that the established body of state property law should generally govern federal land acquisitions, we are persuaded that the particular rule of law before us today—Louisiana's Act 315 of 1940, as retroactively applied—may not. The 'reasons which may make state law at times the appropriate federal rule are singularly inappropriate here.' Clearfield Trust, 318 U.S., at 367, 63 S.Ct., at 575.13
22
The Court in the past has been careful to state that, even assuming in general terms the appropriateness of 'borrowing' state law, specific aberrant or hostile state rules do not provide appropriate standards for federal law. In De Sylva v. Ballentine, supra, we held that whether an illegitimate child was a 'child' of the author entitled under the Copyright Act to renew the author's copyright was to be determined by whether, under state law, the child would be an heir of the author. But Mr. Justice Harlan's opinion for the Court took pains to caution that the Court's holding 'does not mean that a State would be entitled to use the word 'children' in a way entirely strange to those familiar with its ordinary usage . . ..' 351 U.S., at 581, 76 S.Ct., at 980. In RFC v. Beaver County, supra, the issue was whether the definition of 'real property,' owned by the RFC and authorized by Congress to be subject to state and local taxation, was to be derived from state law or to be fashioned as an independent body of federal law. The Court concluded that 'the congressional purpose can best be accomplished by application of settled state rules as to what constitutes 'real property"—but again the Court foresaw that its approach would be acceptable only 'so long as it is plain, as it is here, that the state rules do not effect a discrimination against the government, or patently run counter to the terms of the Act.' 328 U.S., at 210, 66 S.Ct., at 995. See also U.A.W. v. Hoosier Cardinal Corp., 383 U.S. 696, 706, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966).
23
Under Louisiana's Act 315, land acquisitions of the United States,14 explicitly authorized by the Migratory Bird Conservation Act, are made subject to a rule of retroactive imprescriptibility, a rule that is plainly hostile to the interests of the United States. As applied to a consummated land transaction under a contract which specifically defined conditions for prolonging the vendor's mineral reservation, retroactive application of Act 315 to the United States deprives it of bargained-for contractual interests.
24
To permit state abrogation of the explicit terms of a federal land acquisition would deal a serious blow to the congressional scheme contemplated by the Migratory Bird Conservation Act and indeed all other federal land acquisition programs. These programs are national in scope. They anticipate acute and active bargaining by officials of the United States charged with making the best possible use of limited federal conservation appropriations. Certainty and finality are indispensable in any land transaction, but they are especially critical when, as here, the federal officials carrying out the mandate of Congress irrevocably commit scarce funds.
25
The legislative history of the Migratory Bird Conservation Act confirms the importance of contractual certainty to the federal land acquisition program it authorizes. As originally enacted in 1929, the Act provided that land acquisitions might include reservations, easements, and rights of way but that these were to be subject to 'such rules and regulations' as the Secretary of Agriculture might prescribe 'from time to time.' § 6, 45 Stat. 1223. This sweeping statement of the Secretary's power to modify contract terms in favor of the Government had an unsettling effect on potential vendors; in 1935, the Act was amended to require the Secretary either to include his rules or regulations in the contract itself or to state in the contract that the reservation or easement would be subject to rules and regulations promulgated 'from time to time.'15 A Congress solicitous of the interests of private vendors in the certainty of contract would hardly condone state modification of the contractual terms specified by the United States itself as vendee, whether or not those terms may be characterized as 'rules and regulations' within the meaning of the Act.
26
Conceivably, our conclusion might be influenced if Louisiana's Act 315 of 1940, as applied retroactively, served legitimate and important state interests the fulfillment of which Congress might have contemplated through application of state law. But that is not the case. We do not deprecate Louisiana's concern with facilitating federal land acquisitions by removing uncertainty on the part of reluctant vendors over the duration of mineral reservations retained by them. From all appearances, this concern was a significant force behind the enactment of the 1940 legislation.16 But today we are not asked to consider Act 315 on its face, or as applied to transactions consummated after 1940; we are concerned with the application of Act 315 to a pair of acquisition agreements in 1937 and 1939. And however ligitimate the State's interest in facilitating federal land acquisitions, that interest has no application to transactions already completed at the time of the enactment of Act 315: the legislature cannot 'facilitate' transactions already consummated.17
27
The Louisiana Supreme Court has candidly acknowledged two additional purposes which help to explain retroactive application of Act 315: to clarify the taxability by the State of mineral interests in the large federal land holdings in Louisiana, otherwise in doubt by virtue of the arcane and fluctuating doctrines of intergovernmental tax immunity; and to ensure that federal mineral interests could be subjected to state mineral conservation laws without federal pre-emption.18 We are not unsympathetic to Louisiana's concern for the consequences of a continuing, substantial, even if contingent, federal interest in Louisiana minerals. Congress, however, could scarcely have viewed that concern as a proper justification for retroactive application of state legislation which effectively deprives the Government of its bargained-for contractual interests. Our Federal Union is a complicated organism, but its legal processes cannot legitimately be simplified through the inviting expedient of special legislation which has the effect of confiscating interests of the United States.19
28
Respondents point out that '(o)ne who owns land subject to an outstanding mineral reservation possesses no vested property interest (under Louisiana law), inasmuch as 'estates in reversion' are unknown to Louisiana law. Such an owner of the land possesses only a hope or expectancy to acquire these mineral rights; and . . . this hope or expectancy is not an object that can be legally sold.' Brief for Respondents 27, citing, e.g., Hicks v. Clark, 225 La. 133, 72 So.2d 322 (1954). But whether Louisiana recognizes the interests at stake here as transferable interests in real property, as such, has no bearing on our conclusion that after-the-fact modification of explicit contractual terms would be adverse to the United States and contrary to the requirements of the Migratory Bird Conservation Act.
29
It is also of no import that, under Louisiana law as it might be articulated in 1973, the United States acquired from respondents only the reversion to a mineral interest of indefinite duration, a 'hope' or 'expectancy' revocable at any time by after-enacted legislation. Respondents place heavy reliance on the opinion of the Louisiana Supreme Court in Leiter Minerals, where that court held that a mineral reservation for an indefinite duration was one traditionally subject to retroactive prescriptive change. But even if this rule of law could have been anticipated in 1937 and 1939, when the United States agreed to the mineral reservations in issue here, that the 1937 and 1939 reservations were of 'indefinite' duration could not have been. Indeed, some 20 years later, in 1957, when Leiter Minerals came to this Court for the first time, we were not in a position to resolve the Government's contention that the Leiter reservation was one of specific duration. Uncertainty over this question of Louisiana law was the guiding force behind our remand in hopes of obtaining the view of the Louisiana Supreme Court. In its advisory opinion, the Louisiana Supreme Court did not decide whether the Leiter-type reservation was 'indefinite' and subject to retroactive modification—to the extent that the Federal District Court, in Louisiana, subsequently concluded that the servitude in the Leiter reservation was not, under state law, freely revocable. In Leiter Minerals, one Court of Appeals judge dissented on this state law issue, and, with reason, the Government renews the issue before the Court in this case.
30
Were the terms of the mineral reservations at issue here less detailed and specific, it might be said that the Government acknowledged and intended to be bound by unforeseeable changes in state law. But the mineral reservations before us are flatly inconsistent with the respondents' suggestion that the United States in fact expected that these reservations would be wholly subject to retroactive modification. Nor, given the absence of any reliable contemporaneous Louisiana signpost and the absence even today of any final resolution of the pertinent state law question, can we say that the United States ought to have anticipated that its deed contained an empty promise. Respondents' reliance on the Louisiana Supreme Court's holding in its opinion in 1961 in Leiter Minerals assumes that a late-crystallizing doctrine of state law is appropriately applied to modify the wxpectations of the United States established by the terms of 1937 and 1939 bargains. The argument, however, is indistinguishable from respondents' defense of Act 315 itself. Years after the fact, state law may not redefine federal contract terminology 'in a way entirely strange to those familiar with its ordinary usage . . ..' De Sylva v. Ballentine, 351 U.S., at 581, 76 S.Ct., at 980.
IV
31
In speaking of the choice of law to be applied, the alternatives are plain although in this case identifying them in fixed categories is somewhat elusive. One 'choice' would be to apply the law urged on us by respondents, i.e., Louisiana Act 315 of 1940. In some circumstances, such as those suggested by RFC v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172 (1946), or Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966),20 state law may be found an acceptable choice, possibly even when the United States itself is a contracting party. However, in a setting in which the rights of the United States are at issue in a contract to which it is a party and 'the issue's outcome bears some relationship to a federal program, no rule may be applied which would not be wholly in accord with that program.' Mishkin, 105 U.Pa.L.Rev., at 805—806.
32
Since Act 315 is plainly not in accord with the federal program implemented by the 1937 and 1939 land acquisitions, state law is not a permissible choice here. The choice of law merges with the constitutional demands of controlling federal legislation; we turn away from state law by default. Once it is clear that Act 315 has no application here, we need not choose between 'borrowing' some residual state rule of interpretation or formulating an independent federal 'common law' rule; neither rule is the law of Louisiana yet either rule resolves this dispute in the Government's favor. The contract itself is unequivocal; the District Court concluded, and it is not disputed here, that by the clear and explicit terms of the contract reservations, '(respondents') interests in the oil, gas, sulphur and other minerals terminated . . . no later than July 23, 1947, and August 30, 1949, unless Act 315 of 1940 has caused the reservations of the servitudes in favor of (respondents) to be imprescriptible.'
33
We hold that, under settled principles governing the choice of law by federal courts, Louisiana's Act 315 of 1940 has no application to the mineral reservations agreed to by the United States and respondents in 1937 and 1939, and that, as a result, any contract interests of respondents expired on the dates identified by the District Court. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for entry of an order consistent with this opinion.
34
Reversed and remanded.
35
Mr. Justice STEWART, concurring in the judgment.
36
I cannot agree with the Court that the mineral reservations agreed to by the United States and the respondents in 1937 and 1939 are governed by some brooding omnipresence labeled federal common law. It seems clear to me, as a matter of law, not a matter of 'choice' or 'borrowing,' that when anyone, including the Federal Government, goes into a State and acquires real property, the nature and extent of the rights created are to be determined, in the absence of a specifically applicable federal statute, by the law of the State.
37
That was the very premise of the decision in Leiter Minerals, Inc. v. United States, 352 U.S. 220, 228—230, 77 S.Ct. 287, 292 293, 1 L.Ed.2d 267 (1957), which remanded the case to the Court of Appeals with instructions to secure an authoritative construction of the state statute by the state courts, in order possibly to avoid deciding the federal constitutional issues. Other decisions of this Court lead to the same conclusion. United States v. Yazell, 382 U.S. 341, 352—358, 86 S.Ct. 500, 506—510, 15 L.Ed.2d 404 (1966); United States v. Burnison, 339 U.S. 87, 89, 70 S.Ct. 503, 504, 94 L.Ed. 675 (1950); Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155, 64 S.Ct. 474, 480, 88 L.Ed. 635 (1944); Sunderland v. United States, 266 U.S. 226, 232—233, 45 S.Ct. 64, 65, 69 L.Ed. 259 (1924); Mason v. United States, 260 U.S. 545, 557—558, 43 S.Ct. 200, 203, 67 L.Ed. 396 (1923); United States v. Fox, 94 U.S. 315, 320, 24 L.Ed. 192 (1877). Cf. Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966).
38
Since I think the Government's property acquisitions here are controlled by state law, the decisive question for me is whether the retroactive application of Louisiana Act 315 of 1940 to those acquisitions is constitutional.1 The 1937 deed of purchase and the 1939 condemnation judgment were unequivocal: the mineral rights were reversed to the former owners of the land for a 10-year period, after which time if certain conditions regarding exploration and production were not met—the reserved rights were to terminate, and complete fee title to the land, including the mineral rights, was to become vested in the United States. The Federal Government bargained for this contingent future interest in the minerals; it was clearly agreed to in the conveyances, and was thus reflected in the consideration paid by the Government to the former owners.
39
Yet the Court of Appeals held that Louisiana Act 315, which was enacted subsequent to those conveyances, operated to abrogate the agreed-upon terms of the mineral reservations by eliminating the Government's future interest. This retroactive application of Act 315, I believe, is a textbook example of a violation of Art. I, § 10, cl. 1, of the Constitution, which provides that no State shall pass any law 'impairing the Obligation of Contracts.'2
40
Accordingly, I concur in the judgment of the Court.
41
Mr. Justice REHNQUIST, concurring in the judgment.
42
I agree with my Brother STEWART that the central question presented by this case is whether Louisiana has the constitutional power to make Act 315 applicable to this transaction, and not whether a judicially created rule of decision, labeled federal common law, should displace state law. The Migratory Bird Conservation Act does not establish a federal rule controlling the rights of the United States under the reservation. Whether Congress could enact such a provision is a question not now before us. In Clearfield Trust Co. v. United States, 318 U.S. 363, 366, 63 S.Ct. 573, 574, 87 L.Ed. 838 (1943), this Court held that federal common law governed the rights and duties of the United States 'on commercial paper which it issues . . ..' The interest in having those rights governed by a rule which is uniform across the Nation was the basis of that decision. But the interest of the Federal Government in having real property acquisitions that it makes in the States pursuant to a particular federal program governed by a similarly uniform rule is too tenuous to invoke the Clearfield principle, especially in light of the consistent statements by this Court that state law governs real property transactions.
43
What for my Brother STEWART, however, is a 'textbook example' of a violation of the Obligation of Contracts Clause, is for me something more difficult. The scope of this clause has been restricted by past decisions of the Court such as Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), in which a Minnesota statute extending the period of time in which the mortgagor might redeem his equity following foreclosure was upheld in the face of vigorous arguments that the statute impaired a valid contract. Were there no simpler ground for disposing of the case, it would be necessary to resolve this very debatable question.
44
I believe that such another ground is present here, in view of the fact that Act 315 enacted by Louisiana by its terms applies only to transactions in which 'the United States of America, or any of its subdivisions or agencies' is a party. While it is argued that Louisiana by other legislation made the same principle applicable to the state government, this proposition is, as the Court's opinion points out, by no means demonstrated. And in any event the change in the period of prescriptibility was not made applicable to nongovernmental grantees.
45
Implicit in the holdings of a number of our cases dealing with state taxation and regulatory measures applied to the Federal Government is that such measures must be nondiscriminatory. See, e.g., James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937); New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326 (1946); RFC v. Beaver County, 328 U.S. 204, 210, 66 S.Ct. 992, 995, 90 L.Ed. 1172 (1946).
46
The doctrine of intergovernmental immunity enunicated in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819), however it may have evolved since that decision, requires at least that the United States be immune from discriminatory treatment by a State which in some manner interferes with the execution of federal laws. If the State of Pennsylvania could not impose a nondiscriminatory property tax on property owned by the United States, United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209 (1944), a fortiori, the State of Louisiana may not enforce Act 315 against the property of the United States involved in this case. I therefore concur in the judgment of the Court.
1
The United States brought two separate suits for this purpose under 28 U.S.C. § 1345, which were consolidated by consent pursuant to Fed.Rule Civ.Proc. 42(a).
2
In Frost-Johnson Lumber Co. v. Salling's Heirs, 150 La. 756, 91 So. 207 (1922), the Louisiana Supreme Court declined to recognize a perpetual 'mineral estate' in Louisiana lands, transferable independently of the overlying surface property. Instead, the Louisiana Supreme Court declared that 'oil and gas in place are not subject to absolute ownership as specific things apart from the soil of which they form part,' id., at 858, 91 So., at 243, and that sale or reservation of mineral rights affords no more than a right to go on the land to search for and reduce to possession all minerals found. 2A. Yiannopoulos, Louisiana Civil Law Treatise, Property § 99 (1967); H. Daggett, Mineral Rights in Louisiana § 1 (Rev. ed. 1949). See generally Hardy, The Birth of Louisiana Mineral Law, 16 Loyola L.Rev. 299 (1970). Since Frost-Johnson, '(s)ale and reservation of mineral rights have been almost consistently classified as servitudes.' Yiannopoulos, supra, § 62, at 183; Daggett, supra, § 2.
'Prescription' or expiration of the remedy to protect a mineral servitude will occur at the end of 10 years from the date of creation, if the servitude is not maintained during that time in accordance with complex requirements for use or acknowledgment. The parties may not extend the 10-year period of prescription by advance agreement, see Art. 3460, La.Civ.Code Ann.; Hightower v. Maritzky, 194 La. 998, 1006—1007, 195 So. 518, 520—521 (1940). However, the parties are not barred from agreeing to a period of contractual prescription shorter than 10 years. Nabors, The Louisiana Mineral Servitude and Royalty Doctrines: A Report to the Mineral Law Committee of the Louisiana State Law Institute, 25 Tul.L.Rev. 155, 176—177 (1951).
3
Louisiana law distinguishes between prescription and 'peremption.' The Louisiana Supreme Court has explained the distinction in the following terms: "When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost." Brister v. Wray Dickinson Co., Inc., 183 La. 562, 565, 164 So. 415, 416 (1935), cited in United States v. Nebo Oil Co., 90 F.Supp. 73, 80 (WD La.1950). Because statutes of prescription are considered 'remedial' the Louisiana courts have generally held that such statutes are applicable to causes of action which arose before the statute was enacted. United States v. Nebo Oil Co., supra, at 81—82, and cases cited.
4
The Court of Appeals also emphasized that officials of the Department of Agriculture had represented to the Government's vendor that 'the prescriptive provisions of the Louisiana Civil Code would not apply to lands sold to the United States for national forest purposes.' 190 F.2d 1003, 1005. The Court of Appeals noted that the price paid by the Government did not reflect the value of any mineral rights and that the vendor would not have agreed to the land sale absent the Government's representation that Louisiana prescriptive law would not apply. Id., at 1006.
5
The initial duration of the reservation was 10 years. If mineral operations took place for 'an average of at least 50 days per year' during the final three years of the specified term, the servitude would be extended for an additional five-year period, but only with respect to 'an area of twenty-five acres of land' around each well or mine producing or being drilled at the 'time of first extension.' Additional five-year extensions could be obtained 'from time to time' to permit completion of active drilling operations.
6
Leiter Minerals, Inc. v. United States, 224 F.2d 381 (CA5 1955), aff'g, 127 F.Supp. 439 (ED La.1954).
7
The 1957 remand was in effect a remand with instructions to abstain. It contemplated state court elucidation of various uncertainties surrounding Act 315, before this Court would attempt 'to decide their relation to the issues in the case.' We do not, therefore, understand the respondents' suggestion, echoed by Mr. Justice STEWART, that the 1957 remand foreshadowed final resolution of the Leiter Minerals controversy through state law.
Indeed, the Court's opinion stated that '(i)t need hardly be added that the state courts . . . can decide definitively only questions of state law that are not subject to overriding federal law.' 352 U.S. 220, 229—230, 77 S.Ct. 287, 293, 1 L.Ed.2d 267.
8
In Leiter Minerals, the Court of Appeals stated that, although 'Congress could make federal law applicable, . . . it had no intention to do so when it merely authorized the contract by which the United States acquired the (Leiter) property.' The Court of Appeals expressed the view that '(s)tate law must govern in the absence of a federal statute,' and in support of its view it cited Swift v. Tyson, 16 Pet. 1, 18, 10 L.Ed. 865 (1842). Later in its opinion, the Court of Appeals stated that 'since the United States had the right to invoke federal jurisdiction (28 U.S.C. § 1345), the ultimate responsibility for the interpretation of the reservation rests upon the federal courts. That interpretation, however, must be in accordance with State law . . ..' 329 F.2d 85, 90, 91. From these statements, it appears that the Court of Appeals considered that the interpretation of the Leiter agreement was governed by state law (applied of its own force), with the role of the federal courts confined to interpretation of state law 'in accordance with State law' as laid down by the highest courts of the State. Possibly, though, the Court of Appeals thought that the choice of applicable law was itself a question of federal law ('ultimate responsibility . . . rests upon the federal courts . . .') but that in the general context of this case, involving real property, state law should be applied through 'borrowing.'
9
'The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.'
10
This is not a case where the United States seeks to oust state substantive law on the basis of 'an amorphous doctrine of national sovereignty' divorced from any specific constitutional or statutory provision and premised solely on the argument 'that every authorized activity of the United States represents an exercise of its governmental power,' see United States v. Burnison, 339 U.S. 87, 91 and 92, 70 S.Ct. 503, 505 and 506, 94 L.Ed. 675 (1950); United States v. Fox, 94 U.S. 315, 24 L.Ed. 192 (1877). Burnison and Fox stand at the opposite end of the spectrum from cases where Congress explicitly displaces state law in the course of exercising clear constitutional regulatory power over a particular subject matter. See, e.g., Sunderland v. United States, 266 U.S. 226, 232—233, 45 S.Ct. 64, 65, 69 L.Ed. 259 (1924) (United States may displace Oklahoma law by imposing restrictions on alienation of Indian property despite the 'general rule . . . that the tenure, transfer, control and disposition of real property are matters which rest exclusively with the state where the property lies'). The present case falls between the poles of Burnison and Sunderland. Here we deal with an unquestionably appropriate and specific exercise of congressional regulatory power which fails to specify whether or to what extent it contemplates displacement of state law.
11
United States v. Certain Property, 306 F.2d 439 (CA2 1962), the principal decision relied on by the Court of Appeals in Leiter Minerals, supra, does not suggest application of state law, of its own force, to federal land acquisitions. See the discussion by the author of Certain Property in Friendly, 39 N.Y.U.L.Rev., at 411 n. 133.
12
'In our choice of the applicable federal rule we have occasionally selected state law.' 318 U.S., at 367, 63 S.Ct., at 575.
13
In view of our disposition, we delcine to resolve the continuing uncertainty, under Louisiana law, over the applicability of Act 315 to the mineral reservation in issue here. See infra, at 601—602.
14
In 1938, the Louisiana Legislature passed Act 68 and, later, Act 151. Both statutes barred prescription of mineral reservations in certain lands conveyed to the United States. Act 68 applied to land acquired by the United States or by the State of Louisiana 'for use in the construction, operation or maintenance of any spillway or floodway' authorized by federal law. Act 151, broad enough in terms to supersede Act 68, provided that prescription would not run against mineral or royalty reservations or real estate 'acquired by the United States of America, the State of Louisiana, or any of its subdivisions . . . for use in any public work and/or improvement.' See generally Comment, Imprescriptible Mineral Reservations in Sales of Land to the State and Federal Governments, 22 Tul.L.Rev. 496 (1948).
Whether because the 'floodway' and 'public work' qualifications of the 1938 Acts make them inapplicable to the 1939 condemnation reservation in issue here, or because the parties' own agreement in 1939 reflects their belief that Act 151 was inapplicable, respondents do not argue that the 1938 legislation is material to the outcome of this case.
15
See S.Rep.No.822, 74th Cong., 1st Sess., Report of the Special Committee on Conservation of Wildlife Resources on S. 3006, pp. 2—3 (1935):
'The Migratory Bird Conservation Act of 1929 established the Federal policy for the acquisition of areas for migratory waterfowl refuges. Under the provisions of that act, the Secretary of Agriculture was authorized when purchasing property for waterfowl refuges, to make certain reservations to be retained by the vendors of the property, but these reservations were subjected to regulations of the Secretary of Agriculture which might be made 'from time to time.' The administration of this act has developed some harassments in the acquisition of desirable waterfowl areas because some owners are not willing to convey their lands to the Federal Government on the indefinite and uncertain terms as provided in regulations made 'from time to time.'
'Obviously they may well be justified in their view, and, just as obviously, the Government may reasonable be secured in its interests by providing for enjoyment on the reservations under regulations to be stated in the conveyance at the time of its execution, leaving the vendor who has made the reservation to the general requirement of existing law that he will be subject to the rules and regulations of the Secretary of Agriculture governing the general administration of the area as a migratory bird refuge.
'Accordingly it is proposed to amend section 6 of the act of 1929 so that these reservations, in the discretion of the Secretary of Agriculture, may be subjected to regulations to be stated in the instrument of conveyance.'
16
See the discussion in Leiter Minerals, Inc. v. California Co., 241 La. 915, 932, 132 So.2d 845, 848 (1961).
17
Because we are concerned here with retroactive application of Act 315, there is likewise no basis for the Court of Appeals' suggestion that Act 315 simply places Louisiana citizens on the same footing as other States' citizens whose land is purchased or condemned by the United States.
18
'There can be no doubt . . . that there were other objects and purposes for the enactment of Act 315 of 1940 . . ..
'One of the important sources of revenue of the State of Louisiana is the severance tax which is levied and collected by the state when natural resources such as oil and gas are produced and extracted from the land. If the mineral rights were owned by the federal government in lands which the government had purchased, the mineral owner's share of the oil and gas produced from those lands would not be subject to taxation by the State of Louisiana, and the state would be deprived of large sums in taxes, especially since an immense area is owned by the federal government in oil-producing sections of this state, as the very facts of this case disclose.
'Moreover, the State of Louisiana in the exercise of its police power has authority to protect, conserve, and replenish the natural resources of the state and to prohibit and prevent their waste. . . . Under this power the Legislature has adopted laws regulating and controlling the production of oil and gas within the state. By making mineral rights imprescriptible in lands sold to the government and retaining these rights in the vendors, Act 315 of 1940 avoided a possible conflict by the state in the exercise of its police power with the federal government.' 241 La., at 933—934, 132 So.2d, at 851—852.
19
In 1958, 18 years after the passage of Act 315, Louisiana enacted legislation that subjects the State and certain of its subdivisions to the rule of imprescriptibility. Louisiana Act 278 of 1958, La.Rev.Stat. § 9:5806, subd. B (8supp.1973). But this belated effort at statutory parity does not eliminate the adverse effect upon the United States, and upon the Migratory Bird Conservation Act, of retroactive application of Act 315 of 1940. For one thing, it is not clear whether the 1958 legislation will be given full retrospective effect by the Louisiana courts, reaching back to 1937 and earlier. More basic, even assuming retrospective application of the 1958 statute, the effect of the 1958 statute on Louisiana is not comparable to the effect of the 1940 Act on the United States. With or without legislation relating to prescription of mineral interests tied to governmental land acquisitions, Louisiana could plainly apply its own conservation laws and its own severance tax to any property in which the State held a contingent or even a present mineral interest. The 1958 legislation did nothing to reduce Louisiana's freedom in this respect. Act 315 of 1940, however as applied retroactively, had the avowed purpose and would have the clear effect of permitting taxation and conservation regulation of minerals which, quite possibly, would otherwise fall within the Federal Government's exclusive domain. However parallel the two statutes in purpose and in their potential effect on actual mineral right ownership by the respective sovereigns, it is only Act 315 of 1940 that significantly affects interests of the United States in intergovernmental immunity.
20
Wallis is readily distinguishable from the instant case; there the assignability of an oil and gas lease was in controversy between two private parties. That presented 'no significant threat to any identifiable federal policy or interest.' 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369.
1
Thus, I do not suggest, as the Court seems to think I do (ante, at 588, n. 7), that this controversy can necessarily be finally resolved through state law. Rather, my analysis is wholly consistent with the statement in Leiter Minerals, Inc. v. United States, 352 U.S. 220, 229—230, 77 S.Ct. 287, 292—293, 1 L.Ed.2d 267 (1957), quoted by the Court today (ante, at 588, n. 7), that state courts 'can decide definitively only questions of state law that are not subject to overriding federal law.'
2
This case is a far cry from Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), which upheld, in the face of a challenge based on the Contract Clause, emergency state legislation enacted to cope with the extraordinary economic depression existing in 1934. The retroactive application of Louisiana Act 315 serves no such paramount state interest. Cf. City of El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965).
| 910
|
412 U.S. 645
93 S.Ct. 2488
37 L.Ed.2d 235
Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare, et al., Petitioners,v.BENTEX PHARMACEUTICALS, INC., et al.
No. 72—555.
Argued April 17, 1973.
Decided June 18, 1973.
Syllabus
Respondent drug marketers filed suit for a declaratory judgment that their drugs containing pentylenetetrazol are generally recognized as safe and effective and thus are not 'new drugs' within the meaning of § 201(p) of the Federal Food, Drug and Cosmetic Act of 1938, as amended. They also sought exemption under § 107(c)(4), the grandfather clause, of the 1962 amendments to the Act. The Food and Drug Administration (FDA) Commissioner, based on NAS—NRC panel reports, concluded that there was a lack of substantial evidence that the drugs were effective for their intended uses and gave notice of his intention to initiate proceedings to withdraw approval of the new drug applications (NDA's). In light of FDA's position that withdrawal of approval of an NDA would operate to remove marketing approval for all drugs of similar composition, known as 'me-too' drugs, whether or not expressly covered by an effective NDA, the Commissioner invited holders of NDA's for drugs containing pentylenetetrazol 'and any interested person who might be adversely affected by their removal from the market' to submit 'adequate and well-controlled studies' to establish the effectiveness of the drugs. Only one NDA holder submitted further evidence, which the Commissioner held did not satisfy the statutory standard. He gave notice of intent to issue an order withdrawing approval of the NDA's, and only one NDA holder requested a hearing but filed no supporting data. The Commissioner issued orders withdrawing approval of the NDA's and no appeal was taken. Respondents here all market 'me-too' drugs, none of which was expressly covered by an effective NDA. The District Court held that FDA should resolve the 'new drug' and 'grandfather' issues in an administrative proceeding. The Court of Appeals reversed and remanded with directions to the District Court to determine whether the challenged drugs may lawfully be marketed without approved NDA's, holding that FDA has no jurisdiction, primary or concurrent, to decide what is a 'new drug' for which an NDA is required. Held: The District Court's referral of the 'new drug' and 'grandfather' issues to FDA was proper. Pp. 649 654.
(a) While an FDA order denying an NDA and withdrawing one is reviewable by the Court of Appeals under § 505(h), an order declaring a 'new drug' status under § 201(p) is reviewable under the Administrative Procedure Act by the District Court. P. 651 652.
(b) The reach of scientific inquiry under both § 505(d) and § 201(p) is the same, Weinberger v. Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 and it is implicit in the regulatory scheme that FDA has jurisdiction to decide with administrative finality, subject to judicial review, the 'new drug' status of individual drugs or classes of drugs. Pp. 652—653.
(c) The 'new drug' and 'grandfather' issues are peculiarly suited to initial determination by FDA with its specialized competence and expertise. Pp. 653—654.
463 F.2d 363, reversed.
Opening statement by Daniel M. Friedman, Washington, D.C., for Caspar W. Weinberger, Secretary, HEW, in all five cases.
Daniel M. Friedman, Washington, D.C., for petitioners.
George F. Townes, Greenville, S.C., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In this case Bentex and some 20 other firms that market drugs containing pentylenetetrazol filed this suit for a declaratory judgment that their drugs containing pentylenetetrazol are generally recognized as safe and effective, and thus not 'new drugs' within the meaning of § 201(p)(1) of the Federal Food, Drug, and Cosmetic Act of 1938, as amended, 76 Stat. 781, 21 U.S.C. § 321(p) (1). They also sought exemption from the new effectiveness requirements by reason of § 107(c)(4) of the 1962 amendments to the Act, known as the 'grandfather' clause.
2
As part of Food and Drug Administration's (FDA's) Drug Efficacy Study Implementation program, three separate National Academy of Sciences-National Research Council (NAS—NRC) panels reviewed the evidence concerning these drugs, and each concluded that the drug was 'ineffective' for the indicated use. The Commissioner concluded there was a lack of substantial evidence that these drugs were effective for their intended uses and gave notice of his intention to initiate proceedings to withdraw approval of the new drug applications (NDA's). FDA had taken the position that withdrawal f approval of an NDA would operate to remove marketing approval for all drugs of similar composition, known as 'me-too' drugs, whether or not they were expressly covered by an effective NDA.1 Accordingly, the notice invited the holders of the NDA's for drugs containing pentylenetetrazol, 'and any interested person who might be adversely affected by their removal from the market,' to submit 'adequate and well-controlled studies' to establish the effectiveness of the drugs. See § 505(d), 21 U.S.C. § 355(d). Only one NDA holder submitted further evidence, which the Commissioner held did not satisfy the statutory standard. He thereupon gave notice of intent to issue an order withdrawing approval of the NDA's under § 505(e), 21 U.S.C. § 355(e). Again, all those who might be adversely affected by withdrawal of the NDA's were given the opportunity to participate. Only one NDA holder requested a hearing but filed no data to support it. The Commissioner issued orders withdrawing approval of the three NDA's (35 Fed.Reg. 14412); no appeal was taken. This suit in the District Court followed. It appears that all of the parties to this suit market 'me-too' drugs, none of which was expressly covered by an effective NDA.
3
The District Court held that although it could determine whether the drugs were 'new' or 'grandfathered' drugs, its jurisdiction was concurrent with that of FDA and that FDA should resolve the 'new drug' issue in an administrative proceeding. It entered an injunction to preserve the status quo and ruled that if FDA should decline to hold a hearing it would determine the issue. The Court of Appeals reversed and remanded with directions that the District Court determine whether the challenged drugs may lawfully be marketed without approved NDA's. 463 F.2d 363. It held that FDA has no jurisdiction, either primary or concurrent, to decide in an administrative proceeding what is a 'new drug' for which an NDA is required. In its view the 1962 Act established two forums for the regulation of drugs: an administrative one for premarketing clearances for 'new drugs' or withdrawal of previously approved NDA's, with the right of appeal; and, second, a judicial one for enforcement of the requirement that 'new drugs' be cleared as safe and effective before marketing by providing the Government with judicial remedies of seizure, injunction, and criminal prosecution available solely in the District Court. Id., at 371—372.
4
We reverse the Court of Appeals.
5
FDA, as a result of an NAS—NRC study and after due notice, faced up to the problem of proposing withdrawal of drugs found to be lacking in substantial evidence of effectiveness. One method would be to have 1,000 withdrawal hearings—perhaps as many as 3,500, each one lasting probably for weeks. The cost in time and budget would be enormous. Accordingly, FDA issued regulations,2 already discussed in Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207, defining the 'scientific principles which characterize an adequate and well-controlled clinical investigation,'3 which elaborates on the statutory 'substantial evidence' test. And, as we held in Hynson, no basis for a hearing under these regulations would be laid unless a party seeking a hearing proffered at least some evidence of that nature and quality.
6
By May 1972, 102 final orders effecting withdrawal of approval for 452 NDA's had been issued; and they resulted in the removal from the market of an additional 1,473 'me-too' drugs.4 FDA was still troubled because under the 1962 Act no census of the marketplace was authorized. That is why Congress enacted the Drug Listing Act of 1972, 86 Stat. 559, 21 U.S.C. §§ 331(p), 335(e), 360(e), (f), (c), (d) (1970 ed., Supp. II). That Act requires manufacturers to submit to FDA a list of all drugs they market, including data showing their composition, labeling, and advertising.5 The Senate Report stated:6
7
'The effective enforcement of the drug provisions of the Act requires the ready availability of a current inventory of all marketed drugs. The Secretary is just completing a thorough review of the effectiveness of drugs marketed pursuant to new drug applications during the period 1938—1962, as required by the Drug Amendments of 1962. Application of the results of this important review to related drugs would be frustrated if a list of all marketed drugs were not easily obtained.'
8
FDA also realized that it is impossible to apply the 1962 amendments to over-the-counter (OTC) drugs on a case-by-case basis. There are between 100,000 and 500,000 of these products, few of which were previously approved by FDA. In May 1972 FDA adopted a procedure for determining whether particular OTC products, not covered by NDA's are safe products, not ineffective, and not misbranded. 37 Fed.Reg. 9464. The procedure involves the establishment of independent expert panels for different categories of OTC drugs (e.g., antacids, laxatives, analgesic) which would review all available data and prepare monographs prescribing drug composition, labeling, and manufacturing controls. OTC's conforming to the monograph will not be considered either misbranded or a 'new drug' requiring an NDA. The regulation provides for a hearing before the expert panel, comments and rebuttal comments on the monograph, and finally a hearing before the Commissioner and judicial review. Id., at 9475.
9
This case, like the cross-petition in the Hynson case (No. 72 414) raises the question whether FDA has authority to decide in an administrative hearing whether a drug satisfies the new effectiveness requirements of the Act. As noted, the Commissioner ordered that three NDA's for the drugs in question be withdrawn. Review of the order was not sought in the Court of Appeals as provided in § 505(h), 21 U.S.C. § 355(h). Rather, the aggrieved manufacturers of 'me-too' drugs filed suit in the District Court, with the results we have already detailed. The narrow question is whether the FDA may decide whether a drug is a 'new drug' on referral from a district court.
10
As already noted, an order denying an NDA or withdrawing one is reviewable by the Court of Appeals, § 505(h); and we see no reason why Congress could not make one method of review the exclusive one. Certainly an order that does not deny or withdraw an NDA is reviewable under the Administrative Procedure Act, if it declares a 'new drug' status. See Hynson, supra, 412 U.S. at 627, 93 S.Ct. at 2481. In bolstering that conclusion we should note in passing that Abbott Laboratories v. Gardner, 387 U.S. 136, 144, 87 S.Ct. 1507, 1513, 18 L.Ed.2d 681, said that the provisions stated in this Act for judicial review do not manifest 'a congressional purpose to eliminate judicial review of other kinds of agency action.' While § 505(h) would appear to be the exclusive method of obtaining judicial review of FDA's order withdrawing an NDA covering the instant drugs, the Government apparently did not oppose the District Court's taking jurisdiction, or appeal from its action, and presents no objection to the exercise by the courts of jurisdiction in this case. It does, however, strenuously oppose the conclusions reached by the Court of Appeals.
11
That court, in holding that FDA has no jurisdiction to determine the 'new drug' status of a drug, stated that the question of 'new drug' status is never presented when an application of a manufacturer for approval is filed. Parties, of course, cannot confer jurisdiction; only Congress can do so. The line sought to be drawn by the Court of Appeals is FDA action on NDA's pursuant to § 505(d) and § 505(e), on the one hand, and the question of 'new drug' determination on the other. We can discern no such jurisdictional line under the Act. The FDA, as already stated, may deny an NDA where there is a lack of 'substantial evidence' of the drug's effectiveness, based, as we have outlined, on clinical investigation by experts. But the 'new drug' definition under § 201(p) encompasses a drug 'not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use.' Whether a particular drug is a 'new drug,' depends in part on the expert knowledge and experience of scientists based on controlled clinical experimentation and backed by substantial support in scientific literature. One function is not peculiar to judicial expertise, the other to administrative expertise. The two types of cases overlap and strongly suggest that Congress desired that the administrative agency make both kinds of determination. Even where no such administrative determination has been made and the issue arises in a district court in enforcement proceedings, it would be commonplace for the court to await an appropriate administrative declaration before it acted. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50 51, 58 S.Ct. 459, 463—464, 82 L.Ed. 638; F.P.C. v. Louisiana Power & Light Co., 406 U.S. 621, 647, 92 S.Ct. 1827, 1842, 32 L.Ed.2d 369. It may, of course, be true that in some cases general recognition that a drug is efficacious might be made without the kind of scientific support necessary to obtain approval of an NDA. But, as we indicate in Hynson, supra, 412 U.S. at 631, 93 S.Ct. at 2484, the reach of scientific inquiry under both § 505(d) and § 201(p) is precisely the same.
12
We think that it is implicit in the regulatory scheme, not spelled out in haec verba, that FDA has jurisdiction to decide with administrative finality, subject to the types of judicial review provided, the 'new drug' status of individual drugs or classes of drugs. The deluge of litigation that would follow if 'me-too' drugs and OTC drugs had to receive de novo hearings in the courts would inure to the interests of manufacturers and merchants in drugs, but not to the interests of the public that Congress was anxious to protect by the 1962 amendments, as well as OTC drugs and drugs covered by the 1972 Act. We are told that FDA is incapable of handling a caseload of more than perhaps 10 or 15 de novo judicial proceedings in a year. Clearly, if FDA were required to litigate, on a case-by-case basis, the 'new drug' status of each drug now marketed, the regulatory scheme of the Act would be severely undermined, if not totally destroyed. Moreover, a case-by-case approach is inherently unfair because it requires compliance by one manufacturer while his competitors marketing similar drugs remain free to violate the Act. In a case much more clouded with doubts than this one, we held that we would not 'in the absence of compelling evidence that such was Congress' intention . . . prohibit administrative action imperative for the achievement of an agency's ultimate purposes.' Permian Basin Area Rate Cases, 390 U.S. 747, 780, 88 S.Ct. 1344, 1367, 20 L.Ed.2d 312. And see Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 304—306, 93 S.Ct. 573, 581—583, 34 L.Ed.2d 525.
13
We conclude that the District Court's referral of the 'new drug' and the 'grandfather' issues to FDA was appropriate, as these are the kinds of issues peculiarly suited to initial determination by the FDA. As the District Court said: 'Evaluation of conflicting reports as to the reputation of drugs among experts in the field is not a matter well left to a court without chemical or medical background.' The determination whether a drug is generally recognized as safe and effective within the meaning of § 201(p)(1) necessarily implicates complex chemical and pharmacological considerations. Threshold questions within the peculiar expertise of an administrative agency are appropriately routed to the agency, while the court stays its hand. As we stated in Far Eastern Conference v. United States, 342 U.S. 570, 574—575, 72 S.Ct. 492, 494, 96 L.Ed. 576: '(I)n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.' And see Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68, 91 S.Ct. 203, 208, 27 L.Ed.2d 203; Ricci v. Chicago Mercantile Exchange, supra, 409 U.S. at 304—306, 93 S.Ct. at 581—583.
14
Reversed.
15
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
16
Mr. Justice STEWART took no part in the decision of this case.
1
Volume 37 Fed.Reg. 23187, adding § 130.40 to 21 CFR, defines 'identical, related, or similar drug' as used in this Act to include 'other brands, potencies, dosage forms, salts, and esters of the same drug moiety as well as of any drug moiety related in chemical structure or known pharmacological properties.' It also provides all persons with an interest in such drugs an opportunity for hearing on any proposed withdrawal of NDA approval for the basic drug. A district court order, directing FDA to apply the NAS—NRC evaluation to all 'me-too' drugs is reproduced in 37 Fed.Reg. 26623—26624.
2
35 Fed.Reg. 3073, 35 Fed.Reg. 7250.
3
See the Appendix in Hynson, supra, at 634, 93 S.Ct., at 2485.
4
Hearings on the Present Status of Competition in the Pharmaceutical Industry before the Subcommittee on Monopoly of the Senate Select Committee on Small Business, 92d Cong., 2d Sess., pt. 22, p. 8525.
5
Filings are due in June 1973. 37 Fed.Reg. 26432.
6
S.Rep.No.92—924, p. 2, U.S.Code Cong. & Admin.News 1972, p. 2963.
| 78
|
412 U.S. 640
93 S.Ct. 2495
37 L.Ed.2d 230
CIBA CORPORATION, Petitioner,v.Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare, et al.
No. 72—528.
Argued April 17, 1973.
Decided June 18, 1973.
Syllabus
Petitioner manufactures a drug called Ritonic Capsules, for which it filed a new drug application (NDA) that became effective in 1959, on the basis of the drug's safety. After the enactment of the 1962 amendments to the Federal Food, Drug, and Cosmetic Act, the Food and Drug Administration (FDA) withdrew approval of the NDA on the ground that there was no substantial evidence that the drug was effective as claimed, under § 505 of the Act. Petitioner sought review of the withdrawal order in the Court of Appeals for the Second Circuit, as provided in § 505(h), and that court affirmed the order. Prior to the issuance of the withdrawal order, petitioner sought declaratory and injunctive relief in the District Court in New Jersey, which granted the Government's motion to dismiss the complaint for lack of jurisdiction. The Court of Appeals for the Third Circuit affirmed, holding that FDA was authorized to decide the jurisdictional question as an incident of its power to approve or withdraw approval for NDAs, that its decision was reviewable on direct appeal by a court of appeals, and since the Court of Appeals for the Second Circuit had ruled against petitioner on that appeal, the jurisdictional issue could not be relitigated in a separate suit for a declaratory judgment. Held:
1. FDA has jurisdiction in an administrative proceeding to determine whether a drug produce is a 'new drug' within the meaning of § 201(p) of the Act. Weinberger v. Bentex Pharmaceuticals Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235. Pp. 644—644.
2. While the Act provides FDA with sanctions, such as civil injunction proceedings, criminal penalties, and in rem seizure and condemnation, to enforce the prohibition against sale in commerce of any article in violation of § 505, the Act does not create a dual system, one administrative and the other judicial. P. 644.
3. Where petitioner had an opportunity to litigate the 'new drug' issue before FDA and to raise the issue on appeal to a court of appeals, it may not relitigate the issue in another proceeding. P. 644.
463 F.2d 225, affirmed.
Opening statement by Daniel M. Friedman, Washington, D.C., for Caspar W. Weinberger, Secretary, HEW, in all five cases.
Daniel M. Friedman, Washington, D.C., for respondents.
Clyde A. Szuch, Newark, N.J., for petitioner.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner manufactures a drug called Ritonic Capsules* for which it filed a new drug application (NDA) that became effective in 1959. Under the Act then in force, an NDA for a 'new drug' required the manufacturer to submit to the Food and Drug Administration (FDA) adequate proof of the drug's safety. This particular NDA became effective on the basis of the drug's safety. As we have noted in the companion cases, the 1962 amendments to the Federal Food, Drug, and Cosmetic Act of 1938, 52 Stat. 1040, as amended, 76 Stat. 780, directed FDA to withdraw approval for NDA's which became effective prior to that time if, after notice and opportunity for hearing, it found a lack of 'substantial evidence' that the drug involved was effective as claimed in its labeling. And, as we have noted, 'substantial evidence' as used in the Act, §§ 505(d) and 505(e)(3), 21 U.S.C. §§ 355(d) and 355(e)(3), means 'adequate and well-controlled investigations' from which experts may conclude that the drug will have the claimed effect.
2
A panel of the National Academy of Sciences-National Research Council (NAS—NRC) reviewed the claims made for Ritonic Capsules and found it 'ineffective' for each of the claims. FDA concluded there was a lack of substantial evidence of its efficacy and gave notice of its intent to withdraw the NDA, offering petitioner an opportunity to submit the required kind of data bearing on the efficacy of the drug and stating that withdrawal of approval of the NDA would cause the Ritonic Capsules to be a 'new drug' for which no NDA was in effect, thereby making future sales unlawful.
3
Petitioner responded, submitting data on the issue of efficacy and maintained that Ritonic Capsules was not a 'new drug' for purposes of the Act as amended. FDA concluded that petitioner's evidence was insufficient to establish effectiveness and gave notice of a hearing on the withdrawal of the NDA. Petitioner responded, contested FDA's authority to proceed further, and claimed that the product was not a 'new drug' under the 1962 Act. It reserved the right to establish its position in the administrative proceedings, in judicial proceedings, or in both. Petitioner filed no more data to support its position; and accordingly FDA withdrew approval of the NDA on the ground that there was no substantial evidence that the drug was effective as claimed. Petitioner sought review of the withdrawal order in the Court of Appeals for the Second Circuit, as provided in § 505(h), 21 U.S.C. § 355(h). The Court of Appeals affirmed the withdrawal order. CIBA-Geigy Corp. v. Richardson, 2 Cir., 446 F.2d 466.
4
Meanwhile, and prior to the issuance of the withdrawal order, petitioner brought suit in the District Court for the District of New Jersey seeking declaratory and injunctive relief. After hearing, the District Court granted the Government's motion to dismiss the complaint for lack of jurisdiction. On appeal, the Court of Appeals for the Third Circuit affirmed, 463 F.2d 225, holding that FDA was authorized to decide the jurisdictional question as an incident of its power to approve or withdraw approval for NDA's, that its decision on that issue was reviewable on direct appeal by a court of appeals, and since the Court of Appeals for the Second Circuit had ruled against petitioner on that appeal, the jurisdictional question could not be relitigated in a separate suit for a declaratory judgment. We affirm the Court of Appeals.
5
We have stated in Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235, our reasons for concluding that FDA has jurisdiction in an administrative proceeding to determine whether a drug product is a 'new drug' within the meaning of § 201(p) of the Act, 21 U.S.C. § 321(p). A decision that FDA lacks authority to determine in its own proceedings the coverage of the Act it administers, subject of course to judicial review, would seriously impair FDA's ability to discharge the responsibilities placed on it by Congress. As we said in Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2488, 37 L.Ed.2d 207, and the Bentex case, supra, the definition of 'new drug' as used in § 201(p)(1) involves a determination of technical and scientific questions by experts. The agency is therefore appropriately the arm of Government to make the threshold determination of the issue of coverage. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 210—211, n. 47, 66 S.Ct. 494, 506—507, 90 L.Ed. 614.
6
It is, of course, true that the Act gives FDA a second line of defense—civil injunction proceedings, criminal penalties, and in rem seizure and condemnation. See §§ 302(a), 303, 304, 21 U.S.C. §§ 332(a), 333, 334. Those are sanctions to enforce the prohibition of the Act against the sale in commerce of any article in violation of § 505. But the Act does not create a dual system of control—one administrative, and the other judicial. Cases may arise where there has been no formal administrative determination of the 'new drug' issue, it being first tendered to a district court. Even then, however, the district court might well stay its hand, awaiting an appropriate administrative determination of the threshold question. See the Bentex case, supra. Where there is, however, an administrative determination, whether it be explicit or implicit in the withdrawal of an NDA, the tactic of 'reserving' the threshold question (the jurisdictional issue) for later judicial determination is not tolerable. There is judicial review of FDA's ruling. But petitioner, having an opportunity to litigate the 'new drug' issue before FDA and to raise the issue on appeal to a court of appeals, may not relitigate the issue in another proceeding. Yakus v. United States, 321 U.S. 414, 444—446, 64 S.Ct. 660, 677—678, 88 L.Ed. 834.
7
Affirmed.
8
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
9
Mr. Justice STEWART took no part in the decision of this case.
*
It is a prescription drug recommended 'for patients who are losing their drive, alertness, vitality and zest for living because of the natural degenerative changes of advancing years'; and for patients who are 'debilitated or depressed by chronic illness, overwork, etc., as well as those recuperating from illness or surgery.'
| 78
|
412 U.S. 837
93 S.Ct. 2357
37 L.Ed.2d 380
James Edward BARNES, Petitioner,v.UNITED STATES.
No. 72—5443.
Argued March 20, 1973.
Decided June 18, 1973.
Syllabus
Petitioner was convicted of possessing United States Treasury checks stolen from the mails, knowing them to be stolen; forging; and uttering the checks, knowing the endorsements to be forged. The District Court instructed the jury that '(p)ossession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstances from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.' The Court of Appeals affirmed, finding no lack of 'rational connection' between unexplained possession of recently stolen property and knowledge that the property was stolen. Held: The instruction comports with due process. Pp. 841—847.
(a) If a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (i.e., the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process. Pp. 841—843.
(b) Here, where the evidence established that petitioner possessed recently stolen Treasury checks payable to persons he did not know and it provided no plausible explanation for such possession consistent with innocence, the traditional common-law inference satisfies the reasonable-doubt standard, the most stringent standard applied by the Court in judging permissive criminal law inferences, and, therefore, comports with due process. Pp. 843—846.
(c) Although the introduction of any evidence, direct or circumstantial, tending to implicate the defendant in the alleged crime increases the pressure on him to testify, the mere massing of evidence against him cannot be regarded as a violation of his privilege against self-incrimination. Yee Hem v. United States, 268 U.S. 178, 185, 45 S.Ct. 470, 472, 69 L.Ed. 904. Pp. 846—847.
(d) In light of its legislative history and consistent judicial construction, 18 U.S.C. § 1708 requires only knowledge that the checks were stolen, and not knowledge that they were stolen from the mails. P. 847.
466 F.2d 1361, affirmed.
Malcolm H. Mackey, Los Angeles, Cal., for petitioner.
Daniel M. Friedman, Washington, D.C., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
Petitioner Barnes was convicted in United States District Court on two counts of possessing United States Treasury checks stolen from the mails, knowing them to be stolen, two counts of forging the checks, and two counts of uttering the checks, knowing the endorsements to be forged. The trial court instructed the jury that ordinarily it would be justified in inferring from unexplained possession of recently stolen mail that the defendant possessed the mail with knowledge that it was stolen. We granted certiorari to consider whether this instruction comports with due process. 409 U.S. 1037, 93 S.Ct. 544, 34 L.Ed.2d 486 (1972).
2
The evidence at petitioner's trial established that on June 2, 1971, he opened a checking account using the pseudonym 'Clarence Smith.' On July 1, and July 3, 1971, the United States Disbursing Office at San Francisco mailed four Government checks in the amounts of $269.02, $154.70, $184, and $268.80 to Nettie Lewis, Albert Young, Arthur Salazar, and Mary Hernandez, respectively. On July 8, 1971, petitioner deposited these four checks into the 'Smith' account. Each check bore the apparent endorsement of the payee and a second endorsement by 'Clarence Smith.'
3
At petitioner's trial the four payees testified that they had never received, endorsed, or authorized endorsement of the checks. A Government handwriting expert testified that petitioner had made the 'Clarence Smith' endorsement on all four checks and that he had signed the payees' names on the Lewis and Herandez checks.1 Although petitioner did not take the stand, a postal inspector testified to certain statements made by petitioner at a post-arrest interview. Petitioner explained to the inspector that he received the checks in question from people who sold furniture for him door to door and that the checks had been signed in the payees' names when he received them. Petitioner further stated that he could not name or identify any of the salespeople. Nor could he substantiate the existence of any furniture orders because the salespeople allegedly wrote their orders on scratch paper that had not been retained. Petitioner admitted that he executed the Clarence Smith endorsements and deposited the checks but denied making the payees' endorsements.2
4
The District Court instructed the jury that '(p)ossession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.'3
5
The jury brought in guilty verdicts on all six counts, and the District Court sentenced petitioner to concurrent three-year prison terms. The Court of Appeals for the Ninth Circuit affirmed, finding no lack of 'rational connection' between unexplained possession of recently stolen property and knowledge that the property was stolen. 466 F.2d 1361 (1972). Because petitioner received identical concurrent sentences on all six counts, the court declined to consider his challenges to conviction on the forgery and uttering counts. We affirm.
6
* We begin our consideration of the challenged jury instruction with a review of four recent decisions which have considered the validity under the Due Process Clause of criminal law presumptions and inferences. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965).
7
In United States v. Gainey, supra, the Court sustained the constitutionality of an instruction tracking a statute which authorized the jury to infer from defendant's unexplained presence at an illegal still that he was carrying on 'the business of a distiller or rectifier without having given bond as required by law.' Relying on the holding of Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943), that there must be 'a rational connection between the fact proved and the ultimate fact presumed,' the Court upheld the inference on the basis of the comprehensive nature of the 'carrying on' offense and the common knowledge that illegal stills are secluded, secret operations. The following Term the Court determined, however, that presence at an illegal still could not support the inference that the defendant was in possession, custody, or control of the still, a narrower offense. 'Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant's function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt—'the inference of the one from proof of the other is arbitrary . . ..' Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519.' United States v. Romano, supra, at 141, 86 S.Ct. at 282.
8
Three and one-half years after Romano, the Court in Leary v. United States, supra, considered a challenge to a statutory inference that possession of marihuana, unless satisfactorily explained, was sufficient to prove that the defendant knew that the marihuana had been illegally imported into the United States. The Court concluded that in view of the significant possibility that any given marihuana was domestically grown and the improbability that a marihuana user would knew whether his marihuana was of domestic or imported origin, the inference did not meet the standards set by Tot, Gainey, and Romano. Referring to these three cases, the Leary Court stated that an inference is "irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.' 395 U.S., at 36, 89 S.Ct., at 1548. In a footnote the Court stated that since the challenged inference failed to satisfy the more-likely-than-not standard, it did not have to 'reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use.' Id., at n. 64.
9
Finally, in Turner v. United States, supra, decided the year following Leary, the Court considered the constitutionality of instructing the jury that it may infer from possession of heroin and cocaine that the defendant knew these drugs had been illegally imported.4 The Court noted that Leary reserved the question of whether the more-likely-than-not or the reasonable doubt standard controlled in criminal cases, but it likewise found no need to resolve that question. It held that the inference with regard to heroin was valid judged by either standard. 396 U.S., at 416, 90 S.Ct., at 652. With regard to cocaine, the inference failed to satisfy even the more-likely-than-not standard. Id., at 419, 90 S.Ct., at 653.
10
The teaching of the foregoing cases is not altogether clear. To the extent that the 'rational connection,' 'more likely than not,' and 'reasonable doubt' standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance. What has been established by the cases, however, is at least this: that if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that it, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process.
11
In the present case we deal with a traditional common-law inference deeply rooted in our law. For centuries courts have instructed juries that an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods. James Thayer, writing in his Preliminary Treatise on Evidence (1898), cited this inference as the descendant of a presumption 'running through a dozen centuries.'5 Id., at 327. Early American cases consistently upheld instructions permitting conviction upon such an inference,6 and the courts of appeals on numerous occasions have approved instructions essentially identical to the instruction given in this case.7 This longstanding and consistent judicial approval of the instruction, reflecting accumulated common experience, provides strong indication that the instruction comports with due process.
12
This impressive historical basis, however, is not in itself sufficient to establish the instruction's constitutionality. Common-law inferences, like their statutory counterparts, must satisfy due process standards in light of present-day experience.8 In the present case the challenged instruction only permitted the inference of guilt from unexplained possession of recently stolen property.9 The evidence established that petitioner possessed recently stolen Treasury checks payable to persons he did not know, and it provided no plausible explanation for such possession consistent with innocence. On the basis of this evidence alone common sense and experience tell us that petitioner must have known or been aware of the high probability that the checks were stolen. Cf. Turner v. United States, 396 U.S., at 417, 90 S.Ct., at 652;10 Leary v. United States, 395 U.S., at 46, 89 S.Ct., at 1553. Such evidence was clarly sufficient to enable the jury to find beyond a reasonable doubt that petitioner knew the checks were stolen. Since the inference thus satisfies the reasonable doubt standard, the most stringent standard the Court has applied in judging permissive criminal law inferences, we conclude that it satisfies the requirements of due process.11
II
13
Petitioner also argues that the permissive inference in question infringes his privilege against self-incrimination. The Court has twice rejected this argument,12 Turner v. United States, supra, 396 U.S., at 417—418, 90 S.Ct., at 652; Yee Hem v. United States, 268 U.S. 178, 185, 45 S.Ct. 470, 472, 69 L.Ed. 904 (1925), and we find no reason to re-examine the issue at length. The trial court specifically instructed the jury that petitioner had a constitutional right not to take the witness stand and that possession could be satisfactorily explained by evidence independent of petitioner's testimony. Introduction of any evidence, direct or circumstantial, tending to implicate the defendant in the alleged crime increases the pressure on him to testify. The mere massing of evidence against a defendant cannot be regarded as a violation of his privilege against self-incrimination. Yee Hem v. United States, supra, 268 U.S., at 185, 45 S.Ct., at 472.
III
14
Petitioner further challenges his conviction on the ground that there was insufficient evidence that he knew the checks were stolen from the mails. He contends that 18 U.S.C. § 170813 requires knowledge not only that the checks were stolen, but specifically that they were stolen from the mails. The legislative history of the statute conclusively refutes this argument14 and the courts of appeals that have addressed the issue have uniformly interpreted the statute to require only knowledge that the property was stolen.15
15
Since we find that the statute was correctly interpreted and that the trial court's instructions on the inference to be drawn from unexplained possession of stolen property were fully consistent with petitioner's constitutional rights, it is unnecessary to consider petitioner's challenges to his conviction on the forging and uttering counts.16
16
Affirmed.
17
Mr. Justice DOUGLAS, dissenting.
18
Possession of stolen property is traditionally under our federal system a local law question. It becomes a federal concern in the present case only if the 'mail' was implicated. The indictment, insofar as the unlawful possession counts are concerned, charges that the items had been 'stolen from the mail.' While there was evidence that these items had gone through the mail, petitioner did not take the stand, nor was there any evidence that petitioner knew that the items had been 'stolen from the mail.' As to the possession counts in the indictment the District Court charged the jury that 'three essential elements' were required to prove the possession offenses:
19
'FIRST: The act or acts of unlawfully having in one's possession the contents of a letter, namely, the United States Treasury checks as alleged;
20
'SECOND: That the contents of the letter, namely, the United States Treasury checks as alleged, were stolen from the mail; and
21
'THIRD: That the defendant James Edward Barnes knew the contents had been stolen.'
The District Court also charged the jury:
22
'If you should find beyond a reasonable doubt from the evidence in the case that the mail described in the indictment was stolen, and that while recently stolen the contents of said mail here, the four United States Treasury checks, were in the possession of the defendant you would ordinarily be justified in drawing from those facts the inference that the contents were possessed by the accused with knowledge that it was stolen property, unless such possession is explained by facts and circumstances in this case which are in some way consistent with the defendant's.'
23
As noted by the Court, the Act, which originally required proof of possession of articles stolen from the mail 'knowing the same to have been so stolen,' 18 U.S.C. § 317 (1934 ed.), was changed by eliminating the word 'so' before 'stolen.' H.R.Rep.No.734, 76th Cong., 1st Sess., 1. And the Act under which petitioner was charged and convicted does not require as an ingredient of the offense that petitioner knew the property had been stolen from the mails.
24
That, however, is the beginning, not the end of the problem. For without a nexus with the 'mails' there is no federal offense. How can we rationally say that 'possession' of a stolen check allows a judge or jury to conclude that the accused knew the check was stolen from the mails? We held in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, that where a federal Act made it unlawful for any convicted person to possess a firearm that had been shipped in interstate or foreign commerce, it was unconstitutional to presume that a firearm possessed by such person had been received in interstate or foreign commerce.1 The decision was unanimous. The vice in Tot was that the burden is on the government in a criminal case to prove guilt beyond a reasonable doubt and that use of the presumption shifts that burden. We said: '(I)t not permissible thus to shift the burden by arbitrarily making one fact, which has no relevance to guilt of the offense, the occasion of casting on the defendant the obligation of exculpation.' Id., at 469, 63 S.Ct. at 1246. The use of presumptions and inferences to prove an element of the crime is indeed treacherous, for it allows men to go to jail without any evidence on one essential ingredient of the offense. It thus implicates the integrity of the judicial system. We held in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, that the Due Process Clause requires 'proof beyond a reasonable doubt of every fact necessary to constitute the crime . . ..' Some evidence of wrongdoing is basic and essential in the judicial system, unless the way of prosecutors be made easy by dispensing with the requirement of presumption of innocence, which is the effect of what the Court does today. In practical effect the use of these presumptions often means that the great barriers to the protection of procedural due process contained in the Bill of Rights are subtly diluted.2
25
May Congress constitutionally enact a law that says juries can convict a defendant without any evidence at all from which an inference of guilt could be drawn? If Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, means anything, the answer is in the negative. The Congress is as unwarranted in telling courts what evidence is enough to convict an accused as we would be to tell Congress what criminal laws should be enacted. That seems inescapably plain by the regime of separation of powers under which we live.
26
In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 we held that it was constitutionally impermissible to presume that one who possessed marihuana would be presumed to know of its unlawful importation. We said it would be sheer 'speculation' to conclude that even a majority of the users of the plant knew the source of it. Id., at 53, 89 S.Ct. at 1557. The overall test, we said, was whether it can be said 'with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.' Id., at 36, 89 S.Ct. at 1548.
27
In that case there were some statistics as to the quantity of marihuana grown here and the amount grown abroad that enters the country. There was evidence of the characteristics of local and foreign marihuana, and the like.
28
Stolen checks may be the product of local burglaries of private homes or offices.
29
Stolen checks may come from purses snatched or purloined.
30
Stolen checks may involve any one of numerous artifices or tricks.
31
In other words, there are various sources of stolen checks which in no way implicate federal jurisdiction.
32
Checks stolen from national banks, checks stolen from federal agencies, checks lifted from the mails are other sources.
33
But, unlike Leary, we have no evidence whatsoever showing what amount of stolen property, let alone stolen checks, implicates the mails. Without some evidence or statistics of that nature we have no way of assessing the likelihood that this petitioner knew that these checks were stolen from the mails. We can take judicial notice that checks are stolen from the mails. But it would take a large degree of assumed omniscience to say with 'substantial assurance' that this petitioner more likely than not knew from the realities of the underworld that this stolen property came from the mails. But without evidence of that knowledge there would be no federal offense of the kind charged.
34
The step we take today will be applauded by prosecutors, as it makes their way easy. But the Bill of Rights was designed to make the job of the prosecutor difficult. There is a presumption of innocence. Proof beyond a reasonable doubt is necessary. The jury, not the court, is the factfinder. These basic principles make the use of these easy presumptions dangerous.3 What we do today is, I think, extremely disrespectful of the constitutional regime that controls the dispensation of criminal justice.
35
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
36
Petitioner was charged in two counts of a six-count indictment with possession of United States Treasury checks stolen from the mails, knowing them to be stolen. The essential elements of such an offense are (1) that the defendant was in possession of the checks, (2) that the checks were stolen from the mails, and (3) that the defendant knew that the checks were stolen. The Government proved that petitioner had been in possession of the checks and that the checks had been stolen from the mails; and, in addition, the Government introduced some evidence intended to show that petitioner knew or should have known that the checks were stolen. But rather than leaving the jury to determine the element of 'knowledge' on the basis of that evidence, the trial court instructed it that it was free to infer the essential element of 'knowledge' from petitioner's unexplained possession of the checks. In my view, that instruction violated the Due Process Clause of the Fifth Amendment because it permitted the jury to convict even though the actual evidence bearing on 'knowledge' may have been insufficient to establish guilt beyond a reasonable doubt. I therefore dissent.
37
We held in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), that the Due Process Clause requires 'proof beyond a reasonable doubt of every fact necessary to constitute the crime . . ..' Thus, in Turner v. United States, 396 U.S. 398, 417, 90 S.Ct. 642, 653, 24 L.Ed.2d 610 (1970), we approved the inference of 'knowledge' from the fact of possessing smuggled heroin because "(c)ommon sense' . . . tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled . . ..' (Emphasis added.) The basis of that 'common sense' judgment was, of course, the indisputable fact that all or virtually all heroin in this country in necessarily smuggled. Here, however, it cannot be said that all or virtually all endorsed United States Treasury checks have been stolen. Indeed, it is neither unlawful nor unusual for people to use such checks as direct payment for goods and services. Thus, unlike Turner, 'common sense' simply will not permit the inference that the possessor of stolen Treasury checks 'inevitably' knew that the checks were stolen. Cf. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).
38
In short, the practical effect of the challenged instruction was to permit the jury to convict petitioner even if it found insufficient or disbelieved all of the Government's evidence bearing directly on the issue of 'knowledge.' By authorizing the jury to rely exclusively on the inference in determining the element of 'knowledge,' the instruction relieved the Government of the burden of proving that element beyond a reasonable doubt. The instruction thereby violated the principle of Winship that every essential element of the crime must be proved beyond a reasonable doubt.
1
The witness' findings with respect to the Young and Salazar signatures were inconclusive.
2
This explanation of petitioner's possession of the checks, presented through the postal inspector's testimony, was adopted by petitioner's counsel in argument to the jury. Tr. 107—108.
3
The full instruction on the inference arising from possession of stolen property stated:
'Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.
'However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property.
'The term 'recently' is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.
'If you should find beyond a reasonable doubt from the evidence in the case that the mail described in the indictment was stolen, and that while recently stolen the contents of said mail here, the four United States Treasury checks, were in the possession of the defendant you would ordinarily be justified in drawing from those facts the inference that the contents were possessed by the accused with knowledge that it was stolen property, unless such possession is explained by facts and circumstances in this case which are in some way consistent with the defendant's innocence.
'In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the accused need not take the witness stand and testify.
'Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the accused.' Tr. 123—124.
4
The Turner Court also considered the validity of inferring that a defendant knowingly purchased, sold, dispensed, or distributed a narcotic drug not in or from the original package bearing tax stamps from the fact that the drugs had no tax stamps when found in the defendant's possession. 26 U.S.C. § 4704(a) (1964 ed.). The Court upheld the inference that a defendant possessing unstamped heroin knowingly purchased it in violation of the statute, but struck down the inference with regard to cocaine. 396 U.S. 398, 419—424, 90 S.Ct. 642, 653, 24 L.Ed. 610 (1970).
5
Thayer also described the historical development of the presumption:
'(T)he laws of Ine (King of Wessex, A.D. 688—725) provide that, 'if stolen property be attached with a chapman, and he have not brought it before good witnesses, let him prove . . . that he was neither privy (to the theft) nor thief; or pay as wite (fine) xxxvi shillings.' To be found thus in the possession of stolen goods was a serious thing; if they were recently stolen, then was one 'taken with the mainour,'—a state of things that formerly might involve immediate punishment, without a trial; and, later, a trial without a formal accusation; and, later still, a presumption of guilt which, in the absence of contrary evidence, justified a verdict, and at the present time is vanishing away into the mere judicial recognition of a permissible inference . . ..' (Citations omitted.) Id., at 328.
6
See e.g., Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); Commonwealth v. Millard, 1 Mass. 6 (1804); Knickerbocker v. People, 43 N.Y. 177 (1870); State v. Raymond, 46 Conn. 345 (1878); Cook v. State, 84 Tenn. 461, 1 S.W. 254 (1886).
7
E.g., United States v. Russo, 413 F.2d 432 (CA2 1969); United States v. Smith, 446 F.2d 200 (CA4 1971); United States v. Winbush, 428 F.2d 357 (CA6), cert. denied, 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157 (1970); United States v. Hood, 422 F.2d 737 (CA7), cert. denied, 400 U.S. 820, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970); United States v. Dilella, 354 F.2d 584 (CA7 1965).
8
The reasoning of the statutory-inference cases is applicable to analysis of common-law inferences. Cf. United States v. Gainey, 38 U.S. 63, 70, 85 S.Ct. 754, 759, 13 L.Ed.2d 658 (1965); Rules of Evidence for United States Courts and Magistrates (proposed Nov. 20, 1972), Urle 303(a), 56 F.R.D. 212. Common-law inferences, however, present fewer constitutional problems. Such inferences are invoked only in the discretion of the trial judge. While statutes creating criminal law inferences may be interpreted also to preserve the trial court's traditional discretion in determining whether there is sufficient evidence to go to the jury and in charging the jury, Turner v. United States, 396 U.S. 398, 406 n. 6, 90 S.Ct. 642, 646 n. 6, 24 L.Ed.2d 610 (1970); United States v. Gainey, supra, at 68—70, 85 S.Ct., at 758, such discretion is inherent in the use of common law inferences.
9
Of course, the mere fact that there is some evidence tending to explain a defendant's possession consistent with innocence does not bar instructing the jury on the inference. The jury must weigh the explanation to determine whether it is 'satisfactory.' Supra, at 840, n. 3. The jury is not bound to accept or believe any particular explanation any more than it is bound to accept the correctness of the inference. But the burden of proving beyond a reasonable doubt that the defendant did have knowledge that the property was stolen, an essential element of the crime, remains on the Government.
10
"Common sense' . . . tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled.'
11
It is true that the practical effect of instructing the jury on the inference arising from unexplained possession of recently stolen property is to shift the burden of going forward with evidence to the defendant. If the Government proves possession and nothing more, this evidence remains unexplained unless the defendant introduces evidence, since ordinarily the Government's evidence will not provide an explanation of his possession consistent with innocence. In Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), the Court stated that the burden of going forward may not be freely shifted to the defendant. See also Leary v. United States, 395 U.S. 6, 44—45, 89 S.Ct. 1532, 1552, 23 L.Ed.2d 57 (1969). Tot held, however, that where there is a 'rational connection' between the facts proved and the fact presumed or inferred, it is permissible to shift the burden of going forward to the defendant. Where an inference satisfies the reasonable-doubt standard, as in the present case, there will certainly be a rational connection between the fact presumed or inferred (in this case, knowledge) and the facts the Government must prove in order to shift the burden of going forward (possession of recently stolen property).
We do not decide today whether a judge-formulated inference of less antiquity or authority may properly be emphasized by a jury instruction.
12
Nor can the instruction 'be fairly understood as a comment on the petitioner's failure to testify.' United States v. Gainey, 380 U.S., at 70—71, 85 S.Ct., at 759.
13
'Whoever . . . unlawfully has in his possession, any . . . mail . . . which has been so stolen . . ., knowing the same to have been stolen, . . . (shall be fined or imprisoned or both).'
14
Prior to 1939 the statute required proof of possession of articles stolen from the mail 'knowing the same to have been so stolen.' 18 U.S.C. § 317 (1934 ed.) (emphasis added). See, e.g., Brandenburg v. United States, 78 F.2d 811 (CA3 1935). In 1939 Congress eliminated the word 'so' preceding the word 'stolen.' H.R.Rep. No. 734, 76th Cong., 1st Sess., 1 (1939), explains the change:
'The reported bill amends the existing law so that it will sustain a conviction for the Government to prove that the property was in fact stolen from the mails and that the defendant knew the property he received had been stolen. The committee feel that this should be sufficient without requiring the Government to prove also that the defendant knew the property received had been stolen from the mails.' See also S.Rep. No. 864, 76th Cong., 1st Sess. (1939).
15
United States v. Hines, 256 F.2d 561 (CA2 1958); Smith v. United States, 343 F.2d 539 (CA5), cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99 (1965); United States v. Gardner, 454 F.2d 534 (CA9), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); United States v. Schultz, 462 F.2d 622 (CA9 1972).
16
Although affirmance of petitioner's conviction on two of the six counts carrying identical concurrent sentences does not moot the issues he raises pertaining to the remaining counts, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), we decline as a discretionary matter to reach these issues. Cf. United States v. Romano, 382 U.S. 136, 138, 86 S.Ct. 279, 280, 15 L.Ed.2d 210 (1965).
1
Tot v. United States was decided in 1943, four years after the passage by Congress of the 1939 amendment to the present Act eliminating the need to prove knowledge that the property had been stolen from the mails. Had Tot been decided before 1939 it is inconceivable that Congress would have made the 1939 change in the present Act.
2
Mr. Justice Black and I previously have voiced this concern. Turner v. United States, 396 U.S. 398, 425, 90 S.Ct. 642, 656, 24 L.Ed.2d 610 (dissenting opinion); United States v. Gainey, 380 U.S. 63, 72, 74, 85 S.Ct. 754, 760, 761, 13 L.Ed.2d 658 (dissenting opinions).
3
What we said in Christoffel v. United States, 338 U.S. 84, 89, 69 S.Ct. 1447, 1450, 93 L.Ed. 1826, that 'all the elements of the crime charged shall be proved beyond a reasonable doubt' has been the guiding rule at least on the issue of guilt. And it is cogently argued that presumptions of the existence of elements of a crime have no place in our constitutional framework. See 22 Stan.L.Rev. 341 (1970). That seems indubitably true to me, at least in the present case where knowledge that the checks were stolen from the mails has only suspicion to support it.
| 34
|
412 U.S. 800
93 S.Ct. 2367
37 L.Ed.2d 350
The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Appellants,v.The WICHITA BOARD OF TRADE et al. INTERSTATE COMMERCE COMMISSION, Appellant, v. WICHITA BOARD OF TRADE.
Nos. 72—214, 72—433.
Argued Feb. 28, 1973.
Decided June 18, 1973.
Syllabus
The Interstate Commerce Commission (ICC), after hearings, approved imposition by appellant railroads of separate charges for inspection of grain while in transit, a service that had previously been provided under the line-haul rates. Appellees thereupon brought this action in District Court contesting the validity of the ICC order. That court found that the ICC had not adequately justified departure from its longstanding rule that such separate charges are unlawful unless the carriers can satisfy the burden that rests upon them of proving that their line-haul rates are insufficient to cover the total transportation service including the portion thereof for which separate charges are proposed. The court ordered suspension of the in-transit charges unless otherwise ordered by the court and remanded the case to the ICC. Held: The action of the District Court is affirmed as to the remand to the ICC and is reversed as to the injunction suspending the proposed charges. P. 2374—2384. D.C. 352 F.Supp. 365, affirmed in part and reversed in part.
Mr. Justice MARSHALL, in an opinion joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN, concluded that:
1. The ICC, which justified its departure from its prior cases on the ground that the many rates involved rendered the previous requirement impractical and the new charges when added to the line-haul rates would not exceed the ICC-prescribed maximum rate level, has not stated its reasons with sufficient clarity to facilitate proper judicial review of its approval of the intransit inspection charges. Pp. 806—817.
2. Equitable considerations, including the doctrine of primary jurisdiction as applied to the facts of this case, required that the District Court refrain from expressing a view upon what it believed was permitted by national transportation policy before the ICC on remand could balance the conflicting interests of shippers, railroads, producers and consumers in the proposed rate changes, cf. Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52; hence, it was improper for the District Court to enjoin implementation of the proposed new charges. Pp. 817—825.
Mr. Justice DOUGLAS concurred in the affirmance of the remand to the ICC.
1
Mr. Justice WHITE, joined by Mr. Justice BRENNAN and Mr. Justice REHNQUIST, concurring in the reversal of the injunction, concluded that only the ICC was granted the statutory authority to suspend new freight rates for seven months and the District Court has no power to extend that period. Pp. 828—829.
2
Earl E. Pollock, Washington, D.C., for Atchison, Topeka and Santa Fe Railway Co. and others.
3
Betty Jo Christian, Washington, D.C., for I.C.C.
4
Daniel J. Sweeney, Chicago, Ill., for Wichita Board of Trade and others.
5
William A. Imhof, Washington, D.C., for Secretary of Agriculture.
6
Mr. Justice MARSHALL announced the judgment of the Court, and an opinion in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN join.
7
We noted probable jurisdiction in these cases to resolve two important questions relating to the proper role of courts in reviewing approval by the Interstate Commerce Commission of proposed rate increases by railroads. 409 U.S. 1005, 93 S.Ct. 432, 34 L.Ed.2d 298 (1972). First, under what circumstances may a reviewing court find that the Commission has failed adequately to explain its apparent departure from settled Commission precedent? Because the problem of determining what policies an agency is following, as a prelude to determining whether the agency is acting in accordance with Congress' will, is a recurring one, this issue raises general problems of judicial review of agency action. The second question in these cases is a more limited one: in order to enjoin a proposed rate increase after a final order by the Interstate Commerce Commission, what sort of error must a District Court find in the proceedings of the Commission? We hold that in these cases the Commission did not explain its apparent departure from precedent in a manner sufficient to permit judicial review of its policies, but that, nevertheless, that kind of error does not justify the District Court in entering an injunction against imposition of the rates pending review of the Commission's action on remand. We therefore vacate the judgment of the District Court and remand for the entry of a proper order.1
8
* In these cases, the railroads proposed to establish a separate charge for inspection of grain while in transit.2 In order to inspect the grain, the railroad cars loaded with it are stopped and placed on track facilities. A sample of the grain is taken, and the official grade is determined. Once the grade is known and the commercial value of the grain established, the shipper orders the car to proceed to the appropriate market. Intransit inspections have substantial advantages to shippers over inspection at the destination. If the grain were to be found to be of a different grade than expected only after arrival at the destination, sending it to another market might be quite expensive. The advantages of in-transit inspections to purchasers, instead of inspection at the source that might satisfy shippers, are less marked but are nonetheless significant. The grain might deteriorate while in transit, thus leaving the purchaser with grain of a lower quality than he expected. And the possibility of bias of the inspector is greater if the inspection is made at the source.
9
The Commission found that 'the orderly marketing of grain under present practices requires that a substantial portion of the commodity moving in commercial channels must be subjected to some form of sampling and inspection to determine grade or quality.' 339 I.C.C. 364, 385 (1971).3 However, it also found that this sampling need not take place while the grain is in transit. The practice of in-transit inspections developed when federal law required inspections for the purpose of grading. 39 Stat. 483. But the diversion of grain from railroads to motor trucks made it difficult to enforce the inspection requirements. When trucks are used, in-transit inspections are not generally made. Thus, in order to simplify the movement of grain, Congress abolished the requirement of inspections. Pub.L. 90—487, 82 Stat. 761. In addition, the convenience of sampling at the source of the grain has increased with the widening reliance on low-cost mechanical samplers installed at grain elevators. The Commission therefore concluded that in-transit inspections were not necessary for the orderly marketing of grain.
10
It also concluded that in-transit inspections resulted in a substantial decrease in the number of freight cars available for general use.4 Relying on a variety of studies conducted by the railroads, the Commission found that each inspection kept a freight car out of use for roughly three days, and that the cumulative impact of the delays due to intransit inspection was to reduce the available freight car fleet by several thousand cars.
11
Finally, the Commission considered whether the proposed separate charge for each in-transit inspection fairly reflected the cost to the railroad of such an inspection. Again, it relied on quite detailed studies that established the cost of detaining a car, the cost of switching it on and off the main line, and the clerical costs of conducting inspections. The Commission concluded that the proposed charges were 'not excessive in amount . . . on the basis of the convincing evidence of record showing the costs sustained by the railroads in performing the in-transit inspection service.' 340 I.C.C., at 71 72.
12
Shippers who had objected to the proposed new charges before the Commission sought review of the Commission's order, and a statutory three-judge District Court was convened. The District Court found that these conclusions were supported by substantial evidence, and they are not challenged here. But the District Court held that the Commission had not adequately justified its failure to follow 'its long established rule that it will not allow a separate charge for an accessorial service previously performed as part of the line-haul rates without substantial evidence that such an additional charge is justified measured against the overall services rendered and the overall reasonableness of the increased line-haul rate resulting therefrom.' 352 F.Supp. 365, 368. The Commission, although it analyzed the cost of each in-transit inspection, had made no attempt to consider the reasonableness of continuing the existing line-haul rate, which included some charge for in-transit inspections. Instead, the Commission had attempted to distinguish this case from prior cases in which the rule was invoked, but the District Court, relying on Secretary of Agriculture v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954), was 'not convinced that the instant proceeding can be 'distinguished' as the Commission has indicated.' 352 F.Supp., at 369.
13
Although the Commission must be given some leeway to re-examine and reinterpret its prior holdings, it is not sufficiently clear from its opinion that it has done so in this case. A reviewing court must be able to discern in the Commission's actions the policy it is now pursuing, so that it may complete the task of judicial review—in this regard, to determine whether the Commission's policies are consistent with its mandate from Congress. Since we cannot tell from the Commission's opinions what those policies are, we therefore agree with the District Court that the Commission's order finding the rates just and reasonable cannot be sustained.
II
14
Judicial review of decisions by the Interstate Commerce Commission in rate cases necessarily has a limited scope. Such decisions 'are not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made without a hearing, exceed constitutional limits, or for some other reason amount to an abuse of power.' Manufacturers R. Co. v. United States, 246 U.S. 457, 481, 38 S.Ct. 383, 389, 62 L.Ed. 831 (1918).5 As this Court has observed, 'The process of rate making is essentially empiric. The stuff of the process is fluid and changing—the resultant of factors that must be valued as well as weighed. Congress has therefore delegated the enforcement of transportation policy to a permanent expert body and has charged it with the duty of being responsive to the dynamic character of transportation problems.' Board of Trade of Kansas City v. United States, 314 U.S. 534, 546, 62 S.Ct. 366, 372, 86 L.Ed. 432 (1942).
15
The delegation to the Commission is not, of course, unbounded, and it is the duty of a reviewing court to determine whether the course followed by the Commission is consistent with its mandate from Congress. See ICC v. Inland Waterways Corp., 319 U.S. 671, 691, 63 S.Ct. 1296, 1307, 87 L.Ed. 1655 (1943); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 169, 83 S.Ct. 239, 245—246, 9 L.Ed.2d 207 (1962). Cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767, 89 S.Ct. 1426, 1430, 22 L.Ed.2d 709 (1969) (opinion of Fortas, J.). But a simple examination of the order being reviewed is frequently insufficient to reveal the policies that the Commission is pursuing. Thus, this Court has relied on the 'simple but fundamental rule of administrative law,' SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, (1760,) 1577, 91 L.Ed. 1995 (1947), that the agency must set forth clearly the grounds on which it acted. For '(w)e must know what a decision means before the duty becomes ours to say whether it is right or wrong.' United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935). See also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197, 61 S.Ct. 845, 853, 85 L.Ed. 1271 (1941); SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943). And we must rely on the rationale adopted by the agency if we are to guarantee the integrity of the administrative process. Id., at 88, 63 S.Ct., at 459. Cf. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 443—444, 85 S.Ct. 1061, 1064—1065, 13 L.Ed.2d 951 (1965). Only in that way may we 'guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.' Phelps Dodge Corp. v. NLRB, supra, 313 U.S., at 194, 61 S.Ct. at 852.
16
An agency 'may articulate the basis of its order by reference to other decisions,' NLRB v. Metropolitan Life Ins. Co., supra, 380 U.S., at 443 n. 6, 85 S.Ct. at 1064. For '(a)djudicated cases may and do, of course, serve as vehicles for the formulation of agency policies, which are applied and announced therein. See H. Friendly, The Federal Administrative Agencies 36—52 (1962). They generally provide a guide to action that the agency may be expected to take in future cases. Subject to the qualified role of stare decisis in the administrative process, they may serve as precedents.' NLRB v. Wyman-Gordon Co., supra, 394 U.S., at 765 766, 89 S.Ct. at 1429 (opinion of Fortas, J.). This is essentially a corollary of the general rule requiring that the agency explain the policies underlying its action. A settled course of behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress.
17
There is, then, at least a presumption that those policies will be carried out best if the settled rule is adhered to. From this presumption flows the agency's duty to explain its departure from prior norms. Secretary of Agriculture v. United States, supra, 347 U.S., at 653, 74 S.Ct., at 831. The agency may flatly repudiate those norms, deciding, for example, that changed circumstances mean that they are no longer required in order to effectuate congressional policy. Or it may narrow the zone in which some rule will be applied, because it appears that a more discriminating invocation of the rule will best serve congressional policy. Or it may find that, although the rule in general serves useful purposes, peculiarities of the case before it suggest that the rule not be applied in that case. Whatever the ground for the departure from prior norms, however, it must be clearly set forth so that the reviewing court may understand the basis of the agency's action and so may judge the consistency of that action with the agency's mandate.
18
A further complication arises when, as here, the agency distinguishes earlier cases in which it invoked the rule. An initial step, and often the only one clearly taken, is to specify factual differences between the cases. Those factual differences serve to distinguish the cases only when some legislative policy makes the differences relevant to determining the proper scope of the prior rule. It is all too easy for a court to judge the adequacy of an asserted distinction in light of the policies the court, rather than the agency, seeks to implement; that is, after all, what an appellate court does with respect to courts of the first instance. Yet when an agency's distinction of its prior cases is found inadequate, the reviewing court may inadvertently adopt the stance it ordinarily takes with respect to other courts, and thereby may invade 'the domain which Congress has set aside exclusively for the administrative agency,' SEC v. Chenery Corp., supra, 332 U.S., at 196, 67 S.Ct., at 1577, that is, the choice of particular actions to carry out the broad policies stated by Congress. Instead, it is enough to satisfy the requirements of judicial oversight of administrative action if the agency asserts distinctions that, when fairly and sympathetically read in the context of the entire opinion of the agency, reveal the policies it is pursuing. So long as the policies can be discerned, the court may exercise its proper function of determining whether the agency's policies are consistent with congressional directives.
19
These principles gain content when applied to the present cases. The District Court held that the Commission had not repudiated or adequately distinguished its prior cases establishing the rule that 'it will not allow a separate charge for an accessorial service previously performed as part of the line-haul rates without substantial evidence that such an additional charge is justified measured against the overall services rendered and the overall reasonableness of the increased line-haul rate resulting therefrom.' 352 F.Supp., at 368. While this is a fair summary of the Commission's established practice,6 it conceals the apparent purpose of the rule, to protect two distinct classes: shippers who will continue to utilize the accessorial service—in this case, those who will still have their grain inspected while in transit—and shippers who will not. To decide whether the Commission has adequately explained its failure to follow that rule, we must consider each class in turn, for the Commission may have made clear why it need not protect one class by invoking the rule but it may nonetheless have failed to say why it need not protect the other class.
20
In Unloading Lumber to New York Harbor, 256 I.C.C. 463 (1943), the Commission dealt with a proposal to charge separately for unloading, a service that was inextricably bound up with the line-haul service. Cf. Secretary of Agriculture v. United States, supra, 347 U.S., at 648—649, 74 S.Ct. at 828—829. The Commission said, 'It follows that respondents may not now segregate a component of that (line-haul) service, making a separate charge therefor, without an adequate showing that the aggregate charge for the through service is reasonable.' 256 I.C.C., at 468. The explicit purpose of the rule in this situation is to guarantee that shippers receiving the same service that they had previously received do not pay an unreasonable amount. See also Duluth Dockage Absorption, 44 I.C.C. 300 (1917); Terminal Charges at Pacific Coast Ports, 255 I.C.C. 673, 682 (1943). The rule, in this regard, is that the railroads must demonstrate both that the proposed charge is reasonable in light of the costs of the separate service, and that the total charge for line haul plus the separate service is reasonable.
21
The Commission justified its departure from its prior cases by giving two reasons that relate to this aspect of the rule. First, it noted that '(t)he line-haul rates applicable on the grain to, from, and through (the) inspection points number in the thousands and, because of the complexities of the grain rate structure, vary to a large degree.' Thus, applying the general rule 'effectively precludes respondents from ever establishing a separate charge for the accessorial first stop for inspection regardless of the need for such a charge.' Second, the Commission said that 'the line-haul rate applicable to any movement of grain . . . when coupled with the proposed charge is less than the maximum reasonable level determined by this Commission. In no instance will the combined rate and charge exceed the maximum level prescribed in Grain and Grain Products, (205 I.C.C. 301 (1934) and 215 I.C.C. 83 (1936)).' 339 I.C.C., at 386—387.
22
The maximum rates prescribed in Grain and Grain Products have been subjected to a large number of general rate increases.'7 See, e.g., Ex parte Nos. 265 and 267, Increased Freight Rates, 1970 and 1971, 339 I.C.C. 125 (1971). In those proceedings, the Commission's focus is on the general revenue needs of the railroads. Across-the-board percentage increases are permitted without detailed examination of individual rates. As a result, there may be specific routes on which the maximum is in fact unreasonable, because, for example, the costs of operating those routes have not increased as rapidly as the costs elsewhere. Thus, the Commission has held that its approval of a general increase 'does not have the effect of approving any particular increased rate as not being in excess of a maximum reasonable rate.' Coal from Illinois to Alton and East St. Louis, 274 I.C.C. 637, 670 (1949). See also Tennessee Produce & Chemical Corp. v. Alabama G.S.R. Co., 277 I.C.C. 207 (1950); Brimstone R. & Canal Co. v. United States, 276 U.S. 104, 48 S.Ct. 282, 72 L.Ed. 487 (1928). However, in other contexts, the Commission has treated the prescribed rates as modified by general increases as 'the best evidence of the reasonableness of corresponding rates on a . . . date' after the general increase. Agsco Chemicals, Inc. v. Alabama G.S.R.Co., 314 I.C.C. 725, 733 (1961). Cf. Public Service Comm'n of North Dakota v. Great Northern R. Co., 340 I.C.C. 739, 750 (1972).
23
The Commission thus has not determined that a rate which does not exceed the current general maximum is reasonable. A shipper can challenge any such rate as unreasonable and, if he succeeds, may recover reparations. In addition, the Commission may prescribe a rate to be charged in the future. 49 U.S.C. §§ 8, 9, 13(1), 15(1); ICC v. Inland Waterways Corp., 319 U.S. 671, 687, 63 S.Ct. 1296, 1305, 87 L.Ed. 1655 (1943). In such proceedings, the shipper must show that the rate charged was unreasonable. Cf. Louisville & N.R. Co. v. United States, 238 U.S. 1, 35 S.Ct. 696, 59 L.Ed. 1177 (1915); Shaw Warehouse Co. v. Southern R. Co., 288 F.2d 759 (CA5 1961).8 In contrast, when a proposed rate increase is challenged by a shipper before it goes into effect, 'the burden of proof shall be upon the carrier to show that the proposed changed rate . . . is just and reasonable.' 49 U.S.C. § 15(7).9
24
The Commission in this litigation referred to the burden that applying the rule would place in the railroads. It rather clearly intended by this to suggest that the importance of implementing the new charges and so of increasing the supply of available freight cars justified some modification of its usual allocation of the burden of going forward. Instead of requiring the railroads to produce substantial evidence that the total charges were reasonable, it would leave that determination to later proceedings in which a shipper seeking reparations might point to particular individual charges as unreasonable.
25
If this were all that was at stake, the Commission would have adequately identified the concerns behind its course—in light of the pressing need to increase the freight car supply, it was not too much to require that shippers carry the burden of going forward. Such an assessment would surely permit a reviewing court to determine whether the Commission's action was consistent with congressional transportation policy. Unfortunately, though, the change involved in making the shippers claim that particular rates are unreasonable is not all that is at stake. For in proceedings for reparations, there is also a change in the burden of proof: the shipper must produce substantial evidence that the rate is unreasonable. This would appear to affect the likelihood that the shipper will prevail. There is a zone in which rates are reasonable, United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 506, 55 S.Ct. 462, 465, 79 L.Ed. 1023 (1935), and it would seem to be harder to establish that the proposed rates fell outside that zone than that they fell within it. Or so Congress believed, for it specified the allocation of the burden of proof in suspension proceedings as part of the cost to the carriers; in return for confining the power to suspend rates to the Commission, and so of eliminating the threat of long-drawn-out injunctive proceedings in the courts, Congress made the carriers carry a burden of proof that would otherwise not have been theirs. Cf. Part III, infra.10
26
The Commission did not suggest that its approval of the proposed rates on the grounds it gave would alter the usual practice in actions for reparations. Nor did it say why the need for an increased supply of freight cars justified a significant change in the burden of proof. In this sense, the Commission's action was, as the District Court noted, 'discriminatory per se.'
27
It is even harder to understand from the Commission's opinion why it departed from the rule in prior cases protecting shippers who decide not to have intransit inspections. If the separate charges are to be effective in alleviating the car-shortage problem, there must be a substantial number of shippers who do not seek in-transit inspections. Yet according to the Commission, the railroads need not show that the present line-haul rates are reasonable charges for the services provided to shippers who do not seek in-transit inspections. It would appear, thus, that the Commission has approved a policy that discriminates against what it hopes will be a very large number of shippers; it seems to have tried to justify its policy by citing reasons that affect only a much smaller class.
28
Some of the shippers who previously sought in-transit inspections will no longer do so. Others had the opportunity for such inspections. Now the railroads propose to eliminate some of the service previously provided, yet charge the same rates. The Commission in its prior cases has required railroads proposing a similar reduction in service either to show that the rates then in effect did not compensate them for the service, and thus that the service was being provided at no charge, or to reduce the existing rates. See, e.g., Transit Charges, Southern Territory, 332 I.C.C. 664, 683 (1968); Loading of Less-Than-Carload Freight on Lighters in Norfolk, Va., Harbor, 91 I.C.C. 394 (1924); ICC v. Chicago, B. & Q.R. Co., 186 U.S. 320, 22 S.Ct. 824, 46 L.Ed. 1182 (1902).
29
Nothing the Commission said suggests any reason why the railroads should not be required to follow the same rule in this case. At no time have rates ever been established, or found just and reasonable, when the railroads did not include the service of in-transit inspection. Perhaps the imperative need to increase the number of freight cars available to all shippers justifies some alteration of the general rule. Yet the Commission, when dealing with shippers who will continue to have in-transit inspections, invoked the fact that the new charges would not raise rates above those permitted by the general maximum. As to that class, the Commission apparently believed that it could not simply refuse to follow preexisting practices on the ground of exigency alone. The Commission offered no reason to distinguish the larger class from the smaller one, in that respect. But it might be that rates for services including an in-transit inspection, at the level of the general maximum, would be reasonable while rates for services without such inspections would be unreasonable at that level, or even below it. Thus, the fact that the new charges will not exceed the general maximum seems to have no bearing on the question of the reasonableness of the rates that will continue to be in force for now-reduced services.11
30
Perhaps the current line-haul rates really to do not include a substantial amount attributable to the cost of providing in-transit inspections. But cf. Tr. 231—232, 258—266. Or perhaps the Commission has some reason to reinterpret the prior cases suggesting that its rule reflects a concern for rates that are 'increased' simply because of a reduction in services.
31
As in Secretary of Agriculture v. United States, 347 U.S., at 652, 74 S.Ct., at 831, the Commission may have reasons for 'following a procedure fairly adapted to the unique circumstances of this case.'12 But, as in that case, it must make these reasons known to a reviewing court with sufficient clarity to permit it to do its job. Even giving the Commission's opinion the most sympathetic reading that we find possible, we cannot discover in it an expressed reason for permitting the railroads to reduce their services without showing that the rates they propose to maintain are reasonable rates for the service they intend to provide.
III
32
After holding that the matter must be remanded to the Interstate Commerce Commission for further proceedings, the District Court ordered, 'The proposed charges are suspended and shall be ineffective until and unless otherwise ordered by this Court.' No reasons for such an order were given; the District Court did not, for example, specify the nature of the harm to the shippers that would, presumably, injure them irreparably. Nor did it explain the basis for its apparent belief that Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), was distinguishable.
33
It was error to enter such an injunction. The District Court clearly had power to suspend the operation of the Commission's order pending the final determination of the shippers' suit. That power is given in terms by 28 U.S.C. § 2324: 'The pendency of an action to enjoin, set aside, annual, or suspend any order of the Interstate Commerce Commission shall not of itself stay or suspend the operation of the order, but the court may restrain or suspend, in whole or in part, the operation of the order pending the final hearing and determination of the action.' But an injunction forbidding the railroads to implement a proposed change in rates is not, strictly speaking, an injunction suspending the Commission's order. In this case, for example, the Commission's order stated that 'the proposed new or increased charges for in-transit inspection of grain at various points in the United States are just and reasonable . . ..' 340 I.C.C., at 74. The only consequence of suspending that order is that the railroads may not rely, in some subsequent proceeding, on a Commission finding that the proposed rates were just and reasonable. In an action for reparations, for example, the railroads could not gain any benefit from the purported Commission approval of the increases.13 See Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348 (1932). See also 49 U.S.C. §§ 1(5), 10(1). The Commission's order also provided that the proceeding be discontinued, and suspension of the order requires the Commission to reopen its inquiry.
34
Carriers may put into effect any rate that the Commission has not declared unreasonable. 49 U.S.C. §§ 6(3), 15(1). Suspension of the Commission's order thus does not in itself preclude the carriers from implementing a new rate. The power conferred on the District Court by § 2324 does not in itself include a power to enjoin the railroads from implementing a proposed new charge. Rather, that power must be considered as at best ancillary to the general equitable powers of the reviewing court, and protective of its jurisdiction. See Arrow Transportation Co. v. Southern R. Co., supra, 372 U.S. at 671 n. 22, 83 S.Ct. at 991; Order of Ry. Conductors v. Pitney, 326 U.S. 561, 567, 66 S.Ct. 322, 325, 90 L.Ed. 318 (1946). Cf. Pittsburgh & W. Va. R. Co. v. United States, 281 U.S. 479, 488, 50 S.Ct. 378, 381, 74 L.Ed. 980 (1930); 28 U.S.C. § 1651(a). As this Court noted in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942), such a power must be inferred from Congress' decision to permit judicial review of the agency action. 'If the administrative agency has committed errors of law for the correction of which the legislature has provided appropriate resort to the courts, such judicial review would be an idle ceremony if the situation were irreparably changed before the correction could be made.' Id., at 10, 62 S.Ct. at 880.
35
Yet it would be surprising if that power could be exercised to the extent that it might substantially interfere with the function of the administrative agency. 'The existence of power in a reviewing court to stay the enforcement of an administrative order does not mean, of course, that its exercise should be without regard to the division of function which the legislature has made between the administrative body and the court of review.' Ibid. Proper regard for that division of function requires that we hold erroneous the District Court's decision to enjoin not only the Commission's order finding the proposed rates just and reasonable but also the implementation of those rates.
36
In Arrow Transportation Co. v. Southern R. Co., supra, this Court considered a similar problem. The Interstate Commerce Commission has the power to suspend proposed rate changes for seven months, while it proceeds to consider the reasonableness of the proposal. 'If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate . . . shall go into effect at the end of such period.' 49 U.S.C. § 15(7). In Arrow, parties affected by proposed reductions sought an injunction against the implementation of the proposed reductions when, at the end of the suspension period, the railroads announced that they intended to put the new rates into effect. The Commission had not determined that those rates were reasonable. The Court concluded that Congress, by giving the Commission the power to suspend rates, had intended to preclude the courts from doing the same.
37
Here, of course, the Commission's proceeding has been concluded, or at least so the Commission thought when it entered its order. The terms of § 15(7) do not specifically govern this situation. Nor is there any other provision in the relevant statutes depriving federal courts of their general equitable power to preserve the status quo to avoid irreparable harm pending review. Yet many of the considerations, relied on in Arrow and influencing this Court's definition of the proper relation between the courts and the Interstate Commerce Commission, must be drawn on to delineate guidelines for the exercise of the ancillary power, in a proceeding to review a Commission order, to enjoin a rate increase pending final determination of the suit.
38
The most important of these considerations is the group of policies that are encompassed by the term 'primary jurisdiction.' National transportation policy reflects many often-competing interests. Congress has established an administrative agency that has developed a close understanding of the various interests and that may draw upon its experience to illuminate, for the courts, the play of those interests in a particular case. Cf. Great Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943 (1922); United States v. Western Pacific R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). Ordinarily, then, a court should refrain from expressing a preliminary view on what national transportation policy permits, before the ICC expresses its view. But when a court issues an injunction pending final determination, one important element of its judgment is its estimate of the probability of ultimate success on the merits by the party challenging the agency action. Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958). Depending on the type of error the reviewing court finds in the administrative proceedings, the issuance of an injunction pending further administrative action may indicate what the court believes is permitted by national transportation policy, prior to an expression by the Commission of its view. This is precisely what the doctrine of primary jurisdiction is designed to avoid. Cf. Order of Ry. Conductors v. Pitney, supra; Brotherhood of Locomotive Engineers v. M.—K.—T. R. Co., 363 U.S. 528, 533, 80 S.Ct. 1326, 1329, 4 L.Ed.2d 1379 (1960). The fact that issuing an injunction may undercut the policies served by the doctrine of primary jurisdiction is therefore an important element to be considered when a federal court contemplates such action.14
39
As we have indicated in Part II of this opinion, we require the agency to justify its departure from its prior decisions so that we may understand what policies it is pursuing. If a reviewing court cannot discern those policies, it may remand the case to the agency for clarification and further justification of the departure from precedent. But an injunction pending the completion of those proceedings would be warranted only if the reviewing court entertained substantial doubt about the consistency of the Commission's action with its mandate from Congress. Cf. Virginian R. Co. v. United States, 272 U.S. 658, 673, 47 S.Ct. 222, 228, 71 L.Ed. 463 (1926).15 When a case is remanded on the ground that the agency's policies are unclear, an injunction ordinarily interferes with the primary jurisdiction of the Commission.16 Cf. Arrow Transportation Co. v. Southern R. Co., 372 U.S., at 669—670, 83 S.Ct., at 990—991.
40
In addition, the reviewing court must consider whether irreparable harm will result if the injunction is not issued and the party seeking it prevails on the merits. Order of Conductors v. Pitney, supra. That too may interfere with the agency's primary jurisdiction. We deal here with a dispute between shippers and carriers. In giving the Interstate Commerce Commission power to suspend proposed rate increases, Congress allocated the benefit and harm of a suspension. For a period of up to seven months, the carriers may not collect the increases if the Commission suspends them. The income that they might have gained is lost to them forever. Congress did provide protection to shippers for the period after the rates go into effect. The Commission may require the carriers to keep detailed accounts of the income received as a result of the increase. If the increase is ultimately found unjustified, the Commission may order a refund. 49 U.S.C. § 15(7). Even if the Commission does not do so in a suspension proceeding, the shippers may recover reparations under some circumstances. 49 U.S.C. §§ 8, 9. Thus, it is often quite unlikely that shippers will be irreparably damaged by the implementation of a rate increase.17
41
There are, however, public interests at stake in this litigation, as well as the private interests of the shippers and carriers. The Commission found that inspection of grain is required for the orderly marketing of grain. 339 I.C.C., at 385. Inspections will thus continue to be made. But now, if the Commission ultimately approves the new charges, there will be a separate charge for them, either by the railroads under the new charges, or by someone else engaged in marketing grain. This extra cost must be absorbed by someone, perhaps by farmers, perhaps by the ultimate consumers of grain. See Tr. 1299. The impact of rates on various groups in this country is surely relevant to deciding that the rates are consistent with national transportation policy.
42
But the public interest is not a simple fact, easily determined by courts. Here, for example, the interests of farmers and consumers of grain must be balanced against the interests of producers and consumers of all sorts of other goods shipped by rail. For the premise of the Commission's action in this case was that separate charges for in-transit inspections would alleviate the freight-car shortage. The shortage itself increases the cost of transporting a wide range of products by rail. Thus, the decision that must be made is whether the car shortage has a more significant impact on the national economy than does increased cost for grain products. Congress has committed that decision to the Interstate Commerce Commission in the first instance, and the extent of harm to farmers and consumers of grain cannot be estimated without interfering with the primary jurisdiction of the Commission.18
43
As this discussion shows, it is very likely that a decision to enjoin rates pending reconsideration by the Commission in order to clarify its policies will imply some view by the District Court about decisions committed to the Commission by the doctrine of primary jurisdiction. The District Court's power to enjoin rates, in order to protect its jurisdiction to review Commission orders, must therefore be exercised with great care and after full and detailed consideration of the problems set out above. It will not do to enter such an injunction in the off-hand manner of the District Court. Cf. Virginian R. Co. v. United States, 272 U.S. 658, 47 S.Ct. 222, 71 L.Ed. 463 (1926). Here the District Court could not consider the likelihood of success on the merits or where the public interest lies without infringing on decisions committed by Congress to the primary jurisdiction of the Interstate Commerce Commission, and the possibility of harm to the shippers was small. It was therefore improper to enter an injunction against the implementation of the proposed new charges.
44
Here the Commission ordered the railroads to maintain records of the amounts collected as a result of the new charge. It may be that this adequately protects the shippers from irreparable damage, in light of the availability of actions for reparations. The Commission may determine on remand that some further steps must be taken to protect the shippers. But in any event, it is clear that the District Court should not have entered the injunction it did. The action of the District Court is affirmed as to the remand to the Commission and is reversed as to the injunction suspending the proposed charges.
45
So ordered.
46
Action of District Court affirmed in part and reversed in part.
47
Mr. Justice POWELL took no part in the consideration or decision of these cases.
48
Mr. Justice DOUGLAS, concurring in the affirmance of the remand to the Commission and dissenting from the reversal of the decree authorizing the injunction.
49
Though I concur in the affirmance of the remand to the Interstate Commerce Commission, I dissent from the reversal of the decree authorizing the injunction, since in my view the District Court was quite correct in issuing its injunction. Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52, is not relevant here, for the reason that 49 U.S.C. § 15(7) only purports to control the suspension of rates up until the time the Commission has rendered a decision. After that decision has been made, the reviewing court has, I believe, the power to enjoin the affected rates. The new charges which the Commission would impose would have an immediate impact upon the grain-marketing system. It would affect the volume of business of the grain merchants, it would affect the employment of grain inspectors, and it would result in lower prices being paid to the farmers. None of these incidences can be remedied under the existing statutory scheme, because none of these interests is enabled to bring suit for a later rate refund. Hence, in my view, the grain trade and the farmers need this interim protection lest in inspection the marketing system suffer severe attrition during the period of remand. The deciding principle is that the District Court sits as a court of equity, United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211, and as a court of equity has, I believe, ample power to protect the grain market nationally which would otherwise be without remedy under the existing statutory regime.
50
Jurisdiction is granted the District Court 'to enforce, enjoin, set aside, annul or suspend' any order of the Interstate Commerce Commission. 28 U.S.C. § 1336(a). For years, the type of order here involved* was not reviewable. See Procter & Gamble Co. v. United States, 225 U.S. 282, 32 S.Ct. 761, 56 L.Ed. 1091. But that 'negative' order concept was abandoned in Rochester Tel. Corp. v. United States, 307 U.S. 125, 145, 59 S.Ct. 754, 764, 83 L.Ed. 1147. The provisions of 28 U.S.C. § 1336(a), are an explicit grant of power to provide injunctive relief. Under that Act the 'governing principle' is 'that it is the duty of a court of equity granting injunctive relief to do so upon conditions that will protect all including the public—whose interests the injunction may affect.' Inland Steel Co. v. United States, 306 U.S. 153, 157, 59 S.Ct. 415, 418, 83 L.Ed. 557. That power exists whether the Commission's authority over rates is challenged under 49 U.S.C. § 15(1) as being unjust or unreasonable or under 49 U.S.C. § 15(7) relating, as here, to 'a new individual or joint rate, fare, or charge.' In all cases the District Court by reason of 28 U.S.C. § 1336(a) sits as a court of equity.
51
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice REHNQUIST join, concurring in the reversal of the injunction and dissenting from the affirmance of the remand to the Commission.
52
I dissent because the District Court erred both in holding that the Commission had inadequately explained the basis for its judgment and in suspending the new in-transit inspection tariff beyond the time the statute permits new rates to be suspended without a finding that they are unjust and unreasonable.
53
As to the latter, 49 U.S.C. § 15(7) forbids the suspension of new freight rates for more than seven months without the requisite finding of unreasonableness by the Commission. Only the Commission may suspend in the first instance; and if the agency refuses to do so, the court is powerless itself to suspend. The Commission may postpone effectiveness of new rates for seven months, but if it does, the statute commands that, absent the appropriate order of the Commission within that period, 'the proposed change of rate . . . shall go into effect . . ..' To permit the District Court nevertheless to extend this period seems to me to be flatly contrary to the will of Congress. I therefore cannot agree that, although the District Court has no statutory power to do so, it nevertheless retains sufficient power to enjoin the rates as 'ancillary to the general equitable powers of the reviewing court, and protective of its jurisdiction.' Ante, at 819. As I see it, the District Court contravened the precepts of Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963).
54
As for the remand to the Commission, there is somewhat more to be said. The Commission found, and it is not questioned by the District Court or by the majority here, that in-transit inspection of grain is not an essential part of transportation service but only ancillary to it; that the premarketing inspection of grain, in transit or otherwise, is no longer required by federal law; that intransit inspection of grain has been the regular practice in Western territory, to some extent the practice in Southern territory, but not in Eastern territory; that the line-haul rates for grain in Western and Southern territories established by the railroads or prescribed by the Commission have provided one free in-transit inspection stop, but a separate charge for that service is the practice in Eastern territory;1 and that, because of recent developments in-transit inspection is no longer an essential service for the orderly marketing of grain in Western and Southern territories. Furthermore, the unquestioned finding of the Commission was that the principal motivation for imposing a separate charge for intransit grain inspection was not to increase railroad revenues through collection of the charge itself but to promote efficient utilization of freight cars by discouraging the practice of in-transit inspection which had proved extremely wasteful in terms of car utilization. The Commission finding, also undisturbed, was that the separately stated inspection fee would discourage the practice of in-transit inspection, would contribute to a more efficient utilization of freight cars, and hence help relieve the unquestioned grain-car shortage.
55
With these important preliminary findings and conclusions behind it, the Commission examined in detail the reasonableness of the separate charge being imposed for in-transit inspection of grain. Its conclusion was that the charge was reasonable, a judgment not overturned either here or in the District Court. Finally, the Commission noted that by the terms of the new tariff itself, separate in-transit inspection charges could not be collected where the combination of the new, separate charge and the existing line-haul rate exceeded the maximum reasonable level of grain rates established in Docket 17,000 pt. 7, Grain and Grain Products, 205 I.C.C. 301 (1934); 215 I.C.C. 83 (1936), as raised by subsequent general revenue increases. Docket 17,000, pt. 7, Rate Structure Investigation, was a major national effort, a comprehensive investigation of rates on agricultural products, and resulted, among other things, in the Commission's prescribing maximum reasonable freight rate levels for movements of grain. Since that time, there have been general rate increases for revenue purposes, in the course of which the rates on grain and their structure as required by the 1934 and 1936 determinations have been given special attention. See, for example, Increased Freight Rates, 1967, 332 I.C.C. 280, 300 (1968).
56
Under the new tariffs now filed, as I have said, if the applicable line-haul rate on the particular grain movement involved is at the maximum reasonable level theretofore prescribed by the Commission in previous proceedings, no separate in-transit inspection charge is imposed or allowable, nor may the combination of the new charge and the existing line-haul rate collected by the railroad exceed the maximum allowable rate as previously determined. This is the key to understanding that, in approving the separate inspection charge, the Commission did not ignore its longstanding rule that railroads may not impose separate charges for an ancillary service previously furnished under a line-haul rate unless both the reasonableness of the separate charge and the line-haul rate are scrutinized. Transit Charges, Southern Territory, 332 I.C.C. 664, 683—684 (1968), is, for example a relatively recent restatement of the rule.2 The Commission thought this rule not controlling here because, in the first place, the magnitude of the task of justifying each one of a countless number of line-haul grain rates would, as a practical matter, prohibit the imposition of a separate in-transit inspection charge and so frustrate the important nonrevenue goal of discouraging in-transit inspection and so improving car utilization.
57
But, more fundamentally, the Commission in any event deemed the rule satisfied; for here the reasonableness of the line-haul rate was sufficiently examined and ensured by proof that the new charge was itself reasonable and by prohibiting its collection if the total cost of the grain movement—its line-haul charge plus the separate inspection charge—exceeded the maximum reasonable rate theretofore prescribed by the Commission, that is, the maximum reasonable rate the Commission had theretofore prescribed for both the transportation service and the privilege of intransit inspection.
58
This approach seems straightforward and adequate. Keeping in mind that Docket 17,000, Part 7, as was customary in Western territory, prescribed rates for grain movements permitting one intransit inspection without extra charge, let us assume, for example, that the maximum rate prescribed by the Commission for a particular grain movement with in-transit inspection privileges was 120. Assume further what is the recurring situation in the case before us—that the railroad is charging less than it may, say 100, for the grain movement with that privilege. The railroad then publishes a tariff under which the line-haul rate of 100 no longer entitles the shipper to in-transit inspection, and a separate charge of 20 is imposed on those who want that service. The line-haul charge plus the separate in-transit inspection charge does not exceed what the Commission has heretofore ruled the railroad may collect for both the transportation and the inspection service. This calculus seems to me an adequate basis for concluding that the line-haul rate of 100 is itself within the zone of reasonableness. If a railroad may charge 120 for a grain movement with in-transit inspection provided, and the inspection stop is proved reasonably worth 20, why should there also be occasion for considering the reasonableness of 100 as a line-haul rate and so proving again what the Commission previously found that 120 is a reasonable charge for both services? The District Court thought the Commission ignored Secretary of Agriculture v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954), but I read that case far differently. There the Court, although being of the opinion that the Commission had not adequately explained why it was approving a separate charge without examining the legality of the line-haul rate, was careful to point out that the Commission was not precluded 'from following a procedure fairly adapted to the unique circumstances of this case'; nor did the Court question 'the Commission's power, under appropriate findings, to approve such unloading charges without pursuing one of these courses. In dealing with technical and complex matters like these, the Commission must necessarily have wide discretion in formulating appropriate solutions.' Id., at 652, 74 S.Ct. at 831. That case does not stand for the rule that a separate charge for an ancillary service may in no circumstances be permitted without new proof in that proceeding of the reasonableness of the line-haul rate.
59
The prior decisions of the Commission relied upon by the District Court establish clearly enough that the Commission must be satisfied with the reasonableness of the line-haul rate as an exaction for the remaining services before approving a separate charge for a service previously covered by the line-haul rate. Transit Charges, Southern Territory, supra; Terminal Charges at Pacific Coast Ports, 255 I.C.C. 673 (1943); Reconsignment Case No. 3, 53 I.C.C. 455 (1919); Loading of Less-Than-Carload Freight on Lighters in Norfolk, Va., Harbor, 91 I.C.C. 394 (1924). In these cases, the carriers simply failed to carry their burden of proof.
60
The District Court also cited for this proposition Grand Forks Chamber of Commerce v. Great Northern R. Co., 321 I.C.C. 356 (1963), but the Commission in that case, see id., at 360—362, did precisely what it has done in this one: it approved a separate in-transit inspection charge in the case of so-called Group 3 rates where the line-haul rate and the new charge together were less than so-called Group 1 rates prescribed in Grain and Grain Products, 205 I.C.C. 301 (1934); 215 I.C.C. 83 (1936). See also Public Service Comm'n of North Dakota v. Great Northern R. Co., 340 I.C.C. 739 (1972); Alabama State Docks Dept. v. Alabama, T. & N.R. Co., 321 I.C.C. 347 (1963); Agsco Chemicals, Inc. v. Alabama G.S.R. Co., 314 I.C.C. 725 (1961).
61
Neither do I understand why the majority is comforted by the opinion in Cincinnati N.O. & T.P.R. Co. v. United States Civil Action No. 6992 (S.D.Ohio, Jan. 12, 1970), in which the District Court affirmed, but on very limited grounds (grounds that would save the cases before us now), the Commission's disallowance of a separate transit charge for cotton movements but disapproved the stringent standard by which the Commission required the railroads to prove the reasonableness of the resulting line-haul rate. The District Court restated the prevailing rubric:
62
'The question here is what should the carrier be paid for a service which it has been rendering, and has been charging for, and has been paid for (one knoweth not what) which it proposes to separate and charge separately for. Both the courts and the Commission have consistently held that what is a just and reasonable rate for the service to be separated and charged for separately cannot be determined by examining only the typical questions of cost, etc., with respect to the separate service. On the contrary, the typical questions must be directed to the overall or combined picture so that one may conclude (a) that the rate for the separated service, looked at by itself in the light of the applicable questions, is just and reasonable; and (b) that the remaining rate for the services, sans the separated service, is not rendered unjust or unreasonable.'
The District Court continued:
63
'Whether the examination is in terms of 'what portion the line-haul rate represented the rate for the service to be separated,' or whether the search in terminology is for the answer to this question: Does the new aggregate rate, composed of line-haul plus transit rates represent a just and reasonable rate for all of the services (the aggregate of the severed and the non-severed)—the principle is the same.' (Emphasis added.)
64
A few paragraphs later, the court repeated the same alternate approach. This Court affirmed the District Court summarily. 400 U.S. 932, 91 S.Ct. 235, 27 L.Ed.2d 240 (1970). In the litigation now before us the total of the line-haul rate and the separate in-transit charge will in no case exceed what the Commission has heretofore found to be a reasonable charge for the aggregate service.
65
The maximum permissible rates for grain movements with in-transit inspection privileges were established some years ago, it is true, but they have been subject to repeated examination upon the occasions of general rate increases and, as this litigation itself shows, they are far from dead letters from the stand-point of either the railroads or the Commission. They remain the foundation of the Commission's opinion as to what just and reasonable grain rates are with in-transit privileges furnished by the railroad. I see no reason for now disagreeing with the Commission's judgment that the reasonableness of a line-haul rate lower than the maximum allowable has been sufficiently re-examined to permit imposition of a separate in-transit inspection charge, in itself found reasonable, when it is also determined that the existing line-haul rate and the new inspection charge together total less than the maximum Commission-prescribed rate for the two services combined. Surely this presents an inadequate occasion or context in which to frustrate what the Commission found to be a promising effort to solve a critical problem—the freight car shortage—by seeking to deter a wasteful practice not indispensable or even, in the Commission's view, unusually important to the orderly marketing of grain under modern conditions.
66
For these reasons, I respectfully dissent.
1
We have previously stayed the judgment of the District Court on condition that appellant railroads keep accounts of the amounts received from the in-transit charges. 409 U.S. 801, 93 S.Ct. 24, 36 L.Ed.2d —- (1972). We hereby direct the District Court to enter an order, consistent with this opinion, regarding the disposition of those amounts.
2
Such a charge is already made for the first in-transit inspection in the eastern territory. The proposed rates would increase that charge from $7.42 to $14.33. There would be a slight increase in the currently effective charge for the second and subsequent inspections. A large majority of the number of in-transit inspections occur in the western territory, where most of this country's grain is produced and where no separate charge is now made for the first in-transit inspection. Only a few cars are stopped for more than one inspection. Thus, for convenience of exposition, we treat this litigation as involving a proposal for a separate new charge; that is the real effect of the railroads' proposal in most instances.
3
The report of Division 2 of the Commission is found at 339 I.C.C. 364 (1971). The entire Commission 'adopt(ed) and affirm(ed) the findings and conclusions reached' in that report. 340 I.C.C. 69, 70 (1971).
4
For a description of the car-utilization problem, see United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 745 746, 92 S.Ct. 1941, 1944—1945, 32 L.Ed.2d 453 (1972).
5
See also 5 U.S.C.A. § 706(2).
6
In Transit Charges, Southern Territory, 332 I.C.C. 664, 683 (1968), the Commission stated the rule in these terms: '(T)he proposed charge may not be divorced from the line-haul rate, for both, insofar as transit is concerned, are inextricably interdependent. (Citations omitted.) While it would seem preferable to have the various elements entering into, and constituting, the whole analyzed, if indeed they could be separated, the entire transportation service rendered, including transit, must be examined in relation to the total rates and charges assessed.' The District Court reviewing that case rephrased the rule: 'The question here is what should the carrier be paid for a service which it has been rendering, and has been charging for, and has been paid for (one knoweth not what) which it proposes to separate and charge separately for. Both the courts and the Commission have consistently held that what is a just and reasonable rate for the service to be separated and charged for separately cannot be determined by examining only the typical questions of cost, etc., with respect to the separate service. On the contrary, the typical questions must be directed to the overall or combined picture so that one may conclude (a) that the rate for the separated service, looked at by itself in the light of the applicable questions, is just and reasonable; and (b) that the remaining rate for the services, sans the separated service, is not rendered unjust or unreasonable.' Cincinnati, N.O. & T.P.R. Co. v. United States Civil Action No. 6992 (S.D.Ohio, Jan. 12, 1970), aff'd, 400 U.S. 932, 91 S.Ct. 235, 27 L.Ed.2d 240 (1970). The District Court continued, somewhat more obscurely: 'Whether the examination is in terms of 'what portion of the line-haul rate represented the rate for the service to be separated,' or whether the search in terminology is for the answer to this question: Does the new aggregate rate, composed of a line-haul plus transit rates represent a just and reasonable rate for all of the services (the aggregate of the severed and the nonsevered)—the principle is the same.' And in Secretary of Agriculture v. United States, 347 U.S. 645, 654, 74 S.Ct. 826, 832, 98 L.Ed. 1015 (1954), this Court referred to it as 'the prevailing rule . . . that a service necessarily encompassed by the line-haul rate cannot be separately restated without examining the sufficiency of the line-haul rate to cover it.'
7
Currently effective rates are, on almost every route, lower than the rates permitted by the general maximum. See 340 I.C.C., at 71. Often this results from competition from other modes of transport which forces rates below what the railroads would like to charge.
8
Mr. Justice WHITE argues that, if a rate at the level of the general maximum is reasonable, and if the separate charge is reasonable, then surely a line-haul rate that is equal to the general maximum less the separate charge is reasonable. The flaw in his argument is that the Commission has never determined that rates at the level of the current general maximum are reasonable. That is, in the example suggested by Mr. Justice WHITE, the Commission has not determined what he says that it has 'previously found—that 120 is a reasonable charge for both services.' Without this premise, his argument fails.
9
If the Commission finds that the proposed rates are unreasonable, rather than that the railroads failed to carry their burden of proof, that finding might be conclusive in a subsequent proceeding. Cf. Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 258, 33 S.Ct. 916, 921, 57 L.Ed. 1472 (1913); I.C.C. v. Atlantic Coast Line R. Co., 383 U.S. 576, 590—594, 86 S.Ct. 1000, 1009—1012, 16 L.Ed.2d 109 (1966). This does not, however, affect the burden placed on carriers in the suspension proceedings.
10
The argument urged in support of the Commission's order is, in essence, that the separate charge approved by it was just like a general rate increase because of the breadth of its application. However, the Commission did not use the language characteristic of general increase proceedings. See, e.g., Ex parte 259, Increased Freight Rates, 1969, 332 I.C.C. 714, 715, 792 (1968). And, if this were just like a general rate increase, serious questions would arise about the jurisdiction of the District Court to review the Commission's order. See Atlantic City Electric Co. v. United States, 306 F.Supp. 338 (S.D.N.Y.1969); Alabama Power Co. v. United States, 316 F.Supp. 337 (D.C.D.C.1969), both aff'd by an equally divided court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970). Yet, although the parties have cited those cases to us, see Brief for the Interstate Commerce Commission 35; Brief for the Secretary of Agriculture18; Brief for Wichita Board of Trade 32, they have not contended at any length that the District Court lacked jurisdiction over this litigation. This suggests that the parties, including the Commission, do not interpret the Commission's opinion as resting on the similarity between these cases and general rate increase cases.
11
The Commission may have intended to leave this question for later proceedings. But this course runs into the difficulties noted above, supra, pp. 813—814.
12
On remand, the Commission might explain more fully the course it followed, or it might adopt a different course, for example, by requiring the carriers to demonstrate the reasonableness of the line-haul rates for services provided without an intransit inspection on a representative sample of routes. Most of the prior cases in which the Commission invoked the rule involved quite limited problems, often confined to a single route. But cf. Transit Charges, Southern Territory, 332 I.C.C. 664 (1968). If the Commission then explained why that procedure was responsive to the needs of the particular case, the prerequisites of judicial review would be satisfied.
13
The Commission may, of course, approve the rates on a theory similar to that discussed in Part II of this opinion, justifying its refusal to require a showing of reasonableness by the fact that that question would be open in subsequent proceedings. A suspen sion of the Commission order would then have almost no practical meaning.
14
Locomotive Engineers v. M.-K.-T. R. Co., 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed.2d 1379 (1960), shows that not all judicial injunctions infringe on an agency's primary jurisdiction. There the Court noted that the District Court's 'examination of the nature of the dispute is so unlike that which the (agency) will make of the merits of the same dispute, and is for such a dissimilar purpose, that it could not interfere with the later consideration of the grievance by the (agency).' Id., at 534, 80 S.Ct. at 1330. Here, in contrast, the District Court must consider whether the Commission is likely to find reasons for its action that are consistent with congressional policy. Not only is such a question exceedingly complex, it is also just what the Commission itself must decide before approving the proposed new charges.
15
In some cases, the reviewing court might explicitly refrain from considering the likelihood of success on the merits in deciding whether or not to issue an injunction. Then, if the possibility of irreparable damage to the party seeking review or to other interests is great enough, an injunction may perhaps be justified. See, e.g., Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205—1206 (CA2 1970); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (CA2 1969). Here, however, the District Court did not clearly refuse to assess the likelihood of ultimate success and, as indicated infra, the possibility of irreparable harm to the shippers is quite small.
16
This analysis turns on the fact that the type of error in these cases involves precisely a failure by the Commission to do the job committed to it, the proper performance of which is a predicate of the doctrine of primary jurisdiction. Where the error might be considered purely procedural, for example where the Commission failed to consider relevant evidence on grounds the reviewing court finds inadequate, the issuance of an injunction might not interfere with
the agency's primary jurisdiction quite so severely. Yet even there, before issuing an injunction the reviewing court must consider whether the Commission would have come to a different conclusion had it considered the evidence. And that may sometimes impinge on the sphere committed to the Commission for initial decision.
This Court has distinguished between blatantly lawless action and mere procedural error in cases raising similar questions of the power of courts to intervene in administrative action. See Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Fein v. Selective Service System, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972).
Different considerations would come into play, too, when the reviewing court finds some failure by the carriers in the suspension proceeding, rather than a failure by the Commission to do its task. A reviewing court might find, for example, that the Commission's conclusion that the carriers had carried the burden of proof to justify the increase was not supported by substantial evidence. Although phrased as a finding of administrative error, this is fact relates to the presentation of evidence by the carriers.
Finally, this litigation involves only claims under the Interstate Commerce Act. Subsequent legislation might affect the relation between court and agency and so the propriety of injunctive relief. Whether it does so must be determined by examining that legislation.
17
The interests of other carriers who might object to a proposed rate change are some-what different. They are not damaged, as the shippers are, by out-of-pocket expenditures, and refunds or reparations do not remedy the loss of business that they might suffer. This factor would thus have less weight in suits by such carriers, although the problem of interfering with primary jurisdiction must still be considered.
18
Although they are far less substantial than the problems of primary jurisdiction and irreparable injury, procedural problems might also arise when a district court considers a request for an injunction like that issued here. Review of Commission orders is by a three-judge district court. The United States is the defendant. 28 U.S.C. §§ 2321, 2322. Railroads which appeared before the Commission have a right to intervene, 28 U.S.C. § 2323, but they need not do so. If a railroad chose not to intervene, the district court could not enjoin it from implementing the new charge. The plaintiffs could, of course, compel an unwilling railroad to appear. Fed.Rule Civ.Proc., 19(a). But, even though service of process is nation-wide, 28 U.S.C. § 2321, some plaintiffs might find it difficult to serve every railroad that did not appear willingly. The presence before the reviewing court of all interested parties, or only some of them, is therefore relevant to the exercise of the court's discretion to enjoin a proposed rate increase. Like the other factors discussed in this opinion, this does not establish that the district court lacks power to enjoin the implementation of proposed rate increases after a final Commission order, but it is a factor to be considered in determining whether to exercise equitable discretion to issue such an injunction.
*
The order of Division 2 of the Commission provided that the proceeding 'be, and it is hereby, discontinued.' 339 I.C.C. 364, 401. The order of the Commission en banc affirming is in 340 I.C.C 69, 74.
1
The Commission noted:
'It is again emphasized that the major impact of the proposal under consideration will be on the movement of grain in the western district. Most inspections occur in this territory. There is presently effective a separate charge for this service in the East. A substantial increase in those charges will result, however, if the proposed charges are permitted to become effective. The number of in-transit inspections in the South is limited and take place chiefly at the ports on export grain tonnage. There is little, if any, opposition to establishment of the charges in southern territory. Practically all of the controversy is concerned with establishment of the separate charge for the first inspection of grain within the western district.' 339 I.C.C. 364, 385.
2
The Commission's order was sustained, on other grounds, in Cincinnati, N.O. & T.P.R. Co. v. United States (unreported) (SD Ohio 1970), aff'd 400 U.S. 932, 91 S.Ct. 235, 27 L.Ed.2d 240 (1970). The District Court sustained the Commission on the basis that the proposed increase in charges might well result in a substantial diversion of the considered traffic, with a diminution, rather than an increase, in revenues. In the present case, the Commission noted: 'Similar conclusions are not warranted here.'
| 78
|
412 U.S. 546
93 S.Ct. 2303
37 L.Ed.2d 163
Donald GOLDSTEIN et al., Petitioners,v.State of CALIFORNIA.
No. 71—1192.
Argued Dec. 13, 1972.
Decided June 18, 1973.
Syllabus
Petitioners, convicted for committing acts of 'record piracy' or 'tape piracy' in 1970—1971, challenge the California statute proscribing such practices, as violative of the 'Copyright Clause,' Art. I, § 8, cl. 8, of the Constitution, and the federal statutes enacted thereunder. The state appellate court upheld the validity of the statute. Held:
1. Article I, § 8, cl. 8, does not expressly or by inference vest all power to grant copyright protection exclusively in the Federal Government. Pp. 552—561.
(a) Although the objective of the Copyright Clause was to facilitate the granting of rights national in scope, it does not indicate that all 'Writings' are of national interest or that protective state legislation is, in all cases, unnecessary or precluded. Pp. 555—558.
(b) No substantially prejudicial interstate conflicts result where some States grant copyright protection within their own jurisdictions while other States do not. Pp. 558—559.
(c) Conflicts will not necessarily arise between state enactments and congressional policy when States grant copyright protection. P. 559.
(d) Unless Congress determines that the national interest requires federal protection or freedom from restraint as to a particular category of 'Writings,' state protection of that category is not precluded. P. 559.
(e) The durational limitation imposed by the Copyright Clause on Congress does not invalidate state laws, like the one here, that have no such limitation. Pp. 560—561.
2. The California statute does not violate the Supremacy Clause by conflicting with federal copyright law. Pp. 561—570.
(a) Congress did not, in passing the Copyright Act of 1909, determine that recordings, as original writings, were unworthy of all copyright protection. Pp. 563—566.
(b) Nor did Congress in 17 U.S.C. § 4, which provides that 'the works for which copyrights may be secured under this Act shall include all writings of an author,' or in § 5, pre-empt state control over all works to which the term 'writings' might apply. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661; Compco Corp. v. Day-Brite Lighting, 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669, distinguished. Pp. 567—569.
3. Although in 1971, the federal copyright statutes were amended to allow federal protection of recordings, such statutory protection was not intended to alter the legal relationships governing recordings 'fixed' prior to February 15, 1972. Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, California remains free to proscribe acts of record or tape piracy such as those involved here. Pp. 570—571.
Affirmed.
Arthur Leeds, Los Angeles, Cal., for petitioners.
David M. Schacter, Los Angeles, Cal., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to review petitioners' conviction under a California statute making it a criminal offense to 'pirate' recordings produced by others.
2
In 1971, an information was filed by the State of California, charging petitioners in 140 counts with violating § 653h of the California Penal Code. The information charged that, between April 1970 and March 1971, petitioners had copied several musical performances from commercially sold recordings without the permission of the owner of the master record or tape.1 Petitioners moved to dismiss the complaint on the grounds that § 653h was in conflict with Art. I, § 8, cl. 8, of the Constitution,2 the 'Copyright Clause,' and the federal statutes enacted thereunder. Upon denial of their motion, petitioners entered pleas of nolo contendere to 10 of the 140 counts; the remaining counts were dismissed. On appeal, the Appellate Department of the California Superior Court sustained the validity of the statute. After exhausting other state appellate remedies, petitioners sought review in this Court.
3
* Petitioners were engaged in what has commonly been called 'record piracy' or 'tape piracy'—the unauthorized duplication of recordings of performances by major musical artists.3 Petitioners would purchase from a retail distributor a single tape or phonograph recording of the popular performances they wished to duplicate. The original recordings were produced and marketed by recording companies with which petitioners had no contractual relationship. At petitioners' plant, the recording was reproduced on blank tapes, which could in turn be used to replay the music on a tape player. The tape was then wound on a cartridge. A label was attached, stating the title of the recorded performance—the same title as had appeared on the original recording, and the name of the performing artists.4 After final packaging, the tapes were distributed to retail outlets for sale to the public, in competition with those petitioners had copied.
4
Petitioners made no payments to the artists whose performances they reproduced and sold, or to the various trust funds established for their benefit; no payments were made to the producer, technicians, or other staff personnel responsible for producing the original recording and paying the large expenses incurred in production.5 No payments were made for the use of the artists' names or the album title.
5
The challenged California statute forbids petitioners to transfer any performance fixed on a tape or record onto other records or tapes with the intention of selling the duplicates, unless they have first received permission from those who, under state law, are the owners of the master recording. Although the protection afforded to each master recording is substantial, lasting for an unlimited time, the scope of the proscribed activities is narrow. No limitation is placed on the use of the music, lyrics, or arrangement employed in making the master recording. Petitioners are not precluded from hiring their own musicians and artists and recording an exact imitation of the performance embodied on the master recording. Petitioners are even free to hire the same artists who made the initial recording inorder to duplicate the performance. In essence, the statute thus provides copyright protection solely for the specific expressions which compose the master record or tape.
6
Petitioners' attack on the constitutionality of § 653h has many facets. First, they contend that the statute establishes a state copyright of unlimited duration, and thus conflicts with Art. I, § 8, cl. 8, of the Constitution. Second, petitioners claim that the state statute interferes with the implementation of federal policies inherent in the federal copyright statutes. 17 U.S.C. § 1 et seq. According to petitioners, it was the intention of Congress, as interpreted by this Court in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), to establish a uniform law throughout the United States to protect original writings. As part of the federal scheme, it is urged that Congress intended to allow individuals to copy any work which was not protected by a federal copyright. Since § 653h effectively prohibits the copying of works which are not entitled to federal protection, petitioners contend that it conflicts directly with congressional policy and must fall under the Supremacy Clause of the Constitution. Finally, petitioners argue that 17 U.S.C. § 2, which allows States to protect unpublished writings,6 does not authorize the challenged state provision; since the records which petitioners copied had previously been released to the public, petitioners contend that they had, under federal law, been published.
7
We note at the outset that the federal copyright statutes to which petitioners refer were amended by Congress while their case was pending in the state courts. In 1971, Pub.L. 92—140, 85 Stat. 391, 17 U.S.C. §§ 1(f), 5(n), 19, 20, 26, 101(e), was passed to allow federal copyright protection of recordings. However, § 3 of the amendment specifically provides that such protection is to be available only to sound recordings 'fixed, published, and copyrighted' on and after February 15, 1972, and before January 1, 1975, and that nothing in Title 17, as amended is to 'be applied retroactively or (to) be construed as affecting in any way any rights with respect to sound recordings fixed before' February 15, 1972. The recordings which petitioners copied were all 'fixed' prior to February 15, 1972. Since, according to the language of § of the amendment, Congress did not intend to alter the legal relationships which govern these recordings, the amendments have no application in petitioners' case.7
II
8
Petitioners' first argument rests on the premise that the state statute under which they were convicted lies beyond the powers which the States reserved in our federal system. If this is correct, petitioners must prevail, since the States cannot exercise a sovereign power which, under the Constitution, they have relinquished to the Federal Government for its exclusive exercise.
9
* The principles which the Court has followed in construing state power were stated by Alexander Hamilton in Number 32 of The Federalist:
10
'An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the (Constitutional) convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.'8
11
The first two instances mentioned present no barrier to a State's enactment of copyright statutes. The clause of the Constitution granting to Congress the power to issue copyrights does not provide that such power shall vest exclusively in the Federal Government. Nor does the Constitution expressly provide that such power shall not be exercised by the States.
12
In applying the third phase of the test, we must examine the manner in which the power to grant copyrights may operate in our federal system. The objectives of our inquiry were recognized in Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1852), when, in determining whether the power granted to Congress to regulate commerce9 was 'compatible with the existence of a similar power in the States,' the Court noted:
13
'Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.' 12 How., Id., at 319.
14
The Court's determination that Congress alone may legislate over matters which are necessarily national in import reflects the basic principle of federalism. Mr. Chief Justice Marshall said,
15
'The genius and character of the (federal) government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.' Gibbons v. Ogden, 9 Wheat. 1, 195, 6 L.Ed. 23 (1824).
16
The question whether exclusive federal power must be inferred is not a simple one, for the powers recognized in the Constitution are broad and the nature of their application varied. The warning sounded by the Court in Cooley may equally be applicable to the Copyright Clause:
17
'Either absolutely to affirm, or deny that the nature of (the federal power over commerce) requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable but to a part.' 12 How. at 319.
18
We must also be careful to distinguish those situations in which the concurrent exercise of a power by the Federal Government and the States or by the States alone may possibly lead to conflicts and those situations where conflicts will necessarily arise. 'It is not . . . a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of (state) sovereignty.' The Federalist No. 32, p. 243 (B. Wright ed. 1961).
19
Article I, § 8, cl. 8, of the Constitution gives to Congress the power—
20
'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries . . ..'
21
The clause thus describes both the objective which Congress may seek and the means to achieve it. The objective is to promote the progress of science and the arts. As employed, the terms 'to promote' are synonymous with the words 'to stimulate,' 'to encourage,' or 'to induce.'10 To accomplish its purpose, Congress may grant to authors the exclusive right to the fruits of their respective works. An author who possesses an unlimited copyright may preclude others from copying his creation for commercial purposes without permission. In other words, to encourage people to devote themselves to intellectual and artistic creation, Congress may guarantee to authors and inventors a reward in the form of control over the sale or commercial use of copies of their works.
22
The objective of the Copyright Clause was clearly to facilitate the granting of rights national in scope. While the debates on the clause at the Constitutional Convention were extremely limited, its purpose was described by James Madison in the Federalist:
23
'The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.'11
24
The difficulty noted by Madison relates to the burden placed on an author or inventor who wishes to achieve protection in all States when no federal system of protection is available. To do so, a separate application is required to each state government; the right which in turn may be granted has effect only within the granting State's borders.12 The national system which Madison supported eliminates the need for multiple applications and the expense and difficulty involved. In effect, it allows Congress to provide a reward greater in scope than any particular State may grant to promote progress in those fields which Congress determines are worthy of national action.
25
Although the Copyright Clause thus recognizes the potential benefits of a national system, it does not indicate that all writings are of national interest or that state legislation is, in all cases, unnecessary or precluded. The patents granted by the States in the 18th century show, to the contrary, a willingness on the part of the States to promote those portions of science and the arts which were of local importance.13 Whatever the diversity of people's backgrounds, origins, and interests, and whatever the variety of business and industry in the 13 Colonies, the range of diversity is obviously far greater today in a country of 210 million people in 50 States. In view of that enormous diversity, it is unlikely that all citizens in all parts of the country place the same importance on works relating to all subjects. Since the subject matter to which the Copyright Clause is addressed may thus be of purely local importance and not worthy of national attention or protection, we cannot discern such an unyielding national interest as to require an inference that state power to grant copyrights has been relinquished to exclusive federal control.
26
The question to which we next turn is whether, in actual operation, the exercise of the power to grant copyrights by some States will prejudice the interests of other States. As we have noted, a copyright granted by a particular State has effect only within its boundaries. If one State grants such protection, the interests of States which do not are not prejudiced since their citizens remain free to copy within their borders those works which may be protected elsewhere. The interests of a State which grants copyright protection may, however, be adversely affected by other States that do not; individuals who wish to purchase a copy of a work protected in their own State will be able to buy unauthorized copies in other States where no protection exists. However, this conflict is neither so inevitable nor so severe as to compel the conclusion, that state power has been relinquished to the exclusive jurisdiction of the Congress. Obviously when some States do not grant copyright protection—and most do not—that circumstance reduces the economic value of a state copyright, but it will hardly render the copyright worthless. The situation is no different from that which may arise in regard to other state monopolies, such as a state lottery, or a food concession in a limited enclosure like a state park; in each case, citizens may escape the effect of one State's monopoly by making purchases in another area or another State. Similarly, in the case of state copyrights, except as to individuals willing to travel across state lines in order to purchase records or other writings protected in their own State, each State's copyrights will still serve to induce new artistic creations within that State—the very objective of the grant of protection. We do not see here the type of prejudicial conflicts which would arise, for example, if each State exercised a sovereign power to impose imposts and tariffs;14 nor can we discern a need for uniformity such as that which may apply to the regulation of interstate shipments.15
27
Similarly, it is difficult to see how the concurrent exercise of the power to grant copyrights by Congress and the States will necessarily and inevitably lead to difficulty. At any time Congress determines that a particular category of "writing" is worthy of national protection and the incidental expenses of federal administration, federal copyright protection may be authorized. Where the need for free and unrestricted distribution of a writing is thought to be required by the national interest, the Copyright Clause and the Commerce Clause would allow Congress to eschew all protection. In such cases, a conflict would develop if a State attempted to protect that which Congress intended to be free from restraint or to free that which Congress had protected. However, where Congress determines that neither federal protection nor freedom from restraint is required by the national interest, it is at liberty to stay its hand entirely.16 Since state protection would not then conflict with federal action, total relinquishment of the States' power to grant copyright protection cannot be inferred.
28
As we have seen, the language of the Constitution neither explicitly precludes the States from granting copyrights nor grants such authority exclusively to the Federal Government. The subject matter to which the Copyright Clause is addressed may at times be of purely local concern. No conflict will necessarily arise from a lack of uniform state regulation, nor will the interest of one State be significantly prejudiced by the actions of another. No reason exists why Congress must take affirmative action either to authorize protection of all categories of writings or to free them from all restraint. We therefor conclude that, under the Constitution, the States have not relinquished all power to grant to authors 'the exclusive Right to their respective Writings.'
B
29
Petitioners base an additional argument on the language of the Constitution. The California statute forbids individuals to appropriate recordings at any time after release. From this, petitioners argue that the State has created a copyright of unlimited duration, in violation of that portion of Art. I, § 8, cl. 8, which provides that copyrights may only be granted 'for limited Times.' Read literally, the text of Art. I does not support petitioners' position. Section 8 enumerates those powers which have been granted to Congress; Whatever limitations have been appended to such powers can only be understood as a limit on congressional, and not state, action. Moreover, it is not clear that the dangers to which this limitation was addressed apply with equal force to both the Federal Government and the States. When Congress grants an exclusive right or monopoly, its effects are pervasive; no citizen or State may escape its reach. As we have noted, however, the exclusive right granted by a State is confined to its borders. Consequently, even when the right is unlimited in duration, any tendency to inhibit further progress in science or the arts is narrowly circumscribed. The challenged statute cannot be voided for lack of a durational limitation.
III
30
Our conclusion that California did not surrender its power to issue copyrights does not end the inquiry. We must proceed to determine whether the challenged state statute is void under the Supremacy Clause. No simple formula can capture the complexities of this determination; the conflicts which may develop between state and federal action are as varied as the fields to which congressional action may apply. 'Our primary function is to determine whether, under the circumstances of this particular case, (the state) law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S., 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). We turn, then, to federal copyright law to determine what objectives Congress intended to fulfill.
31
By Art. I, § 8, cl. 8, of the Constitution, the States granted to Congress the power to protect the 'Writings' of 'Authors.' These terms have not been construed in their narrow literal sense but, rather, with the reach necessary to reflect the broad scope of constitutional principles. While an 'author' may be viewed as an individual who writes an original composition, the term, in its constitutional sense, has been construed to mean an 'originator,' 'he to whom anything owes its origin.' Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S.Ct. 279, 281, 28 L.Ed. 349 (1884). Similarly, although the word 'writings' might be limited to script or printed material, it may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor. Ibid.; Trade-Mark Cases, 100 U.S. 82, 94, 25 L.Ed. 550 (1879). Thus, recordings of artistic performances may be within the reach of Clause 8.
32
While the area in which Congress many act is broad, the enabling provision of Clause 8 does not require that Congress act in regard to all categories of materials which meet the constitutional definitions. Rather, whether any specific category of 'Writings' is to be brought within the purview of the federal statutory scheme is left to the discretion of the Congress. The history of federal copyright statutes indicates that the congressional determination to consider specific classes of writings is dependent, not only on the character of the writing, but also on the commercial importance of the product to the national economy. As our technology has expanded the means available for creative activity and has provided economical means for reproducing manifestations of such activity, new areas of federal protection have been initiated.17
33
Petitioners contend that the actions taken by Congress in establishing federal copyright protection preclude the States from granting similar protection to recordings of musical performances. According to petitioners, Congress addressed the question of whether recordings of performances should be granted protection in 1909; Congress determined that any individual who was entitled to a copyright on an original musical composition should have the right to control to a limited extent the use of that composition on recordings, but that the record itself, and the performance which it was capable of reproducing were not worthy of such protection.18 In support of their claim, petitioners cite the House Report on the 1909 Act, which states:
34
'It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices.' H.R.Rep.No. 2222, 60th Cong., 2d Sess., 9 (1909).
35
To interpret accurately Congress' intended purpose in passing the 1909 Act and the meaning of the House Report petitioners cite, we must remember that our modern technology differs greatly from that which existed in 1909. The Act and the report should not be read as if they were written today, for to do so would inevitably distort their intended meaning; rather, we must read them against the background of 1909, in which they were written.
36
In 1831, Congress first extended federal copyright protection to original musical compositions. An individual who possessed such a copyright had the exclusive authority to sell copies of the musical score; individuals who purchased such a copy did so for the most part to play the composition at home on a piano or other instrument. Between 1831 and 1909, numerous machines were invented which allowed the composition to be reproduced mechanically. For example, one had only to insert a piano roll or disc with perforations in appropriate places into a player piano to achieve almost the same results which previously required someone capable of playing the instrument. The mounting sales of such devices detracted from the value of the copyright granted for the musical composition. Individuals who had use of a piano roll and an appropriate instrument had little, if any, need for a copy of the sheet music.19 The problems which arose eventually reached this Court in 1908 in the case of White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655. There, the Apollo Company had manufactured piano rolls capable of reproducing mechanically compositions covered by a copyright owned by appellant. Appellant contended that the piano rolls constituted 'copies' of the copyrighted composition and that their sale, without permission, constituted an infringement of the copyright. The Court held that piano rolls, as well as records, were not 'copies' of the copyrighted composition, in terms of the federal copyright statutes, but were merely component parts of a machine which executed the composition.20 Despite the fact that the piano rolls employed the creative work of the composer, all protection was denied.
37
It is against this background that Congress passed the 1909 statute. After pointedly waiting for the Court's decision in White-Smith Music Publishing Co.21 Congress determined that the copyright statutes should be amended to insure that composers of original musical works received adequate protection to encourage further artistic and creative effort. Henceforth, under § 1(e), records and piano rolls were to be considered as 'copies' of the original composition they were capable of reproducing, and could not be manufactured unless payment was made to the proprietor of the composition copyright. The section of the House Report cited by petitioners was intended only to establish the limits of the composer's right; composers were to have no control over the recordings themselves. Nowhere does the report indicate that Congress considered records as anything but a component part of a machine, capable of reproducing an original composition22 or that Congress intended records, as renderings of original artistic performance, to be free from state control.23
38
Petitioners' argument does not rest entirely on the belief that Congress intended specifically to exempt recordings of performances from state control. Assuming that no such intention may be found, they argue that Congress so occupied the field of copyright protection as to pre-empt all comparable state action. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). This assertion is based on the language of 17 U.S.C. §§ 4 and 5, and on this Court's opinions in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964).
39
Section 4 of the federal copyright laws provides:
40
'The works for which copyright may be secured under this title shall include all the writings of an author.' 17 U.S.C. § 4.
41
Section 5, which lists specific categories of protected works, adds:
42
'The above specifications shall not be held to limit the subject-matter of copyright as defined in section 4 of this title . . ..' 17 U.S.C. § 5.
43
Since § 4 employs the constitutional term 'writings,'24 it may be argued that Congress intended to exercise its authority over all works to which the constitutional provision might apply. However, in the more than 60 years which have elapsed since enactment of this provision, neither the Copyright Office, the courts, nor the Congress has so interpreted it. The Register of Copyrights, who is charged with administration of the statute, has consistently ruled that 'claims to exclusive rights in mechanical recordings . . . or in the performances they reproduce' are not entitled to protection under § 4. 37 CFR § 202.8(b) (1972).25 With one early exception,26 American courts have agreed with this interpretation;27 and in 1971, prior to passage of the statute which extended federal protection to recordings fixed on or after February 15, 1972, Congress acknowledged the validity of that interpretation. Both the House and Senate Reports on the proposed legislation recognized that recordings qualified as 'writings' within the meaning of the Constitution, but had not previously been protected under the federal copyright statute. H.R.Rep.No.92 487, pp. 2, 5 (1971); S.Rep.No.92—72, p. 4 (1971); U.S.Code Cong. & Admin.News p. 1566. In light of this consistent interpretation by the courts, the agency empowered to administer the copyright statutes, and Congress itself, we cannot agree that §§ 4 and 5 have the broad scope petitioners claim.
44
Sears and Compco, on which petitioners rely, do not support their position. In those cases, the question was whether a State could, under principles of a state unfair competition law, preclude the copying of mechanical configurations which did not possess the qualities required for the granting of a federal design or mechanical patent. The Court stated:
45
'(T)he patent system is one in which uniform federal standards are carefully used to promote invention while at the same time preserving free competition. Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extended the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter to the policy of Congress of granting patents only to true inventions, and then only for a limited time. Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objective of the federal patent laws.' Sears, Roebuck & Co. v. Stiffel Co., 376 U.S., at 230—231, 84 S.Ct., at 788 (footnotes omitted).
46
In regard to mechanical configurations, Congress had balanced the need to encourage innovation and originality of invention against the need to insure competition in the sale of identical or substantially identical products. The standards established for granting federal patent protection to machines thus indicated not only which articles in this particular category Congress wished to protect, but which configurations it wished to remain free. The application of state law in these cases to prevent the copying of articles which did not meet the requirements for federal protection disturbed the careful balance which Congress had drawn and thereby necessarily gave way under the Supremacy Clause of the Constitution. No comparable conflict between state law and federal law arises in the case of recordings of musical performances. In regard to this category of 'Writings,' Congress has drawn no balance; rather, it has left the area unattended, and no reason exists why the State should not be free to act.28
IV
47
More than 50 years ago, Mr. Justice Brandeis observed in dissent in International News Service v. Associated Press:
48
'The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.' 248 U.S. 215, 250, 39 S.Ct. 68, 76, 63 L.Ed. 211 (1918).
49
But there is no fixed, immutable line to tell us which 'human productions' are private property and which are so general as to become 'free as the air.' In earlier times, a performing artist's work was largely restricted to the stage; once performed, it remained 'recorded' only in the memory of those who had seen or heard it. Today, we can record that performance in precise detail and reproduce it again and again with utmost fidelity. The California statutory scheme evidences a legislative policy to prohibit 'tape piracy' and 'record piracy,' conduct that may adversely affect the continued production of new recordings, a large industry in California. Accordingly, the State has, by statute, given to recordings the attributes of property. No restraint has been placed on the use of an idea or concept; rather, petitioners and other individuals remain free to record the same compositions in precisely the same manner and with the same personnel as appeared on the original recording.
50
In sum, we have shown that § 653h does not conflict with the federal copyright statute enacted by Congress in 1909. Similarly, no conflict exists between the federal copyright statute passed in 1971 and the present application of § 653h, since California charged petitioners only with copying recordings fixed prior to February 15, 1972.29 Finally, we have concluded that our decisions in Sears and Compco, which we reaffirm today, have no application in the present case, since Congress has indicated neither that it wishes to protect, nor to free from protection, recordings of musical performances fixed prior to February 15, 1972.
51
We conclude that the State of California has exercised a power which it retained under the Constitution, and that the challenged statute, as applied in this case, does not intrude into an area which Congress has, up to now, preempted. Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, the California statute may be enforced against acts of piracy such as those which occurred in the present case.
52
Affirmed.
53
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN concur, dissenting.
54
Article I, § 8, cl. 8, of the Constitution provides:
55
'The Congress shall have Power . . . (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.'
56
Madison made a brief comment on this provision governing both patents and copyrights:
57
'The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.'1
58
We have been faithful to that admonition. In Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230—231, 84 S.Ct. 784, 788, we said:
59
'Thus the patent system is one in which uniform federal standards are carefully used to promote invention while at the same time preserving free competition. Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter to the policy of Congress of granting patents only to true inventions, and then only for a limited time. Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.'
60
An unpatentable article is 'in the public domain and may be made and sold by whoever chooses to do so.' Id., at 231, 84 S.Ct. at 789. In that case we did not allow a State to use its unfair competition law to prevent copying of an article which lacked such novelty that it could not be patented. In a companion case, Compco Corp. v. Day-Brite Lighting, 376 U.S. 234, 237, 84 S.Ct. 779, 782, 11 L.Ed.2d 669, where an unfair competition charge was made under state law, we made the same ruling, stating:
61
'Today we have held in Sears, Roebuck & Co. v. Stiffel Co., supra, that when an article is unprotected by a patent or a copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.'
62
Prior to February 25, 1972, copyright protection was not extended to sound recordings. Sears and Compco make clear that the federal policy expressed in Art. I, § 8, cl. 8, is to have 'national uniformity in patent and copyright laws,' 376 U.S., at 231 n. 7, 84 S.Ct., at 788 n. 7, a policy bolstered by Acts of Congress which vest 'exclusive jurisdiction to hear patent and copyright cases in federal courts . . . and that section of the Copyright Act which expressly saves state protection of unpublished writings but does not include published writings.' Ibid.
63
Prior to February 15, 1972,2 sound recordings had no copyright protection. And even under that Act the copyright would be effective 'only to sound recordings fixed, published, and copyrighted on and after the effective date of this Act (Feb. 15, 1972), and before January 1, 1975.'3
64
California's law promotes monopoly; the federal policy promotes monopoly only when a copyright is issued, and it fosters competition in all other instances. Moreover, federal law limits its monopoly to 28 years plus a like renewal period,4 which California extends her monopoly into perpetuity.
65
Cases like Sears were surcharged with 'unfair competition' and the present one with 'pirated recordings.' But free access to products on the market is the consumer interest protected by the failure of Congress to extend patents or copyrights into various areas. The drive for monopoly protection is strong as is evident from a reading of the committee reports on the 1971 Act.5 Yet, Congress took but a short step, setting up a trial period to consider the new monopoly approach. It was told that state laws, such as we have in this case, were being challenged on the ground that the Federal Constitution had pre-empted the field, even in absence of a provision for making it possible to obtain a copyright for sound recordings. But the House Committee made only the following comment:
66
'While the committee expresses no opinion concerning this legal question, it is clear that the extension of copyright protection to sound recordings would resolve many of the problems which have arisen in connection with the efforts to combat piracy in State courts.'6
67
The Department of Justice in commenting on the proposals that resulted in the 1971 Act told the House:
68
'We believe that extending copyright to reproduction of sound recordings is the soundest, and in our interpretation of Sears and Compco, the only way in which sound recordings should be protected. Copyright protection is narrowly defined and limited in duration, whereas state remedies, whose validity is still in doubt, frequently create broad and unwarranted perpetual monopolies. Moreover, there is an immediate and urgent need for this protection.'7
69
The need for uniformity was stated by Judge Learned Hand in a dissent in Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657. That case involved the duplication of uncopyrighted sound recordings, the court holding that state law prevailed where there was no federal copyright provision. Judge Hand emphasized in his dissent that 'uniformity' was one of the principal purposes of the Patent and Copyright Clause and that uniformity could be obtained only by pre-emption. He said:
70
'If, for example in the case at bar, the defendant is forbidden to make and sell these records in New York, that will not prevent it from making and selling them in any other state which may regard the plaintiff's sales as a 'publication'; and it will be practically impossible to prevent their importation into New York. That is exactly the kind of evil at which the clause is directed.' Id., at 667.
71
I would reverse the judgment below.
72
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN join, dissenting.
73
The argument of the Court, as I understand it, is this: Art. I, § 8, cl. 8, of the Constitution gives Congress the power '(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.' The Framers recognized that individual States might have peculiarly local interests that Congress might not consider worthy of attention. Thus, the constitutional provision does not, of its own force, bar States from promoting those local interests. However, as the Court noted in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), with respect to every particular item within general classes enumerated in the relevant statutes, Congress had balanced the need to promote invention against the desire to preserve free competition, and had concluded that it was in the national interest to preserve competition as to every item that could not be patented. That is, the fact that some item could not be patented demonstrated that, in the judgment of Congress, it was best to let competition in the production of that item go unrestricted. The situation with regard to copyrights is said to be similar. There Congress enumerated certain classes of works for which a copyright may be secured. 17 U.S.C. § 5. Its silence as to other classes does not reflect a considered judgment about the relative importance of competition and promotion of 'Science and useful Arts.' Thus, the Court says, the States remain free to protect as they will 'writings' not in the enumerated classes, until Congress acts. Since sound recordings fixed prior to February 15, 1972, were not enumerated by Congress as subject to copyrighting,1 the States may protect such recordings.
74
With respect, I cannot accept the final step of this argument. In my view, Congress has demonstrated its desire to exercise the full grant of constitutional power. Title 17 U.S.C. § 4, states: 'The works for which copyright may be secured under this title shall include all the writings of an author' (emphasis added). The use of the constitutional terms 'writings' and 'author' rather strongly suggests that Congress intended to follow the constitutional grant. It could exercise the power given it by the Constitution in two ways: either by protecting all writings, or by protecting all writings within designated classes and leaving open to competition all writings in other classes. Section 5 shows that the latter course was chosen, for it enumerates various classes of works that may be registered.2 Ordinarily, the failure to enumerate 'sound recordings' in § 5 would not be taken as an expression of Congress' desire to let free competition reign in the reproduction of such recordings, for, because of the realities of the legislative process, it is generally difficult to infer from a failure to act any affirmative conclusions. Cf. Cleveland v. United States, 329 U.S. 14, 22, 67 S.Ct. 13, 17, 91 L.Ed. 12 (1946) (Rutledge, J., concurring). But in Sears and its companion case, Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), the Court determined that with respect to patents and copyrights, the ordinary practice was not to prevail. In view of the importance of not imposing unnecessary restraints on competition, the Court adopted in those cases a rule of construction that, unless the failure to provide patent or copyright protection for some class of works could clearly be shown to reflect a judgment that state regulation was permitted, the silence of Congress would be taken to reflect a judgment that free competition should prevail. I do not find in Sears and Compco a limitation on that rule of construction to general classes that Congress has enumerated although, of course, on the facts of those cases only items in such classes were involved; rather, the broadest language was used in those cases.3 Nor can I find in the course of legislation sufficient evidence to convince me that Congress determined to permit state regulation of the reproduction of sound recordings. For, whenever technological advances made extension of copyright protection seem wise, Congress has acted promptly. See ante, at 562—563 n. 17.4 This seems to me to reflect the same judgment that the Court found in Sears and Compco: Congress has decided that free competition should be the general rule, until it is convinced that the failure to provide copyright or patent protection is hindering 'the Progress of Science and useful Arts.'
75
The business of record piracy is not an attractive one; persons in the business capitalize on the talents of others without needing to assess independently the prospect of public acceptance of a performance. But the same might be said of persons who copy 'mechanical configurations.' Such people do provide low-cost reproduction that may well benefit the public. In light of the presumption of Sears and Compco that congressional silence betokens a determination that the benefits of competition outweigh the impediments placed on creativity by the lack of copyright protection, and in the absence of a congressional determination that the opposite is true, we should not let our distaste for 'pirates' interfere with out interpretation of the copyright laws. I would therefore hold that, as to sound recordings fixed before February 15, 1972, the States may not enforce laws limiting reproduction.
1
In pertinent part, the California statute provides:
'(a) Every person is guilty of a misdemeanor who:
'(1) Knowingly and willfully transfers or causes to be transferred any sounds recorded on a phonograph record, . . . tape, . . . or other article on which sounds are recorded, with intent to sell or cause to be sold, . . . such article on which such sounds are so transferred, without the consent of the owner.
'(2) . . .
'(b) As used in this section, 'person' means any individual, partnership, corporation or association; and 'owner' means the person who owns the master phonograph record, . . . master tape, . . . or other device used for reproducing recorded sounds on phonograph records, . . . tapes, . . . or other articles on which sound is recorded, and from which the transferred recorded sounds are directly or indirectly derived.'
Specifically, each count of the information alleged that, in regard to a particular recording, petitioners had, 'at and in the City of Los Angeles, in the County of Los Angeles, State of California . . . wilfully, unlawfully and knowingly transferred and caused to be transferred sounds recorded on a tape with the intent to sell and cause to be sold, such tape on which such sounds (were) so transferred . . ..'
2
Article I, § 8, cl. 8, provides that Congress shall have the power
'To 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 . . ..'
3
Since petitioners did not proceed to trial, the factual record before the Court is sparse. However, both parties indicate that a complete description of petitioners' method of operation may be found in the record of Tape Industries Assn. of America v. Younger, 316 F.Supp. 340 (CD Cal.1970), appeal dismissed for lack of jurisdiction, 401 U.S. 902, 91 S.Ct. 880, 27 L.Ed.2d 801 (1971), appeal pending United States Court of Appeals, CA9, No. 26,628.
4
An additional label was attached to each cartridge by petitioners, stating that no relationship existed between petitioners and the producer of the original recording or the individuals whose performances had been recorded. Consequently, no claim is made that petitioners misrepresented the source of the original recordings or the manufacturer of the tapes.
5
The costs of producing a single original longplaying record of a musical performance may exceed $50,000 or $100,000. Tape Industries Assn. of America v. Younger, supra, at 344 (1970); Hearings on S. 646 and H.R. 6927 before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 1st Sess., 27—28 (1971). For the performance recorded on this record, petitioners would pay only the retail cost of a single longplaying record or a single tape.
6
Title 17 U.S.C. § 2 provides: 'Nothing in this title shall be construed to annual or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor.'
7
No question is raised in the present case as to the power of the States to protect recordings fixed after February 15, 1972.
8
The Federalist No. 32, p. 241 (B. Wright ed. 1961); see Cooley v. Board of Wardens, 12 How. 299, 318—319, 13 L.Ed. 996 (1851).
9
Art. I, § 8, cl. 3.
10
See Kendall v. Winsor, 21 How. 322, 328, 16 LEd. 165 (1859); Mitchell v. Tilghman, 19 Wall. 287, 418, 22 L.Ed. 125 (1874); Bauer & Cie v. O'Donnell, 229 U.S. 1, 10, 33 S.Ct. 616, 617, 57 L.Ed. 1041 (1913).
11
The Federalist No. 43, p. 309 (B. Wright ed. 1961).
12
Numerous examples may be found in our early history of the difficulties which the creators of items of national import had in securing protection of their creations in all States. For example, Noah Webster, in his effort to obtain protection for his book, A Grammatical Institute of the English Language, brought his claim before the legislatures of at least six States, and perhaps as many as 12. See B. Bugbee, The Genesis of American Patent and Copyright Law 108—110, 120—124 (Wash., D.C., 1967); H.R.Rep.No.2222, 60th Cong., 2d Sess., 2 (1909). Similar difficulties were experienced by John Fitch and other inventors who desired to protect their efforts to perfect a steamboat. See Federico, State Patents, 13 J.Pat.Off.Soc. 166, 170—176 (1931).
13
As early as 1751, Massachusetts granted to Benjamin Crabb the exclusive right to employ a specific process for the manufacture of candles out of whale oil. It is not clear whether Crabb invented the process. The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, Vol. 3, Session of Jan. 10, 1751, c. 19, pp. 546—547 (1878). In 1780, Pennsylvania granted a patent to Henry Guest for the processing of tanning oil and blubber, noting specifically that the patent was 'a reward for his discovery and for the purpose of promoting useful manufactories in this state.' The Statutes at Large of Pennsylvania from 1682 to 1801, Vol. 10, p. 132 (J. Mitchell & H. Flanders eds. 1904). Similarly, South Carolina granted protection to Peter Belin in 1786 for newly designed waterworks which aided in the production of rice, a staple of South Carolina agriculture, and other products. Another patent relating to the processing of rice was granted by South Carolina in 1788. The Statutes at Large of South Carolina, Vol. 4, p. 755 (T. Cooper ed. 1838); id., Vol. 5, p. 69 (1839). In 1787, Maryland granted a patent on a spinning and carding machine 'to encourage useful inventions, as well as promote the manufacture of cotton and wool within this state. . . .' The Laws of Maryland, Vol. 2, Session of Nov. 6, 1786—Jan. 20, 1787, c. 23 (W. Kilty ed. 1800). In the same year, Pennsylvania patented certain devices relating to flour mills, noting that these devices would 'tend to simplify and render cheap the manufacture of flour which is one of the principal staples of this commonwealth . . ..' The Statutes at Large of Pennsylvania from 1682 to 1801, Vol. 12, pp. 483—484 J. Mitchell & H. Flanders eds. 1906).
14
The Federalist No. 42, p. 305 (B. Wright ed. 1961).
15
Cf. Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946); Bibb v. Navajo Freight Lines, 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959); Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed.2d 1117 (1923).
16
For example, Congress has allowed writings which may eventually be the subject of a federal copyright, to be protected under state law prior to publication. 17 U.S.C. § 2.
17
The first congressional copyright statute, passed in 1790, governed only maps, charts, and books. Act of May 31, 1790, c. 15, 1 Stat. 124. In 1802, the Act was amended in order to grant protection to any person 'who shall invent and design, engrave, etch or work . . . any historical or other print or prints . . ..' Act of Apr. 29, 1802, c. 36, 2 Stat. 171. Protection was extended to musical compositions when the copyright laws were revised in 1831. Act of Feb. 3, 1831, c. 16, 4 Stat. 436. In 1865, at the time when Mathew Brady's pictures of the Civil War were attaining fame, photographs and photographic negatives were expressly added to the list of protected works. Act of Mar. 3, 1865, c. 126, 13 Stat. 540. Again in 1870, the list was augmented to cover paintings, drawings, chromos, statuettes, statuary, and models or designs of fine art. Act of July 8, 1870, c. 230, 16 Stat. 198.
In 1909, Congress agreed to a major consolidation and amendment of all federal copyright statutes. A list of 11 categories of protected works was provided. The relevant sections of the Act are discussed in the text of our opinion. The House Report on the proposed bill specifically noted that amendment was required because
'the reproduction of various things which are the subject of copyright has enormously increased,' and that the President has specifically recommended revision, among other reasons, because the prior laws 'omit(ted) provision for many articles which, under modern reproductive processes, are entitled to protection.' H.R.Rep.No.2222, supra, n. 12, at 1 (quoting Samuel J. Elder and President Theodore Roosevelt).
Since 1909, two additional amendments have been added. In 1912, the list of categories in § 5 was expanded specifically to include motion pictures. The House Report on the amendment noted:
'The occasion for this proposed amendment is the fact that the production of motion-picture photoplays and motion pictures other than photoplays has become a business of vast proportions. The money invested therein is so great and the property rights so valuable that the committee is of the opinion that the copyright law ought to be so amended as to give to them distinct and definite recognition and protection.' H.R.Rep.No.756, 62d Cong., 2d Sess., 1 (1912).
Finally, in 1971, § 5 was amended to include 'sound recordings.' Congress was spurred to action by the growth of record piracy, which was, in turn, due partly to technological advances. See Hearings on S.646 and H.R.6927, supra, n. 5, at 4—5, 11 (1971). It must be remembered that the 'record piracy' charged against petitioners related to recordings fixed by the original producer prior to Feb. 15, 1972, the effective date of the 1971 Act. See supra, at 551—552.
18
17 U.S.C. § 1(e).
19
H.R.Rep.No.7083, 59th Cong., 2d Sess., pt. 2, p. 2 (1907) (Minority Report).
20
'After all, what is the perforated roll? The fact is clearly established in the testimony in this case that even those skilled in the making of these rolls are unable to read them as musical compositions, as those in staff notation are read by the performer. . . .
'These perforated rolls are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination. But we cannot think that they are copies within the meaning of the copyright act.' White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 18, 28 S.Ct. 319, 323, 52 L.Ed. 655 (1908).
21
H.R.Rep.No.7083, supra, n. 19, pt. 1, at 10; pt. 2, at 3 4.
22
This is especially clear from the comment made by the Committee on Patents in regard to a foreign statute which, to some extent, protected performances. The committee stated that the foreign statute 'in no way affects the reproduction of such music by photographs, graphophones, or the ordinary piano-playing instruments, for in these instruments the reproduction is purely mechanical.' H.R.Rep.No.2222, supra, n. 12, at 5.
23
Petitioners do not argue that § 653h conflicts with that portion of 17 U.S.C. § 1(e) which provides:
'(W)henever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured. . . .'
Assuming, arguendo, that petitioners' use of the composition they duplicated constitutes a 'similar use,' the challenged state statute might be claimed to diminish the return which is due the composer by lessening the number of copies produced, and thus to conflict with § 1(e). However, as we have noted above, the means presently available for reproducing recordings were not in existence in 1909 when 17 U.S.C. § 1(e) was passed. We see no indication that the challenged state statute detracts from royalties which Congress intended the composer to receive. Furthermore, many state statutes may diminish the number of copies produced. Taxing statutes, for example, may raise the cost of producing or selling records and thereby lessen the number of records which may be sold or inhibit new companies from entering this field of commerce. We do not see in these statutes the direct conflict necessary to render a state statute invalid.
24
H.R.Rep.No.2222, supra, n. 12, at 10.
25
The registration of records under the provisions of the 1909 Act would give rise to numerous administrative difficulties. It is difficult to discern how an individual who wished to copyright a record could comply with the notice and deposit provisions of the statute. 17 U.S.C. §§ 12, 13, 19, 20. Nor is it clear to whom the copyright could rightfully be issued or what constituted publication. Finally, the administrative and economic burden of classifying and maintaining copies of records would have been considerable. See Chafee, Reflections on the Laws of Copyright: II, 45 Col.L.Rev. 719, 735 (1945); Ringer, The Unauthorized Duplication of Sound Recordings, Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 2 (Comm.Print 1961); Hearings on S.646 and H.R.6927, supra, n. 5, at 11, 14.
26
Fonotipia, Ltd. v. Bradley, 171 F. 951, 963 (EDNY 1909).
27
Aeolian Co. v. Royal Music Roll Co., 196 F. 926, 927 (WDNY 1912); Waring v. WDAS Broadcasting Station, 327 Pa. 433, 437 438, 194 A. 631, 633—634 (1937); Capitol Records v. Mercury Records Corp., 221 F.2d 657, 661—662 (CA2 1955); Jerome v. Twentieth Century Fox-Film Corp., 67 F.Supp. 736, 742 (SDNY 1946).
28
Petitioners place great stress on their belief that the records or tapes which they copied had been 'published.' We have no need to determine whether, under state law, these recordings had been published or what legal consequences such publication might have. For purposes of federal law, 'publication' serves only as a term of the art which defines the legal relationships which Congress has adopted under the federal copyright statutes. As to categories of writings which Congress has not brought within the scope of the federal statute, the term has no application.
29
Supra, at 551—552.
1
The Federalist No. 43, p. 309 (B. Wright ed. 1961).
2
The effective date of Pub.L. 92—140, 85 Stat. 392.
3
Id., § 3.
4
17 U.S.C. § 24.
5
H.R.Rep.No.92—487; S.Rep.No.92—72; U.S.Code Cong. & Admin.News 1971, p. 1566.
6
H.R.Rep., supra, n. 5, at 3.
7
Id., at 13.
1
Sound recordings fixed after that date may be copyrighted. Pub.L. 92—140, 85 Stat. 391, 17 U.S.C. § 5(n) (1970 ed., Supp. I).
2
From the language of § 4 and the proviso of § 5, it could be rather strongly argued that Congress had intended to afford protection to every writing. I agree with the Court, however, that the consistent administrative interpretation of those sections, in conjunction with the practical difficulty of applying to novel cases certain statutory requirements, like that requiring placement of the notice of copyright on every copy, 17 U.S.C. § 10, precludes such an argument.
3
It bears noting that Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), the Court repeatedly referred to the patent and copyright statutes as if the same rules of interpretation applied to both. See, id., 376 U.S., at 228, 231 n. 7, 84 S.Ct., at 787, 788 n. 7; Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 237, 84 S.Ct. 779, 781, 11 L.Ed.2d 669 (1964).
4
Between 1909 and 1951, Congress' attention was repeatedly drawn to problems of copyrighting sound recordings. Many bills to provide copyright protection for such recordings were introduced, but none were enacted. See Ringer, The Unauthorized Duplication of Sound Recordings, Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 21—37 (Comm.Print 1961). Respondent argues that Congress failed to enact these bills primarily out of uncertainty about the relationship between federal law and international copyright conventions, and was comforted in the knowledge that protection was available under state law. See Brief for Respondent 28—32. However, it is enough that Congress was aware of the problem, and could have acted, as it did when other technological innovations presented new problems, rather expeditiously. The problems that Congress confronted in 1971 did not spring up in 1970, but had existed, and Congress had not acted, for many years before.
| 78
|
412 U.S. 783
93 S.Ct. 2348
37 L.Ed.2d 335
Mark WHITE, Jr., Etc., Appellant,v.Dan WEISER et al.
No. 71-1623.
Argued Feb. 26, 1973.
Decided June 18, 1973.
Syllabus
Texas enacted Senate Bill One (S.B. 1) providing for congressional redistricting. The State was divided into 24 districts, with an average deviation from the ideal district of .745%, and a maximum deviation of 2.43% above and 1.7% below the ideal. Appellees alleged that the reapportionment violated their constitutional rights under Art. 1, § 2, and submitted Plan B, which although cutting across more county lines, generally followed the district lines of S.B. 1. Plan B had a total maximum deviation of .149%. Shortly before the three-judge court hearing, appellees submitted, alternatively, Plan C. That Scheme, with a total maximum deviation of .284%, substantially disregarded the configuration of the districts in S.B. 1, using population as the only consideration. The District Court found S.B. 1 unconstitutional and ordered the adoption of Plan C, as being more compact and continguous than the other plans. Held:
1. Although the percentage deviations in S.B. 1 are smaller than those invalidated in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519, and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535, they were not 'unavoidable' and the districts were not as mathematically equal as reasonably possible. The argument that variances are justified if they necessarily result from the State's attempt to avoid fragmenting political subdivisions by drawing district lines along existing political subdivision lines is not legally acceptable. Kirkpatrick, supra, 394 U.S., at 533-534, 89 S.Ct., at 1230-1231, Pp. 790—791.
2. Though the drawing of district boundaries in a way that minimizes the number of contests between present incumbents does not of itself establish invidiousness, Burns v. Richardson, 384 U.S. 73, 89 n. 16, 86 S.Ct. 1286, 1295, 16 L.Ed.2d 376, it is not necessary to decide whether such state interest will justify the deviations in S.B. 1, since Plan B serves this purpose as well with less population variance. Pp. 791-792.
3. Population variances do invidiously devalue the individual's vote at some point or level in size, and this is especially noticeable in congressional districts with their substantial populations. Pp. 792-793.
4. Plan B, to a greater extent than Plan C, while eliminating population variances, adhered to the districting preferences of the state legislature, which has 'primary jurisdiction' over legislative reapportionment. Pp. 793-797.
Affirmed in part, reversed in part, and remanded.
Charles L. Black, Jr., New Haven, Conn., for appellant.
Lawrence Fischman, Dallas, Tex., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case concerns the congressional reapportionment of the State of Texas.
2
On June 17, 1971, the Governor of the State of Texas signed into law Senate Bill One (S.B. 1), Tex.Acts, 62d Leg., 1st Called Sess., c. 12, p. 38, providing for the congressional redistricting of the State. S.B. 1 divided the State into 24 congressional districts for the ensuing decennium.1 Based upon 1970 census figures, absolute population equality among the 24 districts would mean a population of 466,530 in each district. The districts created by S.B. 1 varied from a high of 477,856 in the 13th District to a low of 458,581 in the 15th District. The 13th District exceeded the ideal district by 2.43% and the 15th District was smaller by 1.7%. The population difference between the two districts was 19,275 persons, and their total percentage deviation was 4.13%. The ratio of the 13th District to the 15th was 1.04 to 1. The average deviation of all districts from the ideal district of 466,530 was .745% or 3,421 persons.2
3
On October 19, 1971, appellees, residents of the 6th, 13th, 16th, and 19th congressional districts, filed suit in the United States District Court for the Northern District of Texas against appellant, the Secretary of State of Texas and the chief election officer of the State. Appellees alleged that the reapportionment of the Texas congressional seats as embodied in S.B. 1 violated their rights under Art. 1, § 2, and the equal Protection Clause of the Fourteenth Amendment.3 They requested an injunction against the use of S.B. 1, an order requiring a new apportionment or the use of a plan submitted with their complaint, or at-large elections. The plan appended to appellees' original complaint, which came to be called Plan B, generally followed the redistricting pattern of S.B. 1. However, the district lines were adjusted where necessary so as to achieve smaller population variances among districts. Plan B created districts varying from 466,930 to 466,234, for a total absolute deviation between the largest and smallest district of 696 persons. District 12 was exceeded the ideal by .086% and District Four was under the ideal by .063%, for a total percentage deviation of .149%. Although the plan followed the district lines of S.B. 1 where possible, in order to achieve maximum population equality, Plan B cut across 18 more county lines than did S.B. 1.4
4
A three-judge court was convened. 28 U.S.C. §§ 2281, 2284. On January 10, 1972, several days prior to the scheduled hearing of the case, appellees filed an amended complaint suggesting an alternative plan, which came to be called Plan C. Plan C, unlike Plan B, substantially disregarded the configuration of the districts in S.B. 1. Instead, as the authors of the plan frankly admitted and the District Court found, plan C represented an attempt to attain lower deviations without regard to any consideration other than population. The districts in Plan C varied in population from 467,173 as a high to 465,855 as a low, a difference of 1,318 persons. The largest district was overpopulated by .139%, and the smallest underpopulated by .145%, the total percentage deviation being .284%. Plan C had 14 districts with greater deviations than Plan B, eight districts with deviations equal to those found in Plan B, and two districts with deviations smaller than those in Plan B.5
5
On January 21, 1972, the District Court heard argument and received into evidence various depositions. The next day, the court announced its decision. Relying upon this Court's decision in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), the District Court declared S.B. 1 unconstitutional and enjoined appellant from 'conducting or permitting any primary or general elections based upon the districts established by S.B. 1.' The District Court ordered the adoption of Plan C as 'the plan of this Court for the congressional districts of the State of Texas.'6 Noting that its order was entered 'without prejudice to the legislative and executive branches of the State of Texas to proceed with the consideration and adoption of any other constitutionally permissible plan of congressional redistricting at a called or regular session of the Legislature,' the District Court retained jurisdiction 'for the purposes of considering any such plan which might be adopted by the Legislature of the State of Texas until congressional reapportionment is enacted based on the Twentieth Decennial Census to be conducted in 1980.'7
6
This Court, on application of appellant, granted a stay of the order of the District Court. 404 U.S. 1065, 92 S.Ct. 750, 30 L.Ed.2d 775 (1972). The 1972 congressional elections were therefore conducted under the plan embodied in S.B. 1. We noted probable jurisdiction of the appeal. 409 U.S. 947, 93 S.Ct. 287, 34 L.Ed.2d 217 (1972).
7
* The command of Art. I. § 2, that representatives be chosen 'by the People of the several States' was elucidated in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), and in Kirkpatrick v. Preisler, 394 U.S., at 527-528, 89 S.Ct., at 1227, to permit only those population variances among congressional districts that 'are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.' Id., at 531, 89 S.Ct., at 1229.8 See also Wells v. Rockefeller, 394 U.S. 542, 546, 89 S.Ct. 1234, 1237, 22 L.Ed.2d 535 (1969). Kirkpatrick and Wells invalidated state reapportionment statutes providing for federal congressional districts having total percentage deviations of 5.97% and 13.1%, respectively. In both cases, we concluded that the deviations did not demonstrate a good-faith effort to achieve absolute equality and were not sufficiently justified.
8
The percentage deviations now before us in S.B. 1 are smaller than those invalidated in Kirkpatrick and Wells, but we agree with the District Court that, under the standards of those cases, they were not 'unavoidable,' and the districts were not as mathematically equal as reasonably possible. Both Plans B and C demonstrate this much, and the State does not really dispute it.9 Also, as in Kirkpatrick and Wells, 'we do not find legally acceptable the argument that variances are justified if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries.' Kirkpatrick v. Preisler, supra, 394 U.S., at 533-534, 89 S.Ct. at 1230.
9
The State asserts that the variances present in S.B. 1 nevertheless represent good-faith efforts by the State to promote 'constituency-representative relations,'10 a policy frankly aimed at maintaining existing relationships between incumbent congressmen and their constituents and preserving the seniority the members of the State's delegation have achieved in the United States House of Representatives. We do not disparage this interest. We have, in the context of state reapportionment, said that the fact that 'district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness.' Burns v. Richardson, 384 U.S. 73, 89 n. 16, 86 S.Ct. 1286, 1295, 16 L.Ed.2d 376 (1966). Cf. Gaffney v. Cummings, 412 U.S. 735, at 752, 93 S.Ct. 2321, at 2331, 37 L.Ed.2d 298. But we need not decide whether this state interest is sufficient to justify the deviations at issue here, for Plan B admittedly serves this purpose as well as S.B. 1 while adhering more closely to population equality.11 S.B. 1 and its population variations, therefore, were not necessary to achieve the asserted state goal, and the District Court was correct in rejecting it.12
10
Appellant also straightforwardly argues that Kirkpatrick and Wells should be modified so as not to require the 'small' population variances among congressional districts involved in this case to be justified by the State. S.B. 1, it is urged, absent proof of invidiousness over and above the population variances among its districts, does not violate Art. 1, § 2. It is clear, however, that at some point or level in size, population variances do import invidious devaluation of the individual's vote and represent a failure to accord him fair and effective representation. Appellant concedes this and would locate the line differently than the Court did in Kirkpatrick and Wells. Keeping in mind that congressional districts are not so intertwined and freighted with strictly local interests as are state legislative districts and that, as compared with the latter, they are relatively enormous, with each percentage point of variation representing almost 5,000 people, we are not inclined to disturb Kirkpatrick and Wells. This is particularly so in light of Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), decided earlier this Term, where we reiterated that the Wesberry, Kirkpatrick, and Wells line of cases would continue to govern congressional reapportionments, although holding that the rigor of the rule of those cases was inappropriate for state reapportionments challenged under the Equal Protection Clause of the Fourteenth Amendment.
II
11
The District Court properly rejected S.B. 1, but it had before it both Plan B and Plan C, and there remains the question whether the court correctly chose to implement the latter.13 Plan B adhered to the basic district configurations found in S.B. 1, but adjusted the district lines, where necessary, in order to achieve maximum population equality among districts. Each district in Plan B contained generally the same counties as the equivalent district in S.B. 1.14 Plan C, on the other hand, was based entirely upon population considerations and made no attempt to adhere to the district configurations found in S.B. 1.15 Both plans were submitted to the District Court by appellees. After deciding that S.B. 1 was unacceptable, the District Court ordered the implementation of Plan C. In announcing its decision, the court said only:
12
'Plan C is based solely on population and is significantly more compact and contiguous than either S.B. 1 or Plan B. . . . The Court has considered Plans B and C . . . and concludes that Plan C best effectuates the principle of 'one man, one vote' enunciated by the Supreme Court.'
13
Appellant argues that even if the District Court properly struck down S.B. 1, it should have selected Plan B rather than Plan C. Appellees defend the selection of Plan C as an exercise of the remedial discretion of the District Court, although in doing so they argue against a plan that they proposed and frequently urged upon the District Court.
14
From the beginning, we have recognized that 'reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.' Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964). See also, id., at 584, 586-587, 84 S.Ct., at 1393, 1394-1395; id., at 588-589, 84 S.Ct. at 1395-1396 (opinion of Stewart, J.). We have adhered to the view that state legislatures have 'primary jurisdiction' over legislative reapportionment. See Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 676, 84 S.Ct. 1429, 1440, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 693, 84 S.Ct. 1441, 1449, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 709-710, 711-712, 84 S.Ct. 1449, 1457-1458, 1458-1459, 12 L.Ed.2d 620 (1964); Burns v. Richardson, 384 U.S., at 84-85, 86 S.Ct., at 1292-1293; Ely v. Klahr, 403 U.S. 108, 114, 91 S.Ct. 1803, 1807, 29 L.Ed.2d 352 (1971); Whitcomb v. Chavis, 403 U.S. 124, 160-161, 91 S.Ct. 1858, 1877-1878, 29 L.Ed.2d 363 (1971); Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, 195-201, 92 S.Ct. 1477, 1483-1486, 32 L.Ed.2d 1 (1972); Mahan v. Howell, 410 U.S., at 327, 93 S.Ct., at 986.
15
Just as a federal district court, in the context of legislative reapportionment, should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution, we hold that a district court should similarly honor state policies in the context of congressional reapportionment. In fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor 'intrude upon state policy any more than necessary.' Whitcomb v. Chavis, supra, at 160, 91 S.Ct., at 1878.
16
Here, it is clear that Plan B, to a greater extent than did Plan C, adhered to the desires of the state legislature while attempting to achieve population equality among districts. S.B. 1, a duly enacted statute of the State of Texas, established the State's 24 congressional districts with locations and configurations found appropriate by the duly elected members of the two houses of the Texas Legislature. As we have often noted, reapportionment is a complicated process. Districting inevitably has sharp political impact and inevitably political decisions must be made by those charged with the task. See Gaffney v. Cummings, 412 U.S., at 753, 93 S.Ct., at 2331. Here those decisions were made by the legislature in pursuit of what were deemed important state interests. Its decisions should not be unnecessarily put aside in the course of fashioning relief appropriate to remedy what were held to be impermissible population variations between congressional districts.
17
Plan B, as all parties concede, represented an attempt to adhere to the districting preferences of the state legislature while eliminating population variances. Indeed, Plan B achieved the goal of population equality to a greater extent than did Plan C. Despite the existence of Plan B, the District Court ordered implementation of Plan C, which, as conceded by all parties, ignored legislative districting policy and constructed districts solely on the basis of population considerations. The District Court erred in this choice. Given the alternatives, the court should not have imposed Plan C with its very different political impact, on the State. It should have implemented Plan B, which most clearly approximated the reapportionment plan of the state legislature, while satisfying constitutional requirements. The court said only that Plan C is 'significantly more compact and contiguous' than Plan B. But both Plan B and Plan C feature contiguous districts, and even if the districts in Plan C can be called more compact, the District Court's preferences do not override whatever state goals were embodied in S.B. 1 and, derivatively, in Plan B. 'The remedial powers of an equity court must be adequate to the task, but they are not unlimited. Here the District Court erred in so broadly brushing aside state apportionment policy without solid constitutional or equitable grounds for doing so.' Whitcomb v. Chavis, supra, 403 U.S., at 161, 91 S.Ct., at 1878. If there was a good reason for adopting Plan C rather than Plan B, the District Court failed to state it.
18
Of course, the District Court should defer to state policy in fashioning relief only where that policy is consistent with constitutional norms and is not itself vulnerable to legal challenge. The District Court should not, in the name of state policy, refrain from providing remedies fully adequate to redress constitutional violations which have been adjudicated and must be rectified. But here, the District Court did not suggest or hold that the legislative policy of districting so as to preserve the constituencies of congressional incumbents was unconstitutional or even undesirable. We repeat what we have said in the context of state legislative reapportionment: 'The fact that district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness.' Burns v. Richardson, 384 U.S., at 89 n. 16, 86 S.Ct., at 1295. Cf. Gaffney v. Cummings, 412 U.S., at 752, 93 S.Ct., at 2331; Taylor v. McKeithen, 407 U.S. 191, 92 S.Ct. 1980, 32 L.Ed.2d 648 (1972). And we note that appellees themselves submitted Plan B to the District Court and defended it on the basis that it adhered to state goals, as embodied in S.B. 1, while eliminating impermissible deviations.16
19
The judgment of the District Court invalidating S.B. 1 is affirmed. The adoption of Plan C is, however, reversed and the case is remanded for further proceedings consistent with this opinion.
20
It is so ordered.
21
Judgment affirmed in part and reversed in part and case remanded.
22
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring.
23
Had I been a member of the Court when Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), were decided, I would not have thought that the Constitution-a vital and living charter after nearly two centuries because of the wise flexibility of its key provisions-could be read to require a rule of mathematical exactitude in legislative reapportionment. Moreover, the dissenting opinions of Justices Harlan* and White and the concurring opinion of Justice Fortas in those cases demonstrated well that the exactitude required by the majority displayed a serious misunderstanding of the practicalities of the legislative and reapportioning processes. Nothing has occurred since Kirkpatrick and Wells to reflect adversely on the soundness, as I view it, of the dissenting perceptions. Indeed, the Court's recent opinions in Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298, and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314, strengthen the case against attempting to hold any reapportionment scheme-state or congressional-to slide-rule precision. These more recent cases have allowed modest variations from theoretical 'exactitude' in recognition of the impracticality of applying the Kirkpatrick rule as well as in deference to legitimate state interests.
24
However all of this may be, Kirkpatrick is virtually indistinguishable from this case, and unless and until the Court decides to reconsider that decision, I will follow it. Accordingly, I join the Court's opinion.
25
Mr. Justice MARSHALL, concurring in part.
26
While I join Part I of the Court's opinion, I can agree with Part II wherein the Court reverses the District Court's selection of Plan C over Plan B only insofar as that determination rests upon the fact that Plan B comes closer than Plan C to achieving the goal of 'precise mathematical equality,' see Kirkpatrick v. Preisler, 394 U.S. 526, 530-531, 89 S.Ct. 1225, 1228-1229, 22 L.Ed.2d 519 (1969). See also Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969). Whatever the merits of the view that a legislature's reapportionment plan will not be struck down merely because 'district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents,' Burns v. Richardson, 384 U.S. 73, 89 n. 16, 86 S.Ct. 1286, 1295, 16 L.Ed.2d 376 (1966), it is entirely another matter to suggest that a federal district court which has determined that a particular reapportionment plan fails to comport with the constitutional requirement of 'one man, one vote' must, in drafting and adopting its own remedial plan, give consideration to the apparent desires of the controlling state political powers. In my opinion, the judicial remedial process in the reapportionment area-as in any area-should be a fastidiously neutral and objective one, free of all political considerations and guided only by the controlling constitutional principle of strict accuracy in representative apportionment. Here the District Court gave ample recognition to the legislature's 'primary responsibility'* in the area of apportionment when it added that its redistricting order was 'without prejudice to the legislative and executive branches of the State of Texas to proceed with the consideration and adoption of any other constitutionally permissible plan of congressional redistricting at a called or regular session of the Legislature of the State of Texas.' Nevertheless, because the District Court failed to adhere strictly to the principle of mathematical precision in selecting between Plan B and Plan C, its choice of Plan C must be reversed.
1
Prior to the passage of S.B. 1, the Texas Senate had twice defeated redistricting bills, passed by the House, with total deviations smaller than the total deviation in S.B. 1.
2
The redistricting of the 24 Texas congressional districts under S.B. 1 follows:
Absolute
Variance % Variance
District Population from Ideal from Ideal
1 461,870 -4,651 1.00
2 466,836 + 306 .07
3 465,221 - 1,309 .28
4 463,142 - 3,388 .73
5 465,093 - 1,437 .31
6 467,913 + 1,383 .30
7 461,704 - 4,826 1.03
8 461,216 - 5,314 1.14
9 467,483 + 953 .20
10 465,493 - 1,037 .22
11 468,148 + 1,618 .35
12 465,671 - 859 .18
13 477,856 + 1,326 2.43
14 467,839 + 1,309 .28
15 458,581 - 7,949 1.70
16 477,614 + 1,084 2.38
17 467,912 + 1,382 .30
18 462,062 - 4,468 .96
19 477,459 + 10,929 2.34
20 467,942 + 1,412 .30
21 466,656 + 126 .03
22 461,448 - 5,082 1.09
23 466,248 - 282 .06
24 465,315 - 1,216 .26
3
At a subsequent pretrial conference, the Fourteenth Amendment claims were eliminated.
4
Plan B resulted in the following districting:
Absolute Variance
District Population from Ideal
1 466,545 + 15
2 466,565 + 35
3 466,266 - 264
4 466,234 - 296
5 466,620 + 90
6 466,285 - 245
7 466,336 - 194
8 466,704 + 174
9 466,678 + 148
10 466,313 - 217
11 466,258 - 272
12 466,930 + 400
13 466,663 + 133
14 466,437 - 93
15 466,359 - 171
16 466,663 + 133
17 466,432 - 98
18 466,520 - 10
19 466,649 + 119
20 466,514 - 16
21 466,753 + 223
22 466,707 + 177
23 466,424 - 106
24 466,875 + 345
5
Plan C resulted in the following districts:
Absolute Variance
District Population from Ideal
1 465,986 - 544
2 466,817 + 287
3 466,835 + 305
4 467,108 + 578
5 466,258 - 272
6 467,023 + 493
7 466,336 - 194
8 466,704 + 174
9 466,678 + 148
10 466,303 - 227
11 466,569 + 39
12 466,926 + 396
13 467,173 + 648
14 466,437 - 93
15 466,359 - 171
16 465,941 - 589
17 466,340 - 190
18 466,520 - 10
19 466,154 - 376
20 466,654 + 124
21 466,875 + 345
22 466,707 + 177
23 466,167 - 363
24 465,855 - 675
6
The District Court's entire discussion of its reasons for selecting Plan C follows:
'Defendant has not submitted any plan of reapportionment as an alternative to S.B. 1. Plaintiffs have proposed two plans, B and C. Plan B is based on S.B. 1, but has a significantly lower deviation than S.B. 1. Plan C is based solely on population and is significantly more compact and contiguous than either S.B. 1 or Plan B. . . . The Court has considered Plans B and C, as well as the plan submitted by the intervening plaintiffs, and concludes that Plan C best effectuates the principle of 'one man, one vote' enunciated by the Supreme Court.'
7
The District Court's order also granted leave to intervene to Van Henry Archer, Chairman of the Bexar County Republican Party, and others. The intervenors, appellees in this Court, filed a suggested reapportionment plan with their complaint-in-intervention which was rejected by the District Court and is not pressed here. The District Court also retained jurisdiction for the purpose of extending the impending February 7, 1972, filing date for congressional candidates 'in the event it is made known to (the District) Court that a called session of the Legislature will include congressional reapportionment.' However, the Governor refused to call a special session of the legislature.
8
Kirkpatrick v. Preisler 'reject(ed) Missouri's argument that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the 'as nearly as practicable' standard.' 394 U.S., at 530, 89 S.Ct., 1228. We concluded, 'Unless population variances among congressional districts are shown to have resulted despite such (good-faith) effort, the State must justify each variance, no matter how small.' Id., at 531, 89 S.Ct., at 1229.
9
Prior to the passage of S.B. 1, the Texas House twice passed a congressional reapportionment bill with lower deviations. Each bill had a total deviation of 2.5% Although both bills were ultimately defeated in the Senate, their passage by the House, and indeed their very existence, indicates that it was possible and practicable to construct a redistricting scheme with lower population deviations among districts than those embodied in S.B. 1.
10
'Appellant earnestly submits that the term 'constituency-representative relations' is the more accurate term; indeed it is very hard to see why those who are so concerned about representation should stigmatize as a mere euphemism a term which brings in both parties to the representational relationship . . .. (The assumptions seem to be that while a Congressman may like his job, no constituency can like its Congressman, or care whether he continues to represent it or not-and that no Congressman can possibly learn to know his constituency well enough to serve it better than he can serve another constituency selected for him by, it may be, a young mathematician in Dallas.) Under either name, appellant would defend this motive as entirely proper, if the burden of that defense fell upon him on the facts herein.' Brief for Appellant 72.
11
It appears that the two plans passed by the House and defeated by the Senate may also have fostered this goal while achieving lower population variances.
12
Appellant contends that the authors of S.B. 1, and the legislature in passing on the plan, took into account projected population shifts among the districts. Remembering that the congressional districting plan will be in effect for at least 10 years and five congressional elections, the appellant argues that the legislature might properly consider population changes in devising a redistricting plan. In Kirkpatrick v. Preisler, we recognized that '(w)here these shifts can be predicted with a high degree of accuracy, States that are redistricting may properly consider them.' 394 U.S., at 535, 89 S.Ct., at 1231. We were, however, careful to note:
'By this we mean to open no avenue for subterfuge. Findings as to population trends must be thoroughly documented and applied throughout the State in a systematic, not an ad hoc, manner.' Ibid.
In the present case, we conclude that Texas' attempt to justify the deviations found in S.B. 1 falls far short of this standard. The record is barren, with the exception of scattered and vague assertions in deposition testimony, of adequate documentation of the projected population shifts and firm evidence that the alleged shifts were in fact relied upon.
There is also some suggestion that passage of S.B. 1 was preceded by a dispute as to who would fill the Second District congressional seat. The State does not urge this alleged goal as a justification for the deviations in S.B. 1 nor can we tell from this record whether S.B. 1 in fact resolved this dispute.
13
The court had before it a plan submitted by the plaintiffs-intervenors and, possibly, other plans. Only Plan B and Plan C appear to have been seriously urged by the parties and considered by the court, and only those plans are defended before this Court.
14
'Plan B, presented by Appellees, merely took the plan of the legislature and adjusted that plan to achieve greater equality to present to the court, in a graphic manner, what the legislature could have done if it had been disposed to make an attempt at population equality . . ..' Brief for Appellees 25.
15
Appellees' amended complaint explained Plan C, as follows:
'That had the legislature desired to enact a statute consonant with the mandate of Article 1, § 2 of the U.S. Constitution, that is a plan which made each district as compact and contiguous and as nearly equal in population to each other district as practicable, taking into account solely population and not taking into account 'social,' 'cultural,' 'economic' or 'other factors' including preservation of incumbent congressman, it could have enacted a plan the same as or substantially similar to that plan set forth in Exhibit C annexed hereto and herewith incorporated by reference as though set forth at length herein. That such plan is hereinafter referred to as 'Plan C."
16
S.B. 1 is conceded also to have sought adherence to county lines. While Plan B admittedly cuts more county lines than does Plan C, it also achieves lower deviations. Because both Plan B and Plan C were required to fracture more political boundaries than did S.B. 1, in order to achieve population equality among districts, appellant does not contend that Plan B is unacceptable because of more cutting of county lines.
*
Mr. Justice Stewart joined Mr. Justice Harlan's opinion.
*
See, e.g., Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 676, 84 S.Ct. 1429, 1440, 12 L.Ed.2d 595 (1964); Ely v. Klahr, 403 U.S. 108, 114, 91 S.Ct. 1803, 1807, 29 L.Ed.2d 352 (1971); Burns v. Richardson, 384 U.S. 73, 84-85, S.Ct. 1286, 1292-1293, 16 L.Ed.2d 376 (1966).
| 12
|
412 U.S. 655
93 S.Ct. 2498
37 L.Ed.2d 244
USV PHARMACEUTICAL CORPORATION, Petitioner,v.Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare, et al.
No. 72—666.
Argued April 17, 1973.
Decided June 18, 1973.
Syllabus
Petitioner sells drug products containing citrus bioflavonoid, an extract from fruit skins, as a principal active ingredient. In the 1950's new drug applications (NDA's) were filed and became effective for seven products, and two were sold without any NDA. After the enactment of the 1962 amendments to the Federal Food, Drug, and Cosmetic Act, these products, together with a large number of other bioflavonoid products were examined by the Food and Drug Administration (FDA) for effectiveness. Based upon National Academy of Sciences-National Research Council (NAS—NRC) reports and its own evaluation, FDA gave notice of opportunity for hearing on its proposal to with draw approvals of NDA's for all drugs containing these compounds, alone or in combination with other drugs. Petitioner then brought suit in the District Court, seeking a declaratory judgment that its drugs are exempt from the efficacy requirements under § 107(c)(4), the so-called 'grandfather' clause. FDA refused a stay pending the judicial proceedings and went forward with its administrative action. Petitioner submitted no evidence of 'adequate and well-controlled investigations' as required by § 505(d) to support its claims of effectiveness, and FDA withdrew petitioner's NDA's. Section 107(c)(4) exempts from the effectiveness requirements any drug which on the day preceding the 1962 enactment (1) was commercially used or sold in the United States, (2) was not a 'new drug' as defined in the 1938 Act, and (3) 'was not covered by an effective application' for a new drug under the 1938 Act. The District Court found that two of the products had never been covered by effective NDA's and that, while seven had been covered, their applications had later been withdrawn by petitioner. It concluded that petitioner's drugs were not covered by effective applications, and hence were exempt from the effectiveness criterion. The Court of Appeals reversed on the merits. It held that petitioner's drugs were not entitled to an exemption, that an applicant could not withdraw an NDA once it became effective, that the drugs were 'covered by an effective application,' and that although 'me-too' drugs (similar drugs) of other manufacturers would be exempt, petitioner's 'me-too's' were not exempt. Held:
1. 'Any drug' is used in § 107(c)(4) in the generic sense, which means that the 'me-too's' whether the products of the same or of different manufacturers 'covered' by an 'effective' NDA are not exempt from the efficacy requirement of § 201(p). Pp. 663—665.
2. Prescription drugs on the market are subject to the 1962 efficacy requirements, for if the 1962 amendments are to be comprehensively meaningful, § 107(c)(4) cannot be read so as to provide a loophole to permit the marketing of drugs previously subject to new drug regulation without demonstrating by the new statutory standards that they have the claimed efficacy. Pp. 665 666.
3. The congressional purpose was to exempt only those drugs that never had been subject to the new drug regulation, and therefore any drug for which an NDA had once been effective does not fall within the exempt category. Pp. 666—668.
461 F.2d 223, affirmed.
Opening statement by Daniel M. Friedman, Washington, D.C., for Caspar W. Weinberger, Secretary, HEW, in all five cases.
Andrew L. Frey, Washington, D.C., for respondents.
Joel E. Hoffman, Washington, D.C., for petitioner.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner sells a line of drugs containing as a principal active ingredient, citrus bioflavonoid, which is an extract from fruit skins. The drugs are sold in capsules, syrup, and tablets. In the 1950's new drug applications (NDA's) were filed and became effective for seven of them; two, however, were sold without any NDA. In 1961 the Food and Drug Administration (FDA) advised petitioner that two of the products, when distributed under the existing labels, were not new drugs. These drugs were recommended for a wide variety of ailments from bleeding, to hypertension, to ulcerative colitis. After the 1962 amendments to the Federal Food, Drug, and Cosmetic Act of 1938, 52 Stat. 1040, as amended, 76 Stat. 780, these products, together with a large number of other bioflavonoid products, were examined by FDA for drug effectiveness. The National Academy of Sciences-National Research Council (NAS—NRC) panels reviewed them. One panel on metabolic disorders concluded that the 'use of these materials as hemostatic agents for capillary fragility is felt to be unjustifiable and not proved.' A panel on hematologic disorders found there was no proof that these products were efficacious for any medical use.
2
Based upon the NAS—NRC reports and its own evaluation, FDA gave notice of opportunity for hearing on its proposal to withdraw approvals of NDA's for all drugs containing these compounds, alone or in combination with other drugs. Petitioner thereupon brought suit in the District Court, asking for a declaratory judgment that its drugs are exempt from the efficacy requirements under s 107(c)(4). The administrative proceedings went forward, FDA refusing a stay pending the judicial proceedings. Petitioner submitted no evidence of 'adequate and well-controlled investigations' as required by § 505(d) of the Act, 21 U.S.C. § 355(d), to support its claims of effectiveness. The Commissioner made findings and withdrew petitioner's NDA's.
3
In the District Court petitioner contended that the drugs were exempt from regulation by reason of § 107(c)(4) of the 1962 amendments, which provides:
4
'In the case of any drug which, on the day immediately preceding the enactment date, (A) was commercially used or sold in the United States, (B) was not a new drug as defined by section 201(p) of the basic Act as then in force, and (C) was not covered by an effective application under section 505 of that Act, the amendments to section 201(p) made by this Act shall not apply to such drug when intended solely for use under conditions prescribed, recommended, or suggested in labeling with respect to such drug on that day.'
5
The District Court found that two of the products had never been covered by effective NDA's and that, while seven had been covered, their applications had later been withdrawn by petitioner. It found that the products were 'safe' for use in treating abnormal capillary permeability and fragility. It therefore concluded that, as of the day the 1962 amendments became effective, petitioner's products were not new drugs, were not covered by effective applications within the meaning of § 107(c)(4), and hence were exempt from the effectiveness criterion added to the regulatory provisions of §§ 505 and 201(p) 21 U.S.C. §§ 355 and 321(p). In so ruling, the District Court necessarily determined that it, and not FDA, had jurisdiction to decide exemption questions.
6
The Court of Appeals agreed that the District Court alone had jurisdiction but reversed on the merits.1 461 F.2d 223. It held that none of petitioner's bioflavonoid drugs were entitled to exemption under § 107(c)(4). As to the seven for which NDA's had been filed, it held that an applicant could not withdraw an NDA once it became effective. It concluded that even if the drugs were generally recognized as safe on the day preceding the effective date of the 1962 Act, they were 'covered by an effective application' within the meaning of § 107(c)(4)(C) and thus were not exempt from the 1962 amendments. As to the 'me-too' drugs, those specific drugs for which petitioner had not filed an NDA, the Court of Appeals held that although the 'me-too's' of other manufacturers competing with petitioner's bioflavonoids would be exempt, petitioner's 'me-too's' were not exempt because the NDA's covering the pioneer drugs prepared by petitioner covered all of its products similar in formula and labeling. While the Government agrees that petitioner's 'me-too' products should be accorded the same treatment as the 'me-too's' of other manufacturers who had never filed NDA's, the parties are at odds on other issues.2
7
The resolution of the questions presented turns essentially on the meaning of § 107(c)(4), quoted above. But as background for the problem of construction, references should be made to other 1962 amendments. Section 201(p)3 was amended to redefine a 'new drug' as one not generally recognized by experts as both safe and effective for use under the conditions prescribed or one that has not been used to a material extent and for a material time. Section 505(a) was amended to require affirmative approval of FDA, where previously it had provided that an NDA would automatically become effective unless a contrary order were issued.4 Section 505(d)5 was amended to require disapproval of an application if there is 'a lack of substantial evidence that the drug will have the effect it purports or is represented to have.' Section 505(e) was amended to require that any previous approval of an application be withdrawn whenever it appears from new information or otherwise that there is a lack of substantial evidence of the drug's effectiveness.
8
There remained the problem of the application of the new drug efficacy provisions to drugs already on the market. Without transitional protection all drugs—except those marketed prior to the 1938 Act whose labeling had not been changed and which were exempt from the 'new drug' provision of § 201(p)—would have been in violation of the amended Act unless generally recognized as effective. Even NDA's which were outstanding would have become ineffective because FDA had not approved them under the new criteria. Section 107(c)(2) of the amendments therefore provides that applications which were effective on the day before the enactment date of the 1962 amendments should be deemed 'approved.' Section 107(c)(2) thus eliminated the necessity to review and approve every application already on file.
9
Section 107(c)(3) provides that drugs covered by NDA's already on file whose labeling remains unchanged are not affected by the amended provisions of § 505(b) or by approvals or refusals under § 505(d) insofar as the effectiveness of the drugs is concerned, so long as the application is not withdrawn or suspended under § 505(e). It also provides that the new effectiveness requirement in the withdrawal provision would not apply until two years after the amendments were adopted, or until the NDA approval were withdrawn for reasons other than lack of the drug's effectiveness, whichever came first. It seems apparent that by reason of § 107(c)(3) the industry was assured it could continue to market previously approved NDA's unless and until the NDA was withdrawn and that before such withdrawal they would be given a minimum of two years within which to submit 'substantial evidence' to support the claims for their products.
10
Section 107(c)(4) exempted drugs from the new effectiveness requirements so long as their composition and labeling remained unchanged. This exemption, however, applies only to a product that, on the day before the 1962 amendments became effective, (A) was used or sold commercially in the United States, (B) was generally recognized by the experts as safe; and (C) was not 'covered' by an 'effective' application.
11
The first question is, which 'me-too' copies of an NDA drug are subject to the effecacy requirements to the same extent as the NDA product itself? Are only the 'me-too's' of the same manufacturer 'covered' by an effective application within the meaning of § 107(c)(4)(C) and thus not exempt from § 201(p) or are no 'me-too's' exempt whoever manufactures them? It seems clear that § 107(c) was designed in general to make the new 1962 requirements applicable to drugs then on the market after a two-year grace period. Section 107(c)(4) created an exception from this general policy. Senator Eastland explained these 'transitional provisions,' stating: 'Established drugs which have never been required to go through new drug procedures will not be affected by the new effectiveness test insofar as their existing clauses are concerned.'6 It is true that an NDA covers a particular product or products that it names and that § 505 when applied to an NDA is personal to the manufacturer who files it. Section 505, in other words, addresses itself to drugs as individual products. But we agree with the Government that 'any drug' when used in § 107(c)(4) is used in the generic sense, which means that the 'me-too's,' whether products of the same or of different manufacturers 'covered' by an 'effective' NDA, are not exempt from the efficacy requirements of § 201(p). If that were not true, then, as the Court of Appeals said, the 'me-too's' of one manufacturer covered by an NDA of another manufacturer would be exempt from regulation, while the 'me-too's' of the manufacturer holding the NDA could be regulated. That seems to be a reading of § 107(c)(4) that is discriminatory and needlessly so. For it is avoided by taking 'any drug' in that subsection as a generic term. The transitional nature of § 107(c) works in that direction. A reading to exclude all 'me-too' drugs from the word 'covered' as used in § 107(c)(4) would create a hiatus in the regulatory scheme for which there seems to be no cogent reason. We find no persuasive reason to resolve the ambiguities in favor of the manufacturers so that pre-existing pioneer drugs would be subject to the new efficacy requirements but the 'me-too's' which often do equal service for them would escape the thrust of the 1962 amendments. That resolution of the ambiguities would largely leave pre-1962 drugs of unproved effectiveness untouched by the 1962 amendments and perpetuate a competitive contest in the marketing of ineffective pre-1962 drugs. FDA would, of course, have authority to pursue that category of drugs under the misbranding provisions of the Act. But that slow, cumbersome method is utterly unsuited to the need. We decline to attribute such a self-defeating purpose to the Congress. After all, the 1962 regulatory scheme proposes administrative control through an expert agency in lieu of the more cumbersome 1938 devices, as a result of which, 'good medical practice is hampered, and the consumer is misled until, perhaps years later, the Government has gathered the necessary evidence to sustain its burden of proving the violation in court.'7
12
Petitioner, focusing on prescription drugs,8 contends that the construction of § 107(c)(4) urged by the Government would make the exemption meaningless. Prescription drugs, as FDA points out, are not likely to have come on the market subsequent to 1938 without being a 'new drug' for some time. But the over-the-counter (OTC) drugs, known as the proprietaries, are often made up of old, established ingredients. Such products, coming on the market for the first time between 1938 and 1962, might never have been subject to new drug regulation. If so, they would be entitled to the exemption provided by § 107(c)(4). Senator Kefauver, the main sponsor of the 1962 Act, deplored the absence in an earlier bill of the failure to submit proprietaries on the market to tests of efficacy. He said:
13
'Effectiveness, as well as safety, should apply to new proprietary drugs, but proprietaries now on the market are not to be subject under the present bill to the provisions requiring them, upon notice by the FOA (sic), to support their claims for effectiveness. I think they should be so required. That is a matter which can be remedied in conference or by other legislation.'9
14
It can be inferred from this statement that prescription drugs on the market were to be subjected to the efficacy requirements. If the 1962 amendments are to be comprehensively meaningful, we decline to read § 107(c)(4) so as to provide a loophole so that the manufacturers can go on marketing drugs previously subject to new drug regulation without demonstrating by the new statutory standards that they are effective as claimed.
15
The second question presented by this case is whether an applicant could have withdrawn or 'deactivated' an NDA prior to the 1962 amendments so that its drug was no longer 'covered by an effctive application' and thus is now exempt from efficacy regulation by reason of § 107(c)(4). Petitioner in 1961 had stated in a letter to the Director of New Drug Branch of the Bureau of Medicine in FDA that '(i)t is our recollection that the C.V.P. class of products were no longer considered to be new drugs . . ..' Petitioner in 1961 also stopped filing supplemental information as required by regulation with regard to the products for which NDAs had become effective. It claims that these acts were sufficient to withdraw the NDA's and to bring its products within the exemption.
16
Initially, we repeat that the elgislative history indicates that it was Congress' purpose to exempt only those drugs that never had been subject to the new drug regulation.10 Quite obviously, any drug for which an NDA once had been effective does not fall within that category.
17
Congress rejected an approach that would have exempted from the efficacy requirements of the 1962 amendments all drugs then marketed which had become generally recognized as safe. It now would be irrational for us to construe § 107(c)(4) of the amendments to exempt a drug merely because the manufacturer had taken some formal steps totally unrelated to the drug's effectiveness to indicate that the drug was no longer a 'new drug' under the pre-1962 standards. The result would be that some drugs for which an NDA had been filed would be subject to the efficacy requirements and some would not, even though one could not differentiate between the drugs on the grounds of effectiveness. For example, 43 NDA's had been filed with respect to bioflavonoids and related compounds. There is no reason to believe that any product is more or less effective than another. According to the Solicitor General, the 'state of activity, inactivity, or withdrawal' of the applications varied from one to the next when the 1962 amendments became effective. It would be totally inconsistent with the statutory scheme and the policy underlying the 1962 amendments, as well as patently unjust, to conclude that some manufacturers could continue to market their bioflavonoid products, but others could not. We cannot attribute such an intention to Congress and, accordingly, cannot agree with petitioner that its NDA's had been withdrawn prior to 1962 so that its bioflavonoid products were no longer 'covered by an effective application.'
18
Affirmed.
19
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
20
Mr. Justice STEWART took no part in the decision of this case.
1
Unlike the situation in CIBA Copr. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230, the order of the Commissioner withdrawing petitioner's NDA's had not become final prior to the District Court's assuming jurisdiction. In fact, the Court of Appeals for the District of Columbia Circuit reversed the Commissioner's decision, 151 U.S.App.D.C. 284, 466 F.2d 455, and the proceedings on remand are now pending before the Commission. Thus, petitioner was not barred from proceeding in the Dsitrict Court. Cf. CIBA Corp. v. Weinberger, supra. Our decision today is not meant to indicate that the District Court, had it concluded that its jurisdiction was concurrent with that of FDA, would not have abused its discretion in refusing to stay this action pending the outcome of administrative proceedings. Cf. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235. The Court of Appeals below found it unnecessary to consider whether petitioner had failed to exhaust its administrative remedies. 461 F.2d, at 226.
2
There lurks in the case a question whether a drug could have been unsafe prior to the 1962 amendments because it was ineffective in treating the conditions for which its use was recommended by the label. That question, however, was not presented in the petition for certiorari.
3
'The term 'new drug' means—
'(1) Any drug (except a new animal drug or an animal feed bearing or containing a new animal drug) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof, except that such a drug not so recognized shall not be deemed to be a 'new drug' if at any time prior to the enactment of this chapter it was subject to the Food and Drugs Act of June 30, 1906, as amended, and if at such time its labeling contained the same representations concerning the conditions of its use; or
'(2) Any drug (except a new animal drug or an animal feed bearing or containing a new animal drug) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized, but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions.' 21 U.S.C. § 321(p).
4
Section 505(c) provides:
'Within one hundred and eighty days after the filing of an application under this subsection, or such additional period as may be agreed upon by the Secretary and the applicant, the Secretary shall either—
'(1) approve the application if he then finds that none of the grounds for denying approval specified in subsection (d) applies, or
'(2) give the applicant notice of an opportunity for a hearing before the Secretary under subsection (d) . . . on the question whether such application is approvable. If the applicant elects to accept the opportunity for hearing by written request within thirty days after such notice, such hearing shall commence not more than ninety days after the expiration of such thirty days unless the Secretary and the applicant otherwise agree. Any such hearing shall thereafter be conducted on an expedited basis and the Secretary's order thereon shall be issued within ninety days after the date fixed by the Secretary for filing final briefs.' 21 U.S.C. § 355(c).
5
That section provides:
'If the Secretary finds, after due notice to the applicant in accordance with subsection (c) . . . and giving him an opportunity for a hearing, in accordance with said subsection, that (1) the investigations, reports of which are required to be submitted to the Secretary pursuant to subsection (b) . . ., do not include adequate tests by all methods reasonably applicable to show whether or not such drug is safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof; (2) the results of such tests show that such drug is unsafe for use under such conditions or do not show that such drug is safe for use under such conditions; (3 the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of such drug are inadequate to preserve its identity, strength, quality, and purity; (4) upon the basis of the information submitted to him as part of the application, or upon the basis of any other information before him with respect to such drug, he has insufficient information to determine whether such drug is safe for use under such conditions; or (5) evaluated on the basis of the information submitted to him as part of the application and any other information before him with respect to such drug, there is a lack of substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof; or (6) based on a fair evaluation of all material facts, such labeling is false or misleading in any particular; he shall issue an order refusing to approve the application. If, after such notice and opportunity for hearing, the Secretary finds that clauses (1) through (6) do not apply, he shall issue an order approving the application. As used in this subsection and subsection (e) . . ., the term 'substantial evidence' means evidence consisting of adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved, on the basis of which it could fairly and responsibly the concluded by such experts that the drug will have the effect it purports or is represented to have under the conditions of the prescribed, recommended, or suggested in the labeling or proposed labelling thereof.' 21 U.S.C. § 355(d).
6
108 Cong.Rec. 17366.
7
H.R.Rep. No. 2464, 87th Cong., 2d Sess., p. 3.
8
Prescription drugs, as defined by § 503(b), 21 U.S.C. § 353(b), include any drug for human use which (A) is habit-forming; (B) 'because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such drug'; or (C) is limited to prescription use in the application under § 505.
9
108 Cong.Rec. 17368.
10
See S.Rep. No. 1744, 87th Cong., 2d Sess., pt. 2, p. 8; H.R.Rep. No. 2464, 87th Cong., 2d Sess., 12 H.R.Rep. No. 2526, 87th Cong., 2d Sess., 22—23; U.S. Code Cong. & Admin.News 1962, p. 2884; 108 Cong.Rec. 17366.
| 78
|
413 U.S. 376
93 S.Ct. 2553
37 L.Ed.2d 669
PITTSBURGH PRESS COMPANY, Petitioner,v.The PITTSBURGH COMMISSION ON HUMAN RELATIONS et al.
No. 72—419.
Argued March 20, 1973.
Decided June 21, 1973.
Rehearing Denied Oct. 9, 1973.
See 414 U.S. 881, 94 S.Ct. 30.
Syllabus
Following a complaint and hearing, respondent Pittsburgh Commission on Human Relations held that petitioner had violated a city ordinance by using an advertising system in its daily newspaper whereby employment opportunities are published under headings designating job preference by sex. On appeal from affirmance of the Commission's cease-and-desist order, the court below barred petitioner from referring to sex in employment headings, unless the want ads placed beneath them relate to employment opportunities not subject to the ordinance's prohibition against sex discrimination. Petitioner contends that the ordinance contravenes its constitutional rights to freedom of the press. Held: The Pittsburgh ordinance as construed to forbid newspapers to carry sex-designated advertising columns for nonexempt job opportunities does not violate petitioner's First Amendment rights. Pp. 381—391.
(a) The advertisements here, which did not implicate the newspaper's freedon of expression or its financial viability, were 'purely commercial advertising,' which is not protected by the First Amendment. Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, distinguished. Pp. 384 387.
(b) Petitioner's argument against maintaining the Chrestensen distinction between commercial and other speech is unpersuasive in the context of a case like this, where the regulation of the want ads was incidental to and coextensive with the regulation of employment discrimination. Pp. 387—389.
(c) The Commission's order, which was clear and no broader than necessary, is not a prior restraint endangering arguably protected speech. Pp. 389—390.
4. Pa.Cmwlth. 448, 287 A.2d 161, affirmed.
Charles Richard Volk, Pittsburgh, Pa., for petitioner.
Eugene B. Strassburger, III, Pittsburgh, Pa., for respondents The Pittsburgh Commission on Human Relations and others.
Marjorie H. Matson, Pittsburgh, Pa., for respondent The National Organization for Women, Inc.
[amici curiae information on Page 377 intentionally omitted]
Mr. Justice POWELL delivered the opinion of the Court.
1
The Human Relations Ordinance of the City of Pittsburgh (the Ordinance) has been construed below by the courts of Pennsylvania as forbidding newspapers to carry 'help-wanted' advertisements in sex-designated columns except where the employer or advertiser is free to make hiring or employment referral decisions on the basis of sex. We are called upon to decide whether the Ordinance as so construed violates the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments. This issue is a sensitive one, and a full understanding of the context in which it arises is critical to its resolution.
2
* The Ordinance proscribes discrimination in employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex.1 In relevant part, § 8 of the Ordinance declares it to be unlawful employment practice, 'except where based upon a bona fide occupational exemption certified by the Commission':
3
'(a) For any employer to refuse to hire any person or otherwise discriminate against any person with respect to hiring . . . because of . . . sex.
4
'(e) For any 'employer,' employment agency or labor organization to publish or circulate, or to cause to be published or circulated, any notice or advertisement relating to 'employment' or membership which indicates any discrimination because of . . . sex.
5
'(j) For any person, whether or not an employer, employment agency or labor organization, to aid . . . in the doing of any act declared to be an unlawful employment practice by this ordinance . . ..' The present proceedings were initiated on October 9, 1969, when the National Organization for Women, Inc. (NOW) filed a complaint with the Pittsburgh Commission on Human Relations (the Commission), which is charged with implementing the Ordinance. The complaint alleged that the Pittsburgh Press Co. (Pittsburgh Press) was violating § 8(j) of the Ordinance by 'allowing employers to place advertisements in the male or female columns, when the jobs advertised obviously do not have bona fide occupational qualifications or exceptions . . ..' Finding probable cause to believe that Pittsburgh Press was violating the Ordinance, the Commission held a hearing, at which it received evidence and heard argument from the parties and from other interested organizations. Among the exhibits introduced at the hearing were clippings from the help-wanted advertisements carried in the January 4, 1970, edition of the Sunday Pittsburgh Press, arranged by column.2 In many cases, the advertisements consisted simply of the job title, the salary, and the employment agency carrying the listing, while others included somewhat more extensive job descriptions.3
6
On July 23, 1970, the Commission issued a Decision and Order.4 It found that during 1969 Pittsburgh Press carried a total of 248,000 help-wanted advertisements; that its practice before October 1969 was to use columns captioned 'Male Help Wanted,' 'Female Help Wanted,' and 'Male-Female Help Wanted'; that it thereafter used the captions 'Jobs—Male Interest,' 'Jobs—Female Interest,' and 'Male-Female'; and that the advertisements were placed in the respective columns according to the advertiser's wishes, either volunteered by the advertiser or offered in response to inquiry by Pittsburgh Press.5 The Commission first concluded that § 8(e) of the Ordinance forbade employers, employment agencies, and labor organizations to submit advertisements for placement in sex-designated columns. It then held that Pittsburgh Press, in violation of § 8(j), aided the advertisers by maintaining a sex-designated classification system. After specifically considering and rejecting the argument that the Ordinance violated the First Amendment, the Commission ordered Pittsburgh Press to cease and desist such violations and to utilize a classification system with no reference to sex. This order was affirmed in all relevant respects by the Court of Common Pleas.6
7
On appeal in the Commonwealth Court, the scope of the order was narrowed to allow Pittsburgh Press to carry advertisements in sex-designated columns for jobs exempt from the antidiscrimination provisions of the Ordinance. As pointed out in that court's opinion, the Ordinance does not apply to employers of fewer than five persons, to employers outside the city of Pittsburgh, or to religious, fraternal, charitable, or sectarian organizations, nor does it apply to employment in domestic service or in jobs for which the Commission has certified a bona fide occupational exception. The modified order bars 'all reference to sex in employment advertising column headings, except as may be exempt under said Ordinance, or as may be certified as exempt by said Commission.' 4 Pa.Cmwlth. 448, 470, 287 A.2d 161, 172 (1972). The Pennsylvania Supreme Court denied review, and we granted certiorari to decide whether, as Pittsburgh Press contends, the modified order violates the First Amendment by restricting its editorial judgment. 409 U.S. 1036, 93 S.Ct. 515, 34 L.Ed.2d 485 (1972).7 We affirm.
II
8
There is little need to reiterate that the freedoms of speech and of the press rank among our most cherished liberties. As Mr. Justice Black put it: 'In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.' New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 2143, 29 L.Ed.2d 822 (1971) (concurring opinion). The durability of our system of self-government hinges upon the preservation of these freedoms.
9
'(S)ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. . . . A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.' Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936).
10
The repeated emphasis accorded this theme in the decisions of this Court serves to underline the narrowness of the recognized exceptions to the principle that the press may not be regulated by the Government. Our inquiry must therefore be whether the challenged order falls within any of these exceptions.
11
At the outset, however, it is important to identify with some care the nature of the alleged abridgment. This is not a case in which the challenged law arguably disables the press by undermining its institutional viability. As the press has evolved from an assortment of small printers into a diverse aggregation including large publishing empires as well, the parallel growth and complexity of the economy have led to extensive regulatory legislation from which '(t)he publisher of a newspaper has no special immunity.' Associated Press v. NLRB, 301 U.S. 103, 132, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937). Accordingly, this Court has upheld application to the press of the National Labor Relations Act, ibid.; the Fair Labor Standards Act, Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); and the Sherman Antitrust Act, Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969). See also Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Yet the Court has recognized on several occasions the special institutional needs of a vigorous press by striking down laws taxing the advertising revenue of newspapers with circulations in excess of 20,000, Grosjean v. American Press Co., supra; requiring a license for the distribution of printed matter, Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); and prohibiting the door-to-door distribution of leaflets. Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).8
12
But no suggestion is made in this case that the Ordinance was passed with any purpose of muzzling or curbing the press. Nor does Pittsburgh Press argue that the Ordinance threatens its financial viability9 or impairs in any significant way its ability to publish and distribute its newspaper. In any event, such a contention would not be supported by the record.
III
13
In a limited way, however, the Ordinance as construed does affect the make-up of the help-wanted section of the newspaper. Under the modified order, Pittsburgh Press will be required to abandon its present policy of providing sex-designated columns and allowing advertisers to select the columns in which their help-wanted advertisements will be placed. In addition, the order does not allow Pittsburgh Press to substitute a policy under which it would make an independent decision regarding placement in sex-designated columns.
14
Respondents rely principally on the argument that this regulation is permissible because the speech is commercial speech unprotected by the First Amendment. The commercial-speech doctrine is traceable to the brief opinion in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), sustaining a city ordinance which had been interpreted to ban the distribution by handbill of an advertisement soliciting customers to pay admission to tour a submarine. Mr. Justice Roberts, speaking for a unanimous Court, said:
15
'We are . . . clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.' Id., at 54, 62 S.Ct., at 921.
16
Subsequent cases have demonstrated, however, that speech is not rendered commercial by the mere fact that it relates to an advertisement. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a city official of Montgomery, Alabama, brought a libel action against four clergymen and the New York Times. The names of the clergymen had appeared in an advertisement, carried in the Times, criticizing police action directed against members of the civil rights movement. In holding that this political advertisement was entitled to the same degree of protection as ordinary speech, the Court stated:
17
'That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold.' Id., at 266, 84 S.Ct., at 718.
18
See also Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Ginzburg v. United States, 383 U.S. 463, 474, 86 S.Ct. 942, 949, 16 L.Ed.2d 31 (1966). If a newspaper's profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.
19
The critical feature of the advertisement in Valentine v. Chrestensen was that, in the Court's view, it did no more than propose a commercial transaction, the sale of admission to a submarine. In New York Times Co. v. Sullivan, Mr. Justice Brennan, for the Court, found the Chrestensen advertisement easily distinguishable:
20
'The publication here was not a 'commercial' advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern.' 376 U.S., at 266, 84 S.Ct., at 718.
21
In the crucial respects, the advertisements in the present record resemble the Chrestensen rather than the Sullivan advertisement. None expresses a position on whether, as a matter of social policy, certain positions ought to be filled by members of one or the other sex, nor does any of them criticize the Ordinance or the Commission's enforcement practices. Each is no more than a proposal of possible employment. The advertisements are thus classic examples of commercial speech.
22
But Pittsburgh Press contends that Chrestensen is not applicable, as the focus in this case must be upon the exercise of editorial judgment by the newspaper as to where to place the advertisement rather than upon its commercial content. The Commission made a finding of fact that Pittsburgh Press defers in every case to the advertiser's wishes regarding the column in which a want ad should be placed. It is nonetheless true, however, that the newspaper does make a judgment whether or not to allow the advertiser to select the column. We must therefore consider whether this degree of judgmental discretion by the newspaper with respect to a purely commercial advertisement is distinguishable, for the purposes of First Amendment analysis, from the content of the advertisement itself. Or, to put the question differently, is the conduct of the newspaper with respect to the employment want ad entitled to a protection under the First Amendment which the Court held in Chrestensen was not available to a commercial advertiser?
23
Under some circumstances, at least, a newspaper's editorial judgments in connection with an advertisement take on the character of the advertisement and, in those cases, the scope of the newspaper's First Amendment protection may be affected by the content of the advertisement. In the context of a libelous advertisement, for example, this Court has held that the First Amendment does not shield a newspaper from punishment for libel when with actual malice it publishes a falsely defamatory advertisement. New York Times Co. v. Sullivan, supra, at 279—280, 84 S.Ct., at 725—726. Assuming the requisite state of mind, then, nothing in a newspaper's editorial decision to accept an advertisement changes the character of the falsely defamatory statements. The newspaper may not defend a libel suit on the ground that the falsely defamatory statements are not its own.
24
Similarly, a commercial advertisement remains commercial in the hands of the media, at least under some circumstances.10 In Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972), aff's 333 F.Supp. 582 (D.C.1971), this Court summarily affirmed a district court decision sustaining the constitutionality of 15 U.S.C. § 1335, which prohibits the electronic media from carrying cigarette advertisements. The District Court there found that the advertising should be treated as commercial speech, even though the First Amendment challenge was mounted by radio broadcasters rather than by advertisers. Because of the peculiar characteristics of the electronic media, National Broadcasting Co. v. United States, 319 U.S. 190, 226—227, 63 S.Ct. 997, 1014, 87 L.Ed. 1344 (1943), Capital Broadcasting is not dispositive here on the ultimate question of the constitutionality of the Ordinance. Its significance lies, rather, in its recognition that the exercise of this kind of editorial judgment does not necessarily strip commercial advertising of its commercial character.11
25
As for the present case, we are not persuaded that either the decision to accept a commercial advertisement which the advertiser directs to be placed in a sex-designated column or the actual placement there lifts the newspaper's actions from the category of commercial speech. By implication at least, an advertiser whose want ad appears in the 'Jobs—Male Interest' column is likely to discriminate against women in his hiring decisions. Nothing in a sex-designated column heading sufficiently dissociates the designation from the want ads placed beneath it to make the placement severable for First Amendment purposes from the want ads themselves. The combination, which conveys essentially the same message as an overtly discriminatory want ad, is in practical effect an integrated commercial statement.
26
Pittsburgh Press goes on to argue that if this package of advertisement and placement is commercial speech, then commercial speech should be accorded a higher level of protection than Chrestensen and its progeny would suggest. Insisting that the exchange of information is as important in the commercial realm as in any other, the newspaper here would have us abrogate the distinction between commercial and other speech.
27
Whatever the merits of this contention may be in other contexts, it is unpersuasive in this case. Discrimination in employment is not only commercial activity, it is illegal commercial activity under the Ordinance.12 We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different if the nature of the transaction were indicated by placement under columns captioned 'Narcotics for Sale' and 'Prostitutes Wanted' rather than stated within the four corners of the advertisement.
28
The illegality in this case may be less overt, but we see no difference in principle here. Sex discrimination in nonexempt employment has been declared illegal under s 8(a) of the Ordinance, a provision not challenged here. And § 8(e) of the Ordinance forbids and employer, employment agency, or labor union to publish or cause to be published any advertisement 'indicating' sex discrimination. This, too, is unchallenged. Moreover, the Commission specifically concluded that it is an unlawful employment practice for an advertiser to cause an employment advertisement to be published in a sex-designated column.
29
Section 8(j) of the Ordinance, the only provision which Pittsburgh Press was found to have violated and the only provision under attack here, makes it unlawful for 'any person . . . to aid . . . in the doing of any act declared to be an unlawful employment practice by this ordinance.' The Commission and the courts below concluded that the practice of placing want ads for nonexempt employment in sex-designated columns did indeed 'aid' employers to indicate illegal sex preferences. The advertisements, as embroidered by their placement, signaled that the advertisers were likely to show an illegal sex preference in their hiring decisions. Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.
IV
30
It is suggested, in the brief of an amicus curiae, that apart from other considerations, the Commission's order should be condemned as a prior restraint on expression.13 As described by Blackstone, the protection against prior restraint at common law barred only a system of administrative censorship:
31
'To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, . . . is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.' 4 W. Blackstone, Commentaries *152.
32
While the Court boldly stepped beyond this narrow doctrine in Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), in striking down an injunction against further publication of a newspaper found to be a public nuisance, it has never held that all injunctions are impermissible. See Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951). The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.
33
The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. Cf. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). Moreover, the order is clear and sweeps no more broadly than necessary. And because no interim relief was granted, the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected.14
V
34
We emphasize that nothing in our holding allows government at any level to forbid Pittsburgh Press to publish and distribute advertisements commenting on the Ordinance, the enforcement practices of the Commission, or the propriety of sex preferences in employment. Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh Press, its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial. We hold only that the Commission's modified order, narrowly drawn to prohibit placement in sex-designated columns of advertisements for nonexempt job opportunities, does not infringe the First Amendment rights of Pittsburgh Press.
35
Affirmed.
APPENDIX TO OPINION OF THE COURT
36
Among the advertisements carried in the Sunday Pittsburgh Press on January 4, 1970, was the following one, submitted by an employment agency and placed in the "JOBS--MALE INTEREST" column:
37
ACAD. INSTRUCTORS.................... $13,000
ACCOUNTANTS........................... 10,000
ADM. ASS'T, CPA....................... 15,000
ADVERTISING MGR....................... 10,000
BOOKKEEPER F-C......................... 9,000
FINANCIAL CONSULTANT.................. 12,000
MARKETING MANAGER..................... 15,000
MGMT. TRAINEE.......................... 8,400
OFFICE MGR. TRAINEE.................... 7,200
LAND DEVELOPMENT...................... 30,000
PRODUCT. MANAGER...................... 18,000
PERSONNEL MANAGER....................... OPEN
SALES-ADVERTISING...................... 8,400
SALES-CONSUMER......................... 9,600
SALES-INDUSTRIAL...................... 12,000
SALES-MACHINERY........................ 8,400
RETAIL MGR............................ 15,000
Most Positions Fee Paid
EMPLOYMENT SPECIALISTS
2248 Oliver Bldg. 261-2250
Employment Agency
App. 311a
On the same day, the agency's advertisement in the "JOBS--FEMALE INTEREST" column was as follows:
38
ACAD. INSTRUCTORS........................ $13,000
ACCOUNTANTS................................ 6,000
AUTO-INS. UNDEWRITER........................ OPEN
BOOKKEEPER-INS............................. 5,000
CLERK-TYPIST............................... 4,200
DRAFTSMAN.................................. 6,000
KEYPUNCH D. T.............................. 6,720
KEYPUNCH BEGINNER.......................... 4,500
PROOFREADER................................ 4,900
RECEPTIONIST—Mature D. T.................... OPEN
EXEC. SEC.................................. 6,300
SECRETARY.................................. 4,800
SECRETARY, Equal Oppor..................... 6,000
SECRETARY D. T............................. 5,400
TEACHERS-Pt. Time......................... day 33.
TYPIST-Statistical......................... 5,000
Most Positions Fee Paid
EMPLOYMENT SPECIALISTS
2248 Oliver Bldg. 261-2250
Employment Agency
Ibid.
[Appendix continued on p. 393.]
39
Characteristic of those offering fuller job descriptions was the following advertisement, carried in the "JOBS--MALE INTEREST" column:
STAFF MANAGEMENT TRAINEE
40
TO $12,000 If you have had background in the management of small business then this could be the stepping stone you have been waiting for. You will be your own boss with no with no cash outlay. Call or write today.
App. 313a
41
Mr. Chief Justice BURGER, dissenting.
42
Despite the Court's efforts to decide only the narrow question presented in this case, the holding represents, for me, a disturbing enlargement of the 'commercial speech' doctrine, Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), and a serious encroachment on the freedom of press guaranteed by the First Amendment. It also launches the courts on what I perceive to be a treacherous path of defining what layout and organizational decisions of newspapers are 'sufficiently associated' with the 'commercial' parts of the papers as to be constitutionally unprotected and therefore subject to governmental regulation. Assuming, arguendo, that the First Amendment permits the States to place restrictions on the content of commercial advertisements, I would not enlarge that power to reach the layout and organizational decisions of a newspaper.
43
Pittsburgh Press claims to have decided to use sex-designated column headings in the classified advertising section of its newspapers to facilitate the use of classified ads by its readers. Not only is this purpose conveyed to the readers in plain terms, but the newspaper also explicitly cautions readers against interpreting the column headings as indicative of sex discrimination. Thus, before each column heading the newspaper prints the following 'Notice to Job Seekers':
44
'Jobs are arranged under Male and Female classifications for the convenience of our readers. This is done because most jobs generally appeal more to persons of one sex than the other. Various laws and ordinances—local, state and federal, prohibit discrimination in employment because of sex unless sex is a bona fide occupational requirement. Unless the advertisement itself specifies one sex or the other, job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination.'
45
To my way of thinking, Pittsburg Press has clearly acted within its protected journalistic discretion in adopting this arrangement of its classified advertisements. Especially in light of the newspaper's 'Notice to Job Seekers,' it is unrealistic for the Court to say, as it does, that the sex-designated column headings are not 'sufficiently dissociate(d)' from the 'want ads placed beneath (them) to make the placement severable for First Amendment purposes from the want ads themselves.'1 Supra, at 388. In any event, I believe the First Amendment freedom of press includes the right of a newspaper to arrange the content of its paper, whether it be news items, editorials, or advertising, as it sees fit.2 In the final analysis, the readers are the ultimate 'controllers' no matter what excesses are indulged in by even a flamboyant or venal press; that if often takes a long time for these influences to bear fruit is inherent in our system.
46
The Court's conclusion that the Commission's cease-and-desist order does not constitute a prior restraint gives me little reassurance. That conclusion is assertedly based on the view that the order affects only a 'continuing course of repetitive conduct.' Supra, at 390. Even if that were correct, I would still disagree since the Commission's order appears to be in effect an outstanding injunction against certain publications—the essence of a prior restraint. In any event, my understanding of the effects of the Commission's order differs from that of the Court. As noted in the Court's opinion, the Commonwealth Court narrowed the injunction to permit Pittsburgh Press to use sex-designated column headings for want-ads dealing with jobs exempt under the Ordinance. The Ordinance does not apply, for example,
47
'to employers of fewer than five persons, to employers outside the city of Pittsburgh, or to religious, fraternal, charitable or sectarian organizations, nor does it apply to employment in domestic service or in jobs for which the Commission has certified a bona fide occupational exception.' Supra, at 380.
48
If Pittsburgh Press chooses to continue using its column headings for advertisements submitted for publication by exempted employers, it may well face difficult legal questions in deciding whether a particular employer is or is not subject to the Ordinance. If it makes the wrong decision and includes a covered advertisement under a sex-designated column heading, it runs the risk of being held in summary contempt for violating the terms of the order.3
49
In practical effect, therefore, the Commission's order in this area may have the same inhibiting effect as the injunction in Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), which permanently enjoined the publishers of a newspaper from printing a 'malicious, scandalous or defamatory newspaper, as defined by law.' Id., at 706, 51 S.Ct., at 627. We struck down the injunction in Near as a prior restraint. In 1971, we reaffirmed the principle of presumptive unconstitutionality of prior restraint in Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). Indeed, in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraint as presumptively unconstitutional. In this case, the respondents have, in my view, failed to carry their burden. I would therefore hold the Commission's order to be impermissible prior restraint. At the very least, we ought to make clear that a newspaper may not be subject to summary punishment for contempt for having made an 'unlucky' legal guess on a particular advertisement or for having failed to secure advance Commission approval of a decision to run an advertisement under a sex-designated column.
50
Mr. Justice DOUGLAS, dissenting.
51
While I join the dissent of Mr. Justice STEWART, I add a few words. As he says, the press, like any other business, can be regulated on business and economic matters. Our leading case on that score is Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013, which holds that a news-gathering agency may be made accountable for violations of the antitrust laws. By like token, a newspaper, periodical, or TV or radio broadcaster may be subjected to labor relations laws. And that regulation could constitutionally extend to the imposition of penalties or other sanctions if any unit of the press violated laws that barred discrimination in employment based on race or religion or sex.
52
Pennsylvania has a regulatory regime designed to eliminate discrimination in employment based on sex; and the commission in charge of that program issues cease-and-desist orders against violators. There is no doubt that Pittsburgh Press would have no constitutional defense against such a cease-and-desist order issued against it for discriminatory employment practices.
53
But I believe that Pittsburgh Press by reason of the First Amendment may publish what it pleases about any law without censorship or restraint by Government. The First Amendment does not require the press to reflect any ideological or political creed reflecting the dominant philosophy, whether transient or fixed. It may use its pages and facilities to denounce a law and urge its repeal or, at the other extreme, denounce those who do not respect its letter and spirit.
54
Commercial matter, as distinguished from news, was held in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, not to be subject to First Amendment protection. My views on that issue have changed since 1942, the year Valentine was decided. As I have stated on earlier occasions, I believe that commercial materials also have First Amendment protection. If Empire Industries Ltd., doing business in Pennsylvania, wanted to run full-page advertisements denouncing or criticizing this Pennsylvania law, I see no way in which Pittsburgh Press could be censored or punished for running the ad, any more than a person could be punished for uttering the contents of the ad in a public address in Independence Hall. The pros and cons of legislative enactments are clearly discussion or dialogue that is highly honored in our First Amendment traditions.
55
The want ads which gave rise to the present litigation express the preference of one employer for the kind of help he needs. If he carried through to hiring and firing employees on the basis of those preferences, the state commission might issue a remedial order against him, if discrimination in employment was shown. Yet he could denounce that action with impunity and Pittsburgh Press could publish his denunciation or write an editorial taking his side also with impunity.
56
Where there is a valid law, the Government can enforce it. But there can be no valid law censoring the press or punishing it for publishing its views or the views of subscribers or customers who express their ideas in letters to the editor or in want ads or other commercial space. There comes a time, of course, when speech and action are so closely brigaded that they are really one. False shouting 'fire' in a theater, the example given by Mr. Justice Holmes, Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, is one example. Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, written by Mr. Justice Black, is another. There are here, however, no such unusual circumstances.
57
As Mr. Justice STEWART says, we have witnessed a growing tendency to cut down the literal requirements of First Amendment freedoms so that those in power can squelch someone out of step. Historically, the miscreant has usually been an unpopular minority. Today it is a newspaper that does not bow to the spreading bureaucracy that promises to engulf us. It may be that we have become so stereotyped as to have earned that fate. But the First Amendment presupposes free-wheeling, independent people whose vagaries include ideas spread across the entire spectrum of thoughts and beliefs.* I would let any expression in that broad spectrum flourish, unrestrained by Government, unless it was an integral part of action—the only point which in the Jeffersonian philosophy marks the permissible point of governmental intrusion.
58
I therefore dissent from affirmance of this judgment.
59
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS joins, dissenting.
60
I have no doubt that it is within the police power of the city of Pittsburgh to prohibit discrimination in private employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex. I do not doubt, either, that in enforcing such a policy the city may prohibit employers from indicating any such discrimination when they make known the availability of employment opportunities. But neither of those propositions resolves the question before us in this case.
61
That question, to put it simply, is whether any government agency—local, state, or federal—can tell a newspaper in advance what it can print and what it cannot. Under the First and Fourteenth Amendments I think no government agency in this Nation has any such power.1
62
It is true, of course, as the Court points out, that the publisher of a newspaper is amenable to civil and criminal laws of general applicability. For example, a newspaper publisher is subject to nondiscriminatory general taxation,2 and to restrictions imposed by the National Labor Relations Act,3 the Fair Labor Standards Act,4 and the Sherman Act.5 In short, as businessman or employer, a newspaper publisher is not exempt from laws affecting businessmen and employers generally. Accordingly, I assume that the Pittsburgh Press Co., as an employer, can be and is completely within the coverage of the Human Relations Ordinance of the city of Pittsburgh.
63
But what the Court approves today is wholly different. It approves a government order dictating to a publisher in advance how he must arrange the layout of pages in his newspaper.
64
Nothing in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 remotely supports the Court's decision. That case involved the validity of a local sanitary ordinance that prohibited the distribution in the streets of 'commercial and business advertising matter.' The Court held that the ordinance could be applied to the owner of a commercial tourist attraction who wanted to drum up trade by passing out handbills in the streets. The Court said it was 'clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment.' Id., at 54, 62 S.Ct., at 921. Whatever validity the Chrestensen case may still retain when limited to its own facts,6 it certainly does not stand for the proposition hat the advertising pages of a newspaper are outside the protection given the newspaper by the First and Fourteenth Amendments. Any possible doubt on that score was surely laid to rest in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.7
65
So far as I know, this is the first case in this or any other American court that permits a government agency to enter a composing room of a newspaper and dictate to the publisher the layout and makeup of the newspaper's pages. This is the first such case, but I fear it may not be the last. The camel's nose is in the tent. 'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way. . ..' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746.
66
So long as Members of this Court view the First Amendment as no more than a set of 'values' to be balanced against other 'values,' that Amendment will remain in grave jeopardy. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed. 446 (First and Fourteenth Amendment protections outweighed by public interest in 'quality of life,' 'total community environment,' 'tone of commerce,' 'public safety'); Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (First Amendment claim asserted by newsman to maintain confidential relationship with his sources outweighed by obligation to give information to grand jury); New York Times Co. v. United States, 403 U.S. 713, 748, 91 S.Ct. 2140, 2158, 29 L.Ed.2d 822 (Burger, C.J., dissenting) (First Amendment outweighed by judicial problems caused by 'unseemly haste'); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 99, 93 S.Ct. 2080, 2131, 36 L.Ed.2d 772 (Brennan, J., dissenting) (balancing of 'the competing First Amendment interests').
67
It is said that the goal of the Pittsburgh ordinance is a laudable one, and so indeed it is. But, in the words of Mr. Justice Brandeis, 'Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.' Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dissenting opinion). And, as Mr. Justice Black once pointed out, 'The motives behind the state law may have been to do good. But . . . (h) istory indicates that urges to do good have led to the burning of books and even to the burning of 'witches." Beauharnais v. Illinois, 343 U.S. 250, 274, 72 S.Ct. 725, 739, 96 L.Ed. 919 (dissenting opinion).
68
The Court today holds that a government agency can force a newspaper publisher to print his classified advertising pages in a certain way in order to carry out governmental policy. After this decision, I see no reason why government cannot force a newspaper publisher to conform in the same way in order to achieve other goals thought socially desirable. And if government can dictate the layout of a newspaper's classified advertising pages today, what is there to prevent it from dictating the layout of the news pages tomorrow?
69
Those who think the First Amendment can and should be subordinated to other socially desirable interests will hail today's decision. But I find it frightening. For I believe the constitutional guarantee of a free press is more than recatory. I believe it is a clear command that government must never be allowed to lay its heavy editorial hand on any newspaper in this country.
70
Mr. Justice BLACKMUN, dissenting.
71
I dissent substantially for the reasons stated by Mr. Justice STEWART in his opinion. But I do not subscribe to the statements contained in that paragraph of his opinion which constitutes the second full paragraph on page 2567, supra.
1
For the full text of the Ordinance and the 1969 amendment adding sex to the list of proscribed classifications, see App. 410a—436a.
2
These exhibits are reproduced in App. 299a—333a.
3
For examples of these want ads, see the Appendix to this opinion, infra, at 392—393.
4
The full text of the Commission's Decision and Order is set forth in the Appendix to the Petition for Certiorari, at 1a 18a.
5
The Commission specifically found that:
'5. The Pittsburgh Press permits the advertiser to select the column within which its advertisement is to be inserted.
'6. When an advertiser does not indicate a column, the Press asks the advertiser whether it wants a male or female for the job and then inserts the advertisement in the jobs—male interest or jobs—female interest column accordingly.' Id., at 16a.
6
See id., at 19a.
7
Pittsburgh Press also argues that the Ordinance violates due process in that there is no rational connection between sex-designated column headings and sex discrimination in employment. It draws attention to a disclaimer which it runs at the beginning of each of the 'Jobs—Male Interest' and 'Jobs—Female Interest' columns:
'Notice to Job Seekers'
'Jobs are arranged under Male and Female classifications for the convenience of our readers. This is done because most jobs generally appeal more to persons of one sex than the other. Various laws and ordinances—local, state, and federal, prohibit discrimination in employment because of sex unless sex is a bona fide occupational requirement. Unless the advertisement itself specifies one sex or the other, job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination.'
It suffices to dispose of this contention by noting that the Commission's commonsense recognition that the two are connected is supported by evidence in the present record. See App. 236a—239a. See also Hailes v. United Air Lines, 464 F.2d 1006, 1009 (CA5 1972). The Guidelines on Discrimination Because of Sex of the Federal Equal Employment Opportunity Commission reflect a similar conclusion. See 29 CFR § 1604.4.
8
See also Jones v. Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290 (1943); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943).
9
In response to questioning at oral argument, counsel for Pittsburgh Press stated only:
'Now, I'm not prepared to answer whether the company makes money on (want ads) or not. I suspect it does. They charge for want-ads, and they do make a lot of their revenue in the newspaper through advertising, of course; and I suspect it is profitable.' Tr. of Oral Arg. 10.
10
In Head v. New Mexico Board, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963), this Court upheld an injunction prohibiting a newspaper and a radio station from carrying optometrists' advertisements which violated New Mexico law. But because the issue had not been raised in the lower courts, this Ocurt did not consider the appellant's First Amendment challenge. Id., at 432 n. 12, 83 S.Ct., at 1764.
11
See also New York State Broadcasters Assn. v. United States, 414 F.2d 990 (CA2 1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970) (refusing to strike down a ban on broadcasts promoting a lottery).
12
See Note, Freedom of Expression in a Commercial Context, 78 Harv.L.Rev. 1191, 1195—1196 (1965). Cf. Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582, 593 n. 42 (D.C.1971) (Wright, J., dissenting); Camp-of-the-Pines, Inc. v. New York Times Co., 184 Misc. 389, 53 N.Y.S.2d 475 (1945).
13
Brief for Amicus Curiae American Newspaper Publishers Association 22 n. 32.
14
The dissent of THE CHIEF JUSTICE argues that Pittsburgh Press is in danger of being 'subject to summary punishment for contempt for having made an 'unlucky' legal guess.' Infra, at 396 397. The Commission is without power to punish summarily for contempt. When it concludes that its order has been violated, 'the Commission shall certify the case and the entire record of its proceedings to the City Solicitor, who shall invoke the aid of an appropriate court to secure enforcement or compliance with the order or to impose (a fine of not more than $300) or both.' § 14 of the Ordinance; Appendix to Pet. for Cort. 103a. But, more fundamentally, it was the newspaper's policy of allowing employers to place advertisements in sex-designated columns without regard to the exceptions of exemptions contained in the Ordinance, not its treatment of particular want ads, which was challenged in the complaint and was found by the Commission and the courts below to be violative of the Ordinance. Nothing in the modified order or the opinions below prohibits the newspaper from relying in good faith on the representation of an advertiser that a particular job falls within an exception to the Ordinance.
1
The Court and the opinions under review place great stress on the finding of the Pittsburgh Commission on Human Relations that the Pittsburgh Press 'permits the advertiser to select the column within which its advertisement is to be inserted.' That finding, however, does not disprove Pittsburgh Press' claim that it uses column headings for the convenience of its readers. In any event, the order under review, as the Court acknowledges, 'does not allow Pittsburgh Press to substitute a policy under which it would make an independent decision regarding placement in sex-designated columns.' Supra, at 384. Thus, even if the newspaper became actively involved in selecting the appropriate column for each advertisement, presumably the Commission's order would still prohibit Pittsburgh Press from using the column headings.
2
There would be time enough to consider whether this principle would apply to the situation hypothesized by the Court, for example, whether a newspaper gives 'notice' of narcotics transactions by placing certain advertisements under a 'Narcotics for Sale' caption. For now, I need only state that the two situations strike me as being entirely different. We do not have here, in short, such a blatant involvement by a newspaper in a criminal transaction.
3
The Court's statement that the 'Commission is without power to punish summarily for contempt,' supra, at 390 n. 14, is hardly reassuring to me in a First Amendment setting. We are still left with no assurance that an enforcement action initiated at the request of the commission will not be summary in nature. It is helpful that the Court expresses a caveat on this score. However, the weighty presumption of unconstitutionality of prior restraint of the press seems to be given less regard than we have traditionally accorded it.
*
As Alexander Meiklejohn has stated: 'The First Amendment was not written primarily for the protection of those intellectual aristocrats who pursue knowledge solely for the fun of the game, whose search for truth expresses nothing more than a private intellectual curiosity or an equally private delight and pride in mental achievement. It was written to clear the way for thinking which serves the general welfare. It offers defense to men who plan and advocate and incite toward corporate action for the common good. On behalf of such men it tells us that every plan of action must have a hearing, every relevant idea of fact or value must have full consideration, whatever may be the dangers which that activity involves. It makes no difference whether a man is advocating conscription or opposing it, speaking in favor of a war or against it, defending democracy or attacking it, planning a communist reconstruction of our economy or criticising it. So long as his active words are those of participation in public discussion and public decision of matters of public policy, the freedom of those words may not be abridged. That freedom is the basic postulate of a society which is governed by the votes of its citizens.' Free Speech and Its Relation to Self-Government 45—46 (1948).
1
I put to one side the question of governmental power to prevent publication of information that would clearly imperil the military defense of our Nation, e.g., 'the publication of the sailing dates of transports or the number and location of troops.' Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357.
2
See Grosjean V. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660; Murdock v. Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87 L.Ed. 1292.
3
See Associated Press v. NLRB, 301 U.S. 103, 132—133, 57 S.Ct. 650, 655—656, 81 L.Ed. 953.
4
See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192—193, 66 S.Ct. 494, 497, 90 L.Ed. 614; Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607.
5
See Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013; Lorain Journal Co. v. United States, 342 U.S. 143, 155—157, 72 S.Ct. 181, 187—188, 96 L.Ed. 162; Citizen Publishing Co. v. United States, 394 U.S. 131, 139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148.
6
Mr. Justice Douglas has said that '(t)he (Chrestensen) ruling was casual, almost offhand. And it has not survived reflection.' Cammarano v. United States, 358 U.S. 498, 514, 79 S.Ct. 524, 534, 3 L.Ed.2d 462 (concurring opinion).
7
The Court acknowledges, as it must, that what it approves today is not a restriction on a purely commercial advertisement but the editorial judgment of the newspaper, for 'the newspaper does make a judgment whether or not to allow the advertiser to select the column.' Supra, at 386. The effect of the local ordinance and the court order is to affect the makeup of the help-wanted section of the newspaper, and to preclude Pittsburgh Press from placing advertisements in sex-designated columns. The Court justifies this restriction on the newspaper's editorial judgment by arguing that it had taken on the 'character of the advertisement' so that the combination conveyed 'an integrated commercial statement.' But the stark fact remains that the restriction here was placed on the editorial judgment of the newspaper, not the advertisement.
| 23
|
413 U.S. 300
93 S.Ct. 2568
37 L.Ed.2d 619
UNITED STATES, Petitioner,v.Charles J. ASH, Jr.
No. 71—1255.
Argued January 10, 1973.
Decided June 21, 1973.
Syllabus
The Sixth Amendment does not grant an accused the right to have counsel present when the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. A pretrial event constitutes a 'critical stage' when the accused requires aid in coping with legal problems or help in meeting his adversary. Since the accused is not present at the time of the photographic display, and, as here, asserts no right to be present, there is no possibility that he might be misled by his lack of familiarity with the law or overpowered by his professional adversary. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, distinguished. Pp. 206—221.
149 U.S.App.D.C. 1, 461 F.2d 92, reversed and remanded.
Edward R. Korman, New York City, for petitioner.
Sherman L. Cohn, Washington, D.C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
In this case the Court is called upon to decide whether the Sixth Amendment1 grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U.S.App.D.C. 1, 461 F.2d 92 (1972). The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits.2 We granted certiorari to resolve the conflict and to decide this important constitutional question. 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972). We reverse and remand.
2
* On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D.C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers' drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes.
3
A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash's picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to this bank robbery, in violation of D.C.Code Ann. § 22—2901 and 18 U.S.C. § 2113(a).
4
Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment3 identification provides the basis for respondent Ash's claim that he was denied the right to counsel at a 'critical stage' of the prosecution.
5
No motion for severance was Made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.4 The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by 'clear and convincing' evidence that in-court identifications would be 'based on observation of the suspect other than the intervening observation.' App. 63—64.
6
At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey's counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey's counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey's counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor's request and over the objection of defense counsel.5
7
McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer.
8
The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years.
9
The five-member majority of the Court of Appeals held that Ash's right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court's lineup cases, 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), and on Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
10
The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U.S.App.D.C., at 7, 461 F.2d, at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id., at 14 15 and nn. 20, 21, 461 F.2d, at 105—106 and nn. 20, 21, but expressed doubt that the identifications at the trial had independent origins.
11
Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a 'critical stage' requiring counsel, and criticized the majority's suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id., at 14 43, 461 F.2d, at 106—134.
II
12
The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, 'In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.' The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification.
13
In Powell v. Alabama, 287 U.S. 45, 60—66, 53 S.Ct. 55, 60—63, 77 L.Ed. 158 (1932), the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted 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.' Id., at 64—65, 53 S.Ct. at 62. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule.
14
Apparently several concerns contributed to this rejection at the very time when countless other aspects of he common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the rusult, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but the accused felon, in theory at least,6 could consult counsel only on legal questions that the accused proposed to the court. See Powell v. Alabama, 287 U.S., at 60, 53 S.Ct., at 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355.
15
A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland's well-known observations in Powell bear repeating here:
16
'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.' 287 U.S., at 69, 53 S.Ct., at 64.
17
The Court frequently has interpreted the Sixth Amendment to assure that the 'guiding hand of counsel' is available to those in need of its assistance. See, for example, gideon v. Wainwright, 372 U.S. 335, 344—345, 83 S.Ct. 792, 796—797, 9 L.Ed.2d 799 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530 (1972).
18
Another factor contributing to the colonial recognition of the accused's right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development:
19
'(E)arly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe's inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court.' F. Heller, The Sixth Amendment 20—21 (1951) (footnote omitted).
20
Thus, an additional motivation for the American rule was a desire to minimize imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in Johnson v. Zerbst, 304 U.S. 458, 462—463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938), spoke of this equalizing effect of the Sixth Amendment's counsel guarantee:
21
'It 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 presented by experienced and learned counsel.'
22
This historical background suggests that the core purpose of the counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.7 Later developments have led this Court to recognize that 'Assistance' would be less than meaningful if it were limited to the formal trial itself.
23
This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At thes newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations:
24
'When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves 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. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' stages of he proceedings.' 388 U.S., at 224, 87 S.Ct., at 1931 (footnote omitted).
25
The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.
26
Recent cases demonstrate the historical method of this expansion. In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), the accused was confronted by his adversary at a 'critical stage' preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary.
27
The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in Wade:
28
'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." 388 U.S., at 235 236, 87 S.Ct., at 1937.
29
Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused's right to the 'Assistance of Counsel' has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. 368 U.S., at 54—55, 82 S.Ct., at 158 159; 373 U.S., at 60, 83 S.Ct., at 1051. In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution. 377 U.S., at 205, 84 S.Ct., at 1202. Cf. Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623, 16 L.Ed.2d 694 (1966). In Coleman the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under Alabama law, the accused required 'Assistance' at that hearing. 399 U.S., at 9, 90 S.Ct., at 2003.
30
The function of counsel in rendering 'Assistance' continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remore disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused's memory might be dimmed by 'emotional tension,' that the accused's credibility at trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United States v. Wade, 388 U.S., at 230—231, 87 S.Ct., at 1933, 1934. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel.
31
This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals.
III
32
Although the Court of Appeals' majority recognized the argument that 'a major purpose behind the right to counsel is to protect the defendant from errors that he himself might mike if he appeared in court alone,' the court concluded that 'other forms of prejudice,' mentioned and recognized in Wade, could also give rise to a right to counsel. 149 U.S.App.D.C., at 10, 461 F.2d, at 101. These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display.8
33
We conclude that the dangers of mistaken identification, mentioned in Wade, were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although Wade did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the 'Assistance of Counsel' to preserve the adversary process by compensating for advantages of the prosecuting authorities.
34
The above discussion of Wade has shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed to render 'Assistance' in counterbalancing any 'overreaching' by the prosecution.
35
After the Court in Wade held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the prosecution. The Government had argued in Wade that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the 'gathering of the prosecution's evidence,' such as, for particular example, the taking of fingerprints or blood samples. 388 U.S., at 227, 87 S.Ct., at 1932.
36
The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not 'critical.' Referring to fingerprints, hair, clothing, and other blood samples, the Court explained:
37
'Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that 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.' 388 U.S., at 227—228, 87 S.Ct., at 1932.
38
The structure of Wade, viewed in light of the careful limitation of the Court's language to 'confrontations,'9 makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be 'critical.' The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a 'critical' confrontation:
39
'Legislative 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." 388 U.S., at 239, 87 S.Ct., at 1938 (footnote omitted).
40
See, however, id., at 262 n., 87 S.Ct., at 1950 (opinion of Fortas., J.).
41
The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F.2d 888 (1969), recognized that the 'criticality' test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel:
42
'None of the classical analyses of the assistance to be given by counsel, Justice Sutherland's in Powell v. Alabama . . . and Justice Black's in Johnson v.
43
Zerbst . . . and Gideon v. Wainwright . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution's interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense's interviews, notably with alibi witnesses.' Id., at 899—900.
44
We now undertake the threshold analysis that must be addressed.
IV
45
A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial.
46
Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor's trial-preparation interviews with witnesses. Although photography is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 17th centuries counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226—228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself.
47
That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews.10 No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the prosecution.11 Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of a picture of the defendant would be useful to the prosecution.12 In this very case, for example, the initial tender of the photographic display was by Bailey's counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse,13 it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment's counsel guarantee.
48
The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays.14 This Court has recognized that improved procedures can minimize the dangers of suggestion. Simmons v. United States, 390 U.S. 377, 386 n. 6, 88 S.Ct. 967, 972, 19 L.Ed.2d 1247 (1968). Commentators have also proposed more accurate techniques.15
49
Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor,16 who, as so often has been said, may 'strike hard blows' but not 'foul ones.' Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); Brady v. Maryland, 373 U.S. 83, 87—88, 83 S.Ct. 1194, 1196—1197, 10 L.Ed.2d 215 (1963). If that safeguard fails, review remains available under due process standards. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). These same safeguards apply to misuse of photographs. See Simmons v. United States, 390 U.S., at 384, 88 S.Ct., at 971.
50
We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required.
51
We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in Simmons v. United States, 390 U.S., at 384, 88 S.Ct., at 971, the Court of Appeals, expressing the view that additional findings would be necessary, refused to decide the issue. 149 U.S.App.D.C., at 7, 461 F.2d, at 98. We decline to consider this question on this record in the first instance. It remains open, of course, on the Court of Appeals' remand to the District Court.
52
Reversed and remanded.
53
Mr. Justice STEWART, concurring in the judgment.
54
The issue in the present case is whether, under the Sixth Amendment, a person who has been indicted is entitled to have a lawyer present when prosecution witnesses are shown the person's photograph and asked if they can identify him.
55
The Sixth Amendment guarantees that '(i)n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.' This Court's decisions make it clear that a defendant is entitled to the assistance of counsel not only at the trial itself, but at all 'critical stages' of his 'prosecution.' See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; 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; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. The requirement that there be a 'prosecution,' means that this constitutional 'right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against (an accused). . . .' 'It is this point . . . that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable.' Kirby v. Illinois, 406 U.S. 682, 688, 690, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (plurality opinion). Since the photographic identification in the present case occurred after the accused had been indicted, and thus clearly after adversary judicial proceedings had been initiated, the only question is whether that procedure was such a 'critical stage' that the Constitution required the presence of counsel.
56
In United States v. Wade, supra, the Court determined that a pretrial proceeding is a 'critical stage' if 'the presence of . . . counsel is necessary to preserve the defendant's . . . right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.' 388 U.S., at 227, 87 S.Ct., at 1932. Pretrial proceedings are 'critical,' then, if the presence of counsel is essential 'to protect the fairness of the trial itself.' Schneckloth v. Bustamonte, 412 U.S. 218, 239, 93 S.Ct. 2041, 2054, 36 L.Ed.2d 854; cf. Coleman v. Alabama, 399 U.S. 1, 27—28, 90 S.Ct. 1999, 2012—2013, 26 L.Ed.2d 387 (Stewart, J., dissenting).
57
The Court held in Wade that a post-indictment, pretrial lineup at which the accused was exhibited to identifying witnesses was such a critical stage, because of the substantial possibility that the accused's right to a fair trial would otherwise be irretrievably lost. The hazard of unfair suggestive influence at a lineup, which, because of the nature of the proceeding, could seldom be reconstructed at trial, left little doubt, the Court thought, '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." 388 U.S., at 237, 87 S.Ct., at 1937.
58
The Court stressed in Wade that the danger of mistaken identification at trial was appreciably heightened by the 'degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.' Id., at 228, 87 S.Ct., at 1933. There are numerous and subtle possibilities for such improper suggestion in the dynamic context of a lineup. Judge Wilkey, dissenting in the present case, accurately described a lineup as:
59
'a little drama, stretching over an appreciable span of time. The accused is there in the flesh, three-dimensional and always full-length. Further, he isn't merely there, he acts. He walks on stage, he blinks in the glare of lights, he turns and twists, often muttering asides to those sharing the spotlight. He can be required to utter significant words, to turn a profile or back, to walk back and forth, to doff one costume and don another. All the while the potentially identifying witness is watching, a prosecuting attorney and a police detective at his elbow, ready to record the witness' every word and reaction.' 149 U.S.App.D.C. 1, 17, 461 F.2d 92, 108.
60
With no attorney for the accused present at this 'little drama,' defense counsel at trial could seldom convincingly discredit a witness' courtroom identification by showing it to be based on an impermissibly suggestive lineup. In addition to the problems posed by the fluid nature of a lineup, the Court in Wade pointed out that neither the witnesses nor the lineup participants were likely to be alert for suggestive influences or schooled in their detection. 'In short, 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.' 388 U.S., at 231—232, 87 S.Ct., at 1934.
61
The Court held, therefore, that counsel was required at a lineup, primarily as an observer, to ensure that defense counsel could effectively confront the prosecution's evidence at trial. Attuned to the possibilities of suggestive influences, a lawyer could see any unfairness at a lineup, question the witnesses about it at trial, and effectively reconstruct what had gone on for the benefit of the jury or trial judge.*
62
A photographic identification is quite different from a lineup, for there are substantially fewer possibilities of impermissible suggestion when photographs are used, and those unfair influences can be readily reconstructed at trial. It is true that the defendant's photograph may be markedly different from the others displayed, but this unfairness can be demonstrated at trial from an actual comparison of the photographs used or from the witness' description of the display. Similarly, it is possible that the photographs could be arranged in a suggestive manner, or that by comment or gesture the prosecuting authorities might single out the defendant's picture. But these are the kinds of overt influence that a witness can easily recount and that would serve to impeach the identification testimony. In short, there are few possibilities for unfair suggestiveness—and those rather blatant and easily reconstructed. Accordingly, an accused would not be foreclosed from an effective cross-examination of an identification witness simply because his counsel was not present at the photographic display. For this reason, a photographic display cannot fairly be considered a 'critical stage' of the prosecution. As the Court of Appeals for the Third Circuit aptly concluded:
63
'If . . . the identification is not in a live lineup at which defendant may be forced to act, speak or dress in a suggestive way, where the possibilities for suggestion are multiplied, where the ability to reconstruct the events is minimized, and where the effect of a positive identification is likely to be permanent, but at a viewing of immobile photographs easily reconstructible, far less subject to subtle suggestion, and far less indelible in its effect when the witness is later brought face to face with the accused, there is even less reason to denominate the procedure a critical stage at which counsel must be present.' United States ex rel. Reed v. Anderson, 461 F.2d 739, 745.
64
Preparing witnesses for trial by checking their identification testimony against a photographic display is little different, in my view, from the prosecutor's other interviews with the victim or other witnesses before trial. See United States v. Bennett, 2 Cir., 409 F.2d 888, 900. While these procedures can be improperly conducted, the possibility of irretrievable prejudice is remote, since any unfairness that does occur can usually be flushed out at trial through cross-examination of the prosecution witnesses. The presence of defense counsel at such pretrial preparatory sessions is neither appropriate nor necessary under our adversary system of justice '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.' United States v. Wade, supra, 388 U.S. at 227, 87 S.Ct., at 1932.
65
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
66
The Court holds today that a pretrial display of photographs to the witnesses of a crime for the purpose of identifying the accused, unlike a lineup, does not constitute a 'critical stage' of the prosecution at which the accused is constitutionally entitled to the presence of counsel. In my view, today's decision is wholly unsupportable in terms of such considerations as logic, consistency, and, indeed, fairness. As a result, I must reluctantly conclude that today's decision marks simply another1 step towards the complete evisceration of the fundamental constitutional principles established by this Court, only six years ago, in 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); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). I dissent.
67
* On the morning of August 26, 1965, two men wearing stocking masks robbed the American Security and Trust Co. in Washington, D.C. The robbery lasted only about three or four minutes and, on the day of the crime, none of the four witnesses was able to give the police a description of the robbers' facial characteristics. Some five months later, on February 3, 1966, an FBI agent showed each of the four witnesses a group of black and white mug shots of the faces of five black males, including respondent, all of generally the same age, height, and weight. Respondent's photograph was included because of information received from a Government informant charged with other crimes.2 None of the witnesses was able to make a 'positive' identification of respondent.3
68
On April 1, 1966, an indictment was returned charging respondent and a codefendant in five counts relating to the robbery of the American Security and Trust Co. Trial was finally set for May 8, 1968, almost three years after the crime and more than two years after the return of the indictment. During the entire two-year period between indictment and trial, although one of the witnesses expressly sought an opportunity to see respondent in person, the Government never attempted to arrange a corporeal lineup for the purposes of identification. Rather, less than 24 hours before trial, the FBI agent, accompanied by the prosecutor, showed five color photographs to the witnesses, three of whom identified the picture of respondent.
69
At trial, all four witnesses made incourt identifications of respondent, but only one of these witnesses was 'positive' of her identification. The fact that three of the witnesses had previously identified respondent from the color photographs, and the photographs themselves, were also admitted into evidence. The only other evidence implicating respondent in the crime was the testimony of the Government informant.4 On the basis of this evidence, respondent was convicted on all counts of the indictment.
70
On appeal, the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed respondent's conviction. 149 U.S.App.D.C. 1, 461 F.2d 92 (1972). Noting that 'the dangers of mistaken identification from uncounseled lineup identifications . . . are applicable in large measure to photographic as well as corporeal identifications,'5 the Court of Appeals reasoned that this Court's decisions in Wade, Gilbert, and Stovall, compelled the conclusion that a pretrial photographic identification, like a lineup, is a 'critical' stage of the prosecution at which the accused is constitutionally entitled to the attendance of counsel. Accordingly, the Court of Appeals held that respondent was denied his Sixth Amendment right to 'the Assistance of Counsel for his defence' when his attorney was not given an opportunity to attend the display of the color photographs on the very eve of trial.6 In my view, both the reasoning and conclusion of the Court of Appeals were unimpeachably correct, and I would therefore affirm.
II
71
In June 1967, this Court decided a trilogy of 'lineup' cases which brought into sharp focus the problems of pretrial identification. See United States v. Wade, supra; Gilbert v. California, supra; Stovall v. Denno, supra. In essence, those decisions held (1) that a pretrial lineup is a 'critical stage' in the criminal process at which the accused is constitutionally entitled to the presence of counsel; (2) that evidence of an identification of the accused at such an uncounseled lineup is per se inadmissible; and (3) that evidence of a subsequent in-court identification of the accused is likewise inadmissible unless the Government can demonstrate by clear and convincing evidence that the in-court identification was based upon observations of the accused independent of the prior uncounseled lineup identification. The considerations relied upon by the Court in reaching these conclusions are clearly applicable to photographic as well as corporeal identifications. Those considerations bear repeating here in some detail, for they touch upon the very heart of our criminal justice system—the right of an accused to a fair trial, including the effective 'Assistance of Counsel for his defence.'
72
At the outset, the Court noted that 'identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.' United States v. Wade, supra, 388 U.S., at 228, 87 S.Ct., at 1933. Indeed, '(t)he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.' Ibid. Apart from 'the dangers inherent in eyewitness identification,' id., at 235, 87 S.Ct., at 1936, such as unreliable memory or perception, the Court pointed out that '(a) major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.' Id., at 228, 87 S.Ct., at 1933. The Court recognized that the dangers of suggestion are not necessarily due to 'police procedures intentionally designed to prejudice an accused.' Id., at 235, 87 S.Ct., at 1936. On the contrary, '(s)uggestion can be created intentionally or unintentionally in many subtle ways.' Id., at 229, 87 S.Ct., at 1933. And the "fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense . . . involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way . . .." Id., at 235, 87 S.Ct., at 1936, quoting Williams & Hammelmann, Identification Parades-I (1963) Crim.L.Rev. 479, 483.
73
The Court also expressed concern over the possibility that a mistaken identification at a pretrial line-up might itself be conclusive on the question of identity, thereby resulting in the conviction of an innocent man. The Court observed that "once a witness has picked out the accused at the lineup, 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." United States v. Wade, supra, at 229, 87 S.Ct., at 1933, quoting Williams & Hammelmann, supra, at 482.
74
Moreover, 'the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial.' United States v. Wade, supra, at 230, 87 S.Ct., at 1934. For 'as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups . . ..' Ibid. Although the accused is present at such corporeal identifications, he is hardly in a position to detect many of the more subtle 'improper influences' that might infect the identification.7 In addition, the Court emphasized that 'neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And, if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.' Ibid. As a result, 'even though cross-examination is a precious safeguard to a fair trial, it cannot (in this context) be viewed as an absolute assurance of accuracy and reliability.' Id., at 235, 87 S.Ct., at 1937.
75
With these considerations in mind, the Court reasoned that '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 1935. And '(i)nsofar 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.' Id., at 235, 87 S.Ct., at 1936. Thus, noting that 'presence of counsel (at the lineup) can often avert prejudice and assure a meaningful confrontation at trial,' the Court concluded that a pretrial corporeal identification is 'a critical stage of the prosecution is which (the accused is) 'as much entitled to such aid (of counsel) . . . as at the trial itself." Id., at 236, 237, 87 S.Ct., at 1937, quoting Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158 (1932).
III
76
As the Court of Appeals recognized, 'the dangers of mistaken identification . . . set forth in Wade are applicable in large measure to photographic as well as corporeal identifications.' 149 U.S.App.D.C., at 9, 461 F.2d, at 100. To the extent that misidentification may be attributable to a witness' faulty memory or perception, or inadequate opportunity for detailed observation during the crime, the risks are obviously as great at a photographic display as at a lineup.8 But '(b)ecause of the inherent limitations of photography, which presents its subject in two dimensions rather than the three dimensions of reality, . . . a photographic identification, even when properly obtained, is clearly inferior to a properly obtained corporeal identification.' P. Wall, Eye-witness Identification in Criminal Cases 70 (1965). Indeed, noting 'the hazards of initial identification by photograph,' we have expressly recognized that 'a corporeal identification . . . is normally more accurate' than a photographic identification. Simmons v. United States, 390 U.S. 377, 384, 386 n. 6, 88 S.Ct. 967, 971, 972, 19 L.Ed.2d 1247 (1968).9 Thus, in this sense at least, the dangers of misidentification are even greater at a photographic display than at a lineup.
77
Moreover, as in the lineup situation, the possibilities for impermissible suggestion in the context of a photographic display are manifold. See id., at 383, 88 S.Ct., at 970. Such suggestion, intentional or unintentional, may derive from three possible sources. First, the photographs themselves might tend to suggest which of the pictures is that of the suspect. For example, differences in age, pose, or other physical characteristics of the persons represented, and variations in the mounting, background, lighting, or markings of the photographs all might have the effect of singling out the accused.10
78
Second, impermissible suggestion may inhere in the manner in which the photographs are displayed to the witness. The danger of misidentification is, of course, 'increased if the police display to the witness . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.' Ibid. And, if the photographs are arranged in an asymmetrical pattern, or if they are displayed in a time sequence that tends to emphasize a particular photograph, 'any identification of the photograph which stands out from the rest is no more reliable than an identification of a single photograph, exhibited alone.' P. Wall, supra, at 81.
79
Third, gestures or comments of the prosecutor at the time of the display may lead an otherwise uncertain witness to select the 'correct' photograph. For example, the prosecutor might 'indicate to the witness that (he has) other evidence that one of the persons pictured committed the crime,'11 and might even point to a particular photograph and ask whether the person pictured 'looks familiar.' More subtly, the prosecutor's inflection, facial expressions, physical motions, and myriad other almost imperceptible means of communication might tend, intentionally or unintentionally, to compromise the witness' objectivity. Thus, as is the case with lineups, '(i)mproper photographic identification procedures, . . . by exerting a suggestive influence upon the witnesses, can often lead to an erroneous identification . . ..' P. Wall, supra, at 89.12 And '(r)egardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen . . ..' Simmons v. United States, supra, 390 U.S., at 383—384, 88 S.Ct., at 971.13 As a result, "the issue of identity may (in the absence of other relevant evidence) for all practical purposes by determined there and then, before the trial" United States v. Wade, supra, 388 U.S., at 229, 87 S.Ct., at 1933, quoting Williams & Hammelmann, supra, at 482.
80
Moreover, as with lineups, the defense can 'seldom reconstruct' at trial the mode and manner of photographic identification. It is true, of course, that the photographs used at the pretrial display might be preserved for examination at trial. But 'it may also be said that a photograph can preserve the record of a lineup; yet this dos not justify a lineup without counsel.' 149 U.S.App.D.C., at 9—10, 461 F.2d, at 100—101. Cf. United States v. Wade, supra, 388 U.S., at 239 and n. 30, 87 S.Ct., at 1938. Indeed, in reality, preservation of the photographs affords little protection to the unrepresented accused. For, although retention of the photographs may mitigate the dangers of misidentification due to the suggestiveness of the photographs themselves, it cannot in any sense reveal to defense counsel the more subtle, and therefore more dangerous, suggestiveness that might derive from the manner in which he photographs were displayed or any accompanying comments or gestures. Moreover, the accused cannot rely upon the witnesses themselves to expose these latter sources of suggestion, for the witnesses are not 'apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect' since the witnesses are hardly 'likely to be schooled in the detection of suggestive influences.' Id., at 230, 87 S.Ct., at 1934.
81
Finally, and unlike the lineup situation, the accused himself is not even present at the photographic identification, thereby reducing the likelihood that irregularities in the procedures will ever come to light. Indeed, in Wade, the Government itself observed:14
82
'When the defendant is present—as he is during a lineup—he may personally observe the circumstances, report them to his attorney, and (if he chooses to take the stand) testify about them at trial. . . . (I)n the absence of an accused, on the other hand, there is no one present to verify the fairness of the interview or to report any irregularities. If the prosecution were tempted to engage in 'sloppy or biased or fraudulent' conduct . . ., it would be far more likely to do so when the accused is absent than when he is himself being 'used."
83
Thus, the difficulties of reconstructing at trial an uncounseled photographic display are at least equal to, and possibly greater than, those involved in reconstructing an uncounseled lineup.15 And, as the Government argued in Wade, in terms of the need for counsel, '(t)here is no meaningful difference between a witness' pretrial identification from photographs and a similar identification made at a lineup.'16 For in both situations, 'the accused's inability effectively to reconstruct at trial any unfairness that occurred at the (pretrial identification) may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification.' United States v. Wade, supra, 388 U.S. at 231 232, 87 S.Ct., at 1935. As a result, both photographic and corporeal identifications create grave dangers that an innocent defendant might be convicted simply because of his inability to expose a tainted identification. This being so, considerations of logic, consistency, and, indeed, fairness compel the conclusion that a pretrial photographic identification, like a pretrial corporeal identification, is a 'critical stage of the prosecution at which (the accused is) 'as much entitled to such aid (of counsel) . . . as at the trial itself." Id., at 237, 87 S.Ct., at 1937, quoting Powell v. alabama, 287 U.S., at 57, 53 S.Ct., at 60.
IV
84
Ironically, the Court does not seriously challenge the proposition that presence of counsel at a pretrial photographic display is essential to preserve the accused's right to a fair trial on the issue of identification. Rather, in what I can only characterize a triumph of form over substance, the Court seeks to justify its result by engrafting a wholly unprecedented—and wholly unsupportable-limitation on the Sixth Amendment right of 'the accused . . . to have the Assistance of Counsel for his defence.' Although apparently conceding that the right to counsel attaches, not only at the trial itself, but at all 'critical stages' of the prosecution, see ante, at 309—311, the Court holds today that, in order to be deemed 'critical,' the particular 'stage of the prosecution' under consideration must, at the very least, involve the physical 'presence of the accused,' at a 'trial-like confrontation' with the Government, at which the accused requires the 'guiding hand of counsel.' According to the Court a pretrial photographic identification does not, of course, meet these criteria.
85
In support of this rather crabbed view of the Sixth Amendment, the Court cites our decisions in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), and Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). Admittedly, each of these decisions guaranteed the assistance of counsel in pretrial proceedings at least arguably involving the physical 'presence of the accused,' at a 'trial-like confrontation' with the Government, at which the accused required the 'guiding hand of counsel.'17 Moreover, as the Court points out, these decisions are consistent with the view that 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 presented by experienced and learned counsel.' Johnson v. Jerbst, 304 U.S. 458, 462—463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). But, contrary to the Court's assumption, this is merely one facet of the Sixth Amendment guarantee, and the decisions relied upon by the Court represent, not the boundaries of the right to counsel, but mere applications of a far broader and more reasoned understanding of the Sixth Amendment than that espoused today.
86
The fundamental premise underlying all of this Court's decisions holding the right to counsel applicable at 'critical' pretrial proceedings, is that a 'stage' of the prosecution must be deemed 'critical' for the purposes of the Sixth Amendment if it is one at which the presence of counsel is necessary 'to protect the fairness of the trial itself.' Schneckloth v. Bustamonte, 412 U.S. 218, 239, 93 S.Ct. 2041, 2054, 36 L.Ed.2d 854 (1973) (emphasis added). Thus, in Hamilton v. Alabama, supra, for example, we made clear that an arraignment under Alabama law is a 'critical stage' of the prosecution, not only because the accused at such an arraignment requires 'the guiding hand of counsel,' but, more broadly, because '(w)hat happens there may affect the whole trial.' Id., 368 U.S. at 54, 82 S.Ct., at 159. Indeed, to exclude counsel from a pretrial proceeding at which his presence might be necessary to assure the fairness of the subsequent trial would, in practical effect, render the Sixth Amendment guarantee virtually meaningless, for it would 'deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him." Massiah v. United States, supra, 377 U.S. at 204, 84 S.Ct., at 1202, quoting Spano v. New York, 360 U.S. 315, 326, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265 (1959) (Douglas, J., concurring); see Escobedo v. Illinois, 378 U.S. 478, 484—485, 84 S.Ct. 1758, 1761—1762, 12 L.Ed.2d 977 (1964).
87
This established conception of the Sixth Amendment guarantee is, of course, in no sense dependent upon the physical 'presence of the accused,' at a 'trial-like confrontation' with the Government, at which the accused requires the 'guiding hand of counsel.' On the contrary, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the seminal decision in this area, we explicitly held the right to counsel applicable at a stage of the pretrial proceedings involving none of the three criteria set forth by the Court today. In Powell, the defendants in a state felony prosecution were not appointed counsel until the very eve of trial. This Court held, in no uncertain terms, that such an appointment could not satisfy the demands of the Sixth Amendment, for "(i)t is vain . . . to guarantee (the accused) counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case." Id., at 59, 53 S.Ct., at 60. In other words, Powell made clear that, in order to preserve the accused's right to a fair trial and to 'effective and substantial'18 assistance of counsel at the trial, the Sixth Amendment guarantee necessarily encompasses a reasonable period of time before trial during which counsel might prepare the defense. Yet it can hardly be said that this preparatory period of research and investigation involves the physical 'presence of the accused,' at a 'trial-like confrontation' with the Government, at which the accused requires the 'guiding hand of counsel.'
88
Moreover, despite the Court's efforts to rewrite Wade so as to suggest a presidential basis for its own analysis,19 the rationale of Wade lends no support whatever to today's decision. In Wade, after concluding that compelled participation in a lineup does not violate the accused's right against self-incrimination,20 the Court addressed the argument 'that the assistance of counsel at the lineup was indispensable to protect Wade's most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.' 388 U.S. at 223—224, 87 S.Ct., at 1930. The Court then surveyed the history of the Sixth Amendment, and specifically concluded that that Amendment guarantees 'counsel's assistance whenever necessary to assure a meaningful 'defence." Id. at 225, 87 S.Ct., at 1931 (emphasis added). Then, after examining this Court's prior decisions concerning the applicability of the counsel guarantee,21 the Court stressed once again that a pretrial proceeding is a 'critical stage' of the prosecution if '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.' Id., at 227, 87 S.Ct., at 1932.
89
The Court next addressed the Government's contention that a lineup is 'a mere preparatory step in the gathering of the prosecution's evidence, not different—for Sixth Amendment purposes from various other preparatory steps, such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like.' Id., at 227, 87 S.Ct., at 1932. If the Court in Wade had even the remotest intention of embracing the wooden interpretation of the Sixth Amendment ascribed to it today, it could have rejected the Government's contention simply by pointing out the obvious fact that such 'systematized or scientific analyzing' does not in any sense involve the physical 'presence of the accused,' at a 'trial-like confrontation' with the Government, at which the accused requires the 'guiding hand of counsel.' But the Court offered not even the slightest hint of such an approach. Instead, the Court reasoned that, in light of the scientific nature of such analyses,
90
'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 denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; 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 (emphasis added).
91
Finally, after discussing the dangers of misidentification arising out of lineup procedures and the difficulty of reconstructing the lineup at trial, the Court noted that '(i)nsofar 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.' Id., at 235, 87 S.Ct., at 1936. The Court therefore concluded that '(s)ince 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.
92
Thus, contrary to the suggestion of the Court, the conclusion in Wade that a pretrial lineup is a 'critical stage' of the prosecution did not in any sense turn on the fact that a lineup involves the physical 'presence of the accused' at a 'trial-like confrontation' with the Government. And that conclusion most certainly did not turn on the notion that presence of counsel was necessary so that counsel could offer legal advice or 'guidance' to the accused at the lineup. On the contrary, Wade envisioned counsel's function at the lineup to be primarily that of a trained observer, able to detect the existence of any suggestive influences and capable of understanding the legal implications of the events that transpire. Having witnessed the proceedings, counsel would then be in a position effectively to reconstruct at trial any unfairness that occurred at the lineup, thereby preserving the accused's fundamental right to a fair trial on the issue of identification.
93
There is something ironic about the Court's conclusion today that a pretrial lineup identification is a 'critical stage' of the prosecution because counsel's presence can help to compensate for the accused's deficiencies as an observer, but that a pretrial photographic identification is not a 'critical stage' of the prosecution because the accused is not able to observe at all. In my view, there simply is no meaningful difference, in terms of the need for attendance of counsel, between corporeal and photographic identifications. And applying established and well-reasoned Sixth Amendment principles, I can only conclude that a pretrial photographic display, like a pretrial lineup, is a 'critical stage' of the prosecution at which the accused is constitutionally entitled to the presence of counsel.
1
'In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.'
2
United States v. Bennett, 409 F.2d 888, 898—900 (CA2), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969); United States ex rel. Reed v. Anderson, 461 F.2d 739 (CA3 1972) (en banc); United States v. Collins, 416 F.2d 696 CA4 1969), cert. denied, 396 U.S. 1025, 90 S.Ct. 601, 24 L.Ed.2d 519 (1970); United States v. Ballard, 423 F.2d 127 (CA5 1970); United States v. Serio, 440 F.2d 827, 829—830 (CA6 1971); United States v. Robinson, 406 F.2d 64, 67 (CA7), cert. denied, 395 U.S. 926, 89 S.Ct. 1783, 23 L.Ed.2d 243 (1969); United States v. Long, 449 F.2d 288, 301—302 (CA8 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1206, 31 L.Ed.2d 247 (1972); Allen V. Rhay, 431 F.2d 1160, 1166—1167 (CA9 1970); McGee v. United States, 402 F.2d 434, 436 (CA10 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969). The en banc decision of the Third Circuit in Anderson overruled in part a panel decision in United States v. Zeiler, 427 F.2d 1305 (CA3 1970).
The question has also produced conflicting decisions in state courts. The majority view, as in the courts of appeals, rejects the claimed right to counsel. See, e.g., McGhee v. State, 48 Ala.App. 330, 264 So.2d 560 (1972); State v. Yehling, 108 Ariz. 323, 498 P.2d 145 (1972); People v. Lawrence, 4 Cal.3d 273, 93 Cal.Rptr. 204, 481 P.2d 212 (1971), cert. denied, 407 U.S. 909, 92 S.Ct. 2431, 32 L.Ed.2d 682 (1972); Reed v. State, Del., 281 A.2d 142 (1971); People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634 (1970); Baldwin v. State, 5 Md.App. 22, 245 A.2d 98 (1968) (dicta); Commonwealth v. Ross, Mass., 282 N.E.2d 70 (1972), vacated on other grounds and remanded, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973); Stevenson v. State, 244 So.2d 30 (Miss.1971); State v. Brookins, 468 S.W.2d 42 (Mo.1971) (dicta); People v. Coles, 34 A.D.2d 1051, 312 N.Y.S.2d 621 (1970) (dicta); State v. Moss, 187 Neb. 391, 191 N.W.2d 543 (1971); Drewry v. Commonwealth, 213 Va. 186, 191 S.E.2d 178 (1972); State v. Nettles, 81 Wash.2d 205, 500 P.2d 752 (1972); Kain v. State, 48 Wis.2d 212, 179 N.W.2d 777 (1970). Cf. State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970). Several state courts, however, have granted a right to counsel at photographic identifications. See, e.g., Cox v. State, 219 So.2d 762 (Fla.App.1969) (video tapes); People v. anderson, 389 Mich. 155, 205 N.W.2d 461 (1973); Thompson v. State, 85 Nev. 134, 451 P.2d 704, cert. denied, 396 U.S. 893, 90 S.Ct. 189, 24 L.Ed.2d 170 (1969); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159 (1970).
3
Respondent Ash does not assert a right to counsel at the black-and-white photographic display in February 1966 because he recognizes that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), forecloses application of the Sixth Amendment to events before the initiation of adversary criminal proceedings. Tr. of Oral Arg. 21—22; Brief for Respondent 32 n. 21.
4
At this hearing both the black-and-white and color photographs were introduced as exhibits. App. 44. The FBI agents who conducted the pretrial displays were called as witnesses and were cross-examined fully. App. 10, 28. Two of the four witnesses who were expected to make in-court identifications also testified and were cross-examined concerning the photographic identifications. App. 55, 65.
5
The majority of the Court of Appeals concluded that Ash's counsel properly had preserved his objection to introduction of the photographs. 149 U.S.App.D.C., D.C., at 6 n. 6, 461 F.2d, at 97 n. 6. Although the contrary view of the dissenting judges has been noted here by the Government, the majority's ruling on this issue is not asserted by the Government as a basis for reversal. Pet. for Cert. 4 n. 5; Brief for United States 6 n. 6. Under these circumstances, we are not inclined to disturb the ruling of the Court of Appeals on this close procedural question. App. 104, 126 131.
6
Although the English limitation was not expressly rejected until 1836, the rule appears to have been relaxed in practice. 9 W. Holdsworth, History of English Law 235 (1926); 4 W. Blackstone, Commentaries *355—356.
7
Similar concerns eventually led to abandonment of the common-law rule in England. That rule orginated at a time when counsel was said to be 'hardly necessary' because expert knowledge of the law was not required at trial and systematic examination of witnesses had not yet developed. T. Plucknett, A Concise History of the Common Law 410 (4th ed. 1948).
Confrontation with legal technicalities became common at English trials when complex rules developed for attacking the indictment. Ibid. The English response was not an unlimited right to counsel, however, but was rather a right for counsel to argue only legal questions. See Powell v. Alabama, 287 U.S. 45, 60, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1932). A plea in abatement directed at insufficiency of the indictment, for example, allowed a prisoner to 'pray counsel to be assigned to him to manage his exceptions and take more.' 2 M. Hale, Pleas of the Crown 236 (1736).
Confrontation with a professional prosecutor arose in English treason trials before it appeared in ordinary criminal trials. See 1 J. Stephen, History of the Criminal Law of England 348—350 (1883). In 1695 this imbalance in the adversary process was corrected by a statute granting prisoners the right to counsel at treason trials. 7 Wm. 3, c. 3 (1695). Hawkins explained that the professional ability of king's counsel motivated this reform because it had 'been found by experience that prisoners have been often under great disadvantages from the want of counsel, in prosecutions of high treason against the king's person, which are generally managed for the crown with greater skill and zeal than ordinary prosecutions . . ..' 2 W. Hawkins, Pleas of the Crown 566 (Leach ed. 1787). The 1695 statute weakened the English rule and, after a century of narrowing practical application, see n. 6, supra, the rule was finally abrogated by statute in 1836. The Trials for Felony Act, 6 & 7 Wm. 4, c. 114 (1836).
8
'(T)he dangers of mistaken identification from uncounseled lineup identifications set forth in Wade are applicable in large measure to photographic as well as corporeal identifications. These include, notably, the possibilities of suggestive influence or mistake—particularly where witnesses had little or no opportunity for detailed observation during the crime; the difficulty of reconstructing suggestivity—even greater when the defendant is not even present; the tendency of a witness's identification, once given under these circumstances, to be frozen. While these difficulties may be somewhat mitigated by preserving the photograph shown, it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel. The same may be said of the opportunity to examine the participants as to what went on in the course of the identification, whether at lineup or on photograph. Sometimes this may suffice to bring out all pertinent facts, even at a lineup, but this would not suffice under Wade to offset the constitutional infringement wrought by proceeding without counsel. The presence of counsel avoids possibilities of suggestiveness in the manner of presentation that are otherwise ineradicable.' 149 U.S.App.D.C., at 9—10, 461 F.2d, at 100—101.
9
The Court rather narrowly defined the issues under consideration:
'The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an 'identification parade' or 'showup,' as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation . . .. But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations.' United States v. Wade, 388 U.S. 218, 229—230, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) (emphasis added).
The photographic identification could hardly have been overlooked by inadvertence since the Government stressed the similarity between lineups and photographic identifications. Brief for United States in Wade, No. 334, O.T.1966, pp. 7, 14, 19, 24.
10
Duplication by defense counsel is a safeguard that normally is not available when a formal confrontation occurs. Defense counsel has no statutory authority to conduct a preliminary hearing, for example, and defense counsel will generally be prevented by practical considerations from conducting his own lineup. Even in some confrontations, however, the possibility of duplication may be important. The Court noted this in holding that the taking of handwriting exemplars did not constitute a 'critical stage':
'If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts.' Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967).
11
We do not suggest, of course, that defense counsel has any greater freedom than the prosecution to abuse the photographic identification. Evidence of photographic identifications conducted by the defense may be excluded as unreliable under the same standards that would be applied to unreliable identifications conducted by the Government.
12
The Court of Appeals deemed it significant that a photographic identification is admissible as substantive evidence, whereas other parts of interviews may be introduced only for impeachment. 149 U.S.App.D.C., at 10, 461 F.2d, at 101. In this case defense counsel for Bailey introduced the inability to identify, and that was received into evidence. Thus defense counsel still received benefits equivalent to those available to the prosecution. Although defense counsel may be concerned that repeated photographic displays containing the accused's picture as the only common characteristic will tend to promote identification of the accused, the defense has other balancing devices available to it, such as the use of a sufficiently large number of photographs to counteract this possibility.
13
Although the reliability of in-court identifications and the effectiveness of impeachment may be improved by equality of access, we do not suggest that the prosecution's photographic identification would be more easily reconstructed at trial simply because defense counsel could conduct his own photographic display. But, as we have explained, supra, at 315—316, the possibility of perfect reconstruction is relevant to the evaluation of substitutes for counsel, not to the initial designation of an event as a 'critical stage.'
14
Sobel, Assailing the Impermissible Suggestion: Evolving Limitations on the Abuse of Pre-Trial Criminal Identification Methods, 38 Brooklyn L.Rev. 261, 299 (1971); Comment, 43 N.Y.U.L.Rev. 1019, 1022 (1968); Note, 2 Rutgers Camden L.J. 347, 359 (1970); Note, 21 Syracuse L.Rev. 1235, 1241—1242 (1970). A variant of this argument is that photographic identifications may be used to circumvent the need for counsel at lineups. Brief for Respondent 44—45.
15
E.g., P. Wall, Eye-Witness Identification in Criminal Cases 77—85 (1965); Sobel, supra, n. 14, at 309—310; Comment, 56 Iowa L.Rev. 408, 420—421 (1970).
16
Throughout a criminal prosecution the prosecutor's ethical responsibility extends, of course, to supervision of any continuing investigation of the case. By prescribing procedures to be used by his agents and by screening the evidence before trial with a view to eliminating unreliable identifications, the prosecutor is able to minimize abuse in photographic displays even if they are conducted in his absence.
*
I do not read Wade as requiring counsel because a lineup is a 'trial-type' situation, nor do I understand that the Court required the presence of an attorney because of the advice or assistance he could give to his client at the lineup itself. Rather, I had thought the reasoning of Wade was that the right to counsel is essentially a protection for the defendant at trial, and that counsel is necessary at a lineup in order to ensure a meaningful confrontation and the effective assistance of counsel at trial.
1
See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).
2
At the time of respondent's trial, the informant, one Clarance McFarland, was serving a sentence for bank robbery. According to the Court of Appeals, 'McFarland had been before the grand jury with regard to five separate offenses, in addition to his bank robbery, and had not been indicted on any of them, including one in which he had confessed guilt. The Assistant United States Attorney had arranged to have McFarland transferred from the D. C. Jail to a local jail in Rockville, Maryland, and in addition had helped McFarland's wife move from Southeast Washington to an apartment near the parochial school that McFarland's children were due to attend.' 149 U.S.App.D.C. 1, 6 n. 7, 461 F.2d 92, 97 n. 7 (1972). The Assistant United States Attorney also testified that he 'had indicated he would testify before the parole board in McFarland's behalf.' Id., at 6, 461 F.2d., at 97.
3
Respondent does not contend that he was denied his Sixth Amendment right to counsel at the pre-indictment display of the black and white photographs. Tr. of Oral Arg. 21—22: Brief for Respondent 32 n. 21.
4
As the Court of Appeals noted, this testimony was of at least questionable credibility. See n. 2, supra.
5
149 U.S.App.D.C., at 9, 461 F.2d at 100.
6
The Court of Appeals also noted 'that there are at the very least strong elements of suggestiveness in this color photo confrontation,' and that 'it is hard to see how the Government can be held to have shown, by clear and convincing evidence, that these color photographs did not affect the in-court identification made one day later.' Id., at 7, 14 n. 20, 461 F.2d, at 98, 105 n. 20.
7
The Court pointed out that '(i)mproper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers. Even when he does observe abuse, if he has a criminal record he may be reluctant to take the stand and open up the admission of prior convictions. Moreover, any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury's choice is between the accused's unsupported version and that of the police officers present.' United States v. Wade, 388 U.S. 218, at 230—231, 87 S.Ct. 1926, at 1934, 18 L.Ed.2d 1149 (1967).
8
Thus, '(a) witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures . . . there is some danger that the witness may make an incorrect identification.' Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
9
See also Sobel, Assailing the Impermissible Suggestion: Evolving Limitations on the Abuse of Pre-Trial Criminal Identification Methods, 38 Brooklyn L.Rev. 261, 264, 296 (1971); Williams, Identification Parades, (1955) Crim.L.Rev. 525, 531; Comment, Photographic Identification: The Hidden Persuader, 56 Iowa L.Rev. 408, 419 (1970); Note, Pretrial Photographic Identification—A 'Critical Stage' of Criminal Proceeding?, 21 Syracuse L.Rev. 1235, 1241 (1970). Indeed, recognizing the superiority of corporeal to photographic identifications, English courts have long held that once the accused is in custody, prelineup photographic identification is 'indefensible' and grounds for quashing the conviction. Rex v. Haslam, 19 Crim.App.Rep. 59, 60 (1925); Rex v. Goss, 17 Crim.App.Rep. 196, 197 (1923). See also P. Wall, Eye-Witness Identification in Criminal Cases 71 (1965).
10
See, e.g., Comment, supra, n. 9, at 410—411; Note, Criminal Procedure—Photo-Identification—Stovall Prospectivity Rule Invoked to Avoid Extension of Right to Counsel, 43 N.Y.U.L.Rev. 1019, 1021 (1968).
11
Simmons v. United States, supra, at 383, 88 S.Ct., at 971.
12
The Court maintains that 'the ethical responsibility of the prosecutor' is in itself a sufficient 'safeguard' against impermissible suggestion at a photographic display. See ante, at 320. The same argument might, of course, be made with respect to lineups. Moreover, it is clear that the 'prosecutor' is not always present at such pretrial displays. Indeed, in this very case, one of the four eye-witnesses was shown the color photographs on the morning of trial by an agent of the FBI, not in the presence of the 'prosecutor.' See 149 U.S.App.D.C., at 5, 461 F.2d, at 96. And even though 'the ethical responsibility of the prosecutor' might be an adequate 'safeguard' against intentional suggestion, it can hardly be doubted that a 'prosecutor' is, after all, only human. His behavior may be fraught with wholly unintentional and indeed unconscious nuances that might effectively suggest the 'proper' response. See P. Wall, supra, n. 9, at 26—65; Napley, Problems of Effecting the Presentation of the Case for a Defendant, 66 Col.L.Rev. 94, 98—99 (1966); Williams & Hammelmann, Identification Parades—I, (1963) Crim.L.Rev. 479, 483. See also United States v. Wade, supra, 388 U.S. at 229, 235, 236, 87 S.Ct., at 1933, 1936, 1937. And, of course, as Wade itself makes clear, unlike other forms of unintentional prosecutorial 'manipulation,' even unintentional suggestiveness at an identification procedure involves serious risks of 'freezing' the witness' mistaken identification and creates almost insurmountable obstacles to reconstruction at trial.
13
See also P. Wall, supra, n. 9, at 68; Napley, supra, n. 12, at 98—99; Williams & Hammelmann, supra, n. 12, at 484; Comment, supra, n. 9, at 411—413; Note, supra, n. 10, at 1023.
14
Brief for United States 24—25 in United States v. Wade, No. 334, O.T.1966.
15
The Court's assertion, ante, at 317—319 and n. 10, that these difficulties of reconstruction are somehow minimized because the defense can 'duplicate' a photographic identification reflects a complete misunderstanding of the issues in this case. Aside from the fact that lineups can also be 'duplicated,' the Court's assertion is wholly inconsistent with the underlying premises of both Wade and Gilbert. For, unlike the Court today, the Court in both of those decisions recognized a critical difference between 'systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like,' on the one hand, and eyewitness identification, on the other. United States v. Wade, supra, 388 U.S., at 227, 87 S.Ct., at 1932; Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967). In essence, the Court noted in Wade and Gilbert that, in the former situations, the accused can preserve his right to a fair trial simply by 'duplicating' the tests of the Government, thereby enabling him to expose any errors in the Government's analysis. Such 'duplication' is possible, however, only because the accused's tests can be made independently of those of the Government—that is, any errors in the Government's analyses cannot affect the reliability of the accused's tests. That simply is not the case, however, with respect to eyewitness identifications, whether corporeal or photographic. Due to the 'freezing effect' recognized in Wade, once suggestion has tainted the identification, its mark is virtually indelible. For once a witness has made a mistaken identification, "he is not likely to go back on his word later on." United States v. Wade, supra, 388 U.S., at 229, 87 S.Ct., at 229. As a result, any effort of the accused to 'duplicate' the initial photographic display will almost necessarily lead to a reaffirmation of the initial misidentification.
The Court's related assertion, that 'equality of access' to the results of a Government-conducted photographic display 'remove(s) any inequality in the adversary process,' at 319, is similarly flawed. For due to the possibilities for suggestion, intentional or unitentional, the so-called 'equality of access' is, in reality, skewed sharply in favor of the prosecution.
16
Brief for United States 7, in United States v. Wade, supra. The Court seems to suggest that, under no circumstances, would it be willing 'to go so far as to extend the right (to counsel) to a portion of the prosecutor's trial-preparation interviews with witnesses.' At 317. This suggestion illustrates once again the Court's readiness in this area to ignore 'real-world' considerations for the sake of 'mere formalism.' Kirby v. Illinois, 406 U.S., at 699, 92 S.Ct., at 1887. (Brennan, J., dissenting). Moreover, this suggestion demonstrates the Court's failure to appreciate the essential differences, outlined persuasively by the Court of Appeals, between 'the prosecutor's trial-preparation interviews with witnesses' and pretrial identification procedures. See 149 U.S.App.D.C., at 10, 461 F.2d, at 101.
17
Coleman, White, and Hamilton, guaranteed the assistance of counsel at preliminary hearings and arraignments. Massiah held that incriminating statements of a defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant's lawyer, arranged a meeting between the defendant and an accomplice turned informant. Thus, it is at least questionable whether Massiah involved a 'trial-like confrontation' with the Government.
18
287 U.S. at 53, 53 S.Ct. at 58.
19
See ante, at 313—316. In an effort to justify its contention that Wade itself in some way supports the Court's wooden analysis of the counsel guarantee, the Court points to the so-called 'careful limitation of the Court's language (in Wade) to 'confrontations." Ante, at 315. But Wade involved a lineup which is, of course, a 'confrontation.' Thus, it is neither surprising, nor significant, that the Court interchangeably used such terms as 'lineup,' 'confrontation' and 'pretrial identification' as descriptive of the facts. Indeed, the Wade dissenters recognized that Wade logically applies, not only to lineups, but 'to any other techniques employed to produce an identification . . ..' United States v. Wade, supra, 388 U.S., at 251, 87 S.Ct., at 1944 (White, J., concurring and dissenting).
20
See United States v. Wade, supra, at 221—223, 87 S.Ct., at 1929—1930.
21
See id., at 225—227, 87 S.Ct., at 1931—1932. The Court's quotation of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), is particularly instructive:
"The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the 'right to use counsel at the formal trial (would be) a very hollow thing (if), for all practical purposes, the conviction is already assured by pretrial examination' . . .. 'One can imagine a cynical prosecutor saying: 'Let them have the most illustrious counsel, now. They can't escape the noose. There is nothing that counsel can do for them at the trial."" United States v. Wade, supra, 388 U.S. at 226, 87 S.Ct., at 1932, quoting Escobedo v. Illinois, supra, 378 U.S. at 487—488, 84 S.Ct., at 1763.
| 01
|
413 U.S. 123
93 S.Ct. 2665
37 L.Ed.2d 500
UNITED STATES, Appellant,v.12 200-FT. REELS OF SUPER 8MM. FILM et al.
No. 70—2.
Argued Jan 19, 1972.
Reargued Nov. 7, 1972.
Decided June 21, 1973.
Syllabus
Congress, which has broad powers under the Commerce Clause to prohibit importation into this country of contraband, may constitutionally proscribe the importation of obscene matter, notwithstanding that the material is for the importer's private, personal use and possession. Cf. United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, distinguished. The District Court consequently erred in holding 19 U.S.C. § 1305(a) unconstitutional. This case is remanded to the District Court for reconsideration in light of the First Amendment standards newly enunciated by this Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, which equally apply to federal legislation, and this opinion. Pp. 124—130.
Vacated and remanded.
Appeal from the United States District Court for the Central District of California.
Sol. Gen. Erwin N. Griswold, for appellant.
Thomas H. Kuchel, Beverly Hills, Cal., as amicus curiae in support of the judgment below, by invitation of the Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We noted probable jurisdiction to review a summary decision of the United States District Court for the Central District of California holding that § 305(a) of the Tariff Act of 1930, 46 Stat. 688, as amended, 19 U.S.C. § 1305(a) was 'unconstitutional on its face' and dismissing a forfeiture action brought under that statute.1 The statute provides in pertinent part:
2
'All persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral . . .. No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided . . .. Provided further That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercal purposes.'
3
On April 2, 1970, the claimant Paladini sought to carry movie films, color slides, photographs, and other printed and graphic material into the United States from Mexico. The materials were seized as being obscene by customs officers at a port of entry, Los Angeles Airport, and made the subject of a forfeiture action under 19 U.S.C. § 1305(a). The District Court dismissed the Government's complaint, relying on the decision of a three-judge district court in United States v. Thirty-Seven Photographs, 309 F.Supp. 36 (CD Cal. 1970), which we later reversed, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). That case concerned photographs concededly imported for commercial purposes. The narrow issue directly presented in this case, and not in Thirty-Seven Photographs, is whether the United States may constitutionally prohibit importation of obscene material which the importer claims is for private, personal use and possession only.2
4
Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations. The Constitution gives Congress broad, comprehensive powers '(t)o regulate Commerce with foreign Nations.' Art. I, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry. See United States v. Thirty-Seven Photographs, 402 U.S., at 376—377, 91 S.Ct., at 1408—1409 (opinion of White, J.); Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925); Brolan v. United States, 236 U.S. 216, 218, 35 S.Ct. 285, 59 L.Ed. 544 (1915); Boyd v. United States, 116 U.S. 616, 623—624, 6 S.Ct. 524, 528—529, 29 L.Ed. 746 (1886); Alexander v. United States, 362 F.2d 379, 382 (CA9), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966). The plenary power of Congress to regulate imports is illustrated in a holding of this Court which sustained the validity of an Act of Congress prohibiting the importation of 'any film or other pictorial representation of any prize fight . . . designed to be used or (that) may be used for purposes of public exhibition'3 in view of 'the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles . . .. Buttfield v. Stranahan, 192 U.S. 470 (24 S.Ct. 349, 48 L.Ed. 525); The Abby Dodge, 223 U.S. 166, 176 (32 S.Ct. 310, 56 L.Ed. 390). Brolan v. United States, 236 U.S. 216 (35 S.Ct. 285, 59 L.Ed. 544).' Weber v. Freed, 239 U.S. 325, 329, 36 S.Ct. 131, 132, 60 L.Ed. 308 (1915).
5
Claimant relies on the First Amendment and our decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). But it is now well established that obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), reaffirmed today in Miller v. California, 413 U.S. 15, at 23, 93 S.Ct. 2607, at 2614, 37 L.Ed.2d 419. As we have noted in United States v. Orito, 413 U.S. 139, at 141—143, 93 S.Ct. 2674, at 2677 2678, 37 L.Ed.2d 513, also decided today, Stanley depended, not on any First Amendment right to purchase or possess obscene materials, but on the right to privacy in the home. Three concurring Justices indicated that the case could have been disposed of on Fourth Amendment grounds without reference to the nature of the materials. Stanley v. Georgia, supra, 394 U.S., at 569, 89 S.Ct., at 1250 (Stewart, J., joined by Brennan and White, JJ., concurring).
6
In particular, claimant contends that, under Stanley, the right to possess obscene material in the privacy of the home creates a right to acquire it or import it from another country. This overlooks the explicitly narrow and precisely delineated privacy right on which Stanley rests. That holding reflects no more than what Mr. Justice Harlan characterized as the law's 'solicitude to protect the privacies of the life within (the home).' Poe v. Ullman, 367 U.S. 497, 551, 81 S.Ct. 1752, 1781, 6 L.Ed.2d 989 (1961) (dissenting opinion).4 The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth, or fifth 'logical' extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance.5 This kind of gestative propensity calls for the 'line drawing' familiar in the judicial, as in the legislative process: 'thus far but not beyond.' Perspectives may change, but our conclusion is that Stanley represents such a line of demarcation; and it is not unreasonable to assume that had it not been so delineated, Stanley would not be the law today. See United States v. Reidel, 402 U.S. 351, at 354—356, 91 S.Ct. 1410, at 1411—1413, 28 L.Ed.2d 813 (1971); id., at 357—360, 91 S.Ct., at 1413—1414 (Harlan, J., concurring). See also Miller v. United States, 431 F.2d 655, 657 (CA9 1970); United States v. Fragus, 428 F.2d 1211, 1213 (CA5 1970); United States v. Melvin, 419 F.2d 136, 139 (CA4 1969); Gable v. Jenkins, 309 F.Supp. 998, 1000—1001 (ND Ga.1969), aff'd, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970). Cf. Karalexis v. Byrne, 306 F.Supp. 1363, 1366 (D.Mass.1969), vacated on other grounds, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).
7
We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene materials simply because it is imported for private use only. To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale. We have already indicated that the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others. United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408 (opinion of White, J.), and United States v. Reidel, supra, 402 U.S., at 355, 91 S.Ct., at 1412. Nor is there any correlative right to transport obscene material in interstate commerce. United States v. Orito, supra, 413 U.S., at 142—144, 93 S.Ct., at 2677—2678.6 It follows that Stanley does not permit one to go abroad and bring such material into the country for private purposes. 'Stanley's emphasis was on the freedom of thought and mind in the privacy of the home. But a port of entry is not a traveler's home.' United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408 (opinion of White, J.).
8
This is not to say that Congress could not allow an exemption for private use, with or without appropriate guarantees such as bonding, or permit the transportation of obscene material under conditions insuring privacy. But Congress has not seen fit to do so, and the holding in Roth v. United States, supra, read with the narrow holding of Stanley v. Georgia, supra, does not afford a basis for claimant's arguments. The Constitution does not compel, and Congress has not authorized, an exception for private use of obscene material. See Paris Adult Theatre I v. Slaton, 413 U.S., at 64—69, 93 S.Ct., at 2638—2642; United States v. Reidel, supra, 402 U.S., at 357, 91 S.Ct., at 1413; A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 462, 86 S.Ct. 975, 999, 16 L.Ed.2d 1 (1966) (White, J., dissenting).
9
The attack on the overbreadth of the statute is thus foreclosed, but, independently, we should note that it is extremely difficult to control the uses to which obscene material is put once it enters this country. Even single copies, represented to be for personal use, can be quickly and cheaply duplicated by modern technology thus facilitating wide-scale distribution. While it is true that a large volume of obscene material on microfilm could rather easily be smuggled into the United States by mail, or otherwise, and could be enlarged or reproduced for commercial purposes, Congress is not precluded from barring some avenues of illegal importation because avenues exist that are more difficult to regulate. See American Power & Light Co. v. SEC, 329 U.S. 90, 99—100, 67 S.Ct. 133, 139—140, 91 L.Ed. 103 (1946).
10
As this case came to us on the District Court's summary dismissal of the forfeiture action, no determination of the obscenity of the materials involved has been made. We have today arrived at standards for testing the constitutionality of state legislation regulating obscenity. See Miller v. California, supra, 413 U.S., at 23—25, 93 S.Ct., at 2614—2615. These standards are applicable to federal legislation.7 The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion, Miller v. California, supra, and United States v. Orito, supra, both decided today.
11
Vacated and remanded.
12
Mr. Justice DOUGLAS, dissenting.
13
I know of no constitutional way by which a book, tract, paper, postcard, or film may be made contraband because of its contents. The Constitution never purported to give the Federal Government censorship or oversight over literature or artistic productions, save as they might be governed by the Patent and Copyright Clause of Art. I, § 8, cl. 8, of the Constitution.1 To be sure, the Colonies had enacted statutes which limited the freedom of speech, see Roth v. United States, 354 U.S. 476, 482—484, nn. 10—13, 77 S.Ct. 1304, 1307—1308, 1 L.Ed.2d 1498, and in the early 19th century the States punished obscene libel as a common-law crime. Knowles v. State, 3 Day 103 (Conn.1808) (signs depicting 'monster'); Commonwealth v. Holmes, 17 Mass. 336 (1821) (John Cleland's Memoirs of a Woman of Pleasure); State v. Appling, 25 Mo. 315, 316 (1857) (utterance of words 'too vulgar to be inserted in this opinion'); Commonwealth v. Sharpless, 2 Serg. & R. 91, 92 (Pa. 1815) ('lewd, wicked, scandalous, infamous, . . . and indecent posture with a woman').
14
To construe this history, as this Court does today in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, as qualifying the plain import of the First Amendment is both a non sequitur and a disregard of the Tenth Amendment.
15
'(W)hatever may (have been) the form which the several States . . . adopted in making declarations in favor of particular rights,' James Madison, the author of the First Amendment, tells us, 'the great object in view (was) to limit and qualify the powers of (the Federal) Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.' 1 Annals of Cong. 437. Surely no one should argue that the retention by the States of vestiges of established religions after the enactment of the Establishment and Free Exercise Clauses saps these clauses of their meaning.2 Yet it was precisely upon such reasoning that this Court, in Roth, exempted the bawdry from the protection of the First Amendment.
16
When it was enacted, the Bill of Rights applied only to the Federal Government, Barron for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672, and the Tenth Amendment reserved the residuum of power to the States and the people. That the States at some later date, may have exercised this reserved power in the form of laws restricting expression in no wise detracts from the express prohibition of the First Amendment. Only when the Fourteenth Amendment was passed did it become even possible to argue that through it the First Amendment became applicable to the States. But that goal was not attained until the ruling of this Court in 1931 that the reach of the Fourteenth Amendment included the First Amendment. See Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117.
17
At the very beginning, however, the First Amendment applied only to the Federal Government and there is not the slightest evidence that the Framers intended to put the newly created federal regime into the role of ombudsman over literature. Tying censorship to the movement of literature or films in interstate commerce or into foreign commerce would have been an easy way for a government of delegated powers to impair the liberty of expression. It was to bar such suppression that we have the First Amendment. I dare say Jefferson and Madison would be appalled at what the Court espouses today.
18
The First Amendment was the product of a robust, not a prudish, age. The four decades prior to its enactment 'saw the publication, virtually without molestation from any authority, of two classics of pornographic literature.' D. Loth, The Erotic in Literature 108 (1961). In addition to William King's The Toast, there was John Cleland's Memoirs of a Woman of Pleasure which has been described as the 'most important work of genuine pornography that has been published in English . . ..' L. Markun, Mrs. Grundy 191 (1930). In England, Harris' List of Covent Garden Ladies, a catalog used by prostitutes to advertise, their trade, enjoyed open circulation. N. St. John-Stevas, Obscenity and the Law 25 (1956). Bibliographies of pornographic literature list countless erotic works which were published in this time. See, e.g., A. Craig, Suppressed Books (1963); P. Fraxi, Catena Librorum Tacendorum (1885); W. Gallichan, The Poison of Prudery (1929); D. Loth, supra; L. Markun, supra. This was the age when Benjamin Franklin wrote his 'Advice to a Young Man on Choosing a Mistress' and 'A Letter to the Royal Academy at Brussels.' 'When the United States became a nation, none of the fathers of the country were any more concerned than Franklin with the question of pornography. John Quincy Adams had a strongly puritanical bent for a man of his literary interests, and even he wrote of Tom Jones that it was 'one of the best novels in the language." Loth, supra, at 120. It was in this milieu that Madison admonished against any 'distinction between the freedom and licentiousness of the press.' S. Padover, The Complete Madison 295 (1953). The Anthony Comstocks, the Thomas Bowdlers and Victorian hypocrisy—the predecessors of our present obscenity laws—had yet to come upon the stage.3
19
Julius Goebel, our leading expert on colonial law, does not so much as allude to punishment of obscenity.4 J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937); J. Goebel & T. Naughton, Law Enforcement in Colonial New York (1944).
20
Nor is there any basis in the legal history antedating the First Amendment for the creation of an obscenity exception. Memoirs v. Massachusetts, 383 U.S. 413, 424, 86 S.Ct. 975, 980, 16 L.Ed.2d 1 (Douglas, J., concurring). The first reported case involving obscene conduct was not until 1663. There, the defendant was fined for 'shewing himself naked in a balkony, and throwing down bottles (pist in) vi & armis among the people in Convent Garden, contra pacem, and to the scandal of the Government.' Sir Charles Sydlyes Case, 83 Eng.Rep. 1146—1147 (K.B.1663). Rather than being a fountainhead for a body of law proscribing obscene literature, later courts viewed this case simply as an instance of assault, criminal breach of the peace, or indecent exposure. E.g., Bradlaugh v. Queen, L.R. 3 Q.B. 569, 534 (1878); Rex v. Curl, 93 Eng.Rep. 849, 851 (K.B. 1727) (Fortescue, J., dissenting).
21
The advent of the printing press spurred censorship in England, but the ribald and the obscene were not, at first, within the scope of that which was officially banned. The censorship of the Star Chamber and the licensing of books under the Tudors and Stuarts was aimed at the blasphemous or heretical, the seditious or treasonous. At that date, the government made no effort to prohibit the dissemination of obscenity. Rather, obscene literature was considered to raise a moral question properly cognizable only by ecclesiastical, and not the common-law, courts.5 'A crime that shakes religion (a), as profaneness on the stage, &c. is indictable (b); but writing an obscene book, as that intitled, 'The Fifteen Plagues of a Maidenhead,' is not indictable, but punishable only in the Spiritual Court (c).' Queen v. Read, 88 Eng.Rep. 953 (K.B.1707). To be sure, Read was ultimately overruled and the crime of obscene libel established. Rex v. Curl, supra. It is noteworthy, however, that the only reported cases of obscene libel involved politically unpopular defendants. Ibid. Rex v. Wilkes, 98 Eng.Rep. 327 (K.B.1770).
22
In any event, what we said in Bridges v. California, 314 U.S. 252, 264—265, 62 S.Ct. 190, 194—195, 86 L.Ed. 192, would dispose of any argument that earlier restrictions on free expression should be read into the First Amendment:
23
'(T)o assume that English common law in this field became ours is to deny the generally accepted historical belief that 'one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.' . . .
24
'More specifically, it is to forget the environment in which the First Amendment was ratified. In presenting the proposals which were later embodied in the Bill of Rights, James Madison, the leader in the preparation of the First Amendment, said: 'Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body (Parliament), the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution."
25
This Court has nonetheless engrafted an exception upon the clear meaning of words written in the 18th century. But see ibid.; Grosjean v. American Press Co., 297 U.S. 233, 249, 56 S.Ct. 444, 449, 80 L.Ed. 660.
26
Our efforts to define obscenity have not been productive of meaningful standards. What is 'obscene' is highly subjective, varying from judge to judge, from juryman to juryman.
27
'The fireside banter of Chaucer's Canterbury Pilgrims was disgusting obscenity to Victorian-type moralists whose co-ed granddaughters shock the Victorian-type moralists of today. Words that are obscene in England have not a hint of impropriety in the United States, and vice versa. The English language is full of innocent words and phrases with obscene ancestry.' I. Brant, The Bill of Rights 490 (1965).
28
So speaks our leading First Amendment historian; and he went on to say that this Court's decisions 'seemed to multiply standards instead of creating one.' Id., at 491. The reason is not the inability or mediocrity of judges.
29
'What is the reason for this multiple sclerosis of the judicial faculty? It is due to the fact stated above, that obscenity is a matter of taste and social custom, not of fact.' Id., at 491—492.
30
Taste and custom are part of it; but, as I have said on other occasions,6 the neuroses of judges, lawmakers, and of the so-called 'experts' who have taken the place of Anthony Comstock, also play a major role.
31
Finally, it is ironic to me that in this Nation many pages must be written and many hours spent to explain why a person who can read whatever he desires, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, may not without violating a law carry that literature in his briefcase or bring it home from abroad. Unless there is that ancillary right, one's Stanley rights could be realized, as has been suggested, only if one wrote or designed a tract in his attic and printed or processed it in his basement, so as to be able to read it in his study. United States v. Thirty-Seven Photographs, 402 U.S. 363, 382, 91 S.Ct. 1400, 1416, 28 L.Ed.2d 822 (Black, J., dissenting).
32
Most of the items that come this way denounced as 'obscene' are in my view trash. I would find few, if any, that had by my standards any redeeming social value. But what may be trash to me may be prized by others.7 Moreover, by what right under the Constitution do five of us have to impose our set of values on the literature of the day? There is danger in that course, the danger of bending the popular mind to new norms of conformity. There is, of course, also danger in tolerance for tolerance often leads to robust or even ribald productions. Yet tht is part of the risk of the First Amendment.
Irving Brant summed the matter up:
33
'Blessed with a form of government that requires universal liberty of thought and expression, blessed with a social and economic system built on that same foundation, the American people have created the danger they fear by denying to themselves the liberties they cherish.' Brant, supra, at 493.
34
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
35
We noted probable jurisdiction to consider the constitutionality of 19 U.S.C. § 1305(a), which prohibits all persons from 'importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral.' Pursuant to that provision, customs authorities at Los Angeles seized certain movie films color slides, photographs, and other materials, which claimant sought to import into the United States. A complaint was filed in the United States District Court for the Central District of California for forfeiture of these items as obscene. Relying on the decision in United States v. Thirty-Seven Photographs, 309 F.Supp. 36 (CD Cal. 1969), which held the statute unconstitutional on its face, the District Court dismissed the complaint. Although we subsequently reversed the decision in United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), the reasoning that led us to uphold the statute is no longer viable, under the view expressed in my dissent today in Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 73, 93 S.Ct. 2628, at 2642, 37 L.Ed.2d 446. Whatever the extent of the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults the statute before us is, in my view, clearly overbroad and unconstitutional on its face. See my dissent in Miller v. California, 413 U.S. 15, at 47, 93 S.Ct. 2607, at 2627, 37 L.Ed.2d 419. I would therefore affirm the judgment of the District Court.
1
The United States brought this direct appeal under 28 U.S.C. § 1252. See Clark v. Gabriel, 393 U.S. 256, 258, 89 S.Ct. 424, 426, 21 L.Ed.2d 418 (1968).
2
On the day the complaint was dismissed, claimant filed an affidavit with the District Court stating that none of the seized materials 'were imported by me for any commercial purpose but were intended to be used and possessed by me personally.' In conjunction with the Government's motion to stay the order of dismissal, denied below but granted by Mr. Justice Brennan, the Government conceded it had no evidence to contradict claimant's affidavit and did not 'contest the fact that this was a private importation.'
3
Act of July 31, 1912, c. 263, § 1, 37 Stat. 240.
4
Nor can claimant rely on any other sphere of constitutionally protected privacy, such as that which encompasses the intimate medical problems of family, marriage, and motherhood. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 65—67, 93 S.Ct. 2628, at 2639—2640, 37 L.Ed.2d 446, and United States v. Orito, supra, 413 U.S., at 142—143, 93 S.Ct., at 2677—2678.
5
Mr. Justice Holmes had this kind of situation in mind when he said:
'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.' Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908).
6
In Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), and Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523 (1913), this Court upheld the 'so-called White Slave Traffic Act, which was construed to punish any person engaged in enticing a woman from one state to another for immoral ends, whether for commercial purposes or otherwise, . . . because it was intended to prevent the use of interstate commerce to facilitate prostitution or concubinage, and other forms of immorality.' Brooks v. United States, 267 U.S. 432, 437, 45 S.Ct. 345, 346, 69 L.Ed. 699 (1925) (emphasis added).
7
We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where "a serious doubt of constitutionality is raised" and "a construction of the statute is fairly possible by which the question may be avoided." United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971) (opinion of White, J.), quoting from Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). If and when such a 'serious doubt' is raised as to the vagueness of the words 'obscene,' 'lewd,' 'lascivious,' 'filthy,' 'indecent,' or 'immoral' as used to describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462, see United States v. Orito, supra, 413 U.S., at 140 n. 1, 93 S.Ct., at 2676 n. 1, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions ofthat specific 'hard core' sexual conduct given as examples in Miller v. California, supra, 413 U.S., at 25, 93 S.Ct., at 2615. See United States v. Thirty-Seven Photographs, supra, 402 U.S., at 369—374, 91 S.Ct., at 1404—1407 (opinion of White, J.). Of course, Congress could always define other specific 'hard core' conduct.
1
Even the copyright power is limited by the freedoms secured by the First Amendment. Lee v. Runge, 404 U.S. 887, 892 893, 92 S.Ct. 197, 200—201, 30 L.Ed.2d 169 (Douglas, J., dissenting); Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.A.L.Rev. 1180 (1970).
2
Thus, the suggestion that most of the States that had ratified the Constitution punished blasphemy or profanity, is irrelevant to our inquiry here.
3
Separating the worthwhile from the worthless has largely been a matter of individual taste because significant governmental sanctions against obscene literature are of relatively recent vintage, not having developed until the Victorian Age of the mid-19th century. N. St. John-Stevas, Obscenity and the Law 1—85 (1956). See T. Emerson, The System of Freedom of Expression 468 469 (1970); J. Paul & M. Schwartz, Federal Censorship, c. 1 (1961); Report of the Commission on Obscenity and Pornography 349 354 (1970). In this country, the first federal prohibition on obscenity was not until the Tariff Act of 1842, c. 270, § 28, 5 Stat. 566. England, which gave us the infamous Star Chamber and a history of licensing of publishing, did not raise a statutory bar to the importation of obscenity until 1853, Customs Consolidation Act, 16 & 17 Vict., c. 107, and waited until 1857 to enact a statute which banned obscene literature outright. Lord Campbell's Act, 20 & 21 Vict., c. 83.
4
The only colonial statute mentioning the word 'obscene' was Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), in Mass. Bay Colony Charter & Laws 399 (1814). It did so, however, in the context of 'composing, writing, printing or publishing . . . any filthy, obscene, or profane song, pamphlet, libel or mock sermon, in imitation or in mimicking of preaching, or any other part of divine worship' and must, therefore, be placed with the other colonial blasphemy laws. E.g., An Act for the Punishment of divers capital and other Felonies, Conn.Acts, Laws, Charter & Articles of Confederation 66, 67 (1784); Act of 1723, c. 16, § 1, Digest of the Laws of Md. 92 (Herty 1799).
5
Lord Coke's De Libellis Famosis, 77 Eng.Rep. 250 (1605), for example, was the definitive statement of the common law of libel but made no mention of the misdemeanor of obscene libel.
6
Ginsberg v. New York, 390 U.S. 629, 655—656, 661—671, 88 S.Ct. 1274, 1288—1289, 1291—1297, 20 L.Ed.2d 195 (Douglas, J., dissenting).
7
Ginzburg v. United States, 383 U.S. 463, 491, 86 S.Ct. 942, 953, 16 L.Ed.2d 31 (Douglas, J., dissenting).
| 23
|
413 U.S. 1
93 S.Ct. 2440
37 L.Ed.2d 407
John J. GILLIGAN, Governor of Ohio, et al., Petitioners,v.Craig MORGAN et al.
No. 71—1553.
Argued March 19, 1973.
Decided June 21, 1973.
Syllabus
Respondents filed this action on behalf of themselves and all other students at a state university, claiming that during a period of civil disorder on the campus in May 1970, the National Guard Called by the Governor to preserve order, violated students' rights of speech and assembly and caused injury and death to some students. They sought injunctive relief to restrain the Governor in the future from prematurely ordering Guard troops to duty in civil disorders and an injunction to restrain Guard leaders from future violation of students' rights. They also sought a declaratory judgment that § 2923.55 of the Ohio Revised Code is unconstitutional. The District Court dismissed the suit on the ground that the complaint failed to state a claim upon which relief could be granted. The Court of Appeals affirmed the dismissal with respect to both injunctive relief against the Governor's 'premature' employment of the Guard and the validity of the state statute, but held that the complaint stated a cause of action with respect to one issue, which was remanded to the District Court with directions to resolve the question whether there was and is 'a pattern of training, weaponry and orders in the Ohio National Guard which . . . require . . . the use of fatal force in suppressing civilian disorders when the total circumstances are such that nonlethal force would suffice to restore order. . . .' Since the complaint was filed, the named respondents have left the university; the officials originally named as defendants no longer hold offices in which they can exercise authority over the Guard; the Guard has adopted new and substantially different 'use of force' rules; and the civil disorder training of Guard recruits has been revised. Held:
1. The case is resolved on the basis of whether the claims alleged in the complaint, as narrowed by the Court of Appeals' remand, are justiciable, rather than on possible mootness. Pp. 4 5.
2. No justiciable controversy is presented in this case, as the relief sought by respondents, requiring initial judicial review and continuing judicial surveillance over the training, weaponry, and standing orders of the National Guard, embraces critical areas of responsibility vested by the Constitution, see Art. I, § 8, cl. 16, in the Legislative and Executive Branches of the Government. Pp. 5—12.
456 F.2d 608, reversed.
Thomas V. Martin, Columbus, Ohio, for petitioners.
Solicitor Gen. Erwin N. Griswold for the United States, as amicus curiae, by special leave of Court.
Michael E. Geltner, New York City, for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Respondents, alleging that they were full-time students and officers in the student government at Kent State University in Ohio, filed this action1 in the District Court on behalf of themselves and all other students on October 15, 1970. The essence of the complaint is that, during a period of civil disorder on and around the University campus in May 1970, the National Guard, called by the Governor of Ohio to preserve civil order and protect public property, violated students' rights of speech and assembly and caused injury to a number of students and death to several, and that the actions of the National Guard were without legal justification. They sought injunctive relief against the Governor to restrain him in the future from prematurely ordering National Guard troops to duty in civil disorders and an injunction to restrain leaders of the National Guard from future violation of the students' constitutional rights. They also sought a declaratory judgment that § 2923.55 of the Ohio Revised Code2 is unconstitutional. The District Court held that the complaint failed to state a claim upon which relief could be granted and dismissed the suit. The Court of Appeals3 unanimously affirmed the District Court's dismissal with respect to injunctive relief against the Governor's 'premature' employment of the Guard on future occasions an with respect to the validity of the state statute.4 At the same time, however, the Court of Appeals, with one judge dissenting, held that the complaint stated a cause of action with respect to one issue which was remanded to the District Court with directions to resolve the following question:
2
'Was there and is there a pattern of training, weaponry and orders in the Ohio National Guard which singly or together require or make inevitable the use of fatal force in suppressing civilian disorders when the total circumstances at the critical time are such that nonlethal force would suffice to restore order and the use of lethal force is not reasonably necessary?'5
3
We granted certiorari to review the action of the Court of Appeals.6
4
* We note at the outset that since the complaint was filed in the District Court in 1970, there have been a number of changes in the factual situation. At the oral argument, we were informed that none of the named respondents is still enrolled in the University.7 Likewise, the officials originally named as party defendants no longer hold offices in which they can exercise any authority over the State's National Guard,8 although the suit is against such parties and their successors in office. In addition, both the petitioners, and the Solicitor General appearing as amicus curiae, have informed us that since 1970 the Ohio National Guard has adopted new 'use of force' rules substantially differing from those in effect when the complaint was filed; we are also informed that the initial training of National Guard recruits relating to civil disorder control9 has been revised.
5
Respondents assert, nevertheless, that these changes in the situation do not affect their right to a hearing on their entitlement to injunctive and supervisory relief. Some basis, therefore, exists for a conclusion that the case is now moot; however, on the record before us we are not prepared to resolve the case on that basis and therefore turn to the important question whether the claims alleged in the complaint, as narrowed by the Court of Appeals' remand, are justiciable.
II
6
We can treat the question of justiciability on the basis of an assumption that respondents' claims, within the framework of the remand order, are true and could be established by evidence. On that assumption, we address the question whether there is any relief a District Court could appropriately fashion.
7
It is important to note at the outset that this is not a case in which damages are sought for injuries sustained during the tragic occurrence at Kent State. Nor is it an action seeking a restraining order against some specified and imminently threatened unlawful action. Rather, it is a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard. This far-reaching demand for relief presents important questions of justiciability.
8
Respondents continue to seek for the benefit of all Kent State students a judicial evaluation of the appropriateness of the 'training, weaponry and orders' of the Ohio National Guard. They further demand, and the Court of Appeals' remand would require, that the District Court establish standards for the training, kind of weapons and scope and kind of orders to control the actions of the National Guard. Respondents contend that thereafter the District Court must assume and exercise a continuing judicial surveillance over the Guard to assure compliance with whatever training and operations procedures may be approved by that court. Respondents press for a remedial decree of this scope, even assuming that the recently adopted changes are deemed acceptable after an evidentiary hearing by the court. Continued judicial surveillance to assure compliance with the changed standards is what respondents demand.
9
In relying on the Due Process Clause of the Fourteenth Amendment, respondents seem to overlook the explicit command of Art. I, § 8, cl. 16, which vests in Congress the power:
10
'To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' (Emphasis added.)
11
The majority opinion in the Court of Appeals does not mention this very relevant provision of the Constitution. Yet that provision is explicit that the Congress shall have the responsibility for organizing, arming, and disciplining the Militia (now the National Guard), with certain responsibilities being reserved to the respective States. Congress has enacted appropriate legislation pursuant to Art. I, § 8, cl. 16,10 and has also authorized the President—as the Commander in Chief of the Armed Forces—to prescribe regulations governing organization and discipline of the National Guard.11 The Guard is an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war. The Guard also may be federalized in addition to its role under state governments, to assist in controlling civil disorders.12 The relief sought by respondents, requiring initial judicial review and continuing surveillance by a federal court over the training, weaponry and orders of the Guard, would therefore embrace critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government.13
12
The Court of Appeals invited the District Court on remand to survey certain materials not then in the record of the case:
13
'(F)or example: Prevention and Control of Mobs and Riots, Federal Bureau of Investigation, U.S. Dept. of Justice, J. Edgar Hoover (1967) . . .; 32 C.F.R. § 501 (1971), 'Employment of Troops in Aid of Civil Authorities'; Instructions for Members of the Force at Mass Demonstrations, Police Department, City of New York (no date); Report of the National Advisory Commission on Civil Disorders (1968).' 456 F.2d, at 614.
14
This would plainly and explicitly require a judicial evaluation of a wide range of possibly dissimilar procedures and policies approved by different law enforcement agencies or other authorities; and the examples cited may represent only a fragment of the accumulated data and experience in the various States, in the Armed Services, and in other concerned agencies of the Federal Government. Trained professionals, subject to the day-to-day control of the responsible civilian authorities, necessarily must make comparitive judgments on the merits as to evolving methods of training, equipping, and controlling military forces with respect to their duties under the Constitution. It would be inappropriate for a district judge to undertake this responsibility in the unlikely event that he posssessed requisite technical competence to do so.
15
Judge Celebrezze, in dissent, correctly read Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), when he said:
16
'I believe that the congressional and executive authority to prescribe and regulate the training and weaponry of the National Guard, as set forth above, clearly precludes any form of judicial regulation of the same matters. I can envision no form of judicial relief which, if directed at the training and weaponry of the National Guard, would not involve a serious conflict with a
17
"coordinate political department; . . . a lack of judicially discoverable and manageable standards for resolving (the question); . . . the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; . . . the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; . . . an unusual need for unquestioning adherence to a political decision already made; (and) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.' Baker v. Carr, supra, 369 U.S. 186, at 217, 82 S.Ct. 691, at 710, 7 L.Ed.2d 633 . . ..
18
'Any such relief, whether it prescribed standards of training and weaponry or simply ordered compliance with the standards set by Congress and/or the Executive, would necessarily draw the courts into a nonjusticiable political question, over which we have no jurisdiction.' 456 F.2d, at 619 (emphasis added).
19
In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), this Court noted that:
20
'Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action. Yet it remains true that '(j)usticiability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures . . ..' Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961)."14
21
In determining justiciability, and analysis in Flast thus suggests that there is no justiciable controversy (a) 'when the parties are asking for an advisory opinion,' (b) 'when the question sought to be adjudicated has been mooted by subsequent developments,' and (c) 'when there is no standing to maintain the action.' As we noted in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), and repeated in Flast, '(j)usticiability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures . . ..' 367 U.S., at 508, 81 S.Ct., at 1759.
22
In testing this case by these standards drawn specifically from Flast, there are serious deficiencies with respect to each. The advisory nature of the judicial declaration sought is clear from respondents' argument and, indeed, from the very language of the court's remand. Added to this is that the nature of the questions to be resolved on remand are subjects committed expressly to the political branches of government. These factors, when coupled with the uncertainties as to whether a live controversy still exists and the infirmity of the posture of respondents as to standing, render the claim and the proposed issues on remand nonjusticiable.
23
It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible—as the Judicial Branch is not—to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system; the majority opinion of the Court of Appeals failed to give appropriate weight to this separation of powers.15
24
Voting rights cases such as Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and prisoner rights cases such as Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), are cited by the court as supporting the 'diminish(ing) vitality of the political question doctrine.' 456 F.2d, at 613. Yet, because this doctrine has been held inapplicable to certain carefully delineated situations It is no reason for federal courts to assume its demise. The voting rights cases, indeed, have represented the Court's efforts to strengthen the political system by assuring a higher level of fairness and responsiveness to the political processes, not the assumption of a continuing judicial review of substantive political judgments entrusted expressly to the coordinate branches of government.
25
In concluding that no justiciable controversy is presented, it should be clear that we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law for specific unlawful conduct by military personnel,16 whether by way of damages or injunctive relief. We hold only that no such questions are presented in this case. We decline to require a United States District Court to involve itself so directly and so intimately in the task assigned that court by the Court of Appeals. Orloff v. Willoughby, 345 U.S. 83, 93—94, 73 S.Ct. 534, 539—540, 97 L.Ed. 842 (1953).
26
Reversed.
27
Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL dissent. For many of the reasons stated in Part I of the Court's opinion, they are convinced that this case is now moot. Accordingly, they would vacate the judgment of the Court of Appeals and remand the case to the District Court with directions to dismiss it as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36.
28
Mr. justice BLACKMUN, with whom Mr. Justice POWELL joins, concurring.
29
Respondents brought this action in 1970 seeking broad-ranging declaratory and injunctive relief. But the issue presently before the Court relates only to a portion of the relief sought in 1970. Under the Court of Appeals' remand order the District Court was limited in its review to determining the existence of a pattern of 'training, weaponry and orders in the Ohio National Guard which singly or together require or make inevitable' the unjustifiable use of lethal force in suppressing civilian disorders. 456 F.2d 608, 612. The Ohio use-offorce rules have now been changed, and are identical to the Army use-of-force rules. Counsel for respondents stated at oral argument that the use-of-force rules now in effect provide satisfactory safeguards against unwarranted use of lethal force by the Ohio National Guard. Tr. of Oral Arg. 31. And, as of 1971, special civil-disturbance-control training had been provided for the various National Guard units.
30
It is in this narrowly confined setting that we are asked to decide the issues presented in this case. Respondents have informed us that they seek no change in the current National Guard regulations; rather, they wish to assure their continuance through constant judicial surveillance of the orders, training, and weaponry of the Guard.
31
Were it not for the continuing surveillance respondents seek, I would have little difficulty concluding that the controversy is now moot. Except for that aspect of the case, all relief requested by respondents have been obtained. While one might argue that the likelihood of future changes in the rules is so attenuated that even the claim for continuing review by the District Court is moot, this issue need not be reached, as the District Court is clearly without power to grant the relief now sought. DP Respondents' complaint rests upon a single, isolated, and tragic incident at Kent State University. The conditions that existed at the time of the incident no longer prevail. And respondents' complaint contains nothing suggesting that they are likely to suffer specific injury in the future as a result of the practices they challenge. See Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972). A complaint based on a single past incident, containing allegations of unspecified, speculative threats of uncertain harm that might occur at some indefinite time in the future, cannot support respondents' standing to maintain this action. See Complaint, par. 11, App. 5—6; Roe v. Wade, 410 U.S. 113, 128, 93 S.Ct. 705, 715, 35 L.Ed.2d 147 (1973).
32
The relief sought by respondents, moreover, is beyond the province of the judiciary. Respondents would have the District Court, through continuing surveillance, evaluate and pass upon the merits of the Guard's training programs, weapons, use of force, and orders. The relief sought is prospective only; an evaluation of those matters in the context of a particular factual setting as a predicate to relief in the form of an injunction against continuing activity or for damages would present wholly different issues. This case relates to prospective relief in the form of judicial surveillance of highly subjective and technical matters involving military training and command. As such, it presents an '(inappropriate) . . . subject matter for judicial consideration,' for respondents are asking the District Court, in fashioning that prospective relief, 'to enter upon policy determinations for which judicially manageable standards are lacking.' Baker v. Carr, 369 U.S. 186, 198, 226, 82 S.Ct. 691, 699, 714, 7 L.Ed.2d 663 (1962).
33
For these reasons the judgment of the Court of Appeals must be reversed. On the understanding that this is what the Court's opinion holds, I join that opinion.
1
The complaint was brought under 42 U.S.C. § 1983 with jurisdiction asserted under 28 U.S.C. § 1343(3).
2
This section provides that, under certain circumstances, law enforcement personnel who are engaged in suppressing a riot are 'guiltless' for the consequences of the use of necessary and proper force. Ohio Rev.Code Ann. § 2923.55 (Supp.1972).
3
The opinion of the Court of Appeals is reported sub nom. Morgan v. Rhodes, 456 F.2d 608 (CA6 1972).
4
Respondents have not sought certiorari with respect to those claims.
5
Id. at 612.
6
409 U.S. 947, 93 S.Ct. 287, 34 L.Ed.2d 217 (1972).
7
Tr. of Oral Arg. 25, 33.
8
Memorandum of Petitioners Suggesting a Question of Mootness 2.
9
In 1971, the Army began to give National Guard recruits 16 hours of additional special civil-disturbance-control training recognizing the peculiar role of the National Guard in this area.
10
E.g., 32 U.S.C. §§ 105, 501—507, 701—714 (1970 ed. and Supp. I).
11
32 U.S.C. § 110.
12
10 U.S.C. § 331 et seq.
13
The initial and basic training of National Guard personnel is, by Regulation of the Department of the Army, pursuant to statutory authority, under federal jurisdiction. Commencing in 1971, National Guard units received, as part of the basic training, 16 hours of special civil-disturbance-control training, in recognition of the likelihood that the National Guard would be the primary source of military personnel called into civil disorder situations. See Dept. of the Army, Reserve Enlistment Program of 1963, CON Supp. 1 to AR350—1, App. XXV, Anx. F, Par. 3c (Aug. 31, 1972).
14
392 U.S., at 95, 88 S.Ct., at 1950 (footnotes omitted).
15
In a colloquy with the Court on the scope of the relief sought under the remand, one Justice asked:
'Would it be a fair characterization of your position that if the case goes back to the district court, you do not quarrel with the specific (National Guard) regulations now in force but (a) you want them made permanent and, (b) you want a continuing surveillance to see that they are carried out; is that a fair statement of your case?'
Mr. Geltner, counsel for respondents, answered:
'Yes, Your Honor, that is a fair statement of what we are seeking at this point, understanding that at the time the complaint was filed we were seeking a more specific change in what then existed.' Tr. of Oral Arg. 56.
16
See Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688 (1946); Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932). In Laird v. Tatum, 408 U.S. 1, 15—16, 92 S.Ct. 2318, 2327, 33 L.Ed.2d 154 (1972), we said: '(W)hen presented with claims of judicially cognizable injury resulting from military, intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in this Court's decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.'
| 89
|
413 U.S. 189
93 S.Ct. 2686
37 L.Ed.2d 548
Wilfred KEYES et al., Petitioners,v.SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al.
No. 71—507.
Argued Oct. 12, 1972.
Decided June 21, 1973.
Rehearing Denied Oct. 9, 1973.
See 414 U.S. 883, 94 S.Ct. 27.
Syllabus
Petitioners sought desegregation of the Park Hill area schools in Denver and, upon securing an order of the District Court directing that relief, expanded their suit to secure desegregation of the remaining schools of the Denver School district, particularly those in the core city area. The District Court denied the further relief, holding that the deliberate racial segregation of the Park Hill schools did not prove a like segregation policy addressed specifically to the core city schools and requiring petitioners to prove de jure segregation for each area that they sought to have desegregated. That court nevertheless found that the segregated core city schools were educationally inferior to 'white' schools elsewhere in the district and, relying on Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, ordered the respondents to provide substantially equal facilities for those schools. This latter relief was reversed by the Court of Appeals, which affirmed the Park Hill ruling and agreed that Park Hill segregation, even though deliberate, proved nothing regarding an overall policy of segregation. Held:
1. The District Court, for purposes of defining a 'segregated' core city school, erred in not placing Negroes and Hispanos in the same category since both groups suffer the same educational inequities when compared with the treatment afforded Anglo students. Pp. 195—198.
2. The courts below did not apply the correct legal standard in dealing with petitioners' contention that respondent School Board had the policy of deliberately segregating the core city schools. Pp. 198—113.
(a) Proof that the school authorities have pursued an intentional segregative policy in a substantial portion of the school district will support a finding by the trial court of the existence of a dual system, absent a showing that the district is divided into clearly unrelated units. Pp. 201—203.
(b) On remand the District Court should decide initially whether respondent School Board's deliberately segregative policy respecting the Park Hills schools constitutes the whole Denver school district a dual school system. Pp. 204—205.
(c) Where, as in this case, a policy of intentional segregation has been proved with respect to a significant portion of the school system, the burden is on the school authorities (regardless of claims that their 'neighborhood school policy' was racially neutral) to prove that their actions as to other segregated schools in the system were not likewise motivated by a segregative intent. Pp. 207—213.
10 Cir., 445 F.2d 990, modified and remanded.
James M. Nabrit, III, New York City, and Gorden C. Greiner, Denver, Colo., for petitioners.
William K. Ris, Denver, Colo., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This school desegregation case concerns the Denver, Colorado, school system. That system has never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education.1 Rather, the gravamen of this action, brought in June 1969 in the District Court for the District of Colorado by parents of Denver schoolchildren, is that respondent School Board alone, by use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy, created or maintained racially or ethnically (or both racially and ethnically) segregated schools throughout the school district, entitling petitioners to a decree directing desegregation of the entire school district.
2
The boundaries of the school district are coterminous with the boundaries of the city and county of Denver. There were in 1969, 119 schools2 with 96,580 pupils in the school system. In early 1969, the respondent School Board adopted three resolutions, Resolutions 1520, 1524, and 1531, designed to desegregate the schools in the Park Hill area in the northeast portion of the city. Following an election which produced a Board majority opposed to the resolutions, the resolutions were rescinded and replaced with a voluntary student transfer program. Petitioners then filed this action, requesting an injunction against the rescission of the resolutions and an order directing that the respondent School Board desegregate and afford equal educational opportunity 'for the School District as a whole.' App. 32a. The District Court found that by the construction of a new, relatively small elementary school, Barrett, in the middle of the Negro community west of Park Hill, by the gerrymandering of student attendance zones, by the use of so-called 'optional zones,' and by the excessive use of mobile classroom units, among other things, the respondent School Board had engaged over almost a decade after 1960 in an unconstitutional policy of deliberate racial segregation with respect to the Park Hill schools.3 The court therefore ordered the Board to desegregate those schools through the implementation of the three rescinded resolutions. D.C., 303 F.Supp. 279 and 289 (1969).
3
Segregation in Denver schools is not limited, however, to the schools in the Park Hill area, and not satisfied with their success in obtaining relief for Park Hill, petitioners pressed their prayer that the District Court order desegregation of all segregated schools in the city of Denver, particularly the heavily segregated schools in the core city area.4 But that court concluded that its finding of a purposeful and systematic program of racial segregation affecting thousands of students in the Park Hill area did not, in itself, impose on the School Board an affirmative duty to eliminate segregation throughout the school district. Instead, the court fractionated the district and held that petitioners had to make a fresh showing of de jure segregation in each area of the city for which they sought relief. Moreover, the District Court held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city. Under this restrictive approach, the District Court concluded that petitioners' evidence of intentionally discriminatory School Board action in areas of the district other than Park Hill was insufficient to 'dictate the conclusion that this is de jure segregation which calls for an all-out effort to desegregate. It is more like de facto segregation, with respect to which the rule is that the court cannot order desegregation in order to provide a better balance.' D.C., 313 F.Supp. 61, 73 (1970).
4
Nevertheless, the District Court went on to hold that the proofs established that the segregated core city schools were educationally inferior to the predominantly 'white' or 'Anglo' schools in other parts of the district—that is, 'separate facilities . . . unequal in the quality of education provided.' Id., at 83. Thus, the court held that, under the doctrine of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), respondent School Board constitutionally 'must at a minimum . . . offer an equal educational opportunity,' 313 F.Supp., at 83, and, therefore, although all-out desegregation 'could not be decreed, . . . the only feasible and constitutionally acceptable program—the only program which furnishes anything approaching substantial equality is a system of desegregation and integration which provides compensatory education in an integrated environment.' 313 F.Supp. 90, 96 (1970). The District Court then formulated a varied remedial plan to that end which was incorporated in the Final Decree.5
5
Respondent School Board appealed, and petitioners cross-appealed, to the Court of Appeals for the Tenth Circuit. That court sustained the District Court's finding that the Board had engaged in an unconstitutional policy of deliberate racial segregation with respect to the Park Hill schools and affirmed the Final Decree in that respect. As to the core city schools, however, the Court of Appeals reversed the legal determination of the District Court that those schools were maintained in violation of the Fourteenth Amendment because of the unequal educational opportunity afforded, and therefore set aside so much of the Final Decree as required desegregation and educational improvement programs for those schools. 445 F.2d 990 (1971). In reachingt that result, the Court of Appeals also disregarded respondent School Board's deliberate racial segregation policy respecting the Park Hill schools and accepted the District Court's finding that petitioners had not proved that respondent had a like policy addressed specifically to the core city schools.
6
We granted petitioners' petition for certiorari to review the Court of Appeals' judgment insofar as it reversed that part of the District Court's Final Decree as pertained to the core city schools. 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728 (1972). The judgment of the Court of Appeals in that respect is modified to vacate instead of reverse the Final Decree. The respondent School Board had cross-petitioned for certiorari to review the judgment of the Court of Appeals insofar as it affirmed that part of the District Court's Final Decree as pertained to the Park Hills schools. School District No. 1 v. Docket No. 71—572, Keyes. The cross-petition is denied.
7
* Before turning to the primary question we decide today, a word must be said about the District Court's method of defining a 'segregated' school. Denver is a tri-ethnic, as distinguished from a bi-racial, community. The overall racial and ethnic composition of the Denver public schools is 66 Anglo, 14% Negro, and 20% Hispano.6 The District Court in assessing the question of de jure segregation in the core city schools, preliminarily resolved that Negroes and Hispanos should not be placed in the same category to establish the segregated character of a school. 313 F.Supp., at 69. Later, in determining the schools that were likely to produce an inferior educational opportunity, the court concluded that a school would be considered inferior only if it had 'a concentration of either Negro or Hispano students in the general area of 70 to 75 percent.' Id., at 77. We intimate no opinion whether the District Court's 70%-to-75% requirement was correct. The District Court used those figures to signify educationally inferior schools, and there is no suggestion in the record that those same figures were or would be used to define a 'segregated' school in the de jure context. What is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school's student body, other factors, such as the racial and ethnic composition of faculty and staff and the community and administration attitudes toward the school, must be taken into consideration. The District Court has recognized these specific factors as elements of the definition of a 'segregated' school, id., at 74, and we may therefore infer that the court will consider them again on remand.
8
We conclude, however, that the District Court erred in separating Negroes and Hispanos for purposes of defining a 'segregated' school. We have held that Hispanos constitute an identifiable class for purposes of the Fourteenth Amendment. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). See also United States v. Texas Educations Agency, 467 F.2d 848 (CA5 1972) (en banc); Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (CA5 1972) (en banc); Alvarado v. El Paso Independent School District, 445 F.2d 1011 (CA5 1971); Soria v. Oxnard School District, 328 F.Supp. 155 (CD Cal.1971); Romero v. Weakley, 226 F.2d 339 (CA9 1955). Indeed the District Court recognized this in classifying predominantly Hispano schools as 'segregated' schools in their own right. But there is also much evidence that in the Southwest Hispanos and Negroes have a great many things in common. The United States Commission on Civil Rights has recently published two Reports on Hispano education in the Southwest.7 Focusing on students in the States of Arizona, California, Colorado, New Mexico, and Texas, the Commission concluded that Hispanos suffer from the same educational inequities as Negroes and American Indians.8 In fact, the District Court itself recognized that '(o)ne of the things which the Hispano has in common with the Negro is economic and cultural deprivation and discrimination.' 313 F.Supp., at 69. This is agreement that, though of different origins Negroes and Hispanos in Denver suffer identical discrimination in treatment when compared with the treatment afforded Anglo students. In that circumstance, we think petitioners are entitled to have schools with a combined predominance of Negroes and Hispanos included in the category of 'segregated' schools.
II
9
In our view, the only other question that requires our decision at this time is that subsumed in Question 2 of the questions presented by petitioners, namely whether the District Court and the Court of Appeals applied an incorrect legal standard in addressing petitioners' contention that respondent School Board engaged in an unconstitutional policy of deliberate segregation in the core city schools. Our conclusion is that those courts did not apply the correct standard in addressing that contention.9
10
Petitioners apparently concede for the purposes of this case that in the case of a school system like Denver's, where no statutory dual system has ever existed, plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action. Petitioners proved that for almost a decade after 1960 respondent School Board had engaged in an unconstitutional policy of deliberate racial segregation in the Park Hill schools. Indeed, the District Court found that '(b)etween 1960 and 1969 the Board's policies with respect to these northeast Denver schools show an undeviating purpose to isolate Negro students' in segregated schools 'while preserving the Anglo character of (other) schools.' 303 F.Supp., at 294. This finding did not relate to an insubstantial or trivial fragment of the school system. On the contrary, respondent School Board was found guilty of following a deliberate segregation policy at schools attended, in 1969, by 37.69% of Denver's total Negro school population, including one-fourth of the Negro elementary pupils, over two-thirds of the Negro junior high pupils, and over two-fifths of the Negro high school pupils.10 In addition, there was uncontroverted evidence that teachers and staff had for years been assigned on the basis of a minority teacher to a minority school throughout the school system. Respondent argues, however, that a finding of state-imposed segregation as to a substantial portion of the school system can be viewed in isolation from the rest of the district, and that even if state-imposed segregation does exist in a substantial part of the Denver school system, it does not follow that the District Court could predicate on that fact a finding that the entire school system is a dual system. We do not agree. We have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), the State automatically assumes an affirmative duty 'to effectuate a transition to a racially nondiscriminatory school system,' Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II), see also Green v. County School Board, 391 U.S. 430, 437—438, 88 S.Ct. 1689, 1693—1694, 20 L.Ed.2d 716 (1968), that is, to eliminate from the public schools within their school system 'all vestiges of state-imposed segregation.' Swann v. Charlotte-Meckleburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971).11
11
This is not a case, however, where a statutory dual system has ever existed. Nevertheless, where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system. Several considerations support this conclusion. First, it is obvious that a practice of concentrating Negroes in certain schools by structuring attendance zones or designating 'feeder' schools on the basis of race has the reciprocal effect of keeping other nearby schools predominantly white.12 Similarly, the practice of building a school—such as the Barrett Elementary School in this case—to a certain size and in a certain location, 'with conscious knowledge that it would be a segregated school,' 303 F.Supp., at 285, has a substantial reciprocal effect on the racial composition of other nearby schools. So also, the use of mobile classrooms, the drafting of student transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construction, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concentration within the schools. We recognized this is Swann when we said:
12
'They (school authorities) must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.
13
'In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of 'neighborhood zoning.' Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with 'neighborhood zoning,' further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy.' 402 U.S., at 20—21, 91 S.Ct. at 1278.
14
In short, common sense dictates the conclusion that racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions. This is not to say, of course, that there can never be a case in which the geographical structure of, or the natural boundaries within, a school district may have the effect of dividing the district into separate, identifiable and unrelated units. Such a determination is essentially a question of fact to be resolved by the trial court in the first instance, but such cases must be rare. In the absence of such a determination, proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system. Of course, where that finding is made, as in cases involving statutory dual systems, the school authorities have an affirmative duty 'to effectuate a transition to a racially nondiscriminatory school system.' Brown II, supra, 394 U.S., at 301, 75 S.Ct. at 756.
15
On remand, therefore, the District Court should decide in the first instance whether respondent School Board's deliberate racial segregation policy with respect to the Park Hill schools constitutes the entire Denver school system a dual school system. We observe that on the record now before us there is indication that Denver is not a school district which might be divided into separate, identifiable and unrelated units. The District Court stated, in its summary of findings as to the Park Hill schools, that there was 'a high degree of interrelationship among these schools, so that any action by the Board affecting the racial composition of one would almost certainly have an effect on the others.' 303 F.Supp., at 294. And there was cogent evidence that the ultimate effect of the Board's actions in Park Hill was not limited to that area: the three 1969 resolutions designed to desegregate the Park Hill schools changed the attendance patterns of at least 29 schools attended by almost one-third of the pupils in the Denver school system.13 This suggests that the official segregation in Park Hill affected the racial composition of schools throughout the district.
16
On the other hand, although the District Court did not state this, or indeed any, reason why the Park Hill finding was disregarded when attention was turned to the core city schools beyond saying that the Park Hill and core city areas were in its view 'different'—the areas, although adjacent to each other, are separated by Colorado Boulevard, a six-lane highway. From the record, it is difficult to assess the actual significance of Colorado Boulevard to the Denver school system. The Boulevard runs the length of the school district, but at least two elementary schools, Teller and Steck, have attendance zones which cross the Boulevard. Moreover, the District Court, although referring to the Boulevard as 'a natural dividing line,' 303 F.Supp., at 282, did not feel constrained to limit its consideration of de jure segregation in the Park Hill area to those schools east of the Boulevard. The court found that by building Barrett Elementary School west of the Boulevard and by establishing the Boulevard as the eastern boundary of the Barrett attendance zone, the Board was able to maintain for a number of years the Anglo character of the Park Hill schools. This suggests that Colorado Boulevard is not to be regarded as the type of barrier that of itself could confine the impact of the Board's actions to an identifiable area of the school district, perhaps because a major highway is generally not such an effective buffer between adjoining areas. Cf. Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577, (1971). But this is a factual question for resolution by the District Court on remand. In any event, inquiry whether the District Court and the Court of Appeals applied the correct legal standards in addressing petitioners' contention of deliberate segregation in the core city schools is not at an end even if it be true that Park Hill may be separated from the rest of the Denver school district as a separate, identifiable, and unrelated unit.
III
17
The District Court proceeded on the premise that the finding as to the Park Hill schools was irrelevant to the consideration of the rest of the district, and began its examination of the core city schools by requiring that petitioners prove all of the essential elements of de jure segregation—that is, stated simply, a current condition of segregation resulting from intentional state action directed specifically to the core city schools.14 The segregated character of the core city schools could not be and is not denied. Petitioners' proof showed that at the time of trial 22 of the schools in the core city area were less than 30% in Anglo enrollment and 11 of the schools were less than 10% Anglo.15 Petitioners also introduced substantial evidence demonstrating the existence of a disproportionate racial and ethnic composition of faculty and staff at these schools.
18
On the question of segregative intent, petitioners presented evidence tending to show that the Board, through its actions over a period of years, intentionally created and maintained the segregated character of the core city schools. Respondents countered this evidence by arguing that the segregation in these schools is the result of a racially neutral 'neighborhood school policy' and that the acts of which petitioners complain are explicable within the bounds of that policy. Accepting the School Board's explanation, the District Court and the Court of Appeals agreed that a finding of de jure segregation as to the core city schools was not permissible since petitioners had failed to prove '(1) a racially discriminatory purpose and (2) a causal relationship between the acts complained of and the racial imbalance admittedly existing in those schools.' 445 F.2d at 1006. This assessment of petitioners' proof was clearly incorrect.
19
Although petitioners had already proved the existence of intentional school segregation in the Park Hill schools, this crucial finding was totally ignored when attention turned to the core city schools. Plainly, a finding of intentional segregation as to a portion of a school system is not devoid of probative value in assessing the school authorities' intent with respect to other parts of the same school system. On the contrary where, as here, the case involves one school board, a finding of intentional segregation on its part in one portion of a school system is highly relevant to the issue of the board's intent with respect to the other segregated schools in the system. This is merely an application of the well-settled evidentiary principle that 'the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent.' 2 J. Wigmore, Evidence 200 (3d ed. 1940). 'Evidence that similar and related offenses were committed . . . tend(s) to show a consistent pattern of conduct highly relevant to the issue of intent.' Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949). Similarly, a finding of illicit intent as to a meaningful portion of the item under consideration has substantial probative value on the question of illicit intent as to the remainder. See, for example, the cases cited in 2 Wigmore, supra, at 301—302. And '(t)he foregoing principles are equally as applicable to civil cases as to criminal cases . . ..' Id., at 300. See also C. McCormick, Evidence 329 (1954).
20
Applying these principles in the special context of school desegregation cases, we hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. This is true even if it is determined that different areas of the school district should be viewed independently of each other because, even in that situation, there is high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the school system, similar impermissible considerations have motivated their actions in other areas of the system. We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann16 is purpose or intent to segregate. Where school authorities have been found to have practiced purposeful segregation in part of a school system, they may be expected to oppose system-wide desegregation, as did the respondents in this case, on the ground that their purposefully segregative actions were isolated and individual events, thus leaving plaintiffs with the burden of proving otherwise. But at that point where an intentionally segregative policy is practiced in a meaningful or significant segment of a school system, as in this case, the school authorities cannot be heard to argue that plaintiffs have proved only 'isolated and individual' unlawfully segregative actions. In that circumstance, it is both fair and reasonable to require that the school authorities bear the burden of showing that their actions as to other segregated schools within the system were not also motivated by segregative intent.
21
This burden-shifting principle is not new or novel. There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, 'is merely a question of policy and fairness based on experience in the different situations.' 9 J. Wigmore, Evidence § 2486, at 275 (3d ed. 1940). In the context of racial segregation in public education, the courts, including this Court, have recognized a variety of situations in which 'fairness' and 'policy' require state authorities to bear the burden of explaining actions or conditions which appear to be racially motivated. Thus, in Swann, 402 U.S., at 18, 91 S.Ct. at 1277, we observed that in a system with a 'history of segregation,' '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.' Again, in a school system with a history of segregation, the discharge of a disproportionately large number of Negro teachers incident to desegregation 'thrust(s) upon the School Board the burden of justifying its conduct by clear and convincing evidence.' Chambers v. Hendersonville City Board of Education, 364 F.2d 189, 192 (CA4 1966) (en banc). See also United States v. Jefferson County Board of Education, 372 F. 2d 836, 887—888 (CA5 1966), aff'd en banc, 380 F.2d 385 (1967); North Carolina Teachers Assn. v. Asheboro City Board of Education, 393 F.2d 736, 743 (CA4 1968) (en banc); Williams v. Kimbrough, 295 F.Supp. 578, 585 (W.D.La.1969); Bonner v. Texas City Independent School District, 305 F.Supp. 600, 621 (S.D.Tex.1969). Nor is this burden-shifting principle limited to former statutory dual systems. See, e.g., Davis v. School District of City of Pontiac, 309 F.Supp. 734, 743, 744 (E.D.Mich.1970), aff'd, 443 F.2d 573 (CA6 1971); United States v. School District No. 151, 301 F.Supp. 201, 228 (N.D.Ill.1969), modified on other grounds, 432 F.2d 1147 (CA7 1970). Indeed, to say that a system has a 'history of segregation' is merely to say that a pattern of intentional segregation has been established in the past. Thus, be it a statutory dual system or an allegedly unitary system where a meaningful portion of the system is found to be intentionally segregated, the existence of subsequent or other segregated schooling within the same system justifies a rule imposing on the school authorities the burden of proving that this segregated schooling is not also the result of intentionally segregative acts.
22
In discharging that burden, it is not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions. The courts below attributed much significance to the fact that many of the Board's actions in the core city area antedated our decision in Brown. We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remoteness in time certainly does not make those actions any less 'intentional.'
23
This is not to say, however, that the prima facie case may not be met by evidence supporting a finding that a lesser degree of segregated schooling in the core city area would not have resulted even if the Board had not acted as it did. In Swann, we suggested that at some point in time the relationship between past segregative acts and present segregation may become so attenuated as to be incapable of supporting a finding of de jure segregation warranting judicial intervention. 402 U.S. at 31—32, 91 S.Ct., at 1283—1284. See also Hobson v. Hansen, 269 F.Supp. 401, 495 (D.C.1967), aff'd sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969).17 We made it clear, however, that a connection between past segregative acts and present segregation may be present even when not apparent and that close examination is required before concluding that the connection does not exist. Intentional school segregation in the past may have been a factor in creating a natural environment for the growth of further segregation. Thus, if respondent School Board cannot disprove segregative intent, it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools.
24
The respondent School Board invoked at trial its 'neighborhood school policy' as explaining racial and ethnic concentrations within the core city schools, arguing that since the core city area population had long been Negro and Hispano, the concentrations were necessarily the result of residential patterns and not of purposefully segregative policies. We have no occasion to consider in this case whether a 'neighborhood school policy' of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting de jure segregation. It is enough that we hold that the mere assertion of such a policy is not dispositive where, as in this case, the school authorities have been found to have practed de jure segregation in a meaningful portion of the school system by techniques that indicate that the 'neighborhood school' concept has not been maintained free of manipulation. Our observation in Swann, supra, at 28, 91 S.Ct., at 1882, are particularly instructive on this score:
25
'Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. . . .
26
'. . . 'Racially neutral' assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a 'loaded game board,' affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.' Thus, respondent School Board having been found to have practiced deliberate racial segregation in schools attended by over one-third of the Negro school population, that crucial finding establishes a prima facie case of intentional segregation in the core city schools. In such case, respondent's neighborhood school policy is not to be determinative 'simply because it appears to be neutral.'
IV
27
In summary, the District Court on remand, first, will afford respondent School Board the opportunity to prove its contention that the Park Hill area is a separate, identifiable and unrelated section of the school district that should be treated as isolated from the rest of the district. If respondent School Board fails to prove that contention, the District Court, second, will determine whether respondent School Board's conduct over almost a decade after 1960 in carrying out a policy of deliberate racial segregation in the Park Hill schools constitutes the entire school system a dual school system. If the District Court determines that the Denver school system is a dual school system, respondent School Board has the affirmative duty to desegregate the entire system 'root and branch.' Green v. County School Board, 391 U.S., at 438, 88 S.Ct. at 1694. If the District Court determines, however, that the Denver school system is not a dual school system by reason of the Board's actions in Park Hill, the court, third, will afford respondent School Board the opportunity to rebut petitioners' prima facie case of intentional segregation in the core city schools raised by the finding of intentional segregation in the Park Hill schools. There, the Board's burden is to show that its policies and practices with respect to schoolsite location, school size, school renovations and additions, student-attendance zones, student assignment and transfer options, mobile classroom units, transportation of students, assignment of faculty and staff, etc., considered together and premised on the Board's so-called 'neighborhood school' concept, either were not taken in effectuation of a policy to create or maintain segregation in the core city schools, or, if unsuccessful in that effort, were not factors in causing the existing condition of segregation in these schools. Considerations of 'fairness' and 'policy' demand no less in light of the Board's intentionally segregative actions. If respondent Board fails to rebut petitioners' prima facie case, the District Court must, as in the case of Park Hill, decree all-out desegregation of the core city schools.
28
The judgment of the Court of Appeals is modified to vacate instead of reverse the parts of the Final Decree that concern the core city schools, and the case is remanded to the District Court for further proceedings consistent with this opinion.18
29
Modified and remanded.
30
It is so ordered.
31
Mr. Chief Justice BURGER, concurs in the result.
32
Mr. Justice WHITE took no part in the decision of this case.
33
Mr. Justice DOUGLAS.
34
While I join the opinion of the Court, I agree with my Brother POWELL that there is, for the purposes of the Equal Protection Clause of the Fourteenth Amendment as applied to the school cases, no difference between de facto and de jure segregation. The school board is a state agency and the lines that it draws, the locations it selects for school sites, the allocation it makes of students, the budgets it prepares are state action for Fourteenth Amendment purposes.
35
As Judge Wisdom cogently stated in United States v. Texas Education Agency, 467 F.2d 848, segregated schools are often created, not by dual school systems decreed by the legislature, but by the administration of school districts by school boards. Each is state action within the meaning of the Fourteenth Amendment. 'Here school authorities assigned students, faculty, and professional staff; employed faculty and staff; chose sites for schools; constructed new schools and renovated old ones; and drew attendance zone lines. The natural and foreseeable consequence of these actions was segregation of Mexican-Americans. Affirmative action to the contrary would have resulted in desegregation. When school authorities, by their actions, contribute to segregation in education, whether by causing additional segregation or maintaining existing segregation, they deny to the students equal protection of the laws.
36
'We need not define the quantity of state participation which is a prerequisite to a finding of constitutional violation. Like the legal concepts of 'the reasonable man', 'due care', 'causation', 'preponderance of the evidence', and 'beyond a reasonable doubt', the necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis. Suffice it to say that school authorities here played a significant role in causing or perpetuating unequal educational opportunities for Mexican-Americans, and did so on a system-wide basis.' Id., at 863—864 These latter acts are often said to create de facto as contrasted with de jure segregation. But, as Judge Wisdom observes, each is but another form of de jure segregation.
37
I think it is time to state that there is no constitutional difference between de jure and de facto segregation, for each is the product of state actions or policies. If a 'neighborhood' or 'geographical' unit has been created along racial lines by reason of the play of restrictive covenants that restrict certain areas to 'the elite,' leaving the 'undesirables' to move elsewhere, there is state action in the constitutional sense because the force of law is placed behind those covenants.
38
There is state action in the constitutional sense when public funds are dispersed by urban development agencies to build racial ghettoes.
39
Where the school district is racially mixed and the races are segregated in separate schools, where black teachers are assigned almost exclusively to black schools where the school board closed existing schools located in fringe areas and built new schools in black areas and in distant white areas, where the school board continued the 'neighborhood' school policy at the elementary level, these actions constitute state action. They are of a kind quite distinct from the classical de jure type of school segregation. Yet calling them de facto is a misnomer, as they are only more subtle types of state action that create or maintain a wholly or partially segregated school system. See Kelly v. Guinn, 9 Cir., 456 F.2d 100.
40
When a State forces, aids, or abets, or helps create a racial 'neighborhood,' it is a travesty of justice to treat that neighborhood as sacrosanct in the sense that its creation is free from the taint of state action.
41
The Constitution and Bill of Rights have described the design of a pluralistic society. The individual has the right to seek such companions as he desires. But a State is barred from creating by one device or another ghettoes that determine the school one is compelled to attend.
42
Mr. Justice POWELL concurring in part and dissenting in part.
43
I concur in the remand of this case for further proceedings in the District Court, but on grounds that differ from those relied upon by the Court.
44
This is the first school desegregation case to reach this Court which involves a major city outside the South. It comes from Denver, Colorado, a city and a State which have not operated public schools under constitutional or statutory provisions which mandated or permitted racial segregation.1 Nor has it been argued that any other legislative actions (such as zoning and housing laws) contributed to the segregation which is at issue.2 The Court has inquired only to what extent the Denver public school authorities may have contributed to the school segregation which is acknowledged to exist in Denver.
45
The predominantly minority schools are located in two areas of the city referred to as Park Hill and the core city area. The District Court considered that a school with a concentration of 70% to 75% 'Nigro or Hispano students' was identifiable as a segregated school. 313 F.Supp. 61, 77. Wherever one may draw this line, it is undisputed that most of the schools in these two areas are in fact heavily segregated in the sense that their student bodies are overwhelmingly composed of non-Anglo children. The city-wide school mix in Denver is 66% Anglo, 14% Negro, and 20% Hispano. In areas of the city where the Anglo population largely resides, the schools are predominantly Anglo, if not entirely so.
46
The situation in Denver is generally comparable to that in other large cities across the country in which there is a substantial minority population and where desegregation has not been ordered by the federal courts. There is segregation in the schools of many of these cities fully as pervasive as that in southern cities prior to the desegregation decrees of the past decade and a half. The focus of the school desegregation problem has now shifted from the South to the country as a whole. Unwilling and footdragging as the process was in most places, substantial progress toward achieving integration has been made in Southern States.3 No comparable progress has been made in many nonsouthern cities with large minority populations4 primarily because of the de facto/de jure distinction nurtured by the courts and accepted complacently by many of the same voices which denounced the evils of segregated schools in the South.5 But if our national concern is for those who attend such schools, rather than for perpetuating a legalism rooted in history rather than present reality, we must recognize that the evil of operating separate schools is no less in Denver than in Atlanta.
47
* In my view we should abandon a distinction which long since has outlived its time, and formulate constitutional principles of national rather than merely regional application. When Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), was decided, the distinction between de jure and de facto segregation was consistent with the limited constitutional rationale of that case. The situation confronting the Court, largely confined to the Southern States, was officially imposed racial segregation in the schools extending back for many years and usually embodied in constitutional and statutory provisions.
48
The great contribution of Brown I was its holding in unmistakable terms that the Fourteenth Amendment forbids state-compelled or state-authorized segregation of public schools. 347 U.S., at 488, 493—495, 74 S.Ct. at 688, 691—692. Although some of the language was more expansive, the holding in Brown I was essentially negative: It was impermissible under the Constitution for the States, or their instrumentalities to force children to attend segregated schools. The forbidden action was de jure, and the opinion in Brown I was construed—for some years and by many courts—as requiring only state neutrality, allowing 'freedom of choice' as to schools to be attended so long as the State itself assured that the choice was genuinely free of official restraint.6
49
But the doctrine of Brown I, as amplified by Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), did not retain its original meaning. In a series of decisions extending from 1954 to 1971 the concept of state neutrality was transformed into the present constitutional doctrine requiring affirmative state action to desegregate school systems.7 The keystone case was Green v. County School Board, 391 U.S. 430, 437—438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968), where school boards were declared to have 'the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.' The school system before the Court in Green was operating in a rural and sparsely settled county where there were no concentrations of white and black populations, no neighborhood school system (there were only two schools in the county), and none of the problems of an urbanized school district.8 The Court properly identified the freedom-of-choice program there as a subterfuge, and the language in Green imposing an affirmative duty to convert to a unitary system was appropriate on the facts before the Court. There was however reason to question to what extent this duty would apply in the vastly different factual setting of a large city with extensive areas of residential segregation, presenting problems and calling for solutions quite different from those in the rural setting of New Kent County, Virginia.
50
But the doubt as to whether the affirmative-duty concept would flower into a new constitutional principle of general application was laid to rest by Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), in which the duty articulated in Green was applied to the urban school system of metropolitan Charlotte, North Carolina. In describing the residential patterns in Charlotte, the Court noted the 'familiar phenomenon' in the metropolitan areas of minority groups being 'concentrated in one part of the city,' 402 U.S., at 25, 91 S.Ct., at 1280, and acknowledged that:
51
'Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns.' 402 U.S., at 14, 91 S.Ct., at 1275.
52
Despite this recognition of a fundamentally different problem from that involved in Green, the Court nevertheless held that the affirmative-duty rule of Green was applicable, and prescribed for a metropolitan school system with 107 schools and some 84,000 pupils essentially the same remedy—elimination of segregation 'root and branch'—which had been formulated for the two schools and 1,300 pupils of New Kent County.
53
In Swann, the Court further noted it was concerned only with States having 'a long history of officially imposed segregation and the duty of school authorities in those States to implement Brown I. 402 U.S., at 5—6, 91 S.Ct., at 1271. In so doing, the Court refrained from even considering whether the evolution of constitutional doctrine from Brown I to Green/Swann undercut whatever logic once supported the de facto/de jure distinction. In imposing on metropolitan southern school districts an affirmative duty, entailing largescale transportation of pupils, to eliminate segregation in the schools, the Court required these districts to alleviate conditions which in large part did not result from historic, state-imposed de jure segregation. Rather, the familiar root cause of segregated schools in all the biracial metropolitan areas of our country is essentially the same: one of segregated residential and migratory patterns the impact of which on the racial composition of the schools was often perpetuated and rarely ameliorated by action of public school authorities. This is a national, not a southern, phenomenon. And it is largely unrelated to whether a particular State had or did not have segregative school laws.9
54
Whereas Brown I rightly decreed the elimination of state-imposed segregation in that particular section of the country where it did exist, Swann imposed obligations on southern school districts to eliminate conditions which are not regionally unique but are similar both in origin and effect to conditions in the rest of the country. As the remedial obligations of Swann extend far beyond the elimination of the outgrowths of the state-imposed segregation outlawed in Brown, the rationale of Swann points inevitably toward a uniform, constitutional approach to our national problem of school segregation.
II
55
The Court's decision today, while adhering to the de jure/de facto distinction, will require the application of the Green/Swann doctrine of 'affirmative duty' to the Denver School Board despite the absence of any history of state-mandated school segregation. The only evidence of a constitutional violation was found in various decisions of the School Board. I concur in the Court's position that the public school authorities are the responsible agency of the State, and that if the affirmative-duty doctrine is sound constitutional law for Charlotte, it is equally so for Denver. I would not, however, perpetuate the de jure/de facto distinction nor would I leave to petitioners the initial tortuous effort of identifying 'segregative acts' and deducing 'segregative intent.' I would hold, quite simply, that where segregated public schools exist within a school district to a substantial degree, there is a prima facie case that the duly constituted public authorities (I will usually refer to them collectively as the 'school board') are sufficiently responsible10 to warrant imposing upon them a nationally applicable burden to demonstrate they nevertheless are operating a gunuinely integregated school system.
56
The principal reason for abandonment of the de jure/de facto distinction is that, in view of the evolution of the holding in Brown I into the affirmative-duty doctrine, the distinction no longer can be justified on a principled basis. In decreeing remedial requirements for the Charlotte/Mecklenburg school district, Swann dealt with a metropolitan, urbanized area in which the basic causes of segregation were generally similar to those in all sections of the country, and also largely irrelevant to the existence of historic, state-imposed segregation at the time of the Brown decision. Further, the extension of the affirmative-duty concept to include compulsory student transportation went well beyond the mere remedying of that portion of school segregation for which former state segregation laws were ever responsible. Moreover, as the Court's opinion today abundantly demonstrates, the facts deemed necessary to establish de jure discrimination present problems of subjective intent which the courts cannot fairly resolve.
57
At the outset, one must try to identify the constitutional right which is being enforced. This is not easy, as the precedents have been far from explicit. In Brown I, after emphasizing the importance of education, the Court said that:
58
'Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.' 347 U.S., at 493, 74 S.Ct. at 691.
59
In Brown II, the Court identified the 'fundamental principle' enunciated in Brown I as being the unconstitutionality of 'racial discrimination in public education,' 349 U.S., at 298, 75 S.Ct., at 755, and spoke of 'the personal interest of the plaintiffs in admission to public schools as soon as practicable on a non-discriminatory basis.' 349 U.S., at 300, 75 S.Ct., at 756. Although this and similar language is ambiguous as to the specific constitutional right, it means—as a minimum—that one has the right not to be compelled by state action to attend a segregated school system. In the evolutionary process since 1954, decisions of this Court have added a significant gloss to this original right. Although nowhere expressly articulated in these terms, I would now define it as the right, derived from the Equal Protection Clause to expect that once the State has assumed responsibility for education, local school boards will operate integrated school systems within their respective districts.11 This means that school authorities, consistent with the generally accepted educational goal of attaining quality education for all pupils, must make and implement their customary decisions with a view toward enhancing integrated school opportunities.
60
The term 'integrated school system' presupposes, of course, a total absence of any laws, regulations, or policies supportive of the type of 'legalized' segregation condemned in Brown. A system would be integrated in accord with constitutional standards if the responsible authorities had taken appropriate steps to (i) integrate faculties and administration; (ii) scrupulously assure equality of facilities, instruction, and curriculum opportunities throughout the district; (iii) utilize their authority to draw attendance zones to promote integration; and (iv) locate new schools, close old ones, and determine the size and grade categories with this same objective in mind. Where school authorities decide to undertake the transportation of students, this also must be with integrative opportunities in mind.
61
The foregoing prescription is not intended to be either definitive or all-inclusive, but rather an indication of the contour characteristics of an integrated school system in which all citizens and pupils may justifiably be confident that racial discrimination is neither practiced nor tolerated. An integrated school system does not mean—and indeed could not mean in view of the residential patterns of most of our major metropolitan areas—that every school must in fact be an integrated unit. A school which happens to be all or predominantly white or all or predominantly black is not a 'segregated' school in an unconstitutional sense if the system itself is a genuinely integrated one.
62
Having school boards operate an integrated school system provides the best assurance of meeting the constitutional requirement that racial discrimination, subtle or otherwise, will find no place in the decisions of public school officials. Courts judging past school board actions with a view to their general integrative effect will be best able to assure an absence of such discrimination while avoiding the murky, subjective judgments inherent in the Court's search for 'segregative intent.' Any test resting on so nebulous and elusive an element as a school board's segregative 'intent' provides inadequate assurance that minority children will not be short-changed in the decisions of those entrusted with the nondiscriminatory operation of our public schools.
63
Public schools are creatures of the State, and whether the segregation is state-created or state-assisted or merely state-perpetuated should be irrelevant to constitutional principle. The school board exercises pervasive and continuing responsibility over the long-range planning as well as the daily operations of the public school system. It sets policies on attendance zones, faculty employment and assignments, school construction, closings and consolidations, and myriad other matters. School board decisions obviously are not the sole cause of segregated school conditions. But if, after such detailed and complete public supervision, substantial school segregation still persists, the presumption is strong that the school board, by its acts or omissions, is in some part responsible. Where state action and supervision are so pervasive and where, after years of such action, segregated schools continue to exist within the district to a substantial degree, this Court is justified in finding a prima facie case of a constitutional violation. The burden then must fall on the school board to demonstrate it is operating an 'integrated school system.'
64
It makes little sense to find prima facie violations and the consequent affirmative duty to desegregate solely in those States with state-imposed segregation at the time of the Brown decision. The history of state-imposed segregation is more widespread in our country than the de jure/de facto distinction has traditionally cared to recognize.12 As one commentator has noted:
65
'(T)he three court of appeals decisions denying a constitutional duty to abolish de facto segregation all arose in cities—Cincinnati, Gary, and Kansas City, Kansas—where racial segregation in schools was formerly mandated by state or local law. (Deal v. Cincinnati Board of Education, 369 F.2d 55 (CA6 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967); Downs v. Board of Education, 336 F.2d 988 (CA10 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965); Bell v. School City of Gary, Ind., 324 F.2d 209 (CA7 1963), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964).) Ohio discarded its statute in 1887, Indiana in 1949, and Kansas City not until the advent of Brown. If Negro and white parents in Mississippi are required to bus their children to distant schools on the theory that the consequences of past de jure segregation cannot otherwise be dissipated, should not the same reasoning apply in Gary, Indiana, where no more than five years before Brown the same practice existed with presumably the same effects?' Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif.L.Rev. 275, 297 (1972).13
66
Not only does the de jure/de facto distinction operate inequitably on communities in different sections of the country, more importantly, it disadvantages minority children as well. As the Fifth Circuit stated:
67
"The Negro children in Cleveland, Chicago, Los Angeles, Boston, New York, or any other area of the nation which the opinion classifies under de facto segregation, would receive little comfort from the assertion that the racial make-up of their school system does not violate their constitutional rights because they were born into a de facto society, while the exact same racial make-up of the school system in the 17 Southern and border states violates the constitutional rights of their counterparts, or even their blood brothers, because they were born into a de jure society. All children everywhere in the nation are protected by the Constitution, and treatment which violates their constitutional rights in one area of the country, also violates such constitutional rights in another area." Cisneros v. Corpus Christi Independent School District, 467 F.2d 142, 148 (CA5 1972) (en banc), quoting United States v. Jefferson County Board of Education, 380 F.2d 385, 397 (CA5 1967) (Gewin, J., dissenting).14
68
The Court today does move for the first time toward breaking down past sectional disparities, but it clings tenuously to its distinction. It searches for de jure action in what the Denver School Board has done or failed to do, and even here the Court does not rely upon the results or effects of the Board's conduct but feels compelled to find segregative intent:15
69
'We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann is purpose or intent to segregate.' Supra, at 208 (emphasis is the Court's).
70
The Court's insistence that the 'differentiating factor' between de jure and de facto segregation be 'purpose or intent' is difficult to reconcile with the language in so recent a case as Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). In holding there that 'motivation' is irrelevant, the Court said:
71
'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. . . .
72
'. . . 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.' 407 U.S., at 462, 92 S.Ct., at 2203.
73
I can discern no basis in law or logic for holding that the motivation of school board action is irrelevant in Virginia and controlling in Colorado. It may be argued, of course, that the Emporia a prior constitutional violation had already been proved and that this justifies the distinction. The net result of the Court's language, however, is the application of an effect test to the actions of southern school districts and an intent test to those in other sections, at least until an initial de jure finding for those districts can be made. Rather than straining to perpetuate any such dual standard, we should hold forthrightly that significant segregated school conditions in any section of the country are a prima facie violation of constitutional rights. As the Court has noted elsewhere:
74
'Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. 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. 475, 482, 74 S.Ct. 667, 672, 98 L.Ed. 866 (1954). (Emphasis added.)
B
75
There is thus no reason as a matter of constitutional principle to adhere to the de jure/de facto distinction in school desegregation cases. In addition, there are reasons of policy and prudent judicial administration which point strongly toward the adoption of a uniform national rule. The litigation heretofore centered in the South already is surfacing in other regions. The decision of the Court today, emphasizing as it does the elusive element of segregative intent, will invite numerous desegregation suits in which there can be little hope of uniformity of result.
76
The issue in these cases will not be whether regregated education exists. This will be conceded in most of them. The litigation will focus as a consequence of the Court's decision on whether segregation has resulted in any 'meaningful or significant' portion of a school system from a school board's 'segregative intent.' The intractable problems involved in litigating this issue are obvious to any lawyer. The results of litigation—often arrived at subjectively by a court endeavoring to ascertain the subjective intent of school authorities with respect to action taken or not taken over many years—will be fortuitous, unpredictable and even capricious.
77
The Denver situation is illustrative of the problem. The court below found evidence of de jure violations with respect to the Park Hill schools and an absence of such violations with respect to the core city schools, despite the fact that actions taken by the school board with regard to those two sections were not dissimilar. It is, for example, quite possible to contend that both the construction of Manual High School in the core city area and Barrett Elementary School in the Park Hill area operated to serve their surrounding Negro communities and, in effect, to merge school attendance zones with segregated residential patterns. See Brief for Petitioners 80—83. Yet findings even on such similar acts will, under the de jure/de facto distinction, continue to differ, especially since the Court has never made clear what suffices to establish the requisite 'segregative intent' for an initial constitutional violation. Even if it were possible to clarify this question, wide and unpredictable differences of opinion among judges would be inevitable when dealing with an issue as slippery as 'intent' or 'purpose,' especially when related to hundreds of decisions made by school authorities under varying conditions over many years.
78
This Court has recognized repeatedly that it is 'extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment,' Palmer v. Thompson, 403 U.S. 217, 224, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971); McGinnis v. Royster, 410 U.S. 263, 276—277, 93 S.Ct. 1055, 1063, 35 L.Ed.2d 282 (1973); United States v. O'Brien, 391 U.S. 367, 381, 88 S.Ct. 1673, 1681, 20 L.Ed.2d 672 (1968). Whatever difficulties exist with regard to a single statute will be compounded in a judicial review of years of administration of a large and complex school system.16 Every act of a school board and school administration, and indeed every failure to act where affirmative action is indicated, must now be subject to scrutiny. The most routine decisions with respect to the operation of schools, made almost daily, can affect in varying degrees the extent to which schools are initially segregated, remain in that condition, are desegregated, or—for the long term future—are likely to be one or the other. These decisions include action or nonaction with respect to school building construction and location; the timing of building new schools and their size; the closing and consolidation of schools; the drawing or gerrymandering of student attendance zones; the extent to which a neighborhood policy is enforced; the recruitment, promotion and assignment of faculty and supervisory personnel; policies with respect to transfers from one school to another; whether, and to what extent, special schools will be provided, where they will be located, and who will qualify to attend them; the determination of curriculum, including whether there will be 'tracks' that lead primarily to college or to vocational training, and the routing of students into these tracks; and even decisions as to social, recreational, and athletic policies.
79
In Swann the Court did not have to probe into segregative intent and proximate cause with respect to each of these 'endless' factors. The basis for its de jure finding there was rooted primarily in the prior history of the desegregation suit. 402 U.S., at 5—6, 91 S.Ct., at 1271. But in a case of the present type, where no such history exists, a judicial examination of these factors will be required under today's decision. This will lead inevitably to uneven and unpredictable results, to protracted and inconclusive litigation, to added burdens on the federal courts, and to serious disruption of individual school systems. In the absence of national and objective standards, school boards and administrators will remain in a state of uncertainty and disarray, speculating as to what is required and when litigation will strike.
C
80
Rather than continue to prop up a distinction no longer grounded in principle, and contributing to the consequences indicated above, we should acknowledge that whenever public school segregation exists to a substantial degree there is prima facie evidence of a constitutional violation by the responsible school board. It is true, of course, that segregated schools—wherever located—are not solely the product of the action or inaction of public school authorities. Indeed, as indicated earlier, there can be little doubt that principal causes of the pervasive school segregation found in the major urban areas of this country, whether in the North, West, or South, are the socio-economic influences which have concentrated our minority citizens in the inner cities while the more mobile white majority disperse to the suburbs. But it is also true that public school boards have continuing, detailed responsibility for the public school system within their district and, as Judge John Minor Wisdom has noted, '(w)hen the figures (showing segregation in the schools) speak so eloquently, a prima facie case of discrimination is established.' United States v. Texas Education Agency, 467 F.2d 848, 873 (CA5 1972) (en banc). Moreover, as foreshadowed in Swann and as implicitly held today, school boards have a duty to minimize and ameliorate segregated conditions by pursuing an affirmative policy of desegregation. It is this policy which must be applied consistently on a national basis without regard to a doctrinal distinction which has outlived its time.
III
81
The preceding section addresses the constitutional obligation of public authorities in the school districts throughout our country to operate integrated school systems. When the schools of a particular district are found to be substantially segregated, there is a prima facie case that this obligation has not been met. The burden then shifts to the school authorities to demonstrate that they have in fact operated an integrated system as this term is defined supra, at 227—228. If there is a failure successfully to rebut the prima facie case, the question then becomes what reasonable affirmative desegregative steps district courts may require to place the school system in compliance with the constitutional standard. In short, what specifically is the nature and scope of the remedy?
82
As the Court's opinion virtually compels the finding on remand that Denver has a 'dual school system,' that city will then be under an 'affirmative duty' to desegregate its entire system 'root and branch.' Green v. County School Board, 391 U.S., at 437 438, 88 S.Ct., at 1694. Again, the critical question is, what ought this constitutional duty to entail?
A.
83
The controlling case is Swann, supra, and the question which will confront and confound the District Court and Denver School Board is what, indeed, does Swann require? Swann purported to enunciate no new principles, relying heavily on Brown I and II and on Green. Yet it affirmed a district court order which had relied heavily on 'racial ratios' and sanctioned transportation of elementary as well as secondary pupils. Lower federal courts have often read Swann as requiring far-reaching transportation decrees17 'to achieve the greatest possible degree of actual desegregation.' 402 U.S., at 26, 91 S.Ct., at 1281. In the context of a large urban area, with heavy residential concentrations of white and black citizens in different—and widely separated sections of the school district, extensive dispersal and transportation of pupils is inevitable if Swann is read as expansively as many courts have been reading it to date.
84
To the extent that Swann may be thought to require large-scale or longdistance transportation of students in our metropolitan school districts, I record my profound misgivings. Nothing in our Constitution commands or encourages any such court-compelled disruption of public education. It may be more accurate to view Swann as having laid down a broad rule of reason under which desegregation remedies must remain flexible and other values and interests be considered. Thus the Court recognized that school authorities, not the federal judiciary, must be charged in the first instance with the task of desegregating local school systems. Id., at 16, 91 S.Ct., at 1276. It noted that school boards in rural areas can adjust more readily to this task than those in metropolitan districts 'with dense and shifting population, numerous schools, congested and complex traffic patterns.' Id., at 14, 91 S.Ct., at 1275. Although the use of pupil transportation was approved as a remedial device, transportation orders are suspect 'when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process.' Id., at 30—31, 91 S.Ct., at 1283. Finally, the age of the pupils to be transported was recognized by the Court in Swann as one important limitation on the time of student travel. Id., at 31, 91 S.Ct., at 1283.
85
These factors were supposed to help guide district courts in framing equitable remedies in school desegregation cases.18 And the Court further emphasized that equitable decrees are inherently sensitive, not solely to the degree of desegregation to be achieved, but to a variety of other public and private interests:
86
'(A) school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. Id., at 15—16, 91 S.Ct., at 1276.
87
Those words echoed a similar expression in Brown II, 349 U.S., at 300, 75 S.Ct., at 756:
88
'In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.'
89
Thus, in school desegration cases, as elsewhere, equity counsels reason, flexibility, and balance. See e.g. Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973). I am aware, of course, that reasonableness in any area is a relative and subjective concept. But with school desegregation, reasonableness would seem to embody a balanced evaluation of the obligation of public school boards to promote desegregation with other, equally important educational interests which a community may legitimately assert. Neglect of either the obligation or the interests destroys the even-handed spirit with which equitable remedies must be approached.19 Overzealousness in pursuit of any single goal is untrue to the tradition of equity and to the 'balance' and 'flexibility' which this Court has always respected.
B
90
Where school authorities have defaulted in their duty to operate an integrated school system, district courts must insure that affirmative desegregative steps ensue. Many of these can be taken effectively without damaging state and parental interests in having children attend schools within a resonable vicinity of home. Where desegregative steps are possible within the framework of a system of 'neighborhood education,' school authorities must pursue them. For example, boundaries of neighborhood attendance zones should be drawn to integrate to the extent practicable, the school's student body. Construction of new schools should be of such a size and at such a location as to encourage the likelihood of integration, Swann, supra, 402 U.S., at 21, 91 S.Ct., at 1278. Faculty integration should be attained throughout the school system, id., at 19, 91 S.Ct. at 1277; United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969). An optional majority-to-minority transfer program, with the State providing free transportation to desiring students, is also a helpful adjunct to a desegregated school system. Swann, supra, 402 U.S., at 26—27, 91 S.Ct., at 1281—1282. It hardly need be repeated that allocation of resources within the school district must be made with scrupulous fairness among all schools.
91
The above examples are meant to be illustrative, not exhaustive. The point is that the overall integrative impact of such school board decisions must be assessed by district courts in deciding whether the duty to desegregate has been met. For example, 'neighborhood school plans are constitutionally suspect when attendance zones are superficially imposed upon racially defined neighborhoods, and when school construction preserves rather than eliminates the racial homogeny (sic) of given schools.'20 Keyes v. School District No. 1, Denver Colorado, 445 F.2d 990, 1005 (CA10 1971). See United States v. Board of Education of Tulsa County, 429 F.2d 1253, 1258—1259 (CA10 1970). This does not imply that decisions on faculty assignment, attendance zones, school construction, closing and consolidation, must be made to the detriment of all neutral, nonracial considerations. But these considerations can, with proper school board initiative, generally be met in a manner that will enhance the degree of school desegregation.
C
92
Defaulting school authorities would have, at a minimum, the obligation to take affirmative steps of the sort outlined in the above section. School boards would, of course, be free to develop and initiate further plans to promote school desegregation. In a pluralistic society such as ours, it is essential that no racial minority feel demeaned or discriminated against and that students of all races learn to play, work, and cooperate with one another in their common pursuits and endeavors. Nothing in this opinion is meant to discourage school boards from exceeding minimal constitutional standards in promoting the values of an integrated school experience.
93
A constitutional requirement of extensive student transportation solely to achieve integration presents a vastly more complex problem. It promises, on the one hand, a greater degree of actual desegregation, while it infringes on what may fairly be regarded as other important community aspirations and personal rights. Such a requirement is also likely to divert attention and resources from the foremost goal of any school system: the best quality education for all pupils. The Equal Protection Clause does, indeed, command that racial discrimination not be tolerated in the decisions of public school authorities. But it does not require that school authorities undertake widespread student transportation solely for the sake of maximizing integration.21
94
This obviously does not mean that bus transportation has no place in public school systems or is not a permissible means in the desegregative process. The transporting of school children is as old as public education, and in rural and some suburban settings it is as indispensable as the providing of books. It is presently estimated that approximately half of all American children ride buses to school for reasons unrelated to integration.22 At the secondary level in particular, where the schools are larger and serve a wider, more dispersed constituency than elementary schools, some form of public or privately financed transportation is often necessary. There is a significant difference, however, in transportation plans voluntarily initiated by local school boards for educational purposes and those imposed by a federal court. The former usually represent a necessary or convenient means of access to the school nearest home; the latter often require lengthy trips for no purpose other than to further integration.23 Yet the Court in Swann was unquestionably right in describing bus transportation as 'one tool of school desegregation.' 402 U.S., at 30, 91 S.Ct., at 1283.24 The crucial issue is when, under what circumstances, and to what extent such transportation may appropriately be ordered. The answer to this turns—as it does so often in the law—upon a sound exercise of discretion under the circumstances.
95
Swann itself recognized limits to desegregative obligations. It noted that a constitutional requirement of 'any particular degree of racial balance or mixing . . . would be disapproved . . .,' and sanctioned district court use of mathematical ratios as 'no more than a starting point in the process of shaping a remedy . . ..' Id., at 24, 25, 91 S.Ct., at 1280, 1281. Thus, particular schools may be all white or all black and still not infringe constitutional rights if the system is genuinely integrated and school authorities are pursuing integrative steps short of extensive and disruptive transportation. The refusal of the Court in Swann to require racial balance in schools throughout the district or the arbitrary elimination of all 'one-race schools,' id., at 26, 91 S.Ct., at 1281, is grounded in a recognition that the State, parents, and children all have at stake in school desegregation decrees, legitimate and recognizable interests.
96
The personal interest might be characterized as the desire that children attend community schools near home. Dr. James Coleman testified for petitioners at trial that 'most school systems organize their schools in relation to the residents by having fixed school districts and some of these are very ethnically homogeneous.' App. 1549a. In Deal v. Cincinnati Board of Education, 369 F.2d, at 60, the Sixth Circuit summarized the advantages of such a neighborhood system of schools:25
97
'Appellants, however, pose the question of whether the neighborhood system of pupil placement, fairly administered without racial bias, comports with the requirements of equal opportunity if it nevertheless results in the creation of schools with predominantly or even exclusively Negro pupils. The neighborhood system is in wide use throughout the nation and has been for many years the basis of school administration. This is so because it is acknowledged to have several valuable aspects which are an aid to education, such as minimization of safety hazards to children in reaching school, economy of cost in reducing transportation needs, ease of pupil placement and administration through the use of neutral, easily determined standards, and better home-school communication.'
98
The neighborhood school does provide greater ease of parental and student access and convenience, as well as greater economy of public administration. These are obvious and distinct advantages, but the legitimacy of the neighborhood concept rests on more basic grounds.26
99
Neighborhood school systems, neutrally administered, reflect the deeply felt desire of citizens for a sense of community in their public education. Public schools have been a traditional source of strength to our Nation, and that strength may derive in part from the identification of many schools with the personal features of the surrounding neighborhood. Community support, interest, and dedication to public schools may well run higher with a neighborhood attendance pattern: distance may encourage disinterest. Many citizens sense today a decline in the intimacy of our institutions—home, church, and school—which has caused a concomitant decline in the unity and communal spirit of our people. I pass no judgment on this viewpoint, but I do believe that this Court should be wary of compelling in the name of constitutional law what may seem to many a dissolution in the traditional, more personal fabric of their public schools.
100
Closely related to the concept of a community and neighborhood education, are those rights and duties parents have with respect to the education of their children. The law has long recognized the parental duty to nurture, support, and provide for the welfare of children, including their education. In Pierce v. Society of Sisters, 268 U.S. 510, 534—535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 a unanimous Court held that:
101
'Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 (43 S.Ct. 625, 67 L.Ed. 1042), 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. . . . 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.'
102
And in Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965), the Court noted that in Pierce, 'the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments.' I do not believe recognition of this right can be confined solely to a parent's choice to send a child to public or private school. Most parents cannot afford the luxury of a private education for their children, and the dual obligation of private tuitions and public taxes. Those who may for numerous reasons seek public education for their children should not be forced to forfeit all interest or voice in the school their child attends. It would, of course, be impractical to allow the wishes of particular parents to be controlling. Yet the interest of the parent in the enhanced parentschool and parent-child communication allowed by the neighborhood unit ought not to be suppressed by force of law.
103
In the commendable national concern for alleviating public school segregation, courts may have overlooked the fact that the rights and interests of children affected by a desegregation program also are entitled to consideration. Any child, white or black, who is compelled to leave his neighborhood and spend significant time each day being transported to a distant school suffers an impairment of his liberty and his privacy. Not long ago, James B. Conant wrote that '(a)t the elementary school level the issue seems clear. To send young children day after day to distant schools by bus seems out of the question.'27 A community may well conclude that the portion of a child's day spent on a bus might be used more creatively in a classroom, playground, or in some other extracurricular school activity. Decisions such as these, affecting the quality of a child's daily life, should not lightly be held constitutionally errant.
104
Up to this point I have focused mainly on the personal interests of parents and children which a community may believe to be best protected by a neighborhood system of schools. But broader considerations lead me to question just as seriously any remedial requirement of extensive student transportation solely to further integration. Any such requirement is certain to fall disproportionately on the school districts of our country, depending on their degree of urbanization, financial resources, and their racial composition. Some districts with little or no biracial population will experience little or no educational disruption, while others, notably in large, biracial metropolitan areas, must at considerable expense undertake extensive transportation to achieve the type of integration frequently being ordered by district courts.28 At a time when public education generally is suffering serious financial malnutrition, the economic burdens of such transportation can be severe, requiring both initial capital outlays and annual operating costs in the millions of dollars.29 And while constitutional requirements have often occasioned uneven burdens, never have they touched so sensitive a matter as wide differences in the compulsory transportation requirements for literally hundreds of thousands of school children.
105
The argument for student transportation also overlooks the fact that the remedy exceeds that which may be necessary to redress the constitutional evil. Let us use Denver as an example. The Denver School Board, by its action and nonaction, may be legally responsible for some of the segregation that exists. But if one assumes a maximum discharge of constitutional duty by the Denver Board over the past decades, the fundamental problem of residential segregation would persist.30 It is, indeed, a novel application of equitable power—not to mention a dubious extension of constitutional doctrine—to require so much greater a degree of forced school integration than would have resulted from purely natural and neutral nonstate causes.
106
The compulsory transportation of students carries a further infirmity as a constitutional remedy. With most constitutional violations, the major burden of remedial action falls on offending state officials. Public officials who act to infringe personal rights of speech, voting, or religious exercise, for example, are obliged to cease the offending act or practice and, where necessary, institute corrective measures. It is they who bear the brunt of remedial action, though other citizens will to varying degrees feel its effects. School authorities responsible for segregation must, at the very minimum, discontinue segregative acts. But when the obligation further extends to the transportation of students, the full burden of the affirmative remedial action is borne by children and parents who did not participate in any constitutional violation.
107
Finally, courts in requiring so farreaching a remedy as student transportation solely to maximize integration, risk setting in motion unpredictable and unmanageable social consequences. No one can estimate the extent to which dismantling neighborhood education will hasten an exodus to private schools, leaving public school systems the preserve of the disadvantaged of both races. Or guess how much impetus such dismantlement gives the movement from inner city to suburb, and the further geographical separation of the races. Nor do we know to what degree this remedy may cause deterioration of community and parental support of public schools, or divert attention from the paramount goal of quality in education to a perennially divisive debate over who is to be transported where.
108
The problem addressed in this opinion has perplexed courts, school officials, other public authorities, and students of public education for nearly two decades. The problem, especially since it has focused on the 'busing issue,' has profoundly disquieted the public wherever extensive transportation has been ordered. I make no pretense of knowing the best answers. Yet, the issue in this and like cases comes to this Court as one of constitutional law. As to this issue, I have no doubt whatever. There is nothing in the Constitution, its history, or—until recently—in the jurisprudence of this Court that mandates the employment of forced transportation of young and teenage children to achieve a single interest, as important as that interest may be. We have strayed, quite far as I view it, from the rationale of Brown I and II, as reiterated in Swann, that courts in fashioning remedies must be 'guided by equitable principles' which include the 'adjusting and reconciling (of) public and private needs,' Brown II, 349 U.S., at 300, 75 S.Ct., at 756.
109
I urge a return to this rationale. This would result, as emphasized above, in no prohibition on court-ordered student transportation in furtherance of desegregation. But it would require that the legitimate community interests in neighborhood school systems be accorded far greater respect. In the balancing of interests so appropriate to a fair and just equitable decree, transportation orders should be applied with special caution to any proposal as disruptive of family life and interests—and ultimately of education itself—as extensive transportation of elementary-age children solely for desegregation purposes. As a minimum, this Court should not require school boards to engage in the unnecessary transportation away from their neighborhoods of elementary age children.31 It is at this age level that neighborhood education performs its most vital role. It is with respect to children of tender years that the greatest concern exists for their physical and psychological health. It is also here, at the elementary school, that the rights of parents and children are most sharply implicated.32
IV
110
The existing state of law has failed to shed light and provide guidance on the two issues addressed in this opinion: (i) whether a constitutional rule of uniform, national application should be adopted with respect to our national problem of school desegregation and (ii), if so, whether the ambiguities of Swann construed to date almost uniformly in favor of extensive transportation, should be redefined to restore a more viable balance among the various interests which are involved. With all deference, it seems to me that the Court today has addressed neither of these issues in a way that will afford adequate guidance to the courts below in this case or lead to a rational, coherent national policy.
111
The Court has chosen, rather, to adhere to the de facto/de jure distinction under circumstances, and upon a rationale, which can only lead to increased and inconclusive litigation, and especially regrettable—to deferment of a nationally consistent judicial position on this subject. There is, of course, state action in every school district in the land. The public schools always have been funded and operated by States and their local subdivisions. It is true that segregated schools, even in the cities of the South, are in large part the product of social and economic factors—and the resulting residential patterns. But there is also not a school district in the United States, with any significant minority school population, in which the school authorities—in one way or the other—have not contributed in some measure to the degree of segregation which still prevails. Instead of recognizing the reality of similar multiple segregative causes in school districts throughout the country, the Court persists in a distinction whose duality operates unfairly on local communities in one section of the country and on minority children in the others.
112
The second issue relates to the ambiguities of Swann and the judicial disregard of legitimate community and individual interests in framing equitable decrees. In the absence of a more flexible and reasonable standard than that imposed by district courts after Swann, the desegregation which will now be decreed in Denver and other major cities may well involve even more extensive transportation than has been witnessed up to this time.
113
It is well to remember that the course we are running is a long one and the goal sought in the end—so often overlooked—is the best possible educational opportunity for all children. Communities deserve the freedom and the incentive to turn their attention and energies to this goal of quality education, free from protracted and debilitating battles over court-ordered student transportation. The single most disruptive element in education today is the widespread use of compulsory transportation, especially at elementary grade levels. This has risked distracting and diverting attention from basic educational ends, dividing and embittering communities, and exacerbating, rather than ameliorating, interracial friction and misunderstanding. It is time to return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert. This will help assure that integrated school systems will be established and maintained by rational action, will be better understood and supported by parents and children of both races, and will promote the enduring qualities of an integrated society so essential to its genuine success.
114
Mr. Justice REHNQUIST, dissenting.
115
* The Court notes at the outset of its opinion the differences between the claims made by the plaintiffs in this case and the classical 'de jure' type of claims made by plaintiffs in cases such as Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and its progeny. I think the similarities and differences, not only in the claims, but in the nature of the constitutional violation, deserve somewhat more attention than the Court gives them.
116
In Brown, the Court held unconstitutional statutes then prevalent in Southern and border States mandating that Negro children and white children attend separate schools. Under such a statute, of course, every child in the school system is segregated by race, and there is no racial mixing whatever in the population of any particular school.
117
It is conceded that the State of Colorado and the city of Denver have never had a statute or ordinance of that description. The claim made by these plaintiffs, as described in the Court's opinion, is that the School Board by 'use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy' took race into account in making school assignments in such a way as to lessen that mixing of races which would have resulted from a racially neutral policy of school assignment. If such claims are proved, those minority students who as a result of such manipulative techniques are forced to attend schools other than those that they would have attended had attendance zones been neutrally drawn are undoubtedly deprived of their constitutional right to equal protection of the laws just as surely as were the plaintiffs in Brown v. Board of Education by the statutorily required segregation in that case. But the fact that invidious racial discrimination is prohibited by the Constitution in the North as well as the South must not be allowed to obscure the equally important fact that the consequences of manipulative drawing of attendance zones in a school district the size of Denver does not necessarily result in denial of equal protection to all minority students within that district. There are significant differences between the proof which would support a claim such as that alleged by plaintiffs in this case, and the total segregation required by statute which existed in Brown.
118
The Court's opinion obscures these factual differences between the situation shown by the record to have existed in Denver and the situations dealt with in earlier school desegregation opinions of the Court. The Court states, supra, at 200, that '(w)e have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), the State automatically assumes an affirmative duty 'to effectuate a transition to a racially nondiscriminatory school system,' Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II) . . ..'
119
That statement is, of course, correct in the Brown context, but in the Brown cases and later ones that have come before the Court the situation which had invariably obtained at one time was a 'dual' school system mandated by law, by a law which prohibited Negroes and whites from attending the same schools. Since under Brown such a law deprived each Negro child of the equal protection of the laws, there was no need to prove 'the elements of de jure segregation as to each and every school,' since the law itself had required just that sort of segregation.
120
But in a school district the size of Denver's, it is quite conceivable that the School Board might have engaged in the racial gerrymandering of the attendance boundary between two particular schools in order to keep one largely Negro and Hispano, and the other largely Anglo, as the District Court found to have been the fact in this case. Such action would have deprived affected minority students who were the victims of such gerrymandering of their constitutional right to equal protection of the laws. But if the school board had been evenhanded in its drawing of the attendance lines for other schools in the district, minority students required to attend other schools within the district would have suffered no such deprivation. It certainly would not reflect normal English usage to describe the entire district as 'segregated' on such a state of facts, and it would be a quite unprecedented application of principles of equitable relief to determine that if the gerrymandering of one attendance zone were proved, particular racial mixtures could be required by a federal district court for every school in the district.
121
It is quite possible, of course, that a school district purporting to adopt racially neutral boundary zones might, with respect to every such zone, invidiously discriminate against minorities, so as to produce substantially the same result as was produced by the statutorily decreed segregation involved in Brown. If that were the case, the consequences would necessarily have to be the same as were the consequences in Brown. But, in the absence of a statute requiring segregation, there must necessarily be the sort of factual inquiry which was unnecessary in those jurisdictions where racial mixing in the schools was forbidden by law.
122
Underlying the Court's entire opinion is its apparent thesis that a district judge is at least permitted to find that if a single attendance zone between two individual schools in the large metropolitan district is found by him to have been 'gerrymandered,' the school district is guilty of operating a 'dual' school system, and is apparently a candidate for what is in practice, a federal receivership. Not only the language of the Court in the opinion, but its reliance on the case of Green v. County School Board, 391 U.S. 430, 437—438, 88 S.Ct. 1689, 1693 1694, 20 L.Ed.2d 716 (1968), indicates that such would be the case. It would therefore presumably be open to the District Court to require, inter alia, that pupils be transported great distances throughout the district to and from schools whose attendance zones have not been gerrymandered. Yet, unless the Equal Protection Clause of the Fourteenth Amendment now be held to embody a principle of 'taint,' found in some primitive legal systems but discarded centuries ago in ours, such a result can only be described as the product of judicial fiat.
123
Green, supra, represented a marked extension of the principles of Brown v. Board of Education, supra. The Court in Green said:
124
'It is of course true that for the time immediately after Brown II (349 U.S. 294 (75 S.Ct. 753, 99 L.Ed. 1083)) the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. . . . Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about . . ..' 391 U.S., at 435—436, 88 S.Ct., at 1693.
125
'Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.' Id., at 437—438, 88 S.Ct., at 1694.
126
The drastic extension of Brown which Green represented was barely, if at all, explicated in the latter opinion. To require that a genuinely 'dual' system be disestablished, in the sense that the assignment of a child to a particular school is not made to depend on his race is one thing. To require that school boards affirmatively undertake to achieve racial mixing in schools where such mixing is not achieved in sufficient degree by neutrally drawn boundary lines is quite obviously something else.
127
The Court's own language in Green makes it unmistakably clear that this significant extension of Brown's prohibition against discrimination, and the conversion of that prohibition into an affirmative duty to integrate, was made in the context of a school system which had for a number of years rigidly excluded Negroes from attending the same schools as were attended by whites. Whatever may be the soundness of that decision in the context of a genuinely 'dual' school system, where segregation of the races had once been mandated by law, I can see no constitutional justification for it in a situation such as that which the record shows to have obtained in Denver.
II
128
The Court's opinion gives lip service to the notion that the inquiry as to whether or not the Denver school district was 'segregated' is a factual one, though it refers in various critical language to the District Court's refusal to find that minority concentrations in the core area schools was the result of discriminatory action on the part of the school board. The District Court is said to have 'fractionated' the district, supra, at 193, and to have 'held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city,' ibid. It is difficult to know what the Court means by the first of these references, and even more difficult to justify the second in the light of the District Court's opinion.
129
If by 'fractionating' the district, the Court means that the District Court treated together events that occurred during the same time period, and that it treated those events separately from events that occurred during another time span this is undoubtedly correct. This is the approach followed by most experienced and careful finders of fact.
130
In commencing that part of its comprehensive opinion which dealt with the 'core area' schools, the District Court observed:
131
'The evidentiary as well as the legal approach to the remaining schools is quite different from that which has been outlined above. For one thing, the concentrations of minorities occurred at an earlier date and, in some instances, prior to the Brown decision by the Supreme Court. Community attitudes were different, including the attitudes of the School Board members. Furthermore, the transitions were much more gradual and less perceptible than they were in the Park Hill schools. 313 F.Supp. 61, 69. (Emphasis supplied.)
132
The District Court noted, in its opinion of July 31, 1969, 303 F.Supp. 279, the differentiation that the plaintiffs themselves had made between the so- called 'Park Hill' schools and the 'core area' schools. The plaintiffs had sought a preliminary injunction prohibiting the school board from rescinding three resolutions which had been adopted by a differently composed school board earlier in 1969 and which would have redrawn school boundary lines in the Park Hill area to achieve greater integration. In its opinion granting that injunction, the District Court said:
133
'Attention at this hearing has focused primarily on the schools in northeast Denver, and particularly on the area which is commonly called Park Hill. The alleged segregated schools, elementary and junior high schools in this area, have acquired their character as such during the past ten years. The primary reason for this has been the migration of the Negro community eastward from a confined community surrounding what is commonly called 'Five Points.' Before 1950 the Negroes all lived in a community bounded roughly by 20th Avenue on the south, 20th Street on the west, York Street on the east, and 38th Avenue on the north. The schools in this area were, and are now, largely Negro schools. However, we are not presently concerned with the validity of this condition. During this period the Negro population was relatively small, and this condition had developed over a long period of time. However, by 1960 and, indeed, at the present time this population is sizeable. As the population has expanded the move has been to the east, first to Colorado Boulevard, a natural dividing line, and later beyond Colorado Boulevard, but within a narrow corridor—more or less fixed north-south boundaries. The migration caused these areas to become substantially Negro and segregated.' 303 F.Supp. 279, 282.
134
Further reference to the District Court's several opinions shows that the allegedly discriminatory acts of the School Board in the Park Hill area occurred between 1960 and 1969, in the context of a steadily expanding Negro school population in the Park Hill area and heightened sensitivity on the part of the community to the problems raised by integration and segregation.
135
The allegedly discriminatory acts with respect to the 'core area' schools—New Manual High School, Cole Junior High School, Morey Junior High School, and Boulevard and Columbine Elementary Schools—took place between the years 1952 and 1961. They took place, as indicated by the references to the District Court's opinion noted above, not in a context of a rapidly expanding Negro population, but in a context of a relatively fixed area of the city that had for an indefinite period of time been predominantly Negro.
136
Thus, quite contrary to the intimation of virtual arbitrariness contained in the Court's opinion, the District Court's separate treatment of the claims respecting these two separate areas was absolutely necessary if a careful factual determination, rather than a jumbled hash of unrelated events, was to emerge from the fact-finding process. The 'intent' with which a public body performs an official act is difficult enough to ascertain under the most favorable circumstances. See Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). Far greater difficulty is encountered if we are to assess the intentions with which official acts of a school board are performed over a period of years. Not only does the board consist of a number of members, but the membership customarily turns over as a result of frequent periodic elections. Indeed, it was as a result of the 1969 election for membership on the Denver School Board that the Board's policy which had previously favored the correction of racial imbalance by implementation of resolutions was reversed by the election of new members to the Board.
137
These difficulties obviously do not mean that the inquiry must be abandoned, but they do suggest that the care with which the District Court conducted it in this case is an absolutely essential ingredient to its successful conclusion.
138
The Court's bald statement that the District Court 'held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city' is flatly belied by the following statement in the District Court's opinion:
139
'Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation.' 313 F.Supp., at 74—75, n. 18.
140
Thus, it is apparent that the District Court was fully aware that it might take into consideration the intention with which it found the School Board to have performed one act in assessing its intention in performing another act. This is the most that the references in the Court's opinion to evidentiary treatises such as Wigmore and McCormick support. And it should be noted that the cases cited by the Court, and by the authors of the treatises, almost invariably deal with the intention of a particular individual or individuals, and not with the 'intention' of a public body whose membership is constantly changing.
141
The Court's opinion totally confuses the concept of a permissible inference in such a situation, of which the District Court indicated it was well aware, with what the Court calls a 'presumption,' which apparently 'shifts . . . the burden of proving' to the defendant school authority. No case from this Court has ever gone further in this area than to suggest that a finding of intent in one factual situation may support a finding of fact in another related factual situation involving the same factor, a principle with which, as indicated above, the District Court was thoroughly familiar.
142
The District Court cases cited by the Court represent almost entirely the opinions of judges who were themselves finders of fact, concluding as a part of the fact-finding process that intent with respect to one act may support a conclusion of a like intent with respect to another. This is but a restatement of the principle of which the District Court showed it was aware. And, obviously, opinions of courts of appeals upholding such findings of the District Court do not themselves support any broader proposition than do the opinions of the District Court in question.
143
Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (CA4 1966), and North Carolina Teachers Assn. v. Asheboro City Board of Education, 393 F.2d 736 (CA4 1968), involved a background of segregation by a law in the State of North Carolina and 'the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation.' 364 F.2d, at 192. The courts held that the decimation in the ranks of the Negro teachers while white teachers were unaffected, raised an inference of discrimination which cast upon the school board the burden of justifying such decimation. In each case, the school board had offered virtually no evidence supporting any nondiscriminatory basis for the result reached. The cases are thus wholly different in their factual background from the case now before the Court.
144
Also worthy of note is the fact that neither in Chambers nor in Asheboro did the Court of Appeals remand for a further hearing, but in effect ordered judgments for the appellants on the issues considered. This amounted to a determination that the factual finding of the District Court on that issue was 'clearly erroneous,' and the statement as to presumption was a statement as to the appellate court's method of evaluating the factual finding. This Court is in quite a different position in reviewing this case, with the factual finding of the District Court having been affirmed by the Court of Appeals for the Tenth Circuit than was the Court of Appeals for the Fourth Circuit in reviewing the factual findings of the District Courts that were before it in Chambers and in Asheboro. Indeed, it would be contrary to settled principles for this Court to upset a factual finding sustained by the Court of Appeals. 'A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error.' Comstock v. Group of Institutional Investors, 335 U.S. 211, 214, 68 S.Ct. 1454, 1456, 92 L.Ed. 1911 (1948).
145
The Court, doubtless realizing the difficulty of justifying an outright reversal, instead remands for further factual determination under newly enunciated standards governing the evidentiary treatment of the finding as to Park Hill by the District Court. These standards call in some parts of the opinion for establishing a presumption, in other parts for shifting the burden of proof, and in other parts for recognizing a prima facie case. Quite apart from my disagreement with the majority on its constitutional law, I cannot believe it is a service to any of the parties to this litigation to require further factual determination under such a vague and imprecise mandate. But, more fundamentally, I believe that a District Judge thoroughly sympathetic to the plaintiffs' claims gave them the full evidentiary hearing to which they were entitled and carefully considered all of the evidence before him. He showed full awareness of the evidentiary principle that he might infer from the 'segregative intent' with which he found the Board to have acted in the Park Hill area a like intent with respect to the core area, but he deliberately declined to do so. This was his prerogative as the finder of fact, and his conclusion upon its affirmance by the Court of Appeals is binding upon us.
III
146
The Court has taken a long leap in this area of constitutional law in equating the district-wide consequences of gerrymandering individual attendance zones in a district where separation of the races was never required by law with statutes or ordinances in other jurisdictions which did so require. It then adds to this potpourri a confusing enunciation of evidentiary rules in order to make it more likely that the trial court will on remand reach the result which the Court apparently wants it to reach. Since I believe neither of these steps is justified by prior decisions of this Court, I dissent.
1
To the contrary, Art. IX, § 8, of the Colorado Constitution expressly prohibits any 'classification of pupils . . . on account of race or color.' As early as 1927, the Colorado Supreme Court held that a Denver practice of excluding black students from school programs at Manual High School and Morey Junior High School violated state law. Jones v. Newlon, 81 Colo. 25, 253 P. 386.
2
There were 92 elementary schools, 15 junior high schools, 2 junior-senior high schools, and 7 senior high schools. In addition, the Board operates an Opportunity School, a Metropolitan Youth Education Center, and an Aircraft Training Facility.
3
The so-called 'Park Hill schools' are Barrett, Stedman, Hallett, Smith, Philips, and Park Hill Elementary Schools; and Smiley Junior High School. East High School serves the area but is located outside of it. (See Appendix.)
4
The so-called 'core city schools' which are said to be segregated are Boulevard, Bryant-Webster, Columbine, Crofton, Ebert, Elmwood, Elyria, Fairmont, Fairview, Garden Place, Gilpin, Greenlee, Harrington, Mitchell, Smedley, Swansea, Whittier, Wyatt, and Wyman Elementary Schools; Baker, Cole, and Morey Junior High Schools; and East, West, and Manual High Schools. (See Appendix.)
5
The first of the District Court's four opinions, 303 F.Supp. 279, was filed July 31, 1969, and granted petitioners' application for a preliminary injunction. The second opinion, 303 F.Supp. 289, was filed August 14, 1969, and made supplemental findings and conclusions. The third opinion, 313 F.Supp. 61, filed March 21, 1970, was the opinion on the merits. The fourth opinion, 313 F.Supp. 90, was on remedy and was filed May 21, 1970. The District Court filed an unreported opinion on October 19, 1971, in which relief was extended to Hallett and Stedman Elementary Schools which were found by the court in its July 31, 1969, opinion to be purposefully segregated but were not included within the scope of the three 1969 Board resolutions. The Court on Appeals filed five unreported opinions: on August 5, 1969, vacating preliminary injunctions; on August 27, 1969, staying preliminary injunction; on September 15, 1969, on motion to amend stay; on October 17, 1969, denying motions to dismiss; and on March 26, 1971, granting stay. Mr. Justice Brennan, on August 29, 1969, filed an opinion reinstating the preliminary injunction, 396 U.S. 1215, 90 S.Ct. 12, 24 L.Ed.2d 37, and on April 26, 1971, this Court entered a per curiam order vacating the Court of Appeals' stay, 402 U.S. 182, 91 S.Ct. 1399, 28 L.Ed.2d 710.
6
The parties have used the terms 'Anglo,' 'Negro,' and 'Hispano' throughout the record. We shall therefore use those terms.
'Hispano' is the term used by the Colorado Department of Education to refer to a person of Spanish, Mexican, or Cuban heritage. Colorado Department of Education, Human Relations in Colorado, A Historical Record 203 (1968). In the Southwest, the 'Hispanos' are more commonly referred to as 'Chicanos' or
'Mexican-Americans.'
The more specific racial and ethnic composition of the Denver public schools is as follows:
Anglo Negro Hispano
Pupils No. % No. % No. %
Elementary 33,719 61.8 8,297 15.2 12,570 23.0
Junior High 14,848 68.7 2,893 13.4 3,858 17.9
Senior High 14,852 72.8 2,442 12.0 3,101 15.2
Total 63,419 65.7 13,632 14.1 19,529 20.2
7
United States Commission on Civil Rights, Mexican American Education Study, Report 1, Ethnic Isolation of Mexican Americans in the Public Schools of the Southwest (Apr. 1971); United States Commission on Civil Rights, Mexican American Educational Series, Report 2, The Unfinished Education (October 1971).
8
The Commission's second Report, on p. 41, summarizes its findings:
'The basic finding of this report is that minority students in the Southwest—Mexican Americans, blacks, American Indians—do not obtain the benefits of public education at a rate equal to that of their Anglo classmates.'
9
Our Brother REHNQUIST argues in dissent that the Court somehow transgresses the 'two-court' rule. Infra, at 264. But at this stage, we have no occasion to review the factual findings concurred in by the two courts below. Cf. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We address only the question whether those courts applied the correct legal standard in deciding the case as it affects the core city schools.
10
The Board was found guilty of intentionally segregative acts of one kind or another with respect to the schools listed below. (As to Cole and East, the conclusion rests on the rescission of the resolutions.)
PUPILS 1968-1969
Anglo Negro Hispano Total
Barrett 1 410 1 4232
Stedman 27 634 25 686
Hallett 76 634 41 751
Park Hill 684 223 56 963
Philips 307 203 45 555
Smiley Jr. High 360 1.112 74 1,546
Cole Jr. High 46 884 289 1,219
East High 1,409 1,039 175 2,623
Subtotal Elementary 1,095 2,104 179 3,378
Subtotal Jr. High 406 1,996 363 2,765
Subtotal Sr. High 1,409 1,039 175 2,623
Total 2,910 5,139 717 8,766
The total Negro school enrollment in 1968 was:
Elementary 8,297
Junior High 2,893
Senior High 2,442
Thus, the above-mentioned schools included:
Elementary 25.36% of all Negro elementary pupils
Junior High 68.99% of all Negro junior high pupils
Senior High 42.55% of all Negro senior high pupils
Total 37.69% of all Negro pupils
11
Our Brother REHNQUIST argues in dissent that Brown v. Board of Education did not impose an 'affirmative duty to integrate' the schools of a dual school system but was only a 'prohibition against discrimination' 'in the sense that the assignment of a child to a particular school is not made to depend on his race . . ..' Infra, at 258. That is the interpretation of Brown expressed 18 years ago by a three-judge court in Briggs v. Elliott, 132 F.Supp. 776, 777 (D.C.1955): 'The Constitution, in other words, does not require integration. It merely forbids discrimination.' But Green v. County School Board, 391 U.S. 430, 437—438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968), rejected that interpretation insofar as Green expressly held that 'School boards . . . operating state-compelled dual systems were nevertheless clearly charged (by Brown II) with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.' Green remains the governing principle. Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). See also Kelley v. Metropolitan County Board of Education, 317 F.Supp. 980, 984 (D.C.1970).
12
As a former School Board President who testified for the respondents put it: 'Once you change the boundary of any one school, it is affecting all the schools . . ..' Testimony of Mrs. Lois Heath Johnson on cross-examination. App. 951a—952a.
Similarly, Judge Wisdom has recently stated:
'Infection at one school infects all schools. To take the most simple example, in a two school system, all blacks at one school means all or almost all whites at the other.' United States v. Texas Education Agency, 467 F.2d 848, 888 (CA5 1972).
13
See the chart in 445 F.2d, at 1008—1009, which indicates that 31,767 pupils attended the schools affected by the resolutions.
14
Our Brother REHNQUIST argues in dissent that the District Court did take the Park Hill finding into account in addressing the question of alleged de jure segregation of the core city schools. Infra, at 262. He cites the following excerpt from a footnote to the District Court's opinion of March 21, 1970, 313 F.Supp., at 74—75, n. 18: 'Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation.' But our Brother REHNQUIST omits the rest of the footnote: 'Thus, in part I of this opinion, we discussed the building of Barrett, boundary changes and the use of mobile units as they relate to the purpose for the rescission of Resolutions 1520, 1524 and 1531.' Obviously, the District Court was carefully limiting the comment to the consideration being given past discriminatory acts affecting the Park Hill schools in assessing the causes of current segregation of those schools.
15
In addition to these 22 schools, see 313 F.Supp., at 78, two more schools, Elyria and Smedley Elementary Schools, became less than 30% Anglo after the District Court's decision on the merits. These two schools were thus included in the list of segregated schools. 313 F.Supp., at 92.
16
402 U.S. 1, 17—18, 91 S.Ct. 1267, 1276—1277, 28 L.Ed.2d 554 (1971).
17
It may be that the District Court and Court of Appeals were applying this test in holding that petitioners had failed to prove that the Board's actions 'caused' the current condition of segregation in the core city schools. But, if so, certainly plaintiffs in a school desegregation case are not required to prove 'cause' in the sense of 'non-attenuation.' That is a factor which becomes relevant only after past intentional actions resulting in segregation have been established. At that stage, the burden becomes the school authorities' to show that the current segregation is in no way the result of those past segregative actions.
18
We therefore do not reach, and intimate no view upon, the merits of the holding of the District Court, premised upon its erroneous finding that the situation 'is more like de facto segregation,' 313 F.Supp., at 73, that nevertheless, although all-out desegregation 'could not be decreed . . . the only feasible and constitutionally acceptable program . . . is a system of desegregation and integration which provides compensatory education in an integrated environment.' Id., at 96.
1
Article IX, § 8, of the Colorado Constitution has expressly prohibited any 'classification of pupils . . . on account of race or color.'
2
See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 23, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554 (1971):
'We do not reach . . . the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree.' The term 'state action,' as used herein, thus refers to actions of the appropriate public school authorities.
3
According to the 1971 Department of Health, Education, and Welfare (HEW) estimate, 43.9% of Negro pupils attended majority white schools in the South as opposed to only 27.8% who attended such schools in the North and West. Fifty-seven percent of all Negro pupils in the North and West attend schools with over 80% minority population as opposed to 32.2% who do so in the South. 118 Cong.Rec. 564 (1972).
4
The 1971 HEW Enrollment Survey dramatized the segregated character of public school systems in many non-southern cities. The percentage of Negro pupils which attended schools more than 80% black was 91.3 in Cleveland, Ohio; 97.8 in Compton, California; 78.1 in Dayton, Ohio; 78.6 in Detroit, Michigan; 95.7 in Gary, Indiana; 86.4 in Kansas City, Missouri; 86.6 in Los Angeles, California; 78.8 in Milwaukee, Wisconsin; 91.3 in Newark, New Jersey; 89.8 in St. Louis, Missouri. The full data from the Enrollment Survey may be found in 118 Cong.Rec. 563—566 (1972).
5
As Senator Ribicoff recognized:
'For years we have fought the battle of integration primarily in the South where the problem was severe. It was a long, arduous fight that deserved to be fought and needed to be won.
'Unfortunately, as the problem of racial isolation has moved north of the Mason-Dixon line, many northerners have bid an evasive farewell to the 100-year struggle for racial equality. Our motto seems to have been 'Do to southerners what you do not want to do to yourself.'
'Good reasons have always been offered, of course, for not moving vigorously ahead in the North as well as the South.
'First, it was that the problem was worse in the South. Then the facts began to show that that was no longer true.
'We then began to hear the de facto-de jure refrain.
'Somehow residential segregation in the North was accidental or de facto and that made it better than the legally supported de jure segregation of the South. It was a hard distinction for black children in totally segregated schools in the North to understand, but it allowed us to avoid the problem.' 118 Cong.Rec. 5455 (1972).
6
See, e.g., Bradley v. School Board, 345 F.2d 310, 316 (CA4, 1965) (en banc):
'It has been held again and again . . . that the Fourteenth Amendment prohibition is not against segregation as such. . . . A state or a school district offends no constitutional requirement when it grants to all students uniformly an unrestricted freedom of choice as to schools attended, so that each pupil, in effect, assigns himself to the school he wishes to attend.' The case was later vacated and remanded by this Court, which expressed no view on the merits of the desegregation plans submitted. 382 U.S. 103, 105, 86 S.Ct. 224, 225, 15 L.Ed.2d 187 (1965). See also Bell v. School City of Gary, Ind., 324 F.2d 209 (CA7 1963); Downs v. Board of Education, 336 F.2d 988 (CA10 1964); Deal v. Cincinnati Board of Education, 369 F.2d 55 (CA6 1966).
7
For a concise history and commentary on the evolution, see generally A. Bickel, The Supreme Court and the Idea of Progress 126—130 (1970).
8
See also the companion cases in Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968), and Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), neither of which involved large urban or metropolitan areas.
9
As Dr. Karl Taeuber states in his article, Residential Segregation, 213 Scientific American 12, 14 (Aug. 1965):
'No elaborate analysis is necessary to conclude from these figures that a high degree of residential segregation based on race is a universal characteristic of American cities. This segregation is found in the cities of the North and West as well as of the South; in large cities as well as small; in nonindustrial cities as well as industrial; in cities with hundreds of thousands of Negro residents as well as those with only a few thousand, and in cities that are progressive in their employment practices and civil rights policies as well as those that are not.'
In his book, Negroes in Cities (1965), Dr. Taeuber stated that residential segregation exists 'regardless of the character of local laws and policies, and regardless of the extent of other forms of segregation or discrimination.' Id., at 36.
10
A prima facie case of constitutional violation exists when segregation is found to a substantial degree in the schools of a particular district. It is recognized, of course, that this term is relative and provides no precise standards. But circumstances, demographic and otherwise, vary from district to district and hard-and-fast rules should not be formulated. The existence of a substantial percentage of schools populated by students from one race only or predominantly so populated, should trigger the inquiry.
11
See discussion in Part III, infra, of the remedial action which is appropriate to accomplish desegregation where a court finds that a school board has failed to operate an integrated school system within its district. Plaintiffs must, however, establish the failure of a school board to operate an integrated school system before a court may order desegregative steps by way of remedy. These are two distinct steps which recognize the necessity of proving the constitutional violation before desegregative remedial action can be ordered.
12
Indeed, if one goes back far enough, it is probable that all racial segregation, wherever occurring and whether or not confined to the schools, has at some time been supported or maintained by government action. In Beckett v. School Board, 308 F.Supp. 1274, 1311—1315 (ED Va. 1969), Judge Hoffman compiled a summary of past public segregative action which included examples from a great majority of States. He concluded that '(o)nly as to the states of Maine, New Hampshire, Vermont, Washington, Nevada, and Hawaii does it appear from this nonexhaustive research that no discriminatory laws appeared on the books at one time or another.' Id. at 1315.
13
The author continues:
'True, the earlier the policy of segregation was abandoned the less danger there is that it continues to operate covertly, is significantly responsible for present day patterns of residential segregation, or has contributed materially to present community attitudes toward Negro schools. But there is no reason to suppose that 1954 is a universally appropriate dividing line between de jure segregation that may safely be assumed to have spent itself and that which may not. For many remedial purposes, adoption of an arbitrary but easily administrable cutoff point might not be objectionable. But in a situation such as school desegregation, where both the rights asserted and the remedial burdens imposed are of such magnitude, and where the resulting sectional discrimination is passionately resented, it is surely questionable whether such arbitrariness is either politically or morally acceptable.'
14
See Bickel, supra, n. 7, at 119:
'If a Negro child perceives his separation as discriminatory and invidious, he is not, in a society a hundred years removed from slavery, going to make fine distinctions about the source of a particular separation.'
15
The Court today does not require, however, a segregative intent with respect to the entire school system, and indeed holds that if such an intent is found with respect to some schools in a system, the burden—normally on the plaintiffs—shifts to the defendant school authorities to prove a negative: namely, that their purposes were benign, supra, at 207—209.
The Court has come a long way since Brown I. Starting from the unassailable de jure ground of the discriminatory constitutional and statutory provisions of some States, the new formulation—still professing fidelity to the de jure doctrine—is that desegregation will be ordered despite the absence of any segregative laws if: (i) segregated schools in fact exist; (ii) a court finds that they result from some action taken with segregative intent by the school board; (iii) such action relates to any 'meaningful segment' of the school system; and (iv) the school board cannot prove that its intentions with respect to the remainder of the system were nonsegregative.
16
As one commentator has expressed it:
'If the courts are indeed prepared to inquire into motive, thorny questions will arise even if one assumes that racial motivation is capable of being proven at trial. What of the case in which one or more members of a school board, but less than a majority, are found to have acted on racial grounds? What if it appears that the school board's action was prompted by a mixture of motives, including constitutionally innocent ones that alone would have prompted the board to act? What if the members of the school board were not themselves racially inspired but wished to please their constituents, many of whom they knew to be so? If such cases are classified as unconstitutional de jure segregation, there is little point in preserving the de jure-de facto distinction at all. And it may well be that the difference between any of these situations and one in which racial motivation is altogether lacking is too insignificant, from the standpoint of both the moral culpability of the state officials and the impact upon the children involved, to support a difference in constitutional treatment.' Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif.L.Rev. 275, 284 285 (1972).
17
See, e.g., Thompson v. School Board of Newport News, 465 F.2d 83, 87 (1972), where the Fourth Circuit en banc upheld a district court assignment plan where 'travel time, varying from a minimum of forty minutes and a maximum of one hour, each way, would be required for busing black students out of the old City and white students into the old City in order to achieve a racial balancing of the district.' This transportation was decreed for children from the third grade up, involving children as young as eight years of age.
In Northcross v. Board of Education of Memphis City Schools, 466 F.2d 890, 895 (1972), the Sixth Circuit affirmed a district court assignment plan which daily transported 14,000 children with 'the maximum time to be spent on the buses by any child (being) 34 minutes . . .,' presumably each way. But as Judge Weick noted in dissent the Sixth Circuit instructed the district judge to implement yet further desegregation orders. Plans presently under consideration by that court call for the busing of 39,085 and 61,530 children respectively, for undetermined lengths of time. Id., at 895—986.
Petitioners before this Court in Potts v. Flax, cert. denied, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299 (1972), contended that the implementation of the Fifth Circuit's directive in Flax v. Potts, 464 F.2d 865 (1972), would require bus rides of up to two hours and 20 minutes each day and a round trip of up to 70 miles. Pet. for Cert. 14. While respondents contended these figures represent an 'astounding inflation,' Brief in Opposition 7, transportation of a significant magnitude seems inevitable.
18
See United States v. Texas Education Agency, 467 F.2d 848, 883 (CA5 1972) (Bell, J., concurring in an opinion in which seven other judges joined):
'In our view the remedy which the district court is required to formulate should be formulated within the entire context of the opinion in Swann v. Charlotte-Mecklenburg Board of Education . . ..' (Emphasis added.)
19
The relevant inquiry is 'whether the costs of achieving desegregation in any given situation outweigh the legal, moral, and educational considerations favoring it. . . . It is clear . . . that the Constitution should not be held to require any transportation plan that keeps children on a bus for a substantial part of the day, consumes significant portions of funds otherwise spendable directly on education, or involves a genuine element of danger to the safety of the child.' Comment, School Desegregation After Swann: A Theory of Government Responsibility, 39 U.Chi.L.Rec. 421, 422, 443 (1972).
20
A useful study of the historical uses and abuses of the neighborhood school concept is M. Weinberg, Race & Place (1967).
21
In fact, due to racially separate residential patterns that characterize our major urban areas it is quite unrealistic to think of achieving in many cities substantial integration throughout the school district without a degree of student transportation which would have the gravest economic and educational consequences.
As Professor Bickel notes:
'In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city, or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving econimic and social policy on the broadest conceivable front might have an appreciable impact.' Bickel, supra, n. 7, at 132.
22
Estimates vary. Swann, 402 U.S., at 29, 91 S.Ct. at 1882, noted that '(e) ighteen million of the Nation's public school children, approximately 39%, were transported to their schools by bus in 1969—1970 in all parts of the country.' Senator Ribicoff, a thoughtful student of this problem, stated that '(t)wo-thirds of all American children today ride buses to schools for reasons unrelated to integration.' 118 Cong.Rec. 5456 (1972).
23
Historically, distant transportation was wrongly used to promote segregation. 'Negro children were generally considered capable of traveling longer distances to school and without the aid of any vehicle. What was too far for a white child became reasonably near for a Negro child,' Weinberg, supra, n. 20, at 87.
This deplorable history has led some to argue that integrative bus rides are justified as atonement for past segregative trips and that neighborhood education is now but a code word for racial segregation. But misuse of transportation in the past does not imply neighborhood schooling has no valid nonsegregative uses for the present. Nor would wrongful transportation in the past justify detrimental transportation for the children of today.
24
Some communities had transportation plans in effect at the time of court desegregation orders. See Swann, supra, at 29 n. 11, 91 S.Ct. at 1282; Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 34—35, 91 S.Ct. 1289, 1290—1291, 28 L.Ed.2d 577 (1971). Courts have used the presence or absence of existing transportation in a district as one factor in framing and implementing desegregation decrees. United States v. Watson Chapel School District, 446 F.2d 933, 937 (CA8 1971); Northcross v. Board of Education of Memphis City Schools, 444 F.2d 1179, 1182—1183 (CA6 1971); Davis v. Board of Education of North Little Rock, 328 F.Supp. 1197, 1203 (ED Ark.1971). Where a school board is voluntarily engaged in transporting students, a district court is, of course, obligated to insure that such transportation is not undertaken with segregative effect. Where, also, voluntary transportation programs are already in progress, there may be greater justification for court-ordered transportation of students for a comparable time and distance to achieve greater integration.
25
The term 'neighborhood school' should not be supposed to denote solely a walkin school or one which serves children only in the surrounding blocks. The Court has noted, in a different context, that '(t)he word 'neighborhood' is quite as susceptible of variation as the word 'locality.' Both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles.' Connally v. General Construction Co., 269 U.S. 385, 395, 46 S.Ct. 126, 129, 70 L.Ed. 322 (1926). In the school context, 'neighborhood' refers to relative proximity, to a preference for a school nearer to, rather than more distant from, home.
26
I do not imply that the neighborhood concept must be embodied in every school system. But where a school board has chosen it, federal judges should accord it respect in framing remedial decrees.
27
Slums and Suburbs 29 (1961).
28
See n. 21, supra.
29
In Memphis, for example, which has no history of busing students, the minimum transportation plan ordered by the courts will require, in the School Board's estimate, an initial capital expenditure of $1,664,192 for buses plus an annual operating cost of $629,192. The Board estimates that a more extensive transportation program to be considered by the district court will require initial capital investments of $3,924,000 and annual operating costs of $1,783,490. The most drastic transportation plan before the district court requires estimated annual operating costs of from $2,354,220, $2,431,710, or $3,463,100 depending on the Board's transportation arrangements. Northcross v. Board of Education of Memphis City Schools, 466 F.2d at 898 (Weick, J., dissenting).
30
See n. 9, supra.
31
There may well be advantages in commencing the integrative experiences at an early age, as young children may be less likely than older children and adults to develop an inhibiting racial consciousness. These advantages should be considered as school boards make the various decisions with the view to achieving and preserving an integrated school system. Supra, at 226—227. But in the balancing of all relevant interests, the advantages of an early integrative experience must, and in all fairness should, be weighed against other relevant advantages and disadvantages and in light of the demographic characteristics of the particular community.
32
While greater transportation of secondary school students might be permitted, even at this level the desire of a community for racially neutral neighborhood schools should command judicial respect. It would ultimately be wisest, where there is no absence of good faith, to permit affected communities to decide this delicate issue of student transportation on their own.
| 12
|
413 U.S. 266
93 S.Ct. 2535
37 L.Ed.2d 596
Condrado ALMEIDA-SANCHEZ, Petitioner,v.UNITED STATES.
No. 71—6278.
Argued March 19, 28, 1973.
Decided June 21, 1973.
Syllabus
Petitioner, a Mexican citizen and holder of a valid work permit, challenges the constitutionality of the Border Patrol's warrantless search of his automobile 25 air miles north of the Mexican border. The search, made without probable cause or consent, uncovered marihuana, which was used to convict petitioner of a federal crime. The Government seeks to justify the search on the basis of § 287(a)(3) of the Immigration and Nationality Act, which provides for warrantless searches of automobiles and other conveyances 'within a reasonable distance from any external boundary of the United States,' as authorized by regulations to be promulgated by the Attorney General. The Attorney General's regulation defines 'reasonable distance' as 'within 100 air miles from any external boundary of the United States.' The Court of Appeals upheld the search on the basis of the Act and regulation. Held: The warrantless search of petitioner's automobile, made without probable cause or consent, violated the Fourth Amendment. Pp. 269—275.
(a) The search cannot be justified on the basis of any special rules applicable to automobile searches, as probable cause was lacking; nor can it be justified by analogy with administrative inspections, as the officers had no warrant or reason to believe that petitioner had crossed the border or committed an offense, and there was no consent by petitioner. Pp. 269—272.
(b) The search was not a border search or the functional equivalent thereof. Pp. 272—275.
452 F.2d 459, reversed.
John J. Cleary, San Diego, Cal., for petitioner.
Philip A. Lacovara, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner in this case, a Mexican citizen holding a valid United States work permit, was convicted of having knowingly received, concealed and facilitated the transportation of a large quantity of illegally imported marihuana in violation of 21 U.S.C. § 176a (1964 ed.). His sole contention on appeal was that the search of his automobile that uncovered the marihuana was unconstitutional under the Fourth Amendment and that, under the rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, the marihuana should not have been admitted as evidence against him.
2
The basic facts in the case are neither complicated nor disputed. The petitioner was stopped by the United States Border Patrol on State Highway 78 in California, and his car was thoroughly searched. The road is essentially an east-west highway that runs for part of its course through an undeveloped region. At about the point where the petitioner was stopped the road meanders north as well as east—but nowhere does the road reach the Mexican border, and at all points it lies north of U.S. 80, a major east-west highway entirely within the United States that connects the Southwest with the west coast. The petitioner was some 25 air miles north of the border when he was stopped. It is undenied that the Border Patrol had no search warrant, and that there was no probable cause of any kind for the stop or the subsequent search—not even the 'reasonable suspicion' found sufficient for a street detention and weapons search in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612.
3
The Border Patrol conducts three types of surveillance along inland roadways, all in the asserted interest of detecting the illegal importation of aliens. Permanent checkpoints are maintained at certain nodal intersections; temporary checkpoints are established from time to time at various places; and finally, there are roving patrols such as the one that stopped and searched the petitioner's car. In all of these operations, it is argued, the agents are acting within the Constitution when they stop and search automobiles without a warrant, without probable cause to believe the cars contain aliens, and even without probable cause to believe the cars have made a border crossing. The only asserted justification for this extravagant license to search is § 287(a) (3) of the Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. § 1357(a)(3), which simply provides for warrantless searches of automobiles and other conveyances 'within a reasonable distance from any external boundary of the United States,' as authorized by regulations to be promulgated by the Attorney General. The Attorney General's regulation, 8 CFR § 287.1, defines 'reasonable distance' is 'within 100 air miles from any external boundary of the United States.'
4
The Court of Appeals for the Ninth Circuit recognized that the search of petitioner's automobile was not a 'border search,' but upheld its validity on the basis of the above-mentioned portion of the Immigration and Nationality Act and the accompanying regulation. 452 F.2d 459, 461. We granted certiorari, 406 U.S. 944, 92 S.Ct. 2050, 32 L.Ed.2d 331, to consider the constitutionality of the search.
5
* No claim is made, nor could one be, that the search of the petitioner's car was constitutional under any previous decision of this Court involving the search of an automobile. It is settled, of course, that a stop and search of a moving automobile can be made without a warrant. That narrow exception to the warrant requirement was first established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The Court in Carroll approved a portion of the Volstead Act providing for warrantless searches of automobiles when there was probable cause to believe they contained illegal alcoholic beverages. The Court recognized that a moving automobile on the open road presents a situation 'where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Id., at 153, 45 S.Ct., at 285. Carroll has been followed in a line of subsequent cases,1 but the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.2 As Mr. Justice White wrote for the Court in Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419: 'In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.'
6
In seeking a rationale for the validity of the search in this case, the Government thus understandably sidesteps the automobile search cases. Instead, the Government relies heavily on cases dealing with administrative inspections. But these cases fail to support the constitutionality of this search.
7
In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, the Court held that administrative inspections to enforce community health and welfare regulations could be made on less than probable cause to believe that particular dwellings were the sites of particular violations. Id., at 534—536, 538, 87 S.Ct., at 1733—1734, 1735. Yet the Court insisted that the inspector obtain either consent or a warrant supported by particular physical and demographic characteristics of the areas to be searched. Ibid. See also See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. The search in the present case was conducted in the unfettered discretion of the members of the Border Patrol, who did not have a warrant,3 probable cause, or consent. The search thus embodied precisely the evil the Court saw in Camara when it insisted that the 'discretion of the official in the field' be circumscribed by obtaining a warrant prior to the inspection. Camara, supra, 387 U.S., at 532—533, 87 S.Ct., at 1733.
8
Two other administrative inspection cases relied upon by the Government are equally inapposite. Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60, and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87, both approved warrantless inspections of commercial enterprises engaged in businesses closely regulated and licensed by the Government. In Colonnade, the Court stressed the long history of federal regulation and taxation of the manufacture and sale of liquor, 397 U.S., at 76—77, 90 S.Ct., at 776—777. In Biswell, the Court noted the pervasive system of regulation and reporting imposed on licensed gun dealers, 406 U.S., at 312 n. 1, 315—316, 92 S.Ct., at 1594, 1596.
9
A central difference between those cases and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him. As the Court stated in Biswell:
10
'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 which describe his obligations and define the inspector's authority. . . . The dealer is not left to wonder about the purposes of the inspector or the limits of his task.' Id., at 316, 92 S.Ct., at 1596.
11
Moreover, in Colonnade and Biswell, the searching officers knew with certainty that the premises searched were in fact utilized for the sale of liquor or guns. In the present case, by contrast, there was no such assurance that the individual searched was within the proper scope of official scrutiny—that is, there was no reason whatever to believe that he or his automobile had even crossed the border, much less that he was guilty of the commission of an offense.
II
12
Since neither this Court's automobile search decisions nor its administrative inspection decisions provide any support for the constitutionality of the stop and search in the present case, we are left simply with the statute that purports to authorize automobiles to be stopped and searched, without a warrant and 'within a reasonable distance from any external boundary of the United States.' It is clear, of course, that no Act of Congress can authorize a violation of the Constitution. But under familiar principles of constitutional adjudication, our duty is to construe the statute, if possible, in a manner consistent with the Fourth Amendment. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandeis, J., concurring).
13
It is undoubtedly within the power of the Federal Government to exclude aliens from the country. Chae Chan Ping v. United States, 130 U.S. 581, 603—604, 9 S.Ct. 623, 628—629, 32 L.Ed. 1068. It is also without doubt that this power can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders. As the Court stated in Carroll v. United States: 'Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.' 267 U.S., at 154, 45 S.Ct., at 285. See also Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.
14
Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.4
15
But the search of the petitioner's automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border,5 was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner's Fourth Amendment right to be free of 'unreasonable searches and seizures.'
16
It is not enough to argue, as does the Government, that the problem of deterring unlawful entry by aliens across long expanses of national boundaries is a serious one. The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials:
17
'These (Fourth Amendment rights), I protest, are not mere second-class rights but belong in the catalog of indipensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.' Brinegar v. United States, 338 U.S. 160, 180, 69 S.Ct. 1302, 1313, 93 L.Ed. 1879 (Jackson, J., dissenting).
18
The Court that decided Carroll v. United States, supra, sat during a period in our history when the Nation was confronted with a law enforcement problem of no small magnitude—the enforcement of the Prohibition laws. But that Court resisted the pressure of official expedience against the guarantee of the Fourth Amendment. Mr. Chief Justice Taft's opinion for the Court distinguished between searches at the border and in the interior, and clearly controls the case at bar:
19
'It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.' 267 U.S., at 153—154, 45 S.Ct., at 285.
20
Accordingly, the judgment of the Court of Appeals is reversed.
21
Reversed.
22
Mr. Justice POWELL, concurring.
23
While I join the opinion of the Court, which sufficiently establishes that none of our Fourth Amendment decisions supports the search conducted in this case, I add this concurring opinion to elaborate on my views as to the meaning of the Fourth Amendment in this context. We are confronted here with the all-too-familiar necessity of reconciling a legitimate need of government with constitutionally protected rights. There can be no question as to the seriousness and legitimacy of the law enforcement problem with respect to enforcing along thousands of miles of open border valid immigration and related laws. Nor can there be any question as to the necessity, in our free society, of safeguarding persons against searches and seizures proscribed by the Fourth Amendment. I believe that a resolution of the issue raised by this case is possible with due recognition of both of these interests, and in a manner compatible with the prior decisions of this Court.1
24
* The search here involved was carried out as part of a roving search of automobiles in an area generally proximate to the Mexican border. It was not a border search, nor can it fairly be said to have been a search conducted at the 'functional equivalent' of the border. Nor does this case involve the constitutional propriety of searches at permanent or temporary checkpoints removed from the border or its functional equivalent. Nor, finally, was the search based on cause in the ordinary sense of specific knowledge concerning an automobile or its passengers.2 The question posed, rather, is whether and under what circumstances the Border Patrol may lawfully conduct roving searches of automobiles in areas not far removed from the border for the purpose of apprehending aliens illegally entering or in the country.
25
The Government has made a convincing showing that large numbers of aliens cross our borders illegally at places other than established crossing points, that they are often assisted by smugglers, that even those who cross on foot are met and transported to their destinations by automobiles, and that roving checks of automobiles are the only feasible means of apprehending them. It would, of course, be wholly impracticable to maintain a constant patrol along thousands of miles of border. Moreover, because many of these aliens cross the border on foot, or at places other than established checkpoints, it is simply not possible in most cases for the Government to obtain specific knowledge that a person riding or stowed in an automobile is an alien illegally in the country. Thus the magnitude of the problem is clear. An answer, reconciling the obvious needs of law enforcement with relevant constitutional rights, is far less clear.
II
26
The Government's argument to sustain the search here is simply that it was reasonable under the circumstances. But it is by now axiomatic that the Fourth Amendment's proscription of 'unreasonable searches and seizures' is to be read in conjunction with its command that 'no Warrants shall issue, but upon probable cause.' Under our cases, both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, though in certain limited circumstances neither is required.
27
Before deciding whether a warrant is required, I will first address the threshold question of whether some functional equivalent of probable cause may exist for the type of search conducted in this case. The problem of ascertaining the meaning of the probable-cause requirement in the context of roving searches of the sort conducted here is measurably assisted by the Court's opinion in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), on which the Government relies heavily. The Court was there concerned with the nature of the probable-cause requirement in the context of searches to identify housing code violations and was persuaded that the only workable method of enforcement was periodic inspection of all structures:
28
'It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building.' Id., at 536, 87 S.Ct., at 1734.
29
In concluding that such general knowledge met the probable-cause requirement under those circumstances, the Court took note of a 'long history of judicial and public acceptance,' of the absence of other methods for vindicating the public interest in preventing or abating dangerous conditions, and of the limited invasion of privacy occasioned by administrative inspections which are 'neither personal in nature nor aimed at the discovery of evidence of crime.' Id., at 537, 87 S.Ct., at 1735.
30
Roving automobile searches in border regions for aliens, likewise, have been consistently approved by the judiciary. While the question is one of first impression in this Court, such searches uniformly have been sustained by the courts of appeals whose jurisdictions include those areas of the border between Mexico and the United States where the problem has been most severe. See, e.g., United States v. Miranda, 426 F.2d 283 (CA9 1970); Roa-Rodriguez v. United States, 410 F.2d 1206 (CA10 1969). Moreover, as noted above, no alternative solution is reasonably possible.
31
The Government further argues that such searches resemble those conducted in Camara in that they are undertaken primarily for administrative rather than prosecutorial purposes, that their function is simply to locate those who are illegally here and to deport them. Brief for the United States 28 n. 25. This argument is supported by the assertion that only 3% of aliens apprehended in this country are prosecuted. While the low rate of prosecution offers no great solace to the innocent whose automobiles are searched or to the few who are prosecuted, it does serve to differentiate this class of searches from random area searches which are no more than 'fishing expeditions' for evidence to support prosecutions. The possibility of prosecution does not distinguish such searches from those involved in Camara. Despite the Court's assertion in that case that the searches were not 'aimed at the discovery of evidence of crime,' 387 U.S., at 537, 87 S.Ct., at 1735, violators of the housing code there were subject to criminal penalties. Id., at 527 n. 2, 87 S.Ct., at 1730.
32
Of perhaps greater weight is the fact that these searches, according to the Government, are conducted in areas where the concentration of illegally present aliens is high, both in absolute terms and in proportion to the number of persons legally present. While these searches are not border searches in the conventional sense, they are incidental to the protection of the border and draw a large measure of justification from the Government's extraordinary responsibilities and powers with respect to the border. Finally, and significantly, these are searches of automobiles rather than searches of persons or buildings. The search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one's person or of a building. This Court 'has long distinguished between an automobile and a home or office.' Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979 (1970). As the Government has demonstrated, and as those in the affected areas surely know, it is the automobile which in most cases makes effective the attempts to smuggle aliens into this country.
33
The conjunction of these factors—consistent judicial approval, absence of a reasonable alternative for the solution of a serious problem, and only a modest intrusion on those whose automobiles are searched—persuades me that under appropriate limiting circumstances there may exist a constitutionally adequate equivalent of probable cause to conduct roving vehicular searches in border areas.
III
34
The conclusion that there may be probable cause to conduct roving searches does not end the inquiry, for 'except in certain carefully defined classes of cases, a search of private property without proper consent is 'UNREASONABLE' UNLESS IT HAS BEEN AUTHORIzed by a valid search warrant.' Camara v. Municipal Court, supra, 387 U.S., at 528—529, 87 Term that the warrant clause reflects and important policy determination: 'The S.Ct., at 1731. I expressed the view last Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility is to enforce the laws, to investigate, and to prosecute. . . . 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.' United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972). See also Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 2046, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 763—764, 89 S.Ct. 2034, 2040—2041, 23 L.Ed.2d 685 (1969).
35
To justify warrantless searches in circumstances like those presented in this case, the Government relies upon several of this Court's decisions recognizing exceptions to the warrant requirement. A brief review of the nature of each of these major exceptions illuminates the relevant considerations in the present case. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court held that a policeman may conduct a limited 'pat down' search for weapons when he has reasonable grounds for believing that criminal conduct has taken or is taking place and that the person he searches is armed and dangerous. 'The sole justification (for such a) search . . . is the protection of the police officer and others nearby . . ..' Id., at 29, 88 S.Ct., at 1884. Nothing in Terry supports an exception to the warrant requirement here.
36
Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), on which the Government also relies, both concerned the standards which govern inspections of the business premises of those with federal licenses to engage in the sale of liquor, Colonnade, or the sale of guns, Biswell. In those cases, Congress was held to have power to authorize warrantless searches. As the Court stated in Biswell:
37
'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.' 406 U.S., at 316, 92 S.Ct., at 1596.
38
Colonnade and Biswell cannot fairly be read to cover cases of the present type. One who merely travels in regions near the borders of the country can hardly be thought to have submitted to inspections in exchange for a special perquisite.
39
More closely in point on their facts are the cases involving automobile searches. E.g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, supra; Coolidge v. New Hampshire, supra. But while those cases allow automobiles to be searched without a warrant in certain circumstances, the principal rationale for this exception to the warrant clause is that under those circumstances 'it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Carroll v. United States, supra, at 153, 45 S.Ct., at 285. The Court today correctly points out that a warrantless search under the Carroll line of cases must be supported by probable cause in the sense of specific knowledge about a particular automobile. While, as indicated above, my view is that on appropriate facts the Government can satisfy the probable cause requirement for a roving search in a border area without possessing information about particular automobiles, it does not follow that the warrant requirement is inapposite. The very fact that the Government's supporting information relates to criminal activity in certain areas rather than to evidence about a particular automobile renders irrelevant the justification for warrantless searches relied upon in Carroll and its progeny. Quite simply, the roving searches are justified by experience with obviously nonmobile sections of a particular road or area embracing several roads.
40
None of the foregoing exceptions to the warrant requirement, then, applies to roving automobile searches in border areas. Moreover, the propriety of the warrant procedure here is affirmatively established by Camara. See also See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). For the reasons outlined above, the Court there ruled that probable cause could be shown for an area search, but nonetheless required that a warrant be obtained for unconsented searches. The Court indicated its general approach to exceptions to the warrant requirement:
41
'In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.'
42
Camara v. Municipal Court, 387 U.S., at 533, 87 S.Ct., at 1733.
43
See also United States v. United States District Court, supra, 407 U.S., at 315, 92 S.Ct., at 2135.
44
The Government argues that Camara and See are distinguishable from the present case for the purposes of the warrant requirement. It is true that while a building inspector who is refused admission to a building may easily obtain a warrant to search that building, a member of the Border Patrol has no such opportunity when he is refused permission to inspect an automobile. It is also true that the judicial function envisioned in Camara did not extend to reconsideration of 'the basic agency decision to canvass an area,' Camara v. Municipal Court, supra, 387 U.S., at 532, 87 S.Ct., at 1733, while the judicial function here would necessarily include passing on just such a basic decision.
45
But it does not follow from these distinctions that 'no warrant system can be constructed that would be feasible and meaningful.' Brief for the United States 36. Nothing in the papers before us demonstrates that it would not be feasible for the Border Patrol to obtain advance judicial approval of the decision to conduct roving searches on a particular road or roads for a reasonable period of time.3 According to the Government, the incidence of illegal transportation of aliens on certain roads is predictable, and the roving searches are apparently planned in advance or carried out according to a predetermined schedule. The use of an area warrant procedure would surely not 'frustrate the governmental purpose behind the search.' Camara v. Municipal Court, supra, 387 U.S., at 533, 87 S.Ct., at 1733. It would of course entail some inconvenience, but inconvenience alone has never been thought to be an adequate reason for abrogating the warrant requirement. E.g., United States v. United States District Court, supra, 407 U.S., at 321, 92 S.Ct., at 2139.
46
Although standards for probable cause in the context of this case are relatively unstructured (cf. id., at 322, 92 S.Ct., at 2139), there are a number of relevant factors which would merit consideration: they include (i) the frequency with which aliens illegally in the country are known or reasonably believed to be transported within a particular area; (ii) the proximity of the area in question to the border; (iii) the extensiveness and geographic characteristics of the area, including the roads therein and the extent of their use,4 and (iv) the probable degree of interference with the rights of innocent persons, taking into account the scope of the proposed search, its duration, and the concentration of illegal alien traffic in relation to the general traffic of the road or area.
47
In short, the determination of whether a warrant should be issued for an area search involves a balancing of the legitimate interests of law enforcement with protected Fourth Amendment rights. This presents the type of delicate question of constitutional judgment which ought to be resolved by the Judiciary rather than the Executive. In the words of Camara,
48
'This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search.' 387 U.S., at 532—533, 87 S.Ct., at 1733.
49
Nor does the novelty of the problem posed by roving searches in border areas undermine the importance of a prior judicial determination. When faced with a similarly unconventional problem last Term in United States District Court, supra, we recognized that the focus of the search there involved was 'less precise than that directed against more conventional types of crime,' and that '(d)ifferent standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government . . . and the protected rights of our citizens.' 407 U.S., at 322—323, 92 S.Ct., at 2139. Yet we refused to abandon the Fourth Amendment commitment to the use of search warrants whenever this is feasible with due regard to the interests affected.
50
For the reasons stated above, I think a rational search warrant procedure is feasible in cases of this kind. As no warrant was obtained here, I agree that the judgment must be reversed. I express no opinion as to whether there was probable cause to issue a warrant on the facts of this particular case.
51
Mr. Justice WHITE, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, dissenting.
52
Trial and conviction in this case were in the United States District Court for the Southern District of California under an indictment charging that petitioner, contrary to 21 U.S.C. § 176a (1964 ed.), had knowingly received, concealed, and facilitated the transportation of approximately 161 pounds of illegally imported marihuana. He was sentenced to five years' imprisonment. He appealed on the sole ground that the District Court had erroneously denied his motion to suppress marihuana allegedly seized from his automobile in violation of the Fourth Amendment.
53
The motion to suppress was heard on stipulated evidence in the District Court.1 United States Border Patrol Officers Shaw and Carrasco stopped petitioner's car shortly after midnight as it was traveling from Calexico, on the California-Mexico border, toward Blythe, California. The stop was made on Highway 78 near Glamis, California, 50 miles by road from Calexico. The highway was 'about the only northsouth road in California coming from the Mexican border that does not have an established checkpoint.'2 Because of that, 'it is commonly used to evade check points by both marijuana and alien smugglers.' On occasions 'but not at all times,' officers of the Border Patrol 'maintain a roving check of vehicles and persons on that particular highway.' Pursuant to this practice 'they stopped this vehicle for the specific purpose of checking for aliens.' Petitioner's identification revealed that he was a resident of Mexicali, Mexico, but that he held a work permit for the United States. Petitioner had come from Mexicali, had picked up the car in Calexico and was on his way to Blythe to deliver it. He intended to return to Mexicali by bus.3 The officers had been advised by an official bulletin that aliens illegally entering the United States sometimes concealed themselves by sitting upright behind the back seat rest of a car, with their legs folded under the back seat from which the springs had been removed. While looking under the rear seat of petitioner's car for aliens, the officers discovered packages believed by them to contain marihuana. Petitioner was placed under arrest and advised of his rights. His car was then searched for additional marihuana, which was found in substantial amounts.
54
On this evidence, the motion to suppress was denied, and petitioner was convicted. A divided Court of Appeals affirmed, 452 F.2d 459 (CA9 1971), relying on its prior cases and on § 287(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a)(3), which provides that officers of the Immigration and Naturalization Service shall have the power, without warrant, to search any vehicle for aliens within a reasonable distance from any external boundary of the United States.4 I dissent from the reversal of this judgment.
55
* The Fourth Amendment protects the people 'in their persons, houses, papers and effects, against unreasonable searches and seizures' and also provides that 'no Warrants shall issue, but upon probable cause . . ..' The ordinary rule is that to be reasonable under the Amendment a search must be authorized by warrant issued by a magistrate upon a showing of probable cause. The Amendment's overriding prohibition is nevertheless against 'unreasonable' searches and seizures; and the legality of searching, without warrant and without probable cause, individuals and conveyances seeking to enter the country has been recognized by Congress and the courts since the very beginning. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), said as much; and in Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), the Court repeated that neither warrant nor probable cause was required to authorize a stop and search at the external boundaries of the United States: 'Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.' This much is undisputed in this case. Persons and their effects may be searched at the border for dutiable articles or contraband. Conveyances may be searched for the same purposes, as well as to determine whether they carry aliens not entitled to enter the country. Neither, apparently, is it disputed that warrantless searches for aliens without probable cause may be made at fixed checkpoints away from the border.
56
The problem in this case centers on the roving patrol operating away from, but near, the border. These patrols may search for aliens without a warrant if there is probable cause to believe that the vehicle searched is carrying aliens illegally into the country. But without probable cause, the majority holds the search unreasonable, although at least one Justice, Mr. Justice POWELL, would uphold searches by roving patrols if authorized by an area warrant issued on less than probable cause in the traditional sense. I agree with Mr. Justice POWELL that such a warrant so issued would satisfy the Fourth Amendment, and I would expect that such warrants would be readily issued. But I disagree with him and the majority that either a warrant or probable cause is required in the circumstances of this case. As the Court has reaffirmed today in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706, the governing standard under the Fourth Amendment is reasonableness, and in my view, that standard is sufficiently flexible to authorize the search involved in this case.
57
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court proceeding under the 'general proscription against unreasonable searches and seizures,' id., at 20, 88 S.Ct., at 1879 (footnote omitted), weighed the governmental interest claimed to justify the official intrusion against the constitutionally protected interest of the private citizen. Id., at 20—21, 88 S.Ct., at 1879—1880. The "need to search" was balanced "against the invasion which the search . . . entails" quoting from Camara v. Municipal Court, 387 U.S. 523, 534—535, 536 537, 87 S.Ct. 1727, 1733—1734, 1735, 18 L.Ed.2d 930 (1967). Terry, supra, 392 U.S., at 21, 88 S.Ct., at 1879. In any event, as put by Mr. Chief Justice Warren, the 'question is whether in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.' Id., at 9, 88 S.Ct., at 1873 (emphasis added).
58
Warrantless but probable-cause searches of the person and immediate surroundings have been deemed reasonable when incident to arrest, see Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); and in Terry, the stop of a suspected individual and a pat-down for weapons without a warrant were thought reasonable on less than traditional probable cause. In Camara v. Municipal Court, supra, an inspection of every structure in an entire area to enforce the building codes was deemed reasonable under the Fourth Amendment without probable cause, or suspicion that any particular house or structure was in violation of law, although a warrant, issuable without probable cause, or reasonable suspicion of a violation, was required with respect to nonconsenting property owners. Also, in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), Mr. Justice Douglas, writing for the Court and recognizing that the Fourth Amendment bars only unreasonable searches and seizures, ruled that the historic power of the Government to control the liquor traffic authorized warrantless inspections of licensed premises without probable cause, or reasonable suspicion, not to check on liquor quality or conditions under which it was sold, but solely to enforce the collection of the federal excise tax.5 United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), involved the Gun Control Act of 1968 and its authorization to federal officers to inspect firearms dealers. The public need to enforce an important regulatory program was held to justify random inspections of licensed establishments without warrant and probable cause.
59
The Court has been particularly sensitive to the Amendment's broad standard of 'reasonableness' where, as in Biswell and Colonnade, authorizing statutes permitted the challenged searches. We noted in Colonnade 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, and in Biswell we relied heavily upon the congressional judgment that the authorized inspection procedures played an important part in the regulatory system. 406 U.S. at 315—317, 92 S.Ct., at 1596 1597. In the case before us, 8 U.S.C. § 1357(a)(3), authorizes Border Patrol officers, without warrant, to search any vehicle for aliens 'within a reasonable distance from any external boundary of the United States' and within the distance of 25 miles from such external boundary to have access to private lands, but not dwellings 'for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . ..' At the very least, this statute represents the considered judgment of Congress that proper enforcement of the immigration laws requires random searches of vehicles without warrant or probable cause within a reasonable distance of the international borders of the country.
60
It is true that '(u)ntil 1875 alien migration to the United States was unrestricted.' Kleindienst v. Mandel, 408 U.S. 753, 761, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972). But the power of the National Government to exclude aliens from the country is undoubted and sweeping. 'That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power.' Chae Chan Ping v. United States, 130 U.S. 581, 603—604, 9 S.Ct. 623, 629, 32 L.Ed. 1068 (1889). 'The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively . . . is settled by our previous adjudications.' Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895). See also Fong Yue Ting v. United States, 149 U.S. 698, 711, 13 S.Ct. 1016, 1021, 37 L.Ed. 905 (1893); Yamataya v. Fisher, 189 U.S. 86, 97—99, 23 S.Ct. 611, 613—614, 47 L.Ed. 721 (1903); United States ex rel. Turner v. Williams, 194 U.S. 279, 289—290, 24 S.Ct. 719, 722, 48 L.Ed. 979 (1904); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 335—336, 29 S.Ct. 671, 674—675, 53 L.Ed. 1013 (1909); United States ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed. 1298 (1933).
61
Since 1875, Congress has given 'almost continuous attention . . . to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing control . . ..' Kleindienst v. Mandel, supra, 408 U.S., at 761—762, 92 S.Ct., at 2581. It was only as the illegal entry of aliens multiplied that Congress addressed itself to enforcement mechanisms. In 1917, immigration authorities were authorized to board and search all conveyances by which aliens were being brought into the United States. Act of Feb. 5, 1917, § 16, 39 Stat. 886. This basic authority, substantially unchanged, is incorporated in 8 U.S.C. § 1225(a).
62
In 1946, it was represented to Congress that '(i)n the enforcement of the immigration laws it is at times desirable to stop and search vehicles within a reasonable distance from the boundaries of the United States and the legal right to do so should be conferred by law.' H.R.Rep.No.186, 79th Cong., 1st Sess., 2 (1945). The House Committee on Immigration and Naturalization was 'of the opinion that the legislation is highly desirable,' ibid, and its counterpart in the Senate, S.Rep.No.632, 79th Cong., 1st Sess., 2 (1945), stated that '(t)here is no question but that this is a step in the right direction.' The result was express statutory authority, Act of Aug. 7, 1946, 60 Stat. 865, to conduct searches of vehicles for aliens within a reasonable distance from the border without warrant or possible cause. Moreover, in the Immigration and Nationality Act of 1952, 66 Stat. 163, Congress permitted the entry onto private lands, excluding dwellings, within a distance of 25 miles from any external boundaries of the country 'for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . ..' § 287(a)(3), 66 Stat. 233.
63
The judgment of Congress obviously was that there are circumstances in which it is reasonably necessary, in the enforcement of the immigration laws, to search vehicles and other private property for aliens, without warrant or probable cause, and at locations other than at the border. To disagree with this legislative judgment is to invalidate 8 U.S.C. § 1357(a)(3) in the face of the contrary opinion of Congress that its legislation comported with the standard of reasonableness of the Fourth Amendment. This I am quite unwilling to do.
64
The external boundaries of the United States are extensive. The Canadian border is almost 4,000 miles in length; the Mexican, almost 2,000. Surveillance is maintained over the established channels and routes of communication. But not only is inspection at regular points of entry not infallible, but it is also physically impossible to maintain continuous patrol over vast stretches of our borders. The fact is that illegal crossings at other than the legal ports of entry are numerous and recurring. If there is to be any hope of intercepting illegal entrants and of maintaining any kind of credible deterrent, it is essential that permanent or temporary checkpoints be maintained away from the borders, and roving patrols be conducted to discover and intercept illegal entrants as they filter to the established roads and highways and attempt to move away from the border area. It is for this purpose that the Border Patrol maintained the roving patrol involved in this case and conducted random, spot checks of automobiles and other vehicular traffic.
65
The United States in this case reports that in fiscal year 1972, Border Patrol traffic checking operations located over 39,000 deportable aliens, of whom approximately 30,000 had entered the United States by illegally crossing the border at a place other than a port of entry. This was said to represent nearly 10% of the number of such aliens located by the Border Patrol by all means throughout the United States.6
66
Section 1357(a)(3) authorizes only searches for aliens and only searches of conveyances and other property. No searches of the person or for contraband are authorized by the section. The authority extended by the statute is limited to that reasonably necessary for the officer to assure himself that the vehicle or other conveyance is not carrying an alien who is illegally within this country; and more extensive searches of automobiles without probable cause are not permitted by the section. Roa-Rodriquez v. United States, 410 F.2d 1206 (CA10 1969); see Fumagalli v. United States, 429 F.2d 1011, 1013 (CA9 1970). Guided by the principles of Camara, Colonnade, and Biswell, I cannot but uphold the judgment of Congress that for purposes of enforcing the immigration laws it is reasonable to treat the exterior boundaries of the country as a zone, not a line, and that there are recurring circumstances in which the search of vehicular traffic without warrant and without probable cause may be reasonable under the Fourth Amendment although not carried out at the border itself.
67
This has also been the considered judgment of the three Courts of Appeals whose daily concern is the enforcement of the immigration laws along the Mexican-American border, and who, although as sensitive to constitutional commands as we are, perhaps have a better vantage point than we here on the Potomac to judge the practicalities of border-area law enforcement and the reasonableness of official searches of vehicles to enforce the immigration statutes.
68
The Court of Appeals for the Ninth Circuit, like other circuits, recognizes that at the border itself, persons may be stopped, identified, and searched without warrant or probable cause and their effects and conveyances likewise subjected to inspection. There seems to be no dissent on this proposition. Away from the border, persons and automobiles may be searched for narcotics or other contraband only on probable cause; but under § 1357(a)(3), automobiles may be stopped without warrant or probable cause and a limited search for aliens carried out in those portions of the conveyance capable of concealing any illegal immigrant. This has been the consistent view of that court.
69
In Fumagalli v. United States, supra, Fumagalli was stopped at a checkpoint in Imperial, California, 49 miles north of the international boundary. In the course of looking in the truck for an illegal entrant, the odor of marihuana was detected and marihuana discovered. Fumagalli contended that the trunk of the automobile could not be examined to locate an illegal entrant absent probable cause to believe that the vehicle carried such a person. The court, composed of Judges Merrill, Hufstedler, and Byrne, rejected the position, stating that '(w)hat all of these cases make clear is that probable cause is not required for an immigration search within approved limits (footnote omitted) but is generally required to sustain the legality of a search for contraband in a person's automobile conduct away from the international borders. . . . Appellant has confused the two rules in his attempt to graft the probable cause standards of the narcotics cases . . . onto the rules justifying immigration inspections . . ..' 429 F.2d, at 1013. Among prior cases reaffirmed was Fernandez v. United States, 321 F.2d 283 (1963), where an automobile was stopped 18 miles north of Oceanside, California, on Highway 101 at a point 60 to 70 miles north of the Mexican border. An inspection for illegally entering aliens was conducted, narcotics were discovered and seized, and the stop and seizure were sustained under the statute. The Immigration Service, it was noted, had been running traffic checks in this area for 31 years, many illegal entrants had been discovered there, and there were at least a dozen other such checkpoints operating along the bordr between the United States and Mexico.7
70
The Courts of Appeal for the Fifth and Tenth Circuits share the problem of enforcing the immigration laws along the Mexican-American border. Both courts agree with the Ninth Circuit that § 1357(a)(3) is not void and that there are recurring circumstances where, as the statute permits, a stop of an automobile without warrant or probable cause and a search of it for aliens are constitutionally permissible.
71
In United States v. De Leon, 462 F.2d 170 (CA5 1972), De Leon was stopped without warrant or probable cause, while driving on the highway leading north of Laredo, Texas, approximately 10 miles from the Mexican border. The purpose of the stop was to inspect for illegally entering aliens. De Leon opened the trunk as he was requested to do. A false bottom in the trunk and what was thought to be an odor of marihuana were immediately noticed and some heroin was seized. Judge Wisdom, writing for himself and Judges Godhold and Roney, concluded that:
72
'Stopping the automobile ten miles from the Mexican border to search for illegal aliens was reasonable. See United States v. McDaniel, (463 F.2d 129 (CA5 1972)); United States v. Warner, 5 Cir. 1971, 441 F.2d 821; Marsh v. United States, 5 Cir. 1965, 344 F.2d 317, 8 U.S.C. §§ 1225, 1357; 19 U.S.C. §§ 482, 1581, 8 C.F.R. § 287.1 (1973); 19 C.F.R. §§ 23.1(d), 23.11 (1972). Once the vehicle was reasonably stopped pursuant to an authorized border check the agents were empowered to search the vehicle, including the trunk, for aliens.' Id., at 171.
73
Similarly, United States v. McDaniel, 463 F.2d 129 (CA5 1972), upheld a stop and an ensuing search for aliens that uncovered another crime. Judge Goldberg, with Judges Wisdom and Clark, was careful to point out, however, that the authority granted under the statute must still be exercised in a manner consistent with the standards of reasonableness of the Fourth Amendment. 'Once the national frontier has been crossed, the search in question must be reasonable upon all of its facts, only one of which is the proximity of the search to an international border.' Id., at 133. This view appears to have been the law in the Fifth Circuit for many years.8
74
The Court of Appeals for the Tenth Circuit has expressed similar views. In Roa-Rodriquez, supra, the automobile was stopped in New Mexico some distance from the Mexican border, the purpose being to search for aliens. Relying on the statute, the court, speaking through Judge Breitenstein, concluded that '(i)n the circumstances the initial stop and search for aliens were proper.' 410 F.2d, at 1208. However, when it was determined by the officers that there were no occupants of the car illegally in the country, whether in the trunk or elsewhere, the court held that the officers had no business examining the contents of a jacket found in the trunk. The evidence in this case was excluded. The clear rule of the circuit, however, is that conveyances may be stopped and examined for aliens without warrant or probable cause when in all the circumstances it is reasonable to do so.9
75
Congress itself has authorized vehicle searches at a reasonable distance from international frontiers in order to aid in the enforcement of the immigration laws. Congress has long considered such inspections constitutionally permissible under the Fourth Amendment. So, also, those courts and judges best positioned to make intelligent and sensible assessments of the requirements of reasonableness in the context of controlling illegal entries into this country have consistently and almost without dissent come to the same conclusion that is embodied in the judgment that is reversed today.10
II
76
I also think that § 1357(a)(3) was validly applied in this case and that the search for aliens and the discovery of marihuana were not illegal under the Fourth Amendment. It was stipulated that the highway involved here was one of the few roads in California moving away from the Mexican border that did not have an established check station and that it is commonly used by alien smugglers to evade regular checkpoints. The automobile, when stopped sometime after midnight, was 50 miles along the road from the border town of Calexico, proceeding toward Blythe, California; but as a matter of fact it appears that the point at which the car was stopped was approximately only 20 miles due north of the Mexican border. Given the large number of illegal entries across the Mexican border at other than established ports of entry, as well as the likelihood that many illegally entering aliens cross on foot and meet prearranged transportation in this country, I think that under all the circumstances the stop of petitioner's car was reasonable, as was the search for aliens under the rear seat of the car pursuant to an official bulletin suggesting search procedures based on experience. Given a valid search of the car for aliens, it is in no way contended that the discovery and seizure of the marihuana were contrary to law.11
77
I would affirm the judgment of the Court of Appeals.
1
E.g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; Bringar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629.
2
Moreover, '(n)either Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.' Chambers v. Maroney, supra, 399 U.S., at 50, 90 S.Ct., at 1980. See also Coolidge v. New Hampshire, 403 U.S. 443, 458 464, 91 S.Ct. 2022, 2033—2037, 29 L.Ed.2d 564.
3
The Justices who join this opinion are divided upon the question of the constitutionality of area search warrants such as described in Mr. Justice POWELL'S concurring opinion.
4
With respect to aircraft, 8 CFR § 281.1 defines 'reasonable distance' as 'any distance fixed pursuant to paragraph (b) of this section.' Paragraph (b) authorizes the Commissioner of Immigration and Naturalization to approve searches at a greater distance than 100 air miles from a border 'because of unusual circumstances.'
5
The Government represents that the highway on which this search occurred is a common route for illegally entered aliens to travel, and that roving patrols apprehended 195 aliens on that road in one year. But it is, of course, quite possible that every one of those aliens was apprehended as a result of a valid search made upon probable cause. On the other hand, there is no telling how many perfectly innocent drivers have been stopped on this road without any probable cause, and been subjected to a search in the trunks, under the hoods, and behind the rear seats of their automobiles.
1
I am in accord with the Court's conclusion that nothing in § 287(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a)(3), or in 8 CFR § 287.1 serves to authorize an otherwise unconstitutional search.
2
The Solicitor General's brief in this Court states explicitly that 'We . . . do not take the position that the checking operations are justified because the officers have probable cause or even 'reasonable suspicion' to believe, with respect to each vehicle checked, that it contains an illegal alien. Apart from the reasonableness of establishment of the checking operation in this case, there is nothing in the record to indicate that the Border Patrol officers had any special or particular reason to stop petitioner and examine his car.' Brief for the United States 9—10.
3
There is no reason why a judicial officer could not approve where appropriate a series of roving searches over the course of several days or weeks. Experience with an initial search of series of searches would be highly relevant in considering applications for renewal of a warrant.
4
Depending upon the circumstances, there may be probable cause for the search to be authorized only for a designated portion of a particular road or such cause may exist for a designated area which may contain one or more roads or tracks. Particularly along much of the Mexican border, there are vast areas of uninhabited desert and arid land which are traversed by few, if any, main roads or highways, but which nevertheless may afford opportunities—by virtue of their isolated character—for the smuggling of aliens.
1
The facts, except for when petitioner was stopped, are taken from the oral stipulation in open court. See App. 11—14. The time petitioner was stopped is given by the Complaint as 12:15 a.m., App. 4, while petitioner testified at trial that he was 'stopped about 1:00.' 3 Tr. of Rec. 62.
2
West of Glamis the prevailing direction of the highway is east-west. At the point of the stop west of Glamis, the highway is only approximately 20 miles north of the border, running parallel to it. East of Glamis, the highway proceeds sharply northeast to Blythe, a distance of over 50 miles.
3
It appears, see App. 12, 13, that the officers were informed of these facts before initiating any search for aliens, and hence before finding any contraband.
4
Title 8 U.S.C. § 1357(a) provides in pertinent part:
'Any officer or employee of the (Immigration and Naturalization) Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
'(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . ..'
The Court of Appeals also relied on 8 CFR § 287.1, which in relevant part provides:
'(a) (2) Reasonable distance. The term 'reasonable distance,' as used in section 287(a)(3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director, or, so far as the power to board and search aircraft is concerned, any distance fixed pursuant to paragraph (b) of this section.'
5
In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), the conviction was set aside because it was thought that Congress, with all the authority it had to prescribe standards of reasonableness under the Fourth Amendment, had not intended federal inspectors to use force in carrying out warrantless, nonprobable-cause inspections. In dissent, The Chief Justice, joined by Justices Black and Stewart, would have sustained the search, saying: 'I assume we could all agree that the search in question must be held valid, and the contraband discovered subject to seizure and forfeiture, unless (a) it is 'unreasonable' under the Constitution or (b) it is prohibited by a statute imposing restraints apart from those in the Constitution. The majority sees no constitutional violation; I agree.' Id., at 78, 90 S.Ct., at 777.
In a separate dissent Mr. Justice Black, joined by The Chief Justice and Mr. Justice Stewart, also emphasized that the ultimate test of legality under the Fourth Amendment was whether the search and seizure were reasonable. Id., at 79—81, 90 S.Ct., at 778—779.
6
In fiscal year 1972, 398,000 aliens who had entered the United States without inspection were located by Immigration and Naturalization officers; and of the 39,243 deportable aliens located through traffic checking operations, about one-third, 11,586, had been assisted by smugglers. In fiscal year 1972, 2,880 such smugglers were discovered through traffic checking operations. Ninety-nine percent of all aliens illegally entering the United States by land crossed our border with Mexico.
7
In the Court of Appeals for the Ninth Circuit, 8 U.S.C. § 1357(a)(3) has also been sustained in, e.g., Mienke v. United States, 452 F.2d 1076 (1971); United States v. Marin, 444 F.2d 86 (1971); Duprez v. United States, 435 F.2d 1276 (1970); United States v. Sanchez-Mata, 429 F.2d 1391 (1970); United States v. Avey, 428 F.2d 1159 (1970); United States v. Miranda, 426 F.2d 283 (1970); and United States v. Elder, 425 F.2d 1002 (1970). See also Valenzuela-Garcia v. United States, 425 F.2d 1170 (1970), and Barba-Reyes v. United States, 387 F.2d 91 (1967).
8
E.g., Kelly v. United States, 197 F.2d 162 (1952). See also United States v. Bird, 456 F.2d 1023, 1024 (1972); Ramirez v. United States, 263 F.2d 385, 387 (1959); and Haerr v. United States, 240 F.2d 533, 535 (1957).
9
E.g., United States v. Anderson, 468 F.2d 1280 (1972); and United States v. McCormick, 468 F.2d 68 (1972).
10
Without having undertaken an exhaustive survey, in the 20 court of appeals cases I have noted, including the one before us, 35 different judges of the three Courts of Appeals found inspection of vehicles for illegal aliens without warrant or probable cause to be constitutional. Only one judge has expressed a different view.
11
The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR § 287.1 would pass constitutional muster. The possible invalidity of the regulation and of 8 U.S.C. § 1357(a)(3) in other circumstances is not at issue here.
| 01
|
413 U.S. 149
93 S.Ct. 2448
37 L.Ed.2d 522
Roland V. COLGROVE, Petitioner,v.James F. BATTIN, United States District Judge for the District of Montana.
No. 71—1442.
Argued Jan. 17, 1973.
Decided June 21, 1973.
Syllabus
Local federal court rule providing that a jury for the trial of civil cases shall consist of six persons comports with the Seventh Amendment requirement and the coextensive statutory requirement of 28 U.S.C. § 2072 that the right of trial by jury be preserved in suits at common law, and is not inconsistent with Fed.Rule Civ.Proc. 48 that deals only with parties' stipulations regarding jury size. Pp. 151—164.
456 F.2d 1379, affirmed.
Lloyd J. Skedd, Helena, Mont., for petitioner.
Gale Crowley for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Local Rule 13(d)(1) of the Revised Rules of Procedure of the United States District Court for the District of Montana provides that a jury for the trial of civil cases shall consist of six persons.1 When respondent District Court Judge set this diversity case for trial before a jury of six in compliance with the Rule, petitioner sought mandamus from the Court of Appeals for the Ninth Circuit to direct respondent to impanel a 12-member jury. Petitioner contended that the local Rule (1) violated the Seventh Amendment;2 (2) violated the statutory provision, 28 U.S.C. § 2072, that rules 'shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment . . .';3 and (3) was rendered invalid by Fed.Rule Civ.Proc. 83 because 'inconsistent with' Fed.Rule Civ.Proc. 48 that provides for juries of less than 12 when stipulated by the parties.4 The Court of Appeals found no merit in these contentions, sustained the validity of local Rule 13(d)(1), and denied the writ, 456 F.2d 1379 (1972). We granted certiorari, 409 U.S. 841, 93 S.Ct. 44, 34 L.Ed.2d 80 (1972). We affirm.
2
* In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Court sustained the constitutionality of a Florida statute providing for six-member juries in certain criminal cases. The constitutional challenge rejected in that case relied on the guarantees of jury trial secured the accused by Art. III, § 2, cl. 3, of the Constitution and by the Sixth Amendment.5 We expressly reserved, however, the question whether 'additional references to the 'common law' that occur in the Seventh Amendment might support a different interpretation' with respect to jury trial in civil cases. Id., at 92 n. 30, 90 S.Ct., at 1901. We conclude that they do not.
3
The pertinent words of the Seventh Amendment are: 'In Suits at common law . . . the right of trial by jury shall be preserved . . ..'6 On its face, this language is not directed to jury characteristics, such as size, but rather defines the kind of cases for which jury trial is preserved, namely, 'suits at common law.' And while it is true that '(w)e have almost no direct evidence concerning the intention of the framers of the seventh amendment itself,'7 the historical setting in which the Seventh Amendment was adopted highlighted a controversy that was generated, not by concern for preservation of jury characteristics at common law, but by fear that the civil jury itself would be abolished unless protected in express words. Almost a century and a half ago, this Court recognized that '(o)ne of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases.' Parsons v. Bedford, 3 Pet. 433, 445, 7 L.Ed. 732 (1830). But the omission of a protective clause from the Constitution was not because an effort was not made to include one. On the contrary, a proposal was made to include a provision in the Constitution to guarantee the right of trial by jury in civil cases but the proposal failed because the States varied widely as to the cases in which civil jury trial was provided, and the proponents of a civil jury guarantee found too difficult the task of fashioning words appropriate to cover the different state practices.8 The strong pressures for a civil jury provision in the Bill of Rights encountered the same difficulty. Thus, it was agreed that, with no federal practice to draw on and since state practices varied so widely, any compromising language would necessarily have to be general. As a result, although the Seventh Amendment achieved the primary goal of jury trial adherents to incorporate an explicit constitutional protection of the right of trial by jury in civil cases, the right was limited in general words to 'suits at common law.'9 We can only conclude, therefore, that by referring to the 'common law,' the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury.10 In short, what was said in Williams with respect to the criminal jury is equally applicable here: constitutional history reveals no intention on the part of the Framers 'to equate the constitutional and common-law characteristics of the jury.' 399 U.S., at 99, 90 S.Ct., at 1905.
4
Consistently with the historical objective of the Seventh Amendment, our decisions have defined the jury right preserved in cases covered by the Amendment, as 'the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure . . ..' Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636 (1935).11 The Amendment, therefore, does not 'bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791,' Galloway v. United States, 319 U.S. 372, 390, 63 S.Ct. 1077, 1087, 87 L.Ed. 1458 (1943); see also Ex parte Peterson, 253 U.S. 300, 309, 40 S.Ct. 543, 546, 64 L.Ed. 919 (1920); Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 596, 17 S.Ct. 421, 422, 41 L.Ed. 837 (1897), and '(n)ew devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. . . .' Ex parte Peterson, supra, 253 U.S. at 309—310, 40 S.Ct. at 546; Funk v. United States, 290 U.S. 371, 382, 54 S.Ct. 212, 215, 78 L.Ed. 369 (1933).
5
Our inquiry turns, then, to whether a jury of 12 is of the substance of the common-law right of trial by jury. Keeping in mind the purpose of the jury trial in criminal cases to prevent government oppression, Williams, 399 U.S., at 100, 90 S.Ct., at 1905, and, in criminal and civil cases, to assure a fair and equitable resolution of factual issues, Gasoline Products Co. v. Champlin Co., 283 U.S. 494, 498, 51 S.Ct. 513, 514, 74 L.Ed. 1188 (1931), the question comes down to whether jury performance is a function of jury size. In Williams, we rejected the notion that 'the reliability of the jury as a factfinder . . . (is) a function of its size,' 399 U.S., at 100—101, 90 S.Ct., at 1906, and nothing has been suggested to lead us to alter that conclusion. Accordingly, we think it cannot be said that 12 members is a substantive aspect of the right of trial by jury.
6
It is true, of course, that several earlier decisions of this Court have made the statement that 'trial by jury' means 'a trial by a jury of 12 . . ..' Capital Traction Co. v. Hof, 174 U.S. 1, 13, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899); see also American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897); Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900). But in each case, the reference to 'a jury of twelve' was clearly dictum and not a decision upon a question presented or litigated. Thus, in Capital Traction Co. of Hof, supra, the case most often cited, the question presented was whether a civil action brought before a justice of the peace of the District of Columbia was triable by jury, and that question turned on whether the justice of the peace was a judge empowered to instruct them on the law and advise them on the facts. Insofar as the Hof statement implied that the Seventh Amendment required a jury of 12, it was at best an assumption. And even if that assumption had support in common-law doctrine,12 our canvass of the relevant constitutional history, like the history canvassed in Williams concerning the criminal jury, 'casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law . . . then it was necessarily preserved in the Constitution.' 399 U.S., at 92 93, 90 S.Ct., at 1902. We cannot, therefore, accord the unsupported dicta of these earlier decisions the authority of decided precedents.13
7
There remains, however, the question whether a jury of six satisfies the Seventh Amendment guarantee of 'trial by jury.' We had no difficulty reaching the conclusion in Williams that a jury of six would guarantee an accused the trial by jury secured by Art. III and the Sixth Amendment. Significantly, our determination that there was 'no discernible difference between the results reached by the two different-sized juries,' 399 U.S., at 101, 90 S.Ct., at 1906, drew largely upon the results of studies of the operations of juries of six in civil cases.14 Since then, much has been written about the six-member jury, but nothing that persuades us to depart from the conclusion reached in Williams.15 Thus, while we express no view as to whether any number less than six would suffice,16 we conclude that a jury of six satisfies the Seventh Amendment's guarantee of trial by jury in civil cases.17
II
8
The statute, 28 U.S.C. § 2072, authorizes this Court to promulgate the Federal Rules of Civil Procedure but provides that '(s)uch rules . . . shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.'18 Petitioner argues that in securing trial by jury 'as at common law' and also 'as declared by the Seventh Amendment,' Congress meant to provide a jury having the characteristics of the common-law jury even if the Seventh Amendment did not require a jury with those characteristics. As the Court of Appeals observed, '(t)his would indeed be a sweeping limitation.' 456 F.2d, at 1380. Petitioner would impute to Congress an intention to saddle archaic and presently unworkable common-law procedures upon the federal courts19 and thereby to nullify innovative changes approved by this Court over the years that have now become commonplace and, for all practical purposes, 'essential to the preservation of the right' of trial by jury in our modern society. Ex parte Peterson, 253 U.S., at 310, 40 S.Ct., at 546; Galloway v. United States, 319 U.S., at 390—391, 63 S.Ct., at 1087. For to say that Congress chose this means to render our system of civil jury trial immutable as of 1791, or some other date, is to say the Congress meant to deny the judiciary the 'flexibility and capacity for growth and adaptation (which) is the peculiar boast and excellence of the common law.' Hurtado v. California, 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 L.Ed. 232 (1884); Funk v. United States, 290 U.S., at 382, 54 S.Ct., at 215.
9
But petitioner's extravagant contention has not the slightest support in the legislative history of the provision. Section 2072 is derived from the Enabling Act of 1934, 48 Stat. 1064.20 Section 2 of that Act gave this Court the 'power to unite the general rules prescribed . . . for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both.' H.R.Rep.No.1829, 73d Cong., 2d Sess., 1 (1934). As emphasized by the Court of Appeals, the language of § 2 preserving the right of trial by jury was included 'to assure that with such union (of law and equity) the right of trial by jury would be neither expanded nor contracted.' 456 F.2d, at 1381, citing 5 J. Moore, Federal Practice 38.06, p. 44 (2d ed. 1971). See also Cooley v. Strickland Transportation Co., 459 F.2d 779, 785 (CA5 1972). In other words, Congress used the language in question for the sole purpose of creating a statutory right coextensive with that under the Seventh Amendment itself.21 If Congress had meant to prescribe a jury number or to legislate common-law features generally, 'it knew how to use express language to that effect.' Williams v. Florida, 399 U.S., at 97, 90 S.Ct., at 1904.
III
10
Petitioner's argument that local Rule 13(d)(1)22 is inconsistent with Fed.Rule Civ.Proc. 48 rests on the proposition that Rule 48 implies a direction to impanel a jury of 12 in the absence of a stipulation of the parties for a lesser number. Rule 48 was drafted at the time the statement in Capital Traction Co. v. Hof, supra, that trial by jury means a 'jury of twelve,' was generally accepted. Plainly the assumption of the draftsmen that such was the case cannot be transmuted into an implied direction to impanel juries of 12 without regard to whether a jury of 12 was required by the Seventh Amendment. Our conclusion that the Hof statement lacks precedential weight leaves Rule 48 without the support even of the draftsmen's assumption and thus there is nothing in the Rule with which the local Rule is inconsistent.23 See Cooley v. Strickland Transportation Co., supra, 459 F.2d at 783—785; Devitt, The Six Man Jury in the Federal Court, 53 F.R.D. 273, 274 n. 1 (1971).
11
Similarly, we reject the argument that the local Rule conflicts with Rule 48 because it deprives petitioner of the right to stipulate to a jury of 'any number less than twelve.' Aside from the fact that there is no indication in the record that petitioner ever sought a jury of less than 12, Rule 48 'deals only with a stipulation by '(t)he parties.' It does not purport to prevent court rules which provide for civil juries of reduced size.' Cooley v. Strickland Transportation Co., supra, 459 F.2d at 784.
12
Affirmed.
13
Mr. Justice DOUGLAS, with whom Mr. Justice POWELL concurs, dissenting.
14
Rule 13(d)(1) of the Revised Rules of Procedure of the United States District Court for the District of Montana provides:
15
'A jury for the trial of civil cases shall consist of six persons . . ..'
16
Federal Rule Civ.Proc. 48—which came into being as a result of a recommendation of this Court to Congress which Congress did not reject*—rests on a federal statute.
17
The two Rules do not mesh; they collide. Rule 48 says that the only way to obtain a trial with less than 12 jurors or a verdict short of a unanimous one is by stipulation.
18
As Mr. Justice MARSHALL makes clear in his dissent, while the parties under Rule 48 could stipulate for trial by an 11-man jury, under the Montana District Court rule only six jurors could be required. Since all apparently agree that the framers of Rule 48 presumed there would be a jury of 12 in the absence of stipulation, the only authority which could reduce 12 to six would be the authority that created Rule 48. Neither we nor the District Court, nor the Judicial Congerence, nor a circuit court council has the authority to make that change.
19
Whether the change, if made, would be constitutional is a question I therefore do not reach.
20
Mr. Justice MARSHALL, with whom Mr. Justice STEWART joins, dissenting.
21
Some 30 years ago, Mr. Justice Black warned his Brethren against the 'gradual process of judicial erosion which . . . has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.' Galloway v. United States, 319 U.S. 372, 397, 63 S.Ct. 1077, 1090, 87 L.Ed. 1458 (1943) (dissenting opinion). Today, the erosion process reaches bedrock. In the past, this Court has sanctioned changes in 'mere matters of form or procedure' in jury trials, Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636 (1935), and in 'pleading or practice' before juries, Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 596, 17 S.Ct. 421, 422, 41 L.Ed. 837 (1897). But before today, we had always insisted that '(w)hatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys (a) substantial and essential feature thereof is one abridging the right.' American Publishing Co. v. Fisher, 166 U.S. 464, 468, 17 S.Ct. 618, 619, 41 L.Ed. 1079 (1897). See also Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935); Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899).
22
Now, however, my Brethren mount a frontal assault on the very nature of the civil jury as that concept has been understood for some seven hundred years. No one need be fooled by reference to the six-man trier of fact utilized in the District Court for the District of Montana as a 'jury.' This six-man mutation is no more a 'jury' than the panel of three judges condemned in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), or the 12 laymen instructed by a justice of the peace outlawed in Capital Traction Co. v. Hof, supra. We deal here not with some minor tinkering with the role of the civil jury, but with its wholesale abolition and replacement with a different institution which functions differently, produces different results,1 and was wholly unknown to the Framers of the Seventh Amendment.2
23
In my judgment, if such a radical restructuring of the judicial process is deemed wise or necessary, it should be accomplished by constitutional amendment. See, e.g., Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo.L.J. 120 (1962). It appears, however, that the common-law jury is destined to expire, not with a bang, but a whimper. The proponents of the six-man jury have not secured the approval of two-thirds of both Houses of Congress and three-fourths of the state legislatures for their proposal. Indeed, they have not even secured the passage of simple legislation to accomplish their goal. Instead, they have relied upon the interstitial rulemaking power of the majority of the district court judges sitting in a particular district to rewrite the ancient definition of a civil jury.3 They have done so, moreover, in the teeth of an Act of Congress and a Federal Rule promulgated by this Court which, in my judgment, were designed to guarantee the 12-man civil jury. By approving this mode of procedure, the Court turns the so-called 'clear statement' rule on its head. Instead of requiring a clear statement from Congress when it legislates at the limit of its constitutional powers, see, e.g., Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932), my Brethren approve a departure from settled constitutional understanding despite a clear statement from Congress that it intended no such thing. I must respectfully dissent.
24
* At the outset, it should be noted that the constitutional issue in this case is not settled by the prior decisions of this Court upholding nonunanimous and six-man criminal juries. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). This is true for at least three reasons.
25
First, Apodaca, Johnson, and Williams all involved state trials and, therefore, the requirements of the Fourteenth Amendment rather than the Sixth. This case is, of course, distinguishable in that it deals with a federal trial and, therefore, with Bill of Rights guarantees which are directly applicable, rather than applicable only through the incorporation process.4 Thus, neither Apodaca, Johnson nor Williams squarely presented the Court with the problem of defining the meaning of jury trial in a federal context.5 Indeed, as my Brother Powell's concurring opinion in Apodaca and Johnson makes plain, there were, as of last Term at least, five Members of this Court who thought that the Sixth Amendment required unanimous jury verdicts in federal cases. See also Johnson v. Louisiana, supra, 406 U.S. at 395, 92 S.Ct. at 1650 (Brennan, J., dissenting). Mr. Justice Powell argued in that opinion that 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.' Id., at 370 n. 6, 92 S.Ct., at 1637. He concluded that the Sixth Amendment required unanimous federal juries because '(a)t 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.' Id., at 371, 92 S.Ct., at 1638. See also Williams v. Florida, supra, 399 U.S., at 123—125, 90 S.Ct., at 1917—1919 (opinion of Harlan, J.). It is apparently uncontested that in 1791, common-law civil juries consisted of 12 men. See infra, at 177. Thus, to the extent that Sixth Amendment precedent is applicable to Seventh Amendment problems, Johnson and Apodaca would seem to cut strongly in favor of a 12-man jury requirement in federal court, rather than against such a requirement.
26
Moreover, even if it is assumed that the holdings in Apodaca, Williams, and Johnson are readily transferable to a federal context, it still does not follow that the definitions of trial by jury for purposes of the Sixth and Seventh Amendments are necessarily coextensive. The two Amendments use different language and they guarantee different rights. Indeed, as the Williams court itself recognized, the approval of six-man juries in criminal cases did not resolve 'whether, for example, additional references to the 'common law' that occur in the Seventh Amendment might support a different interpretation.' 399 U.S., at 92 n. 30, 90 S.Ct., at 1901.
27
The Court today goes to great lengths to show that the reference in the Seventh Amendment to 'Suits at common law' speaks only to the type of suit in which a jury is required, not to the type of jury which is required in such suits. However, my brethren totally ignore another textual difference between the Sixth and Seventh Amendments which I consider to be of at least equal significance. Whereas the Sixth Amendment refers only to 'an impartial jury,' the Seventh Amendment states that 'the right of trial by jury shall be preserved' (emphasis added). The Seventh Amendment's additional reference to the preservation of the right strongly suggests that the content of that right is to be judged by historical standards.
28
Certainly, that has been this Court's understanding in the past. In Dimick v. Schiedt, for example, the Court held that the Seventh Amendment 'in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791,' 293 U.S., at 487, 55 S.Ct., at 301, and the dissent agreed that the purpose of the Seventh Amendment was 'to preserve the essentials of the jury trial as it was known to the common law before the adoption of the Constitution.' Id., at 490, 55 S.Ct., at 303. In Baltimore & Carolina Line, Inc. v. Redman, the Court held that the 'right of trial by jury thus preserved (by the Seventh Amendment) is the right which existed under the English common law when the amendment was adopted.' 295 U.S., at 657, 55 S.Ct., at 891. And in American Publishing Co. v. Fisher, the Court held that what was guaranteed by the Seventh Amendment was 'the peculiar and essential features of trial by jury at the common law.' 166 U.S., at 468, 17 S.Ct., at 619. It should therefore be clear, that whereas the words of the Sixth Amendment might be read as permitting a functional approach which measures 'Sixth Amendment values,' the Seventh Amendment requires a historical analysis geared toward determination of what the institution was in 1791 which the Framers intended to 'preserve.' See also Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879 (1913); Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899).
29
Finally, it is important to note that, whereas the legislative history of the Sixth Amendment tended to support the Court's decision in favor of six-man criminal juries, it is at best ambiguous in the Seventh Amendment context. As the Court pointed out in Williams, the Sixth Amendment as originally introduced by James Madison in the House provided '(t)he trial of all crimes . . . shall be 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) (emphasis added). The Amendment passed the House in this form, but when it reached the Senate, that body expressly rejected the 'accustomed requisites' language, see Senate Journal, Sept. 9, 1789, 1st Cong., 1st Sess., 77, and the Amendment as ultimately adopted contained no reference to the common-law features of jury trial.
30
In contrast, the history of the Seventh Amendment contains no express rejection of language which would fix the common-law attributes of the civil jury. Indeed, as the Court itself recognizes, the extant history of the Amendment is exceedingly sketchy. See generally Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289 (1966). Undeterred by the absence of source material, however, my Brethren concoct an elaborate theory designed to demonstrate that the Framers did not intend to fix the nature of the civil jury as it existed at common law. As I read the majority opinion, the theory is based on the following syllogism:
31
1. The delegates to the Constitutional Convention considered a clause which would have protected the right to a civil jury, but declined to adopt such a provision because state practice varied widely as to the cases in which a civil jury was provided.
32
2. When the Seventh Amendment was passed, Congress overrode the arguments of those opposed to a constitutional jury guarantee and decided to provide a federal right of jury trial despite differences between the States as to when jury rights attached.
33
3. Therefore, in the words of the Court '(w)e can only conclude . . . that . . . the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury.'
34
It hardly requires demonstration that this 'logic' rests on the flimsiest of inferences. It simply does not follow that because the Amendment was, at one stage rejected because of disparities among the States in the instances in which the jury right attached, its scope is therefore limited to the surmounting of these disparities. Indeed, the opposite conclusion is equally plausible. One could argue that, whereas there was dispute as to the cases in which the jurytrial right would attach, it was common ground between opponents and proponents of the measure that when it did attach, its incidents would be as at common law. Thus, whatever the meaning of the Amendment as to jury usage, the nature of the jury is, by this argument, at its core and agreed to by all parties.
35
Moreover, even if the Court's chain of reasoning were correct, the argument would still fall, since it is grounded on a faulty major premise. True, the opponents of a jury guarantee at the Constitutional Convention rested their argument in part on the varying practice in the States as to the cases in which the right of jury trial attached. But a more detailed examination of the debates than the Court's highly selective quotations permit makes clear that the opponents also rested on the differences in the characteristics of jury trial between the States. Thus, when a jury guarantee was first proposed, Mr. Gorham, one of the principal drafters of the Constitution, argued against the proposal, stating: 'It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.' 2 M. Farrand, Records of the Federal Convention 587 (1911) (hereinafter cited as Farrand). But when the proposal came to a final vote, Mr. Gorham made a somewhat different argument: 'The constitution of Juries is different in different States.' Id., at 628 (emphasis added). Similarly, while at one stage James Wilson defended the absence of a jury requirement on the ground that '(t)he cases open to a jury, differed in different states,' 3 Farrand 101, he also made a quite different argument:
36
'By the constitution of the different States, it will be found that no particular mode of trial by jury could be discovered that would suit them all. The manner of summoning jurors, their qualifications, of whom they should consist, and the course of their proceedings, are all different, in the different States; and I presume it will be allowed a good general principle, that in carrying into effect the laws of the general government by the judicial department, it will be proper to make the regulations as agreeable to the habits and wishes of the particular States as possible; and it is easily discovered that it would have been impracticable, by any general regulation, to have given satisfaction to all.' 3 Farrand 164.
37
Thus, it is clear that opponents of a of the English common law, and are to with the differing rules for when juries were required among the States, but also with the differing content of the jury right itself.6 To the extent that anything at all can be inferred from the rejection of these arguments, it follows by the Court's own chain of reasoning that the Framers intended to override state differences as to both the cases in which a jury right would attach and the characteristics of the jury itself.
38
I should hasten to add that I do not mean to embrace that chain of reasoning. In fact, as indicated above, I view the legislative history as far too fragmentary to support any firm conclusion. But I would have thought that the very uncertainty of the legislative history would support a mode of analysis which looked to the jury as it existed at the time the Seventh Amendment was written in order to determine the intent of the Framers. As Mr. Justice Harlan argued:
39
'(I)t is common sense and not merely the blessing of the Framers that explains this Court's frequent reminders that: 'The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the Emglish common law, and are to be read in the light of its history.' Smith v. Alabama, 124 U.S.
40
465, 478, 8 S.Ct. 564, 31 L.Ed. 508 (1888). This proposition was again put forward by Mr. Justice Gray speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), where the Court was called upon to define the term 'citizen' as used in the Constitution. 'The Constitution nowhere defines the meaning of these words (the Citizenship Clause) . . .. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.' 169 U.S., at 654, 18 S.Ct., at 459. History continues to be a wellspring of constitutional interpretation. Indeed, history was even invoked by the Court in such decisions as Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), where it purported to interpret the constitutional provision for habeas corpus according to the 'historic conception of the writ' and took note that the guarantee was one rooted in common law and should be so interpreted. Cf. United States v. Brown, 381 U.S. 437, 458, 85 S.Ct. 1707, 1720, 14 L.Ed.2d 484 (1965).' Williams v. Florida, 399 U.S., at 123—124, 90 S.Ct., at 1918.
41
When a historical approach is applied to the issue at hand, it cannot be doubted that the Framers envisioned a jury of 12 when they referred to trial by jury. It is true that at the time the Seventh Amendment was adopted, jury usage differed in several respects among the States. See generally Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289 (1966). But, for the most part at least, these differences did not extend to jury size which seems to have been uniform and, indeed, had remained so for centuries. One authority has noted that as early as 1164, the Constitutions of Clarendon provided that 'where, in the case of a layman so rich and powerful that no individual dares to appear against him, 'the sheriff shall cause twelve legal men of the neighborhood, or of the vill, to take an oath in the presence of the bishop that they will declare the truth about it." Wells, The Origin of the Petit Jury, 27 L.Q.Rev. 347 (1911). As Professor Scott wrote, 'At the beginning of the thirteenth century twelve was indeed the usual but not the invariable number. But by the middle of the fourteenth century the requirement of twelve had probably become definitely fixed. Indeed this number finally came to be regarded with something like superstitious reverence.' A. Scott, Fundamentals of Procedure in Actions at Law 75—76 (1922) (footnotes omitted). See also 1 W. Holdworth, A History of English Law 324—325 (7th ed. 1956).
42
To be sure, not every element of English common law was carried over without change in the Colonies. In the case of jury trial, however, 'in general this venerable and highly popular institution was adopted in the colonies in its English form at an early date.' Reinsch, The English Common Law in the Early American Colonies, in 1 Select Essays in Anglo-American Legal History 412 (1907). As the Court concluded in Williams v. Florida, '(t)he States that had adopted Constitutions by the time of the Philadelphia Convention in 1787 appear for the most part to have either explicitly provided that the jury would consist of 12, see Va.Const. of 1776, § 8, in 7 F. Thorpe, Federal and State Constitutions 3813 (1909), or to have subsequently interpreted their jury trial provisions to include that requirement.' 399 U.S., at 98—99 n. 45, 90 S.Ct., at 1905.7
43
On the basis of this historical record, this Court has more than once concluded that the Seventh Amendment guarantees the preservation of 12-man juries.
44
As the Court, speaking through Mr. Justice Gray, said in Capital Traction Co. v. Hof,
45
"Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is . . . a trial by a jury of 12 men before an officer vested with authority to cause them to be summoned and empaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict . . .. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books.' 174 U.S., at 13—14, 19 S.Ct., at 585.
46
Cf. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900); American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897); Springville v. Thomas, 166 U.S. 707, 17 S.Ct. 717, 41 L.Ed. 1172 (1897).
47
The Court today elects to abandon the certainty of this historical test, as well as the many cases which support it, in favor of a vaguely defined functional analysis which asks not what the Framers meant by 'trial by jury' but rather whether some substitute for the commonlaw jury performs the same functions as a jury and serves as an adequate substitute for one. It is true that some of our prior cases support a functional approach to an evaluation of procedural innovations which surround jury trials. The Court has in the past upheld such devices as jury interrogatories and reports of special masters as not interfering with the functioning of a commonlaw jury. See, e.g., Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920); Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837 (1897). But see Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). But I know of no prior case which has utilized a functional analysis to evaluate the very composition of the civil jury.
48
I submit that the reason for the absence of such cases derives from the inherent nature of the problem. It is possible to determine in a principled fashion whether the appurtenances which surround a jury interfere with the essential functioning of that institution. One can evaluate whether additur, for example, or directed verdicts interfere with the jury's role as it existed at common law. See, e.g., Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943); Dimick v. Schiedt, supra. But the composition of the jury itself is a matter of arbitrary, a priori definition. As Mr. Justice Harlan argued '(t)he right to a trial by jury . . . has no enduring meaning apart from historical form.' Williams v. Florida, 399 U.S., at 125, 90 S.Ct., at 1919 (separate opinion).
49
It is senseless, then, to say that a panel of six constitutes a 'jury' without first defining what one means by a jury, and that initial definition must, in the nature of things, be arbitrary. One could, of course, define the term 'jury' as being a body of six or more laymen. But the line between five and six would then be just as arbitrary as the line between 11 and 12. There is no way by reference to abstract principle or 'function' that one can determine that six is 'enough,' five is 'too small,' and 30 'too large.'8 These evaluations can only be made by reference to a hypothetical ideal jury of some arbitrarily chosen size. All one can say is that a jury of six functions less like a jury of 12 than would a jury of, say eight, but more like a jury of 12 than would a jury of three.9 Although I think it clear that my Brethren would reject, for example, a jury of one, the Court does not begin to tell us how it would go about drawing a line in a nonarbitrary fashion, and it is obvious that in matters of degree of ths kind, nonarbitrary line drawing is a logical impossibility.
50
Of course, there is nothing intrinsically wrong with drawing arbitrary lines and, indeed, as argued above, in order to resolve certain problems they are essential. Thus, this Court has not hesitated in the past to rely on arbitrary demarcations in cases where constitutional rights depend on matters of degree. See, e.g., Burns v. Fortson, 410 U.S. 686, 93 S.Ct. 1209, 35 L.Ed.2d 633 (1973). But in cases where arbitrary lines are necessary, I would have thought it more consonant with our limited role in a constitutional democracy to draw them with reference to the fixed bounds of the Constitution rather than on a wholly ad hoc basis.
51
I think history will bear out the proposition that when constitutional rights are grounded in nothing more solid than the intuitive, unexplained sense of five Justices that a certain line is 'right' or 'just,' those rights are certain to erode and, eventually, disappear altogether. Today, a majority of this Court may find six-man juries to represent a proper balance between competing demands of expedition and group representation. But as dockets become more crowded and pressures on jury trials grow, who is to say that some future Court will not find three, or two, or one a number large enough to satisfy its unexplicated sense of justice? It should be clear that constitutional rights which are so vulnerable to pressures of the moment are not really protected by the Constitution at all. As Mr. Justice Black never tired of arguing, 'the accordion-like qualities of this philosophy must inevitably imperil all the individual liberty safeguards specifically enumerated in the Bill of Rights.' Rochin v. California, 342 U.S. 165, 177, 72 S.Ct. 205, 212, 96 L.Ed. 183 (1952) (Black, J., concurring). See also Duncan v. Louisiana, 391 U.S. 145, 169, 88 S.Ct. 1444, 1457, 20 L.Ed.2d 491 (1968) (Black, J., concurring).
52
Since some definition of 'jury' must be chosen, I would therefore rely on the fixed bounds of history which the Framers, by drafting the Seventh Amendment, meant to 'preserve.' I agree with Mr. Justice Powell's observation in the Sixth Amendment context that determining the content of the right to jury trial should involve a 'careful evaluation of, and strict adherence to the limitations on, that right as it was known . . . at common law.' Johnson v. Louisiana, 406 U.S., at 370 n. 6, 92 S.Ct., at 1637 n. 6 (separate opinion). It may well be that the number 12 is no more than a 'historical accident' and is 'wholly without significance 'except to mystics." Williams v. Florida, supra, 399 U.S., at 102, 90 S.Ct., at 1907. But surely there is nothing more significant about the number six, or three, or one. The line must be drawn somewhere, and the difference between drawing it in the light of history and drawing it on an ad hoc basis is, ultimately, the difference between interpreting a constitution and making it up as one goes along.
II
53
The arbitrary nature of the line which must be drawn in determining permissible jury size highlights another anomaly in the Court's opinion. Normally, in our system we leave the inevitable process of arbitrary line drawing to the Legislative Branch, which is far better equipped to make and hoc compromises. In the past, we have therefore given great deference to legislative decisions in cases where the line must be drawn somewhere and cannot be precisely delineated by reference to principle. This Court has involved itself in the sticky business of separating cases along a continuum only when the Constitution clearly compels it to do so and when the legislature has plainly defaulted.
54
Today, the Court turns this practice inside out. It rejects what I take to be a clearly articulated legislative decision—a decision, incidentally, which is fully consonant with constitutional requirements—in order to draw its own arbitrary line. It does so, moreover, without any explanation for why it finds the legislative determination unsatisfactory and, indeed, with barely and explanation at all.
A.
55
Title 28 U.S.C. § 2072 requires that the Rules of Civil Procedure promulgated by this Court 'shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.' As the Court recognizes, this requirement is made applicable to local rules of procedure by 28 U.S.C. § 2071, which requires that '(s)uch rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.'
56
The Court's treatment of this statutory requirement is, to say the least, peculiar. When explicating the Seventh Amendment, my Brethren hold that the Framers intended to govern only the types of trials in which the jury right attaches rather than to fix the commonlaw characteristics of the jury. Their reason for reaching this conclusion is that the Seventh Amendment, by its terms, guarantees the right to a jury trial '(i)n suits at common law' and not as it existed at common law. This language, the Court says, 'is not directed to jury characteristics, such as size, but rather defines the kind of cases for which jury trial is preserved, namely, 'suits at common law." Supra, at 152. This argument from the language of the Seventh Amendment is fair enough, although for the reasons given in the preceding section, I find it ultimately unpersuasive. But what, then, are we to say when interpreting a provision which guarantees jury trials, not 'in suits at common law,' but 'as at common law'? By the Court's own reasoning, it would seem that this phrase should be read to guarantee the preservation of jury characteristics as they existed at common law.
57
Uninhibited by the seeming restraints of its own logic, however, my Brethren proceed to read this phrase to preserve juries in cases tried at common law in the face of the merger of law and equity. But if we are again to take the Court at its own word, this in precisely the result achieved by the Seventh Amendment of its own force. There is, of course, a well-recognized canon of construction which requires courts to read statutory provisions so that, when possible, no part of the statute is superfluous. See, e.g., 2 J. Sutherland, Statutes and Statutory Construction § 4705 (3d ed. 1943), and cases cited therein. Yet the Court's reading of this statute creates not just a redundancy, but a double redundancy. If the framers of § 2072 had intended merely to preserve jury trials in cases at common law, then no statute at all would have been necessary since, as the Court recognizes, the Seventh Amendment by itself is sufficient to accomplish this purpose. Yet Congress not only passed a statute—it adopted a provision securing trial by jury both 'as declared by the Seventh Amendment' and 'as at common law.' If one accepts for the moment the Court's premise that the Seventh Amendment preserves only the right to juries in common-law cases, Congress' addition of the phrase 'as at common law' is explicable only if the legislature also intended to protect jury characteristics from change.
58
My Brethren chose to reject this clear meaning of the statute and to read it instead in a manner which not only makes it redundant but also, as demonstrated in the previous section, raises the gravest constitutional questions. Yet the only argument I can discern for reaching this result is the Court's stated reluctance to 'saddle archaic and presently unworkable common-law procedures upon the federal courts.' With all respect, I had not thought it our function to determine which statutory requirements are 'archaic' and 'unworkable' and to enforce only those which we find to be efficient and up to date. The Court asserts that '(i)f Congress had meant to prescribe . . . commonlaw features (for juries) . . . 'it knew how to use express language to that effect." But I, for one, would be hard pressed to think of language which more expressly guarantees the jury's common-law features than the statement that the right of trial by jury shall be preserved 'as at common law.' So long as this is the command of Congress, I had thought it our duty to obey, no matter how 'archaic' and 'unworkable' the statutory requirement.
B
59
Nor is the statute the end of the matter. Federal Rule Civ.Proc. 48 provides in relevant part that '(t)he parties may stipulate that the jury shall consist of any number less than twelve.' It hardly need be demonstrated that this provision is flatly inconsistent with local Rule 13(d)(1). The number 11, for example, falls within the class of 'any number less than twelve,' so that Rule 48 requires that the parties be permitted to stipulate to a jury of 11. Yet the local rule, which requires that '(a) jury for the trial of civil cases shall consist of six persons' clearly would not permit a jury of 11, even if the parties stipulated to such a jury.
60
The Court's contention that Rule 48 'deals only with a stipulation by '(t)he parties" and 'does not purport to prevent court rules which provide for civil juries of reduced size,' supra, at 164, therefore passes my understanding. It is true enough that Rule 48 deals with stipulations by the parties, but it expressly says that the court rules must permit such stipulations so long as the number stipulated is 'any number less than twelve.' Since the numbers seven through 11 are numbers less than 12, and since the local rule does not permit stipulations of these numbers, the two rules are in conflict and the local rule must therefore fall. See 28 U.S.C. § 2071; Fed.Rule Civ.Proc. 83.
61
Of course, rule 48 does not on its face guarantee a jury of 12. That function is arguably performed by Rule 38(a) which provides that '(t)he right of trial by jury was declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.' But as the Court itself recognizes, the framers of Rule 48 clearly presupposed a jury of 12 in the absence of stipulation. Indeed, there is no way to make sense of a provision which permits stipulations of any number less than 12 unless one assumes that in the absence of a stipulation, the jury would consist of 12. I am thus once again at a loss to understand why the Court strains to escape the plain intention of the Rule's drafters in order to wrestle with grave constitutional questions that could easily have been avoided.
III
62
It might appear to some anomalous after Williams to hold that 12-man civil juries are constitutionally required in federal cases. As Judge Wisdom has argued, '(w)hatever one considers the role of a civil jury and whatever importance attaches to that role, . . . no one has ever contended that the function of the civil jury is more important than that of the criminal jury.' Cooley v. Strickland Transportation Co., 459 F.2d 779, 781 (5 Cir. 1972).
63
There is, of course, force to that point and a certain rudimentary logic to the proposition that if a man is entitled to a jury of only six when his very liberty is at stake, he should not be entitled to more when mere property hangs in the balance. But our function is limited to interpreting the Constitution. We are not empowered to decide as a matter of policy the cases in which 12-man juries should be guaranteed. As argued above, our prior decision on jury size arose in the state context and involved interpretation of a different constitutional provision. That decision simply does not require that we approve six-man federal juries in civil cases. As Mr. Justice Sutherland observed almost 40 years ago when the common-law jury was under attack from a different source, 'this court in a very special sense is charged with the duty of construing and upholding the Constitution; and in the discharge of that important duty, it ever must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land.' Dimick v. Schiedt, 293 U.S., at 485, 55 S.Ct., at 300.
64
I find that response dispositive. The Constitution is, in the end, a unitary, cohesive document and every time any piece of it is ignored or interpreted away in the name of expedience, the entire fragile endeavor of constitutional government is made that much more insecure. This observation is as pertinent to the Seventh Amendment as it is to the First, or Fourteenth, or any other part of the Constitution. Indeed, as the Dimick court held, '(m)aintenance of the jury as a fact-fnding body is of such importance and occupies so firm a place in our histoy and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.' Id., at 486, 55 S.C., at 301. In my judgment, my Brethren have not given this curtailment of the jury right the careful scrutiny which the problem demands. I must, therefore, respectfully dissent.
65
Mr. Justice POWELL, dissenting.
66
I share the view of Mr. Justice DOUGLAS that local Rule 13(d)(1) is incompatible with the Federal Rules of Civil Procedure, and this would require a reversal of the present case. Accordingly I do not reach the constitutional issue under the Seventh Amendment which is addressed by Mr. Justice BRENNAN and Mr. Justice MARSHALL in their scholarly opinions, supra, at 149 and 166. Cf. Johnson v. Louisiana, 406 U.S. 356, 366—380, 92 S.Ct. 1620, 1635—1643, 32 L.Ed.2d 152 (1972) (opinion of Powell, J.).
1
Rule 13(d)(1) provides:
'A jury for the trial of civil cases shall consist of six persons plus such alternate jurors as may be impaneled.'
Similar local rules have been adopted by 54 other federal district courts, at least as to some civil cases. See the appendix to Fisher, The Seventh Amendment and the Common Law: No Magic in Numbers, 56 F.R.D. 507, 535—542 (1973) (the District Court of Delaware has since adopted a rule effective January 1, 1973). In addition, two bills were introduced in the 92d Congress to reduce to six the number of jurors in all federal civil cases. H.R. 7800, 92d Cong., 1st Sess. (1971); H.R. 13496, 92d Cong., 2d Sess. (1972). H.R. 7800, insofar as it related to civil juries, has received the approval of the Committee on the Operation of the Jury System of the Judicial Conference of the United States. 1971 Annual Report of the Director of the Administrative Office of the United States Courts 41. That Conference itself at its March 1971 meeting endorsed 'in principle' a reduction in the size of civil juries. Ibid.
2
The Seventh Amendment provides:
'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.'
State court decisions have usually turned on the interpretation of state constitutional provisions. See Ann., 47 A.L.R.3d 895 (1973).
3
Title 28 U.S.C. § 2072 provides:
'The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts and courts of appeals of the United States in civil actions . . ..
'Such rules shall not abridge, enlarge or modify and substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.'
4
Fed.Rule Civ.Proc. 48 provides:
'The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.'
Fed.Rule Civ.Proc. 83 provides:
'Each district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules. . . . In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.'
5
Art. III, § 2, cl. 3, provides:
'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.'
The Sixth Amendment provides:
'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.'
6
The reference to 'common law' contained in the second clause of the Seventh Amendment is irrelevant to our present inquiry because it deals exclusively with the prohibition contained in that clause against the indirect impairment of the right of trial by jury through judicial reexamination of factfindings of a jury other than as permitted in 1791. Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636 (1935); Parsons v. Bedford, 3 Pet. 433, 447 448, 7 L.Ed. 732 (1830); 5 J. Moore, Federal Practice 38.08(5), pp. 86—90 (2d ed. 1971).
7
Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289, 291 (1966).
8
See 2 M. Farrand, Records of the Federal Convention 587 (1911). See also Henderson, supra, n. 7, at 292—294.
The question of a provision for the protection of the right to trial by jury in civil cases apparently was not presented at the Constitutional Convention until a proposed final draft of the Constitution was reported out of the Committee on Style and Arrangement. At that point, Mr. Williamson of North Carolina 'observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.' 2 Farrand, supra, at 587. This provoked the following discussion:
'Mr. Gorham. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.
'Mr. Gerdy urged the necessity of Juries to guard (against) corrupt Judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by Juries.
'Col. Mason perceived the difficulty mentioned by Mr. Gorham. The jury cases cannot be specified. A general principle laid down on this and some other points would be sufficient. He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose . . ..' Ibid.
Three days later, a proposal was made by Mr. Gerry and Mr. Pinckney to add the following language to the Art. III guarantee of trial by jury in criminal cases: 'And a trial by jury shall be pre-
served as usual in civil cases.' This proposal prompted the following reaction:
'Mr. Gorham. The constitution of Juries is different in different States and the trial itself is usual in different cases in different States.
'Mr. King urged the same objections.
'Genl. Pinckney also. He thought such a clause in the Constitution would be pregnant with embarrassments.
'The motion was disagreed to nem. con.' Id., at 628.
James Wilson of Pennsylvania defended the omission at the Pennsylvania Convention convened to ratify the Constitution:
'The cases open to a jury, differed in the different states; it was therefore impracticable, on that ground, to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless: and it could not, with any propriety, be said, that 'the trial by jury shall be as heretofore:' since there has never existed any foederal system of jurisprudence, to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions: For causes depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in the courts of equity, do not require the intervention of that tribunal. How, then, was the line of discrimination to be drawn? The convention found the task too difficult for them; and they left the business as it stands—in the fullest confidence, that no danger could possibly ensue, since the proceedings of the supreme court are to be regulated by the congress, which is a faithful representation of the people: and the oppression of government is effectually barred, by declaring that in all criminal cases, the trial by jury shall be preserved.' 3 M. Farrand, Records of the Federal Convention 101 (1911).
A proponent of a guarantee responded:
'The second and most important objection to the federal plan, which Mr. Wilson pretends to be made in a disingenuous form, is the entire abolition of the trial by jury in civil cases. It seems to me that Mr. Wilson's pretended answer is much more disingenuous than the objection itself . . .. He says, 'that the cases open to trial by jury differing in the different States, it was therefore impracticable to have made a general rule.' This answer is extremely futile, because a reference might easily have been made to the com-
mon law of England, which obtains through every State, and cases in the maritime and civil law courts would, of course, be excepted. . . .' Quoted in Henderson, supra, n. 7, at 296—297. See also 1 J. Elliot, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution (2d ed. 1836).
9
That the words 'common law' were used merely to establish a general rule of trial by jury in civil cases was the view of Mr. Justice Story in the discussion in his Commentaries of the Seventh Amendment and the Judiciary Act of 1789:
'The phrase, 'common law,' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared, in the third article, 'that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority,' &c., and 'to all cases of admiralty and maritime jurisdiction.' It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find, that the amendment requires, that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that the distinction was present to the minds of the framers of the amendment. By common law they meant, what the constitution denominated in the third article 'law' . . .. And congress seem to have acted with reference to this exposition in the judiciary act of 1789, ch. 20, (which was contemporaneous with the proposal of this amendment;) . . ..' 3 J. Story, Commentaries on the Constitution of the United States 645—646 (1833).
10
Constitutional history does not reveal a single instance where concern was expressed for preservation of the traditional number 12. Indeed, James Wilson of Pennsylvania, a member of the Constitutional Convention and later a Justice of this Court, stated: 'When I speak of juries, I feel no peculiar predilection for the number twelve . . ..' 2 The Works of James Wilson 503 (R. McCloskey ed. 1967).
11
See also Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 671 (1918):
'Although the incidents of trial by jury which existed at the time of the adoption of the constitutional guaranty are not thereby abolished, yet those incidents are not necessarily made unalterable. Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential, a question which is necessarily, in the last analysis, one of degree. The question, it is submitted, should be approached in a spirit of open-mindedness, of readiness to accept any changes which do not impair the fundamentals of trial by jury. It is a question of substance, not of form.'
12
Although Williams proceeded on the premise that the common-law jury was composed of 12 members, juries of less than 12 were common in this country throughout colonial times. See the cases and statutes cited in Fisher, supra, n. 1, at 529—532.
13
See Devitt, The Six Man Jury in the Federal Court, 53 F.R.D. 273, 274 (1971); Augelli, Six-Member Juries in Civil Actions in the Federal Judicial System, 3 Seton Hall L.Rev. 281, 285 (1972); Croake, Memorandum on the Advisability and Constitutionality of Six Man Juries and 5/6 Verdicts in Civil Cases, 44 N.Y. State B.J. 385 (WD La.u972). See also Leger v. Westinghouse Electric Corp., D.C., 54 F.R.D. 574 (1972); contra, Winsby v. John Oster Mfg. Co., 336 F.Supp. 663 (WD Pa.1972).
14
Williams v. Florida, 399 U.S. 78, 101 n. 48, 90 S.Ct. 1893, 1906 n. 48, 26 L.Ed.2d 446 (1970).
15
Arguments, pro and con, on the effectiveness of a jury of six compared to a jury of 12 will be found in Devitt, supra, n. 13; Augelli, supra, n. 13; Croake, supra, n. 13; Fisher, supra, n. 1; Bogue & Fritz, The Six-Man Jury, 17 S.D.L.Rev. 285 (1972); Moss, The Twelve Member Jury in Massachusetts—Can it be Reduced?, 56 Mass.L.Q. 65 (1971); Zeisel, . . . And Then There Were None: The Diminution of the Federal Jury, 38 U.Chi.L.Rev. 710 (1971); Zeisel, The Waning of the American Jury, 58 A.B.A.J. 367 (1972); Gibbons, The New Minijuries: Panacea or Pandora's Box?, 58 A.B.A.J. 594 (1972); Kaufman, The Harbingers of Jury Reform, 58 A.B.A.J. 695 (1972); Whalen, Remarks on Resolution of 7th Amendment Jury Trial Requirement, 54 F.R.D. 148 (1972); Note, Right to Twelve-Man Jury, 84 Harv.L.Rev. 165 (1970); Note, Reducing the Size of Juries, 5 U.Mich.J.L. Reform 87 (1971); Note, The Effect of Jury Size on the Probability of Conviction: An Evaluation of Williams v. Florida, 22 Case W.Res.L.Rev. 529 (1971); Comment, Defendant's Right to a Jury Trial—Is Six Enough?, 59 Ky.L.J. 997 (1971).
Professor Zeisel has suggested that the six-member jury is more limited than the 12-member jury in representing the full spectrum of the community, and this in turn may result in differences between the verdicts reached by the two panels. Zeisel, supra, 38 U.Chi.L.Rev., at 716—719.
On the other hand, one study suggests that the decrease in the size of the jury from 12 to six is conductive to a more open discussion among the jurors, thereby improving the quality of the deliberative process. Note, supra, 5 U.Mich.J.L. Reform, at 99 106. See also C. Joiner, Civil Justice and the Jury 31, 83 (1962) (concluding prior to Williams that the deliberative process should be the same in either six- or 12-member juries).
In addition, four very recent studies have provided convincing empirical evidence of the correctness of the Williams conclusion that 'there is no discernible difference between the results reached by the two different-sized juries.' Note, Six-Member and Twelve-Member Juries: An Empirical Study of Trial Results, 6 U.Mich.J.L. Reform 671 (1973); Institute of Judicial Administration, A Comparison of Six- and Twelve-Member Civil Juries in New Jersey Superior and County Courts (1972); Note, An Empirical Study of Six- and Twelve-Member Jury Decision-Making Processes, 6 U.Mich.J.L. Reform 712 (1973); Barmant & Coppock, Outcomes of Six- and Twelve-Member Jury Trials: An Analysis of 128 Civil Cases in the State of Washington, 48 Wash.L.Rev. 593 (1973).
16
What is required for a 'jury' is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community. Williams v. Florida, 399 U.S., at 100, 90 S.Ct., at 1905. It is undoubtedly true that at some point the number becomes too small to accomplish these goals, but, on the basis of presently available data, that cannot be concluded as to the number six. See Tamm, A Proposal for Five-Member Civil Juries in the Federal Courts, 50 A.B.A.J. 162 (1964); Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo.L.J. 120 (1962).
17
My Brother MARSHALL argues in dissent that the various incidents of trial by jury as they existed at common law are immutably saved by the Seventh Amendment's use of the word 'preserved.' But obviously the Amendment commands only that the right of trial by jury be 'preserved.' Since a jury of 12 is, as has been shown, not of the substance of the common-law right of trial by jury and since there is 'no discernible difference between the results reached by the two different-sized juries,' Williams v. Florida, supra, 399 U.S., at 101, 90 S.Ct., at 1906, the use of a six-member civil jury does not impair the right 'preserved' by the Seventh Amendment. Indeed, as my Brother MARSHALL himself recognizes, infra, at 179, several devices designed to improve the jury system and unknown to the common law have been approved by this Court over the years. See also Henderson, supra, n. 7; Scott, supra, n. 11. In each case, the determining factor was that the new device did not impair the right preserved by the Seventh Amendment. As Mr. Justice Brandeis aptly stated in response to the argument that a federal court was prevented by the Seventh Amendment from utilizing a special master because it would infringe upon the right of trial by jury:
'The command of the Seventh Amendment that 'the right of trial by jury shall be preserved' . . . does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right. The limitation imposed by the amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with.' Ex parte Peterson, 253 U.S. 300, 309—310, 40 S.Ct. 543, 546, 64 L.Ed. 919 (1920).
18
Section 2072 is in terms applicable only to the general Federal Rules of Civil Procedure prescribed by this Court. However, 28 U.S.C. § 2071, which authorizes federal district courts to prescribe local rules of practice and procedure, see Part III, infra, requires such rules to be 'consistent with Acts of Congress' as well as the general Federal Rules. Thus, if § 2072 prohibits a jury of less than 12, the local rule in question would conflict with an Act of Congress and would therefore be invalid. See 3A W. Barron & A. Holtzoff, Federal Practice and Procedure § 1171, p. 179 (C. Wright ed. 1958).
19
See Henderson, supra, n. 7; Scott, supra, n. 11.
20
See 5 J. Moore, Federal Practice 38.06 (2d ed. 1971). The pertinent provisions of the Enabling Act of 1934 were carried forward by the codifying act of 1948, 62 Stat. 961, and later became § 2072 of the Judicial Code, 28 U.S.C. § 1 et seq. Section 2072 has been amended several times since 1947, but none of the amendments is relevant to our present discussion.
21
Cf. Sibbach v. Wilson & Co., 312 U.S. 1, 10, 61 S.Ct. 422, 425, 85 L.Ed. 479 (1941): 'The second (proviso of the Enabling Act of 1934) is that if the rules are to prescribe a single form of action for cases at law and suits in equity, the constitutional right to jury trial inherent in the former must be preserved.'
22
This Rule was adopted pursuant to Fed.Rule Civ.Proc. 83, which in turn is derived from 28 U.S.C. § 2071:
'The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.'
23
An amicus that the local Rule is invalid under our decision in Miner v. Atlass, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960). That argument is misplaced. Miner struck down a local rule authorizing discovery-deposition practice in admiralty cases. A court of admiralty had
no inherent power, independent of statute or rule to order the taking of depositions for the purpose of discovery. In 1939, this Court omitted this 'basic procedural innovation' from among the Civil Rules adopted as part of the Admiralty Rules. Miner held that this omission 'must be taken as an advertent declination of the opportunity to institute the discovery-deposition procedure of Civil Rule 26(a) throughout courts of admiralty,' id., at 648, 80 S.Ct., at 1305, and therefore, for this and additional reasons stated in the opinion, that the local rule 'is not consistent with the present General Admiralty Rules . . ..' Id., at 647, 80 S.Ct., at 1304. In contrast, we hold in this case that Local Rule 13(d)(1) is not inconsistent with Fed.Rule Civ.Proc. 48.
Amicus also suggests that Miner should be read to hold that all 'basic procedural innovations' are beyond local rulemaking power and are exclusively matters for general rulemaking. We need not consider the suggestion because, in any event, we conclude that the requirement of a six-member jury is not a 'basic procedural innovation.' The 'basic procedural innovations' to which Miner referred are those aspects of the litigatory process which bear upon the ultimate outcome of the litigation and thus, 'though concededly procedural,' may be of as great importance to litigants as many as 'substantive' doctrine . . ..' 363 U.S., at 650, 80 S.Ct., at 1305. Since there has been shown to be 'no discernible difference between the results reached by the two different-sized juries,' Williams v. Florida, supra, 309 U.S. at 101, 90 S.Ct., at 1906 (see also n. 15, supra), a reduction in the size of the civil jury from 12 to six plainly does not bear on the ultimate outcome of the litigation.
*
At the time the Rules of Civil Procedure became effective they had to be submitted to Congress by the Court and Congress had 90 days to reject them. 28 U.S.C. § 2072. At that time § 2072 provided that these Rules 'shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.' It seems clear beyond peradventure that the draftsmen thought a jury of 12 was required, save as the parties by stipulation waived that right by stipulating to a lesser number.
1
Although I consider it ultimately irrelevant to the constitutional issue, see infra, at 180, it is still of some interest that variations in jury size do seem to produce variations in function and result. It is, of course, intuitively obvious that the smaller the size of the jury, the less likely it is to represent a fair cross-section of community viewpoints. What is less obvious but nonetheless statistically demonstrable is that the difference between a 12-man and six-man jury in this respect is quite dramatic and likely to produce different results. Professor Zeisel, perhaps our leading authority on the civil jury, has demonstrated this fact through use of a model in which he assumes that 90% of a hypothetical commnnity shares the same viewpoint, while 10% has a different viewpoint. Of 100 12-man juries picked randomly from such a community, 72 would have at least one member of the minority group, while of the 100 six-man juries so selected, only 47 would have minority representation. Moreover, the differences in minority representation produce significant differences in result. Professor Zeisel posits a case in which the community is divided into six groups of equal size with respect to the monetary value they place on a given personal injury claim, with one-sixth evaluating the claim at $1,000, another sixth at $2,000, etc. He also assumes that the damages a jury will award lie close to the average assessment of the damages each individual juror would choose. If one accepts these hypotheses, '(i)t is easy to see that the six-member juries show a considerably wider variation of 'verdicts' than the twelve-member juries. For instance, 68.4% of the twelve-member jury evaluations fall between $3,000 and $4,000, while only 51.4% of the six-member jury evaluations fall in this range. Almost 16% of the six-member juries will reach verdicts that will fall into the extreme levels of more than $4,500 or less than $2,500, as against only a little over 4% of the twelve-member juries. The appropriate statistical measure of this variation is the so-called standard deviation. The actual distribution pattern will always depend on the kind of stratification that is relevant in a particular case but, whatever the circumstances, the six-member jury will always have a standard deviation that is greater by about 42%. This is the result of a more general principle that is by now well known to readers of such statistics as public opinion polls—namely, that the size of any sample is inversely related to its margin of error.' Zeisel, . . . And Then There Were None: The Diminution of the Federal Jury, 38 U.Chi.L.Rev. 710, 717—718 (1971).
2
See infra, at 176—177.
3
Even in the absence of constitutional difficulties. I view this course as an improper use of the local rulemaking power. In Miner v. Atlass, we held that the statutory procedures surrounding the rulemaking process were 'designed to insure that basic procedural innovations shall be introduced only after mature consideration of informed opinion from all relevant quarters, with all the opportunities for comprehensive and integrated treatment which such consideration affords.' 363 U.S. 641, 650, 80 S.Ct. 1300, 1306, 4 L.Ed.2d 1462 (1960). We therefore declined to construe the local rulemaking power as extending to such innovations. Ibid. The Court seeks to escape the force of this precedent with the assertion that 'the requirement of a six-member jury is not a 'basic procedural innovation." I find this statement startling to say the least. Whatever one's view of the constitutionality of six-man juries, surely it cannot be doubted that this shift in a practice of seven hundred years' standing, likely to affect the outcome of hundreds of cases, see n. 1, supra, and infra, at 177, constitutes a 'basic procedural innovation.'
4
Indeed, the Seventh Amendment is one of the few remaining provisions in the Bill of Rights which has not been held to be applicable to the States. See, e.g., Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co., 284 U.S. 151, 158, 52 S.Ct. 69, 71, 79 L.Ed. 214 (1931); Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226, 232, 43 S.Ct. 589, 591, 67 L.Ed. 961 (1923).
5
The author of this opinion believes that the Fourteenth Amendment was intended to incorporate fully Sixth Amendment guarantees. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Nonetheless, the fact remains that this Court has yet to decide the issues posed by majority verdicts and six-man juries in a purely Sixth Amendment context.
6
See also George Washington's contemporaneous explanation in a letter to Lafayette for the absence of a jury guarantee ('(I)t was only the difficulty of establishing a mode which should not interfere with the fixed modes of any of the States, that induced the Convention to leave it, as a matter of future adjustment') 3 Farrand 298; and Edmund Randolph's explanation to the Virginia Convention ('I will risk my property on the certainty, that (Congress) will institute the trial by jury in such manner as shall accommodate the conveniences of the inhabitants of every state: the difficulty of ascertaining this accommodation, was the principal cause of its not being provided for') 3 Farrand 309.
7
I do not mean to suggest that isolated experiments with juries of different sizes cannot be found in colonial history. Indeed, when one considers the number of jurisdictions and the span of time involved, it would be surprising if there were no aberrations. Some scholars have argued from the few cases involving juries consisting of more or less than 12 that there was no common-law requirement
as to jury size in the Colonies. See, e.g., Fisher, The Seventh Amendment and the Common Law: No Magic in Numbers, 56 F.R.D. 507 (1973). In fact, however, the cases cited for this proposition seem to constitute no more than the exceptions which prove the rule.
Fisher, for example, bases his thesis on the fact that Maryland used a jury of 10 in one case in 1682 and a jury of 11 in another case that year and that Delaware used juries of 11, 7, and 13 in three cases tried between 1676 and 1705. See id., at 530. But when one remembers that thousands of civil and criminal cases were tried during the prerevolutionary period, these five apparently isolated instances prove virtually nothing. Similarly, South Carolina's provision for a jury of less than 12 in the 'Court for the Trial of Slaves and Persons of Color,' ibid., was obviously limited to the peculiar circumstance of persons who, at that time, were considered to be without civil rights of any kind. Fisher's reliance on petitions from the citizens of Anson, Orange, and Rowan Counties for juries of less than 12, ibid., is unaccountable since these petitions were in fact rejected and the smaller juries never impaneled. See id., at 530—531 n. 87.
Fisher's final example is particularly revealing. Just prior to the Revolution, New Jersey passed an act providing for six-man juries in small-court cases. Id., at 531. The law was challenged in the case of Holmes v. Walton, in 1780, in which the defendant argued 'the jury sworn to try the above cause and on whose verdict judgment was entered, consisted of six men only, when by the laws of the land it should have consisted of twelve men.' Id., at 532 n. 88. The New Jersey Supreme Court rejected this argument and upheld the verdict. A scant month later, however, the New Jersey Legislature reversed this decision and reinstituted the right to 12-man juries. See ibid.
8
The Court asserts that '(w)hat is required for a 'jury' is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community.' See supra, at 160 n. 16. We can bypass for the moment the intriguing question of where the majority finds this requirement in the words of the Seventh Amendment. For our purposes, it is sufficient to note that, upon examination, this 'test' turns out to be no test at all. It may be that the ideal jury would provide 'enough' group deliberation and community representation. But the question in this case is how much is 'enough.' Obviously, the larger the jury the more group representation it will provide. See n. 1, supra. Merely observing that a certain level of group representation is constitutionally required fails to tell us what that level is. And, more significantly, it fails to tell us how to go about deciding what that level is.
9
It thus will not do to argue as has my Brother White, that one 'can get off the 'slippery slope' before he reaches the bottom. . . .' Williams v. Florida, 399 U.S. 78, 91 n. 28, 90 S.Ct. 1893, 1901, 26 L.Ed.2d 446 (1970). This begs the question how one knows at what point to get off—a question for which the Court apparently has no answer.
| 89
|
413 U.S. 139
93 S.Ct. 2674
37 L.Ed.2d 513
UNITED STATES, Appellant,v.George Joseph ORITO.
No. 70—69.
Argued Jan. 19, 1972.
Reargued Nov. 7, 1972.
Decided June 21, 1973.
Syllabus
Appellee was charged with knowingly transporting obscene material by common carrier in interstate commerce, in violation of 18 U.S.C. § 1462. The District Court granted his motion to dismiss, holding the statute unconstitutionally overbroad for failing to distinguish between public and nonpublic transportation. Appellee relies on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. Held: Congress has the power to prevent obscene material, which is not protected by the First Amendment, from entering the stream of commerce. The zone of privacy that Stanley protected does not extend beyond the home. See United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446. This case is remanded to the District Court for reconsideration of the sufficiency of the indictment in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; United States v. 12 200-Ft. Reels of Film, supra, and this opinion. Pp. 141—145.
338 F.Supp. 308, vacated and remanded.
R. Kent Greenawalt, New York City, for appellant.
Solicitor Gen. Erwin N. Griswold for appellant on reargument.
James M. Shellow, Milwaukee, Wis., for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Appellee Orito was charged in the United States District Court for the Eastern District of Wisconsin with a violation of 18 U.S.C. § 14621 in that he did 'knowingly transport and carry in interstate commerce from San Francisco . . . to Milwaukee . . . by means of a common carrier, that is, Trans-World Airlines and North Central Airlines, copies of (specified) obscene, lewd, lascivious, and filthy materials . . ..' The materials specified included some 83 reels of film, with as many as eight to 10 copies of some of the films. Appellee moved to dismiss the indictment on the ground that the statute violated his First and Ninth Amendment rights.2 The District Court granted his motion, holding that the statute was unconstitutionally overbroad since it failed to distinguish between 'public' and 'non-public' transportation of obscene material. The District Court interpreted this Court's decisions in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), to establish the proposition that 'non-public transportation' of obscene material was constitutionally protected.3
2
Although the District Court held the statute void on its face for overbreadth, it is not clear whether the statute was held to be overbroad because it covered transportation intended solely for the private use of the transporter, or because, regardless of the intended use of the material, the statute extended to 'private carriage' or 'nonpublic' transportation which in itself involved no risk of exposure to children or unwilling adults. The United States brought this direct appeal under former 18 U.S.C. § 3731 (1964 ed.) now amended, Pub.L. 91—644, § 14(a), 84 Stat. 1890. See United States v. Spector, 343 U.S. 169, 171, 72 S.Ct. 591, 593, 96 L.Ed. 863 (1952).
3
The District Court erred in striking down 18 U.S.C. § 1462 and dismissing appellee's indictment on these 'privacy' grounds. The essence of appellee's contentions is that Stanley has firmly established the right to possess obscene material in the privacy of the home and that this creates a correlative right to receive it, transport it, or distribute it. We have rejected that reasoning. This case was decided by the District Court before our decisions in United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), and United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). Those holdings negate the idea that some zone of constitutionally protected privacy follows such material when it is moved outside the home area protected by Stanley.4 United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408 (opinion of White, J.). United States v. Reidel, supra, 402 U.S., at 354—356, 91 S.Ct., at 1411—1412. See United States v. Zacher, 332 F.Supp. 883, 885—886 (ED Wis.1971). But cf. United States v. Thirty-Seven Photographs, supra, 402 U.S., at 379, 91 S.Ct., at 1409 (Stewart, J., concurring).
4
The Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education. See Eisenstadt v. Baird, 405 U.S. 438, 453—454, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, supra, 381 U.S., at 486, 85 S.Ct., at 1682; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). But viewing obscene films in a commercial theater open to the adult public, see Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 65—67, 93 S.Ct. 2628, at 2639—2640, 37 L.Ed.2d 446 (1973), or transporting such films in common carriers in interstate commerce, has no claim to such special consideration.5 It is hardly necessary to catalog the myriad activities that may be lawfully conducted within the privacy and confines of the home, but may be prohibited in public. The Court has consistently rejected constitutional protection for obscene material outside the home. See United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, at 126—129, 93 S.Ct. 2665, at 2668—2669, 37 L.Ed.2d 500; Miller v. California, 413 U.S. 15, at 23, 93 S.Ct. 2607, at 2614, 37 L.Ed.2d 419; United States v. Reidel, supra, 402 U.S., at 354 356, 91 S.Ct., at 1411—1412 (opinion of White, J.); id., at 357 360, 91 S.Ct., at 1413—1414 (Harlan, J., concurring); Roth v. United States, 354 U.S. 476, 484—485, 77 S.Ct. 1304, 1308—1309, 1 L.Ed.2d 1498 (1957).
5
Given (a) that obscene material is not protected under the First Amendment, Miller v. California, supra; Roth v. United States, supra, (b) that the Government has a legitimate interest in protecting the public commercial environment by preventing such material from entering the stream of commerce, see Paris Adult Theatre I, supra, 413 U.S., at 57—64, 93 S.Ct., at 2635—2639, and (c) that no constitutionally protected privacy is involved, United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408 (opinion of White, J.), we cannot say that the Constitution forbids comprehensive federal regulation of interstate transportation of obscene material merely because such transport may be by private carriage, or because the material is intended for the private use of the transporter. That the transporter has an abstract proprietary power to shield the obscene material from all others and to guard the material with the same privacy as in the home is not controlling. Congress may regulate on the basis of the natural tendency of material in the home being kept private and the contrary tendency once material leaves that area, regardless of a transporter's professed intent. Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material, based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure could cause. See Paris Adult Theatre I v. Slaton, supra, 413 U.S., at 57—63, 93 S.Ct., at 2635—2638. See also United States v. Alpers, 338 U.S. 680, 681—685, 70 S.Ct. 352, 353—355, 94 L.Ed. 457 (1950); Brooks v. United States, 267 U.S. 432, 436—437, 45 S.Ct. 345, 346, 69 L.Ed. 699 (1925); Weber v. Freed, 239 U.S. 325, 329 330, 36 S.Ct. 131, 132, 60 L.Ed. 308 (1915). 'The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control. McCray v. United States, 195 U.S. 27, (24 S.Ct. 769) 49 L.Ed. 78; Sonzinsky v. United States, 300 U.S. 506, 513, (57 S.Ct. 554) 555, 81 L.Ed. 772 and cases cited.' United States v. Darby, 312 U.S. 100, 115, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941). 'It is sufficient to reiterate the well-settled principle that Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature.' North American Co. v. SEC, 327 U.S. 686, 705, 66 S.Ct. 785, 796, 90 L.Ed. 945 (1946).6
6
As this case came to us on the District Court's summary dismissal of the indictment, no determination of the obscenity of the material involved has been made. Today, for the first time since Roth v. United States, supra, we have arrived at standards accepted by a majority of this Court for distinguishing obscene material unprotected by the First Amendment, from protected free speech. See Miller v. California, supra, 413 U.S., at 23—24, 93 S.Ct. at 2614—2615; United States v. 12 200-Ft. Reels of Super 8mm. Film, supra, 413 U.S., at 130 n. 7, 93 S.Ct., at 2670 n. 7. The decision of the District Court is therefore vacated and the case is remanded for reconsideration of the sufficiency of the indictment in light of Miller v. California, supra; United States v. 12 200-Ft. Reels, supra, and this opinion.
7
Vacated and remanded.
8
Mr. Justice DOUGLAS, dissenting.
9
We held in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, that an individual reading or examining 'obscene' materials in the privacy of his home is protected against state prosecution by reason of the First Amendment made applicable to the States by reason of the Fourteenth. We said:
10
'These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as 'obscene' is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.' Id., at 565, 89 S.Ct., at 1248.
11
By that reasoning a person who reads an 'obscene' book on an airline or bus or train is protected. So is he who carries an 'obscene' book in his pocket during a journey for his intended personal enjoyment. So is he who carries the book in his baggage or has a trucking company move his household effects to a new residence. Yet 18 U.S.C. § 1462* makes such interstate carriage unlawful. Appellee therefore moved to dismiss the indictment on the ground that § 1462 is so broad as to cover 'obscene' material designed for personal use.
12
The District Court granted the motion, holding that § 1462 was overbroad and in violation of the First Amendment.
13
The conclusion is too obvious for argument, unless we are to overrule Stanley. I would abide by Stanley and affirm the judgment dismissing the indictment.
14
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
15
We noted probable jurisdiction to consider the constitutionality of 18 U.S.C. § 1462, which makes it a federal offense to '(bring) into the United States, or any place subject to the jurisdiction thereof, or knowingly (use) any express company or other common carrier, for carriage in interstate or foreign commerce—(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character.' Appellee was charged in a one-count indictment with having knowingly transported in interstate commerce over 80 reels of allegedly obscene motion picture film. Relying primarily on our decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the United States District Court for the Eastern District of Wisconsin dismissed the indictment, holding the statute unconstitutional on its face:
16
'To prevent the pandering of obscene materials or its exposure to children or to unwilling adults, the government has a substantial and valid interest to bar the non-private transportation of such materials. However, the statute which is now before the court does not so delimit the government's prerogatives; on its face, it forbids the transportation of obscene materials. Thus, it applies to non-public transportation in the absence of a special governmental interest. The statute is thus overbroad, in violation of the first and ninth amendments, and is therefore unconstitutional.' 338 F.Supp. 308, 311 (ED Wis.1970).
17
Under the view expressed in my dissent today in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446, it is clear that the statute before us cannot stand. Whatever the extent of the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face. See my dissent in Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 2627, 37 L.Ed.2d 419, I would therefore affirm the judgment of the District Court.
1
Title 18 U.S.C. § 1462 provides in pertinent part:
'Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
'(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motionpicture film, paper, letter, writing, print, or other matter of indecent character; . . .
'Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.'
2
Appellee also moved to dismiss the indictment on the grounds that 18 U.S.C. § 1462 does not require proof of scienter. That issue was not reached by the District Court and is not before us now.
3
The District Court stated:
'By analogy, it follows that with the right to read obscene matters comes the right to transport or to receive such material when done in a fashion that does not pander it or impose it upon unwilling adults or upon minors.
I find no meaningful distinction between the private possession which was held to be protected in Stanley and the nonpublic transportation which the statute at bar proscribes.' 338 F.Supp. 308, 310 (1970).
4
'These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home.' Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969). (Emphasis added.)
5
The Solicitor General indicates that the tariffs of most, if not all, common carriers include a right of inspection. Resorting to common carriers, like entering a place of public accommodation, does not involve the privacies associated with the home. See United States v. Thirty-Seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 L.Ed.2d 822 (1971) (opinion of White, J.); United States v. Reidel, 402 U.S. 351, 359—360, 91 S.Ct. 1410, 1414, 28 L.Ed.2d 813 (1971) (Harlan, J., concurring); Poe v. Ullman, 367 U.S. 497, 551—552, 81 S.Ct. 1752, 1781, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting); Miller v. United States, 431 F.2d 655, 657 (CA9 1970); United States v. Melvin, 419 F.2d 136, 139 (CA4 1969).
6
'Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin. In doing this it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce. . . . In the Lottery Case, 188 U.S. 321, (23 S.Ct. 321) 47 L.Ed. 492, it was held that Congress might pass a law punishing the transmission of lottery tickets from one state to another, in order to prevent the carriage of those tickets to be sold in other states and thus demoralize, through a spread of the gambling habit, individuals who were liekly to purchase. . . . In Hoke v. United States, 227 U.S. 308, (33 S.Ct. 281) 57 L.Ed. 523 and Caminetti v. United States, 242 U.S. 470, (37 S.Ct. 192) 61 L.Ed. 442, the so-called White Slave Traffic Act, which was construed to punish any person engaged in enticing a woman from one state to another for immoral ends, whether for commercial purposes or otherwise, was valid because it was intended to prevent the use of interstate commerce to facilitate prostitution or concumbinage, and other forms of immorality. . . . In Weber v. Freed, 239 U.S. 325, (36 S.Ct. 131) 60 L.Ed. 308 it was held that Congress had power to prohibit the importation of pictorial representations of prize fights designed for public exhibition, because of the demoralizing effect of such exhibitions in the state of destination.' Brooks v. United States, 267 U.S. 432, 436—437, 45 S.Ct. 345, 346, 69 L.Ed. 699 (1925).
*
'Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
'(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character.'
| 23
|
413 U.S. 405
93 S.Ct. 2507
37 L.Ed.2d 688
NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES et al., Appellants,v.Dolores DUBLINO et al. ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES et al., Appellants, v. Dolores DUBLINO et al.
Nos. 72—792, 72—802.
Argued April 17—18, 1973.
Decided June 21, 1973.
Syllabus
The 1967 amendments to the Social Security Act included the Federal Work Incentive Program (WIN), designed to help individuals on welfare become wage-earning members of society. The States were required to incorporate this program into their Aid to Families With Dependent Children (AFDC) program, to provide that certain 'employable' individuals, as a condition for receiving aid, shall register for manpower services, training, and employment. In 1971 New York enacted provisions of its Social Welfare Law, commonly referred to as the New York Work Rules, which similarly required cooperation by employable individuals to continue to receive assistance. Appellees, New York public assistance recipients subject to the Work Rules, challenge those Rules as having been pre-empted by the WIN provisions of the Social Security Act. The three-judge District Court ruled that 'for those in the AFDC program, WIN pre-empts the New York Work Rules.' Held:
1. The WIN provisions of the Social Security Act do not pre-empt the New York Work Rules of the New York Social Welfare Law. Pp. 412—423.
(a) There is no substantial evidence that Congress intended, either expressly or impliedly, to pre-empt state work programs. More is required than the apparent comprehensiveness of the WIN legislation to show the 'clear manifestation of (congressional) intention' that must exist before a federal statute is held 'to supersede the exercise' of state action. Schwartz v. Texas, 344 U.S. 199, 202—203, 73 S.Ct. 232, 234—235, 97 L.Ed. 231. Pp. 412 417.
(b) Affirmative evidence exists to establish Congress' intention not to terminate all state work programs and foreclose future state cooperative programs: WIN is limited in scope and application; it is a partical program, with state supplementation, as illustrated by New York; and the Department of Health, Education, and Welfare, responsible for administering the Social Security Act, has never considered WIN as pre-emptive. Pp. 417 421.
(c) Where coordinate state and federal efforts exist within a complementary administrative framework in the pursuit of common purposes, as here, the case for federal pre-emption is not persuasive. Pp. 421—422.
2. The question of whether some particular sections of the Work Rules might contravene the specific provisions of the Social Security Act is not resolved, but is remanded to the District Court for consideration. Pp. 422—423.
348 F.Supp. 290, reversed and remanded.
Jean M. Coon, Albany, N.Y., for appellants.
Dennis R. Yeager, New York City, for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
The question before us is whether the Social Security Act of 1935, 49 Stat. 620, as amended, bars a State from independently requiring individuals to accept employment as a condition for receipt of federally funded aid to families with dependent children. More precisely, the issue is whether that part of the Social Security Act known as the Federal Work Incentive Program (WIN) pre-empts the provisions of the New York Social Welfare Law, McKinney's Consol. Laws, c. 55, commonly referred to as the New York Work Rules. A brief description of both the state and federal programs will be necessary.
2
The Work Rules were enacted by New York in 19711 as part of Governor Rockefeller's efforts to reorganize the New York Welfare Program. Their aim, as explained by the Governor, is to encourage 'the young and able-bodied, temporarily in need of assistance through no fault of their own, to achieve the education and the skills, the motivation and the determination that will make it possible for them to become increasingly self-sufficient, independent citizens who can contribute to and share in the responsibility for their families and our society.'2
3
To achieve this, the Work Rules establish a presumption that certain recipients of public assistance are employable3 and require those recipients to report every two weeks to pick up their assistance checks in person; to file every two weeks a certificate from the appropriate public employment office stating that no suitable employment opportunities are available; to report for requested employment interviews; to report to the public employment office the result of a referral for employment; and not to fail willfully to report for suitable employment, when available. In addition to establishing a system of referral for employment in the private sector of the economy, the Work Rules permit the establishment of public works projects in New York's social service districts.4 Failure of 'employable' persons to participate in the operation of the Work Rules results in a loss of assistance.5
4
Like the Work Rules, WIN is designed to help individuals on welfare 'acquire a sense of dignity, self-worth, and confidence which will flow from being recognized as a wage-earning member of society . . .', 42 U.S.C. § 630 (1970 ed., Supp. I). The program was enacted as part of the 1967 amendments to the Social Security Act,6 whereby States were required to incorporate WIN into their Aid to Families With Dependent Children (AFDC) plans. 42 U.S.C. §§ 602(a) (19), 630 et seq. (1970 ed. and Supp. I). Every state AFDC plan must provide that certain 'employable' individuals, as a condition for receiving aid, shall register for manpower services, training, and employment under regulations promulgated by the Secretary of Labor. 42 U.S.C. § 602(a)(19)(A) (1970 ed., Supp. I).7 Available services, to be provided by the State, must include 'such health, vocational rehabilitation, counseling, child care, and other social and supportive services as are necessary to enable such individuals to accept employment or receive manpower training . . ..' 42 U.S.C. § 602(a)(19) (G) (1970 ed., Supp. I) After the required services have been provided, the State must certify to the Secretary of Labor those individuals who are ready for employment or training programs, 42 U.S.C. §§ 602(a)(19)(G), 632, 633 (1970 ed. and Supp. I).8 Employment consists both of work in the regular economy and participation in public service programs. 42 U.S.C. §§ 630, 632, 633 (1970 ed. and Supp. I). As with the Work Rules, cooperation in WIN is necessary for employable individuals to continue to receive assistance.
5
In the court below, appellees, New York public assistance recipients subject to the Work Rules, challenged those Rules as violative of several provisions of the Constitution and as having been pre-empted by the WIN provisions of the Federal Social Security Act. The three-judge District Court rejected all but the last contention. 348 F.Supp. 290 (WDNY 1972). On this point, it held that 'for those in the AFDC program, WIN preempts'9 the New York Work Rules. Id., at 297.10 As this holding not only affected the continued operation of the New York Rules but raised serious doubts as to the viability of the supplementary work programs in 22 States, we set the cause for argument, 409 U.S. 1123, 93 S.Ct. 940, 35 L.Ed.2d 255 (1973).11 We now reverse this holding.
6
* The holding of the court below affects the Work Rules only insofar as they apply to AFDC recipients. 348 F.Supp., at 297, 300 and n. 5. New York's Home Relief program, for example—a general state assistance plan for which there is no federal reimbursement or support12—remains untouched by the court's pre-emption ruling. As to AFDC participants, however, the decision below would render the Work Rules inoperative and hold WIN 'the exclusive manner of applying the carrot and stick' in efforts to place such recipients in gainful employment. Id., at 300.13
7
This is a sweeping step that strikes at the core of state prerogative under the AFDC program—a program which this Court has been careful to describe as a 'scheme of cooperative federalism.' King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 2123, 20 L.Ed.2d 1118 (1968); Dandridge v. Williams, 397 U.S. 471, 478, 90 S.Ct. 1153, 1158, 25 L.Ed.2d 491 (1970); Jefferson v. Hackney, 406 U.S. 535, 542, 92 S.Ct. 1724, 1729, 32 L.Ed.2d 285 (1972). It could impair the capacity of the state government to deal effectively with the critical problem of mounting welfare costs and the increasing financial dependency of many of its citizens. New York has a legitimate interest in encouraging those of its citizens who can work to do so, and thus contribute to the societal well-being in addition to their personal and family support. To the extent that the Work Rules embody New York's attempt to promote self-reliance and civic responsibility, to assure that limited state welfare funds be spent on behalf of those genuinely incapacitated and most in need, and to cope with the fiscal hardships enveloping many state and local governments, this Court should not lightly interfere. The problems confronting our society in these areas are severe, and state governments, in cooperation with the Federal Government, must be allowed considerable latitude in attempting their resolution.
8
This Court has repeatedly refused to void state statutory programs, absent congressional intent to pre-empt them.
9
'If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed.' Schwartz v. Texas, 344 U.S. 199, 202—203, 73 S.Ct. 232, 235, 97 L.Ed. 231 (1952).
10
See also Brotherhood of Locomotive Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 429, 86 S.Ct. 594, 597, 15 L.Ed.2d 501 (1966); Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 817, 4 L.Ed.2d 852 (1960); Mintz v. Baldwin, 289 U.S. 346, 350, 53 S.Ct. 611, 613, 77 L.Ed. 1245 (1933); Savage v. Jones, 225 U.S. 501, 533, 32 S.Ct. 715, 725, 56 L.Ed. 1182 (1912).
11
This same principle relates directly to state AFDC programs, where the Court already has acknowledged 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, supra, at 318—319 of 392 U.S., at 2134 of 88 S.Ct.; Dandridge v. Williams, supra, at 478 of 397 U.S., at 1158 of 90 S.Ct.; Jefferson v. Hackney, supra, at 541 of 406 U.S., at 1729 of 92 S.Ct. Moreover, at the time of the passage of WIN in 1967, 21 States already had initiated welfare work requirements as a condition of AFDC eligibility.14 If Congress had intended to pre-empt state plans and efforts in such an important dimension of the AFDC program as employment referrals for those on assistance, such intentions would in all likelihood have been expressed in direct and unambiguous language. No such expression exists, however, either in the federal statute or in the committee reports.15
12
Appellees argue, nonetheless, that Congress intended to pre-empt state work programs because of the comprehensive nature of the WIN legislation, its legislative history,16 and the alleged conflicts between certain sections of the state and federal laws.17 We do not agree. We reject, to begin with, the contention that pre-emption is to be inferred merely from the comprehensive character of the federal work incentive provisions, 42 U.S.C. §§ 602(a)(19), 630 et seq. (1970 ed. and Supp. I). The subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem, cf. Askew v. American Waterways, 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973). Given the complexity of the matter addressed by Congress in WIN, a detailed statutory scheme was both likely and appropriate, completely apart from any questions of pre-emptive intent. This would be especially the case when the federal work incentive provisions had to be sufficiently comprehensive to authorize and govern programs in States which had no welfare work requirements of their own as well as cooperatively in States with such requirements.
13
Appellees also rely, as did the District Court, on the legislative history as supporting the view that 'the WIN legislation is addressed to all AFDC recipients, leaving no employable recipients to be subject to state work rules.' Brief for Appellees 29. The court below pointed to no specific legislative history as supportive of its conclusion. Appellees do cite fragmentary statements which we find unpersuasive. Reliance is placed, for example, on a statement in the Report of the House Ways and Means Committee on the WIN legislation as follows:
14
'Under your committee's bill, States would be required to develop a program for each appropriate relative and dependent child which would assure, to the maximum extent possible, that each individual would enter the labor force in order to become self-sufficient. To accomplish this, the States would have to assure that each adult in the family and each child over age 16 who is not attending school is given, when appropriate, employment counseling, testing, and job training.' H.R.Rep.No.544, 90th Cong., 1st Sess., at 16 (1967).18 (Emphasis supplied.)
15
At best, this statement is ambiguous as to a possible congressional intention to supersede all state work programs.19 'Appropriateness,' as used in the Committee Report, may well mean 'appropriateness' solely within the scope and confines of WIN. Furthermore, the language employed by Congress in enacting WIN must be considered in conjunction with its operational scope and level of funding, which, as will be shown, is quite limited with respect to the total number of employable AFDC recipients, Part II, infra.
16
In sum, our attention has been directed to no relevant argument which supports, except in the most peripheral way, the view that Congress intended, either expressly or impliedly, to pre-empt state work programs. Far more would be required to show the 'clear manifestation of (congressional) intention' which must exist before a federal statute is held 'to supersede the exercise' of state action. Schwartz v. Texas 344 U.S., at 202—203, 73 S.Ct., at 234—235.
II
17
Persuasive affirmative reasons exist in this case which also strongly negate the view that Congress intended, by the enactment of the WIN legislation, to terminate all existing state work programs and foreclose additional state cooperative programs in the future. We note, firstT hat WIN itself was not designed on its face to be all embracing. Federal work incentive programs were to be established only in States and political subdivisions
18
'in which (the Secretary of Labor) determines there is a significant number of individuals who have attained age 16 and are receiving aid to families with dependent children. In other political subdivisions, he shall use his best efforts to provide such programs either within such subdivisions or through the provision of transportation for such persons to political subdivisions of the State in which such programs are established.' 42 U.S.C. § 632(a) (1970 ed., Supp. I).
19
This section constitutes an express recognition that the federal statute probably would be limited in scope and application.20 In New York, this has meant operation of WIN in only 14 of New York's 64 social service districts, though these 14 districts do service approximately 90% of the welfare recipients in the State. Yet the Secretary of Labor has not authorized additional WIN programs for the other districts, resulting in a lack of federal job placement opportunities in the more lightly populated areas of States and in those without adequate transportation of potential enrollees to districts with WIN programs.21
20
Even in the districts where WIN does operate, its reach is limited. In New York, according to federal estimates, there are 150,000 WIN registrants for the current fiscal year, but the Secretary of Labor has contracted with the State to provide services to only 90,000 registrants, of whom the majority will not receive full job training and placement assistance.22 In fiscal 1971, New York asserts that '17,511 individuals were referred for participation in the WIN Program, but the Federal government allowed only 9,600 opportunities for enrollment.'23 California claims 'over 122,000 employable AFDC recipients' last year, but only 18,000 available WIN slots.24
21
It is evident that WIN is a partial program which stops short of providing adequate job and training opportunities for large numbers of state AFDC recipients. It would be incongruous for Congress on the one hand to promote work opportunities for AFDC recipients and on the other to prevent States from undertaking supplementary efforts toward this very same end. We cannot interpret federal statutes to negate their own stated purposes. The significance of state supplementation is illustrated by the experience in New York, where the Work Rules have aided the objectives of federal work incentives: from July 1 through September 30, 1971, the first months of the Work Rules' operation, the State Employment Service claimed job placements for approximately 9,376 recipients.25
22
Moreover, the Department of Health, Education, and Welfare, the agency of Government responsible for administering the Federal Social Security Act—including reviewing of state AFDC programs—has never considered the WIN legislation to be pre-emptive. HEW has followed consistently the policy of approving state plans containing welfare work requirements so long as those requirements are not arbitrary or unreasonable.26 Congress presumably knew of this settled administrative policy at the time of enactment of WIN, when 21 States had welfare work programs. Subsequent to WIN's passage, HEW has continued to approve state work requirements. Pursuant to such approval, New York has received federal grants-in-aid for the operation of its AFDC plan, including its work provisions.27 In interpreting this statute, we must be mindful that 'the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . ..' Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); Dandridge v. Williams, 397 U.S., at 481 482, 90 S.Ct., at 1159—1160. In this case, such indications are wholly absent.
23
New York, furthermore, has attempted to operate the Work Rules in such a manner as to avoid friction and overlap with WIN. Officials from both the State Department of Labor and a local Social Service Department testified below that every AFDC recipient appropriate for WIN was first referred there, that no person was to be referred to the state program who was participating in WIN, and that only if there was no position available for him under WIN, was a recipient to be referred for employment pursuant to state statute.28 Where coordinate state and federal efforts exist within a complementary administrative framework, and in the pursuit of common purposes, the case for federal pre-emption becomes a less persuasive one.
24
In this context, the dissenting opinion's reliance on Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971), Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972), and King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), is misplaced. In those cases it was clear that state law excluded people from AFDC benefits who the Social Security Act expressly provided would be eligible. The Court found no room either in the Act's language or legislative history to warrant the States' additional eligibility requirements. Here, by contrast, the Act allows for complementary state work incentive programs and procedures incident thereto—even if they become conditions for continued assistance. Such programs and procedures are not necessarily invalid, and more than other supplementary regulations promulgated within the legitimate sphere of state administration. See Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971); Snell v. Wyman, D.C., 281 F.Supp. 853 (SDNY), aff'd, 393 U.S. 323, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969). See also Dandridge v. Williams, supra; Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).
III
25
We thus reverse the holding below that WIN pre-empts the New York Work Rules. Our ruling establishes the validity of a state work program as one means of helping AFDC recipients return to gainful employment. We do not resolve, however, the question of whether some particular sections of the Work Rules might contravene the specific provisions of the Federal Social Security Act.
26
This last question we remand to the court below. That court did not have the opportunity to consider the issue of specific conflict between the state and federal programs, free from its misapprehension that the Work Rules had been entirely pre-empted. Further, the New York Legislature amended the Work Rules in 1972 to provide, among other things, for exemption of persons engaged in full-time training and vocational rehabilitation programs from the reporting and check pick-up requirements (N.Y.Laws 1972, c. 683), for monthly rather than semi-monthly payments of shelter allowances (id., c. 685) and, most significantly, for a definition of an 'employable' AFDC recipient which is claimed by New York to be identical to that now used under WIN (id., c. 941). Inasmuch as the court below did not have the opportunity to consider the 1972 amendments as they related to the issue of potential state-federal conflict, the remand should afford it.
27
We deem it unnecessary at the present time to intimate any view on whether or to what extent particular provisions of the Work Rules may contravene the purposes or provisions of WIN. Such a determination should be made initially by the court below, consistent with the principles set forth in this opinion.29
28
The judgment of the three-judge District Court is reversed and the cases are remanded for further proceedings consistent with this opinion.
29
It is so ordered.
30
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
31
Because the Court today ignores a fundamental rule for interpreting the Social Security Act, I must respectfully dissent. As we said in Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971), '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.' See also King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Carleson v. Remillard, 406 U.S. 598, 600, 92 S.Ct. 1932, 1934, 32 L.Ed.2d 352 (1972). The New York Work Rules fall squarely within this statement; they clearly exclude persons eligible for assistance under federal standards, and it could hardly be maintained that they did not impose additional conditions of eligibility.1 For example, under federal standards, it is irrelevant to a determination of eligibility that a recipient has or has not filed every two weeks a certificate from the local employment office that no suitable employment opportunities are available, yet under the Work Rules, a recipient who fails to file such a certificate is 'deemed' to have refused to accept suitable employment, and so is not eligible for assistance. N.Y. Social Services Law § 131(4)(a) (Supp.1971 1972).2 Thus, according to the rules of interpretation we have heretofore followed, the proper inquiry is whether the Social Security Act or its legislative history clearly shows congressional authorization for state employment requirements other than those involved in WIN.3
32
The answer is that neither the Act nor its legislative history shows such an authorization. The only relevant work-related conditions of eligibility in the Act are found at 42 U.S.C. § 602(a)(19) (1970 ed., Supp. I). In addition to exempting certain persons from registration for and participation in WIN,4 the Act permits States to disregard the needs of persons otherwise eligible for assistance who 'have refused without good cause to participate under a work incentive program . . . or . . . to accept employment in which he is able to engage.' 42 U.S.C. § 602(a)(19)(F) (1970 ed., Supp. I). The Act thus makes actual refusal to participate in a WIN Program or to accept employment a permissible ground for denying assistance. In contrast, New York has adopted the none-too-subtle technique of 'deeming' persons not to have accepted employment because they have not, for example, obtained a certain certificate from the local employment office every two weeks. 'Deeming' is a familiar legal device to evade applicable requirements by saying that they have been satisfied when they have not in fact been satisfied. But the federal requirement, which the State may not alter without clear congressional authorization,5 requires an actual refusal to participate in a WIN Program or to accept employment, not a refusal to participate in some other program or a fictitious refusal of employment.6
33
The legislative history of the Social Security Act confirms this interpretation, for whenever Congress legislated with respect to work requirements, it focused on actual refusals to accept employment or to participate in certain special programs clearly authorized by Congress. At no time has Congress authorized States to adopt other work-referral programs or to make refusal to participate in such programs a condition of eligibility, even under the guise of 'deeming' such a refusal a refusal to accept employment.
34
At its inception, the program of Aid to Dependent Children was designed to lessen somewhat the burden of supporting such children. The program provided assistance to children who had been deprived of parental support by reason of the absence of a parent. 49 Stat. 629 (1935). Assistance was provided to supply the needs of such children, thus 'releas(ing the parent) from the wage-earning role.' H.R.Doc.No.81, 74th Cong., 1st Sess., 30 (1935). See also H.R.Rep.No.615, 74th Cong., 1st Sess., 10 (1935). Thus, the program's purposes were in many ways inconsistent with a requirement that the parent leave the home to accept employment. Yet, in operation, the original program failed to provide sufficient inducement for the parent to remain at home, since the amount of assistance was measured solely by the child's needs. In order further to relieve the pressures on the parent to leave the home and accept work, Congress amended the Act in 1950 so that the aid would include payments 'to meet the needs of the relative with whom any dependent child is living.' 42 U.S.C. § 606(b)(1).
35
Until 1961, then, the sole emphasis of the Social Security Act's provisions for assistance to dependent children was on preserving the integrity of the family unit.7 In that year, Congress expanded the definition of dependent child to include children deprived of parental support by reason of the unemployment of a parent. 42 U.S.C. § 607. Families with two parents present could, for the first time, receive assistance, and one parent could leave the home to work without impairing the integrity of the family unit. Congress therefore required States participating in the program for aid to families with an unemployed parent to deny assistance under this provision to individuals who refused to accept bona fide offers of employment. Pub.L. 87—31, 75 Stat. 76 (1961). Refusal of actual offers of employment was clearly the contemplated condition. See S.Rep.No. 165, 87th Cong., 1st Sess., 3 (1961); U.S.Code Cong. & Admin.News 1961, p. 1716. Congress then developed this concept, permitting States to establish 'Community Work and Training Programs' of work on public projects, Pub.L. 87—543, § 105, 76 Stat. 186, rendered inapplicable by Pub.L. 90—248, 81 Stat. 892. Refusal to accept a work assignment on such a project without good cause would be a ground for denial of public assistance. See H.R.Rep.No.1414, 87th Cong., 2d Sess., 15 (1962); U.S. Code Cong. & Admin.News 1962, p. 1943.
36
When Congress established WIN, it did not abandon its previous policies. Recipients of public assistance could be required only to accept bona fide offers of employment or placement in specified programs. There is no indication whatsoever in the legislative history that Congress intended to permit States to deny assistance because potential recipients had refused to participate in programs not supervised by the Secretary of Labor, as WIN Programs are. The parameters of the WIN Program were designed to accommodate Congress' dual interests in guaranteeing the integrity of the family and in maximizing the potential for employment of recipients of public assistance. Without careful federal supervision, of the sort contemplated by the delegation to the Secretary of Labor to establish testing and counseling services and to require that States design employability plans, 81 Stat. 885, state work programs might upset the accommodation that Congress sought. The Work Incentive Program was thus a carefully coordinated system, whose individual parts fit into an integrated whole. It is hardly surprising that Congress did not expressly or impliedly authorize States to develop independent work programs, since the WIN Program represented Congress' recognition that such programs had to be kept under careful scrutiny if the variety of goals Congress sought to promote were to be achieved.8 I believe that the Court seriously misconceives the purposes of the federal programs of public assistance, in its apparent belief that Congress had the sole purpose of promoting work opportunities, a purpose that precluding additional state programs would negate. Ante, at 418—420.
37
Instead, Congress has consistently indicated its desire to adopt programs that will enhance the employability of recipients of public assistance while maintaining the integrity of families receiving assistance. A work-referral program can do this only if it is regulated, both as to the persons required to participate and as to the terms on which they must participate. And Congress has consistently recognized that such regulation requires close federal supervision of work programs. In my view, this course of legislation, which is not mentioned by the Court, is neither 'ambiguous,' 'fragmentary,' nor 'peripheral,' ante, at 415, 416, 417. No matter how it is viewed, however, one cannot fairly say that the Social Security Act or its legislative history clearly evidences congressional authorization for making participation in state work programs a condition of eligibility for public assistance.9
38
The policy of clear statement10 in Townsend serves a useful purpose. It informs legislators that, if they wish to alter the accommodations previously arrived at in an Act of major importance, they must indicate clearly that wish, since what may appear to be minor changes of narrow scope may in fact have ramifications throughout the administration of the Act. A policy of clear statement insures that Congress will consider those ramifications,11 but only if it is regularly adhered to.
39
Finally, it is particularly appropriate to require clear statement of authorization to impose additional conditions of eligibility for public assistance. Myths abound in this area. It is widely yet erroneously believed, for example, that recipients of public assistance have little desire to become self-supporting. See, e.g., L. Goodwin, Do the Poor Want to Work? 5, 51—52, 112 (1972). Because the recipients of public assistance generally lack substantial political influence, state legislators may find it expedient to accede to pressures generated by misconceptions. In order to lessen the possibility that erroneous beliefs will lead state legislators to single out politically unpopular recipients of assistance for harsh treatment, Congress must clearly authorize States to impose conditions of eligibility different from the federal standards. As we observed in King v. Smith, 392 U.S., at 318—319, 88 S.Ct., at 2134, this rule leaves the States with '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.' The Court today quotes this observation but misses its import. The States have latitude to adjust benefits in the two ways mentioned, but not by imposing additional conditions of eligibility. When across-the-board adjustments like those are made, legislators cannot single out especially unpopular groups for discriminatory treatment.12
40
For these reasons, I would affirm the judgment of the District Court.
1
The basic provisions of the Work Rules at the time this action was brought are set forth in § 131 of the New York Social Services Law (Supp.1971—1972):
'4. No assistance or care shall be given to an employable person who has not registered with the nearest local employment agency of the department of labor or has refused to accept employment in which he is able to engage.
'A person shall be deemed to have refused to accept such employment if he:
'a. fails to obtain and file with the social services district at least semimonthly a new certificate from the appropriate local employment office of the state department of labor stating that such employment office has no order for an opening in part-time, full-time, temporary or permanent employment in which the applicant is able to engage, or
'b. willfully fails to report for an interview at an employment office with respect to employment when requested to do so by such office, or
'c. willfully fails to report to such office the result of a referral to employment, or
'd. willfully fails to report for employment. Such willful failures or refusals as above listed shall be reported immediately to the social services district by such employment office.
'For the purposes of this subdivision and subdivision five, a person shall be deemed employable if such person is not rendered unable to work by: illness or significant and substantial incapacitation, either mental or physical, to the extent and of such duration that such illness or incapacitation prevents such person from performing services; advanced age; full-time attendance at school in the case of minor, in accordance with provisions of this chapter; fulltime, satisfactory participation in an approved program of vocational training or rehabilitation; the need of such person to provide full-time care for other members of such person's household who are wholly incapacitated, or who are children, and for whom required care is not otherwise reasonably available, notwithstanding diligent efforts by such person and the appropriate social services department to obtain others to provide such care. A person assigned to and participating in a public works project under the provisions of section one hundred sixty-four or three hundred fifty-k of this chapter shall be deemed to be employable but not employed.
'Every employable recipient of public assistance or person who is deemed not to be employable by reason of full-time satisfactory participation in an approved program of vocational training or rehabilitation shall receive his public assistance grants and allowances in person from the division of employment of the state department of labor, in accordance with regulations of the department.'
Section 350-k of New York Social Services Law provides for public works project employment for employable recipients of AFDC who cannot be placed in regular employment.
2
Special Message to the New York State Legislature, Mar. 29, 1971 (Brief for Appellant N.Y. State Depts. 9).
3
For the statutory definition of persons deemed 'employable' see n. 1, supra.
4
See ibid. These provisions for employment of recipients in public works projects have not been implemented, as the HEW Regional Commissioner indicated that such projects would not be approved for federal aid. Brief for Appellant N.Y. State Depts. 13.
5
See n. 1, supra, and Social Services Administrative Letter, 71 PWD—43 which reads in relevant part:
'(T)he Laws of 1971 place a renewed and expanded emphasis on restoring all employable recipients of public assistance to employment in the regular economy. Accordingly, all unemployed employable persons applying for or receiving public assistance are not only required to register at the New York State Employment Service district office in their community, and report there regularly for appropriate employment counseling services and job referral, but, effective July 1, they will also pick up their assistance checks there. The penalty for not cooperating in this procedure is ineligibility for public assistance whether the individual is the grantee head of family, single person living alone, or non-grantee nonhead of family.' App. 53—54.
6
In 1971, further amendments dealing with WIN were enacted. Act of Dec. 28, 1971, Pub.L. 92—223, § 3, 85 Stat. 803.
7
'§ 602. State plans for aid and services to needy families with children; contents; approval by Secretary.
'(a) A State plan for aid and services to needy families with children must . . .
(')(19) provide—
'(A) that every individual, as a condition of eligibility for aid under this part, shall register for manpower services, training, and employment as provided by regulations of the Secretary of Labor, unless such individual is—
'(i) a child who is under age 16 or attending school full time;
'(ii) a person who is ill, incapacitated, or of advanced age;
'(iii) a person so remote from a work incentive project that his effective participation is precluded;
'(iv) a person whose presence in the home is required because of illness or incapacity of another member of the household;
'(v) a mother or other relative of a child under the age of six who is caring for the child; or
'(vi) the mother or other female caretaker of a child, if the father or another adult male relative is in the home and not excluded by clause (i), (ii), (iii), or (iv) of this subparagraph (unless he has failed to register as required by this subparagraph, or has been found by the Secretary of Labor under section 633(g) of this title to have refused without good cause to participate under a work incentive program or accept employment as described in subparagraph (F) of this paragraph).'
8
States are penalized by a reduction in assistance if they fail to certify to the Secretary of Labor at least 15% of the average number of those registered each year. 42 U.S.C. § 603(c) (1970 ed., Supp. I).
9
The District Court and the parties in this case have used the word 'pre-emption' in a rather special sense. This litigation does not involve arguable federal pre-emption of a wholly independent state program dealing with the same or a similar problem. Cf., e.g., Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 817, 4 L.Ed.2d 852 (1960). AFDC is a federal statutory program, of which the WIN program is a part. The State Work Rules also were promulgated as part of the implementation of AFDC, and are therefore not wholly independent of the federal program. With this caveat, however, we will preserve the District Court's usage, which has the advantage of focusing attention on the critical question: whether Congress intended WIN to provide the exclusive mechanism for establishing work rules under AFDC.
10
The court found additional points of conflict between the state and federal programs with regard to procedures for termination of benefits and the presence of certain hearings and counseling services under WIN which were absent from the Work Rules. 348 F.Supp. 290, 295—297.
11
We postponed consideration of the question of jurisdiction to the hearing on the merits. We now conclude that the constitutional questions raised by appellees were not so insubstantial as to deprive the three-judge District Court of jurisdiction.
As to appellees' due process claim, the court below directed the State to implement suitable means of informing Home Relief recipients of their hearing rights. Id., at 299. The State stipulates that this has been done. Tr. of Oral Arg. 19—20. The only issue which we address on this appeal is whether the state program is superseded in whole or in part by federal law.
12
The AFDC program is jointly financed by the States and the Federal Government. Dandridge v. Williams, 397 U.S. 471, 473, 90 S.Ct. 1153, 1155, 25 L.Ed.2d 491 (1970).
13
Appellees' position is also one of 'complete exclusion' of the Work Rules, at least with regard to AFDC recipients. Tr. of Oral Arg. 34; Brief for Appellees in Response to Brief for the United States as Amicus Curiae 2—3.
14
See Brief for the United States as Amicus Curiae 12. The information was derived from a survey of state plans conducted by the Department of Health, Education, and Welfare.
15
No express intention to eliminate coexisting state work programs appears either at the time of the original 1967 enactment of WIN, see S.Rep.No.744, 90th Cong., 1st Sess. 26, 145—157; H.R.Rep.No.1030, 90th Cong., 1st Sess. 58—59, U.S.Code Cong. & Admin.News 1967, p. 2834, or at the time of the 1971 amendments, n. 6, supra.
16
The court below asserted that the legislative history was supportive of a pre-emptive intent, 348 F.Supp., at 297.
17
In view of our remand, Part III, infra, we do not reach the issue of specific alleged conflicts. In sum, however, they are not sufficient to indicate pre-emptive intent, especially in light of the impressive evidence to the contrary.
18
Other citations to similar effect appear in Brief for Appellees, 29—30.
19
Perhaps the most revealing legislative expressions confirm, subsequent to enactment, a congressional desire to preserve supplementary state work programs, not to supersede them. In the wake of the invalidation of the New York Work Rules by the three-judge District Court, members of the New York congressional delegation became concerned that the court had misconstrued the intent of Congress. The following colloquy occurred between Senator Buckley of New York and Senator Long of Louisiana, Chairman of the Finance Committee which considered WIN prior to approval by the Senate:
'Mr. Buckley. Was it ever the intention of Congress at that time to have the provisions of the WIN statutes preempt the field of employment and training for ADC recipients?
'Mr. Long. I did not have that in mind. . . .
'Mr. Buckley. . . . So far as the distinguished chairman is con-
cerned, was it ever the intention of at least this body to have a preemption in this field?
'Mr. Long. It was never our intention to prevent a State from requiring recipients to do something for their money if they were employable. . . .' 118 Cong.Rec. 36819 (1972).
In the House of Representatives, a similar dialogue took place between Congressman Carey of New York and Congressman Mills, Chairman of the House Ways and Means Committee, which considered the WIN program:
'Mr. Carey of New York. . . . My specific question for the clairman has to do with the intent of the Congress in authorizing the WIN program in 1967 and in amendments to that program in subsequent years. It is my understanding that Congress intended, through the WIN program, merely to assist the States in the critical area of guiding able-bodied welfare recipients toward self-sufficiency—and not to supersede individual State programs designed to achieve the same end. Under this interpretation, New York and other States could operate their own programs as supplementary to the Federal WIN program. Is my understanding of the congressional intent in this area correct?
'Mr. Mills of Arkansas. I agree with the interpretation of my friend, the gentleman from New York, on the matter, so long as the State program does not contravene the provisions of Federal law.' 118 Cong.Rec. 36931 (1972).
20
The WIN guidelines, issued by the United States Department of Labor, provide, according to appellants, for establishment of WIN programs only in those areas where there are at least 1,100 potential WIN enrollees. Brief for Appellant N.Y. State Depts. 37.
21
See id., at 37—38. Title 42 U.S.C. § 602(a)(19)(A)(iii) (1970 ed., Supp. I) may also have contemplated limited application of WIN, since it exempts from WIN registration 'a person so remote from a work incentive project that his effective participation is precluded.'
22
See Brief for the United States as Amicus Curiae 15, citing U.S. Dept. of Labor, Manpower Administration, contract No. 36—2—0001—188, modification No. 3, June 30, 1972. The Government contends further that 'the current level of WIN funding is such that no more than one-fifth of the WIN registrants will receive the full job training and placement assistance contemplated by the Act.' Ibid.
23
Brief for Appellant N.Y. State Depts. 38, 17.
24
Brief for California as Amicus Curiae 3.
25
Brief for Appellant N.Y. State Depts. 15; App. 192. Appellants claim further that from January to June 1972, 'there were 2.657 job placements under the WIN Program,' and 5,323 placements under the Work Rules. Id., at 18. These figures must be qualified, however, with the observation that many of the job placements are temporary; that many of those placed under the Work Rules may have been recipients of forms of assistance other than AFDC (while the number of WIN placements counts only AFDC recipients); and that single recipients may have been referred or placed—and thus statistically tabulated—on more than one occasion. See Brief for Appellees 33—36. None of these observations, however, obscures the basic fact that the Work Rules materially contribute toward attainment of the objective of WIN in restoring employable AFDC recipients as wage-earning members of society. See 42 U.S.C. § 630 (1970 ed., Supp. I).
26
See Brief for the United States as Amicus Curiae 3, filed by the Solicitor General and joined in by the General Counsel of HEW.
27
Ibid.
28
Excerpts from depositions of Nelson Hopper, Director of the Employment Service Bureau of the New York State Dept. of Labor, and George Demmon, Senior Employment Counsellor, Erie County Dept. of Social Services, App. 226, 234. See also Brief for Appellant N.Y. State Depts. 17, and Tr. of Oral Arg. 7.
29
In considering the question of possible conflict between the state and federal work programs, the court below will take into account our prior decisions. Congress 'has given the States broad discretion,' as to the AFDC program, Jefferson v. Hackney, 406 U.S. 535, 545, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972); see also Dandridge v. Williams, 397 U.S., at 478, 90 S.Ct., at 1158; King v. Smith, 392 U.S. 309, 318—319, 88 S.Ct. 2128, 2133—2134, 20 L.Ed.2d 1118 (1968), and '(s)o long as the State's actions are not in violation of any specific provision of the Constitution or the Social Security Act,' the courts may not void them. Jefferson, supra, at 541 of 406 U.S., at 1729 of 92 S.Ct. Conflicts, to merit judicial rather than cooperative federal-state resolution, should be of substance and not merely trivial or insubstantial. But if there is a conflict of substance as to eligibility provisions, the federal law of course must control. King v. Smith, supra; Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972).
1
Appellants state that the Work Rules do not 'constitute an additional condition of eligibility for public assistance.' Reply Brief for Appellant N.Y. State Depts. 9. The arguments they present, however, relate entirely to the purported congressional authorization for additional conditions of this sort.
2
The federal conditions of eligibility relating to registration for employment are found in 42 U.S.C. § 602(a)(19) (1970 ed., Supp. I).
3
The United States, as amicus curiae, argues that the rule stated in Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971), does not fairly characterize the course of our interpretation of the Social Security Act. It relies primarily on the Court's decision in Wyman v. James,
400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971). But, for reasons that escaped me at the time, see id., at 345 n. 7, 91 S.Ct., at 387, the Court did not address the statutory argument. Wyman does not, therefore, express any limitation on the rule in Townsend. Similarly, our summary affirmance in Snell v. Wyman, 393 U.S. 323, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969), where the District Court did not have before it our opinion in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), is at least offset by the summary affirmances in Carleson v. Taylor, 404 U.S. 980, 92 S.Ct. 446, 30 L.Ed.2d 364 (1971), Juras v. Meyers, 404 U.S. 803, 92 S.Ct. 91, 30 L.Ed.2d 39 (1971), and Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539 (1971).
The United States' argument from authority is weak, and its argument as a matter of logic is even weaker. The United States suggests that, while States may not narrow the class of persons eligible for assistance under federal standards, they may impose additional conditions of eligibility in pursuit of independent state policies. This distinction will not withstand analysis, for it makes decision turn on meaningless verbal tricks. One could just as easily find an independent state policy in Townsend as a narrowing of the class of eligible persons: the State might have a policy of minimizing subsidies to persons with a clear prospect of future income well above the poverty level, by denying assistance to persons attending four-year colleges while granting it to those attending vocational training schools. Such a system of subsidies would almost certainly be held constitutional under the Due Process Clause, and the position of the United States seems to be that States may impose conditions of eligibility, not squarely in conflict with federal standards, in the pursuit of some constitutional state interest.
4
For example, no child under 16 or attending school full time need register. 42 U.S.C. § 602(a)(19)(A)(i) (1970 ed., Supp. I). I take it that the Court would find a conflict 'of substance,' ante, at 423 n. 29, between this provision and a state work requirement applicable to children under 16. For the legislative history is clear that Congress, in defining the work-related conditions of eligibility, 'spell(ed) out those people we think should not be required to go to work,' as Senator Long put it. 113 Cong.Rec. 32593 (1967). See also S.Rep.No. 744, 90th Cong., 1st Sess., 26; U.S.Code Cong. & Admin.News 1967, p. 2834. The United States' position would be, I assume, that such a provision would narrow the class of persons eligible for assistance.
5
Appellants argue that 'the provision of section 602(a)(10) that aid be furnished 'to all eligible individuals' when read within the context of the Social Security Act means individuals 'eligible' under State requirements, not Federal.' Reply Brief for Appellant N.Y. State Depts. 13. We expressly rejected this argument in Townsend, 404 U.S., at 286, 92 S.Ct., at 505.
6
The States may, of course, adopt procedures necessary to insure that offers of employment are transmitted to recipients of public assistance. It hardly needs extended argument, however, to show that the New York Work Rules, taken as a whole, are not necessary to do that.
7
In 1956, Congress required States to adopt plans to provide social services to strengthen family life. Pub.L. 880, § 312, 70 Stat. 848.
8
The original proposal for a Work Incentive Program would have permitted a State to operate Community Work and Training Programs only if a federal WIN Program were not operated in the State. H.R. 5710, 90th Cong., 1st Sess., § 204(a). Thus, either a WIN Program or a state program could operate within a State, but not both. In the final version, the pre-existing authorization for Community Work and Training Programs was eliminated, and the federal WIN Program was to be implemented in every State. Again, Congress recognized that federal and state work programs could not coexist.
The 1971 Amendments to the WIN Program, Pub.L. 92—223, 85 Stat. 802, further demonstrate Congress' desire to have federal control of work requirements. Each State must establish a 'separate administrative unit' to provide social services only in connection with WIN. 42 U.S.C. § 602(a)(19)(G) (1970 ed., Supp. I). It would be anomalous for Congress to require the States to devote substantial resources to such a unit in connection with the WIN Program, and yet to permit the States to operate independent work programs using federal funds without providing the special services that Congress thought so important.
9
It is unnecessary for me to discuss at any length the Court's analysis of the pre-emption problem. I note, as the Court does, ante, at 411 n. 9, that this case does not present the classic question of pre-emption, that is, does the enactment of a statute by Congress preclude state attempts to regulate the same subject? There is no question that New York may impose whatever work requirements it wishes, consistent only with constitutional limitations, when it gives public assistance solely from state funds. See ante, at 412. The question here relates to the conditions that Congress has placed on state programs supported by federal funds. The distinction is not without importance, for it makes inapposite the strictures in our earlier cases and relied on by the Court, against lightly interfering with state programs. Ante, at 413—414. For we must, of course, be cautious when we prevent a State from regulating in an area where, in the absence of congressional action, it has important interests. Holding that the Federal WIN Program is the exclusive method of imposing work requirements in conjunction with federally funded programs of public assistance would have no such impact; New York would remain free to operate public assistance programs with state funds, with whatever work requirements it chose.
10
See H. Hart & A. Sacks, The Legal Process 1240 (Tent. ed. 1958).
11
In this connection, I cannot let pass without comment the extraordinary use the Court makes of legislative 'history,' in relying on exchanges on the floor of the House and Senate that occurred after the decision by the District Court in this case. Ante, at 416—417 n. 19. Although reliance on floor exchanges has been criticized in this Court, Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395—397, 71 S.Ct. 745, 751—752, 95 L.Ed. 1035 (1951) (Jackson, J., concurring), there is some force to the more generally accepted proposition that such exchanges, particularly when sponsors of a bill or committee chairmen are involved, are relevant to a determination of the purpose Congress sought to achieve in enacting the bill. United States v. St. Paul, M. & M.R. Co., 247 U.S. 310, 318, 38 S.Ct. 525, 528, 62 L.Ed. 1130 (1918). For legislators know how legislative history is made, and they ought to be aware of the importance of floor exchanges. If they disagree with the interpretation placed on the bill in such exchanges, they may offer amendments or vote against it. Thus, Congress, in enacting a statute, may fairly be taken to have endorsed the interpretations offered in such exchanges. None of this is true of post-enactment floor exchanges, which have no bearing on pending legislation and to which a disinterested legislator might well pay scant attention. If Senator Buckley and Representative Carey wished to have a congressional expression of intent on the issue of pre-emption, they were not barred from introducing legislation.
12
That the possibility of treatment that is so discriminatory as to be unconstitutional is not insubstantial is shown by the Court's brief discussion of the jurisdiction of the District Court, ante, at 412 n. 11.
| 12
|
413 U.S. 115
93 S.Ct. 2680
37 L.Ed.2d 492
Murray KAPLAN, Petitioner,v.State of CALIFORNIA.
No. 71—1422.
Argued Oct. 19, 1972.
Decided June 21, 1973.
Syllabus
Petitioner, a proprietor of an 'adult' bookstore, was convicted of violating a California obscenity statute by selling a plain-covered unillustrated book containing repetitively descriptive material of an explicitly sexual nature. Both sides offered testimony as to the nature and content of the book, but there was no 'expert' testimony that the book was 'utterly without redeeming social importance.' The trial court used a state community standard in applying and construing the statute. The appellate court, affirming, held that the book was not protected by the First Amendment. Held:
1. Obscene material in book form is not entitled to First Amendment protection merely because it has no pictorial content. A State may control commerce in such a book, even distribution to consenting adults, to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446. Pp. 118—120.
2. Appraisal of the nature of the book by 'the contemporary community standards of the State of California' was an adequate basis for establishing whether the book here involved was obscene. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. P. 121.
3. When, as in this case, material it itself placed in evidence, 'expert' state testimony as to its allegedly obscene nature, or other ancillary evidence of obscenity, is not constitutionally required. Paris Adult Theatre I v. Slaton, supra, P. 121.
4. The case is vacated and remanded so that the state appellate court can determine whether the state obscenity statute satisfies the constitutional standards newly enunciated in Miller supra. P. 122.
23 Cal.App.3d Supp. 9, 100 Cal.Rptr. 372, vacated and remanded.
Stanley Fleishman, Hollywood, Cal., for petitioner.
Ward Glen McConnell, Los Angeles, Cal., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to the Appellate Department of the Superior Court of California for the County of Los Angeles to review the petitioner's conviction for violation of California statutes regarding obscenity.
2
Petitioner was the proprietor of the Peek-A-Boo Bookstore, one of the approximately 250 'adult' bookstores in the city of Los Angeles, California.1 On May 14, 1969, in responde to citizen complaints, an undercover police officer entered the store and began to peruse several books and magazines. Petitioner advised the officer that the store 'was not a library.' The officer then asked petitioner if he had 'any good sexy books.' Petitioner replied that 'all of our books are sexy' and exhibited a lewd photograph. At petitioner's recommendation, and after petitioner had read aloud a sample paragraph, the officer purchased the book Suite 69. On the basis of this sale, petitioner was convicted by a jury of violating California Penal Code § 311.2,2 a misdemeanor.
3
The book, Suite 69, has a plain cover and contains no pictures. It is made up entirely of repetitive descriptions of physical, sexual conduct, 'clinically' explicit and offensive to the point of being nauseous; there is only the most tenuous 'plot.' Almost every conceivable variety of sexual contact, homosexual and heterosexual, is described. Whether one samples every 5th, 10th, or 20th page, beginning at any point or page at random, the content is unvarying.
4
At trial both sides presented testimony, by persons accepted to be 'experts,' as to the content and nature of the book. The book itself was received in evidence, and read, in its entirety, to the jury. Each juror inspected the book. But the State offered no 'expert' evidence that the book was 'utterly without socially redeeming value,' or any evidence of 'national standards.' On appeal, the Appellate Department of the Superior Court of California for the County of Los Angeles affirmed petitioner's conviction. Relying on the dissenting opinions in Jacobellis v. Ohio, 378 U.S. 184, 199, 203, 84 S.Ct. 1676, 1686, 12 L.Ed.2d 793 (1964), and Mr. Justice White's dissent in Memoirs v. Massachusetts, 383 U.S. 413, 462, 86 S.Ct. 975, 999, 16 L.Ed.2d 1 (1966), it concluded that evidence of a 'national' standard of obscenity was not required. It also decided that the State did not always have to present 'expert' evidence that the book lacked 'socially redeeming value,' and that, '(i)n light . . . of the circumstances surrounding the sale' and the nature of the book itself, there was sufficient evidence to sustain petitioner's conviction. Finally, the state court considered petitioner's argument that the book was not 'obscene' as a matter of constitutional law. Pointing out that petitioner was arguing, in part, that all books were constitutionally protected in an absolute sense, it rejected that thesis. On 'independent review,' it concluded 'Suite 69 appeals to a prurient interest in sex and is beyond the customary limits of dandor within the State of California.' It held that the book was not protected by the First Amendment. We agree.
5
This case squarely presents the issue of whether expression by words alone can be legally 'obscene' in the sense of being unprotected by the First Amendment.3 When the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression. See Roth v. United States, 354 U.S. 476, 481—485, 77 S.Ct. 1304, 1306—1309, 1 L.Ed.2d 1498 (1957). Obscenity can, of course, manifest itself in conduct, in the pictoral representation of conduct, or in the written and oral description of conduct. The Court has applied similarly conceived First Amendment standards to moving pictures, to photographs, and to words in books. See Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 738, 13 L.Ed.2d 649 (1965); Jacobellis v. Ohio, supra, 378 U.S., at 187—188, 84 S.Ct., at 1677—1678; Times Film Corp. v. Chicago, 365 U.S. 43, 46, 81 S.Ct. 391, 393, 5 L.Ed.2d 403 (1961); id., at 51, 81 S.Ct., at 395. (Warren, C.J., dissenting); Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 689—690, 79 S.Ct. 1362, 1365—1366, 3 L.Ed.2d 1512 (1959); Superior Films, Inc. v. Dept. of Education, 346 U.S. 587, 589, 74 S.Ct. 286, 98 L.Ed. 329 (1954) (Douglas, J., concurring); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952).
6
Because of a profound commitment to protecting communication of ideas, any restraint on expression by way of the printed word or in speech stimulates a traditional and emotional response, unlike the response to obscene pictures of flagrant human conduct. A book seems to have a different and preferred place in our hierarchy of values, and so it should be. But this generalization, like so many, is qualified by the book's content. As with pictures, films, paintings, drawings, and engravings, both oral utterance and the printed word have First Amendment protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution. Miller v. California, supra, 413 U.S., at 23—25, 93 S.Ct. 2614 2615; Roth v. United States, supra, 354 U.S., at 483—485, 77 S.Ct., at 1308—1309.
7
For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact.4 A State could reasonably regard the 'hard core' conduct described by Suite 69 as capable of encouraging or causing antisocial behavior, especially in its impact on young people. States need not wait until behavioral experts or educators can provide empirical data before enacting controls of commerce in obscene materials unprotected by the First Amendment or by a constitutional right to privacy. We have noted the power of a legislative body to enact such regulatory laws on the basis of unprovable assumptions. See Paris Adult Theatre I v. Slaton, supra, 413 U.S., at 60—63, 93 S.Ct., at 2636—2638.
8
Prior to trial, petitioner moved to dismiss the complaint on the basis that sale of sexually oriented material to consenting adults is constitutionally protected. In connection with this motion only, the prosecution stipulated that it did not claim that petitioner either disseminated any material to minors or thrust it upon the general public. The trial court denied the motion. Today, this Court, in Paris Adult Theatre I v. Slaton, supra, 413 U.S., at 68—69, 93 S.Ct., at 2641—2642, reaffirms that commercial exposure and sale of obscene materials to anyone, including consenting adults, is subject to state regulation. See also United States v. Orito, 413 U.S. 139, at 141—144, 93 S.Ct. 2674, at 2677 2679, 37 L.Ed.2d 513; United States v. 12 200—Ft. Reels of Super 8mm. Film, 413 U.S. 123, at 128, 93 S.Ct. 2665, at 2669, 37 L.Ed.2d 500; United States v. Thirty-Seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971) (opinion of White, J.); United States v. Reidel, 402 U.S. 351, 355—356, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813 (1971). The denial of petitioner's motion was, therefore, not error.
9
At trial the prosecution tendered the book itself into evidence and also tendered, as an expert witness, a police officer in the vice squad. The officer testified to extensive experience with pornographic materials and gave his opinion that Suite 69, taken as a whole, predominantly appealed to the prurient interest of the average person in the State of California, 'applying contemporary standards,' and that the book went 'substantially beyond the customary limits of candor' in the State of California. The witness explained specifically how the book did so, that it was a purveyor of perverted sex for its own sake. No 'expert' state testimony was offered that the book was obscene under 'national standards,' or that the book was 'utterly without redeeming social importance,' despite 'expert' defense testimony to the contrary.
10
In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, the Court today holds that the "contemporary community standards of the State of California," as opposed to 'national standards,' are constitutionally adequate to establish whether a work is obscene. We also reject in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, any constitutional need for 'expert' testimony on behalf of the prosecution, or for any other ancillary evidence of obscenity, once the allegedly obscene material itself is placed in evidence. Paris Adult Theatre I, supra, 413 U.S., at 56, 93 S.Ct., at 2634 2635. The defense should be free to introduce appropriate expert testimony, see Smith v. California, 361 U.S. 147, 164—165, 80 S.Ct. 215, 224—225, 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring), but in 'the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question.' Ginzburg v. United States, 383 U.S. 463, 465, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966). See United States v. Groner, 479 F.2d 577, 579—586 (CA5 1973). On the record in this case, the prosecution's evidence was sufficient, as a matter of federal constitutional law, to support petitioner's conviction.5
11
Both Miller v. California, supra, and this cade involve California obscenity statutes. The judgment of the Appellate Department of the Superior Court of California for the County of Los Angeles is vacated, and the case remanded to that court for further proceedings not inconsistent with this opinion, Miller v. California, supra, and Paris Adult Theatre I v. Slaton, supra. See United States v. 12 200-Foot Reels of Super 8mm. Film, supra, 413 U.S., at 130 n. 7, 93 S.Ct., at 2670 n. 7, decided today.
12
Vacated and remanded.
13
Mr. Justice DOUGLAS would vacate and remand for dismissal of the criminal complaint under which petitioner was found guilty because 'obscenity' as defined by the California courts and by this Court is too vague to satisfy the requirements of due process. See Miller v. California, 413 U.S. 15, at 37, 93 S.Ct. 2607, at 2622, 37 L.Ed.2d 419 (Douglas, J., dissenting).
14
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
15
I would reverse the judgment of the Appellate Department of the Superior Court of California and remand the case for further proceedings not inconsistent with my dissenting opinion in Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 73, 93 S.Ct. 2628, at 2642, 37 L.Ed.2d 446. See my dissent in Miller v. California, 413 U.S. 15, at 47, 93 S.Ct. 2607, at 2627, 37 L.Ed.2d 419.
1
The number of these stores was so estimated by both parties at oral argument. These stores purport to bar minors from the premises. In this case there is no evidence that petitioner sold materials to juveniles. Cf. Miller v. California, 413 U.S. 15, at 18—20, 93 S.Ct. 2607, at 2612, 37 L.Ed.2d 419.
2
The California Penal Code § 311.2, at the time of the commission of the alleged offense, read in relevant part:
'(a) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . .'
California Penal Code § 311, at the time of the commission of the alleged offense, provided as follows:
'As used in this chapter:
'(a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.
'(b) 'Matter' means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statute or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
'(c) 'Person' means any individual, partnership, firm, association, corporation, or other legal entity.
'(d) 'Distribute' means to transfer possession of, whether with or without consideration.
'(e) 'Knowingly' means having knowledge that the matter is obscene.'
3
This Court, since Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), has only once held books to be obscene. That case was Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), and the books involved were very similar in content to Suite 69. But most of the Mishkin books, if not all, were illustrated. See id., at 505, 514—515, 86 S.Ct., at 961, 966—967. Prior to Roth, this Court affirmed, by an equally divided Court, a conviction for sale of an unillustrated book. Doubleday & Co., Inc. v. New York, 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398 (1948). This Court has always rigorously scrutinized judgments involving books for possible violation of First Amendment rights, and has regularly reversed convictions on that basis. See Childs v. Oregon, 401 U.S. 1006, 91 S.Ct. 1248, 28 L.Ed.2d 542 (1971); Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970); Keney v. New York, 388 U.S. 440, 87 S.Ct. 2091, 18 L.Ed.2d 1302 (1967); Friedman v. New York, 388 U.S. 441, 87 S.Ct. 2091, 18 L.Ed.2d 1303
(1967); Sheperd v. New York, 388 U.S. 444, 87 S.Ct. 2093, 18 L.Ed.2d 1306 (1967); Avansino v. New York, 388 U.S. 446, 87 S.Ct. 2093, 18 L.Ed.2d 1308 (1967); Corinth Publications, Inc. v. Wesberry, 388 U.S. 448, 87 S.Ct. 2096, 18 L.Ed.2d 1310 (1967); Books, Inc. v. United States, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967); A Quantity of Copies of Books v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314 (1967); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Tralins v. Gerstein, 378 U.S. 576, 84 S.Ct. 1903, 12 L.Ed.2d 1033 (1964); Grove Press, Inc. v. Gerstein, 378 U.S. 577, 84 S.Ct. 1909, 12 L.Ed.2d 1035 (1964); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957).
4
See Paris Adult Theatre I v. Slaton, supra, 413 U.S. 49, at 58 n. 7, 93 S.Ct. 2628, at 2635 n. 7, 37 L.Ed.2d 446 (1973); Report of the Commission on Obscenity and Pornography 401 (1970) (Hill-Link Minority Report).
5
As the prosecution's introduction of the book itself evidence was adequate, as a matter of federal constitutional law, to establish the book's obscenity, we need not consider petitioner's claim that evidence of pandering was wrongly considered on appeal to support the jury finding of obscenity. Petitioner's additional claims that his conviction was affirmed on the basis of a 'theory' of 'pandering' not considered at trial and that he was subjected to retroactive application of a state statute are meritless on the record.
| 23
|
413 U.S. 345
93 S.Ct. 2591
37 L.Ed.2d 648
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, etc., et al., Appellants,v.State of NEW YORK et al.
No. 72—129.
Argued Feb. 27—28, 1973.
Decided June 21, 1973.
Syllabus
Sections 4 and 5 of the Voting Rights Act of 1965, as amended, are designed to prohibit the use of tests or devices, or the alteration of voting qualifications or procedures, when the purpose or effect is to deprive a citizen of his right to vote. Sections 4 and 5 apply in any State or political subdivision thereof which the Attorney General determines maintained on November 1, 1964, or November 1, 1968, any 'test or device,' and with respect to which the Director of the Census Bureau determines that less than half the voting-age residents were registered, or that less than half voted in the presidential election of that November. These determinations are effective on publication and are not judicially reviewable. Publication suspends the effectiveness of the test or device, which may not then be utilized unless a three-judge District Court for the District of Columbia determines that no such test or device has been used during the 10 preceding years 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color.' The section provides for direct appeal to the Supreme Court. The State or political subdivision may also institute an action pursuant to § 5 in the District Court for the District of Columbia, for a declaratory judgment that a proposed alteration in voting qualifications or procedures 'does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.' The statute also permits the change to be enforced without the court proceeding if it has been submitted to the Attorney General and he has not interposed an objection within 60 days. Neither the Attorney General's failure to object nor a § 5 declaratory judgment bars a subsequent private action to enjoin enforcement of the change. Such an action shall also be determined by a three-judge court and is appealable to the Supreme Court. The Attorney General, on July 31, 1970, filed with the Federal Register his determination that New York on November 1, 1968, maintained a test or device as defined in the Act, and this was published the next day. On March 27, 1971, the Federal Register published the Census Director's determination that in the counties of Bronx, Kings, and New York, 'less than 50 per centum of the persons of voting age residing therein voted in the presidential election of November 1968.' New York State filed an action on December 3, 1971, seeking a judgment declaring that during the preceding 10 years the three counties had not used the State's voting qualifications 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color' and that §§ 4 and 5 were thus inapplicable to the counties. Pursuant to stipulation, the United States filed its answer on March 10, 1972, alleging, inter alia, that it was without knowledge or information to form a belief as to the truth of New York's allegation that the literacy tests were not administered discriminatorily. On March 17, New York filed a motion for summary judgment, supported by affidavits, and on April 3 the United States formally consented to the entry of the declaratory judgment sought by the State. Appellants filed their motion to intervene on April 7. New York opposed the motion claiming that: it was untimely, as the suit had been pending for more than four months; it had been publicized in early February, and appellants did not deny that they knew the action was pending; appellants failed to allege appropriate supporting facts; no appellant claimed to be a victim of voting discrimination; appellants' interests were adequately represented by the United States; delay would prejudice impending elections; and appellants still could raise discrimination issues in the state and federal courts of New York. On April 13 the three-judge court denied the motion to intervene and granted summary judgment for New York. While the appeal was pending, it was disclosed that the attorney who executed affidavits for appellants had not begun employment with appellant NAACP Legal Defense & Education Fund, Inc., until March 9, 1972, and that Justice Department attorneys met with two individual appellants in January 1972 during the course of their investigation. Held:
1
1. The words 'any appeal' in § 4(a) encompass an appeal by a would-be, but unsuccessful, intervenor, and appellants' appeal properly lies to this Court. Pp. 353—356.
2
2. The motion to invervene was untimely, and in the light of that fact and all the other circumstances of this case, the District Court did not abuse its discretion in denying the motion. Pp. 364 369.
3
Affirmed.
4
Jack Greenberg, New York City, for appellants.
5
A. Raymond Randolph, Jr., Washington, D.C., for appellee United States.
6
George D. Zuckerman, New York City, for appellee New York.
7
Mr. Justice BLACKMUN delivered the opinion of the Court.
8
This appeal from a three-judge district court for the District of Columbia comes to us pursuant to the direct-review provisions of § 4(a) of the Voting Rights Act of 1965, Pub.L. 89 110, 79 Stat. 438, as amended, 42 U.S.C. § 1973b(a).1 The appellants2 seek review of an order dated April 13, 1972, unaccompanied by any opinion, denying their motion to intervene3 in a suit that had been instituted against the United States by the State of New York, on behalf of its counties of New York, Bronx, and Kings. New York's action was one for a judgment declaring that, during the 10 years preceding the filing of the suit, voter qualifications prescribed by the State had not been used by the three named counties 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color,' within the language and meaning of § 4(a), and that the provisions of §§ 4 and 5 of the Act, as amended, 42 U.S.C. §§ 1973b and 1973c, are, therefore, inapplicable to the three counties.
9
In addition to denying the appellants' motion to intervene, the District Court, by the same order, granted New York's motion for summary judgment. This was based upon a formal consent by the Assistant Attorney General in charge of the Civil Rights Division, on behalf of the United States, consistent with the Government's answer theretofore filed, 'to the entry of a declaratory judgment under Section 4(a) of the Voting Rights Act of 1965 (42 U.S.C. 1973b(a)),' App. 39a. The consent was supported by an accompanying affidavit reciting, 'I conclude, on behalf of the Acting Attorney General that there is no reason to believe that a literacy test has been used in the past 10 years in the counties of New York, Kings and Bronx with the purpose or effect of denying or abridging the right to vote on account of race or color, except for isolated instances which have been substantially corrected and which, under present practice cannot reoccur.' App. 42a—43a.
10
Appellants contend here that their motion to intervene should have been granted because (1) the United States unjustifiably declined to oppose New York's motion for summary judgment; (2) the appellants had initiated other litigation in the United States District Court for the Southern District of New York to compel compliance with §§ 4 and 5 of the Act; and (3) the appellants possessed 'substantial documentary evidence,' Jurisdictional Statement 7, to offer in opposition to the entry of the declaratory judgment.
11
Faced with the initial question whether this Court has jurisdiction, on direct appeal, to review the denial of the appellants' motion to intervene, we postponed determination of that issue to the hearing of the case on the merits. 409 U.S. 978, 93 S.Ct. 310, 34 L.Ed.2d 240.
12
* Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973,4 clearly indicates that the purpose of the Act is to assist in the effectuation of the Fifteenth Amendment, even though that Amendment is self-executing, and to insure that no citizen's right to vote is denied or abridged on account of race or color. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); Apache County v. United States, 256 F.Supp. 903 (DC 1966). Sections 4 and 5, 42 U.S.C. §§ 1973b and 1973c, are designed to prohibit the use of tests or devices, or the alteration of voting qualifications or procedures, when the effect is to deprive a citizen of his right to vote. Section 4(c) defines the phrase 'test or device' to mean
13
'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, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.' 42 U.S.C. § 1973b(c).
14
Section 4(b), as amended, now applies in any State or in any political subdivision of a State which the Attorney General determines maintained on November 1, 1964, or November 1, 1968, any 'test or device,' and with respect to which the Director of the Bureau of the Census determines that less than half the residents of voting age there were registered on the specified date, or that less than half of such persons voted in the presidential election of that November. These determinations are effective upon publication in the Federal Register and are not reviewable in any court. 42 U.S.C. § 1973b(b).
15
The prescribed publication in the Federal Register suspends the effectiveness of the test or device, and it may not then be utilized unless a three-judge district court for the District of Columbia determines, by declaratory judgment, that no such test or device has been used during the 10 years preceding the filing of the action 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color.' § 4(a), 42 U.S.C. § 1973b(a). The same section states that 'any appeal shall lie to the Supreme Court.' And the District Court 'shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color.'
16
Section 5, 42 U.S.C. § 1973c, applies whenever a State or political subdivision with respect to which a determination has been made under § 4(b) 'shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect' on November 1, 1964, or November 1, 1968.5 The State or political subdivision may then institute an action in the United States District Court for the District of Columbia for a declaratory judgment that what was done 'does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.' Unless and until the court enters such judgment 'no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure.' The statute contains a proviso, however, that the change may be enforced without the court proceeding if it has been submitted to the Attorney General of the United States and he 'has not interposed an objection within sixty days after such submission.' Neither the Attorney General's failure to object nor a declaratory judgment entered under § 5 shall bar a subsequent action by a private party to enjoin enforcement of the change. Here again, the action shall be determined by a three-judge court 'and any appeal shall lie to the Supreme Court.'
II
17
On July 31, 1970, the Attorney General filed with the Federal Register his determination that New York on November 1, 1968, maintained a test or device as defined in § 4(c) of the Act. This was published the following day. 35 Fed.Reg. 12354. On March 27, 1971, there was published in the Federal Register the determination by the Director of the Bureau of the Census that in the counties of Bronx, Kings, and New York, in the State of New York, 'less than 50 per centum of the persons of voting age residing therein voted in the presidential election of November 1968.' 36 Fed.Reg. 5809.
18
The present action was instituted by the State of New York with the filing of its original complaint on December 3, 1971, in the United States District Court for the District of Columbia. The appellants contend that the District Court's order denying them intervention in that action is directly appealable to this Court under § 4(a) of the Act.
19
The United States 'substantially' agrees that this Court has jurisdiction to review on direct appeal the denial of intervention in an action of this kind.6 Brief for United States 21 n. 15. New York suggests that the appeal should be dismissed because the appellants have not established intervention as of right and have not demonstrated an abuse of discretion by the District Court in denying permissive intervention. Brief for Appellee 22—23. We must determine for ourselves, of course, the scope of our jurisdiction, since 'jurisdiction of the federal courts—their power to adjudicate—is a grant of authority to them by Congress and thus beyond the scope of litigants to confer.' Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 167, 60 S.Ct. 153, 154, 84 L.Ed. 167 (1939); Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934).
20
The jurisdictional issue is simply phrased: whether 'any appeal,' within the language of the second paragraph of § 4(a), includes an appeal by a would-be, but unsuccessful, intervenor. Certainly, the words 'any appeal' are subject to broad construction; they could be said to include review of any meaningful judicial determination made in the progress of the § 4 lawsuit. That Congress intended a broad meaning is apparent from its expressed concern that voting restraints on account of race or color should be removed as quickly as possible in order to 'open the door to the exercise of constitutional rights conferred almost a century ago.' H.R.Rep.No.439, 89th Cong., 1st Sess., 11 (1965). See S.Rep.No.162, pt. 3, 89th Cong., 1st Sess., 6—7 (1965) U.S.Code Cong. & Admin.News, p. 2437. Indeed, the Voting Rights Act of 1965 was an addition to, and buttressed, § 2004 of the Revised Statutes, as that section had been amended by the respective Civil Rights Acts of 1957, 1960, and 1964, 71 Stat. 637, 74 Stat. 90, and 78 Stat. 241, codified as 42 U.S.C. § 1971. When the 1965 Act was under consideration by the Congress, § 1971(c) already empowered the Attorney General to institute a civil action to protect the right to vote from deprivation because of race or color or from interference by threat, coercion, or intimidation. Section 1971(g) further provided that, in such a suit, the Attorney General could request a three-judge court, and 'it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date . . . and to cause the case to be in every way expedited.' Further, an appeal from the final judgment of that court was to the Supreme Court.
21
Despite this existing statutory provision designed to hasten the removal of barriers to the right to vote, the Congress determined, in 1965, that the enforcement of the voting rights statutes 'has encountered serious obstacles in various regions of the country,' and progress 'has been painfully slow, in part because of the intransigence of State and local officials and repeated delays in the judicial process.' H.R.Rep.No.439, supra, at 9. See South Carolina v. Katzenbach, 383 U.S., at 309—315, 86 S.Ct., at 808—811, and Allen v. State Board of Elections, 393 U.S. 544, 556 n. 21, 89 S.Ct. 817, 826, 22 L.Ed.2d 1 (1969). Congress thus produced the Voting Rights Act of 1965 in response to this recognized problem and provided in that Act that 'any appeal' in a § 4(a) three-judge proceeding shall lie to this Court. This contrasts with the language in the earlier theretofore existing statute providing for an appeal here only 'from the final judgement' of the three-judge court. § 1971(g). The broader language of § 4(a), when viewed in the light of Congress' concern about hastening the resolution of suits involving voting rights, see Apache County v. United States, 256 F.Supp., at 907, prompts us to conclude that the unsuccessful intervenor's § 4(a) appeal is directly here and not to the Court of Appeals.
22
This conclusion is not without other relevant statutory precedent. It has long been settled that an unsuccessful intervenor in a government-initiated civil antitrust action may appeal directly to this Court under § 2 of the Expediting Act, 15 U.S.C. § 29.7 United States v. California Co-op Canneries, 279 U.S. 553, 559, 49 S.Ct. 423, 425, 73 L.Ed. 838 (1929); Sutphen Estates v. United States, 342 U.S. 19, 20, 72 S.Ct. 14, 15 96 L.Ed. 19 (1951); Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 132, 87 S.Ct. 932, 935, 17 L.Ed.2d 814 (1967).
23
Earlier this Term, in Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972), we held that § 2 of the Expediting Act lodged in this Court exclusive appellate jurisdiction over interlocutory, as well as final orders in Government civil antitrust cases. In so holding, we emphasized Congress' determination 'to speed appellate review.' Id., at 155, 93 S.Ct. at 411. As we have noted above, Congress has expressed a similar need for speed in adjudicating voting rights cases. We could not justify dissimilar treatment to an unsuccessful intervenor under the parallel § 4(a) of the Civil Rights Act.
24
Further support for this result is supplied when one contrasts the specific appeal provision of § 4(a) with 28 U.S.C. § 1253,8 allowing for a direct appeal to this Court from an order granting or denying 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.' That section provides that 'any party' may appeal here except 'as otherwise provided by law.' Section 4(a) does not incorporate or refer to § 1253. The former relates to 'any appeal'; the latter speaks only of 'any party.' The difference is obvious, and the broader purport of Congress under § 4(a) is manifest.
25
We conclude, therefore, that this Court has jurisdiction, on direct appeal by one denied intervention in a § 4(a) action, to determine whether the District Court erred in denying the motion to intervene.
III
26
As originally enacted, §§ 4 and 5 of the Voting Rights Act of 1965 related only to a period of five preceding years, to a test or device in effect on November 1, 1964, to a paucity of persons registered on that date, and to a paucity of voters in the presidential election of 1964. 79 Stat. 438, 439. In 1970, however, Congress enacted the Voting Rights Act Amendments of 1970. Pub.L. 91—285, 84 Stat. 314. This new legislation, among other things, related §§ 4 and 5 to ten, rather than five, proceding years and, in addition to the November 1, 1964, date and the presidential election of that year, to November 1, 1968, and the 1968 election. Also, the 1970 Act suspended the use of any test or device 'in any Federal, State, or local election' prior to August 6, 1975, without regard to whether a determination has been made that § 4 covered a particular State or political subdivision. 42 U.S.C. § 1973aa. See Oregon v. Mitchell, 400 U.S. 112, 131—132, 91 S.Ct. 260, 268, 27 L.Ed.2d 272 (1970) (opinion of Black, J.).
27
The three New York counties that the present litigation concerns were not covered by §§ 4 and 5 of the original 1965 Act. They became subject thereto because of the provisions of the 1970 Act and the respective published determinations, hereinabove described, of the Attorney General and the Director of the Bureau of the Census. Indeed, it is clear that the three counties were a definite target of the 1970 amendments. See, e.g., 116 Cong.Rec. 6659 (1970) (remarks of Sen. Cooper); id., at 20161 and 20165 (remarks of Congs. Celler and Albert, respectively).
28
It was in December 1971, during the pendency of state legislative proceedings for the redrafting of congressional and state senate and assembly district lines,9 that the State of New York filed its complaint in the present action.10 The amended complaint, filed 13 days later, alleged that certain of the State's qualifications for registration and voting, prescribed by New York's Constitution, Art. II, § 1, and by its Election Law, McKinney's Consol.Laws, c. 17, §§ 150 and 168, as amended (the ability to read and write English, the administration of a literacy test, and the presentation of evidence of literacy in lieu of the test), had not been used during the preceding 10 years 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color,' App. 6a; that the State's literacy requirements were suspended in 1970 and remained suspended; that after enactment of the 1965 Act, the New York City Board of Elections provided English-Spanish affidavits to be executed in lieu of a diploma or certificate in conformity with the requirements of the Act; and that, beginning in 1964 and continuing through 1971, with the exception of 1967, there were voter registration drives every summer designed to increase the number of registered voters in the three named counties.
29
New York and the United States stipulated that the Government could file its answer or other pleading by March 10, 1972. The answer was filed on that day. The Government therein admitted that English-Spanish affidavits were provided by the City Board of Elections but averred on information and belief, that such affidavits were not so provided prior to 1967. The answer also alleged that the United States was without knowledge or information sufficient to form a belief as to the truth of the plaintiff's allegation that the literacy tests were administered with no intention or effect to abridge or deny the right to vote on the basis of race or color.
30
On March 17 New York filed its motion for summary judgment. This was supported by affidavits from the Administrator for the Board of Elections in the City of New York 'which includes the counties of New York, Bronx and Kings,' the Chief of the Bureau of Elementary and Secondary Educational Testing of the New York State Education Department, and the respective Chief Clerks of the New York, Bronx, and Brooklyn Borough Offices of the New York City Board of Elections. App. 15a—32a. These affidavits stated that those instances where the suspension of literacy tests had been ignored or overlooked by election officials were isolated and that steps had been taken to resolve that problem. The affidavits also stated that since 1964, with the exception of 1967, the Board of Elections had conducted summer voter-registration drives directed particularly to highdensity black population areas. In its memorandum, filed with the District Court, in support of its motion, New York presented a history of its use of literacy tests11 and concluded, '(s)ince it was never the practice of administering the tests to discriminate against any person on account of race or color, and since the filing requirements of the Voting Rights Act are leading to delays which may well disrupt the political process in New York, this action for declaratory judgment has been brought.' Memorandum 4—5. See South Carolina v. Katzenbach, 383 U.S., at 332, 86 S.Ct., at 820.
31
Two and one-half weeks later, on April 3, the United States filed its formal consent, hereinabove described, to the entry of the declaratory judgment for which New York had moved. The accompanying affidavit of the Assistant Attorney General stated that the Department of Justice had conducted 'an investigation which consisted of examination of registration records in selected precincts in each covered county, interviews of certain election and registration officials and interviews of persons familiar with registration activity in black and Puerto Rican neighborhoods in those counties.' App. 40a. The Assistant Attorney General then reached the conclusion, App. 42a—43a, quoted supra, at 349.
32
Appellants' motion to intervene was filed April 7. Appellants asserted that if New York were successful in the present action, the appellants would be deprived of the protections afforded by §§ 4 and 5; that they 'would be legally bound' thereby in their simultaneously filed § 5 action in the Southern District of New York; and that the latter action 'would necessarily fail.' App. 45a.12 The appellants also alleged that the § 5 suit asserted that New York 'has gerrymandered Assembly, Senatorial and Congressional districts in Kings, Bronx and New York counties so that, on purpose and in effect, the right to vote will be denied on account of race or color.' Ibid. Thus, it was said, the disposition of the present suit might impair or impede the appellants' ability to protect their interests in registering to vote, voting, and seeking public office. App. 46a. It was further claimed that during the preceding three weeks attorneys in the Department of Justice thrice had represented to appellants' counsel that the United States would oppose New York's motion for summary judgment.13 'At no time did any of the three Justice Department attorneys . . . inquire of counsel for (appellants) whether he or any of the (appellants) had information or evidence which would support the government's alleged position that sections 4 and 5 of the Voting Rights Act should continue to be applied to Kings, Bronx and New York counties.' Ibid.
33
There was also filed an affidavit of Eric Schnapper, one of the attorneys for the appellants. This repeated the allegations contained in the motion to intervene and also asserted that on March 21 the affiant advised a Department of Justice attorney that when the New York redistricting laws were submitted to the Department, he wished to submit material and arguments in opposition to their approval; that on March 23 he was advised by another Department attorney that papers were being prepared in opposition to New York's motion for summary judgment; that he informed the attorney that the appellants were considering the institution of an action in the Southern District of New York; that on April 3 he was advised by the Department of Justice that it would have no objection to the institution of the New York suit; and that in the afternoon of April 5 he was informed by telephone for the first time that two days earlier the United States had consented to New York's motion for summary judgment. App. 48a—51a.
34
With the motion to intervene the appellants filed a proposed answer to appellees' amended complaint and a brief memorandum of points and authorities. The latter suggested the failure of the Attorney General 'to investigate the relevant facts,' namely, 'whether there are differences in the literacy rates of whites and non-whites, particularly if they are do (sic) to unequal or discriminatory public education. Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969).' This suggestion was also made in the proposed answer. App. 65a—66a.
35
The United States took no position with respect to the appellants' motion to intervene. New York opposed the motion on six grounds. The first was untimeliness in that the suit had been pending for more than four months, an article about it had appeared in early February in the New York Times, and the appellants did not deny that they had knowledge of the pendency of the action. The second was failure to allege appropriate supporting facts. The third was the lack of a requisite interest in that none of the appellants asserted he was a victim of discriminatory application of the literacy test; rather, the motion to intervene was subordinate to the appellants' real interest in invalidating New York's reapportionment of its assembly, senate, and congressional districts, as evidenced by the institution of their action in the Southern District of New York. The fourth was adequate representation of the appellants' interest by the United States. The fifth was that delay in the granting of the motion for summary judgment would prejudice New York and jeopardize the impending primary elections for offices of Assembly, Senate, and Congress, as well as for delegates to the upcoming Democratic National Convention. The sixth was that the appellants and others who claimed discrimination still could raise those issues in the state and federal courts of New York. Plaintiff's Memorandum of Law in Opposition to the Motion to Intervene 1—8. Like reasons were asserted in a supporting affidavit of an Assistant New York Attorney General. App. 67a—70a.
36
On April 13 the three-judge court entered its order denying the appellants' motion to intervene and granting summary judgment for New York. App. 71a—72a.
37
On April 24 the appellants filed a motion to alter judgment on the ground, among others, that their motion to intervene was timely since neither the appellants nor their counsel knew of the § 4(a) action until March 21.14 The appellants now asserted that evidence was available to demonstrate that in the three counties education afforded non-white children by New York was substantially inferior to that afforded white children and that 'this difference resulted in disparities in white and non-white illiteracy rates among persons otherwise eligible to vote in those counties during the 10 years prior to the filing of the instant action.' App. 73a—74a. Thus 'a full evidentiary hearing is required before making any finding of fact as to whether plaintiff's literacy tests discriminated on the basis of race.' Finally, the appellants asserted that the District Court 'should not have approved the consent judgment desired by plaintiff and defendant without first soliciting the intervention of responsible interested parties and requiring the United States to undertake a more thorough investigation of the relevant facts.' Ibid.
38
The District Court promptly denied the Motion to Alter Judgment. App. 117a.
39
Subsequently, while the appeal was pending in this Court, two additional facts came to light and are authorized by the parties for our consideration. The first is that Mr. Schnapper, who executed the above-described affidavits, did not begin his employment as an attorney with the NAACP Legal Defense and Education Fund, Inc., until March 9, 1972. The second is that 'Justice Department attorneys met with appellants Stewart and Fortune in January 1972 during the course of their investigation; although the Justice Department attorneys recall informing Stewart and Fortune that this case was pending, neither Stewart nor Fortune can remember being so informed.' Reply Brief for Appellants 3 n. 1; Brief for United States 36.
IV
40
The foregoing detailed recital of the facts and of the history of the case is necessary because of the discretionary nature of the District Court's order we are called upon to review. Our task is to determine whether, upon the facts available to it at that time, the court erred in denying the appellants' motion to intervene.
41
Intervention in a federal court suit is governed by Fed.Rule Civ.Proc. 24.15 Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b), that the application must be 'timely.' If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness.16 Although the point to which the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is to be determined from all the circumstances.17 And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court's ruling will not be disturbed on review.18
42
With these accepted principles in mind, we readily conclude that the District Court's denial of the appellants' motion to intervene was proper because of the motion's untimeliness, and that the denial was not an abuse of the court's discretion:
43
1. The court could reasonably have concluded that appellants knew or should have known of the pendency of the § 4(a) action because of an informative February article in the New York Times discussing the controversial aspect of the suit;19 public comment by community leaders; the size and astuteness of the membership and staff of the organizational appellant; and the questioning of two of the individual appellants themselves by Department of Justice attorneys investigating the use of literacy tests in New York.
44
2. We, however, need not confine our evaluation of abuse of discretion to the facts just mentioned, for the record amply demonstrates that appellants failed to protect their interest in a timely fashion after March 21, 1972, the date they allegedly were first informed of the pendency of the action. At that point, the suit was over three months old and had reached a critical stage. The United States had answered New York's complaint on March 10 and in that answer had clearly indicated that it was without knowledge or information sufficient to form a belief as to the truth of New York's allegation that the State's literacy tests were administered without regard to race or color. App. 13a. New York, in reliance upon this answer, then filed its motion for summary judgment. The only step remaining was for the United States either to oppose or to consent to the entry of summary judgment. This was the status of the suit at the time the appellants concede they were aware of its existence. It was obvious that there was a strong likelihood that the United States would consent to the entry of judgment since its answer revealed that it was without information with which it could oppose the motion for summary judgment. Thus, it was incumbent upon the appellants, at that stage of the proceedings, to take immediate affirmative steps to protect their interests either by supplying the Department of Justice with any information they possessed concerning the employment of literacy tests in a way designed to deny New York citizens of the right to vote on account of race or color, or by presenting that information to the District Court itself by way of an immediate motion to intervene.20 Appellants failed to take either of these affirmative steps. They chose, rather, to rely on representations said to have been made by Department of Justice attorneys during the course of telephone conversations. The content of the representations allegedly made by the attorneys is a matter of dispute. Brief for United States 46—47. Indeed, it appears from the affidavit filed by appellants' counsel in support of the motion to alter the judgment that apellants were not preparing, prior to the 'night of April 6—7,' to file a motion to intervene or even to file their New York federal action seeking the enjoin the 1972 elections. See n. 14, supra.
45
3. It is also apparent that there were no unusual circumstances warranting intervention since (a) no appellant alleged an injury, personal to him, resulting from the discriminatory use of a literacy test, (b) appellants' claim of inadequate representation by the United States was unsubstantiated, (c) appellants would not be foreclosed from challenging congressional and state legislative redistricting plans on the grounds that they were the product of improper racial gerrymandering, cf. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), and Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), (d) appellants were free to renew their motion to intervene following the entry of summary judgment since the District Court was required, under § 4(a) of the Act, 42 U.S.C. § 1973b(a), to retain jurisdiction for five years after judgment, and, (e) in any event, no citizen of New York could be denied the right to vote in the near future since all literacy tests have been suspended until August 6, 1975. 42 U.S.C. § 1973aa.
46
4. Finally, in view of the then rapidly approaching primary elections in New York and of the final date for filing nominating petitions to participate in those elections, the granting of a motion to intervene possessed the potential for seriously disrupting the State's electoral process with the result that primary and general elections would then have been based on population figures from the 1960 census and more than 10 years old.
47
We therefore conclude that the motion to intervene was untimely and that the District Court did not abuse its discretion in denying the appellants' motion. See Apache County v. United States, 256 F.Supp. 903 (D.C.1966); United States v. Paramount Pictures, Inc., 333 F.Supp. 1100 (SDNY), aff'd sub nom. Syufy Enterprises v. United States, 404 U.S. 802, 92 S.Ct. 79, 30 L.Ed.2d 37 (1971). This makes it unnecessary for us to consider whether other conditions for intervention under Rule 24 were satisfied.
48
Affirmed.
49
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
50
Mr. Justice DOUGLAS, dissenting.
51
When two mighty political agencies such as the Department of Justice in Washington, D.C., and the Attorney General of New York in Albany agree that there is no racial discrimination in voting in three New York counties although the historic record1 suggests it, it is time to take a careful look and not let this litigation be ended by an agreement between friendly political allies.
52
The Voting Rights Act Amendments of 1970 were specifically aimed at New York—particularly Bronx, Kings, and New York Counties. It was pointed out in the debates that under the earlier Act these counties were not included, that while in the 1964 election more than 50% of the voters were registered and more than 50% voted, in the 1968 election 50% were not registered or voting. 116 Cong.Rec. 6654, 6659. It was pointed out that New York's literacy requirement was enacted with the view of discriminating on the basis of race., Id., at 6660. New York blacks were illiterate because their education, if any, had been in second-class schools elsewhere. Id., at 6661. It was emphasized that wherever the blacks had been educated it was unconstitutional to discriminate against them on the basis of race even though illiterate. Id., at 5533. The use of literacy tests in New York tended to deter blacks from registering, it was said. Ibid. And it was pointed out that literacy tests had a greater impact on blacks and other minorities than on any white because literacy was higher among whites. Id., at 5532—5549.
53
In the face of this history, the United States did not call one witness or submit a single document or make even a feeble protest to New York's claim that it was lily-white. The United States has no defense to offer. The desultory way in which the United States acted is illustrated by the fact that although the Act requires the District Court to retain jurisdiction of the cause for five years, 42 U.S.C. § 1973b(a), the United States did not even make the request. It capitulated completely. And yet the blacks, the Americans of Puerto Rican ancestry, and other minorities victimized by illiteracy tests clamor in their way for representation. Only NAACP offers it in this case. The investigation made by the Department of Justice has all the earmarks of a whitewash.
54
The Attorney General had testified before Congress:2
55
'(I)t is clear that Negro voting in most Deep South Counties subjected to both literacy test suspension and onscene enrollment by Federal registrars is now higher than Negro vote participation in the ghettos of the two Northern cities New York and Los Angeles—where literacy tests are still in use. In non-literacy test Northern jurisdictions like Chicago, Cleveland and Philadelphia, Negro registration and voting ratios are higher than in Los Angeles and (especially) New York. . ..'
56
Yet, none of these assertions were given the District Court nor was any attempt made to develop evidence along these lines.
57
This suit by the State of New York to get an exemption for the three counties started on December 3, 1971. On March 10, 1972, the United States filed its answer and on March 17, 1972, New York moved for summary judgment. On March 21, 1972, NAACP was advised by the Department of Justice that the latter would oppose New York's motion for summary judgment. Out of the blue the Department of Justice on April 4, 1972, consented to the entry of a decree exempting the three New York counties from the Act. The motion to intervene was promptly filed April 7, 1972.
58
The answer filed by NAACP on April 7, 1972, alleges that the literacy test administered by New York deterred minorities from registering, that it was administered by whites, that social gerrymandering was so widespread and successful that minorities were discouraged from voting, and that New York produced illiterate blacks through operating inferior black schools inferior in educational facilities, and inferior in teachers, inferior in expenditures per capita.
59
It is assumed, of course, that the United States adequately represents the public interest in cases of this sort. But on the face of this record of transactions that the United States has approved or does not contest, it is clear that it does not adequately represent the public interest. Intervention as of right under Rule 24(a)(2) should therefore be allowed. See Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135 136, 87 S.Ct. 932, 936, 937, 17 L.Ed.2d 814.
60
Here it is plainly evident that the United States is an eager and willing partner with its allies in New York to foreclose inquiry into barriers to minority voting. What the facts may produce, no one knows. All that is requested is a hearing on the merits. The fresh air of publicity that only a fair and full trial in court can produce should be allowed to ventilate a case that has all the earmarks of a cozy arrangement to suppress the facts evidence which, if proved, would be adequate as a basis for relief in a case from the South. See Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309. This evidence, if proved, should be equally adequate in the North.
61
Mr. Justice BRENNAN, dissenting.
62
In my view, the District Court erred in denying appellants' motion for leave to intervene in this suit under § 4(a) of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973b(a). The case plainly turns on its facts, and its impact on the development of principles governing intervention will doubtless be small. But what is ultimately at stake in this suit by New York to obtain an exemption under the Voting Rights Act is the applicability of the protections of the Act to 2.2 million minority-group members residing in three New York counties. According to appellants, the total number of minority-group members affected by all previous exemptions combined was less than 100,000.
63
At the same time that the District Court denied the motion to intervene, it granted the State's motion for summary judgment, thereby exempting these three counties from the coverage of the Act. The United States, defendant in the suit, consented to the entry of summary judgment. As a result, the contention that appellants were prepared to urge—namely, that the grant of an exemption would nullify the specific congressional intent to extend the protections of the Act to the class represented by appellants—was never laid before the Court.
64
In upholding the denial of leave to intervene, the Court reasons that appellants' motion, filed four days after the United States consented to a grant of summary judgment, was untimely. In the Court's view, appellants should have made their motion during the brief period between the filing of New York's motion for summary judgment and the announcement by the United States that it would not contest that motion. The Court states, with the benefit of hindsight, that it was
65
'Obvious that there was a strong likelihood that the United States would consent to the entry of judgment since its answer revealed that it was without information with which it could oppose the motion for summary judgment. Thus, it was incumbent upon the appellants, at that stage of the proceedings, to take immediate affirmative steps to protect their interests either by supplying the Department of Justice with any information they possessed concerning the employment of literacy tests in a way designed to deny New York citizens of the right to vote on account of race or color, or by presenting that information to the District Court itself by way of an immediate motion to intervene.' Ante, at 367.
66
The timeliness of a motion to intervene is determined, not by reference to the date on which the suit began or the date on which the would-be intervenors learned that it was pending, but rather by reference to the date when the movants learned that intervention was needed to protect their interests. See Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1125 (CA5 1970); cf. Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967). Prior to the announcement that the United States would not contest the motion for summary judgment, appellants could not have known that intervention was needed to protect their interests and the interests of the class they represented. In an affidavit filed in connection with the motion to intervene, appellants' attorney stated that he had been advised by three different Justice Department attorneys that the United States would oppose New York's motion for summary judgment. The Court suggests that the contents of the representations made by these attorneys is 'a matter of dispute.' Ante, at 368. The matter was not in dispute, however, at the time the affidavit was filed,* nor did it become the subject of dispute until five months later when the Government filed in this Court its Motion to Dismiss or Affirm. Even then, the United States did not deny that appellants had been offered certain assurances by Government attorneys, but stated only that the affidavit was not 'an accurate representation of the substance of the conversations between counsel for appellants and attorneys for the government.' Motion to Dismiss or Affirm, filed Sept. 13, 1972, p. 4 n. 3.
67
Thus, the record before the District Court indicated reasonable reliance on the Government's assurances that the suit would not be settled. And appellants did move to intervene within four days of learning that they could no longer rely on the Government to protect their interests. On that record, the District Court was obligated to conclude that the motion was timely filed. Since the allegation of untimeliness was, in my view, the only nonfrivolous objection to the motion, the District Court's denial of the motion was unquestionably erroneous. I dissent.
1
'To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made
under subsection (b) of this section or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color . . ..
'An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color.
'If the Attorney General determines that he has no reason to believe that any such test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment.'
2
The appellants describe themselves, in their motion to intervene, as the National Association for the Advancement of Colored People, New York City Region of New York State Conference of Branches; four duly qualified black voters in Kings County, New York; and one duly qualified Puerto Rican voter in that county. Two of the individual appellants are also members of the New York State Assembly and another is a member of the New York State Senate. App. 44a.
3
The motion, App. 44a—47a, does not differentiate between intervention of right and permissive intervention, under subdivisions (a) and (b), respectively, of Fed.Rule Civ.Proc. 24. Neither does it state that one, rather than the other, is claimed. At oral argument, counsel said that in the District Court the appellants sought intervention as of right. Tr. of Oral Arg. 8. In this Court appellants suggest that they were also entitled to permis-
sive intervention. Tr. of Oral Arg. 9; Brief for Appellants 26 n. 39. In view of our ruling on the issue of timeliness, we make no point of the distinction between the two types of intervention.
4
'No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.'
5
In Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), the Court held that a State's reapportionment plan, which has the potential for diluting Negro voting power, is a 'standard, practice, or procedure with respect to voting,' within the meaning of § 5 of the Act. See Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).
6
But see Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, pp. 90—91 (1965).
7
'In every civil action brought in any district court of the United States under any of said Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.'
8
'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.'
9
Although the Director of the Bureau of the Census determined, on March 15, 1971, that less than 50% of the persons of voting age residing in the three named New York counties voted in the presidential election of November 1968, it was stated on behalf of the appellees in oral argument that a complete set of census statistics was not available to the State of New York until October 15, 1971. Tr. of Oral Arg. 41. The appellants, however, in the complaint filed by them in the United States District Court for the Southern District of New York in their § 5 suit against the New York City Board of Elections and others, No. 72 Civ. 1460, alleged that census information on which reapportionment was based was made available to the State no later than September 1, 1971. App. 59a. We do not know which of these dates is correct. It is clear, in any event, that census data for the redrawing of congressional and legislative district lines was not available to New York until the fall of 1971.
10
New York claims that the primary reason for filing its § 4(a) suit was to insure that the imminent 1972 elections would be held on the basis of district lines drawn according to population figures from the 1970 census. It is said that the lateness in obtaining the figures, see n. 9, supra, and the concomitant impossibility of redrawing lines before early 1972 made it highly unlikely that the State would be able to obtain from the Attorney General of the United States any § 5 clearance for the redistricting legislation prior to April 4, the first day for circulating nominating petitions for the June 20 primary. Thus, by obtaining a favorable result in a § 4(a) suit, New York could bypass the submission of its redistricting plan to the Attorney General. Tr. of Oral Arg. 41—42.
11
The New York Election Law, § 168, as amended, provides that 'a new voter may present as evidence of literacy' a certificate that he has completed the sixth grade of an approved elementary school or of a school 'accredited by the Commonwealth of Puerto Rico in which school instruction is carried on predominantly in the English language.' On July 28, 1966, the State's Attorney General issued an opinion to the effect that New York may not require literacy in English from persons educated in Puerto Rico. Op.Atty.Gen.N.Y., 1966, pp. 121, 123.
12
While the present case was pending in the District Court, the New York Legislature on January 14, 1972, completed its work of redrawing assembly and senate district lines and enacted legislation altering those boundaries. N.Y.Laws 1972, c. 11. On January 24, the State's Attorney General submitted the redistricting plan to the Attorney General of the United States pursuant to § 5 of the 1965 Act, as amended, 42 U.S.C. § 1973c. On March 14, three days before New York's motion for summary judgment was filed, the United States Attorney General rejected New York's submission on the ground that it was lacking in information required by the applicable regulations set forth at 36 Fed.Reg. 18186—18190 (1971). On March 28 the New York Legislature enacted legislation redefining the boundaries of the State's congressional districts. N.Y.Laws 1972, c. 76. The congressional changes were not submitted for approval under § 5.
13
The United States takes the position 'that the statements of appellants' counsel are not an accurate representation of the conversations between him and these government attorneys.' Brief for United States 47.
14
Mr. Schnapper filed a further affidavit on April 24, 1972. In it he stated (1) that prior to March 21, 1972, he had no knowledge whatever of the commencement, pendency, or existence of the § 4(a) action; (2) that throughout December 1971 and January and February 1972 he was in New Hampshire and the daily paper he regularly read there did not carry any story about the present suit; (3) that to the best of his knowledge neither co-counsel nor any of the appellants knew of the suit prior to March 21; (4) that he did not receive New York's memorandum in opposition to the motion to intervene until April 13, after the District Court already had ruled on the motion; (5) that he did not learn of the consent by the United States to the entry of judgment until April 5; and (6) that the motion to intervene, as well as the papers in the § 5 action in the Southern District of New York, was drafted 'throughout the night of April 6—7.' App. 91a—92a.
15
'Rule 24.—Intervention
'(a) Intervention of right.
'Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
'(b) Permissive intervention.
'Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.'
16
Iowa State University Research Foundation v. Honeywell, Inc., 459 F.2d 447, 449 (CA8 1972); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1115 (CA5 1970); Lumbermens Mutual Casualty Co. v. Rhodes, 403 F.2d 2, 5 (CA10), cert. denied, 394 U.S. 965, 89 S.Ct. 1319, 22 L.Ed.2d 567 (1969); Kozak v. Wells, 278 F.2d 104, 108—109 (CA8 1960); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1916 (1972); 3B J. Moore, Federal Practice 24.13(1) (2d ed. 1969).
17
Iowa State University Research Foundation v. Honeywell, Inc., 459 F.2d, at 449; Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d, at 1115; Kozak v. Wells, 278 F.2d, at 109.
18
McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1071 (CA5 1970); Lumbermens Mutual Casualty Co. v. Rhodes, 403 F.2d, at 5; 3B J. Moore, Federal Practice 24.13, p. 24—524.
19
The New York Times, Feb. 6, 1972, p. 48. This was the only news article on the page. Its three-column headline read, 'Lefkowitz Acts to Bar Voting Watch.' The article recited that New York's Attorney General 'had moved in Federal Court in Washington to have the state exempted from potential Federal supervision over registration and voting' in the three counties. It mentioned an attack upon the suit by the Chairman of the Citizens Voter Education Committee, a Congressman, and the Manhattan and Bronx Borough Presidents, and described the Attorney General's reply to that attack.
20
See Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, pp. 91—93.
Appellants at oral argument acknowledged that they were not precluded from seeking intervention prior to the date on which the United States filed its consent to the entry of summary judgment. Tr. of Oral Arg. 18—19.
1
The Attorney General of New York protests this statement. But the 90-year-long segregated school system of last century is not the point; the reference is to the offer of proof made by the appellants. The Attorney General also states that the federal investigation showed that the inference has no basis in fact. He asserts moreover that New York's literacy requirement has no racial cast in practice. But appellants' offer of proof is disturbing to say the least. The case was disposed of on a motion for summary judgment. The case is in my view a classic example of the inappropriateness of such a procedure. As I state in my dissent, a hearing should have been held and findings of fact made.
2
Hearings on H.R. 4249, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, p. 296 (1969).
*
'The United States filed no response to appellants' motion to intervene and did not otherwise object to the motion.' Brief for United States 10.
| 12
|
413 U.S. 433
93 S.Ct. 2523
37 L.Ed.2d 706
Elmer O. CADY, Warden, Petitioner,v.Chester J. DOMBROWSKI.
No. 72—586.
Argued March 21, 1973.
Decided June 21, 1973.
Syllabus
Respondent had a one-car accident near a small Wisconsin town, while driving a rented Ford. The police had the car towed to a garage seven miles from the police station, where it was left unguarded outside. Respondent was arrested for drunken driving. Early the next day, an officer, looking for a service revolver which respondent (who had identified himself as a Chicago policeman) was thought to possess, made a warrantless search of the car and found in the trunk several items, some bloodied, which he removed. Later, on receipt of additional information emanating from respondent, a blood-stained body was located on respondent's brother's farm in a nearby county. Thereafter, through the windows of a disabled Dodge which respondent had left on the farm before renting the Ford, an officer observed other bloodied items. Following issuance of a search warrant, materials were taken from the Dodge, two of which (a sock and floor mat) were not listed in the return on the warrant among the items seized. Respondent's trial for murder, at which items seized from the cars were introduced in evidence, resulted in conviction which was upheld on appeal. In this habeas corpus action, the Court of Appeals reversed the District Court and held that certain evidence at the trial had been unconstitutionally seized. Held:
1. The warrantless search of the Ford did not violate the Fourth Amendment as made applicable to the States by the Fourteenth. The search was not unreasonable since the police had exercised a form of custody of the car, which constituted a hazard on the highway, and the disposition of which by respondent was precluded by his intoxicated and later comatose condition; and the revolver search was standard police procedure to protect the public from a weapon's possibly falling into improper hands. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, distinguished; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, followed. Pp. 439—448.
2. The seizure of the sock and floor mat from the Dodge was not invalid, since the Dodge, the item 'particularly described,' was the subject of a proper search warrant. It is not constitutionally significant that the sock and mat were not listed in the warrant's return, which (contrary to the assumption of the Court of Appeals) was not filed prior to the search, and the warrant was thus validly outstanding at the time the articles were discovered. Pp. 448—450.
471 F.2d 280, reversed.
LeRoy L. Dalton, Madison, Wis., for petitioner.
William J. Mulligan, Milwaukee, Wis., for respondent.
Opinion of the Court by Mr. Justice REHNQUIST, announced by Mr. Justice BLACKMUN.
1
Respondent Chester J. Dombrowski was convicted in a Wisconsin state court of first-degree murder of Herbert McKinney and sentenced to life imprisonment. The conviction was upheld on appeal, State v. Dombrowski, 44 Wis.2d 486, 171 N.W.2d 349 (1969), the Wisconsin Supreme Court rejecting respondent's contention that certain evidence admitted at the trial had been unconstitutionally seized. Respondent then filed a petition for a writ of habeas corpus in federal district court, asserting the same constitutional claim. The District Court denied the petition but the United States Court of Appeals for the Seventh Circuit reversed, holding that one of the searches was unconstitutional under Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), and the other unconstitutional for unrelated reasons. 471 F.2d 280 (1972). We granted certiorari, 409 U.S. 1059, 93 S.Ct. 556, 34 L.Ed.2d 510 (1972).
2
* On September 9, 1969, respondent was a member of the Chicago, Illinois, police force and either owned or possessed a 1960 Dodge automobile. That day he drove from Chicago to West Bend, Wisconsin, the county seat of Washington County, located some hundred-odd miles northwest of Chicago. He was identified as having been in two taverns in the small town of Kewaskum, Wisconsin, seven miles north of West Bend, during the late evening of September 9 and the early morning of September 10. At some time before noon on the 10th, respondent's automobile became disabled, and he had it towed to a farm owned by his brother in Fond du Lac County, which adjoins Washington County on the north. He then drove back to Chicago early that afternoon with his brother in the latter's car.
3
Just before midnight of the same day, respondent rented a maroon 1967 Ford Thunderbird at O'Hare Field outside of Chicago, and apparently drove back to Wisconsin early the next morning. A tenant on his brother's farm saw a car answering the description of the rented car pull alongside the disabled 1960 Dodge at approximately 4 a.m. At approximately 9:30 a.m. on September 11, respondent purchased two towels, one right brown and the other blue, from a department store in Kewaskum.
4
From 7 to 10:15 p.m. of the 11th, respondent was in a steak house or tavern in West Bend. He ate dinner and also drank, apparently quite heavily. He left the tavern and drove the 1967 Thunderbird in a direction away from West Bend toward his brother's farm. On the way, respondent had an accident, with the Thunderbird breaking through a guard rail and crashing into a bridge abutment. A passing motorist drove him into Kewaskum, and, after being let off in Kewaskum, respondent telephoned the police. Two police officers picked him up at a tavern and drove to the scene of the accident. On the way, the officers noticed that respondent appeared to be drunk; he offered three conflicting versions of how the accident occurred.
5
At the scene, the police observed the 1967 Thunderbird and took various measurements relevant to the accident. Respondent was, in the opinion of the officers, drunk. He had informed them that he was a Chicago police officer. The Wisconsin policemen believed that Chicago police officers were required by regulation to carry their service revolvers at all times. After calling a tow-truck to remove the disabled Thunderbird, and not finding the revolver on respondent's person, one of the officers looked into the front seat and glove compartment of that car for respondent's service revolver. No revolver was found. The wrecker arrived and the Thunderbird was towed to a privately owned garage in Kewaskum, approximately seven miles from the West Bend police station. It was left outside by the wrecker, and no police guard was posted. At 11:33 p.m. on the 11th respondent was taken directly to the West Bend police station from the accident scene, and, after being interviewed by an assistant district attorney, to whom respondent again stated he was a Chicago policeman, respondent was formally arrested for drunken driving. Respondent was 'in a drunken condition' and 'incoherent at times.' Because of his injuries sustained in the accident, the same two officers took respondent to a local hospital. He lapsed into an unexplained coma, and a doctor, fearing the possibility of complications, had respondent hospitalized overnight for observation. One of the policemen remained at the hospital as a guard, and the other, Officer Weiss, drove at some time after 2 a.m. on the 12th to the garage to which the 1967 Thunderbird had been towed after the accident.
6
The purpose of going to the Thunderbird, as developed on the motion to suppress, was to look for respondent's service revolver. Weiss testified that respondent did not have a revolver when he was arrested, and that the West Bend authorities were under the impression that Chicago police officers were required to carry their service revolvers at all times. He stated that the effort to find the revolver was 'standard procedure in our department.'
7
Weiss opened the door of the Thunderbird and found, on the floor of the car, a book of Chicago police regulations and, between the two front seats, a flashlight which appeared to have 'a few spots of blood on it.' He then opened the trunk of the car, which had been locked, and saw various items covered with what was later determined to be type O blood. These included a pair of police uniform trousers, a pair of gray trousers, a nightstick with the name 'Dombrowski' stamped on it, a raincoat, a portion of a car floor mat, and a towel. The blood on the car mat was moist. The officer removed these items to the police station.
8
When, later that day, respondent was confronted with the condition of the items discovered in the trunk, he requested the presence of counsel before making any statement. After conferring with respondent, a lawyer told the police that respondent 'authorized me to state he believed there was a body lying near the family prinic area at the north end of his brother's farm.'
9
Fond du Lac County police went to the farm and found, in a dump, the body of a male, later identified as the decedent McKinney, clad only in a sportshirt. The deceased's head was bloody; a white sock was found near the body. In observing the area, one officer looked through the window of the disabled 1960 Dodge, located not far from where the body was found, and saw a pillowcase, backseat, and briefcase covered with blood. Police officials obtained, on the evening of the 12th, returnable within 48 hours, warrants to search the 1960 Dodge and the 1967 Thunderbird, as well as orders to impound both automobiles. The 1960 Dodge was examined at the farm on the 12th and then towed to the police garage where it was held as evidence. On the 13th, criminologists came from the Wisconsin Crime Laboratory in Madison and searched the Dodge; they seized the back and front seats, a white sock covered with blood, a part of a bloody rear floor mat, a briefcase, and a front floor mat. A return of the search warrant was filed in the county court on the 14th, but it did not recite that the sock and floor mat had been seized. At a hearing held on the 14th, the sheriff who executed the warrant did not specifically state that these two items had been seized.
10
At the trial, the State introduced testimony tending to establish that the deceased was first hit over the head and then shot with a .38-caliber gun, dying approximately an hour after the gunshot wound was inflicted; that death occurred at approximately 7 a.m. on the 11th, with a six-hour margin of error either way; that respondent owned two .38-caliber guns; that respondent had type A blood; that the deceased had type O blood and that the bloodstains found in the 1960 Dodge and on the items found in the two cars were type O.
11
The prosecution introduced the nightstick discovered in the 1967 Thunderbird, and testimony that it had traces of type O blood on it; the portion of the floor mat found in the 1967 car, with testimony that it matched the portion of the floor mat found in the 1960 Dodge; the bloody towel found in the 1967 car, with testimony that it was identical to one of the towels purchased by respondent on the 11th; the police uniform trousers; and the sock found in the 1960 Dodge, testimony that it was identical in composition and stitching to that found near the body of the deceased.
12
The State's case was based wholly on circumstantial evidence. The Supreme Court of Wisconsin, in reviewing the conviction on direct appeal, stated that 'even though the evidence that led to his conviction was circumstantial, we have seldom seen a stronger collection of such evidence assembled and presented by the prosecution.' State v. Dombrowski, 44 Wis.2d, at 507, 171 N.W.2d, at 360.
II
The Fourth Amendment provides:
13
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
14
The ultimate standard set forth in the Fourth Amendment is reasonableness. In construing this command, there has been general agreement that 'except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant.' (Camara v. Municipal Court, 387 U.S. 523, 528—529, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967). See Coolidge v. New Hampshire, 403 U.S. 443, 454—455, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971). One class of cases which constitutes at least a partial exception to this general rule is automobile searches. Although vehicles are 'effects' within the meaning of the Fourth Amendment, 'for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.' Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). See Carroll v. United States, 267 U.S. 132, 153—154, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967), the identical proposition was stated in different language:
15
'We made it clear in Preston (Preston v. United States) that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property. 376 U.S., at 366—367, 84 S.Ct., at 882—883.'
16
While these general principles are easily stated, the decisions of this Court dealing with the constitutionality of warrantless searches, especially when those searches are of vehicles, suggest that this branch of the law is something less than a seamless web.
17
Since this Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which overruled Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and held that the provisions of the Fourth Amendment were applicable to the States through the Due Process Clause of the Fourteenth Amendment, the application of Fourth Amendment standards, originally intended to restrict only the Federal Government, to the States presents some difficulty when searches of automobiles are involved. The contact with vehicles by federal law enforcement officers usually, if not always, involves the detection or investigation of crimes unrelated to the operation of a vehicle. Cases such as Carroll v. United States, supra, and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), illustrate the typical situations in which federal officials come into contact with and search vehicles. In both cases members of a special federal unit charged with enforcing a particular federal criminal statute stopped and searched a vehicle when they had probable cause to believe that the operator was violating that statute.
18
As a result of our federal system of government, however, state and local police officers, unlike federal officers, have much more contact with vehicles for reasons related to the operation of vehicles themselves. All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.
19
Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
20
Although the original justification advanced for treating automobiles differently from houses, insofar as warrantless searches of automobiles by federal officers was concerned, was the vagrant and mobile nature of the former, Carroll v. United States, supra; Brinegar v. United States, supra; cf. Coolidge v. New Hampshire, supra; Chambers v. Maroney, supra, warrantless searches of vehicles by state officers have been sustained in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) (District of Columbia police); Cooper v. California, supra. The constitutional difference between searches of and seizures from houses and similar structures and from vehicles stems both from the ambulatory character of the latter and from the fact that extensive, and often noncriminal contact with automobiles will bring local officials in 'plain view' of evidence, fruits, or instrumentalities of a crime, or contraband. Cf. United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).
21
Here we must decide whether a 'search'* of the trunk of the 1967 Ford was unreasonable solely because the local officer had not previously obtained a warrant. And, if that be answered in the negative, we must then determine whether the warrantless search was unreasonable within the meaning of the Fourth and Fourteenth Amendments. In answering these questions, two factual considerations deserve emphasis. First, the police had exercised a form of custody or control over the 1967 Thunderbird. Respondent's vehicle was disabled as a result of the accident, and constituted a nuisance along the highway. Respondent, being intoxicated (and later comatose), could not make arrangements to have the vehicle towed and stored. At the direction of the police, and for elemental reasons of safety, the automobile was towed to a private garage. Second, both the state courts and the District Court found as a fact that the search of the trunk to retrieve the revolver was 'standard procedure in (that police) department,' to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands. Although the trunk was locked, the car was left outside, in a lot seven miles from the police station to which respondent had been taken, and no guard was posted over it. For reasons not apparent from the opinion of the Court of Appeals, that court concluded that as 'no further evidence was needed to sustain' the drunk-driving charge, '(t)he search must therefore have been for incriminating evidence of other offenses.' 471 F.2d, at 283. While that court was obligated to exercise its incependent judgment on the underlying constitutional issue presented by the facts of this case, it was not free on this record to disregard these findings of fact. Particularly in nonmetropolitan jurisdictions such as those involved here, enforcement of the traffic laws and supervision of vehicle traffic may be a large part of a police officer's job. We believe that the Court of Appeals should have accepted, as did the state courts and the District Court, the findings with respect to Officer Weiss' specific motivation and the fact that the procedure he followed was 'standard.'
22
The Court of Appeals relied, and respondent now relies, primarily on Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), to conclude that the warrantless search was unconstitutional and the seized items inadmissible. In that case, the police received a telephone call at 3 a.m. from a caller who stated that 'three suspicious men acting suspiciously' had been in a car in the business district of Newport, Kentucky, for five hours; four policemen investigated and, after receiving evasive explanations and learning that the suspects were unemployed and apparantly indigent, arrested the three for vagrancy. The automobile was cursorily searched, then towed to a police station and ultimately to a garage, where it was searched after the three men had been booked. That search revealed two revolvers in the glove compartment; a subsequent search of the trunk resulted in the seizure of various items later admitted in a prosecution for conspiracy to rob a federally insured bank. In that case the respondent attempted to justify the warrantless search of the trunk and seizure of the items therein 'as incidental to a lawful arrest.' Id., at 367, 84 S.Ct., at 883. The Court rejected the asserted 'search incident' justification for the warrantless search in the following terms:
23
'But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' Ibid.
24
It would be possible to interpret Preston broadly, and to argue that it stands for the proposition that on those facts there could have been no constitutional justification advanced for the search. But we take the opinion as written, and hold that it stands only for the proposition that the search challenged there could not be justified as one incident to an arrest. See Chambers v. Maroney, supra; Cooper v. California, supra. We believe that the instant case in controlled by principles that may be extrapolated from Harris v. United States, supra, and Cooper v. California, supra.
25
In Harris, petitioner was arrested for robbery. As petitioner's car had been identified leaving the site of the robbery, it was impounded as evidence. A regulation of the District of Columbia Police Department required that an impounded vehicle be searched, that all valuables be removed, and that a tag detailing certain information be placed on the vehicle. In compliance with this regulation, and without a warrant, an officer searched the car and, while opening one of the doors, spotted an automobile registration card, belonging to the victim, lying face up on the metal door stripping. This item was introduced into evidence at petitioner's trial for robbery. In rejecting the contention that the evidence was inadmissible, the Court stated:
26
'The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.
27
'Once the door had lawfully been opened, the registration card . . . was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' 390 U.S., at 236, 88 S.Ct., at 993.
28
In Cooper, the petitioner was arrested for selling heroin, and his car impounded pending forfeiture proceedings. A week later, a police officer searched the car and found, in the glove compartment, incriminating evidence subsequently admitted at petitioner's trial. This Court upheld the validity of the warrantless search and seizure with the following language:
29
'This case is not Preston, nor is it controlled by it. Here the officers seized petitioner's car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car—whether the State had 'legal title' to it or not—was closely related to his reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner's car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.' 386 U.S., at 61—62, 87 S.Ct., at 791.
30
These decisions, while not on all fours with the instant case, lead us to conclude that the intrusion into the trunk of the 1967 Thunderbird at the garage was not unreasonable within the meaning of the Fourth and Fourteenth Amendments solely because a warrant had not been obtained by Officer Weiss after he left the hospital. The police did not have actual, physical custody of the vehicle as in Harris and Cooper, but the vehicle had been towed there at the officers' directions. These officers in a rural area were simply reacting to the effect of an accident—one of the recurring practical situations that results from the operation of motor vehicles and with which local police officers must deal every day. The Thunderbird was not parked adjacent to the dwelling place of the owner as in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), nor simply momentarily unoccupied on a street. Rather, like an obviously abandoned vehicle, it represented a nuisance, and is no suggestion in the record that the officers' action in exercising control over it by having it towed away was unwarranted either in terms of state law or sound police procedure.
31
In Harris the justification for the initial intrusion into the vehicle was to safeguard the owner's property, and in Cooper it was to guarantee the safety of the custodians. Here the the justification, while different, was as immediate and constitutionally reasonable as those in Harris and Cooper: concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle. The record contains uncontradicted testimony to support the findings of the state courts and District Court. Furthermore, although there is no record basis for discrediting such testimony, it was corroborated by the circumstantial fact that at the time the search was conducted Officer Weiss was ignorant of the fact that a murder, or any other crime, had been committed. While perhaps in a metropolitan area the responsibility to the general public might have been discharged by the posting of a police guard during the night, what might be normal police procedure in such an area may be neither normal nor possible in Kewaskum, Wisconsin. The fact that the protection of the public might, in the abstract, have been accomplished by 'less intrusive' means does not, by itself, render the search unreasonable. Cf. Chambers v. Maroney, supra.
32
The Court's previous recognition of the distinction between motor vehicles and dwelling places leads us to conclude that the type of caretaking 'search' conducted here of a vehicle that was neither in the custody nor on the premises of its owner, and that had been placed where it was by virtue of lawful police action, was not unreasonable solely because a warrant had not been obtained. The Framers of the Fourth Amendment have given us only the general standard of 'unreasonableness' as a guide in determining whether searches and seizures meet the standard of that Amendment in those cases where a warrant is not required. Very little that has been said in our previous decisions, see Cooper v. California, supra; Harris v. United States, supra; Chambers v. Maroney, supra, and very little that we might say here can usefully refine the language of the Amendment itself in order to evolve some detailed formula for judging cases such as this. Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not 'unreasonable' within the meaning of the Fourth and Fourteenth Amendments
III
33
The Wisconsin Supreme Court ruled that the sock and the portion of the floor mat were validly seized from the 1960 Dodge. The Fond du Lac county officer who looked through the window of the Dodge after McKinney's body had been found saw the bloody seat and briefcase, but not the sock or floor mat. Consequently, these two items were not listed in the application for the warrant, but the Dodge was the item 'particularly described' to be searched in the warrant. The warrant was validly issued and the police were authorized to search the car. The reasoning of the Wisconsin Supreme Court was that although these items were not listed to be seized in the warrant, the warrant was valid and in executing it the officers discovered the sock and mat in plain view and therefore could constitutionally seize them without a warrant.
34
The Court of Appeals held that the seizure of the two items on September 13 could not be justified under the plain-view doctrine. The reasoning of that court hinged on its understanding that the warrant to search the Dodge had been returned and was functus officio by the time Officer Mauer of the Crime Laboratory came upon the sock and the floor mat. The court stated:
35
'There was no continuing authority under the warrant issued the previous night (the 12th). First, these items were not described in the warrant and presumably were not observed that night (the 12th). Second, when the warrant was returned before Mauer came on the scene—it was functus officio. A 'new ball game,' so to speak, began when Mauer made his 'inspection." 471 F.2d, at 286.
36
The record is so indisputably clear that the return of the warrant was filed on the 14th, not sometime prior to Mauer's search on the 13th, that we are somewhat at a loss to understand how the Court of Appeals arrived at its factual conclusion. The warrant to search the Dodge was issued on the 12th, and, although a return of the warrant was prepared by a Fond du Lac County officer at some time on the 13th (whether before or after Mauer's search is impossible to determine), it was not filed in the state court until the 14th, at which time a hearing was held. The seizures of the sock and the floor mat occurred while a valid warrant was outstanding, and thus could not be considered unconstitutional under the theory advanced below. As these items were constitutionally seized, we do not deem it constitutionally significant that they were not listed in the return of the warrant. The ramification of that 'defect,' if such it was, is purely a question of state law.
37
We therefore need not reach the question of whether the seizure of the two items from the Dodge would have been valid because the entire car had been validly seized as evidence and impounded pursuant to a valid warrant, cf. Harris v. United States, supra; Cooper v. California, supra, or whether a search of the back seat of this car, located as it was in an open field, required a search warrant at all. See Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924).
38
The judgment of the Court of Appeals is reversed.
39
Judgment reversed.
40
Mr Justice BRENNAN, with whom Mr. Justice DOUGLAS, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting.
41
In upholding the warrantless search of respondent's rented Thunderbird, the Court purports merely to rely on our prior decisions dealing with automobile searches. It is clear to me, however, that nothing in our prior decisions supports either the reasoning or the result of the Court's decision today. I therefore dissent and would hold the search of the Thunderbird unconstitutional under the Fourth and Fourteenth Amendments.
42
The relevant facts are these. Respondent, an off-duty Chicago policeman, was arrested by police on a charge of drunken driving following a one-car automobile accident in which respondent severely damaged his rented 1967 Thunderbird. The car was towed from the scene of the accident to a private garage and, some two and one-half hours later, one of the arresting officers drove to the garage and, without a search warrant or respondent's consent, conducted a thorough search of the car for the alleged purpose of finding respondent's service revolver which was not on respondent's person and had not been found during an initial search of the car at the scene of the accident. In the trunk of the car, the officer found and seized numerous items that eventually linked respondent to the death of one Herbert McKinney and ultimately contributed to respondent's conviction for murder.
43
The Court begins its analysis by recognizing, as clearly it must, that the Fourth Amendment's prohibition against 'unreasonable searches and seizures' is shaped by the warrant clause, and thus that a warrantless search of private property is per se 'unreasonable' under the Fourth Amendment unless within one of the few specifically established and well-delineated exceptions. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Camara v. Municipal Court, 387 U.S. 523, 528—529, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). At the same time, the Court also recognizes that one of the established exceptions to the warrant requirement is the search of an automobile on the highway where there is probable cause to support the search and 'where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). But the search of the Thunderbird plainly cannot be sustained under the 'automobile exception,' for our prior decisions make it clear that where, as in this case, there is no reasonable likelihood that the automobile would or could be moved, the 'automobile exception' is simply irrelevant. Coolidge v. New Hampshire, supra, 403 U.S. at 461, 91 S.Ct. at 2035; Carroll v. United States, supra, 267 U.S. at 156, 45 S.Ct. at 286.
44
Another established exception to the warrant requirement is a search incident to a valid arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). But the search of the Thunderbird cannot be sustained under this exception, because even assuming that such a search would have been within the permissible scope of a search incident to an arrest for drunken driving, it is clear that under Preston v. United States, 376 U.S. 364, 368, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964), 'the search was too remote in time or place to have been made as incidental to the arrest.'
45
A third exception to the warrant requirement is the seizure of evidence in 'plain view.' Thus, in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), we upheld the seizure of an automobile registration card that fell within plain view of a police officer as he opened the door of an impounded automobile to roll up the window. But, as we cautioned in Coolidge, supra, 403 U.S. at 466, 91 S.Ct. at 2038, '(w)hat the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.' In Harris, the prior justification for the intrusion by the police was to roll up the windows and lock the doors 'to protect the car while it was in police custody.' 390 U.S., at 236, 88 S.Ct. at 993. '(T)he discovery of the card was not the result of a search,' we said, and 'in these narrow circumstances' the 'plain view' exception to the warrant requirement was fully applicable. In the present case, however, the sole purpose for the initial intrusion into the vehicle was to search for the gun. Thus, the seizure of the evidence from the trunk of the car can be sustained under the 'plain view' doctrine only if the search for the gun was itself constitutional. Reliance on the 'plain view' doctrine in this case is therefore misplaced since the antecedent search cannot be sustained.
46
Another exception to the warrant requirement is that which sustains a search in connection with the seizure of an automobile for purposes of forfeiture proceedings. In Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the Court upheld the warrantless search of an automobile after it had been lawfully impounded pursuant to a California statute mandating the seizure and forfeiture of any vehicle used to facilitate the possession or transportation of narcotics. There, however, the police were authorized to treat the car in their custody as if it were their own, and the search was sustainable as an integral part of their right of retention. This case, of course, is poles away from Cooper. The Thunderbird was not subject to forfeiture proceedings. On the contrary, ownership of the car remained exclusively in respondent's lessor and the sole reason that the police took even temporary possession of the car was to remove it from the highway until respondent could claim it.
47
Clearly, therefore, the Court's decision today finds no support in any of the established exceptions. The police knew what they were looking for and had ample opportunity to obtain a warrant. Under those circumstances, our prior decisions make it clear that the Fourth Amendment required the police to obtain a warrant prior to the search. Carroll v. United States, supra, 267 U.S., at 156, 45 S.Ct., at 286. Thus, despite the Court's asserted adherence to the principles of our prior decisions, in fact the decision rests on a subjective view of what is deemed acceptable in the way of investigative functions performed by rural police officers. But the applicability of the Fourth Amendment cannot turn on fine-line distinctions between criminal and investigative functions. On the contrary, '(i)t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior,' Camara v. Municipal Court, supra, 387 U.S., at 530, 87 S.Ct., at 1732, for '(t)he basic purpose of (the Fourth) Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' Id., at 528, 87 S.Ct., at 1730. Thus, the fact that the professed purpose of the contested search was to protect the public safety rather than to gain incriminating evidence does not of itself eliminate the necessity for compliance with the warrant requirement. Although a valid public interest may establish probable cause to search, Camara, supra, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), make clear that, absent exigent circumstances, the search must be conducted pursuant to a 'suitably restricted search warrant.' Camara, supra, 387 U.S., at 539, 87 S.Ct., at 1727. See also Almeida-Sanchez v. United States, supra. And certainly there were no exigent circumstances to justify the warrantless search made of the Thunderbird. For even assuming that the officer had reason to believe that respondent's service revolver was in the Thunderbird, the police had left the car in the custody of a private garage and did not return to look for the gun until two and one-half hours later. Moreover, although the arresting officers were at all times aware that respondent was an off-duty Chicago policeman, the officers never once inquired of respondent as to whether he was carrying a gun and, if so, where it was located. I can only conclude, therefore, that what the Court does today in the name of an investigative automobile search is in fact a serious departure from established Fourth Amendment principles. And since in my view that departure is totally unjustified, I would affirm the judgment of the Court of Appeals invalidating the search of the Thunderbird and remand the case to the District Court for determination whether the evidence seized during the search of the Dodge and the farm was the fruit of the unlawful search of the Thunderbird. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
*
Petitioner argued before this Court that unlocking the trunk of the Ford did not constitute a 'search' within the meaning of the Fourth Amendment. The thesis is that only an intrusion, into an area in which an individual has a reasonable expectation of privacy, with the specific intent of discovering evidence of a crime constitutes a search. Compare Haerr v. United States, 240 F.2d 533 (CA5 1957), with District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13 (1949), aff'd on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). But see Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Arguing that the officer's conduct constituted an 'inspection' rather than a 'search,' petitioner relies on our decision in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), to validate the initial intrusion into the trunk, and then the plain-view doctrine to justify the warrantless seizure of the items.
We need not decide this issue. Petitioner conceded in the Court of Appeals that this intrusion was a search. Inasmuch as we believe that Harris and other decisions control this case even if the intrusion is characterized as a search, we need not deal with petitioner's belated contention.
| 01
|
413 U.S. 15
93 S.Ct. 2607
37 L.Ed.2d 419
Marvin MILLER, Appellant,v.State of CALIFORNIA.
No. 70—73.
Argued Jan. 18—19, 1972.
Reargued Nov. 7, 1972.
Decided June 21, 1973.
Rehearing Denied Oct. 9, 1973.
See 414 U.S. 881, 94 S.Ct. 26.
Syllabus by the Court
Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:
1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23—24.
2. The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Roth supra, at 489, 77 S.Ct. at 1311, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. P. 24—25.
3. The test of 'utterly without redeeming social value' articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24—25.
4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a 'national standard.' Pp. 30—34.
Vacated and remanded.
Burton Marks, Beverly Hills, Cal., for appellant.
Michael R. Capizzi, Santa Ana, Cal., for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This is one of a group of 'obscenity-pornography' cases being reviewed by the Court in a re-examination of standards enunciated in earlier cases involving what Mr. Justice Harlan called 'the intractable obscenity problem.' Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968) (concurring and dissenting).
2
Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called 'adult' material. After a jury trial, he was convicted of violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter,1 and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.
3
The brochures advertise four books entitled 'Intercourse,' 'Man-Woman,' 'Sex Orgies Illustrated,' and 'An Illustrated History of Pornography,' and a film entitled 'Marital Intercourse.' While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.
4
* This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material2 when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U.S. 557, 567, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969); Ginsberg v. New York, 390 U.S. 629, 637—643, 88 S.Ct. 1274, 1279—1282, 20 L.Ed.2d 195 (1968); Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at 690, 88 S.Ct., at 1306; Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct., 1414, 1415, 18 L.Ed.2d 515 (1967); Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964). See Rabe v. Washington, 405 U.S. 313, 317, 92 S.Ct. 993, 995, 31 L.Ed.2d 258 (1972) (Burger, C.J., concurring); United States v. Reidel, 402 U.S. 351, 360—362, 91 S.Ct. 1410, 1414—1415, 28 L.Ed.2d 813 (1971) (opinion of Marshall, J.); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952); Breard v. Alexandria, 341 U.S. 622, 644—645, 71 S.Ct. 920, 933—934, 95 L.Ed. 1233 (1951); Kovacs v. Cooper, 336 U.S. 77, 88 89, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949); Prince v. Massachusetts, 321 U.S. 158, 169—170, 64 S.Ct. 438, 443—444, 88 L.Ed. 645 (1944). Cf. Butler v. Michigan, 352 U.S. 380, 382—383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412 (1957); Public Utilities Comm'n v. Pollak, 343 U.S. 451, 464—465, 72 S.Ct. 813, 821—822, 96 L.Ed. 1068 (1952). It is in this context that we are called on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.
5
The dissent of Mr. Justice BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court sustained a conviction under a federal statute punishing the mailing of 'obscene, lewd, lascivious or filthy . . .' materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:
6
'All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the (First Amendment) guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 768—769, 86 L.Ed. 1031:
7
". . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . .. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .' (Emphasis by Court in Roth opinion.)
8
'We hold that obscenity is not within the area of constitutionally protected speech or press.' 354 U.S., at 484 485, 77 S.Ct., 1309 (footnotes omitted).
9
Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that under the Roth definition
10
'as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because if affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' Id., at 418, 86 S.Ct., at 977.
11
The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by Mr. Justice White's dissent, id., at 460—462, 86 S.Ct., at 999, was further underscored when the Memoirs plurality went on to state:
12
'The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value.' Id., at 419, 86 S.Ct., at 978 (emphasis in original).
13
While Roth presumed 'obscenity' to be 'utterly without redeeming social importance,' Memoirs required that to prove obscenity it must be affirmatively established that the material is 'utterly without redeeming social value.' Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was 'utterly without redeeming social value'—a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the 'utterly without redeeming social value' test had any meaning at all. See Memoirs v. Massachusetts, id., at 459, 86 S.Ct., at 998 (Harlan, J., dissenting). See also id., at 461, 86 S.Ct., at 999 (White, J., dissenting); United States v. Groner, 479 F.2d 577, 579—581 (CA,5 1973).
14
Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S., at 770—771, 87 S.Ct., at 1415—1416. We have seen 'a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.' Interstate Circuit, Inc. v. Dallas, 390 U.S., at 704—705, 88 S.Ct., at 1314 (Harlan, J., concurring and dissenting) (footnote omitted).3 This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.
15
The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author,4 and no Member of the Court today supports the Memoirs formulation.
II
16
This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United States v. Reidel, 402 U.S., at 354, 91 S.Ct., at 1411—1412; Roth v. United States, supra, 354 U.S., at 485, 77 S.Ct., at 1309.5 'The First and Fourteenth Amendments have never been treated as absolutes (footnote omitted).' Breard v. Alexandria, 341 U.S., at 642, 71 S.Ct., at 932, and cases cited. See Times Film Corp. v. Chicago, 365 U.S. 43, 47—50, 81 S.Ct. 391, 393—395, 5 L.Ed.2d 403 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S., at 502, 72 S.Ct., at 780. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at 682—685, 88 S.Ct., at 1302—1305. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.6 A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
17
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, quoting Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constituional standard the 'utterly without redeeming social value' test of Memoirs v. Massachusetts, 383 U.S., at 419, 86 S.Ct., at 977; that concept has never commanded the adherence of more than three Justices at one time.7 See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellante courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, 408 U.S., at 232, 92 S.Ct., at 2247; Memoirs v. Massachuetts, supra, 383 U.S., at 459 460, 86 S.Ct., at 998 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S., at 204, 84 S.Ct., at 1686 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Roth v. United States, supra, 354 U.S., at 497—498, 77 S.Ct., at 1315—1316 (Harlan, J., concurring and dissenting).
18
We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
19
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
20
(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lews exhibition of the genitals.
21
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places.8 At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, 408 U.S., at 230—232, 92 S.Ct., at 2246—2247; Roth v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310; Thornhill v. Alabama, 310 U.S. 88, 101—102, 60 S.Ct. 736, 743—744, 84 L.Ed. 1093 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.9
22
Mr. Justice BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 952, 16 L.Ed.2d 31 (1966); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); and Memoiors v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (Brennan, J., dissenting). Paradoxically, Mr. Justice BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he fines the authority to distinguish between a willing 'adult' one month past the state law age of majority and a weilling 'juvenile' one month younger.
23
Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, 354 U.S., at 491 492, 77 S.Ct., at 1312—1313. Cf. Ginsberg v. New York, 390 U.S., at 643, 88 S.Ct., at 1282.10 If the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then 'hard core' pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, Mr. Justice Douglas contends. As to Mr. Justice Douglas' position, see United States v. Thirty-seven Photographs, 402 U.S. 363, 379—380, 91 S.Ct. 1400, 1409—1410, 28 L.Ed.2d 822 (1971) (Black, J., joined by Douglas, J., dissenting); Ginzburg v. United States, supra, 383 U.S. at 476, 491—492, 86 S.Ct., at 950, 974 (Black, J., and Douglas, J., dissenting); Jacobellis v. Ohio, supra, 378 U.S., at 196, 84 S.Ct., at 1682 (Black, J., joined by Douglas, J., concurring); Roth, supra, 354 U.S., at 508—514, 77 S.Ct., at 1321—1324 (Douglas, J., dissenting). In this belief, however, Mr. Justice DOUGLAS now stands alone.
24
Mr. Justice Brennan also emphasizes 'institutional stress' in justification of his change of view. Nothing that '(t)he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court,' he quite rightly remarks that the examination of contested materials 'is hardly a source of edification to the members of this Court.' Paris Adult Theatre I v. Slaton, supra, 413 U.S., at 92, 93, 93 S.Ct., at 2652. He also notes, and we agree, that 'uncertainty of the standards creates a continuing source of tension between state and federal courts . . ..' 'The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so.' Id., at 93, 92, 93 S.Ct., at 2652.
25
It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate 'hard core' pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and attempt to provide positive guidance to federal and state courts alike.
26
This may not be an easy road, free from difficulty. But no amount of 'fatigue' should lead us to adopt a convenient 'institutional' rationale—an absolutist, 'anything goes' view of the First Amendment—because it will lighten our burdens.11 'Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees.' Jacobellis v. Ohio, supra, 378 U.S., at 187—188, 84 S.Ct., at 1678 (opinion of Brennan, J.). Nor should we remedy 'tension between state and federal courts' by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, 354 U.S., at 482—485, 77 S.Ct., at 1307—1309. 'Our duty admits of no 'substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.' (Roth v. United States, supra, at 498, 77 S.Ct., at 1316); see Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct., 1432, 1437, 8 L.Ed.2d 639 (opinion of Harlan, J.) (footnote omitted).' Jacobellis v. Ohio, supra, 378 U.S., at 188, 84 S.Ct., at 1678 (opinion of Brennan, J.).
III
27
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the 'prurient interest' or is 'patently offensive.' These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether 'the average person, applying contemporary community standards' would consider certain materials 'prurient,' it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility.
28
As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a 'national' standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case law. The jury, however, was explicitly instructed that, in determining whether the 'dominant theme of the material as a whole . . . appeals to the prurient interest' and in determining whether the material 'goes substantially beyond customary limits of candor and affronts contemporary community standards of decency,' it was to apply 'contemporary community standards of the State of California.'
29
During the trial, both the prosecution and the defense assumed that the relevant 'community standards' in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on community standards12 or to the instructions of the trial judge on 'statewide' standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments.
30
We conclude that neither the State's alleged failure to offer evidence of 'national standards,' nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable 'national standards' when attempting to determine whether certain materials are obscene as a matter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200, 84 S.Ct., at 1685:
31
'It is my belief that when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it meant community standards—not a national standard, as is sometimes argued. I believe that there is no provable 'national standard' . . .. At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.'
32
It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.13 See Hoyt v. Minnesota, 399 U.S. 524—525, 90 S.Ct. 2241 (1970) (Blackmun, J., dissenting); Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970) (Burger, C.J., dissenting); id., at 434—435, 90 S.Ct., at 1884 (Harlan, J., dissenting); Cain v. Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 334 (1970) (Burger, C.J., dissenting); id., at 319—320, 90 S.Ct., at 1110 (Harlan, J., dissenting); United States v. Groner, 479 F.2d 577, at 581—583. O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6—7 (1964). See also Memoirs v. Massachusetts, 383 U.S., at 458, 86 S.Ct., at 997 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, 378 U.S., at 203—204, 84 S.Ct., at 1686 (Harlan, J., dissenting); Roth v. United States, supra, 354 U.S., at 505—506, 77 S.Ct., at 1319—1320 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S., at 508—509, 86 S.Ct., at 963, the primary concern with requiring a jury to apply the standard of 'the average person, applying contemporary community standards' is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one. See Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311. Cf. the now discredited test in Regina v. Hicklin, (1868) L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with reference to 'contemporary standards of the State of California' serves this protective purpose and is constitutionally adequate.14
IV
33
The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a 'misuse of the great guarantees of free speech and free press . . ..' Breard v. Alexandria, 341 U.S., at 645, 71 S.Ct., at 934. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. 'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,' Roth v. United States, supra, 354 U.S., at 484, 77 S.Ct., at 1308 (emphasis added). See Kois v. Wisconsin, 408 U.S., at 230—232, 92 S.Ct., at 2246—2247; Thornhill v. Alabama, 310 U.S., at 101—102, 60 S.Ct., at 743—744. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.15
34
There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, 354 U.S., at 482—485, 77 S.Ct., at 1307—1309, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an 'extraordinarily vigorous period,' not just in economics and politics, but in belles lettres and in 'the outlying fields of social and political philosophies.'16 We do not see the harsh hand of censorship of ideas—good or bad, sound or unsound—and 'repression' of political liberty lurking in every state regulation of commercial exploitation of human interest in sex.
35
Mr. Justice Brennan finds 'it is hard to see how state-ordered regimentation of our minds can ever be forestalled.' Paris Adult Theatre I v. Slaton, 413 U.S., at 110, 93 S.Ct., at 2661 (Brennan, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which Mr. Justice Brennan finds constitutionally permissible, has all the elements of 'censorship' for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S., at 690, 88 S.Ct., at 1306.17 One can concede that the 'sexual revolution' of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive 'hard core' materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine.
36
In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is 'utterly without redeeming social value'; and (c) hold that obscenity is to be determined by applying 'contemporary community standards,' see Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, and Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311, not 'national standards.' The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, at 130 n. 7, 93 S.Ct. 2665, at 2670 n. 7, 37 L.Ed.2d 500.
37
Vacated and remanded.
38
Mr. Justice DOUGLAS, dissenting.
39
* Today we levae open the way for California1 to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today's decision were never the part of any law.
40
The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, it ruled that '(o)bscene material is material which deals with sex in a manner appealing to prurient interest.' Id., at 487, 77 S.Ct., at 1310. Obscenity, it was said, was rejected by the First Amendment because it is 'utterly without redeeming social importance.' Id., at 484, 77 S.Ct., at 1308. The presence of a 'prurient interest' was to be determined by 'contemporary community standards.' Id., at 489, 77 S.Ct., at 1311. That test, it has been said, could not be determined by one standard here and another standard there, Jacobellis v. Ohio, 378 U.S. 184, 194, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793, but 'on the basis of a national standard.' Id., at 195, 84 S.Ct., at 1682. My brother Stewart in Jacobellis commented that the difficulty of the Court in giving content to obscenity was that it was 'faced with the task of trying to define what may be indefinable.' Id., at 197, 84 S.Ct., at 1683.
41
In Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, the Roth test was elaborated to read as follows: '(T)hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.'
42
In Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The 'leer of the sensualist' was said to permeate the advertisements. Id., at 468, 86 S.Ct., at 946. The Court said, 'Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity.' Id., at 470, 86 S.Ct., at 947. As Mr. Justice Black said in dissent, '. . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal.' Id., at 476, 86 S.Ct., at 950. That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four.
43
A further refinement was added by Ginsberg v. New York, 390 U.S. 629, 641, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195, where the Court held that 'it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.'
44
But even those members of this Court who had created the new and changing standards of 'obscenity' could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515. Some condemn it if its 'dominant tendency might be to 'deprave or corrupt' a reader.'2 Others look not to the content of the book but to whether it is advertised "to appeal to the erotic interests of customers."3 Some condemn only 'hardcore pornography'; but even then a true definition is lacking. It has indeed been said of that definition, 'I could never succeed in (defining it) intelligibly,' but 'I know it when I see it.'4
45
Today we would add a new three-pronged test: '(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'
46
Those are the standards we ourselves have written into the Constitution.5 Yet how under these vague tests can we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?
47
Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since 'obscenity' is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from 'the press' which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated 'obscene' publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not 'obscene.' The Court is at large because we deal with tastes and standards of literature. What shocks me may be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people.
48
Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime a publisher would know when he was on dangerous ground. Under the present regime—whether the old standards or the new ones are used—the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg and has all the evils of an ex post facto law.
49
My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said:
50
'The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment.' Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 707, 88 S.Ct. 1298, 1315, 20 L.Ed.2d 225.
51
In Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no 'fair warning, at the time of their conduct' while on the property 'that the act for which they now stand convicted was rendered criminal' by the state statute. Id., at 355, 84 S.Ct., at 1703. The same requirement of 'fair warning' is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any case—certainly when constitutional rights are concerned—we should not allow men to go to prison or be fined when they had no 'fair warning' that what they did was criminal conduct.
II
52
If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishers, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does6 and my views on the issue have been stated over and over again.7 But at least a criminal prosecution brought at that juncture would not violate the time-honored void-for-vagueness test.8
53
No such protective procedure has been designed by California in this case. Obscenity—which even we cannot define with precision is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.
III
54
While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068, where I protested against making streetcar passengers a 'captive' audience. There is no 'captive audience' problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban.
55
The idea that the First Amendment permits government to ban publications that are 'offensive' to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed 'to invite dispute,' to induce 'a condition of unrest,' to 'create dissatisfaction with conditions as they are,' and even to stir 'people' to anger.' Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131. The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to 'offensive' as well as to 'staid' people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard 'offensive' gives authority to government that cuts the very vitals out of the First Amendment.9 As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment—and solely because of it—speakers and publishers have not been threatened or subdued because their thoughts and ideas may be 'offensive' to some.
56
The standard 'offensive' is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves 'in a manner annoying to persons passing by.' We struck it down, saying: 'If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.
57
'Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all.' Id., at 614, 91 S.Ct., at 1688.
58
How we can deny Ohio the convenience of punishing people who 'annoy' others and allow California power to punish people who publish materials 'offensive' to some people is difficult to square with constitutional requirements.
59
If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.
60
We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.
61
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
62
In my dissent in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre, I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face.* '(T)he 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." Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972), quoting from Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). 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 1690—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). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a 'readily apparent construction suggests itself as a vehicle for rehabilitating the (statute) in a single prosecution,' Dombrowski v. Pfister, supra, 380 U.S., at 491, 85 S.Ct., at 1123, I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, 402 U.S., at 616, 91 S.Ct., at 1689.
1
At the time of the commission of the alleged offense, which was prior to June 25, 1969, §§ 311.2(a) and 311 of the California Penal Code read in relevant part:
§ 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or possessing within state
'(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to dis-
tribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . .'
§ 311. Definitions
'As used in this chapter:
'(a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.
'(b) 'Matter' means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial represention or any statute or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
'(c) 'Person' means any individual, partnership, firm, association, corporation, or other legal entity.
'(d) 'Distribute' means to transfer possession of, whether with or without consideration.
'(e) 'Knowingly' means having knowledge that the matter is obscene.'
Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows:
'(e) 'Knowingly' means being aware of the character of the matter.'
Cal.Amended Stats.1969, c. 249, § 1, p. 598. Despite appellant's contentions to the contrary, the record indicates that the new § 311(e) was not applied ex post facto to his case, but only the old § 311(e) as construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal.App.2d Supp. 941, 948—950, 63 Cal.Rptr. 680, 685—686 (App.Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal.App.2d Supp. 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept., Superior Ct. San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Nor did § 311.2, supra, as applied, create any 'direct, immediate burden on the per-
formance of the postal functions,' or infringe on congressional commerce powers under Art. I, § 8, cl. 3. Roth v. United States, 354 U.S. 476, 494, 77 S.Ct. 1304, 1314, 1 L.Ed.2d 1498 (1957), quoting Railway Mail Assn. v. Corsi, 326 U.S. 88, 96, 65 S.Ct. 1483, 1488, 89 L.Ed. 2072 (1945). See also Mishkin v. New York, 383 U.S. 502, 506, 86 S.Ct. 958, 962, 16 L.Ed.2d 56 (1966); Smith v. California, 361 U.S. 147, 150—152, 80 S.Ct. 215, 217—218, 4 L.Ed.2d 205 (1959).
2
This Court has defined 'obscene material' as 'material which deals with sex in a manner appealing to prurient interest,' Roth v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310, but the Roth definition does not reflect the precise meaning of 'obscene' as traditionally used in the English language. Derived from the Latin obscaenus, ob, to, plus caenum, filth, 'obscene' is defined in the Webster's Third New International Dictionary (Unabridged 1969) as '1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle.' The Oxford English Dictionary (1933 ed.) gives a similar definition, '(o)ffensive to the senses, or to taste or refinement, disgusting, repulsive, filthy, foul, abominable, loathsome.'
The material we are discussing in this case is more accurately defined as 'pornography' or 'pornographic material.' 'Pornography' derives from the Greek (porne, harlot, and graphos, writing). The word now means '1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a a portrayal of erotic behavior designed to cause sexual excitement.' Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a subgroup of all 'obscene' expression, but not the whole, at least as the word 'obscene' is now used in our language. We note, therefore, that the words 'obscene material,' as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material 'which deals with sex.' Roth, supra, at 487, 77 S.Ct., at 1310. See also ALI Model Penal Code § 251.4(l) 'Obscene Defined.' (Official Draft, 1962.)
3
In the absence of a majority view, this Court was compelled to embark on the practice of summarily reversing convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has ever been offered in support of the Redrup 'policy.' See Walker v. Ohio, 398 U.S. 434 435, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970) (dissenting opinions of Burger, C.J., and Harlan, J. The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us.
4
See the dissenting opinion of Mr. Justice Brennan in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (1973).
5
As Mr. Chief Justice Warren stated, dissenting in Jacobellis v. Ohio, 378 U.S. 184, 200, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964):
'For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it—at least until a more satisfactory definition is evolved. No government—be it federal, state, or local—should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of the law, and we hae attempted in the Roth case to provide such a rule.'
6
See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255—262, and Hawaii Penal Code, Tit. 37, §§ 1210—1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt. II, pp. 126—129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power.
We do not hold, as Mr. Justice BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reels of Super 8 mm. Film, 413 U.S. 123, at 130 n. 7, 93 S.Ct. 2665, at 2670 n. 7, 37 L.Ed.2d 500.
7
'A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication . . .' Kois v. Wisconsin, 408 U.S., 229, 231, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312 (1972). See Memoirs v. Massachusetts, 383 U.S. 413, 461, 86 S.Ct. 975, 999, 16 L.Ed.2d 1 (1966) (White, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of 'social importance.' See id., at 462, 86 S.Ct., at 999 (White, J., dissenting).
8
Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be 'sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' See California v. LaRue, 409 U.S. 109, 117—118, 93 S.Ct. 390, 396—397, 34 L.Ed.2d 342 (1972).
9
The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313 n. 30, 'it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States 486, 499-500.'
10
As Mr. Justice Brennan stated for the Court in Roth v. United States, supra, 354 U.S., at 491—492, 77 S.Ct., at 1312 1313:
'Many decisions have recognized that these terms of obscenity statutes are not precise. (Footnote omitted.) This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '. . . (T)he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .' United States v. Petrillo, 332 U.S. 1, 7—8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark '. . . boundaries sufficiently distinct for judges and juries to fairly administer the law . . .. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .' Id., 332 U.S. at page 7, 67 S.Ct., at page 1542. See also United States v. Harriss, 347 U.S. 612, 624, n. 15, 14 S.Ct. 808, 815, 98 L.Ed. 989; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367; United States v. Ragen, 314 U.S. 513, 523—524, 62 S.Ct. 374, 378, 86 L.Ed. 383; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Fox. v. Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232.
11
We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation.
12
The record simply does not support appellant's contention, belatedly raised on appeal, that the State's expert was unqualified to give evidence on California 'community standards.' The expert, a police officer with many years of specialization in obscenity offenses, had conducted an extensive statewide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969).
13
In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), two Justices argued that application of 'local' community standards would run the risk of preventing dissemination of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id., at 194—195, 84 S.Ct., at 1681 1682 (opinion of Brennan, J., joined by Goldberg, J.). The use of 'national' standards, however, necessarily implies that materials found tolerable in some places, but not under the 'national' criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nation-wide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354 U.S., at 506, 77 S.Ct., at 1320.
Appellant also argues that adherence to a 'national standard' is necessary 'in order to avoid unconscionable burdens on the free flow of interstate commerce.' As noted supra, at 18 n. 1, the application of domestic state police powers in this case did not intrude on any congressional powers under Art. I, § 8, cl. 3, for there is no indication that appellant's materials were ever distributed interstate. Appellant's argument would appear without substance in any event. Obscene material may be validly regulated by a State in the exercise of its traditional local power to protect the general welfare of its population despite some possible incidental effect on the flow of such materials across state lines. See, e.g., Head v. New Mexcio Board, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935); Sligh v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835 (1915).
14
Appellant's jurisdictional statement contends that he was subjected to 'double jeopardy' because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but apparently alleging exposures at a different time in a different setting. Appellant argues that once material has been found not to be obscene in one proceeding, the State is 'collaterally estopped' from ever alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a 'double jeopardy' claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, a least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was apparently presented in this case. Appellant's contention, therefore, is best left to the California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U.S. 502, 512—514, 86 S.Ct. 958, 965—966, 16 L.Ed.2d 56 (1966).
15
In the apt words of Mr. Chief Justice Warren, the appellant in this case was 'plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide.' Roth v. United States, supra, 354 U.S., at 496, 77 S.Ct., at 1315 (concurring opinion).
16
See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parrington observed 'A new age had come and other dreams—the age and the dreams of middle-class sovereignty . . .. From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War.' Id., at 474. Cf. 2 Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197—233 (6th ed. 1969); Paths of American Thought 123—166, 203—290 (A. Schlesinger & M. White ed. 1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337—386 (1952).
17
'(W)e have indicated . . . that because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, . . . (390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968)).' Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 690, 88 S.Ct. 1298, at 1306, 20 L.Ed.2d 225 (1968) (footnote omitted).
1
California defines 'obscene matter' as 'matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.' Calif.Penal Code § 311(a).
2
Roth v. United States, 354 U.S. 476, 502, 77 S.Ct. 1304, 1318, 1 L.Ed.2d 1498 (opinion of Harlan, J.).
3
Ginzburg v. United States, 383 U.S. 463, 467, 86 S.Ct. 942, 945, 16 L.Ed.2d 31.
4
Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (Stewart, J., concurring).
5
At the conclusion of a two-year study, the U.S. Commission on Obscenity and Pornography determined that the standards we have written interfere with constitutionally protected materials:
'Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution permits material to be deemed 'obscene' for adults only if, as a whole, it appeals to the 'prurient' interest of the average person, is 'patently offensive' in light of 'community standards,' and lacks 'redeeming social value.' These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and sometimes erroneously applied and the distinction made by courts between prohibited and permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its scope also cause interference with the communication of constitutionally protected materials.' Report of the Commission on Obscenity and Pornography 53 (1970).
6
It is said that 'obscene' publications can be banned on authority of restraints on communications incident to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v. United States, 297 U.S. 553, 597, 56 S.Ct. 629, 641, 89 L.Ed. 859, or communications respecting the sale of spurious or fraudulent securities. Hall v. Geiger-Jones Co., 242 U.S. 539, 549, 37 S.Ct. 217, 220, 61 L.Ed. 480; Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 567, 37 S.Ct. 224, 226, 61 L.Ed. 493; Merrick v. Halsey & Co., 242 U.S. 568, 584, 37 S.Ct. 227, 230, 61 L.Ed. 498. The First Amendment answer is that whenever speech and conduct are brigaded—as they are when one shouts 'Fire' in a crowded theater—speech can be outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, stated that labor unions court be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr. Justice Black said: 'It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.' Id., at 498, 69 S.Ct., at 688.
7
See United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312; Byrne v. Karalexis, 396 U.S. 976, 977, 90 S.Ct. 469, 470, 24 L.Ed.2d 447; Ginsberg v. New York, 390 U.S. 629, 650, 88 S.Ct. 1274, 1286, 20 L.Ed.2d 195; Jacobs v. New York, 388 U.S. 431, 436, 87 S.Ct. 2098, 2101, 18 L.Ed.2d 1294; Ginzburg v. United States, 383 U.S. 463, 482, 86 S.Ct. 942, 953, 16 L.Ed.2d 31; Memoirs v. Massachusetts, 383 U.S. 413, 424, 86 S.Ct. 975, 980, 16 L.Ed.2d 1; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 72, 83 S.Ct. 631, 640, 9 L.Ed.2d 584; Times Film Corp. v. City of Chicago, 365 U.S. 43, 78, 81 S.Ct. 391, 410, 5 L.Ed.2d 403; Smith v. California, 361 U.S. 147, 167, 80 S.Ct. 215, 226, 4 L.Ed.2d 205; Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697, 79 S.Ct. 1362, 1369, 3 L.Ed.2d 1512; Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 446, 77 S.Ct. 1325, 1330, 1 L.Ed.2d 1469; Superior Films, Inc. v. Department of Education, 346 U.S. 587, 588, 74 S.Ct. 286, 98 L.Ed. 329; Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359.
8
The Commission on Obscenity and Pornography has advocated such a procedure:
'The Commission recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal prohibitions . . ..
'A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, rather than through the criminal process, against suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the legal status of materials; where other alternatives are available, the criminal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected material.' Report of the Commission on Obscenity and Pornography 63 (1970).
9
Obscenity law has had a capricious history:
'The white slave traffic was first exposed by W. T. Stead in a magazine article, 'The Maiden Tribute.' The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of criminality, a judge in deciding what is indecent or profane may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley's Queen Mab and the decorous promulgation of pantheistic ideas, on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a roundabout modern method to make heterodoxy in sex matters and even in religion a crime.' Z. Chafee, Free Speech in the United States 151 (1942).
*
Cal. Penal Code § 311.2(a) provides that 'Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.'
| 23
|
413 U.S. 49
93 S.Ct. 2628
37 L.Ed.2d 446
PARIS ADULT THEATRE I et al., Petitioners,v.Lewis R. SLATON, District Attorney, Atlanta Judicial Circuit, et al.
No. 71—1051.
Argued Oct. 19, 1972.
Decided June 21, 1973.
Rehearing Denied Oct. 9, 1973.
See 414 U.S. 881, 94 S.Ct. 27.
Syllabus
Respondents sued under Georgia civil law to enjoin the exhibiting by petitioners of two allegedly obscene films. There was no prior restraint. In a jury-waived trial, the trial court (which did not require 'expert' affirmative evidence of obscenity) viewed the films and thereafter dismissed the complaints on the ground that the display of the films in commercial theaters to consenting adult audiences (reasonable precautions having been taken to exclude minors) was 'constitutionally permissible.' The Georgia Supreme Court reversed, holding that the films constituted 'hard core' pornography not within the protection of the First Amendment. Held:
1. Obscene material is not speech entitled to First Amendment protection. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. P. 54.
2. The Georgia civil procedure followed here (assuming use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment) comported with the standards of Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966; Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; and Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469. Pp. 54—55.
3. It was not error to fail to require expert affirmative evidence of the film's obscenity, since the films (which were the best evidence of what they depicted) were themselves placed in evidence. P. 56.
4. States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including 'adult' theaters. Pp. 57—69.
(a) There is a proper state concern with safeguarding against crime and the other arguably ill effects of obscenity by prohibiting the public or commercial exhibition of obscene material. Though conclusive proof is lacking, the States may reasonably determine that a nexus does or might exist between antisocial behavior and obscene material, just as States have acted on unprovable assumptions in other areas of public control. Pp. 57—63.
(b) Though States are free to adopt a laissez-faire policy toward commercialized obscenity, they are not constitutionally obliged to do so. P. 64.
(c) Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. A commercial theater cannot be equated with a private home; nor is there here a privacy right arising from a special relationship, such as marriage. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, distinguished. Nor can the privacy of the home be equated with a 'zone' of 'privacy' that follows a consumer of obscene materials wherever he goes. United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; United States v. 12 200-Foot Reels of Super 8mm., 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500. Pp. 65—67.
(d) Preventing the unlimited display of obscene material is not thought control. Pp. 67—68.
(e) Not all conduct directly involving 'consenting adults' only has a claim to constitutional protection. Pp. 68—69.
5. The Georgia obscenity laws involved herein should now be re-evaluated in the light of the First Amendment standards newly enunciated by the Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. Pp. 69—70.
228 Ga. 343, 185 S.E.2d 768, vacated and remanded.
Robert Eugene Smith, Atlanta, Ga., for petitioners.
Thomas E. Moran, Atlanta, Ga., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the style of 'adult' theaters. On December 28, 1970, respondents, the local state district attorney and the solicitor for the local state trial court, filed civil complaints in that court alleging that petitioners were exhibiting to the public for paid admission two allegedly obscene films, contrary to Georgia Code Ann. § 26 2101.1 The two films in question, 'Magic Mirror' and 'It All Comes Out in the End,' depict sexual conduct characterized by the Georgia Supreme Court as 'hard core pornography' leaving 'little to the imagination.'
2
Respondents' complaints, made on behalf of the State of Georgia, demanded that the two films be declared obscene and that petitioners be enjoined from exhibiting the films. The exhibition of the films was not enjoined, but a temporary injunction was granted ex parte by the local trial court, restraining petitioners from destroying the films or removing them from the jurisdiction. Petitioners were further ordered to have one print each of the films in court on January 13, 1971, together with the proper viewing equipment.
3
On January 13, 1971, 15 days after the proceedings began, the films were produced by petitioners at a jury-waived trial. Certain photographs, also produced at trial, were stipulated to portray the single entrance to both Paris Adult Theatre I and Paris Adult Theatre II as it appeared at the time of the complaints. These photographs show a conventional, inoffensive theater entrance, without any pictures, but with signs indicating that the theaters exhibit 'Atlanta's Finest Mature Feature Films.' On the door itself is a sign saying: 'Adult Theatre—You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter.'
4
The two films were exhibited to the trial court. The only other state evidence was testimony by criminal investigators that they had paid admission to see the films and that nothing on the outside of the theater indicated the full nature of what was shown. In particular, nothing indicated that the films depicted—as as they did—scenes of simulated fellatio, cunnilingus, and group sex intercourse. There was no evidence presented that minors had ever entered the theaters. Nor was there evidence presented that petitioners had a systematic policy of barring minors, apart from posting signs at the entrance. On April 12, 1971, the trial judge dismissed respondents' complaints. He assumed 'that obscenity is established,' but stated:
5
'It appears to the Court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible.'
6
On appeal, the Georgia Supreme Court unanimously reversed. 228 Ga. 343, 185 S.E.2d 768. It assumed that the adult theaters in question barred minors and gave a full warning to the general public of the nature of the films shown, but held that the films were without protection under the First Amendment. Citing the opinion of this Court in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), the Georgia court stated that 'the sale and delivery of obscene material to willing adults is not protected under the first amendment.' The Georgia court also held Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), to be inapposite since it did not deal with 'the commercial distribution of pornography, but with the right of Stanley to possess, in the privacy of his home, pornographic films.' 228 Ga. 343, 345, 185 S.E.2d 768, 769 (1971). After viewing the films, the Georgia Supreme Court held that their exhibition should have been enjoined, stating:
7
'The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that these films are also hard core pornography, and the showing of such films should have been enjoined since their exhibition is not protected by the first amendment.' Id., at 347, 185 S.E.2d, at 770.
8
* It should be clear from the outset that we do not undertake to tell the States what they must do, but rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment. Miller v. California, 413 U.S. 15, at 23—25, 93 S.Ct. 2607, at 2614—2615, 37 L.Ed.2d 419; Kois v. Wisconsin, 408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312 (1972); United States v. Reidel, supra, 402 U.S., at 354, 91 S.Ct., at 1411; 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957).
9
Georgia case law permits a civil injunction of the exhibition of obscene materials. See 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). While this procedure is civil in nature, and does not directly involve the state criminal statute proscribing exhibition of obscene material,2 the Georgia case law permitting civil injunction does adopt the definition of 'obscene materials' used by the criminal statute.3 Today, in Miller v. California, supra, we have sought to clarify the constitutional definition of obscene material subject to regulation by the States, and we vacate and remand this case for reconsideration in light of Miller.
10
This is not to be read as disapproval of the Georgia civil procedure employed in this case, assuming the use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment. On the contrary, such a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation.4 See Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441—444, 77 S.Ct. 1325, 1327—1330, 1 L.Ed.2d 1469 (1957). Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected.5 Thus the standards of Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141—142, 88 S.Ct. 754, 755—756, 19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 58—59, 85 S.Ct. 734, 738—739, 13 L.Ed.2d 649 (1965), and Kingsley Books, Inc. v. Brown, supra, 354 U.S., at 443—445, 77 S.Ct., at 1328—1330, were met. Cf. United States v. Thirty-Seven Photographs 402 U.S. 363, 367—369, 91 S.Ct. 1400, 1403—1405, 28 L.Ed.2d 822 (1971) (opinion of White, J.).
11
Nor was it error to fail to require 'expert' affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. United States v. Groner, 479 F.2d 577, 579—586 (CA5 1973); id., at 586—588 (Ainsworth, J., concurring); id., at 588—589 (Clark, J., concurring); United States v. Wild, 422 F.2d 34, 35—36 (C.A.2 1969), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971); Kahn v. United States, 300 F.2d 78, 84 (C.A.5), cert. denied, 369 U.S. 859, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962); State v. Amato, 49 Wis.2d 638, 645, 183 N.W.2d 29, 32 (1971), cert. denied sub nom. Amato v. Wisconsin, 404 U.S. 1063, 92 S.Ct. 735, 30 L.Ed.2d 751 (1972). See Smith v. California, 361 U.S. 147, 172, 80 S.Ct. 215, 228, 4 L.Ed.2d 205 (1959) (Harland, J., concurring and dissenting); United States v. Brown, 328 F.Supp. 196, 199 (E.D.Va.1971). The films, obviously, are the best evidence of what they represent.6 'In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question.' Ginzburg v. United States, 383 U.S. 463, 465, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966).
II
12
We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, see Miller v. California, supra, 413 U.S., at 18—20, 93 S.Ct., at 2612—2613; Stanley v. Georgia, 394 U.S., at 567, 89 S.Ct., at 1249; Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (1967), this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. See United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376—377, 91 S.Ct., at 1408—1409 (opinion of White, J.); United States v. Reidel, 402 U.S., at 354—356, 91 S.Ct., at 1411—1413. Cf. United States v. Thirty-Seven Photographs, supra, 402 U.S., at 378, 91 S.Ct., at 1409 (Stewart, J., concurring). 'In an unbroken series of cases extending over a long stretch of this Court's history it has been accepted as a postulate that 'the primay requirements of decency may be enforced against obscene publications.' (Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 15 L.Ed. 1357 (1931)).' Kingsley Books, Inc. v. Brown, supra, 354 U.S., at 440, 77 S.Ct., at 1327.
13
In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby.7 Rights and interests 'other than those of the advocates are involved.' Breard v. Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233 (1951). These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime.8 Quite apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel:
14
'It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there . . .. We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places—discreet, if you will, but accessible to all—with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not.' 22 The Public Interest 25—26 (Winter 1971).9 (Emphasis added.)
15
As Mr. Chief Justice Warren stated, there is a 'right of the Nation and of the States to maintain a decent society . . .,' Jacobellis v. Ohio, 378 U.S. 184, 199, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964) (dissenting opinion).10 See Memoirs v. Massachusetts, 383 U.S. 413, 457, 86 S.Ct. 975, 996, 16 L.Ed.2d 1 (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U.S. 250, 256—257, 72 S.Ct. 725, 730—731, 96 L.Ed. 919 (1952); Kovacs v. Cooper, 336 U.S. 77, 86—88, 69 S.Ct. 448, 453—454, 93 L.Ed. 513 (1949).
16
But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, and kind of state regulation is 'impermissible.' We reject this argument. It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself.11 Mr. Justice Brennan, speaking for the Court in Ginsberg v. New York, 390 U.S. 629, 642—643, 88 S.Ct. 1274, 1282, 20 L.Ed.2d 195 (1968), said: 'We do not demand of legislatures 'scientifically certain criteria of legislation.' Noble State Bank v. Haskell, 219 U.S. 104, 110 (31 S.Ct. 186, 187) 55 L.Ed. 112.' Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect 'the social interest in order and morality.' Roth v. United States, 354 U.S., at 485, 77 S.Ct., at 1309, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (emphasis added in Roth).12
17
From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. See Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963); Breard v. Alexandria, 341 U.S., at 632—633, 641—645, 71 S.Ct., at 927—928, 932—934; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 536—537, 69 S.Ct. 251, 257, 93 L.Ed. 212 (1949). The same is true of the federal securities and antitrust laws and a host of federal regulations. See SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186—195, 84 S.Ct. 275, 279—285, 11 L.Ed.2d 237 (1963); American Power & Light Co. v. SEC, 329 U.S. 90, 99—103, 67 S.Ct. 133, 139—141, 91 L.Ed. 103 (1946); North American Co. v. SEC, 327 U.S. 686, 705—707, 66 S.Ct. 785, 796—797, 90 L.Ed. 945 (1946), and cases cited. See also Brooks v. United States, 267 U.S. 432, 436—437, 45 S.Ct. 345, 346, 69 L.Ed. 699 (1925), and Hoke v. United States, 227 U.S. 308, 322, 33 S.Ct. 281, 283, 57 L.Ed. 523 (1913). On the basis of these assumptions both Congress and state legislatures have, for example, drastically restricted associational rights by adopting antitrust laws, and have strictly regulated public expression by issuers of and dealers in securities, profit sharing 'coupons,' and 'trading stamps,' commanding what they must and must not publish and announce. See Sugar Institute, Inc. v. United States, 297 U.S. 553, 597—602, 56 S.Ct. 629, 641—644, 80 L.Ed. 859 (1936); Merrick v. N. W. Halsey & Co., 242 U.S. 568, 584—589, 37 S.Ct. 227, 230—232, 61 L.Ed. 498 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 567 568, 37 S.Ct. 224, 226—227, 61 L.Ed. 493 (1917); Hall v. Geiger-Jones Co., 242 U.S. 539, 548—552, 37 S.Ct. 217, 220—221, 61 L.Ed. 480 (1917); Tanner v. Little, 240 U.S. 369, 383—386, 36 S.Ct. 379, 383—385, 60 L.Ed. 691 (1916); Rast v. Van Deman & Lewis Co., 240 U.S. 342, 363—368, 36 S.Ct. 370, 376—379, 60 L.Ed. 679 (1916). Understandably those who entertain an absolutist view of the First Amendment find it uncomfortable to explain why rights of association, speech, and press should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography.
18
Likewise, when legislatures and administrators act to protect the physical environment from pollution and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 417—420, 91 S.Ct. 814, 824—826, 28 L.Ed.2d 136 (1971). Thus, § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, and the Department of Transportation Act of 1966, as amended, 82 Stat. 824, 49 U.S.C. § 1653(f), have been described by Mr. Justice Black as 'a solemn determination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, fact-findings, and policy determinations under the supervision of a Cabinet officer . . ..' Citizens to Preserve Overton Park, supra, 401 U.S., at 421, 91 S.Ct., at 826 (separate opinion joined by Brennan, J.). The fact that a congressional directive reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, is not a sufficient reason to find that statute unconstitutional.
19
If we accept the unprovable assumption that a complete education requires the reading of certain books, see Board of Education v. Allen, 392 U.S. 236, 245, 88 S.Ct. 1923, 1927, 20 L.Ed.2d 1060 (1968), and Johnson v. New York State Education Dept., 449 F.2d 871, 882—883 (CA2 1971) (dissenting opinion), vacated and remanded to consider mootness, 409 U.S. 75, 93 S.Ct. 259, 34 L.Ed.2d 290 (1972), id., at 76—77, 93 S.Ct., at 259—260 (Marshall, J., concurring), and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? 'Many of these effects may be intangible and indistinct, but they are nonetheless real.' American Power & Light Co. v. SEC, supra, 329 U.S., at 103, 67 S.Ct., at 141. Mr. Justice Cardozo said that all laws in Western civilization are 'guided by a robust common sense . . ..' Steward Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 892, 81 L.Ed. 1279 (1937). The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data.
20
It is argued that individual 'free will' must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual's desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. We have just noted, for example, that neither the First Amendment nor 'free will' precludes States from having 'blue sky' laws to regulate what sellers of securities may write or publish about their wares. See supra, at 61—62. Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition. Nor do modern societies leave disposal of garbage and sewage up to the individual 'free will,' but impose regulation to protect both public health and the appearance of public places. States are told by some that they must await a 'laissez-faire' market solution to the obscenity-pornography problem, paradoxically 'by people who have never otherwise had a kind word to say for laissez-faire,' particularly in solving urban, commercial, and environmental pollution problems. See I. Kristol, On the Democratic Idea in America 37 (1972).
21
The States, of course, may follow such a 'laissez-faire' policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. See United States v. Reidel, 402 U.S., at 357, 91 S.Ct., at 1413; Memoirs v. Massachusetts, 383 U.S., at 462, 86 S.Ct., at 999 (White, J., dissenting). 'We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.' Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965). See Ferguson v. Skrupa, 372 U.S., at 731, 83 S.Ct., at 1031; Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469 (1952).
22
It is asserted, however, that standards for evaluating state commercial regulations are inapposite in the present context, as state regulation of access by consenting adults to obscene material violates the constitutionally protected right to privacy enjoyed by petitioners' customers. Even assuming that petitioners have vicarious standing to assert potential customers' rights, it is unavailing to compare a theater, open to the public for a fee, with the private home of Stanley v. Georgia, 394 U.S., at 568, 89 S.Ct., at 1249, and the marital bedroom of Griswold v. Connecticut, supra, 381 U.S., at 485—486, 85 S.Ct., at 1682—1683. This Court, has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are 'private' for the purpose of civil rights litigation and civil rights statutes. See Sillivan v. Little Hunting Park, Inc., 396 U.S. 229, 236, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969); Daniel v. Paul, 395 U.S. 298, 305—308, 89 S.Ct. 1697, 1701—1703, 23 L.Ed.2d 318 (1969); Blow v. North Carolina, 379 U.S. 684, 685—686, 85 S.Ct. 635, 636, 13 L.Ed.2d 603 (1965); Hamm v. Rock Hill, 379 U.S. 306, 307—308, 85 S.Ct. 384, 387—388, 13 L.Ed.2d 300 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 247, 260—261, 85 S.Ct. 348, 352, 359—360, 13 L.Ed.2d 258 (1964). The Civil Rights Act of 1964 specifically defines motion-picture houses and theaters as places of 'public accommodation' covered by the Act as operations affecting commerce. 78 Stat. 243, 42 U.S.C. § 2000a(b) (3), (c).
23
Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included 'only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty.' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937).' Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing. Cf. Eisenstadt v. Baird, 405 U.S. 438, 453—454, 92 S.Ct. 1029, 1038 1039, 31 L.Ed.2d 349 (1972); id., at 460, 463—465, 92 S.Ct., at 1042, 1043—1044 (White, J., concurring); Stanley v. Georgia, supra, 394 U.S., at 568, 89 S.Ct., at 1249; Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct., 1817, 1823, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, supra, 381 U.S., at 486, 85 S.Ct., at 1682; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). Nothing, however, in this Court's decisions intimates that there is any 'fundamental' privacy right 'implicit in the concept of ordered liberty' to watch obscene movies in places of public accommodation.
24
If obscene material unprotected by the First Amendment in itself carried with it a 'penumbra' of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the 'privacy of the home,' which was hardly more than a reaffirmation that 'a man's home is his castle.' Cf. Stanley v. Georgia, supra, 394 U.S., at 564, 89 S.Ct., at 1247.13 Moreover, we have declined to equate the privacy of the home relied on in Stanley with a 'zone' of 'privacy' that follows a distributor or a consumer of obscene materials whatever he goes. See United States v. Orito, 413 U.S. 139, at 141—143, 93 S.Ct. 2674, at 2676—2678, 37 L.Ed.2d 513; United States v. Twelve 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, at 126—129, 93 S.Ct. 2665, at 2667—2669, 37 L.Ed.2d 500; United States v. Thirty-Seven Photographs, 402 U.S., at 376—377, 91 S.Ct., at 1408 1409 (opinion of White, J.); United States v. Reidel, supra, 402 U.S., at 355, 91 S.Ct., at 1412. The idea of a 'privacy' right and a place of public accommodation are, in this context, mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a 'live' theater stage, any more than a 'live' performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue.
25
It is also argued that the State has no legitimate interest in 'control (of) the moral content of a person's thoughts,' Stanley v. Georgia, supra, 394 U.S., at 565, 89 S.Ct., at 1248 and we need not quarrel with this. But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller v. California, supra, 413 U.S., at 24, 34, 93 S.Ct., at 2615, 2620, is distinct from a control of reason and the intellect. Cf. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); Roth v. United States, supra, 354 U.S., at 485—487, 77 S.Ct., at 1309—1310; Thornhill v. Alabama, 310 U.S. 88, 101—102, 60 S.Ct. 736, 743—744, 84 L.Ed. 1093 (1940); Finnis, 'Reason and Passion': The Constitutional Dialectic of Free Speech and Obscenity, 116 U.Pa.L.Rev. 222, 229 230, 241—243 (1967). Where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley, or any of the other 'areas or zones' of constitutionally protected privacy, the mere fact that, as a consequence, some human 'utterances' or 'thoughts' may be incidentally affected does not bar the State from acting to protect legitimate state interests. Cf. Roth v. United States, supra, 354 U.S., at 483, 485—487, 77 S.Ct., at 1308, 1309—1310; Beauharnais v. Illinois, 343 U.S., at 256—257, 72 S.Ct., at 730 731. The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not prohibited by the Constitution. Cf. United States v. Reidel, supra, 402 U.S., at 359—360, 91 S.Ct., at 1414 (Harlan, J., concurring).
26
Finally, petitioners argue that conduct which directly involves 'consenting adults' only has, for that sole reason, a special claim to constitutional protection. Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation,14 is a step we are unable to take.15 Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State's broad power to regulate commerce and protect the public environment. The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as 'wrong' or 'sinful.' The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize in Mr. Chief Justice Warren's words, the States' 'right . . . to maintain a decent society.' Jacobellis v. Ohio, 378 U.S., at 199, 84 S.Ct., at 1684 (dissenting opinion).
27
To summarize, we have today reaffirmed the basic holding of Roth v. United States, supra, that obscene material has no protection under the First Amendment. See Miller v. California, supra, and Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492. We have directed our holdings, not at thoughts or speech, but at depiction and description of specifically defined sexual conduct that States may regulate within limits designed to prevent infringement of First Amendment rights. We have also reaffirmed the holdings of United States v. Reidel, supra, and United States v. Thirty-Seven Photographs, supra, that commerce in obscene material is unprotected by any constitutional doctrine of privacy. United States v. Orito, supra, 413 U.S., at 141—143, 93 S.Ct., at 2676—2678; United States v. Twelve 200-Foot Reels of Super 8 mm. Film, 413 U.S., at 126—129, 93 S.Ct., at 2668—2669. In this case we hold that the States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, incloding so-called 'adult' theaters from which minors are excluded. In light of these holdings, nothing precludes the State of Georgia from the regulation of the allegedly obscene material exhibited in Paris Adult Theatre I or II, provided that the applicable Georgia law, as written or authoritatively interpreted by the Georgia courts, meets the First Amendment standards set forth in Miller v. California, supra, 413 U.S., at 23—25, 93 S.Ct., at 2614—2616. The judgment is vacated and the case remanded to the Georgia Supreme Court for further proceedings not inconsistent with this opinion and Miller v. California, supra. See United States v. 12 200-Foot Reels of Super 8 mm. Film, 413 U.S., at 130 n. 7, 93 S.Ct., at 2670, n. 7.
28
Vacated and remanded.
29
Mr. Justice DOUGLAS, dissenting.
30
My Brother BRENNAN is to be commended for seeking a new path through the thicket which the Court entered when it undertook to sustain the constitutionality of obscenity laws and to place limits on their application. I have expressed on numerous occasions my disagreement with the basic decision that held that 'obscenity' was not protected by the First Amendment. I disagreed also with the definitions that evolved. Art and literature reflect tastes; and tastes, like musical appreciation, are hardly reducible to precise definitions. That is one reason I have always felt that 'obscenity' was not an exception to the First Amendment. For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals. They are too personal to define and too emotional and vague to apply, as witness the prison term for Ralph Ginzburg, Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, not for what he printed but for the sexy manner in which he advertised his creations.
31
The other reason I could not bring myself to conclude that 'obscenity' was not covered by the First Amendment was that prior to the adoption of our Constitution and Bill of Rights the Colonies had no law excluding 'obscenity' from the regime of freedom of expression and press that then existed. I could find no such laws; and more important, our leading colonial expert, Julius Goebel, could find none, J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937). So I became convinced that the creation of the 'obscenity' exception to the First Amendment was a legislative and judicial tour de force; that if we were to have such a regime of censorship and punishment, it should be done by constitutional amendment.
32
People are, of course, offended by many offerings made by merchants in this area. They are also offended by political pronouncements, sociological themes, and by stories of official misconduct. The list of activities and publications and pronouncements that offend someone is endless. Some of it goes on in private; some of it is inescapably public, as when a government official generates crime, becomes a blatant offender of the moral sensibilities of the people, engages in burglary, or breaches the privacy of the telephone, the conference room, or the home. Life in this crowded modern technological world creates many offensive statements and many offensive deeds. There is no protection against offensive ideas, only against offensive conduct.
33
'Obscenity' at most is the expression of offensive ideas. There are regimes in the world where ideas 'offensive' to the majority (or at least to those who control the majority) are suppressed. There life proceeds at a monotonous pace. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where bookstalls were filled only with books on mathematics and books on religion.
34
I am sure I would find offensive most of the books and movies charged with being obscene. But in a life that has not been short, I have yet to be trapped into seeing or reading something that would offend me. I never read or see the materials coming to the Court under charges of 'obscenity,' because I have thought the First Amendment made it unconstitutional for me to act as a censor. I see ads in bookstores and neon lights over theaters that resemble bait for those who seek vicarious exhilaration. As a parent or a priest or as a teacher I would have no compunction in edging my children or wards away from the books and movies that did no more than excite man's base instincts. But I never supposed that government was permitted to sit in judgment on one's tastes or beliefs—save as they involved action within the reach of the police power of government.
35
I applaud the effort of my Brother BRENNAN to forsake the low road which the Court has followed in this field. The new regime he would inaugurate is much closer than the old to the policy of abstention which the First Amendment proclaims. But since we do not have here the unique series of problems raised by government-imposed or government-approved captive audiences, cf. Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068, I see no constitutional basis for fashioning a rule that makes a publisher, producer, bookseller, librarian, or movie house operator criminally responsible, when he fails to take affirmative steps to protect the consumer against literature, books, or movies offensive* to those who temporarily occupy the seats of the mighty.
36
When man was first in the jungle he took care of himself. When he entered a societal group, controls were necessarily imposed. But our society—unlike most in the world—presupposes that freedom and liberty are in a frame of reference that makes the individual, not government, the keeper of his tastes, beliefs, and ideas. That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world.
37
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
38
This case requires the Court to confront once again the vexing problem of reconciling state efforts to suppress sexually oriented expression with the protections of the First Amendment, as applied to the States through the Fourteenth Amendment. No other aspect of the First Amendment has, in recent years, demanded so substantial a commitment of our time, generated such disharmony of views, and remained so resistant to the formulation of stable and manageable standards. I am convinced that the approach initiated 16 years ago in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and culminating in the Court's decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach.
39
In this civil action in the Superior Court of Fulton County, the State of Georgia sought to enjoin the showing of two motion pictures, It All Comes Out In The End, and Magic Mirror, at the Paris Adult Theatres (I and II) in Atlanta, Georgia. The State alleged that the films were obscene under the standards set forth in Georgia Code Ann. § 26—2101.1 The trial court denied injunctive relief, holding that even though the films could be considered obscene, their commercial presentation could not constitutionally be barred in the absence of proof that they were shown to minors or unconsenting adults. Reversing, the Supreme Court of Georgia found the films obscene, and held that the care taken to avoid exposure to minors and unconsenting adults was without constitutional significance.
40
* The Paris Adult Theatres are two commercial cinemas, linked by a common box office and lobby, on Peachtree Street in Atlanta, Georgia. On December 28, 1970, investigators employed by the Criminal Court of Fulton County entered the theaters as paying customers and viewed each of the films which are the subject of this action. Thereafter, two separate complaints, one for each of the two films, were filed in the Superior Court seeking a declaration that the films were obscene and an injunction against their continued presentation to the public. The complaints alleged that the films were 'a flagrant violation of Georgia Code Section 26—2101 in that the sole and dominant theme(s) of the said motion picture film(s) considered as a whole and applying contemporary community standards (appeal) to the prurient interest in sex, nudity and excretion, and that the said motion picture film(s are) utterly and absolutely without any redeeming social value whatsoever, and (transgress) beyond the customary limits of candor in describing and discussing sexual matters.' App. 20, 39.
41
Although the language of the complaints roughly tracked the language of § 26—2101, which imposes criminal penalties on persons who knowingly distribute obscene materials,2 this proceeding was not brought pursuant to that statute. Instead, the State initiated a non-statutory civil proceeding to determine the obscenity of the films and to enjoin their exhibition. While the parties waived jury trial and stipulated that the decision of the trial court would be final on the issue of obscenity, the State has not indicated whether it intends to bring a criminal action under the statute in the event that it succeeds in proving the films obscene.
42
Upon the filing of the complaints, the trial court scheduled a hearing for January 13, 1971, and entered an order temporarily restraining the defendants from concealing, destroying, altering, or removing the films from the jurisdiction, but not from exhibiting the films to the public pendente lite. In addition to viewing the films at the hearing, the trial court heard the testimony of witnesses and admitted into evidence photographs that were stipulated to depict accurately the facade of the theater. The witnesses testified that the exterior of the theater was adorned with prominent signs reading 'Adults Only,' 'You Must Be 21 and Able to Prove It,' and 'If the Nude Body Offends You, Do Not Enter.' Nothing on the outside of the theater described the films with specificity. Nor were pictures displayed on the outside of the theater to draw the attention of passersby to the contents of the films. The admission charge to the theaters was $3. The trial court heard no evidence that minors had ever entered the theater, but also heard no evidence that petitioners had enforced a systematic policy of screening out minors (apart from the posting of the notices referred to above).
43
On the basis of the evidence submitted, the trial court concluded that the films could fairly be considered obscene, '(a)ssuming that obscenity is established by a finding that the actors cavorted about in the nude indiscriminately,' but held, nonetheless, that 'the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible.'3 Since the issue did not arise in a statutory proceeding, the trial court was not required to pass upon the constitutionality of any state statute, on its face or as applied, in denying the injunction sought by the State.
44
The Supreme Court of Georgia unanimously reversed, reasoning that the lower court's reliance on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), was misplaced in view of our subsequent decision in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971):
45
'In (Reidel), the Supreme Court expressly held that the government could constitutionally prohibit the distribution of obscene materials through the mails, even though the distribution be limited to willing recipients who state that they are adults, and, further, that the constitutional right of a person to possess obscene material in the privacy of his own home, as expressed in the Stanley case, does not carry with it the right to sell and deliver such material. . . . Those who choose to pass through the front door of the defendant's theater and purchase a ticket to view the films and who certify thereby that they are more than 21 years of age are willing recipients of the material in the same legal sense as were those in the Reidel case, who, after reading the newspaper advertisements of the material, mailed an order to the defendant accepting his solicitation to sell them the obscene booklet there. That case clearly establishes once and for all that the sale and delivery of obscene material to willing adults is not protected under the first amendment.' 228 Ga. 343, 346, 185 S.E.2d 768, 769—770 (1971).
46
The decision of the Georgia Supreme Court rested squarely on its conclusion that the State could constitutionally suppress these films even if they were displayed only to persons over the age of 21 who were aware of the nature of their contents and who had consented to viewing them. For the reasons set forth in this opinion, I am convinced of the invalidity of that conclusion of law, and I would therefore vacate the judgment of the Georgia Supreme Court. I have no occasion to consider the extent of state power to regulate the distribution of sexually oriented materials to juveniles or to unconsenting adults. Nor am I required, for the purposes of this review, to consider whether or not these petitioners had, in fact, taken precautions to avoid exposure of films to minors or unconsenting adults.
II
47
In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court held that obscenity, although expression, falls outside the area of speech or press constitutionally protected under the First and Fourteenth Amendments against state or federal infringement. But at the same time we emphasized in Roth that 'sex and obscenity are not synonymous,' id., at 487, 77 S.Ct., at 1310, and that matter which is sexually oriented but not obscene is fully protected by the Constitution. For we recognized that '(s)ex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.' Ibid.4 Roth rested, in other words, on what has been termed a two-level approach to the question of obscenity.5 While much criticized,6 that approach has been endorsed by all but two members of this Court who have addressed the question since Roth. Yet our efforts to implement that approach demonstrate that agreement on the existence of something called 'obscenity' is still a long and painful step from agreement on a workable definition of the term.
48
Recognizing that 'the freedoms of expression . . . are vulnerable to gravely damaging yet barely visible encroachments,' Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963), we have demanded that 'sensitive tools' be used to carry out the 'separation of legitimate from illegitimate speech.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). The essence of our problem in the obscenity area is that we have been unable to provide 'sensitive tools' to separate obscenity from other sexually oriented but constitutionally protected speech, so that efforts to suppress the former do not spill over into the suppression of the latter. The attempt, as the late Mr. Justice Harlan observed, has only 'produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.' Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704—705, 88 S.Ct. 1298, 1314, 20 L.Ed.2d 225 (1968) (separate opinion).
49
To be sure, five members of the Court did agree in Roth that obscenity could be determined by asking 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct., at 1311. But agreement on that test—achieved in the abstract and without reference to the particular material before the Court, see id., at 481 n. 8, 77 S.Ct., at 1307—was, to say the least, short lived. By 1967 the following views had emerged: Mr. Justice Black and Mr. Justice Douglas consistently maintained that government is wholly powerless to regulate any sexually oriented matter on the ground of its obscenity. See, e.g., Ginzburg v. United States, 383 U.S. 463, 476, 482, 86 S.Ct. 942, 950, 953, 16 L.Ed.2d 31 (1966) (dissenting opinions); Jacobellis v. Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964) (concurring opinion); Roth v. United States, supra, 354 U.S., at 508, 77 S.Ct., at 1321 (dissenting opinion). Mr. Justice Harlan, on the other hand, believed that the Federal Government in the exercise of its enumerated powers could control the distribution of 'hard core' pornography, which the States were afforded more latitude to '(ban) any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner, under rationally established criteria for judging such material.' Jacobellis v. Ohio, supra, 378 U.S., at 204, 84 S.Ct., at 1686 (dissenting opinion). See also, e.g., Ginzburg v. United States, supra, 383 U.S., at 493, 86 S.Ct., at 953 (dissenting opinion); A Quantity of Books v. Kansas, 378 U.S. 205, 215, 84 S.Ct. 1723, 1727, 12 L.Ed.2d 809 (1964) (dissenting opinion joined by Clark, J.); Roth, supra, 354 U.S., at 496, 77 S.Ct., at 1315 (separate opinion). Mr. Justice Stewart regarded 'hard core' pornography as the limit of both federal and state power. See, e.g., Ginzburg v. United States, supra, 383 U.S., at 497, 86 S.Ct., at 955 (dissenting opinion); Jacobellis v. Ohio, supra, 378 U.S., at 197, 84 S.Ct., at 1683 (concurring opinion).
50
The view that, until today, enjoyed the most, but not majority, support was an interpretation of Roth (and not, as the Court suggests, a veering 'sharply away from the Roth concept' and the articulation of 'a new test of obscenity,' Miller v. California, 413 U.S., at 21, 93 S.Ct., at 2613) adopted by Mr. Chief Justice Warren, Mr. Justice Fortas, and the author of this opinion in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). We expressed the view that Federal or State Governments could control the distribution of material where 'three elements . . . coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' Id., at 418, 86 S.Ct., at 977. Even this formulation, however, concealed differences of opinion. Compare Jacobellis v. Ohio, supra, 378 U.S., at 192—195, 84 S.Ct., at 1680—1682 (Brennan, J., joined by Goldberg, J.) (community standards national), with id., at 200 201, 84 S.Ct., at 1684—1685 (Warren, C.J., joined by Clark, J., dissenting) (community standards local).7 Moreover, it did not provide a definition covering all situations. See Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966) (prurient appeal defined in terms of a deviant sexual group); Ginzburg v. United States, supra ('pandering' probative evidence of obscenity in close cases). See also Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (obscenity for juveniles). Nor, finally, did it ever command a majority of the Court. Aside from the other views described above, Mr. Justice Clark believed that 'social importance' could only 'be considered together with evidence that the material in question appeals to prurient interest and is patently offensive.' Memoirs v. Massachusetts, 383 U.S., at 445, 86 S.Ct., at 991 (dissenting opinion). Similarly, Mr. Justice White regarded 'a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor,' id., at 460—461, 86 S.Ct., at 999 (dissenting opinion), and regarded "social importance' . . . not (as) an independent test of obscenity but (as) relevant only to determining the predominant prurient interest of the material . . ..' Id., at 462, 86 S.Ct., at 999.
51
In the face of this divergence of opinion the Court began the practice in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), of per curiam reversals of convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, deemed not to be obscene.8 This approach capped the attempt in Roth to separate all forms of sexually oriented expression into two categories—the one subject to full governmental suppression and the other beyond the reach of governmental regulation to the same extent as any other protected form of speech or press. Today a majority of the Court offers a slightly altered formulation of the basic Roth test, while leaving entirely unchanged the underlying approach.
III
52
Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments. For we have failed to formulate a standard that sharply distinguishes protected from unprotected speech, and out of necessity, we have resorted to the Redrup approach, which resolves cases as between the parties, but offers only the most obscure guidance to legislation, adjudication by other courts, and primary conduct. By disposing of cases through summary reversal or denial of certiorari we have deliberately and effectively obscured the rationale underlying the decisions. It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion.
53
Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our failure to reach a consensus on any one standard. But after 16 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as 'prurient interest,' 'patent offensiveness,' 'serious literary value,' and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we 'know it when (we) see it,' Jacobellis v. Ohio, supra, 378 U.S., at 197, 84 S.Ct., at 1683 (Stewart, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.
54
We have more than once previously acknolwedged that 'constitutionally protected expression . . . is often separated from obscenity only by a dim and uncertain line.' Bantam Books, Inc. v. Sullivan, 372 U.S., at 66, 83 S.Ct., at 637. See also, e.g., Mishkin v. New York, supra, 383 U.S., at 511, 86 S.Ct., at 964. Added to the 'perhaps inherent residual vagueness' of each of the current multitude of standards, Ginzburg v. United States, supra, 383 U.S., at 475 n. 19, 86 S.Ct., at 950, is the further complication that the obscenity of any particular item may depend upon nuances of presentation and the context of its dissemination. See ibid. Redrup itself suggested that obtrusive exposure to unwilling individuals, distribution to juveniles, and 'pandering' may also bear upon the determination of obscenity. See Redrup v. New York, supra, 386 U.S., at 769, 87 S.Ct., at 1415. As Mr. Chief Justice Warren stated in a related vein, obscenity is a function of the circumstances of its dissemination:
55
'It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character.' Roth, 354 U.S., at 495, 77 S.Ct., at 1314 (concurring opinion).
56
See also, e.g., Jacobellis v. Ohio, supra, 378 U.S., at 201, 84 S.Ct., at 1685 (dissenting opinion); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 445—446, 77 S.Ct. 1325, 1330—1331, 1 L.Ed.2d 1469 (1957) (dissenting opinion). I need hardly point out that the factors which must be taken into account are judgmental and can only be applied on 'a case-by-case, sight-by-sight' basis. Mishkin v. New York, supra, 383 U.S., at 516, 86 S.Ct., at 968 (Black, J., dissenting). These considerations usggest that no one definition, no matter how precisely or narrowly drawn, can possibly suffice for all situations, or carve out fully suppressible expression from all media without also creating a substantial risk of encroachment upon the guarantees of the Due Process Clause and the First Amendment.9
57
The vagueness of the standards in the obscenity area produces a number of separate problems, and any improvement must rest on an understanding that the problems are to some extent distinct. First, a vague statute fails to provide adequate notice to persons who are engaged in the type of conduct that the statute could be thought to proscribe. The Due Process Clause of the Fourteenth Amendment requires that all criminal laws provide fair notice of 'what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939); Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). In the service of this general principle we have repeatedly held that the definition of obscenty must provide adequate notice of exactly what is prohibited from dissemination. See, e.g., Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972); Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). While various tests have been upheld under the Due Process Clause, see Ginsberg v. New York, 390 U.S., at 643, 88 S.Ct., at 1282; Mishkin v. New York, 383 U.S., at 506—507, 86 S.Ct., at 962—963; Roth v. United States, 354 U.S., at 491—492, 77 S.Ct., at 1312—1313, I have grave doubts that any of those tests could be sustained today. For I know of no satisfactory answer to the assertin by Mr. Justice Black, 'after the fourteen separate opinions handed down' in the trilogy of cases decided in 1966, that 'no person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of 'obscenity' . . ..' Ginzburg v. United States, 383 U.S., at 480—481, 86 S.Ct., at 952—953 (dissenting opinion). See also the statement of Mr. Justice Harlan in Interstate Circuit, Inc. Justice Harlan in Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at 707, 88 S.Ct., Chief Justice Warren pointed out, '(t)he constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). In this context, even the most painstaking efforts to determine in advance whether certain sexually oriented expression is obscene must inevitably prove unavailing. For the insufficiency of the notice compels persons to guess not only whether their conduct is covered by a criminal statute, but also whether their conduct falls within the constitutionally permissible reach of the statute. The resulting level of uncertainty is utterly intolerable, not alone because it makes '(b)ookselling . . . a hazardous profession,' Ginsberg v. New York, supra, 390 U.S., at 674, 88 S.Ct., at 1298 (Fortas, J., dissenting), but as well because it invites arbitrary and erratic enforcement of the law. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Gregory v. City of Chicago, 394 U.S. 111, 120, 89 S.Ct. 946, 951, 22 L.Ed.2d 134 (1969) (Black, J., concurring); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280 (1951); Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed.2d 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).
58
In addition to problems that arise when any criminal statute fails to afford fair notice of what it forbids, a vague statute in the areas of speech and press creates a second level of difficulty. We have indicated that 'stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.'10 Smith v. California, 361 U.S. 147, 151, 80 S.Ct., 215, 217, 4 L.Ed.2d 205 (1959). That proposition draws its strength from our recognition that
59
'(t)he fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar . . ..' Roth, supra, 354 U.S., at 488, 77 S.Ct., at 1311.11
60
To implement this general principle, and recognizing the inherent vagueness of any definition of obscenity, we have held that the definition of obscenity must be drawn as narrowly as possible so as to minimize the interference with protected expression. Thus, in Roth we rejected the test of Regina v. Hicklin, (1868) L.R. 3 Q.B. 360, that '(judged) obscenity by the effect of isolated passages upon the most susceptible persons.' 354 U.S., at 489, 77 S.Ct., at 1311. That test, we held in Roth, 'might well encompass material legitimately treating with sex . . ..' Ibid. Cf. Mishkin v. New York, supra, 383 U.S., at 509, 86 S.Ct., at 963. And we have supplemented the Roth standard with additional tests in an effort to hold in check the corrosive effect of vagueness on the guarantees of the First Amendment.12 We have held, for example, that 'a State is not free to adopt whatever procedures it pleases for dealing with obscenity . . ..' Marcus v. Search Warrants, 367 U.S. 717, 731, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). 'Rather, the First Amendment requires that procedures be incorporated that 'ensure against the curtailment of constitutionally protected expression . . .." Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971), quoting from Bantam Books, Inc., v. Sullivan, 372 U.S., at 66, 83 S.Ct., at 637. See generally Rizzi, supra, 400 U.S., at 417, 91 S.Ct., at 428; United States v. Thirty-Seven Photographs, 402 U.S. 363, 367 375, 91 S.Ct. 1400, 1403—1408, 28 L.Ed.2d 822 (1971); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968); Freedman v. Maryland, 380 U.S. 51, 58—60, 85 S.Ct. 734, 738—740, 13 L.Ed.2d 649 (1965); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) (plurality opinion).
61
Similarly, we have held that a State cannot impose criminal sanctions for the possession of obscene material absent proof that the possessor had knowledge of the contents of the material. Smith v. California, supra. 'Proof of scienter' is necessary 'to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity.' Mishkin v. New York, supra, 383 U.S., at 511, 86 S.Ct., at 965; Ginsberg v. New York, supra, 390 U.S., at 644—645, 88 S.Ct., at 1283—1284. In short,
62
'(t)he objectionable quality of vagueness and overbreadth . . . (is) the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Cf. Marcus v. Search Warrant, 367 U.S. 717, 733 (81 S.Ct. 1708, 1717) 6 L.Ed.2d 1127. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, (361 U.S. 147), at 151—154 (80 S.Ct. 215, at 217—219, 4 L.Ed.2d 205): Speiser v. Randall, 357 U.S. 513, 526 (78 S.Ct. 1332, 1342), 2 L.Ed.2d 1460. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U.S. 296, 311 (60 S.Ct. 900, 906) 84 L.Ed. 1213.' NAACP v. Button, 371 U.S. 415, 432—433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).
63
The problems of fair notice and chilling protected speech are very grave standing alone. But it does not detract from their importance to recognize that a vague statute in this area creates a third, although admittedly more subtle, set of problems. These problems concern the institutional stress that inevitably results where the line separating protected from unprotected speech is excessively vague. In Roth we conceded that 'there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls . . ..' 354 U.S., at 491—492, 77 S.Ct., at 1313. Our subsequent experience demonstrates that almost every case is 'marginal.' And since the 'margin' marks the point of separation between protected and unprotected speech, we are left with a system in which almost every obscenity case presents a constitutional question of exceptional difficulty. 'The suppression of a particular writing or other tangible form of expression is . .. an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards.' Roth, supra, 354 U.S., at 497, 77 S.Ct., at 1315 (separate opinion of Harlan, J.).
64
Examining the rationale, both explicit and implicit, of our vagueness decisions, one commentator has viewed these decisions as an attempt by the Court to establish an 'insulating buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms.' Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75 (1960). The buffer zone enables the Court to fend off legislative attempts 'to pass to the courts—and ultimately to the Supreme Court—the awesome task of making case by case at once the criminal and the constitutional law.' Id., at 81. Thus,
65
'(b)ecause of the Court's limited power to reexamine fact on a cold record, what appears to be going on in the administration of the law must be forced, by restrictive procedures, to reflect what is really going on; and because of the impossibility, through sheer volume of cases, of the Court's effectively policing law administration case by case, those procedures must be framed to assure, as well as procedures can assure, a certain overall probability of regularity.' Id., at 89. (emphasis in original).
66
As a result of our failure to define standards with predictable application to any given piece of material, there is no probability of regularity in obscenity decisions by state and lower federal courts. That is not to say that these courts have performed badly in this area or paid insufficient attention to the principles we have established. The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so. The number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court.
67
But the sheer number of the cases does not define the full extent of the institutional problem. For, quite apart from the number of cases involved and the need to make a fresh constitutional determination in each case, we are tied to the 'absurd business of perusing and viewing the miserable stuff that pours into the Court . . ..' Interstate Circuit, Inc. v. Dallas, 390 U.S., at 707, 88 S.Ct., at 1315 (separate opinion of Harlan, J.). While the material may have varying degrees of social importance, it is hardly a source of edification to the members of this Court who are compelled to view it before passing on its obscenity. Cf. Mishkin v. New York, 383 U.S., at 516—517, 86 S.Ct., at 968—969 (Black, J., dissenting).
68
Moreover, we have managed the burden of deciding scores of obscenity cases by relying on per curiam reversals or denials of certiorari—a practice which conceals the rationale of decision and gives at least the appearance of arbitrary action by this Court. See Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970) (Harlan, J., dissenting). More important, no less than the procedural schemes struck down in such cases as Blount v. Rizzi, supra, and Freedman v. Maryland, supra, the practice effectively censors protected expression by leaving lower court determinations of obscenity intact even though the status of the allegedly obscene material is entirely unsettled until final review here. In addition, the uncertainty of the standards creates a continuing source of tension between state and federal courts, since the need for an independent determination by this Court seems to render superfluous even the most conscientious analysis by state tribunals. And our inability to justify our decisions with a persuasive rationale—or indeed, any rationale at all—necessarily creates the impression that we are merely second-guessing state court judges.
69
The severe problems arising from the lack of fair notice, from the chill on porotected expression, and from the stress imposed on the state and federal judicial machinery persuade me that a significant change in direction is urgently required. I turn, therefore, to the alternatives that are now open.
IV
70
1. The approach requiring the smallest deviation from our present course would be to draw a new line between protected and unprotected speech, still permitting the States to suppress all material on the unprotected side of the line. In my view, clarity cannot be obtained pursuant to this approach except by drawing a line that resolves all doubt in favor of state power and against the guarantees of the First Amendment. We could hold, for example, that any depiction or description of human sexual organs, irrespective of the manner or purpose of the portrayal, is outside the protection of the First Amendment and therefore open to suppression by the States. That formula would, no doubt, offer much fairer notice of the reach of any state statute drawn at the boundary of the State's constitutional power. And it would also, in all likelihood, give rise to a substantial probability of regularity in most judicial determinations under the standard. But such a standard would be appallingly overbroad, permitting the suppression of a vast range of literary, scientific, and artistic masterpieces. Neither the First Amendment nor any free community could possibly tolerate such a standard. Yet short of that extreme it is hard to see how any choice of words could reduce the vagueness problem to tolerable proportions, so long as we remain committed to the view that some class of materials is subject to outright suppression by the State.
71
2. The alternative adopted by the Court today recognizes that a prohibition against any depiction or description of human sexual organs could not be reconciled with the guarantees of the First Amendment. But the Court does retain the view that certain sexually oriented material can be considered obscene and therefore unprotected by the First and Fourteenth Amendments. To describe that unprotected class of expression, the Court adopts a restatement of the Roth-Memoirs definition of obscenity: 'The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . .. (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.' Miller v. California, 413 U.S., at 24, 93 S.Ct., at 2615. In apparent illustration of 'sexual conduct,' as that term is used in the test's second element, the Court identifies '(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,' and '(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.' Id., 25, 93 S.Ct., at 2615.
72
The differences between this formulation and the three-pronged Memoirs test are, for the most part, academic.13 The first element of the Court's test is virtually identical to the Memoirs requirement that 'the dominant theme of the material taken as a whole (must appeal) to a prurient interest in sex.' 383 U.S., at 418, 86 S.Ct., at 977. Whereas the second prong of the Memoirs test demanded that the material be 'patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters,' ibid., the test adopted today requires that the material describe, 'In a patently offensive way, sexual conduct specifically defined by the applicable state law.' Miller v. California, 413 U.S., at 24, 93 S.Ct., at 2615. The third component of the Memoirs test is that the material must be 'utterly without redeeming social value.' 383 U.S., at 418, 86 S.Ct., at 977. The Court's rephrasing requires that the work, taken as a whole, must be proved to lack 'serious literary, artistic, political, or scientific value.' Miller, 413 U.S., at 24, 93 S.Ct., at 2615.
73
The Court evidently recognizes that difficulties with the Roth approach necessitate a significant change of direction. But the Court does not describe its understanding of those difficulties, nor does it indicate how the restatement of the Memoirs test is in any way responsive to the problems that have arisen. In my view, the restatement leaves unresolved the very difficulties that compel our rejection of the underlying Roth approach, while at the same time contributing substantial difficulties of its own. The modification of the Memoirs test may prove sufficient to jeopardize the analytic underprinnings of the entire scheme. And today's restatement will likely have the effect, whether or not intended, of permitting far more sweeping suppression of sexually oriented expression, including expression that would almost surely be held protected under our current formulation.
74
Although the Court's restatement substantially tracks the three-part test announced in Memoirs v. Massachusetts, supra, it does purport to modify the 'social value' component of the test. Instead of requiring, as did Roth and Memoirs, that state suppression be limited to materials utterly lacking in social value, the Court today permits suppression if the government can prove that the materials lack 'serious literary, artistic, political or scientific value.' But the definition of 'obscenity' as expression utterly lacking in social importance is the key to the conceptual basis of Roth and our subsequent opinions. In Roth we held that certain expression is obscene, and thus outside the protection of the First Amendment, precisely because it lacks even the slightest redeeming social value. See Roth v. United States, 354 U.S., at 484—485, 77 S.Ct., at 1308—1309;14 Jacobellis v. Ohio, 378 U.S., at 191, 84 S.Ct., at 1680; Zeitlin v. Arnebergh, 59 Cal.2d 901, 920, 31 Cal.Rptr. 800, 813, 383 P.2d 152, 165 (1963); cf. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964); Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942); Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup.Ct.Rev. 1. The Court's approach necessarily assumes that some works will be deemed obscene—even though they clearly have some social value because the State was able to prove that the value, measured by some unspecified standard, was not sufficiently 'serious' to warrant constitutional protection. That result is not merely inconsistent with our holding in Roth; it is nothing less than a rejection of the fundamental First Amendment premises and rationale of the Roth opinion and an invitation to widespread suppression of sexually oriented speech. Before today, the protections of the First Amendment have never been thought limited to expressions of serious literary or political value. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408(1972); Cohen v. California, 403 U.S. 15, 25—26, 91 S.Ct. 1780, 1788—1789, 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).
75
Although the Court concedes that 'Roth presumed 'obscenity' to be 'utterly without redeeming social importance," it argues that Memoirs produced 'a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was 'utterly without redeeming social value'—a burden virtually impossible to discharge under our criminal standards of proof.'15 One should hardly need to point out that under the third component of the Court's test the prosecution is still required to 'prove a negative'—i.e., that the material lacks serious literary, artistic, political, or scientific value. Whether it will be easier to prove that material lacks 'serious' value than to prove that it lacks any value at all remains, of course, to be seen.
76
In any case, even if the Court's approach left undamaged the conceptual framework of Roth, and even if it clearly barred the suppression of works with at least some social value, I would nevertheless be compelled to reject it. For it is beyond dispute that the approach can have no ameliorative impact on the cluster of problems that grow out of the vagueness of our current standards. Indeed, even the Court makes no argument that the reformulation will rpvoide fairer notice to booksellers, theater owners, and the reading and viewing public. Nor does the Court contend that the approach will provide clearer guidance to law enforcement officials or reduce the chill on porotected expression. Nor, finally, does the Court suggest that the approach will mitigate to the slightest degree the institutional problems that have plagued this Court and the state and federal judiciary as a direct result of the uncertainty inherent in any definition of obscenity.
77
Of course, the Court's restated Roth test does limit the definition of obscenity to depictions of physical conduct and explicit sexual acts. And that limitation may seem, at first glance, a welcome and clarifying addition to the Roth-Memoirs formula. But, just as the agreement in Roth on an abstract definition of obscenity gave little hint of the extreme difficulty that was to follow in attempting to apply that definition to specific material, the mere formulation of a 'physical conduct' test is no assurance that it can be applied with any greater facility. The Court does not indicate how it would apply its test to the materials involved in Miller v. California, supra, and we can only speculate as to its application. But even a confirmed optimist could find little realistic comfort in the adoption of such a test. Indeed, the valiant attempt of one lower federal court to draw the constitutional line at depictions of explicit sexual conduct seems to belie any suggestion that this approach marks the road to clarity.16 The Court surely demonstrates little sensitivity to our own institutional problems, much less the other vagueness-related difficulties, in establishing a system that requires us to consider whether a description of human genitals is sufficiently 'lewd' to deprive it of constitutional protection; whether a sexual act is 'ultimate'; whether the conduct depicted in materials before us fits within one of the categories of conduct whose depiction the State and Federal Governments have attempted to suppress; and a host of equally pointless inquiries. In addition, adoption of such a test does not, presumably, obviate the need for consideration of the nuances of presentation of sexually oriented material, yet it hardly clarifies the application of those opaque but important factors.
78
If the application of the 'physical conduct' test to pictorial material is fraught with difficulty, its application to textual material carries the potential for extraordinary abuse. Surely we have passed the point where the mere written description of sexual conduct is deprived of First Amendment protection. Yet the test offers no guidance to us, or anyone else, in determining which written descriptions of sexual conduct are protected, and which are not.
79
Ultimately, the reformulation must fail because it still leaves in this Court the responsibility of determining in each case whether the materials are protected by the First Amendment. The Court concedes that even under its restated formulation, the First Amendment interests at stake require 'appellate courts to conduct an independent review of constitutional claims when necessary,' Miller v. California, 413 U.S., at 25, 93 S.Ct., at 2615, citing Mr. Justice Harlan's opinion in Roth, where he stated, 'I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based.' 354 U.S., at 498, 77 S.Ct., at 1316. Thus, the Court's new formulation will not relieve us of 'the awesome task of making case by case at once the criminal and the constitutional law.'17 And the careful efforts of state and lower federal courts to apply the standard will remain an essentially pointless exercise, in view of the need for an ultimate decision by this Court. In addition, since the status of sexually oriented material will necessarily remain in doubt until final decision by this Court, the new approach will not diminish the chill on protected expression that derives from the uncertainty of the underlying standard. I am convinced that a definition of obscenity in terms of physical conduct cannot provide sufficient clarity to afford fair notice, to avoid a chill on protected expression, and to minimize the institutional stress, so long as that definition is used to justify the outright suppression of any material that is asserted to fall within its terms.
80
3. I have also considered the possibility of reducing our own role, and the role of appellate courts generally, in determining whether particular matter is obscene. Thus, we might conclude that juries are best suited to determine obscenity vel non and that jury verdicts in this area should not be set aside except in cases of extreme departure from prevailing standards. Or, more generally, we might adopt the position that where a lower federal or state court has conscientiously applied the constitutional standard, its finding of obscenity will be no more vulnerable to reversal by this Court than any finding of fact. Cf. Interstate Circuit, Inc. v. Dallas, 390 U.S., at 706—707, 88 S.Ct., at 1315 1316 (separate opinion of Harlan, J.). While the point was not clearly resolved prior to our decision in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967),18 it is implicit in that decision that the First Amendment requires an independent review by appellate courts of the constitutional fact of obscenity.19 That result is required by principles applicable to the obscenity issue no less than to any other area involving free expression, see, e.g., New York Times Co. v. Sullivan, 376 U.S., at 284—285, 84 S.Ct., at 728—729, or other constitutional right.20 In any event, even if the Constitution would permit us to refrain from judging for ourselves the alleged obscenity of particular materials, that approach would solve at best only a small part of our problem. For while it would mitigate the institutional stress produced by the Roth approach, it would neither offer nor produce any cure for the other vices of vagueness. Far from providing a clearer guide to permissible primary conduct, the approach would inevitably lead to even greater uncertainty and the consequent duen process problems of fair notice. And the approach would expose much protected, sexually oriented expression to the vagaries of jury determinations. Cf. Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741, 81 L.Ed. 1066 (1937). Plainly, the institutional gain would be more than offset by the unprecedented infringement of First Amendment rights.
81
4. Finally, I have considered the view, urged so forcefully since 1957 by our Brothers Black and Douglas, that the First Amendment bars the suppression of any sexually oriented expression. That position would effect a sharp reduction, although perhaps not a total elimination, of the uncertainty that surrounds our current approach. Nevertheless, I am convinced that it would achieve that desirable goal only by stripping the States of power to an extent that cannot be justified by the commands of the Constitution, at least so long as there is available an alternative approach that strikes a better balance between the guarantee of free expression and the States' legitimate interests.
V
82
Our experience since Roth requires us not only to abandon the effort to pick out obscene material on a case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be totally suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact exist,21 I am forced to conclude that the concept of 'obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms. Given these inevitable side effects of state efforts to suppress what is assumed to be unprotected speech, we must scrutinize with care the state interest that is asserted to justify the suppression. For in the absence of some very substantial interest in suppressing such speech, we can hardly condone the ill effects that seem to flow inevitably from the effort.22
83
Obscenity laws have a long history in this country. Most of the States that had ratified the Constitution by 1792 punished the related crime of blasphemy or profanity despite the guarantees of free expression in their constitutions, and Massachusetts expressly prohibited the 'Composing, Writing, Printing or Publishing, of any Filthy Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine Worship.' Acts and Laws of Massachusetts Bay Colony (1726), Acts of 1711—1712, c. 1, p. 218. In 1815 the first reported obscenity conviction was obtained under the common law of Pennsylvania. See Commonwealth v. Sharpless, 2 S. & R. 91. A conviction in Massachusetts under its common law and colonial statute followed six years later. See Commonwealth v. Holmes, 17 Mass. 336 (1821). In 1821 Vermont passed the first state law proscribing the publication or sale of 'lewd or obscene' material, Laws of Vermont, 1824, c. XXXII, No. 1, § 23, and federal legislation barring the importation of similar matter appeared in 1842. See Tariff Act of 1842, § 28, 5 obscenity laws was small and their enforcement exceedingly lax, the situation significantly changed after about 1870 when Federal and State Governments, mainly as a result of the efforts of Anthony Comstock, took an active interest in the suppression of obscenity. By the end of the 19th century at least 30 States had some type of general prohibition on the dissemination of obscene materials, and by the time of our decision in Roth no State was without some provision on the subject. The Federal Government meanwhile had enacted no fewer than 20 obscenity laws between 1842 and 1956. See Roth v. United States, 354 U.S., at 482—483, 485, 77 S.Ct., at 1307—1308, 1309; Report of the Commission on Obscenity and Pornography 300—301 (1970).
84
This history caused us to conclude in Roth 'that the unconditional phrasing of the First Amendment (that 'Congress shall make no law .. . abridging the freedom of speech, or of the press . . .') was not intended to protect every utterance.' 354 U.S., at 483, 77 S.Ct., at 1308. It also caused us to hold, as numerous prior decisions of this Court had assumed, see id., at 481, 77 S.Ct., at 1306, that obscenity could be denied the protection of the First Amendment and hence suppressed because it is a form of expression 'utterly without redeeming social importance,' id., at 484, 77 S.Ct., at 1309, as 'mirrored in the universal judgment that (it) should be restrained . . ..' Id., at 485, 77 S.Ct., at 1309.
85
Because we assumed—incorrectly, as experience has proved—that obscenity could be separated from other sexually oriented expression without significant costs either to the First Amendment or to the judicial machinery charged with the task of safeguarding First Amendment freedoms, we had no occasion in Roth to probe the asserted state interest in curtailing unprotected, sexually oriented speech. Yet, as we have increasingly come to appreciate the vagueness of the concept of obscenity, we have begun to recognize and articulate the state interests at stake. Significantly, in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), where we set aside findings of obscenity with regard to three sets of material, we pointed out that
86
'(i)n none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U.S. 158 (64 S.Ct. 438) 88 L.Ed. 645; cf. Butler v. Michigan, 352 U.S. 380 (77 S.Ct. 524) 1 L.Ed.2d 412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U.S. 622 (71 S.Ct. 920) 95 L.Ed. 1233; Public Utilities Comm'n v. Pollak, 343 U.S. 451 (72 S.Ct. 813) 96 L.Ed. 1068. And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States, 383 U.S. 463 (86 S.Ct. 942) 16 L.Ed.2d 31.' 386 U.S., at 769, 87 S.Ct., at 1415.
87
See Rowan v. U.S. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); Stanley v. Georgia, 394 U.S., at 567, 89 S.Ct., at 1249.23
88
The opinions in Redrup and Stanley reflected our emerging view that the state interests in protecting children and in protecting unconsenting adults may stand on a different footing from the other asserted state interests. It may well be, as one commentator has argued, that 'exposure to (erotic material) is for some persons an intense emotional experience. A communication of this nature, imposed upon a person contrary to his wishes, has all the characteristics of a physical assault. . . . (And it) constitutes an invasion of his privacy . . ..'24 But cf. Cohen v. California, 403 U.S., at 21—22, 91 S.Ct., at 1786—1787. Similarly, if children are 'not possessed of that full capacity for individual choice which is the presupposition of the First Amendment guarantees,' Ginsberg v. New York, 390 U.S., at 649—650, 88 S.Ct., at 1286 (Stewart, J., concurring), then the State may have a substantial interest in precluding the flow of obscene materials even to consenting juveniles.25 But cf. id., at 673—674, 88 S.Ct., at 1297—1298 (Fortas, J., dissenting).
89
But, whatever the strength of the state interests in protecting juveniles and unconsenting adults from exposure to sexually oriented materials, those interests cannot be asserted in defense of the holding of the Georgia Supreme Court in this case. That court assumed for the purposes of its decision that the films in issue were exhibited only to persons over the age of 21 who viewed them willingly and with prior knowledge of the nature of their contents. And on that assumption the state court held that the films could still be suppressed. The justification for the suppression must be found, therefore, in some independent interest in regulating the reading and viewing habits of consenting adults.
90
At the outset it should be noted that virtually all of the interests that might be asserted in defense of suppression, laying aside the special interests associated with distribution to juveniles and unconsenting adults, were also posited in Stanley v. Georgia, supra, where we held that the State could not make the 'mere private possession of obscene material a crime.' Id., 394 U.S., at 568, 89 S.Ct., at 1249. That decision presages the conclusions I reach here today.
91
In Stanley we pointed out that '(t)here appears to be little empirical basis for' the assertion that 'exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence.' Id., at 566 and n. 9, 89 S.Ct., at 1249.26 In any event, we added that 'if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that '(a)mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law . . ..' Whitney v. California, 274 U.S. 357, 378 (, 47 S.Ct. 641, 649) 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).' Id., at 566—567, 89 S.Ct., at 1249.
92
Moreover, in Stanley we rejected as 'wholly inconsistent with the philosophy of the First Amendment,' id., at 566, 89 S.Ct., at 1248, the notion that there is a legitimate state concern in the 'control (of) the moral content of a person's thoughts,' id., at 565, 89 S.Ct., at 1248, and we held that a State 'cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.' Id., at 566, 89 S.Ct., at 1249. That is not to say, of course, that a State must remain utterly indifferent to—and take no action bearing on—the morality of the community. The traditional description of state police power does embrace the regulation of morals as well as the health, safety, and general welfare of the citizenry. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). And much legislation—compulsory public education laws, civil rights laws, even the abolition of capital punishment—is grounded, at least in part, on a concern with the morality of the community. But the State's interest in regulating morality by suppressing obscenity, while often asserted, remains essentially unfocused and ill defined. And, since the attempt to curtail unprotected speech necessarily spills over into the areas of protected speech, the effort to serve this speculative interest through the suppression of obscene material must tread heavily on rights protected by the First Amendment.
93
In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), we held constitutionally invalid a state abortion law, even though we were aware of
94
'the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.' Id., at 116, 93 S.Ct., at 708.
95
Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion.27 The existence of these assumptions cannot validate a statute that substantially undermines the guarantees of the First Amendment, any more than the existence of similar assumptions on the issue of abortion can validate a statute that infringes the constitutionally protected privacy interests of a pregnant woman.
96
If, as the Court today assumes, 'a state legislature may . . . act on the . . . assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior,' ante, at 63, then it is hard to see how state-ordered regimentation of our minds can ever be forestalled. For if a State, in an effort to maintain or create a particular moral tone, may prescribe what its citizens cannot read or cannot see, then it would seem to follow that in pursuit of that same objective a State could decree that its citizens must read certain books or must view certain films. Cf. United States v. Roth, 237 F.2d 796, 823 (CA2 1956) (Frank, J., concurring). However laudable its goal and that is obviously a question on which reasonable minds may differ—the State cannot proceed by means that violate the Constitution. The precise point was established a half century ago in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
97
'That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution—a desirable and cannot be promoted by prohibited means.
98
'For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: 'That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.' In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.' Id., at 401—402, 43 S.Ct., at 627—628.
99
Recognizing these principles, we have held that so-called thematic obscenity—obscenity which might persuade the viewer or reader to engage in 'obscene' conduct—is not outside the protection of the First Amendment:
100
'It is contended that the State's action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.' Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688—689, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512 (1959).
101
Even a legitimate, sharply focused state concern for the morality of the community cannot, in other words, justify an assault on the protections of the First Amendment. Cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Where the state interest in regulation of morality is vague and ill defined, interference with the guarantees of the First Amendment is even more difficult to justify.28
102
In short, while I cannot say that the interests of the State apart from the question of juveniles and unconsenting adults—are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation's judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults. NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1313, 12 L.Ed.2d 325 (1964); Cantwell v. Connecticut, 310 U.S., at 304, 60 S.Ct., at 903. I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents. Nothing in this approach precludes those governments from taking action to serve what may be strong and legitimate interests through regulation of the manner of distribution of sexually oriented material.
VI
Two Terms ago we noted that
103
'there is developing sentiment that adults should have complete freedom to produce, deal in, possess and consume whatever communicative materials may appeal to them and that the law's involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age. The concepts involved are said to be so elusive and the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers and the courts that basic reassessment is not only wise but essential.' United States v. Reidel, 402 U.S., at 357, 91 S.Ct., at 1413.
104
Nevertheless, we concluded that 'the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances.' Ibid. But the law of obscenity has been fashioned by this Court—and necessarily so under our duty to enforce the Constitution. It is surely the duty of this Court, as expounder of the Constitution, to provide a remedy for the present unsatisfactory state of affairs. I do not pretend to have found a complete and infallible answer to what Mr. Justice Harlan called 'the intractable obscenity problem.' Interstate Circuit, Inc. v. Dallas, 390 U.S., at 704, 88 S.Ct., at 1313 (separate opinion). See also Memoirs v. Massachusetts, 383 U.S., at 456, 86 S.Ct., at 996 (dissenting opinion). Difficult questions must still be faced, notably in the areas of distribution to juveniles and offensive exposure to unconsenting adults. Whatever the extent of state power to regulate in those areas,29 it should be clear that the view I espouse today would introduce a large measure of clarity to this troubled area, would reduce the institutional pressure on this Court and the rest of the State and Federal Judiciary, and would guarantee fuller freedom of expression while leaving room for the protection of legitimate governmental interests. Since the Supreme Court of Georgia erroneously concluded that the State has power to suppress sexually oriented material even in the absence of distribution to juveniles or exposure to unconsenting adults, I would reverse that judgment and remand the case to that court for further proceedings not inconsistent with this opinion.
1
This is a civil proceeding. Georgia Code Ann. § 26—2101 defines a criminal offense, but the exhibition of materials found to be 'obscene' as defined by that statute may be enjoined in a civil proceeding under Georgia case law. 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). See infra, at 54. Georgia Code Ann. § 26—2101 reads in relevant part:
'Distributing obscene materials.
'(a) A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do . . ..
'(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. . . .
'(d) A person convicted of distributing obscene material shall for the first offense be punished as for a misdemeanor, and for any subsequent offense shall be punished by imprisonment for not less than one nor more than five years, or by a fine not to exceed $5,000, or both.'
The constitutionality of Georgia Code Ann. § 26—2101 was upheld against First Amendment and due process challenges in Gable v. Jenkins, 309 F.Supp. 998 (N.D.Ga.1969), aff'd per curiam, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970).
2
See Georgia Code Ann. § 26—2101, set out supra, at 51 n. 1.
3
In Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971), the Georgia Supreme Court described the cases before it as follows:
'Each case was commenced as a civil action by the District Attorney of the Superior Court of Fulton County jointly with the Solicitor of the Criminal Court of Fulton County. In each case the plaintiffs alleged that the defendants named therein were conducting a business of exhibiting motion picture films to members of the public; that they were in control and possession of the described motion picture film which they were exhibiting to the public on a fee basis; that said film 'constitutes a flagrant violation of Ga.Code § 26—2101 in that the sole and dominant theme of the motion picture film . . . considered as a whole, and applying contemporary standards, appeals to the prurient interest in sex and nudity, and that said motion picture film is utterly and absolutely without any redeeming social value whatsoever and transgresses beyond the customary limits of candor in describing and discussing sexual matters." Id., at 676—677, 182 S.E.2d, at 465.
4
This procedure would have even more merit if the exhibitor or purveyor could also test the issue of obscenity in a similar civil action, prior to any exposure to criminal penalty. We are not here presented with the problem of whether a holding that materials were not obscene could be circumvented in a later proceeding by evidence of pandering. See A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 458 n. 3, 86 S.Ct. 975, 997 n. 3, 16 L.Ed.2d 1 (1966) (Harlan, J., dissenting); Ginzburg v. United States, 383 U.S. 463, 496, 86 S.Ct. 942, 955, 16 L.Ed.2d 31 (1966) (Harlan, J., dissenting).
5
At the specific request of petitioners' counsel, the copies of the films produced for the trial court were placed in the 'administrative custody' of that court pending the outcome of this litigation.
6
This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. Cf. 2 J. Wigmore, Evidence §§ 556, 559 (3d ed. 1940). No such assistance is needed by jurors in obscenity cases; indeed the 'expert witness' practices employed in these cases have often made a mackery out of the otherwise sound concept of expert testimony. See United States v. Groner, 479 F.2d 577, 585—586 (CA5 1973); id., at 587—588 (Ainsworth, J., concurring). 'Simply stated, hard core pornography . . . can and does speak for itself.' United States v. Wild, 422 F.2d 34, 36 (CA2 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971). We reserve judgment, however, on the extreme case, not presented here, where contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the prurient interest. See Mishkin v. New York, 383 U.S. 502, 508—510, 86 S.Ct. 958, 963—964, 16 L.Ed.2d 56 (1966); United States v. Klaw, 350 F.2d 155, 167—168 (CA2 1965).
7
It is conceivable that an 'adult' theater can—if it really insists—prevent the exposure of its obscene wares to juveniles. An 'adult' bookstore, dealing in obscene books, magazines, and pictures, cannot realistically make this claim. The Hill-Link Minority Report of the Commission on Obscenity and Pornography emphasizes evidence (the Abelson National Survey of Youth and Adults) that, although most pornography may be bought by elders, 'the heavy users and most highly exposed people to pornography are adolescent females (among women) and adolescent and young adult males (among men).' The Report of the Commission on Obscenity and Pornography 401 (1970). The legitimate interest in preventing exposure of juveniles to obscene materials cannot be fully served by simply barring juveniles from the immediate physical premises of 'adult' book stores, when there is a flourishing 'outside business' in these materials.
8
The Report of the Commission on Obscenity and Pornography 390—412 (1970). For a discussion of earlier studies indicating 'a division of thought (among behavioral scientists) on the correlation between obscenity and socially deleterious behavior', Memoirs v. Massachusetts, supra, 383 U.S., at 451, 86 S.Ct., at 993, and references to expert opinions that obscene material may induce crime and antisocial conduct, see id., at 451—453, 86 S.Ct., at 993—995 (Clark, J., dissenting). As Mr. Justice Clark emphasized:
'While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct. For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person. A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community.
'Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material, justify these controls by reference to evidence that antisocial behavior may result in part from reading obscenity.' Id., at 452—453, 86 S.Ct., at 994—995 (footnotes omitted).
9
See also Berns, Pornography vs. Democracy: The Case for Censorship, in 22 The Public Interest 3 (Winter 1971); was den Haag, in Censorship: For & Against 156—157 (H. Hart ed. 1971).
10
'In this and other cases in this area of the law, which are coming to us in ever-increasing numbers, we are faced with the resolution of rights basic both to individuals and to society as a whole. Specifically, we are called upon to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments.' Jacobellis v. Ohio, supra, at 199, 84 S.Ct., at 1684 (Warren, C.J., dissenting).
11
Mr. Justice Holmes stated in another context, that:
'(T)he proper course is to recognize that a state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.' Tyson & Brother v. Banton, 273 U.S. 418, 446, 47 S.Ct. 426, 433, 71 L.Ed. 718 (1927) (dissenting opinion joined in by Brandeis, J.).
12
'It has been well observed that such (lewd and obscene) utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (emphasis added in Roth).
13
The protection afforded by Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved. Cf. Roe v. Wade, 410 U.S. 113, 152—154, 93 S.Ct. 705, 726—727, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 485—486, 85 S.Ct. 1678, 1682—1683, 14 L.Ed.2d 510 (1965). Obviously, there is no necessary or legitimate expectation of privacy which would extend to marital intercourse on a street corner or a theater stage.
14
Cf. J. Mill, On Liberty 13 (1955 ed.).
15
The state statute books are replete with constitutionally unchallenged laws against prostitution, suicide, voluntary self-mutilation, brutalizing 'bare fist' prize fights, and duels, although these crimes may only directly involve 'consenting adults.' Statutes making bigamy a crime surely cut into an individual's freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision. See Davis v. Beason, 133 U.S. 333, 344 345, 10 S.Ct. 299, 301—302, 33 L.Ed. 637 (1890). Consider also the language of this Court in McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964), as to adultery; Southern Surety Co. v. Oklahoma, 241 U.S. 582, 586, 36 S.Ct. 692, 694, 60 L.Ed. 1187 (1916), as to fornication; Hoke v. United States, 227 U.S. 308, 320—322, 33 S.Ct. 281, 283—284, 57 L.Ed. 523 (1913), and Caminetti v. United States, 242 U.S. 470, 484—487, 491 492, 37 S.Ct. 192, 194—195, 196—197, 61 L.Ed. 442 (1917), as to 'white slavery'; Murphy v. California, 225 U.S. 623, 629, 32 S.Ct. 697, 698, 56 L.Ed. 1229 (1912), as to billard halls; and the Lottery Case, 188 U.S. 321, 355—356, 23 S.Ct. 321, 326—327, 47 L.Ed. 492 (1903), as to gambling. See also the summary of state statutes prohibiting bearbaiting, cock-fighting, and other brutalizing animal 'sports,' in Stevens, Fighting and Baiting, in Animals and Their Legal Rights 112—127 (Leavitt ed. 1970). As Professor Irving Kristol has observed: 'Bearbaiting and cockfighting are prohibited only in part out of compassion for the suffering animals; the main reason they were abolished was because it was felt that they debased and brutalized the citizenry who flocked to witness such spectacles.' On the Democratic Idea in America 33 (1972).
*
What we do today is rather ominous as respects librarians. The net now designed by the Court is so finely meshed that, taken literally, it could result in raids on libraries. Libraries, I had always assumed, were sacrosanct, representing every part of the spectrum. If what is offensive to the most influential person or group in a community can be purged from a library, the library system would be destroyed.
A few States exempt librarians from laws curbing distribution of 'obscene' literature. California's law, however, provides: 'Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes to or sends or causes to be sent to, or exhibits to, or offers to distribute or exhibit any harmful matter to a minor, is guilty of a misdemeanor.' Calif.Penal Code § 313.1.
A 'minor' is one under 18 years of age; the word 'distribute' means 'to transfer possession'; 'matter' includes 'any book, magazine, newspaper, or other printed or written material.' Id., §§ 313(b), (d), (g).
'Harmful matter' is defined in § 313(a) to mean 'matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance for minors.'
1
Ga.Code Ann. § 26—2101 provides in pertinent part that
'(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. Undeveloped photographs, molds, printing plates and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.'
2
Ga.Code § 26—2101(a):
'A person commits the offense of distributing obscene materials (as described in subsection (b), n. 1, supra) when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do . . .'
3
The precise holding of the trial court is not free from ambiguity. After pointing out that the films could be considered obscene, and that they still could not be suppressed in the absence of exposure to juveniles or unconsenting adults, the trial court concluded that '(i)t is the judgment of this court that the films, even though they display the human body and the human personality in a most degrading fashion, are not obscene.' It is not clear whether the trial court found that the films were not obscene in the sense that they were protected expression under the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), or whether it used the expression 'not obscene' as a term of art to indicate that the films could not be suppressed even though they were not protected under the Roth-Redrup standards. In any case, the Georgia Supreme Court viewed the trial court's opinion as holding that the films could not be suppressed, even if they were unprotected expression, provided that they were not exhibited to juveniles or unconsenting adults.
4
'As to all such problems, this Court said in Thornhill v. State of Alabama, 310 U.S. 88, 101—102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940):
"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the time. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' (Emphasis added.)' Roth, 354 U.S., at 487—488, 77 S.Ct., at 1310—1311. See also, e.g., Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945) ('the rights of free speech and a free press are not confined to any field of human interest').
5
See, e.g., Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup.Ct.Rev. 1, 10—11; cf. Beauharnais v. Illinois, 34o U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952).
6
See, e.g., T. Emerson, The System of Freedom of Expression 487 (1970); Kalven, supra, n. 5; Comment, More Ado About Dirty Books, 75 Yale L.J. 1364 (1966).
7
On the question of community standards see also Hoyt v. Minnesota, 399 U.S. 524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970) (Blackmun, J., joined by Burger, C.J., and Harlan, J., dissenting) (flexibility for state standards); Cain v. Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 334 (1970) (Burger, C.J., dissenting) (same); Manual Enterprises v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (1962) (Harlan, J., joined by Stewart, J.) (national standards in context of federal prosecution).
8
No fewer than 31 cases have been disposed of in this fashion. Aside from the three cases reversed in Redrup, they are: Keney v. New York, 388 U.S. 440, 87 S.Ct. 2091, 18 L.Ed.2d 1302 (1967); Friedman v. New York, 388 U.S. 441, 87 S.Ct. 2091, 18 L.Ed.2d 1303 (1967); Ratner v. California, 388 U.S. 442, 87 S.Ct. 2092, 18 L.Ed.2d 1304 (1967); Cobert v. New York, 388 U.S. 443, 87 S.Ct. 2092, 18 L.Ed.2d 1305 (1967); Sheperd v. New York, 388 U.S. 444, 87 S.Ct. 2093, 18 L.Ed.2d 1306 (1967); Avansino v. New York, 388 U.S. 446, 87 S.Ct. 2093, 18 L.Ed.2d 1308 (1967); Aday v. New York, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967); Books, Inc. v. United States, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967); A Quantity of Copies of Books v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314 (1967); Mazes v. Ohio, 388 U.S. 453, 87 S.Ct. 2105, 18 L.Ed.2d 1315 (1967); Schackman v. California, 388 U.S. 454, 87 S.Ct. 2107, 18 L.Ed.2d 1316 (1967); Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967); Conner v. City of Hammond, 389 U.S. 48, 88 S.Ct. 234, 19 L.Ed.2d 47 (1967); Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49 (1967); Chance v. California, 389 U.S. 89, 88 S.Ct. 253, 19 L.Ed.2d 256 (1967); I.M. Amusement Corp. v. Ohio, 389 U.S. 573, 88 S.Ct. 690, 19 L.Ed.2d 776 (1968); Robert-Arthur Management Corp. v. Tennessee, 389 U.S. 578, 88 S.Ct. 691, 19 L.Ed.2d 777 (1968); Felton v. City of Pensacola, 390 U.S. 340, 88 S.Ct. 1098, 19 L.Ed.2d 1220 (1968); Henry v. Louisiana, 392 U.S. 655, 88 S.Ct. 2274, 20 L.Ed.2d 1343 (1968); Cain v. Kentucky, supra; Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970); Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970); Hoyt v. Minnesota, supra; Childs v. Oregon, 401 U.S. 1006, 91 S.Ct. 1248, 28 L.Ed.2d 542 (1971); Bloss v. Michigan, 402 U.S. 938, 91 S.Ct. 1615, 29 L.Ed.2d 106 (1971); Burgin v. South Carolina, 404 U.S. 806, 92 S.Ct. 46, 30 L.Ed.2d 39 (1971); Hartstein v. Missouri, 404 U.S. 988, 92 S.Ct. 531, 30 L.Ed.2d 539 (1971); Wiener v. California, 404 U.S. 988, 92 S.Ct. 534, 30 L.Ed.2d 539 (1971).
9
Although I did not join the opinion of the Court in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), I am now inclined to agree that 'the Constitution protects the right to receive information and ideas,' and that '(t)his right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society.' Id., at 564, 89 S.Ct., at 1247. See Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943); Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948); Lamont v. Postmaster General, 381 U.S. 301, 307—308, 85 S.Ct. 1493, 1496 1497, 14 L.Ed.2d 398 (1965) (concurring opinion). This right is closely tied, as Stanley recognized, to 'the right to be free, except in very limited circumstances, from unwarranted governmental intrusions into one's privacy.' 394 U.S., at 564, 89 S.Ct., at 1247. See Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). It is similarly related to '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' (italics omitted), Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972), and the right to exercise 'automonous control over the development and expression of one's intellect, interests, tastes, and personality.' (Italics omitted.) Doe v. Bolton, 410 U.S. 179, 211, 93 S.Ct. 739, 757, 35 L.Ed.2d 201 (1973) (Douglas, J., concurring). It seems to me that the recognition of these intertwining rights calls in question the validity of the two-level approach recognized in Roth. After all, if a person has the right to receive information without regard to its social worth—that is, without regard to its obscenity—then it would seem to follow that a State could not constitutionally punish one who undertakes to provide this information to a willing, adult recipient. See Eisenstadt v. Baird, supra, 405 U.S., at 443—446, 92 S.Ct., at 1033—1035. In any event, I need not rely on this line of analysis or explore all of its possible ramifications, for there is available a narrower basis on which to rest this decision. Whether or not a class of 'obscene' and thus entirely unprotected speech does exist, I am forced to conclude that the class is incapable of definition with sufficient clarity to withstand attack on vagueness grounds. Accordingly, it is on principles of the void-for-vagueness doctrine that this opinion exclusively relies.
10
In this regard, the problems of vagueness and overbreadth are, plainly, closely intertwined. See NAACP v. Button, 371 U.S. 415, 432—433, 83 S.Ct. 328, 337—338, 9 L.Ed.2d 405 (1963); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 845 (1970). Cf. infra, at 93—94.
11
See also Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); cf. Barenblatt v. United States, 360 U.S. 109, 137—138, 79 S.Ct. 1081, 1098—1099, 3 L.Ed.2d 1115 (1959) (Black, J., dissenting):
'This Court . . . has emphasized that the 'vice of vagueness' is especially pernicious where legislative power over an area involving speech, press, petition and assembly is involved. . . . For a statute broad enough to support infringement of speech, writings, thoughts and public assemblies, against the unequivocal command of the First Amendment necessarily leaves all persons to guess just what the law really means to cover, and fear of a wrong guess inevitably leads people to forego the very rights the Constitution sought to protect above all others. Vagueness becomes even more intolerable in this area if one accepts, as the Court today does, a balancing test to decide if First Amendment rights shall be protected. It is difficult at best to make a man guess—at the penalty of imprisonment—whether a court will consider the State's need for certain information superior to society's interest in unfettered freedom. It is unconscionable to make him choose between the right to keep silent and the need to speak when the statute supposedly establishing the 'state's interest' is too vague to give him guidance.' (Citations omitted.)
12
Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 885—886 and n. 158 (1970) ('Thus in the area of obscenity the overbreadth doctrine operates interstitially, when no line of privilege is apposite or yet to be found, to control the impact of schemes designed to curb distribution of unprotected material').
13
While the Court's modification of the Memoirs test is small, it should still prove sufficient to invalidate virtually every state law relating to the suppression of obscenity. For, under the Court's restatement, a statute must specifically enumerate certain forms of sexual conduct, the depiction of which is to be prohibited. It seems highly doubtful to me that state courts will be able to construe state statutes so as to incorporate a carefully itemized list of various forms of sexual conduct, and thus to bring them into conformity with the Court's requirements. Cf. Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971). The statutes of at least one State should, however, escape the wholesale invalidation. Oregon has recently revised its statute to prohibit only the distribution of obscene materials to juveniles or unconsenting adults. The enactment of this principle is, of course, a choice constitutionally open to every State, even under the Court's decision. See Oregon Laws 1971, c. 743, Art. 29, §§ 255—262.
14
'All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.' Roth v. United States, supra, 354 U.S., at 484, 77 S.Ct., at 1309.
15
Miller v. California, 413 U.S., at 22, 93 S.Ct., at 2613.
16
Huffman v. United States, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971). The test apparently requires an effort to distinguish between 'singles' and 'duals,' between 'erect penises' and 'semi-erect penises,' and between 'ongoing sexual activity' and 'imminent sexual activity.'
17
Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 81 (1960).
18
Compare Ginsberg v. New York, 390 U.S. 629, 672, 88 S.Ct. 1274, 1297, 20 L.Ed.2d 195 (1968) (Fortas, J., dissenting); Jacobellis v. Ohio, 378 U.S. 184, 187—190, 84 S.Ct. 1676, 1677 1679, 12 L.Ed.2d 793 (1964) (Brennan, J., joined by Goldberg, J.); Manual Enterprises v. Day, 370 U.S., at 488, 82 S.Ct., at 1437 (Harlan, J., joined by Stewart, J.); and Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 696—697, 79 S.Ct. 1362, 1369—1370, 3 L.Ed.2d 1512 (1959) (Frankfurter, J., concurring); id., at 708, 79 S.Ct., at 1375 (Harlan, J., joined by Frankfurter, J., and Whittaker, J., concurring), with Jacobellis v. Ohio, supra, 378 U.S., at 202—203, 84 S.Ct., at 1685—1686 (Warren, C.J., joined by Clark, J., dissenting); Roth v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313; and Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448, 77 S.Ct. 1325, 1331, 1 L.Ed.2d 1469 (1957) (Brennan, J., dissenting). See also Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970) (Burger, C.J., dissenting).
19
Mr. Justice Harlan, it bears noting, considered this requirement critical for review of not only federal but state convictions, despite his view that the States were accorded more latitude than the Federal Government in defining obscenity. See, e.g., Roth, supra, 354 U.S., at 502—503, 77 S.Ct., at 1318—1319 (separate opinion).
20
See generally Culombe v. Connecticut, 367 U.S. 568, 603 606, 81 S.Ct. 1860, 1879—1881, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.); cf. Crowell v. Benson, 285 U.S. 22, 54—65, 52 S.Ct. 285, 293—298, 76 L.Ed. 598 (1932); Ng Fung Ho v. White, 259 U.S. 276, 284—285, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922).
21
See n. 9, supra.
22
Cf. United States v. O'Brien, 391 U.S. 367, 376—377, 88 S.Ct. 1673, 1678—1679, 20 L.Ed.2d 672 (1968):
'This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' (Footnotes omitted.)
See also Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
23
See also Rabe v. Washington, 405 U.S. 313, 317, 92 S.Ct. 993, 995, 31 L.Ed.2d 258 (1972) (concurring opinion); United States v. Reidel, 402 U.S. 351, 360—362, 91 S.Ct. 1410, 1415, 28 L.Ed.2d 813 (1971) (separate opinion); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); id., at 674—675, 88 S.Ct., at 1298 (dissenting opinion); Redmond v. United States, 384 U.S. 264, 265, 86 S.Ct. 1415, 1416, 16 L.Ed.2d 521 (1966); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); id., at 498 n. 1, 86 S.Ct., at 956 (dissenting opinion); Memoirs v. Massachusetts, 383 U.S. 413, 421 n. 8, 86 S.Ct. 975, 978, 16 L.Ed.2d 1 (1966); Jacobellis v. Ohio, 378 U.S., at 195, 84 S.Ct., at 1682 (1964) (opinion of Brennan, J., joined by Goldberg, J.); id., at 201, 84 S.Ct., at 1685 (dissenting opinion). See also Report of the Commission on Obscenity and Pornography 300—301 (1970) (focus of early obscenity laws on protection of youth).
24
T. Emerson, The System of Freedom of Expression 496 (1970).
25
See ibid.
26
Indeed, since Stanley was decided, the President's Commission on Obscenity and Pornography has concluded:
'In sum, empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior among youth or adults. The Commission cannot conclude that exposure to erotic materials is a factor in the causation of sex crime or sex delinquency.' Report of the Commission on Obscenity and Pornography 27 (1970) (footnote omitted).
To the contrary, the Commission found that '(o)n the positive side, explicit sexual materials are sought as a source of entertainment and information by substantial numbers of American adults. At times, these materials also appear to serve to increase and facilitate constructive communication about sexual matters within marriage.' Id., at 53.
27
See Henkin, Morals and the Constitution; The Sin of Obscenity, 63 Col.L.Rev. 391, 395 (1963).
28
'(I)n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (69 S.Ct. 894), 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputations, society.' Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508—509, 89 S.Ct. 733, 737—738, 21 L.Ed.2d 731 (1969). See also Cohen v. California, 403 U.S. 15, 23, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971).
29
The Court erroneously states, Miller v. California, 413 U.S., at 27, 93 S.Ct., at 2616, that the author of this opinion 'indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults . . . and to juveniles . . ..' I defer expression of my views as to the scope of state power in these areas until cases squarely presenting these questions are before the Court. See n. 9, supra; Miller v. California, supra (dissenting opinion).
| 23
|
413 U.S. 455
93 S.Ct. 2804
37 L.Ed.2d 723
Delores NORWOOD et al., Appellants,v.D. L. HARRISON, Sr., et al.
No. 72—77.
Argued Feb. 20 and 21, 1973.
Decided June 25, 1973.
Syllabus
A three-judge District Court sustained the validity of a Mississippi statutory program, begun in 1940, under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. The number of private secular schools in Mississippi, with a virtually all-white student population, has greatly increased in recent years. Held:
1. Private schools have the right to exist and to operate, Pierce v. Society of Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 but the State is not required by the Equal Protection Clause to provide assistance to private schools equivalent to that it provides to public schools without regard to whether the private schools discriminate on racial grounds. Pp. 461—463.
2. Free textbooks, like tuition grants directed to students in private schools, are a form of tangible financial assistance benefiting the schools themselves, and the State's constitutional obligation requires it to avoid not only operating the old dual system of racially segregated schools but also providing tangible aid to schools that practice racial or other invidious discrimination. Pp. 463—468.
3. Assistance carefully limited so as to avoid the prohibitions of the 'effect' and 'entanglement' tests may be confined to the secular functions of sectarian schools and does not substantially promote the religious mission of those schools in violation of the Establishment Clause. In this case, however, the legitimate educational function of private discriminatory schools cannot be isolated from their alleged discriminatory practices; discriminatory treatment exerts a pervasive influence on the entire educational process. Brown v. Board of Education of Topeka, Shawnee County, Kan., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. The Establishment Clause permits a greater degree of state assistance to sectarian schools than may be given to private schools which engage in discriminatory practices. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, distinguished. Pp. 468—470.
4. Proper injunctive relief can be granted without implying that all the private schools alleged to be receiving textbook aid have restrictive admission policies. The District Court can direct appellees to submit for approval a certification procedure whereby schools may apply for textbooks on behalf of pupils, affirmatively declaring admission policies and practices, and stating the number of their racially and religiously identifiable minority students, and other relevant data. Certification of eligibility will be subject to judicial review. Pp. 470—471.
340 F.Supp. 1003, vacated and remanded.
Melvyn R. Leventhal, Jackson, Miss., for appellants.
William A. Allain, Jackson, Miss., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
A three-judge District Court sustained the validity of a Mississippi statutory program under which textbooks are purchased by the State and lent to students in both public and private schools, without reference to whether any participating private school has racially discriminatory policies. 340 F.Supp. 1003 (N.D.Miss.1972). We noted probable jurisdiction, 409 U.S. 839, 93 S.Ct. 68, 34 L.Ed.2d 79.
2
* Appellants, who are parents of four schoolchildren in Tunica County, Mississippi, filed a class action on behalf of students throughout Mississippi to enjoin in part the enforcement of the Mississippi textbook lending program. The complaint alleged that certain of the private schools excluded students on the basis of race and that, by supplying textbooks to students attending such private schools, appellees, acting for the State, have provided direct state aid to racially segregated education. It was also alleged that the textbook aid program thereby impeded the process of fully desegregating public schools, in violation of appellants' constitutional rights.
3
Private schools in Mississippi have experienced a marked growth in recent years. As recently as the 1963—1964 school year, there were only 17 private schools other than Catholic schools; the total enrollment was 2,362 students. In these nonpublic schools 916 students were Negro, and 192 of these were enrolled in special schools for retarded, orphaned, or abandoned children.1 By September 1970, the number of private non-Catholic shools had increased to 155 with a student population estimated at 42,000, virtually all white. Appellees do not challenge the statement, which is fully documented in appellants' brief, that 'the creation and enlargement of these (private) academies occurred simultaneously with major events in the desegregation of public schools . . ..'2
4
This case does not raise any question as to the right of citizens to maintain private schools with admission limited to students of particular national origins, race, or religion or of the authority of a State to allow such schools. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). The narrow issue before us, rather, is a particular form of tangible assistance the State provides to students in private schools in common with all other students by lending textbooks under the State's 33-year-old program for providing free textbooks to all the children of the State. The program dates back to a 1940 appeal for improved educational facilities by the Governor of Mississippi to the state legislature. The legislature then established a state textbook purchasing board and authorized it to select, purchase, and distribute free textbooks for all schoolchildren through the first eight grades.3 In 1942, the program was extended to cover all high school students, and, as codified, the statutory authorization remains substantially unchanged. Miss.Code Ann. § 6634 et seq. (1942).
5
Administration of the textbook program is vested in the Mississippi Textbook Purchasing Board, whose members include the Governor, the State Superintendent of Education, and three experienced educators appointed by the Governor for four-year terms. Id., §§ 6634, 6641. The Board employs a full-time administrator as its Executive Secretary. Textbooks may be purchased only 'for use in those courses set up in the state course of study adopted by the State Board of Education, or courses established by special acts of the Legislature.' Id., § 6646. For each course of study, there is a 'rating committee' composed of appointed members, id., § 6641(1)(d), and only those books approved by the relevant rating committee may be purchased from publishers at a price which cannot 'be higher than the lowest prices at which the same books are being sold anywhere in the United States.' Id., § 6646(1).
6
The books are kept at a central book repository in Jackson. Id., § 6641(1) (f). Appellees send to each school district, and in recent years, to each private school4 requisition forms listing approved textbooks available from the State for free distribution to students. The local school district or the private school sends a requisition form to the Purchasing Board for approval by the Executive Secretary, who in turn forwards the approved form to the Jackson book repository where the order is routinely filled and the requested books shipped directly to the school district or the private school.
7
The District Court found that '34,000 students are presently receiving state-owned textbooks while attending 107 all-white, nonsectarian private schools which have been formed throughout the state since the inception of public school desegregation.' 340 F.Supp., at 1011.5 During the 1970-1971 school year, these schools held 173,424 books, for which Mississippi paid $490,239. The annual expenditure for replacements or new texts is approximately $6 per pupil, or a total of approximately $207,000 for the students enrolled in the participating private segregated academies, exclusive of mailing costs which are borne by the State as well.
8
In dismissing the complaint the District Court stressed, first, that the statutory scheme was not motivated by a desire to further racial segregation in the public schools, having been enacted first in 1940, long before this Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and consequently, long before there was any occasion to have a policy or reason to foster the development of racially segregated private academies. Second, the District Court took note that providing textbooks to private sectarian schools had been approved by this Court in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and that '(t)he essential inquiry, therefore, is whether we should apply a more stringent standard for determining what constitutes state aid to a school in the context of the Fourteenth Amendment's ban against denial of the equal protection of the law than the Supreme Court has applied in First Amendment cases.' 340 F.Supp., at 1011. The District Court held no more stringent standard should apply on the facts of this case, since as in Allen, the books were provided to the students and not to the schools. Finally, the District Court concluded that the textbook loans did not interfere with or impede the State's acknowledged duty to establish a unitary school system under this Court's holding in Green v. County School Board, 391 U.S. 430, 437, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968), since
9
'(d)epriving any segment of school children of state-owned textbooks at this point in time is not necessary for the establishment or maintenance of state-wide unitary schools. Indeed, the public schools which plaintiffs acknowledged were fully established as unitary schools throughout the state no later than 1970—1971, continue to attract 90% of the state's educable children. There is no showing that any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools.' 340 F.Supp., at 1013.
II
10
In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), the Court held that a State's role in the education of its citizens must yield to the right of parents to provide an equivalent education for their children in a privately operated school of the parents' choice. In the 1971 Term we reaffirmed the vitality of Pierce, in Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972), and there has been no suggestion in the present case that we alter our view of Pierce. Yet the Court's holding in Pierce is not without limits. As Mr. Justice White observed in his concurring opinion in Yoder, Pierce 'held simply that while a State may posit (educational) standards, it may not pre-empt the educational process by requiring children to attend public schools.' Id., at 239, 92 S.Ct., at 1545.
11
Appellees fail to recognize the limited scope of Pierce when they urge that the right of parents to send their children to private schools under that holding is at stake in this case. The suggestion is made that the rights of parents under Pierce would be undermined were the lending of free textbooks denied to those who attend private schools—in other words, that schoolchildren who attend private schools might be deprived of the equal protection of the laws were they invidiously classified under the state textbook loan program simply because their parens had exercised the constitutionally protected choice to send the children to private schools.
12
We do not see the issue in appellees' terms. In Pierce, the Court affirmed the right of private schools to exist and to operate; it said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise. It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.
13
The appellees intimate that the State must provide assistance to private schools equivalent to that which it provides to public schools without regard to whether the private schools discriminate on racial grounds. Clearly, the State need not. Even as to church-sponsored schools, whose policies are nondiscriminatory, any absolute right to equal aid was negated, at least by implication, in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The Religion Clauses of the First Amendment strictly confine state aid to sectarian education. Even assuming, therefore, that the Equal Protection Clause might require state aid to be granted to private nonsectarian schools in some circumstances—health care or textbooks, for example—a State could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian schools might best be achieved by withholding all state assistance. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). In the same way, a State's special interest in elevating the quality of education in both public and private schools does not mean that the State must grant aid to private schools without regard to constitutionally mandated standards forbidding state-supported discrimination. That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination.
III
14
The District Court's holding therefore raises the question whether and on what terms a State may—as a matter of legislative policy—provide tangible assistance to students attending private schools. Appellants assert, not only that the private schools are in fact racially discriminatory, but also that aid to them in any form is in derogation of the State's obligation not to support discrimination in education.
15
This Court has consistently affirmed decisions enjoining state tuition grants to students attending racially discriminatory private schools.6 A textbook lending program is not legally distinguishable from the forms of state assistance foreclosed by the prior cases. Free textbooks, like tuition grants directed to private school students, are a form of financial assistance inuring to the benefit of the private schools themselves.7 An inescapable educational cost for students in both public and private schools is the expense of providing all necessary learning materials. When, as here, that necessary expense is borne by the State, the economic consequence is to give aid to the enterprise; if the school engages in discriminatory practices the State by tangible aid in the form of textbooks thereby gives support to such discrimination. Racial discrimination in state-operated schools is barred by the Constitution and '(i)t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.' Lee v. Macon County Board of Education, 267 F.Supp. 458, 475—476 (M.D.Ala.1967).
16
We do not suggest that a State violates its constitutional duty merely because it has provided any form of state service that benefits private schools said to be racially discriminatory. Textbooks are a basic educational tool and, like tuition grants, they are provided only in connection with schools; they are to be distinguished from generalized services government might provide to schools in common with others. Moreover, the textbooks provided to private school students by the State in this case are a form of assistance readily available from sources entirely independent of the State—unlike, for example, 'such necessities of life as electricity, water, and police and fire protection.' Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972). The State has neither an absolute nor operating monopoly on the procurement of school textbooks; anyone can purchase them on the open market.
17
The District Court laid great stress on the absence of a showing by appellants that 'any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools.' 340 F.Supp., at 1013. We can accept this factual assertion; we cannot and do not know on this record at least, whether state textbook assistance is the determinative factor in the enrollment of any students in any of the private schools in Mississippi. We do not agree with the District Court in its analysis of the legla consequences of this uncertainty, for the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination. '(D)ecisions on the constitutionality of state involvement in private discrimination do not turn on whether the state aid adds up to 51 per cent or adds up only to 49 per cent of the support of the segregated institution.' Poindexter v. Louisiana Financial Assistance Comm'n, 275 F.Supp. 833, 854 (ED La.1967).8
18
The recurring theme of appelees' argument is a sympathetic one—that the State's textbook loan program is extended to students who attend racially segregated private schools only because the State sincerely wishes to foster quality education for all Mississippi children, and, to that end, has taken steps to insure that no sub-group of schoolchildren will be deprived of an important educational tool merely because their parents have chosen to enroll them in segregated private schools. We need not assume that the State's textbook aid to private schools has been motivated by other than a sincere interest in the educational welfare of all Mississippi children. But good intentions as to one valid objective do not serve to negate the State's involvement in violation of a constitutional duty. 'The existence of a permissible purpose cannot sustain an action that has an impermissible effect.' Wright v. Council of City of Emporia, 407 U.S. 451, 462, 92 S.Ct. 2196, 2203, 33 L.Ed.2d 51 (1972). The Equal Protection Clause would be a sterile promise if state involvement in possible private activity could be shielded altogether from constitutional scrutiny simply because its ultimate end was not discrimination but some higher goal.
19
The District Court offered as further support for its holding the finding that Mississippi's public schools 'were fully established as unitary schools throughout the state no later than 1970—71 (and) continue to attract 90% of the state's educable children.' 340 F.Supp., at 1013. We note, however, that overall statewide attendance figures do not fully and accurately reflect the impact of private schools in particular school districts.9 In any event, the constitutional infirmity of the Mississippi textbook program is that it significantly aids the organization and continuation of a separate system of private schools which, under the District Court holding, may discriminate if they so desire. A State's constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination. That the State's public schools are now fully unitary, as the District Court found, is irrelevant.
IV
20
Appellees and the District Court also placed great reliance on our decisions in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and Board of Education v Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). In Everson, we held that the Establishment Clause of the First Amendment did not prohibit New Jersey from 'spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.' 330 U.S., at 17, 67 S.Ct., at 512. Allen, following Everson, sustained a New York law requiring school textbooks to be lent free of charge to all students, including those in attendance at parochial schools, in specified grades.
21
Neither Allen nor Everson is dispositive of the issue before us in this case. Religious schools 'pursue two goals, religious instruction and secular education.' Board of Education v. Allen, supra, 392 U.S., at 245, 88 S.Ct., at 1927. And, where carefully limited so as to avoid the prohibitions of the 'effect' and 'entanglement' tests, States may assist church-related schools in performing their secular functions, Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, at 774, 775, 93 S.Ct. 2955, at 2966, 2967, 37 L.Ed.2d 948; Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, at 481, 93 S.Ct. 2814, at 2819—2820, 37 L.Ed.2d 736, not only because the States have a substantial interest in the quality of education being provided by private schools, see Cochran v. Louisiana State Board of Education, 281 U.S. 370, 375, 50 S.Ct. 335, 336, 74 L.Ed. 913 (1930), but more importantly because assistance properly confined to the secular functions of sectarian schools does not substantially promote the readily identifiable religious mission of those schools and it does not interfere with the free exercise rights of others.
22
Like a sectarian school, a private school—even one that discriminates—fulfills an important educational function; however, the difference is that in the context of this case the legitimate educational function cannot be isolated from discriminatory practices—if such in fact exist. Under Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), discriminatory treatment exerts a pervasive influence on the entire educational process. The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws, but neither can it call on the Constitution for material aid from the State.
23
Our decisions under the Establishment Clause reflect the 'internal tension in the First Amendment betwen the Establishment Clause and the Free Exercise Clause,' Tilton v. Richardson, 403 U.S. 672, 677, 91 S.Ct. 2091, 2095, 29 L.Ed.2d 790 (1971). This does not mean, as we have already suggested, that a State is constitutionally obligated to provide even 'neutral' services to sectarian schools. But the transcendent value of free religious exercise in our constitutional scheme leaves room for 'play in the joints' to the extent of cautiously delineated secular governmental assistance to religious schools, despite the fact that such assistance touches on the conflicting values of the Establishment Clause by indirectly benefiting the religious schools and their sponsors.
24
In contrast, although the Constitution does not proscribe private bias, it places no value on discrimination as it does on the values inherent in the Free Exercise Clause. Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances under § 2 of the Thirteenth Amendment; Congress has made such discrimination unlawful in other significant contexts.10 However narrow may be the channel of permissible state aid to sectarian schools. Nyquist, supra; Levitt, supra, it permits a greater degree of state assistance than may be given to private schools which engage in discriminatory practices that would be unlawful in a public school system.
V
25
At oral argument, appellees expressed concern over the process of determining the scope of relief to be granted should appellants prevail on the merits. That aspect of the case presents problems but the procedural details need not be fully resolved here. The District Court's assumption that textbook loans were permissible, even to racially discriminating private schools, obviated any necessity for that court to determine whether some of the private schools could properly be classified as 'racially discriminatory' and how that determination might best be made. We construe the complaint as contemplating an individual determination as to each private school in Mississippi whose students now receive textbooks under the State's textbook loan program; relief on an assumption that all private schools were discriminating, thus foreclosing individualized consideration, would not be appropriate.
26
The proper injunctive relief can be granted without implying a finding that all the private schools alleged to be receiving textbook aid are in fact practicing restrictive admission policies. Private schools are not fungible and the fact that some or even most may practice discrimination does not warrant blanket condemnation. The District Court can appropriately direct the appellees to submit for approval a certification procedure under which any school seeking textbooks for its pupils may apply for participation on behalf of pupils. The certification by the school to the Mississippi Textbook Purchasing Board should, among other factors, affirmatively declare its admission policies and practices, state the number of its racially and religiously identifiable minority students and such other relevant data as is consistent with this opinion. The State's certification of eligibility would, of course, be subject to judicial review.
27
This school-by-school determination may be cumbersome but no more so than the State's process of ascertaining compliance with educational standards. No presumptions flow from mere allegations; no one can be required, consistent with due process, to prove the absence of violation of law.
28
The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.
29
So ordered.
30
Vacated and remanded.
31
Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur in the result.
1
App. 40—41.
2
Brief for Appellants 8—9.
3
See Norwood v. Harrison, 340 F.Supp. 1003, 1007, (ND Miss.1972).
4
The regulation for distribution of state-owned textbooks from 1940 through 1970 provided as follows:
'For the distribution of free textbooks the local control will be placed in the hands of the County Superintendent of Education. All requisitions for books shall be made through him and all shipments of books shall be invoiced through him. At his discretion he may set up certain regulations governing the distribution of books within the county, such regulations not to conflict with the regulations adopted by the State Textbook Board or provisions of the Free Textbook Act.'
'This regulation was revised on October 14, 1970, to read as follows:
'Public Schools. The administration of the textbook program in the public schools shall be the responsibility of the administrative heads of the county units, consolidated districts, and municipal separate districts set up by the Legislature. All textbook transactions between the public schools and the State shall be carried on through them. It shall be the duty of these local custodians to render all reports required by the State; to place orders for textbooks for the pupils in their schools . . ..
'Private Schools. Private and parochial school programs shall be the responsibility of the State Textbook Board. All textbook transactions will be carried out between the Board and the administrative heads of these schools. Their duties shall be the same as outlined above for public schools.'
5
The variation in the figures as to schools and students is accounted for by the District Court's omission of particular kinds of schools in making the findings. The earlier and higher figures are found in the briefs and are not disputed.
6
Brown v. South Carolina Board of Education, 296 F.Supp. 199 (S.C.), aff'd per curiam, 393 U.S. 222, 89 S.Ct. 449, 21 L.Ed.2d 391 (1968); Poindexter v. Louisiana Finance Assistance Comm'n, 275 F.Supp. 833 (E.D.La.1967), aff'd per curiam, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968). See Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967), aff'g Lee v. Macon County Board of Education, 267 F.Supp. 458, 475 (M.D.Ala.). Mississippi's tuition grant programs were invalidated in Coffey, v. State Educational Finance Comm'n, 296 F.Supp. 1389 (S.D.Miss.1969); Coffey v. State Educational Finance Comm'n, S.D.Miss., C.A. No. 2906, decided Sept. 2, 1970 (unreported). The latter case involved a statute which provided for tuition loans rather than tuition grants. See Green v. Connally, 330 F.Supp. 1150 (DC), aff'd sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971).
7
Appellees misperceive the 'child benefit' theory of our cases decided under the Religion Clauses of the First Amendment. See, e.g., Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1930), and Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). In those cases the Court observed that the direct financial benefit of textbook loans to students is 'to parents and children, not to schools,' id., at 244, 88 S.Ct., at 1926 in the sense that parents and children—not schools—would in most instances be required to procure their textbooks if the State did not. But the Court has never denied that 'free books make it more likely that some children choose to attend a sectarian school,' ibid., just as in other cases involving aid to sectarian schools we have acknowledged that the various forms of state assistance 'surely aid these (religious) institutions . . . in the sense that religious bodies would otherwise have been forced to find other sources from which to finance these services.' Tilton v. Richardson, 403 U.S. 672, 679, 91 S.Ct. 2091, 2096, 29 L.Ed.2d 790 (1971). Plainly, religion benefits indirectly from governmental aid to parents and children; nevertheless, '(t)hat religion may indirectly benefit from governmental aid . . . does not convert that aid into an impermissible establishment of religion.' Lemon v. Kurtzman, 403 U.S. 602, 664, 91 S.Ct. 2105, 2136, 29 L.Ed.2d 745 (1971) (opinion of White, J.).
The leeway for indirect aid to sectarian schools has no place in defining the permissible scope of state aid to private racially discriminatory schools. 'State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the (Fourteenth) Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws.' Cooper v. Aaron, 358 U.S. 1, 19, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 (1958). Thus Mr. Justice White, the author of the Court's opinion in Allen, supra, and a dissenter in Lemon v. Kurtzman, supra, noted there that in his view, legislation providing assistance to any sectarian school which restricted entry on racial or religious grounds would, to that extent, be unconstitutional. Id., Lemon, supra, 403 U.S., at 671 n. 2, 91 S.Ct., at 2140. See Part IV, infra.
8
Accord, Griffin v. State Board of Education, 296 F.Supp. 1178, 1181 (E.D.Va.1969), superseding Griffin v. State Board of Education, 239 F.Supp. 560 (E.D.Va.1965); Brown v. South Carolina Board of Education, supra.
9
In Tunica County, for example, where appellants reside, in response to Green v. Connally, supra, and Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), all white children were withdrawn from public schools and placed in a private academy housed in local church facilities and staffed by the principal and 17 high school teachers of the county system, who resigned in mid-year to accept jobs at the new academy. See United States v. Tunica County School District, 323 F.Supp. 1019 (N.D.Miss.1970), aff'd, 440 F.2d 377 (CA5 1971). As of the time of the filing of this lawsuit, the successor Tunica Institute of Learning enrolled 495 students, all white, and would not attest to an open enrollment policy. Similar histories of Holmes County, Canton Municipal Separate School District, Jackson Municipal Separate School District, Amite County, Indianola Municipal Separate School District, and Grenada Municipal Separate School District are recited, without challenge by appellees, in Brief for Appellants 14—19.
10
See e.g., Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); 42 U.S.C. § 2000a et seq. (barring discrimination in public accommodations); 42 U.S.C. § 2000e et seq. (barring discrimination in private employment); 42 U.S.C. § 3601 et seq. (barring discrimination in private housing transactions).
| 12
|
413 U.S. 634
93 S.Ct. 2842
37 L.Ed.2d 853
Jule M. SUGARMAN, etc., et al., Appellants,v.Patrick McL. DOUGALL et al.
No. 71—1222.
Argued Jan. 8, 1973.
Decided June 25, 1973.
Syllabus
Section 53 of the New York Civil Service Law provides that only United States citizens may hold permanent positions in the competitive class of the state civil service. The District Court concluded that the statute was violative of the Fourteenth Amendment and the Supremacy Clause, and granted injunctive relief. Held:
1. Section 53 violates the Equal Protection Clause of the Fourteenth Amendment since, in the context of New York's statutory civil service scheme, it sweeps indiscriminately and is not narrowly limited to the accomplishment of substantial state interests. Pp. 638—643.
2. The 'special public interest' doctrine has no applicability in this case. Pp. 643—645.
3. Nor can the citizenship requirement be justified on the unproved premise that aliens are less permanent employees than citizens, or on other grounds asserted by appellants. Pp. 645—646.
4. While the State has an interest in defining its political community, and in corresponding interest in establishing the qualifications for persons holding state elective or important nonelective executive, legislative, and judicial positions, the broad citizenship requirement established by § 53 cannot be justified on this basis. Pp. 646—649.
339 F.Supp. 906, affirmed.
Samuel A. Hirshowitz, New York City, for appellants.
Lester Evens, New York City, for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Section 53(1) of the New York Civil Service Law reads:
2
'Except as herein otherwise provided, no person shall be eligible for appointment for any position in the competitive class unless he is a citizen of the United States.'1
3
The four appellees, Patrick McL. Dougall, Esperanza Jorge, Teresa Vargas, and Sylvia Castro, are federally registered resident aliens. When, because of their alienage, they were discharged in 1971 from their competitive civil service positions with the city of New York, the appellees instituted this class action challenging the constitutionality of § 53. The named defendants, and appellants here, were the Administrator of the city's Human Resources Administration (HRA), and the city's Director of Personnel and Chairman of its Civil Service Commission. The appellees sought (1) a declaration that the statute was invalid under the First and Fourteenth Amendments, (2) injunctive relief against any refusal, on the ground of alienage, to appoint and employ the appellees, and all persons similarly situated, in civil service positions in the competitive class, and (3) damages for lost earnings. A defense motion to dismiss for want of jurisdiction was denied by Judge Tenney, 330 F.Supp. 265 (SDNY 1971). A three-judge court was convened. That court ruled that the statute was violative of the Fourteenth Amendment and the Supremacy Clause, and granted injunctive relief. 339 F.Supp. 906 (SDNY 1971).2 Judge Lumbard joined the court's opinion and judgment, but wrote separately in concurrence. Id., at 911. Probable jurisdiction was noted. 407 U.S. 908, 92 S.Ct. 2434, 32 L.Ed.2d 682 (1972).
4
* Prior to December 28, 1970, the appellees were employed by nonprofit organizations that received funds through HRA from the United States Office of Economic Opportunity. These supportive funds ceased to be available about that time and the organizations, with approximately 450 employees, including the appellees and 16 other noncitizens, were absorbed by the Manpower Career and Development Agency (MCDA) of HRA.3 The appellant Administrator advised the transferees that they would be employed by the city.4 The appellees in fact were so employed in MCDA. In February, however, they were informed that they were ineligible for employment by the city and that they would be dismissed under the statutory mandate of § 53(1). Shortly thereafter, they were discharged from MCDA solely because of their alienage.5
5
Appellee Dougall was born in Georgetown, Guyana, in September 1927. He has been a resident of New York City since 1964. He was employed by MCDA as an administrative assistant in the staff Development Unit.
6
Appellee Jorge was born in November 1948 in the Dominican Republic. She has been a resident of New York City since 1967. She was employed by the Puerto Rican Forum as a clerk-typist and, later, as a human resources technician. She worked in the latter capacity for MCDA.
7
Appellee Vargas was born in the Dominican Republic in June 1946. She has been a resident of New York City since 1963. She worked as a clerk-typist for the Puerto Rican Forum and in the same capacity for MCDA.
8
Appellee Castro was born in El Salvador in June 1944. She has resided in New York City since 1967. She was employed by the Puerto Rican Forum as an assistant counselor and then as a human resources technician and worked in the latter capacity for MCDA.
9
The record does not disclose that any of the four appellees ever took any step to attain United States citizenship.
10
The District Court, in reaching its conclusion that § 53 was unconstitutional under the Fourteenth Amendment, placed primary reliance on this Court's decisions in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), and Takahashi v. Fish Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948), and, to an extent, on Purdy & Fitzpatrick v. State, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645 (1969). On the basis of these cases, the court also concluded that § 53 was in conflict with Congress' comprehensive regulation of immigration and naturalization because, in effect, it denied appellees entrance to, and abode in, New York. Accordingly, the court held, § 53 encroached upon an exclusive federal power and was constitutionally impermissible under Art. VI, cl. 2, of the Constitution.
II
11
As is so often the case, it is important at the outset to define the precise and narrow issue that is here presented. The Court is faced only with the question whether New York's flat statutory prohibition against the employment of aliens in the competitive classified civil service is constitutionally valid. The Court is not asked to decide whether a particular alien, any more than a particular citizen, may be refused employment or discharged on an individual basis for whatever legitimate reason the State might possess.
12
Neither is the Court reviewing a legislative scheme that bars some or all aliens from closely defined and limited classes of public employment on a uniform and consistent basis. The New York scheme, instead, is indiscriminate. The general standard is enunciated in the State's Constitution, Art. V, § 6, and is to the effect that appointments and promotions in the civil service 'shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive.' In line with this rather flexible constitutional measure, the classified service is divided by statute into four classes. New York Civil Service Law § 40. The first is the exempt class. It includes, generally, the higher offices in the state executive departments, certain municipal officers, certain judicial employees, and positions for which a competitive or noncompetitive examination may be found to be impracticable. The exempt class contains no citizenship restriction whatsoever. § 41. The second is the noncompetitive class. This includes positions, not otherwise classified, for which a noncompetitive examination would be practicable. There is no citizenship requirement. § 42. The third is the labor class. This includes unskilled laborers holding positions for which competitive examinations would be impracticable. No alienage exclusion is imposed. § 43. The fourth is the competitive class with which we are here concerned. This includes all positions for which it is practicable to determine merit and fitness by a competitive examination. s 44. Only citizens of the United States may hold positions in this class. § 53. The limits of these several classes, particularly the competitive class from which the appellees were deemed to be disqualified, are not readily defined. It would appear, however, that, consistent with the broad scope of the cited constitutional provision, the competitive class reaches various positions in nearly the full range of work tasks, that is, all the way from the menial to the policy making.
13
Apart from the classified civil service, New York has an unclassified service. § 35. This includes, among others, all elective offices, offices filled by legislative appointment, employees of the legislature, various offices filled by the Governor, and teachers. No citizenship requirement is present there.
14
Other constitutional and statutory citizenship requirements round out the New York scheme. The constitution of the State provides that voters, Art. II, § 1, members of the legislature, Art. III, § 7, the Governor and Lieutenant-Governor, Art. IV, § 2, and the Comptroller and Attorney-General, Art. V, § 1, are to be United States citizens. And Public Officers Law § 3 requires that any person holding 'a civil office' be a citizen of the United States. A 'civil office' is apparently one that 'possesses any of the attributes of a public officer or . . . involve(s) some portion of the soverign (sic) power.' 1967 Op.N.Y.Atty.Gen. 60; New York Post Corp. v. Moses, 12 A.D.2d 243, 250, 210 N.Y.S.2d 88, 95, rev'd on other grounds, 10 N.Y.2d 199, 219 N.Y.S.2d 7, 176 N.E.2d 709 (1961).
15
We thus have constitutional provisions and a number of statutes that, together, constitute New York's scheme for the exclusion of aliens from public employment. The present case concerns only § 53 of the Civil Service Law. The section's constitutionality, however, is to be judged in the context of the State's broad statutory framework and the justifications the State presents.
III
16
It is established, of course, that an alien is entitled to the shelter of the Equal Protection Clause. Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1851, 29 L.Ed.2d 534 (1971); Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). See In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910. This protection extends, specifically, in the words of Mr. Justice Hughes, to aliens who 'work for a living in the common occupations of the community.' Truax v. Raich, 239 U.S., at 41, 36 S.Ct., at 10.
17
A. Appellants argue, however, that § 53 does not violate the equal protection guarantee of the Fourteenth Amendment because the statute 'establishes a generic classification reflecting the special requirements of public employment in the career civil service.'6 The distinction drawn between the citizen and the alien, it is said, 'rests on the fundamental concept of identity between a government and the members, or citizens, of the state.'7 The civil servant 'participates directly in the formulation and execution of government policy,' and thus must be free of competing obligations to another power.8 The State's interest in having an employee of undivided loyalty is substantial, for obligations attendant upon foreign citizenship 'might impair the exercise of his judgment or jeopardize public confidence in his objectivity.'9 Emphasis is placed on our decision in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), upholding the Hatch Act and its proscription of political activity by certain public employees, and it is said that the public employer 'has broad discretion to establish qualifications for its employees related to the integrity and efficiency of the operations of government.'10
18
It is at once apparent, however, that appellants' asserted justification proves both too much and too little. As the above outline of the New York scheme reveals, the State's broad prohibition of the employment of aliens applies to many positions with respect to which the State's proffered justification has little, if any, relationship. At the same time, the prohibition has no application at all to positions that would seem naturally to fall within the State's asserted purpose. Our standard of review of statutes that treat aliens differently from citizens requires a greater degree of precision.
19
In Graham v. Richardson, 403 U.S., at 372, 91 S.Ct., at 1852, we observed that aliens as a class 'are a prima example of a 'discrete and insular' minority (see United States v. Carolene Products Co., 304 U.S. 144, 152—153, n. 4, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234 (1938)),' and that classifications based on alienage are 'subject to close judicial scrutiny.' And as long as a quarter century ago we held that the State's power 'to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.' Takahashi v. Fish Comm'n, 334 U.S., at 420, 68 S.Ct., at 1143. We therefore look to the substantiality of the State's interest in enforcing the statute in question, and to the narrowness of the limits within which the discrimination is confined.
20
Applying this standard to New York's purpose in confining civil servants in the competitive class to those persons who have no ties of citizenship elsewhere, § 53 does not withstand the necessary close scrutiny. We recognize a State's interest in establishing its own form of government, and in limiting participation in that government to those who are within 'the basic conception of a political community.' Dunn v. Blumstein, 405 U.S. 330, 344, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972). We recognize, too, the State's broad power to define its political community. But in seeking to achieve this substantial purpose, with discrimination against aliens, the means the State employs must be precisely drawn in light of the acknowledged purpose.
21
Section 53 is neither narrowly confined nor precise in its application. Its imposed ineligibility may apply to the 'sanitation man, class B,' Perotta v. Gregory, 4 Misc.2d 769, 158 N.Y.S.2d 221 (1957), to the typist, and to the office worker, as well as to the person who directly participates in the formulation and execution of important state policy. The citizenship restriction sweeps indiscriminately. Viewing the entire constitutional and statutory framework in the light of the State's asserted interest, the great breadth of the requirement is even more evident. Sections 35 and 41 of the Civil Service Law, relating generally to persons holding elective and high appointive offices, contain no citizenship restrictions. Indeed, even § 53 permits an alien to hold a classified civil service position under certain circumstances. In view of the breadth and imprecision of § 53 in the context of the State's interest, we conclude that the statute does not withstand close judicial scrutiny.
22
B. Appellants further contend, however, that the State's legitimate interest is greater than simply limiting to citizens those high public offices that have to do with the formulation and exeuction of state policy. Understandably relying on this Court's decisions in Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915), Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915), and Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115 (1927), appellants argue that a State constitutionally may confine public employment to citizens. Mr. Justice (then Judge) Cardozo accepted this 'special public interest' argument because of the State's concern with 'the restriction of the resources of the state to the advancement and profit of the members of the state.' People v. Crane, 214 N.Y. 154, 161, 108 N.E. 427, 429 aff'd, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915). We rejected that approach, however, in the context of public assistance in Graham, where it was observed that 'the special public interest doctrine was heavily grounded on the notion that '(w)hatever is a privilege, rather than a right, may be made dependent upon citizenship.' People v. Crane . . .. But this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege." 403 U.S., at 374, 91 S.Ct., at 1853. See also Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963); Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 1327, 22 L.Ed.2d 600 (1969); Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970); Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971).
23
Appellants argue that our rejection of the special-public-interest doctrine in a public assistance case does not require its rejection here. That the doctrine has particular applicability with regard to public employment is demonstrated, according to appellants, by the decisions in Crane and Heim that upheld, under Fourteenth Amendment challenge, those provisions of the New York Labor Law that confined employment on public works to citizens of the United States.11 See M. Konvitz, The Alien and the Asiatic in American Law, c. 6 (1946).
24
We perceive no basis for holding the special-public-interest doctrine inapplicable in Graham and yet applicable and controlling here. A resident alien may reside lawfully in New York for a long period of time. He must pay taxes. And he is subject to service in this country's Armed Forces. 50 U.S.C.App. § 454(a). See Astrup v. Immigration Service, 402 U.S. 509, 91 S.Ct. 1583, 29 L.Ed.2d 68 (1971). The doctrine, rooted as it is in the concepts of privilege and of the desirability of confining the use of public resources, has no applicability in this case. To the extent that Crane, Heim, and Clarke intimate otherwise, they were weakened by the decisions in Takahashi and Graham, and are not to be considered as controlling here.
25
C. The State would tender other justifications for § 53's bar to employment of aliens in the competitive civil service. It is said that career civil service is intended for the long-term employee, and that the alien, who is subject to deportation and, as well, to conscription by his own country, is likely to remain only temporarily in a civil service position. We fully agree with the District Court's response to this contention:
26
'There is no offer of proof on this issue and (appellants) would be hard pressed to demonstrate that a permanent resident alien who has resided in New York or the surrounding area for a number of years, as have (appellees), and whose family also resides here, would be a poorer risk for a career position in New York . . . than an American citizen who, prior to his employment with the City or State, had been residing in another state.' 339 F.Supp., at 909.
27
Appellants further assert that employment of aliens in the career civil service would be inefficient, for when aliens eventually leave their positions, the State will have the expense of hiring and training replacements. Even if we could accept the premise underlying this argument—that aliens are more likely to leave their work than citizens—and assuming that this rationale could be logically confined to the classified competitive civil service, the State's suggestion does not withstand examination. As we stated in Graham, noting the general identity of an alien's obligations with those of a citizen, the "justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens." 403 U.S., at 376, 91 S.Ct. at 1854.
28
We hold that § 53, which denies all aliens the right to hold positions in New York's classified competitive civil service, violates the Fourteenth Amendment's equal protection guarantee.12
29
Because of this conclusion, we need not reach the issue whether the citizenship restriction is in conflict with Congress' comprehensive regulation of immigration and naturalization. See Graham v. Richardson, 403 U.S., at 376—380, 91 S.Ct. at 1854—1856.
IV
30
While we rule that § 53 is unconstitutional, we do not hold that, on the basis of an individualized determination, an alien may not be refused, or discharged from, public employment, even on the basis of noncitizenship, if the refusal to hire, or the discharge, rests on legitimate state interests that relate to qualifications for a particular position or to the characteristics of the employee. We hold only that a flat ban on the employment of aliens in positions that have little, if any relation to a State's legitimate interest, cannot withstand scrutiny under the Fourteenth Amendment.
31
Neither do we hold that a State may not, in an appropriately defined class of positions, require citizenship as a qualification for office. Just as 'the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections,' Oregon v. Mitchell, 400 U.S. 112, 124—125, 91 S.Ct. 260, 263, 27 L.Ed.2d 272 (1970) (footnote omitted) (opinion of Black, J.); see id., at 201, 91 S.Ct. at 303 (opinion of Harlan, J.), and id., at 293—294, 91 S.Ct. at 348—349 (opinion of Stewart, J.), '(e)ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.' Boyd v. Thayer, 143 U.S. 135, 161, 12 S.Ct. 375, 382, 36 L.Ed. 103 (1892). See Luther v. Borden, 7 How. 1, 41, 12 L.Ed. 581 (1849); Pope v. Williams, 193 U.S. 621, 632—633, 24 S.Ct. 573, 575, 48 L.Ed. 817 (1904). Such power inheres in the State by virtue of its obligation, already noted above, 'to preserve the basic conception of a political community.' Dunn v. Blumstein, 405 U.S., at 344, 92 S.Ct., at 1004. And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government. There, as Judge Lumbard phrased it in his separate concurrence, is 'where citizenship bears some rational relationship to the special demands of the particular position.' 339 F.Supp., at 911.
32
We have held, of course, that such state action, particularly with respect to voter qualifications is not wholly immune from scrutiny under the Equal Protection Clause. See, for example, Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). But our scrutiny will not be so demanding where we deal with matters resting firmly within a State's constitutional prerogatives. Id., at 625, 89 S.Ct., at 1888; Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675 (1965). This is no more than a recognition of a State's historical power to exclude aliens from participation in its democratic political institutions, Pope v. Williams, 193 U.S., at 632—634, 24 S.Ct., at 575—576; Boyd v. Thayer, 143 U.S., at 161, 12 S.Ct., at 381, and a recognition of a State's constitutional responsibility for the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders.13 U.S.Const. Art. IV, § 4; U.S.Const. Amdt. X; Luther v. Borden, supra; see In re Duncan, 139 U.S. 449, 461, 11 S.Ct. 573, 577, 35 L.Ed. 219 (1891). This Court has never held that aliens have a constitutional right to vote or to hold high public office under the Equal Protection Clause. Indeed, implicit in many of this Court's voting rights decisions is the notion that citizenship is a permissible criterion for limiting such rights. Kramer v. Union School District, 395 U.S., at 625, 89 S.Ct., at 1888; Reynolds v. Sims, 377 U.S. 533, 567, 568, 84 S.Ct. 1362, 1384, 12 L.Ed.2d 506 (1964); Harper v. Virginia Board of Elections, 383 U.S. 663, 666 667, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S., at 91, 93—94, 96, 85 S.Ct., at 777—779; Lassiter v. Northampton Election Board, 360 U.S. 45, 50—51, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959); Mason v. Missouri, 179 U.S. 328, 335, 21 S.Ct. 125, 128, 45 L.Ed. 214 (1900). A restriction on the employment of noncitizens, narrowly confined, could have particular relevance to this important state responsibility, for alienage itself is a factor that reasonably could be employed in defining 'political community.'
33
The judgment of the District Court is affirmed.
34
Affirmed.
35
Mr. Justice REHNQUIST, dissenting.
36
The Court in these two cases holds that an alien is not really different from a citizen, and that any legislative classification on the basis of alienage is 'inherently suspect'. The Fourteenth Amendment, the Equal Protection Clause of which the Court interprets as invalidating the state legislation here involved, contains no language concerning 'inherently suspect classifications,' or, for that matter, merely 'suspect classifications.' The principal purpose of those who drafted and adopted the Amendment was to prohibit the States from invidiously discriminating by reason of race, Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (1873), and, because of this plainly manifested intent, classifications based on race have rightly been held 'suspect' under the Amendment. But there is no language used in the Amendment, nor any historical evidence as to the intent of the Framers, which would suggest to the slightest degree that it was intended to render alienage a 'suspect' classification, that it was designed in any way to protect 'discrete and insular minorities' other than racial minorities, or that it would in any way justify the result reached by the Court in these two cases.
37
Two factual considerations deserve more emphasis than accorded by the Court's opinions. First, the records in Nos. 71 1222 and 71—1336 contain no indication that the aliens suffered any disability that precluded them, either as a group or individually, from applying for and being granted the status of naturalized citizens. The appellees in No. 71—1222, as far as the record discloses, took no steps to obtain citizenship or indicate any affirmative desire to become citizens. In No. 71—1336, appellant was eligible for naturalization but 'elected to remain a citizen of the Netherlands', 162 Conn. 249, 250, 294 A.2d 281, 282, and deliberately chose not to file a declaration of intent under 8 U.S.C. §§ 1427(f), 1430(a). The 'status' of these individuals was not, therefore, one with which they were forever encumbered; they could take steps to alter it when and if they chose.1
38
Second, the appellees in No. 71—1222 all sought to be employees of administrative agencies of the New York City government. Of the 20 members of the class represented by the named appellees, three were typists, one a 'senior clerk,' two 'human resources technicians,' three 'senior human resources technicians,' six 'human resource specialists,' three 'senior human resources specialists,' and two 'supervising human resource specialists.' The record does not reveal what functions are performed by these civil servants, although appellee Dougall apparently was the chief administrator of a program; the remaining appellees were all employees of the New York City Human Resources Administration, the governmental body with numerous employees which administers many types of social welfare programs, spending a great deal of money and dealing constantly with the public and other arms of the federal, state, and local governments.
39
* The Court, by holding in these cases and in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), that a citizen-alien classification is 'suspect' in the eyes of our Constitution, fails to mention, let alone rationalize, the fact that the Constitution itself recognizes a basic difference between citizens and aliens. That distinction is constitutionally important in no less than 11 instances in a political document noted for its brevity. Representatives, U.S.Const. Art. I, § 2, cl. 2, and Senators, Art. I, § 3, cl. 3, must be citizens. Congress has the authority '(t)o establish an uniform Rule of Naturalization' by which aliens can become citizen members of our society, Art. I, § 8, cl. 4; the judicial authority of the federal courts extends to suits involving citizens of the United States 'and foreign States, Citizens or Subjects,' Art. III, § 2, cl. 1, because somehow the parties are 'different,' a distinction further made by the Eleventh Amendment; the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments are relevant only to 'citizens.' The President must not only be a citizen but 'a natural born Citizen,' Art. II, § 1, cl. 5. One might speculate what meaning Art. IV, § 2, cl. 1, has today.
40
Not only do the numerous classifications on the basis of citizenship that are set forth in the Constitution cut against both the analysis used and the results reached by the Court in these cases; the very Amendment which the Court reads to prohibit classifications based on citizenship establishes the very distinction which the Court now condemns as 'suspect.' The first sentence of the Fourteenth Amendment provides:
41
'All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.'
42
In constitutionally defining who is a citizen of the United States, Congress obviously thought it was doing something, and something important. Citizenship meant something, a status in and relationship with a society which is continuing and more basic than mere presence or residence. The language of that Amendment carefully distinguishes between 'persons' who, whether by birth or naturalization, had achieved a certain status, and 'persons' in general. That a 'citizen' was considered by Congress to be a rationally distinct subclass of all 'persons' is obvious from the language of the Amendment.
43
It is unnecessary to venture into a detailed discussion of what Congress intended by the Citizenship Clause of the Fourteenth Amendment. The paramount reason was to amend the Constitution so as to overrule explicitly the Dred Scott decision. Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857). Our decisions construing 'the privileges or immunities of citizens of the United States' are not irrelevant to the question now before the Court, insofar as they recognize that there are attributes peculiar to the status of federal citizenship. See, e.g., Slaughter-House Cases, 16 Wall., at 79; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876); Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884); Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649 (1891); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895). Cf. Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868). Decisions of this Court holding that an alien is a 'person' within the meaning of the Equal Protection Clause of the Fourteenth Amendment are simply irrelevant to the question of whether that Amendment prohibits legislative classifications based upon this particular status. Since that Amendment by its own terms first defined those who had the status as a lesser included class of all 'persons,' the Court's failure to articulate why such classifications under the same Amendment are now forbidden serves only to illuminate the absence of any constitutional foundation for these instant decisions.
44
This Court has held time and again that legislative classifications on the basis of citizenship were subject to the rational-basis test of equal protection, and that the justifications then advanced for the legislation were rational. See Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115 (1927); Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923); Porterfield v. Webb, 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278 (1923); Webb v. O'Brien, 263 U.S. 313, 44 S.Ct. 112, 68 L.Ed. 318 (1923); Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323 (1923); Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914); Blythe v. Hinckley, 180 U.S. 333, 21 S.Ct. 390, 45 L.Ed. 557 (1901); Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1880).
45
This Court explicitly held that it was not a violation of the Equal Protection Clause for a State by statute to limit employment on public projects to citizens. Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915); Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915). Even if the Court now considers that the justifications for those enactments are 'NOT CONTROLLING,' THOSE DECISIONS CLEARLy hold that the rational-basis test applies.
46
To reject the methodological approach of these decisions, the Court now relies in part on the decisions in Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915), and Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). In Truax, supra, the Court invalidated a state statute which prohibited employers of more than five persons from employing more than 20% noncitizens. The law was applicable to all businesses. In holding that the law was invalid under the Equal Protection Clause, the Court took pains to explain that the decision was not meant to disturb prior holdings, 239 U.S., at 39, 36 S.Ct., at 9, and specifically noted that 'it should be added that the act is not limited to persons who are engaged on public work or receive the benefit of public moneys.' Id., at 40, 36 S.Ct., at 10. Indeed, Heim and Crane were decided after Truax, as was Clarke, which held that a State could constitutionally prohibit aliens from engaging in certain types of businesses. If anything, Truax was limited by these later decisions.
47
Takahashi, supra, involved a statute which prohibited aliens 'ineligible for citizenship' under federal law from receiving commercial fishing licenses. A State whose classification on the basis of race would have been legitimately 'suspect' under the Fourteenth Amendment was in effect using Congress' power to classify in granting or withholding citizenship. The Court did not countenance this attempt at discrimination on the basis of race 'by incorporation.' Two features of that law should be noted. First, the statutory classification was not one involving citizens and aliens; it classified citizens and those resident aliens eligible for citizenship into one group, and resident aliens ineligible for citizenship into another. No reason for discriminating among resident aliens is apparent. Second, and most important, is the fact that, although the Court properly refused to inquire into the legislative motive, the overwhelming effect of the law was to bar resident aliens of Japanese ancestry from procuring fishing licenses. The Court was not blind to this fact, or to history. See 334 U.S., at 412, n. 1, 413, 68 S.Ct., at 1139. The state statute that classifies aliens on the basis of country of origin is much more likely to classify on the basis of race, and thus conflict with the core purpose of the Equal Protection Clause, than a statute that, as here, merely distinguishes between alienage as such and citizenship as such. Takahashi did not, however, overrule previous decisions, and certainly announced no 'suspect classification' rule with regard to citizen-alien classifications. To say that it did evades rather than confronts precedent.
48
The third, and apparently paramount, 'decision' upon which the Court relied in Graham, and which is merely quoted in the instant decisions, is a footnote from United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), a case involving a federal statute prohibiting the interstate shipment of filled milk. That footnote discussed the presumption of constitutionality of statutes and stated:
49
'Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, or national, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047; Farrington v. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646, or racial minorities, Nixon v. Herndon (273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759); Nixon v. Condon (286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984): whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.' Id., at 152 153, n. 4, 58 S.Ct., at 784.
50
On the 'authority' of this footnote, which only four Members of the Court in Carolene Products joined, the Court in Graham merely stated that 'classifications based on alienage . . . are inherently suspect' because '(a) liens as a class are a prime example of a 'discrete and insular' minority . . . for whom such heightened judicial solicitude is appropriate.' 403 U.S., at 372, 91 S.Ct., at 1852.
51
As Mr. Justice Frankfurter so aptly observed:
52
'A footnote hardly seems to be an appropriate way of announcing a new constitutional doctrine, and the Carolene footnote did not purport to announce any new doctrine . . ..' Kovacs v. Cooper, 336 U.S. 77, 90—91, 69 S.Ct. 448, 455, 93 L.Ed. 513 (1949) (concurring opinion).
53
Even if that judicial approach were accepted, however, the Court is conspicuously silent as to why that 'doctrine' should apply to these cases.
54
The footnote itself did not refer to 'searching judicial inquiry' when a classification is based on alienage, perhaps because there was a long line of authority holding such classifications entirely consonant with the Fourteenth Amendment. The 'national' category mentioned involved legislative attempts to prohibit education in languages other than English, which attempts were held unconstitutional as a deprivation of 'liberty' within the meaning of the Fourteenth and Fifth Amendments. These cases do not mention a 'citizen-alien' distinction, nor do they support a reasoning that 'nationality' is the same as 'alienage.'
55
The mere recitation of the words 'insular and discrete minority' is hardly a constitutional reason for prohibiting state legislative classifications such as are involved here, and is not necessarily consistent with the theory propounded is that footnote. The approach taken in Graham and these cases appears to be that whenever the Court feels that a societal group is 'discrete and insular,' it has the constitutional mandate to prohibit legislation that somehow treats the group differently from some other group.
56
Our society, consisting of over 200 million individuals of multitudinous origins, customs, tongues, beliefs, and cultures is, to say the least, diverse. It would hardly take extraordinary ingenuity for a lawyer to find 'insular and discrete' minorities at every turn in the road. Yet, unless the Court can precisely define and constitutionally justify both the terms and analysis it uses, these decisions today stand for the proposition that the Court can choose a 'minority' it 'feels' deserves 'solicitude' and thereafter prohibit the States from classifying that 'minority' differently from the 'majority.' I cannot find, and the Court does not cite, any constitutional authority for such a 'ward of the Court' approach to equal protection.
57
The only other apparent rationale for the invocation of the 'suspect classification' approach in these cases is that alienage is a 'status,' and the Court does not feel it 'appropriate' to classify on that basis. This rationale would appear to be similar to that utilized in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), in which the Court cited, without discussion, Graham. Id., at 176 n. 14, 92 S.Ct., at 1407. But there is a marked difference between a status or condition such as illegitimacy, national origin, or race, which cannot be altered by an individual and the 'status' of the appellant in No. 71—1336 or of the appellees in No. 71-1222. There is nothing in the record indicating that their status as aliens cannot be changed by their affirmative acts.
II
58
In my view, the proper judicial inquiry is whether any rational justification exists for prohibiting aliens from employment in the competitive civil service and from admission to a state bar.
59
'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, 1104—1105, 6 L.Ed.2d 393 (1961).
60
Before discussing this question, a preliminary reflection on the Court's opinions is warranted. Perhaps the portions of the opinions that would most disturb native-born citizens and especially naturalized citizens who have worked diligently to learn about our history, mores, and political institutions and who have successfully completed the rigorous process of naturalization, is the intimation, if not statement, that they are really not any different from aliens. The Court concludes that, because aliens residing in our country must pay taxes and some of them (but not appellant in No. 71—1336) might at one time have been subject to service in the Armed Forces, the two 'groups' are indistinguishable for purposes of equal protection analysis. Compulsory military service has been ended by Congress.2 Given the ubiquity of texes in our present society, it is, in my opinion, totally unconvincing to attribute to their payment the leveling significance indicated by the Court. Is an alien who, after arriving from abroad in New York City, immediately purchases a pack of cigarettes, thereby paying federal, state, and city taxes, really no different from a citizen?
61
The opinion of the Court in No. 71-1222 would appear to answer this question in the negative, but it then proceeds to state that there is a difference between aliens and citizens for purposes of participation and service in the political arenas. Unless the Court means that citizenship only has meaning in a political context, the analytical approach of the Court is less than clear, hardly convincing, and curiously conflicts with the high nonpolitical value that the Court has heretofore ascribed to citizenship. If citizenship is not 'special,' the Court has wasted a great deal of effort in the past. Cf. Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).
62
These statutes do not classify on the basis of country of origin; the distinctions are not between native Americans and 'foreigners,' but between citizens and aliens. The process of naturalization was specifically designed by Congress to require a foreign national to demonstrate that he or she is familiar with the history, traditions, and institutions of our society in a way that a native-born citizen would learn from formal education and basic social contact. Congress specifically provided that an alien seeking citizenship status must demonstrate 'an understanding of the English language' and 'a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.' 8 U.S.C. § 1423. The purpose was to make the alien establish that he or she understood, and could be integrated into, our social system.
63
'Through the system of citizenship classes sponsored by the Immigration and Naturalization Service and the local school system, the alien is aided in preparing himself for citizenship, and every effort is made to give him fundamental and uniform knowledge of our political and social structure. In order that he may intelligently use this fundamental and uniform knowledge and so that he may be a complete and thoroughly integrated member of our American society, the committee (House Judiciary Committee) feels that he should have a basic knowledge of the common language of the country and be able to read, write, and speak it with reasonable facility.' H.R.Rep.No.1365, 82d Cong., 2d Sess., 78 (1952) (emphasis added).
64
See also 8 U.S.C. § 1424, which precludes aliens who manifest certain opposition to our society or form of government from being naturalized. An alien must demonstrate 'good moral character,' 8 U.S.C. § 1427(a)(3), which was intended by Congress to mean a broad 'attach(ment) to the principles of the Constitution of the United States, and (disposition) to the good order and happiness of the United States.' H.R.Rep.No.1365, supra, at 80. See also 8 CFR § 332b (1973), detailing the cooperation between the Immigration and Naturalization Service and local schools conducting citizenship education for applicants for naturalization. The above is sufficient to demonstrate, I believe, that Congress provided that aliens seeking citizenship status prove what citizens by birth are, as a class, presumed to understand: a basic familiarity with our social and political mores and institutions. The naturalized citizen has dem onstrated both the willingness and ability to integrate into our social system as a whole, not just into our 'political community,' as the Court apparently uses the term. He proved that he has become 'like' a native-born citizen in ways that aliens, as a class, could be presumed not to be. The Court simply ignores the purpose of the process of assimilation into and dedication to our society that Congress prescribed to make aliens 'like' citizens.
65
In No. 71—1222, I do not believe that it is irrational for New York to require this class of civil servants to be citizens, either natural-born or naturalized. The proliferation of public administration that our society has witnessed in recent years, as a result of the regulation of conduct and the dispensation of services and funds, has vested a great deal of de facto decisionmaking or policymaking authority in the hands of employees who would not be considered the textbook equivalent of policymakers of the legislative or 'top' administrative variety. Nevertheless, as far as the private individual who must seek approval or services is concerned, many of these 'low level' civil servants are in fact policymakers. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), implicitly recognized that those who apply facts to individual cases are as much 'governors' as those who write the laws or regulations the 'low-level' administrator must 'apply.' Since policymaking for a political community is not necessarily the exclusive preserve of the legislators, judges, and 'top' administrators, it is not irrational for New York to provide that only citizens should be admitted to the competitive civil service.
66
But the justification of efficient government is an even more convincing rationale. Native-born citizens can be expected to be familiar with the social and political institutions of our society; with the society and political mores that affect how we react and interact with other citizens. Naturalized citizens have also demonstrated their willingness to adjust to our patterns of living and attitudes, and have demonstrated a basic understanding of our institutions, system of government, history, and traditions. It is not irrational to assume that aliens as a class are not familiar with how we as individuals treat others and how we expect 'government' to treat us. An alien who grew up in a country in which political mores do not reject bribery or self-dealing to the same extent that our culture does; in which an imperious bureaucracy historically adopted a complacent or contemptuous attitude toward those it was supposed to serve; in which fewer if any checks existed on administrative abuses; in which 'low-level' civil servants serve at the will of their superiors—could rationally be thought not to be able to deal with the public and with citizen civil servants with the same rapport that one familiar with our political and social mores would, or to approach his duties with the attitude that such positions exist for service, not personal sinecures of either the civil servant or his or her superior. These considerations could rationally be expected to influence how an administrator in charge of a program, such as appellee Dougall, made decisions in allocating funds, hiring or dealing with personnel, or decisionmaking, or how a lower level civil servant, such as appellee Jorge, was able to perform with and for fellow workers and superiors, even if she had no direct contact with the public. All these factors could materially affect the efficient functioning of the city government, and possibly as well the very integrity of that government. Such a legislative purpose is clearly not irrational.
67
In No. 71—1336 the answer is not as clearcut. The States traditionally have had great latitude in prescribing rules and regulations concerning technical competence and character fitness, governing those who seek to be admitted to practice law. See, e.g., Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961). The importance of lawyers and the judiciary in our system of government and justice needs no extended comment. An attorney is an 'officer of the court' in Connecticut, a status this Court has also recognized. See, e.g., Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932); Ex parte Garland, 4 Wall. 333, 370, 18 L.Ed. 366 (1867). He represents his client, but also, in Connecticut, may 'sign writs and subpoenas, take recognizances, (and) administer oaths.' Conn.Gen.Stat.Rev. § 51—85.
68
More important than these emoluments of their position, though, is the tremendous responsibility and trust that our society places in the hands of lawyers. The liberty and property of the client may depend upon the competence and fidelity of the representation afforded by the lawyer in any number of particular lawsuits. But by virtue of their office lawyers are also given, and have increasingly undertaken to exercise, authority to seek to alter some of the social relationships and institutions of our society by use of the judicial process. No doubt an alien even under today's decision may be required to be learned in the law and familiar with the language spoken in the courts of the particular State involved. But Connecticut's requirement of citizenship reflects its judgment that something more than technical skills are needed to be a lawyer under our system. I do not believe it is irrational for a State that makes that judgment to require that lawyers have an understanding of the American political and social experience, whether gained from growing up in this country, as in the case of a native-born citizen, or from the naturalization process, as in the case of a foreign-born citizen. I suppose the Connecticut Bar Examining Committee could itself administer tests in American history, government, and sociology, but the State did not choose to go this route. Instead, it chose to operate on the assumption that citizens as a class might reasonably be thought to have a significantly greater degree of understanding of our experience than would aliens. Particularly in the case of one such as appellant, who candidly admits that she wants to live and work in the United States but does not want to sever her fundamental social and political relationship with the country of her birth, I do not believe the State's judgment is irrational.
69
I would therefore reverse the judgment in No. 71—1222 and affirm that in No. 71—1336.
1
The restriction has its statutory source in Laws of New York, 1939, c. 767, § 1. We are advised that the legislation was declarative of an administrative practice that had existed for many years. Tr. of Oral Arg. 43, 45.
Section 53(2) of N.Y.Civ.Serv.Law (Supp.1972—1973) makes a temporary exception to the citizenship requirement:
'2. Notwithstanding any of the provisions of this chapter or of any other law, whenever a department head or appointing authority deems that an acute shortage of employees exists in any particular class or classes of positions by reason of a lack of a sufficient number of qualified personnel available for recruitment, he may present evidence thereof to the state or municipal civil service commission having jurisdiction which, after due inquiry, may determine the existence of such shortage and waive the citizenship requirement for appointment to such class or classes of positions. The state commission or such municipal commission, as the case may be, shall annually review each such waiver of the citizenship requirement, and shall revoke any such waiver whenever it finds that a shortage no longer exists. A non-citizen appointed pursuant to the provisions of this section shall not be eligible for continued employment unless he diligently prosecutes the procedures for citizenship.'
It is to be observed that an appointment under this exception permits the alien to continue his employment only until, or annual review, it is deemed that 'a shortage no longer exists.' And, in any event, the alien 'shall not be eligible for continued employment unless he diligently prosecutes the procedures for citizenship.'
2
The court found jurisdiction in the Civil Rights Statutes, 28 U.S.C. § 1343(3) and (4). 339 F.Supp. 906, 907 n. 5. It held that the suit was properly maintainable as a class action and defined the class as consisting of 'all permanent resident aliens residing in New York State who, but for the enforcement of Section 53, would otherwise be eligible to compete for employment in the competitive class of Civil Service.' Id., at 907 n. 4.
3
Affidavit of Harold O. Basden, Director of Personnel of the Human Resources Administration, App. 31—33.
4
Section 45 of the New York Civil Service Law, applicable to employees of a private institution acquired by the State or a public agency, contains a restriction, similar to that in § 53(1), against the employment of an alien in a position classified in the competitive class.
5
The appellants in their answer alleged that appellee Castro was terminated for the additional reason that she lacked sufficient experience to qualify for the position of senior human resources technician. App. 49. The three-judge court in its order, App. 93, excluded appellee Castro from the recognized class. That exclusion is not contested here.
6
Brief for Appellants 17.
7
Id., at 22.
8
Id., at 23.
9
Ibid.
10
Id., at 13.
11
In the past, the Court has invoked the special-public-interest doctrine to uphold statutes that, in the absence of overriding treaties, limit the right of noncitizens to exploit a State's natural resources, McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1877), Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914); to inherit real property, Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1880), Blythe v. Hinckley, 180 U.S. 333, 21 S.Ct. 390, 45 L.Ed. 557 (1901); and to acquire and own land, Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923), Porterfield v. Webb, 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278 (1923), Webb v. O'Brien, 263 U.S. 313, 44 S.Ct. 112, 68 L.Ed. 318 (1923), Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323 (1923); but see Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948).
12
We are aware that citizenship requirements are imposed in certain aspects of the federal service. See 5 U.S.C. § 3301; Exec. Order No. 10577, 19 Fed.Reg. 7521, § 2.1 (1954); 5 CFR §§ 338.101, 302.203(g) (1973); and, for example, Treasury, Postal Service, and General Government Appropriation Act, 1972, § 602, Pub.L. 92—49, 85 Stat. 122, and Public Works Appropriations Act, 1971, § 502, Pub.L. 91—439, 84 Stat. 902. In deciding the present case, we intimate no view as to whether these federal citizenship requirements are or are not susceptible of constitutional challenge. See Jalil v. Hampton, 148 U.S.App.D.C. 415, 460 F.2d 923, cert. denied, 409 U.S. 887, 93 S.Ct. 112, 34 L.Ed.2d 144 (1972); Comment, Aliens and the Civil Service: A Closed Door?, 61 Geo.L.J. 207 (1972).
13
In congressional debates leading to the adoption of the Fourteenth Amendment, there is clear evidence that Congress not only knew that as a matter of local practice aliens had not been granted the right to vote, but that under the amendment they did not receive a constitutional right of suffrage or a constitutional right to participate in the political process of state government, and that, indeed, the right to vote and the concomitant right of participation in the political process were matters of local law. Cong. Globe, 39th Cong., 1st Sess., 141—142, 2766—2767 (1866).
It is noteworthy, as well, that the 40th Congress considered and very nearly proposed a version of the Fifteenth Amendment that expressly would have prohibited discriminatory qualifications not only for voting but also for holding office. The provision was struck in conference. It is evident from the debate that, for whatever motive, its opponents wanted the States to retain control over the qualifications for office. Cong. Globe, 40th Cong., 3d Sess., at 1425—1426, 1623—1633 (1869). And, of course, the Fifteenth Amendment applies by its terms only to 'citizens.'
1
Although some of the members of the class had not been residents of the United States for five years at the time the complaint was filed, and therefore were ineligible to apply immediately for citizenship, 8 U.S.C. § 1427, there is no indication that these members, assuming that they are in the same 'class' as the named appellees, would be prohibited from seeking citizenship status after they had resided in this country for the required period. In any event, this circumstance only underscores the fact that it is not unreasonable to assume that they have not learned about and adapted to our mores and institutions to the same extent as one who had lived here for five years would have through social contact.
2
Although stated in Graham and the instant cases that aliens are 'like' citizens because they were subject to service in the Armed Services, none of the opinions considered in fact that Congress provided that aliens who in fact served honorably could expeditiously become citizens. 8 U.S.C. § 1440. The Court's reliance on the fact that some male aliens had to register for the draft and serve if called to suggest that aliens and citizens are 'the same' neglects to consider this statute: aliens who served honorably were 'like' citizens in that they demonstrated, like citizens, a commitment to our society that Congress believed warranted, other considerations aside, their immediate, formal acceptance into our society.
| 12
|
413 U.S. 734
93 S.Ct. 2868
37 L.Ed.2d 923
Richard W. HUNT, Appellant,v.Robert E. McNAIR, Governor of South Carolina, et al.
No. 71—1523.
Argued Feb. 21, 1973.
Decided June 25, 1973.
Syllabus
In this action for injunctive and declaratory relief appellant challenges the South Carolina Educational Facilities Authority Act as violative of the Establishment Clause of the First Amendment insofar as it authorizes a proposed financing transaction involving the issuance of revenue bonds benefiting a Baptist-controlled college. The Act establishes an Educational Facilities Authority to assist (through the issuance of revenue bonds) higher educational institutions in constructing and financing projects, such as buildings, facilities, and site preparation, but not including any facility for sectarian instruction or religious worship. Neither the State nor the Authority is obligated, directly or indirectly, to pay the principal of or interest on the bonds; nor is the State's taxing power pledged or implicated. All expenses of the Authority also must be paid solely from the revenues of the projects. The Authority gave preliminary approval to an application submitted by the college, only 60% of whose students are Baptists. As subsequently modified, the application requests the issuance of revenue bonds to be used for refinancing capital improvements and completing the dining hall. Under the statutory scheme the project would be conveyed to the Authority, which would lease it back to the college, with reconveyance to the college on full payment of the bonds. The lease agreement would contain a clause obligating the institution to observe the Act's restrictions on sectarian use and enabling the Authority to conduct inspections. The provision for reconveyance would restrict the project to non-sectarian use. The trial court denied appellant relief, and the State Supreme Court affirmed. After this Court had vacated the judgment and remanded the case for reconsideration in the light of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, and other intervening decisions, the State Supreme Court adhered to its earlier decision. Held: The Act as construed by the South Carolina Supreme Court does not, under the guidelines of Lemon v. Kurtzman, supra, at 612—613, 91 S.Ct., at 2111, violate the Establishment Clause. Pp. 741—749.
(a) The purpose of the Act is secular, the benefits of the statute being available to all institutions of higher education in the State, whether or not they have a religious affiliation. Pp. 741 742.
(b) The statute does not have the primary effect of advancing or inhibiting religion. The college involved has no significant sectarian orientation and the project must be confined to a secular purpose, with the lease agreement, enforced by inspection provisions, forbidding religious use. Pp. 742—745.
(c) The statute does not foster an excessive entanglement with religion. The record here does not show that religion so permeates the college that inspection by the Authority to insure that the project is not used for religious purposes would necessarily lead to such entanglement. The Authority's statutory power to participate in certain management decisions also does not have that effect, in view of the narrow construction by the State Supreme Court, limiting such power to insuring that the college's fees suffice to meet bond payments. Absent default, the lease agreement would leave full responsibility with the college regarding fees and general operations. Pp. 745—749.
258 S.C. 97, 187 S.E.2d 645, affirmed.
Robert McCormick Figg, Jr., Columbia, S.C., for appellant.
Huger Sinkler, Charleston, S.C., for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
Appellant, a South Carolina taxpayer, brought this action to challenge the South Carolina Educational Facilities Authority Act (the Act), S.C.Code Ann. § 22— 41 et seq. (Supp.1971), as violative of the Establishment Clause of the First Amendment insofar as it authorizes a proposed financing transaction involving the issuance of revenue bonds for the benefit of the Baptist College at Charleston (the College).1 The trial court's denial of relief was affirmed by the Supreme Court of South Carolina. 255 S.C. 71, 177 S.E.2d 362 (1970). This Court vacated the judgment and remanded the case for reconsideration in light of the intervening decisions in Lemon v. Kurtzman, Earley v. DiCenso, and Robinson v. DiCenso, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); and Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), 403 U.S. 945, 91 S.Ct. 2276, 29 L.Ed.2d 854 (1971). On remand, the Supreme Court of South Carolina adhered to its earlier position. 258 S.C. 97, 187 S.E.2d 645 (1972). We affirm.
2
* We begin by setting out the general structure of the Act. The Act established an Educational Facilities Authority 'the Authority), the purpose of which is 'to assist institutions for higher education in the construction, financing and refinancing of projects . . .,' S.C.Code Ann. § 22—41.4 (Supp.1971), primarily through the issuance of revenue bonds. Under the terms of the Act, a project may encompass buildings, facilities, site preparation, and related items, but may not include
3
'any facility used or to be used for sectarian instruction or as a place of religious worship nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.' S.C.Code Ann. § 22—41.2(b) (Supp.1971).
4
Correspondingly, the Authority is accorded certain powers over the project, including the powers to determine the fees to be charged for the use of the project and to establish regulations for its use. See infra, at 747—749.
5
While revenue bonds to be used in connection with a project are issued by the Authority, the Act is quite explicit that the bonds shall not be obligations of the State, directly or indirectly:
6
'Revenue bonds issued under the provisions of this chapter shall not be deemed to constitute a debt or liability of the State or of any political subdivision thereof or a pledge of the faith and credit of the State or of any such political subdivision, but shall be payable solely from the funds herein provided therefor from revenues. All such revenue bonds shall contain on the face thereof a statement to the effect that neither the State of South Carolina nor the Authority shall be obligated to pay the same or the interest thereon except from revenues of the project or the portion thereof for which they are issued and that neither the faith and credit nor the taxing power of the State of South Carolina or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds. The issuance of revenue bonds under the provisions of this chapter shall not directly or indirectly or contingently obligate the State or any political subdivision thereof to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment.' S.C.Code Ann. § 22—41.10 (Supp.1971).
7
Moreover, since all of the expenses of the Authority must be paid from the revenues of the various projects in which it participates, S.C.Code Ann. § 22—41.5 (Supp.1971), none of the general revenues of South Carolina is used to support a project.
8
On January 6, 1970, the College submitted to the Authority for preliminary approval an application for the issuance of revenue bonds. Under the proposal, the Authority would issue the bonds and make the proceeds available to the College for use in connection with a portion of its campus to be designated a project (the Project) within the meaning of the Act. In return, the College would convey the Project, without cost, to the Authority, which would then lease the property so conveyed back to the College. After payment in full of the bonds, the Project would be reconveyed to the College. The Authority granted preliminary approval on January 16, 1970, 255 S.C., at 76, 177 S.E.2d, at 365.
9
In its present form, the application requests the issuance of revenue bonds totaling $1,250,000, of which $1,050,000 would be applied to refund short-term financing of capital improvements and $200,000 would be applied to the completion of dining hall facilities.2 The advantage of financing educational institutions through a state-created authority derives from relevant provisions of federal and South Carolina state income tax laws which provide in effect that the interest on such bonds is not subject to income taxation.3 The income-tax-exempt status of the interest enables the Authority, as an instrumentality of the State, to market the bonds at a significantly lower rate of interest than the educational institution would be forced to pay if it borrowed the money by conventional private financing.
10
Because the College's application to the Authority was a preliminary one, the details of the financing arrangement have not yet been fully worked out. But Rules and Regulations adopted by the Authority govern certain of its aspects. See Jurisdictional Statement, Appendix C, pp. 47—51. Every lease agreement between the Authority and an institution must contain a clause
11
'obligating the Institution that neither the leased land, nor the facility located thereon, shall be used for sectarian instruction or as a place of religious worship, or in connection with any part of the program of a school or department of divinity of any religious denomination.' 258 S.C., at 101, 187 S.E.2d, at 647.
12
To insure that this covenant is honored, each lease agreement must allow the Authority to conduct inspections, and any reconveyance to the College must contain a restriction against use for sectarian purposes.4 The Rules further provide that simultaneously with the execution of the lease agreement, the Authority and the trustee bank would enter into a Trust Indenture which would create, for the benefit of the bondholders, a foreclosable mortgage lien on the Project property including a mortgage on the 'right, title and interest of the Authority in and to the Lease Agreement.' Jurisdictional Statement, Appendix C, p. 50.
13
Our consideration of appellant's Establishment Clause claim extends only to the proposal as approved preliminarily with such additions as are contemplated by the Act, the Rules, and the decisions of the courts below.
II
14
As we reaffirm today in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, the principles which govern our consideration of challenges to statutes as violative of the Establishment Clause are three:
15
'First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster 'an excessive government entanglement with religion." Lemon v. Kurtzman, 403 U.S., at 612—613, 91 S.Ct., at 2111.
16
With full recognition that these are no more than helpful signposts, we consider the present statute and the proposed transaction in terms of the three 'tests': purpose, effect, and entanglement.
A.
17
The purpose of the statute is manifestly a secular one. The benefits of the Act are available to all institutions of higher education in South Carolina, whether or not having a religious affiliation. While a legislature's declaration of purpose may not always be a fair guide to its true intent, appellant makes no suggestion that the introductory paragraph of the Act represents anything other than a good-faith statement of purpose:
18
'It is hereby declared that for the benefit of the people of the State, the increase of their commerce, welfare and prosperity and the improvement of their health and living conditions it is essential that this and future generations of youth be given the fullest opportunity to learn and to develop their intellectual and mental capacities; that it is essential that institutions for higher education within the State be provided with appropriate additional means to assist such youth in achieving the required levels of learning and development of their intellectual and mental capacities; and that it is the purpose of this chapter to provide a measure of assistance and an alternative method to enable institutions for higher education in the State to provide the facilities and structures which are sorely needed to accomplish the purposes of this chapter, all to the public benefit and good, to the extent and manner provided herein.' S.C.Code Ann. § 22—41 (Supp.1971).
19
The College and other private institutions of higher education provide these benefits to the State.5 As of the academic year 1969—1970, there were 1,548 students enrolled in the College, in addition to approximately 600 night students. Of these students, 95% are residents of South Carolina who are thereby receiving a college education without financial support from the State of South Carolina.
B
20
To identify 'primary effect,' we narrow our focus from the statute as a whole to the only transaction presently before us. Whatever may be its initial appeal, the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected. E.g., Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899); Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). Stated another way, the Court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.
21
Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. In Tilton v. Richardson, supra, the Court refused to strike down a direct federal grant to four colleges and universities in Connecticut. Mr. Chief Justice Burger, for the plurality, concluded that despite some institutional rhetoric, none of the four colleges was pervasively sectarian, but held open that possibility for future cases:
22
'Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess these characteristics.' Id., at 682, 91 S.Ct., at 2097.
23
Appellant has introduced no evidence in the present case placing the College in such a category. It is true that the members of the College Board of Trustees are elected by the South Carolina Baptist Convention, that the approval of the Convention is required for certain financial transactions, and that the charter of the College may be amended only by the Convention. But it was likewise true of the institutions involved in Tilton that they were 'governed by Catholic religious organizations.' Id., at 686, 91 S.Ct., at 2099. What little there is in the record concerning the College establishes that there are no religious qualifications for faculty membership or student admission, and that only 60% of the College student body is Baptist, a percentage roughly equivalent to the percentage of Baptists in that area of South Carolina. 255 S.C., at 85, 177 S.E.2d, at 369. On the record in this case there is no basis to conclude that the College's operations are oriented significantly towards sectarian rather than secular education.
24
Nor can we conclude that the proposed transaction will place the Authority in the position of providing aid to the religious as opposed to the secular activities of the College. The scope of the Authority's power to assist institutions of higher education extends only to 'projects,' and the Act specifically states that a project 'shall not include' any buildings or facilities used for religious purposes. In the absence of evidence to the contrary, we must assume that all of the proposed financing and refinancing relates to buildings and facilities within a properly delimited project. It is not at all clear from the record that the portion of the campus to be conveyed by the College to the Authority and leased back is the same as that being financed, but in any event it too must be part of the Project and subject to the same prohibition against use for religious purposes. In addition, as we have indicated, every lease agreement must contain a clause forbidding religious use and another allowing inspections to enforce the agreement.6 For these reasons, we are satisfied that implementation of the proposal will not have the primary effect of advancing or inhibiting religion.7
C
25
The final question posed by this case is whether under the arrangement there would be an unconstitutional degree of entanglement between the State and the College. Appellant argues that the Authority would become involved in the operation of the College both by inspecting the project to insure that it is not being used for religious purposes and by participating in the management decisions of the College.
26
The Court's opinion in Lemon and the plurality opinion in Tilton are grounded on the proposition that the degree of entanglement arising from inspection of facilities as to use varies in large measure with the extent to which religion permeates the institution. In finding excessive entanglement, the Court in Lemon relied on the 'substantial religious character of these church-related' elementary schools. 403 U.S., at 616, 91 S.Ct., at 2113. Mr. Chief Justice Burger's opinion for the plurality in Tilton placed considerable emphasis on the fact that the federal aid there approved would be spent in a college setting:
27
'Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education.' 403 U.S., at 687, 91 S.Ct., at 2100.
28
Although Mr. Justice White saw no such clear distinction, he concurred in the judgment, stating:
29
'It is enough for me that . . . the Federal Government (is) financing a separable secular function of overriding importance in order to sustain the legislation here challenged.' 403 U.S., at 664, 91 S.Ct., at 2136.
30
A majority of the Court in Tilton, then, concluded that on the facts of that case inspection as to use did not threaten excessive entanglement. As we have indicated above, there is no evidence here to demonstrate that the College is any more an instrument of religious indoctrination than were the colleges and universities involved in Tilton.8
31
A closer issue under our precedents is presented by the contention that the Authority could become deeply involved in the day-to-day financial and policy decisions of the College. The Authority is empowered by the Act:
32
'(g) (g)enerally, to fix and revise from time to time and charge and collect rates, rents, fees and charges for the use of and for the services furnished or to be furnished by a project or any portion thereof and to contract with any person, partnership, association or corporation or other body public or private in respect thereof;
33
'(h) (t)o establish rules and regulations for the use of a project or any portion thereof and to designate a participating institution for higher education as its agent to establish rules and regulations for the use of a project undertaken for such participating institution for higher education. . . .' S.C.Code Ann. § 22—41.4 (Supp.1971).
34
These powers are sweeping ones, and were there a realistic likelihood that they would be exercised in their full detail, the entanglement problems with the proposed transaction would not be insignificant.
35
As the South Carolina Supreme Court pointed out, 258 S.C., at 107, 187 S.E.2d, at 651, the Act was patterned closely after the South Carolina Industrial Revenue Bond Act, and perhaps for this reason appears to confer unnecessarily broad power and responsibility on the Authority. The opinion of that court, however, reflects a narrow interpretation of the practical operation of these powers:
36
'Counsel for plaintiff argues that the broad language of the Act causes the State, of necessity, to become excessively involved in the operation, management and administration of the College. We do not so construe the Act. . . . (T)he basic function of the Authority is to see . . . that fees are charged sufficient to meet the bond payments.' Id., at 108, 187 S.E.2d, at 651.
37
As we read the College's proposal, the Lease Agreement between the Authority and the College will place on the College the responsibility for making the detailed decisions regarding the government of the campus and the fees to be charged for particular services. Specifically, the proposal states that the Lease Agreement
38
'will unconditionally obligate the College (a) to pay sufficient rentals to meet the principal and interest requirements as they become due on such bonds, (and) (b) to impose an adequate schedule of charges and fees in order to provide adequate revenues with which to operate and maintain the said facilities and to make the rental payments . . ..' App. 18.
39
In short, under the proposed Lease Agreement, neither the Authority nor a trustee bank would be justified in taking action unless the College fails to make the prescribed rental payments or otherwise defaults in its obligations. Only if the College refused to meet rental payments or was unable to do so would the Authority or the trustee be obligated to take further action. In that event, the Authority or trustee might either foreclose on the mortgage or take a hand in the setting of rules, charges, and fees. It may be argued that only the former would be consistent with the Establishment Clause, but we do not now have that situation before us.
III
40
This case comes to us as an action for injunctive and declaratory relief to test the constitutionality of the Act as applied to a proposed—rather than an actual—issuance of revenue bonds. The specific provisions of the Act under which the bonds will be issued, the Rules and Regulations of the Authority, and the College's proposal—all as interpreted by the South Carolina Supreme Court—confine the scope of the assistance to the secular aspects of this liberal arts college and do not foreshadow excessive entanglement between the State and religion. Accordingly, we affirm the holding of the court below that the Act is constitutional as interpreted and applied in this case.
41
Affirmed.
42
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
43
The question presented in this case is whether South Carolina's assistance to the Baptist College at Charleston under the South Carolina Educational Facilities Authority Act constitutes constitutionally impermissible aid by the State for this sectarian institution.1 The test to which I adhere for determining such questions is whether the arrangement between the State and the Baptist College is foreclosed under the Establishment Clause of the First Amendment as being among
44
'those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice.' Abington School District v. Schempp, 374 U.S. 203, 295, 83 S.Ct. 1560, 1609—1610, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring); Walz v. Tax Comm'n, 397 U.S. 664, 680—681, 90 S.Ct. 1409, 1417, 25 L.Ed.2d 697 (1970) (Brennan, J., concurring); Lemon v. Kurtzman, 403 U.S. 602, 643, 91 S.Ct. 2105, 2126, 29 L.Ed.2d 745 (1971) (Lemon I) (separate opinion of Brennan, J.).
45
Because under that test it is clear to me that the State's proposed scheme of assistance to the Baptist College is violative of the Establishment Clause, I dissent.
46
The act authorizes a financing arrangement between the Authority2 and the Baptist College at Charleston, a South Carolina educational corporation operated by the South Carolina Baptist Convention. Under that arrangement, the College would convey a substantial portion of its campus to the Authority, and the Authority would lease back the property to the College at an agreed rental. The Authority would then issue revenue bonds of the State of South Carolina in the amount of $3,500,000, which bonds would be payable, principal and interest, from the rents paid by the College to the Authority under the lease. The proceeds of the sale of the bonds would be used to pay off outstanding indebtedness of the College3 and to construct additional buildings and facilities for use in its higher education operations. Upon payment in full of the principal and interest on the bonds, the arrangement requires that the Authority reconvey title to the campus properties to the College free and clear of all liens and encumbrances. The arrangement does not, however, amount merely to a mortgage on the campus property. The Authority is also empowered, inter alia, to determine the location and character of any project financed under the act; to construct, maintain, manage, operate, lease as lessor or lessee, and regulate the same; to enter into contracts for the management and operation of such project; to establish rules and regulations for the use of the project or any portion thereof; and to fix and revise from time to time rates, rents, fees, and charges for the use of a project and for the services furnished or to be furnished by a project or any portion thereof. In other words, the College turns over to the State Authority control of substantial parts of the fiscal operation of the school—its very life's blood.
47
It is true that the Act expressly provides that State financing will not be provided for
48
'any facility used or to be used for sectarian instruction or as a place of religious worship nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.' S.C.Code Ann. § 22—41.2(b) (Supp.1971).
49
And it is also true that the Authority, pursuant to granted rule-making power, has adopted a rule requiring that each lease agreement contain a covenant
50
'obligating the Institution that neither the leased land, nor any facility located thereon, shall be used for sectarian instruction or as a place of religious worship, or in connection with any part of the program of a school or department of divinity of any religious denomination.' 258 S.E., at 101, 187 S.E.2d, at 647.
51
But policing by the Authority to insure compliance with these restrictions is established by a provision required to be included in the lease agreement allowing the Authority to conduct on-site inspections of the facilities financed under the act.
52
Thus, it is crystal clear, I think, that this scheme involves the State in a degree of policing of the affairs of the College far exceeding that called for by the statutes struck down in Lemon I, supra. See also Johnson v. Sanders, 319 F.Supp. 421 (Conn.1970), aff'd, 403 U.S. 955, 91 S.Ct. 2292, 29 L.Ed.2d 865 (1971). Indeed, under this scheme the policing by the State can become so extensive that the State may well end up in complete control of the operation of the College, at least for the life of the bonds. The College's freedom to engage in religious activities and to offer religious instruction is necessarily circumscribed by this pervasive state involvement forced upon the College if it is not to lose its benefits under the Act. For it seems inescapable that the content of courses taught in facilities financed under the agreement must be closely monitored by the State Authority in discharge of its duty to ensure that the facilities are not being used for sectarian instruction. The Authority must also involve itself deeply in the fiscal affairs of the College, even to the point of fixing tuition rates, as part of its duty to assure sufficient revenues to meet bond and interest obligations. And should the College find itself unable to meet these obligations, its continued existence as a viable sectarian institution is almost completely in the hands of the State Authority. Thus this agreement, with its consequent state surveillance and ongoing administrative relationships, inescapably entails mutually damaging Church-State involvements. Abington School District v. Schempp, 374 U.S., at 295, 83 S.Ct., at 1609 (Brennan, J., concurring); Lemon I, 403 U.S., at 649, 91 S.Ct., at 2129 (separate opinion of Brennan, J.).
53
In support of its contrary argument, the Court adopts much of the reasoning of the plurality opinion in Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). I disagreed with that reasoning in Tilton because, as in this case, that reasoning utterly failed to explain how programs of surveillance and inspection of the kind common to both cases differ from the Pennsylvania and Rhode Island programs invalidated in Lemon I. What I said in Tilton is equally applicable to the present case:
54
'I do not see any significant difference in . . . telling the sectarian university not to teach any nonsecular subjects in a certain building, and Rhode Island's telling the Catholic school teacher (in Lemon I) not to teach religion. The vice is the creation through subsidy of a relationship in which the government polices the teaching practices of a religious school or university.' 403 U.S., at 660, 91 S.Ct., at 2134 (separate opinion of Brennan, J.).
55
In any event, Tilton is clearly not controlling here. The plurality opinion in Tilton was expressly based on the premise, erroneous in my view, that the Federal Higher Education Facilities Act contained no significant intrusions into the everyday affairs of sectarian educational institutions. Thus, it was said in the plurality opinion:
56
'(U)nlike the direct and continuing payments under the Pennsylvania program (in Lemon I), and all the incidents of regulation and surveillance, the Government aid here is a one-time, single-purpose construction grant. There are no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution's expenditures on secular as distinguished from religious activities.' 403 U.S., at 688, 91 S.Ct., at 2100.
57
But under the South Carolina scheme 'continuing financial relationships or dependencies,' 'annual audits,' 'government analysis,' and 'regulation and surveillance' are the core features of the arrangement. In short, the South Carolina statutory scheme as applied to this sectarian institution presents the very sort of 'intimate continuing relationship or dependency between government and religiously affiliated institutions' that in the plurality's view was lacking in Tilton, Ibid.
58
Nor is the South Carolina arrangement between the State and this College any less offensive to the Constitution because it involves, as the Court asserts, no direct financial support to the College by the State. The Establishment Clause forbids for more than payment of public funds directly to support sectarian institutions. It forbids any official involvement with religion, whatever its form, which tends to foster or discourage religious worship or belief. The cases are many in which we have struck down on establishment grounds state laws that provided, not direct financial support to religious institutions, but various other forms of assistance. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948) ('release time' program); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (prayer reading in public schools); Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Bible reading in public schools). Moreover, any suggestion that the constitutionality of a statutory program to aid sectarian institutions is dependent on whether that aid can be characterized as direct or indirect is flatly refuted by the Court's decisions today in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, and Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939. In those cases, we went behind the mere assertion that tuition reimbursement and tax exemption programs provided no direct aid to sectarian schools and concluded that the 'substantive impact' of such programs was essentially the same as a direct subsidy from the State.
59
The South Carolina arrangement has the identical constitutional infirmities. The State forthrightly aids the College by permitting the College to avail itself of the State's unique ability to borrow money at low interest rates, and the College, in turn, surrenders to the State a comprehensive and continuing surveillance of the educational, religious, and fiscal affairs of the College. The conclusion is compelled that this involves the State in the 'essentially religious activities of religious institutions' and 'employ(s) the organs of government for essentially religious purposes.' I therefore dissent and would reverse the judgment of the Supreme Court of South Carolina.
1
At various points during this litigation, appellant has made reference to the Free Exercise Clause of the First Amendment, but has made no argument specifically addressed to violations of that Clause except insofar as this Court's approach to cases involving the Religion Clauses represents an interaction of the two Clauses.
2
As originally submitted by the College and approved by the Authority, the proposal called for the issuance of 'not exceeding $3,500,000 of revenue bonds . . .' 255 S.C. 71, 75, 177 S.E.2d 362, 364. As indicated by a stipulation of counsel in this Court, the College subsequently secured a bank loan in the amount of $2,500,000 and now proposes the issuance of only $1,250,000 in revenue bonds under the Act, the proceeds to be used:
'(i) to repay in full the College's Current Fund for the balance (approximately $250,000) advanced to the College's Plant Fund as aforesaid; (ii) to refund outstanding short-term loans in the amount of $800,000 whose proceeds were to pay off indebtedness incurred for capital improvements, and (iii) to finance the completion of the dining hall facilities at a cost of approximately $200,000.' App. 49. (Emphasis in original.)
3
Gross income for federal income tax purposes does not include interest on 'the obligations of a State, a Territory, or a possession of the United States, or any political subdivision of any of the foregoing . . ..' 26 U.S.C. § 103(a) (1). For state income tax purposes, gross income does not include interest 'upon obligations of the United States or its possessions or of this State or any political subdivision thereof . . ..' S.C.Code Ann. § 65—253(4) (Supp.1971).
4
Rule 4 relating to the Lease Agreement provides in part that:
'If the Lease Agreement contains a provision permitting the Institution to repurchase the project upon payment of the bonds, then in such instance the Lease Agreement shall provide that the Deed of reconveyance from the Authority to the Institution shall be made subject to the condition that so long as the Institution, or any voluntary grantee of the Institution, shall own the leased premises, or any part thereof, that no facility thereon, financed in whole or in part with the proceeds of the bonds, shall be used for sectarian instruction or as a place of religious worship, or used in connection with any part of the program of a school or department of divinity of any religious denomination.' 258 S.C. 97, 101—102, 187 S.E.2d 645, 647—648.
The Rule goes on to allow the institution to remove this option in the case of involuntary sales:
'The condition may provide, at the option of the Institution, that if the leased premises shall become the subject of an involuntary judicial sale, as a result of any foreclosure of any mortgage, or sale pursuant to any order of any court, that the title to be vested in any purchaser at such judicial sale, other than the Institution, shall be in fee simple and shall be free of the condition applicable to the Institution or any voluntary grantee thereof.' 258 S.C., at 102, 187 S.E.2d, at 648. See n. 6, infra.
5
In Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), this Court commented on the importance of the role of private education in this country:
'Underlying these cases, and underlying also the legislative judgments that have preceded the court decisions, has been a recognition that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience.' Id., at 247, 88 S.Ct., at 1928.
6
Appellant also takes issue with the Authority's rule allowing a purchaser at an involuntary sale to take title free of restrictions as to religious use. See n. 4, supra. Appellant's reliance on Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), in this respect is misplaced. There, the Court struck down a provision under which the church-related colleges would have unrestricted use of a federally financed project after 20 years. In the present case, by contrast, the restriction against religious use is lifted, not as to the institution seeking the assistance of the Authority nor as to voluntary transferees, but only as to a purchaser at a judicial sale. Because some other religious institution bidding for the property at a judicial sale could purchase the property only by outbidding all other prospective purchasers, there is only a speculative possibility that the absence of a use limitation would ever afford aid to religion. Even in such an event, the acquiring religious institution presumably would have had to pay the then fair value of the property.
7
The 'state aid' involved in this case is of a very special sort. We have here no expenditure of public funds, either by grant or loan, no reimbursement by a State for expenditures made by a parochial school or college, and no extending or committing of a State's credit. Rather, the only state aid consists, not of financial assistance directly or indirectly which would implicate public funds or credit, but the creation of an instrumentality (the Authority) through which educational institutions may borrow funds on the basis of their own credit and the security of their own property upon more favorable interest terms than otherwise would be available. The Supreme Court of New Jersey characterized the assistance rendered an educational institution under an act generally similar to the South Carolina Act as merely being a 'governmental service.' Clayton v. Kervick, 56 N.J. 523, 530—531, 267 A.2d 503, 506—507 (1970). The South Carolina Supreme Court, in the opinion below, described the role of the State as that of a 'mere conduit.' 258 S.Ct., at 107, 187 S.E.2d, at 650. Because we conclude that the primary effect of the assistance afforded here is neither to advance nor to inhibit religion under Lemon and Tilton, we need not decide whether, as appellees argue, Brief for Appellees 14, the importance of the tax exemption in the South Carolina scheme brings the present case under Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), where this Court upheld a local property tax exemption which included religious institutions.
8
Although the record in this case is abbreviated and not free from ambiguity, the burden rests on appellant to show the extent to which the College is church related, cf. Board of Education v. Allen, 392 U.S., at 248, 88 S.Ct., at 1929, and he has failed to show more than a formalistic church relationship. As Tilton established, formal denominational control over a liberal arts college does not render all aid to the institution a violation of the Establishment Clause. So far as the record here is concerned, there is no showing that the College places any special emphasis on Baptist denominational or any other sectarian type of education. As noted above, both the faculty and the student body are open to persons of any (or no) religious affiliation.
1
No one denies that the Baptist College at Charleston is a 'sectarian' institution—i.e., one 'in which the propagation and advancement of a particular religion are a function or purpose of the institution.' Lemon v. Kurtzman, 403 U.S. 602, 659, 91 S.Ct. 2105, 2134, 29 L.Ed.2d 745 (1971) (separate opinion of Brennan, J.).
2
The South Carolina Educational Facilities Authority is composed of the members of the State Budget and Control Board, who are the Governor, the State Treasurer, the State Comptroller General, the Chairman of the Finance Committee of the State Senate, and the Chairman of the Ways and Means Committee of the State House of Representatives. The Act states that 'all the functions and powers of the Authority are hereby granted to the State Budget and Control Board as an incident of its functions in connection with the public finances of the State.' S.C.Code Ann. § 22—41.3 (Supp.1971).
3
This outstanding indebtedness pertains to certain unspecified 'capital improvements.' App. 49. Thus, it may be that the indebtedness was incurred for improvements to facilities used for religious purposes.
| 23
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413 U.S. 756
93 S.Ct. 2955
37 L.Ed.2d 948
COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al., Appellants,v.Ewald B. NYQUIST, as Commissioner of Education of the State of New York, et al. Warren M. ANDERSON, as Majority Leader and President pro tem of the New York State Senate, Appellant, v. COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al. Ewald B. NYQUIST, as Commissioner of Education of the State of New York, et al., Appellants, v. COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al. Priscilla L. CHERRY et al., Appellants, v. COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al.
Nos. 72—694, 72—753, 72—791, and 72—929.
Argued April 16, 1973.
Decided June 25, 1973.
Syllabus
Amendments to New York's Education and Tax Laws established three financial aid programs for nonpublic elementary and secondary schools. The first section provides for direct money grants to 'qualifying' nonpublic schools to be used for 'maintenance and repair' of facilities and equipment to ensure the students' 'health, welfare and safety.' A 'qualifying' school is a nonpublic, nonprofit elementary or secondary school serving a high concentration of pupils from low-income families. The annual grant is $30 per pupil, or $40 if the facilities are more than 25 years old, which may not exceed 50% of the average per-pupil cost for equivalent services in the public schools. Legislative findings concluded that the State 'has a primary responsibility to ensure the health, welfare and safety of children attending . . . nonpublic schools'; that the 'fiscal crisis in nonpublic education . . . has caused a diminution of proper maintenance and repair programs, threatening the health, welfare and safety of nonpublic school children' in low-income urban areas; and that 'a healthy and safe school environment' contributes 'to the stability of urban neighborhoods.' Section 2 establishes a tuition reimbursement plan for parents of children attending nonpublic elementary or secondary schools. To qualify, a parent's annual taxable income must be less than $5,000. The amount of reimbursement is $50 per grade school child and $100 per high school student so long as those amounts do not exceed 50% of actual tuition paid. The legislature found that the right to select among alternative educational systems should be available in a pluralistic society, and that any sharp decline in nonpublic school pupils would massively increase public school enrollment and costs, seriously jeopardizing quality education for all children. Reiterating a declaration contained in the first section, the findings concluded that 'such assistance is clearly secular, neutral and nonideological.' The third program, contained in §§ 3, 4, and 5 of the challenged law, is designed to give tax relief to parents failing to qualify for tuition reimbursement. Each eligible taxpayer-parent is entitled to deduct a stipulated sum from his adjusted gross income for each child attending a nonpublic school. The amount of the deduction is unrelated to the amount of tuition actually paid and decreases as the amount of taxable income increases. These sections are also prefaced by a series of legislative findings similar to those accompanying the previous sections. Almost 20% of the State's students, some 700,000 to 800,000, attend nonpublic schools, approximately 85% of which are church affiliated. While practically all the schools entitled to receive maintenance and repair grants 'are related to the Roman Catholic Church and teach Catholic religious doctrine to some degree,' institutions qualifying under the remainder of the statute include a substantial number of other church-affiliated schools. The District Court held that § 1, the maintenance and repair grants, and § 2, the tuition reimbursement grants, were invalid, but that the income tax provisions of §§ 3, 4, and 5 did not violate the Establishment Clause Held:
1. The propriety of a legislature's purpose may not immunize from further scrutiny a law that either has a primary effect that advances religion or fosters excessive church-state entanglements. Pp. 772—774.
2. The maintenance and repair provisions of the New York statute violate the Establishment Clause because their inevitable effect is to subsidize and advance the religious mission of sectarian schools. Those provisions do not properly guarantee the secularity of state aid by limiting the percentage of assistance to 50% of comparable aid to public schools. Such statistical assurances fail to provide an adequate guarantee that aid will not be utilized to advance the religious activities of sectarian schools. Pp. 774—780.
3. The tuition reimbursement grants, if given directly to sectarian schools, would similarly violate the Establishment Clause, and the fact that they are delivered to the parents rather than the schools does not compel a contrary result, as the effect of the aid is unmistakably to provide financial support for nonpublic, sectarian institutions. Pp. 780—789.
(a) The fact that the grant is given as reimbursement for tuition already paid and that the recipient is not required to spend the amount received on education, does not alter the effect of the law. Pp. 785—787.
(b) The argument that the statute provides 'a statistical guarantee of neutrality' since the tuition reimbursement is only 15% of the educational costs in nonpublic schools and the compulsory education laws require more than 15% of school time to be devoted to secular courses, is merely another variant of the argument rejected as to maintenance and repair costs. Pp. 787—788.
(c) The State must maintain an attitude of 'neutrality,' neither 'advancing' nor 'inhibiting' religion, and it cannot, by designing a program to promote the free exercise of religion, erode the limitations of the Establishment Clause. Pp. 788—789.
4. The system of providing income tax benefits to parents of children attending New York's nonpublic schools also violates the Establishment Clause because, like the tuition reimbursement program it is not sufficiently restricted to assure that it will not have the impermissible effect of advancing the sectarian activities of religious schools. Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697, distinguished. Pp. 789—794.
5. Because the challenged sections have the impermissible effect of advancing religion, it is not necessary to consider whether such aid would yield an entanglement with religion. But it should be noted that, apart from any administrative entanglement of the State in particular religious programs, assistance of the sort involved here carries grave potential for entanglement in the broader sense of continuing and expanding political strife over aid to religion. Pp. 794—798.
350 F.Supp. 655, affirmed in part and reversed in part.
Leo Pfeffer, New York City, for the Committee for Public Education etc., and others.
Jean M. Coon, Albany, N.Y., for Nyquist and others.
Porter R. Chandler, New York City, for Priscilla L. Cherry and others.
John F. Haggerty, Brooklyn, N.Y., for Warren M. Anderson.
Mr. Justice POWELL delivered the opinion of the Court.
1
These cases raise a challenge under the Establishment Clause of the First Amendment to the constitutionality of a recently enacted New York law which provides financial assistance, in several ways, to nonpublic elementary and secondary schools in that State. The cases involve an intertwining of societal and constitutional issues of the greatest importance.
2
James Madison, in his Memorial and Remonstrance Against Religious Assessments,1 admonished that a 'prudent jealousy' for religious freedoms required that they never become 'entangled . . . in precedents.'2 His strongly held convictions, coupled with those of Thomas Jefferson and others among the Founders, are reflected in the first Clauses of the First Amendment of the Bill of Rights, which state that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'3 Yet, despite Madison's admonition and the 'sweep of the absolute prohibitions' of the Clauses,4 this Nation's history has not been one of entirely sanitized separation between Church and State. It has never been thought either possible or desirable to enforce a regime of total separation, and as a consequence cases arising under these Clauses have presented some of the most perplexing questions to come before this Court. Those cases have occasioned thorough and thoughtful scholarship by several of this Court's most respected former Justices, including Justices Black, Frankfurter, Harlan, Jackson, Rutledge, and Chief Justice Warren.
3
As a result of these decisions and opinions, it may no longer be said that the Religion Clauses are free of 'entangling' precedents. Neither, however, may it be said that Jefferson's metaphoric 'wall of separation' between Church and State has become 'as winding as the famous serpentine wall' he designed for the University of Virginia. McCollum v. Board of Education, 333 U.S. 203, 238, 68 S.Ct. 461, 475, 478, 92 L.Ed. 649 (1948) (Jackson J., concurring). Indeed, the controlling constitutional standards have become firmly rooted and the broad contours of our inquiry are now well defined. Our task, therefore, is to assess New York's several forms of aid in the light of principles already delineated.5
4
* In May 1972, the Governor of New York signed into law several amendments to the State's Education and Tax Laws. The first five sections of these amendments established three distinct financial aid programs for nonpublic elementary and secondary schools. Almost immediately after the signing of these measures a complaint was filed in the United States District Court for the Southern District of New York challenging each of the three forms of aid as violative of the Establishment Clause. The plaintiffs were an unincorporated association, known as the Committee for Public Education and Religious Liberty (PEARL), and several individuals who were residents and taxpayers in New York, some of whom had children attending public schools. Named as defendants were the State Commissioner of Education, the Comptroller, and the Commissioner of Taxation and Finance. Motions to intervene on behalf of defendants were granted to a group of parents with children enrolled in nonpublic schools and to the Majority Leader and President pro tem of the New York State Senate.6 By consent of the parties, a three-judge court was convened pursuant to 28 U.S.C. § 2281 and 2283, and the case was decided without an evidentiary hearing. Because the questions before the District Court were resolved on the basis of the pleadings, that court's decision turned on the constitutionality of each provision on its face.
5
The first section of the challenged enactment, entitled 'Health and Safety Grants for Nonpublic School Children,'7 provides for direct money grants from the State to 'qualifying' nonpublic schools to be used for the 'maintenance and repair of . . . school facilities and equipment to ensure the health, welfare and safety of enrolled pupils.'8 A 'qualifying' school is any nonpublic, nonprofit elementary or secondary school which 'has been designated during the (immediately preceding) year as serving a high concentration of pupils from low-income families for purposes of Title IV of the Federal Higher Education Act of nineteen hundred sixty-five (20 U.S.C.A. § 425).'9 Such schools are entitled to receive a grant of $30 per pupil per year, or $40 per pupil per year if the facilities are more than 25 years old. Each school is required to submit to the Commissioner of Education an audited statement of its expenditures for maintenance and repair during the preceding year, and its grant may not exceed the total of such expenses. The Commissioner is also required to ascertain the average per-pupil cost for equivalent maintenance and repair services in the public schools, and in no event may the grant to nonpublic qualifying schools exceed 50% of that figure.
6
'Maintenance and repair' is defined by the statute to include 'the provision of heat, light, water, ventilation and sanitary facilities; cleaning, janitorial and custodial services; snow removal; necessary upkeep and renovation of buildings, grounds and equipment; fire and accident protection; and such other items as the commissioner may deem necessary to ensure the health, welfare and safety of enrolled pupils.'10 This section is prefaced by a series of legislative findings which shed light on the State's purpose in enacting the law. These findings conclude that the State 'has a primary responsibility to ensure the health, welfare and safety of children attending . . . nonpublic schools'; that the 'fiscal crisis in nonpublic education . . . has caused a diminution of proper maintenance and repair programs, threatening the health, welfare and safety of nonpublic school children' in low-income urban areas; and that 'a healthy and safe school environment' contributes 'to the stability of urban neighborhoods.' For these reasons, the statute declares that 'the state has the right to make grants for maintenance and repair expenditures which are clearly secular, neutral and non-ideological in nature.'11
7
The remainder of the challenged legislation—ss 2 through 5—is a single package captioned the 'Elementary and Secondary Education Opportunity Program.' It is composed, essentially, of two parts, a tuition grant program and a tax benefit program. Section 2 establishes a limited plan providing tuition reimbursements to parents of children attending elementary or secondary non-public schools.12 To quality under this section a parent must have an annual taxable income of less than $5,000. The amount of reimbursement is limited to $50 for each grade school child and $100 for each high school child. Each parent is required, however, to submit to the Commissioner of Education a verified statement containing a receipted tuition bill, and the amount of state reimbursement may not exceed 50% of that figure. No restrictions are imposed on the use of the funds by the reimbursed parents.
8
This section, like § 1, is prefaced by a series of legislative findings designed to explain the impetus for the State's action. Expressing a dedication to the 'vitality of our pluralistic society,' the findings state that a 'healthy competitive and diverse alternative to public education is not only desirable but indeed vital to a state and nation that have continually reaffirmed the value of individual differences.'13 The findings further emphasize that the right to select among alternative educational systems 'is diminished or even denied to children of lower-income families, whose parents, of all groups, have the least options in determining where their children are to be educated.'14 Turning to the public schools, the findings state that any 'precipitous decline in the number of nonpublic school pupils would cause a massive increase in public school enrollment and costs,' an increase that would 'aggravate an already serious fiscal crises in public education' and would 'seriously jeopardize quality education for all children.'15 Based on these premises, the statute asserts the State's right to relieve the financial burden of parents who send their children to non-public schools through this tuition reimbursement program. Repeating the declaration contained in § 1, the findings conclude that '(s)uch assistance is clearly secular, neutral and nonideological.'16
9
The remainder of the 'Elementary and Secondary Education Opportunity Program,' contained in §§ 3, 4, and 5 of the challenged law,17 is designed to provide a form of tax relief to those who fail to qualify for tuition reimbursement. Under these sections parents may subtract from their adjusted gross income for state income tax purposes a designated amount for each dependent for whom they have paid at least $50 in nonpublic school tuition. If the taxpayer's adjusted gross income is less than $9,000 he may subtract $1,000 for each of as many as three dependents. As the taxpayer's income rises, the amount he may subtract diminishes. Thus, if a taxpayer has adjusted gross income of $15,000, he may subtract only $400 per dependent, and if his adjusted gross income is $25,000 or more, no deduction is allowed.18 The amount of the deduction is not dependent upon how much the taxpayer actually paid for nonpublic school tuition, and is given in addition to any deductions to which the taxpayer may be entitled for other religious or charitable contributions. As indicated in the memorandum from the Majority Leader and President pro tem of the Senate, submitted to each New York Legislator during consideration of the bill, the actual tax benefits under these provisions were carefully calculated in advance.19 Thus, comparable tax benefits pick up at approximately the point at which tuition reimbursement benefits leave off.
10
While the scheme of the enactment indicates that the purposes underlying the promulgation of the tuition reimbursement program should be regarded as pertinent as well to these tax law sections, § 3 does contain an additional series of legislative findings. Those findings may be summarized as follows: (i) contributions to religious, charitable and educational institutions are already deductible from gross income; (ii) nonpublic educational institutions are accorded tax exempt status; (iii) such institutions provide education for children attending them and also serve to relieve the public school systems of the burden of providing for their education; and, therefore, (iv) the 'legislature . . . finds and determines that similar modications . . . should also be provided to parents for tuition paid to nonpublic elementary and secondary schools on behalf of their dependents.'20
11
Although no record was developed in these cases, a number of pertinent generalizations may be made about the nonpublic schools which would benefit from these enactments. The District Court, relying on findings in a similar case recently decided by the same court,21 adopted a profile of these sectarian, nonpublic schools similar to the one suggested in the plaintiffs' complaint. Qualifying institutions, under all three segments of the enactment, could be ones that
12
'(a) impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doctrine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach.' 350 F.Supp. 655, 663.
13
Of course, the characteristics of individual schools may vary widely from that profile. Some 700,000 to 800,000 students constituting almost 20% of the State's entire elementary and secondary school population, attend over 2,000 nonpublic schools, approximately 85% of which are church affiliated. And while 'all or practically all' of the 280 schools22 entitled to receive 'maintenance and repair' grants 'are related to the Roman Catholic Church and teach Catholic religious doctrine to some degree,' id., at 661, institutions qualifying under the remainder of the statute include a substantial number of Jewish, Lutheran, Episcopal, Seventh Day Adventist, and other church-affiliated schools.23
14
Plaintiffs argued below that because of the substantially religious character of the intended beneficiaries, each of the State's three enactments offended the Establishment Clause. The District Court, in an opinion carefully canvassing this Court's recent precedents, held unanimously that § 1 (maintenance and repair grants) and § 2 (tuition reimbursement grants) were invalid. As to the income tax provisions of §§ 3, 4, and 5, however, a majority of the District Court, over the dissent of Circuit Judge Hays, held that the Establishment Clause had not been violated. Finding the provisions of the law severable, it enjoined permanently any further implementation of §§ 1 and 2 but declared the remainder of the law independently enforceable. The plaintiffs (hereinafter appellants) appealed directly to this Court, challenging the District Court's adverse decision as to the third segment of the statute.24 The defendant state officials (hereinafter appellees) have appealed so much of the court's decision as invalidates the first and second portions of the 1972 law,25 the intervenor Majority Leader and President pro tem of the Senate (hereinafter appellee or intervenor) has also appealed from those aspects of the lower court's opinion,26 and the intervening parents of nonpublic schoolchildren (hereinafter appellee or intervenor) have appealed only from the decision as to § 2.27 This Court noted probable jurisdiction over each appeal and ordered the cases consolidated for oral argument. 410 U.S. 907, 93 S.Ct. 962, 35 L.Ed.2d 269 (1973). Thus, the constitutionality of each of New York's recently promulgated aid provisions is squarely before us. We affirm the District Court insofar as it struck down §§ 1 and 2 and reverse its determination regarding §§ 3, 4, and 5.
II
15
The history of the Establishment Clause has been recounted frequently and need not be repeated here. See Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); id., at 28, 67 S.Ct., at (Rutledge, J., dissenting);28 McCollum v. Board of Education, 333 U.S., at 212, 68 S.Ct., at 466 (separate opinion of Frankfurter, J.); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). It is enough to note that it is now firmly established that a law may be one 'respecting an establishment of religion' even though its consequence is not to promote a 'state religion,' Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), and even though it does not aid one religion more than another but merely benefits all religions alike. Everson v. Board of Education, supra, 330 U.S., at 15, 67 S.Ct., at 511. It is equally well established, however, that not every law that confers an 'indirect,' 'remote,' or 'incidental' benefit upon religious institutions is, for that reason alone, constitutionally invalid. Everson, supra; McGowan v. Maryland, supra, 366 U.S., at 450, 81 S.Ct., at 1117; Walz v. Tax Comm'n, 397 U.S. 664, 671—672, 674—675, 90 S.Ct. 1409, 1412—1413, 1414 1415, 25 L.Ed.2d 697 (1970). What our cases require is careful examination of any law challenged on establishment grounds with a view to ascertaining whether it furthers any of the evils against which that Clause protects. Primary among those evils have been 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' Walz v. Tax Comm'n, supra, at 668, 90 S.Ct., at 1411; Lemon v. Kurtzman, supra, 403 U.S., at 612, 91 S.Ct., at 2111.
16
Most of the cases coming to this Court raising Establishment Clause questions have involved the relationship between religion and education. Among these religion-education precedents, two general categories of cases may be identified: those dealing with religious activities within the public schools,29 and those involving public aid in varying forms to sectarian educational institutions.30 While the New York legislation places this case in the latter category, its resolution requires consideration, not only of the several aid-to-sectarian-education cases, but also of our other education precedents and of several important noneducation cases. For the now well-defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establishment Clause cases. Taken together, these decisions dictate that to pass muster under the Establishment Clause the law in question first must reflect a clearly secular legislative purpose, e.g., Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), second, must have a primary effect that neither advances nor inhibits religion, e.g., McGowan v. Maryland, supra; School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and, third, must avoid excessive government entanglement with religion, e.g., Walz v. Tax Comm'n, supra. See Lemon v. Kurtzman, supra, 403 U.S., at 612—613, 91 S.Ct., at 2111; Tilton v. Richardson, 403 U.S. 672, 678, 91 S.Ct. 2091, 2095, 29 L.Ed.2d 790 (1971).31
17
In applying these criteria to the three distinct forms of aid involved in this case, we need touch only briefly on the requirement of a 'secular legislative purpose.' As the recitation of legislative purposes appended to New York's law indicates, each measure is adequately supported by legitimate, nonsectarian state interests. We do not question the propriety, and fully secular content, of New York's interest in preserving a healthy and safe educational environment for all of its schoolchildren. And we do not doubt—indeed, we fully recognize—the validity of the State's interest in promoting pluralism and diversity among its public and nonpublic schools. Nor do we hesitate to acknowledge the reality of its concern for an already overburdened public school system that might suffer in the event that a significant percentage of children presently attending nonpublic schools should abandon those schools in favor of the public schools.
18
But the propriety of a legislature's purposes may not immunize from further scrutiny a law which either has a primary effect that advances religion, or which fosters excessive entanglements between Church and State. Accordingly, we must weigh each of the three aid provisions challenged here against these criteria of effect and entanglement.
A.
19
The 'maintenance and repair' provisions of § 1 authorize direct payments to nonpublic schools, virtually all of which are Roman Catholic schools in low-income areas. The grants, totaling $30 or $40 per pupil depending on the age of the institution, are given largely without restriction on usage. So long as expenditures do not exceed 50% of comparable expenses in the public school system, it is possible for a sectarian elementary or secondary school to finance its entire 'maintenance and repair' budget from state tax-raised funds. No attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes, nor do we think it possible within the context of these religion-oriented institutions to impose such restrictions. Nothing in the statute, for instance, bars a qualifying school from paying out of state funds the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught, or the cost of heating and lighting those same facilities. Absent appropriate restrictions on expenditures for these and similar purposes, it simply cannot be denied that this section has a primary effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary and secondary schools.
20
The state officials nevertheless argue that these expenditures for 'maintenance and repair' are similar to other financial expenditures approved by this Court. Primarily they rely on Everson v. Board of Education, supra; Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); and Tilton v. Richardson, supra. In each of those cases it is true that the Court approved a form of financial assistance which conferred undeniable benefits upon private, sectarian schools. But a close examination of those cases illuminates their distinguishing characteristics. In Everson, the Court, in a five-to-four decision, approved a program of reimbursements to parents of public as well as parochial schoolchildren for bus fares paid in connection with transportation to and from school, a program which the Court characterized as approaching the 'verge' of impermissible state aid. 330 U.S., at 16, 67 S.Ct., at 511. In Allen, decided some 20 years later, the Court upheld a New York law authorizing the provision of secular textbooks for all children in grades seven through 12 attending public and nonpublic schools. Finally, in Tilton, the Court upheld federal grants of funds for the construction of facilities to be used for clearly secular purposes by public and nonpublic institutions of higher learning.
21
These cases simply recognize that sectarian schools perform secular, educational functions as well as religious functions, and that some forms of aid may be channeled to the secular without providing direct aid to the sectarian. But the channel is a narrow one, as the above cases illustrate. Of course, it is true in each case that the provision of such neutral, nonideological aid, assisting only the secular functions of sectarian schools, served indirectly and incidentally to promote the religious function by rendering it more likely that children would attend sectarian schools and by freeing the budgets of those schools for use in other nonsecular areas. But an indirect and incidental effect beneficial to religious institutions has never been thought a sufficient defect to warrant the invalidation of a state law. In McGowan v. Maryland, supra, Sunday Closing Laws were sustained even though one of their undeniable effects was to render it somewhat more likely that citizens would respect religious institutions and even attend religious services. Also, in Walz v. Tax Comm'n, supra, property tax exemptions for church property were held not violative of the Establishment Clause despite the fact that such exemptions relieved churches of a financial burden.
22
Tilton draws the line most clearly. While a bare majority was there persuaded, for the reasons stated in the plurality opinion and in Mr. Justice White's concurrence, that carefully limited construction grants to colleges and universities could be sustained, the Court was unanimous in its rejection of one clause of the federal statute in question. Under that clause, the Government was entitled to recover a portion of its grant to a sectarian institution in the event that the constructed facility was used to advance religion by, for instance, converting the building to a chapel or otherwise allowing it to be 'used to promote religious interests.' 403 U.S., at 683, 91 S.Ct., at 2098. But because the statute provided that the condition would expire at the end of 20 years, the facilities would thereafter be available for use by the institution for any sectarian purpose. In striking down this provision, the plurality opinion emphasized that '(l)imiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period.' Ibid. And in that event, 'the original federal grant will in part have the effect of advancing religion.' Ibid. See also id., at 692, 91 S.Ct., at 2102 (Douglas, J., dissenting in part), 659—661, 91 S.Ct., at 2134—2135 (separate opinion of Brennan, J.), 665 n. 1, 91 S.Ct., at 2137 (White, J., concurring in judgment). If tax-raised funds may not be granted to institutions of higher learning where the possibility exists that those funds will be used to construct a facility utilized for sectarian activities 20 years hence, a fortiori they may not be distributed to elementary and secondary sectarian schools32 for the maintenance and repair of facilities without any limitations on their use. If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair.33
23
It might be argued, however, that while the New York 'maintenance and repair' grants lack specifically articulated secular restrictions, the statute does provide a sort of statistical guarantee of separation by limiting grants to 50% of the amount expended for comparable services in the public schools. The legislature's supposition might have been that at least 50% of the ordinary public school maintenance and repair budget would be devoted to purely secular facility upkeep in sectarian schools. The shortest answer to this argument is that the statute itself allows, as a ceiling, grants satisfying the entire 'amount of expenditures for maintenance and repair of such school' providing only that it is neither more than $30 or $40 per pupil nor more than 50% of the comparable public school expenditures.34 Quite apart from the language of the statute, our cases make clear that a mere statistical judgment will not suffice as a guarantee that state funds will not be used to finance religious education. In Earley v. DiCenso, a companion case to Lemon v. Kurtzman, supra, the Court struck down a Rhode Island law authorizing salary supplements to teachers of secular subjects. The grants were not to exceed 15% of any teacher's annual salary. Although the law was invalidated on entanglement grounds, the Court made clear that the State could not have avoided violating the Establishment Clause by merely assuming that its teachers would succeed in segregating 'their religious beliefs from their secular educational responsibilities.' 403 U.S., at 619, 91 S.Ct., at 2114.
24
'The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion . . ..' Ibid.35 (Emphasis supplied.)
25
Nor could the State of Rhode Island have prevailed by simply relying on the assumption that, whatever a secular teacher's inabilities to refrain from mixing the religious with the secular, he would surely devote at least 15% of his efforts to purely secular education, thus exhausting the state grant. It takes little imagination to perceive the extent to which States might openly subsidize parochial schools under such a loose standard of scrutiny. See also Tilton v. Richardson, supra.36
26
What we have said demonstrates that New York's maintenance and repair provisions violate the Establishment Clause because their effect, inevitably, is to subsidize and advance the religious mission of sectarian schools. We have no occasion, therefore, to consider the further question whether those provisions as presently written would also fail to survive scrutiny under the administrative entanglement aspect of the three-part test because assuring the secular use of all funds requires too intrusive and continuing a relationship between Church and State, Lemon v. Kurtzman, supra.
B
27
New York's tuition reimbursement program also fails the 'effect' test, for much the same reasons that govern its maintenance and repair grants. The state program is designed to allow direct, unrestricted grants of $50 to $100 per child (but no more than 50% of tuition actually paid) as reimbursement to parents in low-income brackets who send their children to nonpublic schools, the bulk of which is concededly sectarian in orientation. To qualify, a parent must have earned less than $5,000 in taxable income and must present a receipted tuition bill from a nonpublic school.
28
There can be no question that these grants could not, consistently with the Establishment Clause, be given directly to sectarian schools, since they would suffer from the same deficiency that renders invalid the grants for maintenance and repair. In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid. As Mr. Justice Black put it quite simply in Everson:
29
'No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.' 330 U.S., at 16, 67 S.Ct., at 511.
30
The controlling question here, then, is whether the fact that the grants are delivered to parents rather than schools is of such significance as to compel a contrary result. The State and intervenor-appellees rely on Everson and Allen for their claim that grants to parents, unlike grants to institutions, respect the 'wall of separation' required by the Constitution.37 It is true that in those cases the Court upheld laws that provided benefits to children attending religious schools and to their parents: As noted above, in Everson parents were reimbursed for bus fares paid to send children to parochial schools, and in Allen textbooks were loaned directly to the children. But those decisions make clear that, far from providing a per se immunity from examination of the substance of the State's program, the fact that aid is disbursed to parents rather than to the schools is only one among many factors to be considered.
31
In Everson, the Court found the bus fare program analogous to the provision of services such as police and fire protection, sewage disposal, highways, and sidewalks for parochial schools. 330 U.S., at 17—18, 67 S.Ct., at 512—513. Such services, provided in common to all citizens, are 'so separate and so indisputably marked off from the religious function,' id., at 18, 67 S.Ct., at 513 that they may fairly be viewed as reflections of a neutral posture toward religious institutions. Allen is founded upon a similar principle. The Court there repeatedly emphasized that upon the record in that case there was no indication that textbooks would be provided for anything other than purely secular courses. 'Of course books are different from buses. Most bus rides have no inherent religious significance, while religious books are common. However, the language of (the law under consideration) does not authorize the loan of religious books, and the State claims no right to distribute religious literature. . . . Absent evidence, we cannot assume that school authorities . . . are unable to distinguish between secular and religious books or that they will not honestly discharge their duties under the law.' 392 U.S., at 244—245, 88 S.Ct., at 1927.38
32
The tuition grants here are subject to no such restrictions. There has been no endeavor 'to guarantee the separation between secular and religious educational functions and to ensure the State financial aid supports only the former.' Lemon v. Kurtzman, supra, 403 U.S., at 613, 91 S.Ct., at 2111. Indeed, it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid—to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools—are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.39
33
Mr. Justice Black, dissenting in Allen, warned that
34
'(i)t requires no prophet to foresee that on the argument used to support this law others could be uppheld providing for state or federal government funds to buy property on which to erect religious school buildings or to erect the buildings themselves, to pay the salaries of the religious school teachers, and finally to have the sectarian religious groups cease to rely on voluntary contributions of members of their sects while waiting for the Government to pick up all the bills for the religious schools.' 392 U.S., at 253, 88 S.Ct., at 1931.
35
His fears regarding religious buildings and religious teachers have not come to pass, Tilton v. Richardson, supra; Lemon v. Kurtzman, supra, and insofar as tuition grants constitute a means of 'pick(ing) up . . . the bills for the religious schools,' neither has his greatest fear materialized. But the ingenious plans for channeling state aid to sectarian schools that periodically reach this Court abundantly support the wisdom of Mr. Justice Black's prophecy.
36
Although we think it clear, for the reasons above stated, that New York's tuition grant program fares no better under the 'effect' test than its maintenance and repair program, in view of the novelty of the question we will address briefly the subsidiary arguments made by the state officials and intervenors in its defense.
37
First, it has been suggested that it is of controlling significance that New York's program calls for reimbursement for tuition already paid rather than for direct contributions which are merely routed through the parents to the schools, in advance of or in lieu of payment by the parents. The parent is not a mere conduit, we are told, but is absolutely free to spend the money he receives in any manner he wishes. There is no element of coercion attached to the reimbursement, and no assurance that the money will eventually end up in the hands of religious schools. The absence of any element of coercion, however, is irrelevant to questions arising under the Establishment Clause. In School District of Abington Township v. Schempp, supra, it was contended that Bible recitations in public schools did not violate the Establishment Clause because participation in such exercises was not coerced. The Court rejected that argument, noting that while proof of coercion might provide a basis for a claim under the Free Exercise Clause, it was not a necessary element of any claim under the Establishment Clause. 374 U.S., at 222—223, 83 S.Ct., at 1571—1573. Mr. Justice Brennan's concurring views reiterated the Court's conclusion:
38
'Thus the short, and to me sufficient, answer is that the availability of excusal or exemption simply has no relevance to the establishment question, if it is once found that these practices are essentially religious exercises designed at least in part to achieve religious aims . . ..' Id., at 288, 83 S.Ct., at 1606.
39
A similar inquiry governs here: if the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions.40 Whether the grant is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same. In sum, we agree with the conclusion of the District Court that '(w)hether he gets it during the current year, or as reimbursement for the past year, if of no constitutional importance.' 350 F.Supp., at 668.
40
Second, the Majority Leader and President pro tem of the State Senate argues that it is significant here that the tuition reimbursement grants pay only a portion of the tuition bill, and an even smaller portion of the religious school's total expenses. The New York statute limits reimbursement to 50% of any parent's actual outlay. Additionally, intervenor estimates that only 30% of the total cost of nonpublic education is covered by tuition payments, with the remaining coming from 'voluntary contribution, endowments and the like.'41 On the basis of these two statistics, appellees reason that the 'maximum tuition reimbursement by the State is thus only 15% of educational costs in the nonpublic schools.'42 And, 'since the compulsory education laws of the State, by necessity require significantly more than 15% of school time to be devoted to teaching secular courses,' the New York statute provides 'a statistical guarantee of neutrality.'43 It should readily be seen that this is simply another variant of the argument we have rejected as to maintenance and repair costs, supra, at 777—779, and it can fare no better here. Obviously, if accepted, this argument would provide the foundation for massive, direct subsidization of sectarian elementary and secondary schools.44 Our cases, however, have long since foreclosed the notion that mere statistical assurances will suffice to sail between the Scylla and Charybodis of 'effect' and 'entanglement.'
41
Finally, the State argues that its program of tuition grants should survive scrutiny because it is designed to promote the free exercise of religion. The State notes that only 'low-income parents' are aided by this law, and without state assistance their right to have their children educated in a religious environment 'is diminished or even denied.'45 It is true, of course, that this Court has long recognized and maintained the right to choose nonpublic over public education. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). It is also true that a state law interfering with a parent's right to have his child educated in a sectarian school would run afoul of the Free Exercise Clause. But this Court repeatedly has recognized that tension inevitably exists between the Free Exercise and the Establishment Clauses, e.g., Everson v. Board of Education, supra; Walz v. Tax Comm'n, supra, and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of 'neutrality,' neither 'advancing' nor 'inhibiting' religion.46 In its attempt to enhance the opportunities of the poor to choose between public and nonpublic education, the State has taken a step which can only be regarded as one 'advancing' religion. However great our sympathy, Everson v. Board of Education, 330 U.S., at 18, 67 S.Ct., at 513 (Jackson, J., dissenting), for the burdens experienced by those who must pay public school taxes at the same time that they support other schools because of the constraints of 'conscience and discipline,' ibid., and notwithstanding the 'high social importance' of the State's purposes, Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972), neither may justify an eroding of the limitations of the Establishment Clause now firmly emplanted.
C
42
Sections 3, 4, and 5 establish a system for providing income tax benefits to parents of children attending New York's nonpublic schools. In this Court, the parties have engaged in a considerable debate over what label best fits the New York law. Appellants insist that the law is, in effect, one establishing a system of tax 'credits.' The state and the intervenors reject that characterization and would label it, instead, a system of income tax 'modifications.' The Solicitor General, in an amicus curiae brief filed in this Court, has referred throughout to the New York law as one authorizing tax 'deductions.' The District Court majority found that the aid was 'in effect a tax credit,' 350 F.Supp. at 672 (emphasis in original). Because of the peculiar nature of the benefit allowed, it is difficult to adopt any single traditional label lifted from the law of income taxation. It is, at least in its form, a tax deduction since it is an amount subtracted from adjusted gross income, prior to computation of the tax due. Its effect, as the District Court concluded, is more like that of a tax credit since the deduction is not related to the amount actually spent for tuition and is apparently designed to yield a predetermined amount of tax 'forgiveness' in exchange for performing a specific act which the State desires to encourage—the usual attribute of a tax credit. We see no reason to select one label over another, as the constitutionality of this hybrid benefit does not turn in any event on the label we accord it. As Mr. Chief Justice Burger's opinion for the Court in Lemon v. Kurtzman, 403 U.S., at 614, 91 S.Ct., at 2112 notes, constitutional analysis is not a 'legalistic minuet in which precise rules and forms must govern.' Instead we must 'examine the form of the relationship for the light that it casts on the substance.'
43
These sections allow parents of children attending nonpublic elementary and secondary schools to subtract from adjusted gross income a specified amount if they do not receive a tuition reimbursement under § 2, and if they have an adjusted gross income of less than $25,000. The amount of the deduction is unrelated to the amount of money actually expended by any parent on tuition, but is calculated on the basis of a formula contained in the statute.47 The formula is apparently the product of a legislative attempt to assure that each family would receive a carefully estimated net benefit, and that the tax benefit would be comparable to, and compatible with, the tuition grant for lower income families. Thus, a parent who earns less than $5,000 is entitled to a tuition reimbursement of $50 if he has one child attending an elementary, nonpublic school, while a parent who earns more (but less than $9,000) is entitled to have a precisely equal amount taken off his tax bill.48 Additionally, a taxpayer's benefit under these sections is unrelated to, and not reduced by, any deductions to which he may be entitled for charitable contributions to religious institutions.49
44
In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition grant allowed under § 2. The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays' dissenting statement below that '(i)n both instances the money involved represents a charge made upon the state for the purpose of religious education.' 350 F.Supp., at 675.
45
Appellees defend the tax portion of New York's legislative package on two grounds. First, they contend that it is of controlling significance that the grants or credits are directed to the parents rather than to the schools. This is the same argument made in support of the tuition reimbursements and rests on the same reading of the same precedents of this Court, primarily Everson and Allen. Our treatment of this issue in Part II—B, supra, at 2969—2972, is applicable here and requires rejection of this claim.50 Second, appellees place their strongest reliance on Walz v. Tax Comm'n, supra, in which New York's property tax exemption for religious organizations was upheld. We think that Walz provides no support for appellees' position. Indeed, its rationale plainly compels the conclusion that New York's tax package violates the Establishment Clause.
46
Tax exemptions for church property enjoyed an apparently universal approval in this country both before and after the adoption of the First Amendment. The Court in Walz surveyed the history of tax exemptions and found that each of the 50 States has long provided for tax exemptions for places of worship, that Congress has exempted religious organizations from taxation for over three-quarters of a century, and that congressional enactments in 1802, 1813, and 1870 specifically exempted church property from taxation. In sum, the Court concluded that '(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally.' 397 U.S., at 676—677, 90 S.Ct., at 1415.51 We know of no historical precedent for New York's recently promulgated tax relief program. Indeed, it seems clear that tax benefits for parents whose children attend parochial schools are a recent innovation, occasioned by the growing financial plight of such nonpublic institutions and designed, albeit unsuccessfully, to tailor state aid in a manner not incompatible with the recent decisions of this Court. See Kosydar v. Wolman, 353 F.Supp. 744 (SD Ohio 1972), aff'd sub nom. Grit v. Wolman, 413 U.S. 901, 93 S.Ct. 3062, 37 L.Ed.2d 1021.
47
But historical acceptance without more would not alone have sufficed, as 'no one acquires a vested or protected right in violation of the Constitution by long use.' Walz, 397 U.S., at 678, 90 S.Ct., at 1416. It was the reason underlying that long history of tolerance of tax exemptions for religion that proved controlling. A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of 'neutrality' toward religion. Yet governments have not always pursued such a course, and oppression has taken many forms, one of which has been taxation of religion. Thus, if taxation was regarded as a form of 'hostility' toward religion, 'exemption constitute(d) a reasonable and balanced attempt to guard against those dangers.' Id., at 673, 90 S.Ct., at 1413. Special tax benefits, however, cannot be squared with the principle of neutrality established by the decisions of this Court. To the contrary, insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions.
48
Apart from its historical foundations, Walz is a product of the same dilemma and inherent tension found in most government-aid-to-religion controversies. To be sure, the exemption of church property from taxation conferred a benefit, albeit an indirect and incidental one. Yet that 'aid' was a product not of any purpose to support or to subsidize, but of a fiscal relationship designed to minimize involvement and entanglement between Church and State. 'The exemption,' the Court emphasized, 'tends to complement and reinforce the desired separation insulating each from the other.' Id., at 676, 90 S.Ct., at 1415. Furthermore, '(e)limination of the exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.' Id., at 674, 90 S.Ct., at 1414. The granting of the tax benefits under the New York statute, unlike the extension of an exemption, would tend to increase rather than limit the involvement between Church and State.
49
One further difference between tax exemption for church property and tax benefits for parents should be noted. The exemption challenged in Walz was not restricted to a class composed exclusively or even predominantly of religious institutions. Instead, the exemption covered all property devoted to religious, educational, or charitable purposes. As the parties here must concede, tax reductions authorized by this law flow primarily to the parents of children attending sectarian, nonpublic schools. Without intimating whether this factor alone might have controlling significance in another context in some future case, it should be apparent that in terms of the potential divisiveness of any legislative measure the narrowness of the benefited class would be an important factor.52
50
In conclusion, we find the Walz analogy unpersuasive, and in light of the practical similarity between New York's tax and tuition reimbursement programs, we hold that neither form of aid is sufficiently restricted to assure that it will not have the impermissible effect of advancing the sectarian activities of religious schools.
III
51
Because we have found that the challenged sections have the impermissible effect of advancing religion, we need not consider whether such aid would result in entanglement of the State with religion in the sense of '(a) comprehensive, discriminating, and continuing state surveillance.' Lemon v. Kurtzman, 403 U.S., at 619, 91 S.Ct., at 2114. But the importance of the competing societal interests implicated here prompts us to make the further observation that, apart from any specific entanglement of the State in particular religious programs, assistance of the sort here involved carries grave potential for entanglement in the broader sense of continuing political strife over aid to religion.
52
Few would question most of the legislative findings supporting this statute. We recognized in Board of Education v. Allen, 392 U.S., at 247, 88 S.Ct. at 1928, that 'private education has played and in playing a significant and valuable role in raising national levels of knowledge, competence, and experience,' and certainly private parochial schools have contributed importantly to this role. Moreover, the tailoring of the New York statute to channel the aid provided primarily to afford low-income families the option of determining where their children are to be educated is most appealing.53 There is no doubt that the private schools are confronted with increasingly grave fiscal problems, that resolving these problems by increasing tuition charges forces parents to turn to the public schools, and that this in turn—as the present legislation recognizes—exacerbates the problems of public education at the same time that it weakens support for the parochial schools.
53
These, in briefest summary, are the underlying reasons for the New York legislation and for similar legislation in other States. They are substantial reasons. Yet they must be weighed against the relevant provisions and purposes of the First Amendment, which safeguard the separation of Church from State and which have been regarded from the beginning as among the most cherished features of our constitutional system.
54
One factor of recurring significance in this weighing process is the potentially divisive political effect of an aid program. As Mr. Justice Black's opinion in Everson v. Board of Education, supra, emphasizes, competition among religious sects for political and religious supremacy has occasioned considerable civil strife, 'generated in large part' by competing efforts to gain or maintain the support of government. 330 U.S., at 8—9, 67 S.Ct., at 507. As Mr. Justice Harlan put it, '(w)hat is at stake as a matter of policy (in Establishment Clause cases) is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.' Walz v. Tax Comm'n, 397 U.S., at 694, 90 S.Ct., at 1424 (separate opinion).
55
The Court recently addressed this issue specifically and fully in Lemon v. Kurtzman. After describing the political activity and bitter differences likely to result from the state programs there involved, the Court said:
56
'The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow.' 403 U.S., at 623, 91 S.Ct., at 2116.54
57
The language of the Court applies with peculiar force to the New York statute now before us. Section 1 (grants for maintenance) and § 2 (tuition grants) will require continuing annual appropriations. Sections 3, 4, and 5 (income tax relief) will not necessarily require annual re-examination, but the pressure for frequent enlargement of the relief is predictable. All three of these programs start out at modest levels: the maintenance grant is not to exceed $40 per pupil per year in approved schools; the tuition grant provides parents not more than $50 a year for each child in the first eight grades and $100 for each child in the high school grades; and the tax benefit, though more difficult to compute, is equally modest. But we know from long experience with both Federal and State Governments that aid programs of any kind tend to become entrenched, to escalate in cost, and to generate their own aggressive constituencies. And the larger the class of recipients, the greater the pressure for accelerated increases.55 Moreover, the State itself, concededly anxious to avoid assuming the burden of educating children now in private and parochial schools, has a strong motivation for increasing this aid as public school costs rise and population increases.56 In this situation, where the underlying issue is the deeply emotional one of Church-State relationships, the potential for seriously divisive political consequences needs no elaboration. And while the prospect of such divisiveness may not alone warrant the invalidation of state laws that otherwise survive the careful scrutiny required by the decisions of this Court, it is certainly a 'warning signal' not to be ignored. 403 U.S., at 625, 91 S.Ct., at 2117.
58
Our examination of New York's aid provisions, in light of all relevant considerations, compels the judgment that each, as written, has a 'primary effect that advances religion' and offends the constitutional prohibition against laws 'respecting an establishment of religion.' We therefore affirm the three-judge court's holding as to §§ 1 and 2, and reverse as to §§ 3, 4, and 5.
59
It is so ordered.
60
Affirmed in part and reversed in part.
61
Mr. Chief Justice BURGER, joined in part by Mr. Justice WHITE, and joined by Mr. Justice REHNQUIST, concurring in part and dissenting in part.
62
I join in that part of the Court's opinion in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, which holds the New York 'maintenance and repair' provision1 unconstitutional under the Establishment Clause because it is a direct aid to religion. I disagree, however, with the Court's decisions in Nyquist and in Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939, to strike down the New York and Pennsylvania tuition grant programs and the New York tax relief provisions.2 I believe the Court's decisions on those statutory provisions ignore the teachings of Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and fail to observe what I thought the Court had held in Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). I therefore dissent as to those aspects of the two holdings.3
63
While there is no straight line running through our decisions interpreting the Establishment and Free Exercise Clauses of the First Amendment, our cases do, it seems to me, lay down one solid, basic principle: that the Establishment Clause does not forbid governments, state or federal, to enact a program of general welfare under which benefits are distributed to private individuals, even though many of those individuals may elect to use those benefits in ways that 'aid' religious instruction or worship. Thus, in Everson the Court held that a New Jersey township could reimburse all parents of school-age children for bus fares paid in transporting their children to school. Mr. Justice Black's opinion for the Court stated that the New Jersey 'legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.' 330 U.S., at 18, 67 S.Ct., at 513 (emphasis added).
64
Twenty-one years later, in Board of Education v. Allen, supra, the Court again upheld a state program that provided for direct aid to the parents of all schoolchildren including those in private schools. The statute there required 'local public school authorities to lend textbooks free of charge to all students in grades seven through 12; students attending private schools (were) included.' 392 U.S., at 238, 88 S.Ct., at 1924. Recognizing that Everson was the case 'most nearly in point,' the Allen Court interpreted Everson as holding that 'the Establishment Clause does not prevent a State from extending the benefits of state laws to all citizens without regard for their religious affiliation . . ..' Id., at 241—242, 88 S.Ct., at 1926. Applying that principle to the statute before it, the Allen Court stated:
65
'Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools.' Id., at 243—244, 88 S.Ct., at 1926 (emphasis added).
66
The Court's opinions in both Everson and Allen recognized that the statutory programs at issue there may well have facilitated the decision of many parents to send their children to religious schools. Everson v. Board of Education, supra, 330 U.S., at 17—18, 67 S.Ct., at 512—513; Board of Education v. Allen, supra, 392 U.S., at 242, 244, 88 S.Ct., at 1925, 1927. See Norwood v. Harrison, 413 U.S. 455, at 463 n. 6, 93 S.Ct. 2804, at 2810, 37 L.Ed.2d 723 (1973). Indeed, the Court in both cases specifically acknowledged that some children might not obtain religious instruction but for the benefits provided by the State. Notwithstanding, the Court held that such an indirect or incidental 'benefit' to the religious institutions that sponsored parochial schools was not a conclusive indicium of a 'law respecting an establishment of religion.'4
67
One other especially pertinent decision should be noted. In Quick Bear v. Leupp, 210 U.S. 50, 28 S.Ct. 690, 52 L.Ed. 954 (1908), the Court considered the question whether government aid to individuals who choose to use the benefits for sectarian purposes contravenes the Establishment Clause. There the Federal Government had set aside certain trust and treaty funds for the educational benefit of the members of the Sioux Indian Tribe. When some beneficiaries elected to attend religious schools, and the Government entered into payment contracts with the sectarian institutions, suit was brought to enjoin the disbursement of public money to those schools. Speaking of the constitutionality of such a program, the Court said:
68
'But we cannot concede the proposition that Indians cannot be allowed to use their own money to educate their children in the schools of their own choice because the government is necessarily undenominational, as it cannot make any law respecting an establishment of religion or prohibiting the free exercise thereof.' Id., at 81—82, 28 S.Ct., at 700.
69
The essence of all these decisions, I suggest, is that government aid to individuals generally stands on an entirely different footing from direct aid to religious institutions. I say 'generally' because it is obviously possible to conjure hypothetical statutes that constitute either a subterfuge for direct aid to religious institutions or a discriminatory enactment favoring religious over nonreligious activities. Thus, a State could not enact a statute providing for a $10 gratuity to everyone who attended religious services weekly. Such a law would plainly be governmental sponsorship of religious activities; no statutory preamble expressing purely secular legislative motives would be persuasive. But, at least where the state law is genuinely directed at enhancing a recognized freedom of individuals, even one involving both secular and religious consequences, such as the rights of parents to send their children to private schools, see Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 5771, 69 L.Ed. 1070 (1925), the Establishment Clause no longer has a prohibitive effect.5
70
This fundamental principle which I see running through our prior decisions in this difficult and sensitive field of law, and which I believe governs the present cases, is premised more on experience and history than on logic. It is admittedly difficult to articulate the reasons why a State should be permitted to reimburse parents of private-school children—partially at least—to take into account the State's enormous savings in not having to provide schools for those children, when a State is not allowed to pay the same benefit directly to sectarian schools on a per-pupil basis. In either case, the private individual makes the ultimate decision that may indirectly benefit church-sponsored schools; to that extent the state involvement with religion is substantially attenuated. The answer, I believe, lies in the experienced judgment of various members of this Court over the years that the balance between the policies of free exercise and establishment of religion tips in favor of the former when the legislation moves away from direct aid to religious institutions and takes on the character of general aid to individual families. This judgment reflects the caution with which we scrutinize any effort to give official support to religion and the tolerance with which we treat general welfare legislation. But, whatever its basis, that principle is established in our cases, from the early case of Quick Bear to the more recent holdings in Everson and Allen, and it ought to be followed here.
71
The tuition grant and tax relief programs now before us are, in my view, indistinguishable in principle, purpose, and effect from the statutes in Everson and Allen. In the instant cases as in Everson and Allen, the States have merely attempted to equalize the costs incurred by parents in obtaining an education for their children. The only discernible difference between the programs in Everson and Allen and these cases is in the method of the distribution of benefits: here the particular benefits of the Pennsylvania and New York statutes are given only to parents of private-school children, while in Everson and Allen the statutory benefits were made available to parents of both public- and private-school children. But to regard that difference as constitutionally meaningful is to exalt form over substance. It is beyond dispute that the parents of public-school children in New York and Pennsylvania presently receive the 'benefit' of having their children educated totally at state expense; the statutes enacted in those States and at issue here merely attempt to equalize that 'benefit' by giving to parents of private-school children, in the form of dollars or tax deductions, what the parents of public-school children receive in kind. It is no more than simple equity to grant partial relief to parents who support the public schools they do not use.
72
The Court appears to distinguish the Pennsylvania and New York statutes from Everson and Allen on the ground that here the state aid is not apportioned between the religious and secular activities of the sectarian schools attended by some recipients, while in Everson and Allen the state aid was purely secular in nature. But that distinction has not been followed in the past, see Quick Bear v. Leupp, supra, and is not likely to be considered controlling in the future. There are at present many forms of government assistance to individuals that can be used to serve religious ends, such as social security benefits or 'G. I. Bill' payments, which are not subject to nonreligious-use restrictions. Yet, I certainly doubt that today's majority would hold those statutes unconstitutional under the Establishment Clause.
73
Since I am unable to discern in the Court's analysis of Everson and Allen any neutral principle to explain the result reached in these cases, I fear that the Court has in reality followed the unsupportable approach of measuring the 'effect' of a law by the percentage of the recipients who choose to use the money for religious, rather than secular, education. Indeed, in discussing the New York tax credit provisions, the Court's opinion argues that the 'tax reductions authorized by this law flow primarily to the parents of children attending sectarian, nonpublic schools.' 413 U.S., at 794, 93 S.Ct., at 2976. While the opinion refrains from 'intimating whether this factor alone might have controlling significance in another context in some future case,' ibid., similar references to this factor elsewhere in the Court's opinion suggest that it has been given considerable weight. Thus, the Court observes as to the New York tuition grant program: 'Indeed, it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian.' 413 U.S., at 783, 93 S.Ct., at 783 (emphasis added).
74
With all due respect, I submit that such a consideration is irrelevant to a constitutional determination of the 'effect' of a statute. For purposes of constitutional adjudication of that issue, it should make no difference whether 5%, 20%, or 80% of the beneficiaries of an educational program of general application elect to utilize their benefits for religious purposes. The 'primary effect' branch of our three-pronged test was never, at least to my understanding, intended to vary with the number of churches benefited by a statute under which state aid is distributed to private citizens.
75
Such a consideration, it is true, might be relevant in ascertaining whether the primary legislative purpose was to advance the cause of religion. But the Court has, and I think correctly, summarily dismissed the contention that either New York or Pennsylvania had an improper purpose in enacting these laws. The Court fully recognizes that the legislatures of New York and Pennsylvania have a legitimate interest in 'promoting pluralism and diversity among . . . public and nonpublic schools,' 413 U.S., at 773, 93 S.Ct., at 2965, in assisting those who reduce the State's expenses in providing public education, and in protecting the already overburdened public school system against a massive influx of private-school children. And in light of this Court's recognition of these secular legislative purposes, I fail to see any acceptable resolution to these cases except one favoring constitutionality.
76
I would therefore uphold these New York and Pennsylvania statutes. However sincere our collective protestations of the debt owed by the public generally to the parochial school systems, the wholesome diversity they engender will not survive on expressions of good will.
77
Mr. Justice WHITE joins this opinion insofar as it relates to the New York and Pennsylvania tuition grant statutes and the New York tax relief statute.
78
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice WHITE concur, dissenting in part.
79
Differences of opinion are undoubtedly to be expected when the Court turns to the task of interpreting the meaning of the Religion Clauses of the First Amendment, since our previous cases arising under these clauses, as the Court notes, 'have presented some of the most perplexing questions to come before this Court.' Supra, at 760. 1 dissent from those portions of the Court's opinion which strike down §§ 2 through 5, N.Y.Laws 1972, c. 414. Section 2 grants limited state aid to low-income parents sending their children to nonpublic schools and §§ 3 through 5, supra, make roughly comparable benefits available to middle-income parents through the use of tax deductions. I find both the Court's reasoning and result all but impossible to reconcile with Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), decided only three years ago, and with Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).
80
* The opinions in Walz, supra, make it clear that tax deductions and exemptions, even when directed to religious institutions, occupy quite a different constitutional status under the Religion Clauses of the First Amendment than do outright grants to such institutions. Mr. Chief Justice Burger, speaking for the Court in Walz, said:
81
'The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees 'on the public payroll.' There is no genuine nexus between tax exemption and establishment of religion.' 397 U.S., at 675, 90 S.Ct., at 1414 (emphasis added).
82
Mr. Justice Brennan in his concurring opinion amplified the distinction between tax benefits and direct payments in these words:
83
'Tax exemptions and general subsidies, however, are qualitatively different. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. . . . Tax exemptions, accordingly, constitute mere passive state involvement with religion and not the affirmative involvement characteristic of outright governmental subsidy.' Id., at 690—691, 90 S.Ct., at 1423 (footnotes omitted).
84
Here the effect of the tax benefit is trebly attenuated as compared with the outright exemption considered in Walz. There the result was a complete forgiveness of taxes, while here the result is merely a reduction in taxes. There the ultimate benefit was available to an actual house of worship, while here even the ultimate benefit redounds only to a religiously sponsored school. There the churches themselves received the direct reduction in the tax bill, while here it is only the parents of the children who are sent to religiously sponsored schools who receive the direct benefit.
85
The Court seeks to avoid the controlling effect of Walz by comparing its historical background to the relative recency of the challenged deduction plan; by noting that in its historical context, a property tax exemption is religiously neutral, whereas the educational cost deduction here is not; and by finding no substantive difference between a direct reimbursement from the State to parents and the State's abstention from collecting the full tax bill which the parents would otherwise have had to pay.
86
While it is true that the Court reached its result in Walz in part by examining the unbroken history of property tax exemptions for religious organizations in this country, there is no suggestion in the opinion that only those particular tax exemption schemes that have roots in pre-Revolutionary days are sustainable against an Establishment Clause challenge. As the Court notes in its opinion, historical acceptance alone would not have served to validate the tax exemption upheld in Walz because "no one acquires a vested or protected right in violation of the Constitution by long use." Supra, at 2975, citing 397 U.S. at 678, 90 S.Ct., at 1416.
87
But what the Court gives in the form of dicta with one hand, it takes away in the form of its holding with the other. For if long-established use of a particular tax exemption scheme leads to a holding that the scheme is constitutional, that holding should extend equally to newly devised tax benefit plans which are indistinguishable in principle from those long established.
88
The Court's statements that '(s)pecial tax benefits, however, cannot be squared with the principle of neutrality established by the decisions of this Court,' supra, at 793, and that 'insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions,' ibid., at 2976, are impossible to reconcile with Walz. Who can doubt that the tax exemptions which that case upheld were every bit as much of a 'special tax benefit' as the New York tax deduction plan here, or that the benefits resulting from the exemption in Walz had every bit as much tendency to 'aid and advance . . . religious institutions' as did New York's plan here?
89
The Court nonetheless declares that what has been authorized by the legislature is not a true deduction and in substance provides an incentive for parents to send their children to sectarian schools because the amount deductible from adjusted gross income bears no relationship to amounts actually expended for nonpublic education. Support for its notion that the authorization is essentially the same as a tax credit or a reimbursement is drawn from the fact that the net benefit under the reimbursement plan established in § 2 of c. 414 is equal to the net tax savings for those at the lower-income end of the tax deduction plan.1 But the deduction here allowed is analytically no different from any other flat-rate exemptions or deductions currently in use in both federal and state tax systems. Surely neither the standard deduction,2 usable by those taxpayers who do not itemize their deductions, nor personal3 or dependency exemptions,4 for example, bear any relationship whatsoever to the actual expenses accrued in earning any of them. Yet none of these could properly be called a reimbursement from the State. And it would take more of a record5 than is present in this case to prove that the possibility of a slightly lower aggregate tax bill accorded New York taxpayers who send their dependents to nonpublic schools provides any more incentive to send children to such schools than personal exemptions provide for getting married or having children. That parents might incidentally find it easier to send children to nonpublic schools has not heretofore been held to require invalidation of a state statute. Board of Education. v. Allen, supra; Everson v. Board of Education, supra.
90
The sole difference between the flat-rate exemptions currently in widespread use and the deduction established in §§ 4 and 5 is that the latter provides a regressive benefit. This legislative judgment, however, as to the appropriate spread of the expense of public and nonpublic education is consonant with the State's concern that those at the lower end of the income brackets are less able to exercise freely their consciences by sending their children to nonpublic schools, and is surely consistent with the 'benevolent neutrality' we try to uphold in reconciling the tension between the Free Exercise and Establishment Clauses. Walz, supra, 397 U.S., at 669, 90 S.Ct., at 1411. Regardless of what the Court chooses to call the New York plan, it is still abstention from taxation, and that abstention stands on no different theoretical footing, in terms of running afoul of the Establishment Clause, from any other deduction or exemption currently allowable for religious contributions or activities.6 The invalidation of the New York plan is directly contrary to this Court's pronouncements in Walz, supra.
II
91
In striking down both plans, the Court places controlling weight on the fact that the State has not purported to restrict to secular purposes either the reimbursements or the money which it has not taxed. This factor assertedly serves to distinguish Board of Education v. Allen, supra, and Everson v. Board of Education, supra, and compels the result that inevitably the primary effect of the plans is to provide financial support for sectarian schools.
92
In Everson, supra, the Court sustained the constitutional validity of a New Jersey statute and resulting school board regulation that provided, in part, for the direct reimbursement to parents of children attending sectarian schools of amounts expended in providing public transportation to and from such schools. Expressly noting that the challenged regulation undoubtedly helped children to get to church schools and that
93
'(t)here is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State . . .,' 330 U.S., at 17, 67 S.Ct., at 512,
94
the majority in an opinion written by Mr. Justice Black held that the state scheme did not violate the Establishment Clause. And it was emphasized that the State in that case contributed no money to the schools, id., at 18, 67 S.Ct., at 513; rather it did no more than effectuate a secular purpose—the transportation of children safely and expeditiously to and from accredited schools.
95
Similarly in Allen, supra, a state program whereby secular textbooks were loaned to all children in accredited schools was approved as consistent with the Establishment Clause, even though the Court recognized that free books made it more likely that some children would choose to attend a sectarian school. 392 U.S., at 244, 88 S.Ct., at 1926. It was again emphasized that 'no funds or books (were) furnished to parochial schools,' and that therefore 'the financial benefit (was) to parents and children, not to schools.' Id., at 243—244, 88 S.Ct., at 1926. This factor was considered crucial in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), where the Court stated, at 621, 91 S.Ct., at 2115:
96
'The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. This factor distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents—not to the church-related school. . . .' (Emphasis added.)
97
Both Everson and Allen gave significant recognition to the 'benevolent neutrality' concept, and the Court was guided by the fact that any effect from state aid to parents has a necessarily attenuated impact on religious institutions when compared to direct aid to such institutions.
98
The reimbursement and tax benefit plans today struck down, no less than the plans in Everson and Allen, are consistent with the principle of neutrality. New York has recognized that parents who are sending their children to nonpublic schools are rendering the State a service by decreasing the costs of public education and by physically relieving an already overburdened public school system. Such parents are nonetheless compelled to support public school services unused by them and to pay for their own children's education. Rather than offering 'an incentive to parents to send their children to sectarian schools,' supra, at 786, as the majority suggests, New York is effectuating the secular purpose of the equalization of the costs of educating New York children that are borne by parents who send their children to nonpublic schools. As in Everson and Allen, the impact, if any, on religious education from the aid granted is significantly diminished by the fact that the benefits go to the parents rather than to the institutions.
99
The increasing difficulties faced by private schools in our country are no reason at all for this Court to readjust the admittedly rough-hewn limits on governmental involvement with religion which are found in the First and Fourteenth Amendments. But, quite understandably, these difficulties can be expected to lead to efforts on the part of those who wish to keep alive pluralism in education to obtain through legislative channels forms of permissible public assistance which were not thought necessary a generation ago. Within the limits permitted by the Constitution, these decisions are quite rightly hammered out on the legislative anvil. If the Constitution does indeed allow for play in the legislative joints, Walz, supra, 397 U.S., at 669, 90 S.Ct., at 1411, the Court must distinguish between a new exercise of power within constitutional limits and an exercise of legislative power which transgresses those limits. I believe the Court has failed to make that distinction here, and I therefore dissent.
100
Mr. Justice WHITE, joined in part by THE CHIEF JUSTICE and Mr. Justice REHNQUIST, dissenting.
101
Each of the States regards the education of its young to be a critical matter—so much so that it compels school attendance and provides an educational system at public expense. Any otherwise qualified child is entitled to a free elementary and secondary school education, or at least an education that costs him very little as compared with its cost to the State.
102
This Court has held, however, that the Due Process Clause of the Fourteenth Amendment to the Constitution entitles parents to send their children to nonpublic schools, secular or sectarian, if those schools are sufficiently competent to educate the child in the necessary secular subjects. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). About 10% of the Nation's children, approximately 5.2 million students, now take this option and are not being educated in public schools at public expense. Under state law these children have a right to a free public education and it would not appear unreasonable if the State, relieved of the expense of educating a child in the public school, contributed to the expense of his education elsewhere. The parents of such children pay taxes, including school taxes. They could receive in return a free education in the public schools. They prefer to send their children, as they have the right to do, to nonpublic schools that furnish the satisfactory equivalent of a public school education but also offer subjects or other assumed advantages not available in public schools. Constitutional considerations aside, it would be understandable if a State gave such parents a call on the public treasury up to the amount it would have cost the State to educate the child in public school, or, to put it another way, up to the amount the parents save the State by not sending their children to public school.
103
In light of the Free Exercise Clause of the First Amendment, this would seem particularly the case where the parent desires his child to attend a school that offers not only secular subjects but religious training as well. A State should put no unnecessary obstacles in the way of religious training for the young. 'When the state encourages religious instruction . . . it follows the best of our traditions.' Zorach v. Clauson, 343 U.S. 306, 313—314, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952); Walz v. Tax Comm'n, 397 U.S. 664, 676, 90 S.Ct. 1409, 1415, 25 L.Ed.2d 697 (1970). Positing an obligation on the State to educate its children, which every State acknowledges, it should be wholly acceptable for the State to contribute to the secular education of children going to sectarian schools rather than to insist that if parents want to provide their children with religious as well as secular education, the State will refuse to contribute anything to their secular training.
104
Historically, the States of the Union have not furnished public aid for education in private schools. But in the last few years, as private education, particularly the parochial school system, has encountered financial difficulties, with many schools being closed and many more apparently headed in that direction, there has developed a variety of programs seeking to extend at least some aid to private educational institutions. Some States have provided only fringe benefits or auxiliary services. Others attempted more extensive efforts to keep the private school system alive. Some made direct arrangements with private and parochial schools for the purchase of secular educational services furnished by those schools.1 Others provided tuition grants to parents sending their children to private schools, permitted dual enrollments or shared-time arrangements or extended substantial tax benefits in some form.2 The dimensions of the situation are not difficult to outline.3 The 5.2 million private elementary and secondary school students in 1972 attended some 3,200 nonsectarian private schools and some 18,000 schools that are church related. Twelve thousand of the latter were Roman Catholic schools and enrolled 4.37 million pupils or 83% of the total nonpublic school membership. Sixty-two percent of nonpublic school students are concentrated in eight industrialized, urbanized States: New York, Pennsylvania, Illinois, California, Ohio, New Jersey, Michigan, and Massachusetts.4 Eighty-three percent of the nonpublic school enrollment is to be found in large metropolitan areas. Nearly one out of five students in cities that are among the Nation's largest is enrolled in a nonpublic school.5
105
Nonpublic school enrollment has dropped at the rate of 6% per year for the past five years. Projected to 1980, it is estimated that seven States (the eight mentioned in the text less Massachusetts) will lose 1,416,122 nonpublic school students. Whatever the reasons, there has been, and there probably will continue to be, a movement to the public schools, with the prospect of substantial increases in public school budgets that are already under intense attack and with the States and cities that are primarily involved already facing severe financial crises. It is this prospect that has prompted some of these States to attempt, by a variety of devices, to save, or slow the demise of, the nonpublic school system, an educational resource that could deliver quality education at a cost to the public substantially below the per-pupil cost of the public schools.6 There are, then, the most profound reasons, in addition to those normally attending the question of the constitutionality of a state statute, for this Court to proceed with the utmost care in deciding these cases. It should not, absent a clear mandate in the Constitution, invalidate these New York and Pennsylvania statutes and thereby not only scuttle state efforts to hold off serious financial problems in their public schools but also make it more difficult, if not impossible, for parents to follow the dictates of their conscience and seek a religious as well as secular education for their children.
106
I am quite unreconciled to the Court's decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I thought then, and I think now, that the Court's conclusion there was not required by the First Amendment and is contrary to the long-range interests of the country. I therefore have little difficulty in accepting the New York maintenance grant, which does not and could not, by its terms, approach the actual repair and maintenance cost incurred in connection with the secular education services performed for the State in parochial schools. But, accepting Lemon and the invalidation of the New York maintenance grant, I would, with THE CHIEF JUSTICE and Mr. Justice REHNQUIST, sustain the New York and Pennsylvania tuition grant statutes and the New York tax credit provisions.
107
No one contends that he can discern from the sparse language of the Establishment Clause that a State is forbidden to aid religion in any manner whatsoever or, if it does not mean that, what kind of or how much aid is permissible. And one cannot seriously believe that the history of the First Amendment furnishes unequivocal answers to many of the fundamental issues of church-state relations. In the end, the courts have fashioned answers to these questions as best they can, the language of the Constitution and its history having left them a wide range of choice among many alternatives. But decision has been unavoidable; and, in choosing, the courts necessarily have carved out what they deemed to be the most desirable national policy governing various aspects of church-state relationships.
108
The course of these decisions has made it clear that the First Amendment does not bar all state aid to religion, of whatever kind or extent. States do, and they may, furnish churches and parochial schools with police and fire protection as well as water and sewage facilities. Also, '(a)ll of the 50 States provide for tax exemption of places of worship, most of them doing so by constitutional guarantees.' Walz v. Tax Comm'n, 397 U.S., at 676, 90 S.Ct., at 1415. This is a multimillion-dollar benefit to religious institutions, see Douglas, J., dissenting in Walz, supra, at 714, 90 S.Ct., at 1434, but a benefit that this Court has held is wholly consistent with the First Amendment. Bus transportation may be furnished to students attending parochial schools as well as to those going to public schools. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). So, too, the State may furnish school books to such students, Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), although in doing so they 'relieved those churches of an enormous aggregate cost for those books.' Walz, supra, 397 U.S., at 671—672, 90 S.Ct., at 1413. A State may also become the owner of the property of a churchsponsored college and lease it back to the college, all with the purpose and effect of permitting revenue bonds issued in connection with the college's operation to be tax exempt and working a lower rate of interest and substantial savings to the sectarian institution. Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923.
109
The Court thus has not barred all aid to religion or to religious institutions. Rather, it has attempted to devise a formula that would help identify the kind and degree of aid that is permitted or forbidden by the Establishment Clause. Until 1970, the test for compliance with the Clause was whether there was 'a secular legislative purpose and a primary effect that neither advances nor inhibits religion . . .'; given a secular purpose, what is 'the primary effect of the enactment?' School District of Abington Township v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963); Board of Education v. Allen, supra, 392 U.S., at 243, 88 S.Ct., at 1926. In 1970, a third element surfaced—whether there is 'an excessive government entanglement with religion.' Walz v. Tax Comm'n, supra, 397 U.S., at 674, 90 S.Ct., at 1414. That element was not fatal to real property tax exemptions for church property but proved to be the crucial element in Lemon v. Kurtzman, supra, where the Court struck down the efforts by the States of Pennsylvania and Rhode Island to stave off financial disaster for their parochial school systems, the saving of which each of these States deemed important to the public interest. In accordance with one formula or the other, the laws in question furnished part of the cost incurred by private schools in furnishing secular education to substantial segments of the children in those States. Conceding a valid secular purpose and not reaching the question of primary effect, the Court concluded that the laws excessively, and therefore fatally, entangled the State with religion. What appeared to be an insoluble dilemma for the States, however, proved no insuperable barrier to the Federal Government in aiding sectarian institutions of higher learning by direct grants for specified facilities, Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). And Hunt v. McNair, supra, evidences the difficulty in perceiving when the State's involvement with religion passes the peril point.
110
But whatever may be the weight and contours of entanglement as a separate constitutional criterion, it is of remote relevance in the cases before us with respect to the validity of tuition grants or tax credits involving or requiring no relationships whatsoever between the State and any church or any church school. So, also, the Court concedes the State's genuine secular purpose underlying these statutes. It therefore necessarily arrives at the remaining consideration in the threefold test which is apparently accepted from prior cases: Whether the law in question has 'a primary effect that neither advances nor inhibits religion.' School District of Abington Township v. Schempp, supra. While purporting to accept the standard stated in this manner, the Court strikes down the New York maintenance law, because its 'effect, inevitably, is to subsidize and advance the religious mission of sectarian schools,' and for the same reason invalidates the tuition grants. See ante, at 779—780. But the test is one of 'primary' effect not any effect. The Court makes no attempt at that ultimate judgment necessarily entailed by the standard heretofore fashioned in our cases. Indeed, the Court merely invokes the statement in Everson v. Board of Education, 330 U.S., at 16, 67 S.Ct., at 511, that no tax can be levied 'to support any religious activities . . ..' But admittedly there was no tax levied here for the purpose of supporting religious activities; and the Court appears to accept those cases, including Tilton, that inevitably involved aid of some sort or in some amount to the religious activities of parochial schools. In those cases, the judgment was that as long as the aid to the school could fairly be characterized as supporting the secular educational functions of the school, whatever support to religion resulted from this direct, Tilton v. Richardson, supra, or indirect, Everson v. Board of Education, supra; Board of Education v. Allen, supra; Walz v. Tax Comm'n, supra; Hunt v. McNair, supra, contribution to the school's overall budget was not violative of the primary-effect test or of the Establishment Clause.
111
There is no doubt here that Pennsylvania and New York have sought in the challenged laws to keep their parochial schools system alive and capable of providing adequate secular education to substantial numbers of students. This purpose satisfies the Court, even though to rescue schools that would otherwise fail will inevitably enable those schools to continue whatever religious functions they perform. By the same token, it seems to me, preserving the secular functions of these schools is the overriding consequence of these laws and the resulting, but incidental, benefit to religion should not invalidate them.
112
At the very least I would not strike down these statutes on their face. The Court's opinion emphasizes a particular kind of parochial school, one restricted to students of particular religious beliefs and conditioning attendance on religious study. Concededly, there are many parochial schools that do not impose such restrictions. Where they do not, it is even more difficult for me to understand why the primary effect of these statutes is to advance religion. I do not think it is and therefore dissent from the Court's judgment invalidating the challenged New York and Pennsylvania statutes.
113
THE CHIEF JUSTICE and Mr. Justice REHNQUIST join this opinion insofar at it relates to the New York and Pennsylvania tuition grant statutes and the New York tax credit statute.
1
Madison's Memorial and Remonstrance was the catalytic force occasioning the defeat in Virginia of an Assessment Bill designed to extract taxes in support of teachers of the Christian religion. See n. 28, infra. See also Everson v. Board of Education, 330 U.S. 1, 28, 33—41, 67 S.Ct. 504, 517, 520—524, 91 L.Ed. 711 (1947) (Rutledge, J., dissenting).
2
Madison's often-quoted declaration is reprinted as an appendix to the dissenting opinions of Mr. Justice Rutledge and Mr. Justice Douglas in Everson v. Board of Education, supra, 330 U.S., at 63, 65, 67 S.Ct., at 534, 535, and Walz v. Tax Comm'n, 397 U.S. 664, 700, 719, 721, 90 S.Ct. 1409, 1427, 1437, 1438, 25 L.Ed.2d 697 (1970), respectively.
3
The provisions of the First Amendment have been made binding on the States through the Due Process Clause of the Fourteenth Amendment. See, e.g., Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943).
4
Walz v. Tax Comm'n, supra, 397 U.S., at 668, 90 S.Ct., at 1411. Mr. Chief Justice Burger, writing for the Court, noted that the purpose of the Clauses 'was to state an objective, not to write a statute,' and that '(t)he Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.' Id., at 668 669, 90 S.Ct., at 1411.
5
The existence, at this stage of the Court's history, of guiding principles etched over the years is difficult cases does not, however, make our task today an easy one. For it is evident from the numerous opinions of the Court, and of Justices in concurrence and dissent in the leading cases applying the Establishment Clause, that no 'bright line' guidance is afforded. Instead, while there has been general agreement upon the applicable principles and upon the framework of analysis, the Court has recognized its inability to perceive with invariable clarity the 'lines of demarcation in this extraordinarily sensitive area of constitutional law.' Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). And, at least where questions of entanglements are involved, the Court has acknowledged that, as of necessity, the 'wall' is not without bends and may constitute a 'blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.' Id., at 614, 91 S.Ct., at 2112.
6
The motion was granted in favor of Mr. Earl W. Brydges. Upon his retirement in December 1972, his successor, Mr. Warren M. Anderson, was substituted.
7
N.Y.Laws 1972, c. 414, § 1, amending N.Y.Educ.Law, Art. 12, §§ 549—553 (McKinney's Consol.Laws, c. 16, Supp.1972—1973).
8
Id., § 550(5).
9
Id., § 550(2).
10
Id., § 550(6).
11
Id., § 549.
12
N.Y.Laws 1972, c. 414, § 2, amending N.Y.Educ.Law, Art. 12—A, §§ 559—563 (Supp.1972—1973).
13
Id., § 559(1).
14
Id., § 559(2).
15
Id., § 559(3).
16
Id., § 559(4).
17
N.Y.Laws 1972, c. 414, §§ 3, 4, and 5, amending N.Y.Tax Law §§ 612(c), 612(j) (McKinney's Consol. Laws, c. 60, Supp. 1972 1973).
18
Section 5 contains the following table:
If New York adjusted The amount allowable
gross income is: for each dependent is:
Less than $9,000 $1,000
9,000-10,999 850
11,000-12,999 700
13,000-14,999 550
15,000-16,999 400
17,000-18,999 250
19,000-20,999 150
21,000-22,999 125
23,000-24,999 100
25,000 and over —0—
N.Y.Tax Law § 612(j)(1) (Supp.1972-1973).
19
The following computations were submitted by Senator Brydges:
Estimated Net Benefit to Family
If Adjusted Gross One Two Three
Income is child children or more
less than $9,000 $50.00 $100.00 $150.00
9,000-10,999 42.50 85.00 127.50
11,000-12,999 42.00 84.00 126.00
13,000-14,999 38.50 77.00 115.50
15,000-16,999 32.00 64.00 96.00
17,000-18,999 22.50 45.00 67.50
19,000-20,999 15.00 30.00 45.00
21,000-22,999 13.75 27.50 41.25
23,000-24,999 12.00 24.00 36.00
25,000 and over 0 0 0
20
N.Y.Tax Law § 612 (Supp. 1972—1973) (accompanying notes).
21
Committee for Public Education and Religious Liberty v. Levitt, 342 F.Supp. 439, 440—441 (SDNY 1972), aff'd, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736.
22
As indicated in the District Court's opinion, it has been estimated that 280 schools would qualify for such grants. The relevant criteria for determining eligibility are set out in 20 U.S.C. § 425, and the central test is whether the school is one 'in which there is a high concentration of students from low-income families.'
23
In the fall of 1968, there were 2,038 nonpublic schools in New York State; 1,415 Roman Catholic; 164 Jewish; 59 Lutheran; 49 Episcopal; 37 Seventh Day Adventist; 18 other church affiliated; 296 without religious affiliation. N.Y. State Educ. Dept., Financial Support—Nonpublic Schools 3 (1969).
24
No. 72—694, Committee for Public Education and Religious Liberty v. Nyquist.
25
No. 72—791, Nyquist v. Committee for Public Education and Religious Liberty.
26
No. 72—753, Anderson v. Committee for Public Education and Religious Liberty.
27
No. 72—929, Cherry v. Committee for Public Education and Religious Liberty.
28
Virginia's experience, examined at length in the majority and dissenting opinions in Everson, constitutes one of the greatest chapters in the history of this country's adoption of the essentially revolutionary notion of separation between Church and State. During the Colonial Era and into the late 1700's, the Anglican Church appeared firmly seated as the established church of Virginia. But in 1776, assisted by the persistent efforts of Baptists, Presbyterians, and Lutherans, the Virginia Convention approved a provision for its first constitution's Bill of Rights calling for the free exercise of religion. The provision, drafted by George Mason and substantially amended by James Madison, stated '(t)hat religion . . . and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience . . ..'
But the Virginia Bill of Rights contained no prohibition against the Establishment of Religion, and the next eight years were marked by debate over the relationship between Church and State. In 1784, a bill sponsored principally by Patrick Henry, entitled A Bill Establishing a Provision for Teachers of the Christian Religion, was brought before the Virginia Assembly. The Bill, reprinted in full as an Appendix to Mr. Justice Rutledge's dissenting opinion in Everson v. Board of Education, 330 U.S. 1, 72—74, 67 S.Ct. 504, 539—540, 91 L.Ed. 711 (1947), required all persons to pay an annual tax 'for the support of Christian teachers' in order that the teaching of religion might be promoted. Each taxpayer was permitted under the Bill to declare which church he desired to receive his share of the tax. The Bill was not voted on during the 1784 session, and prior to the convening of the 1785 session Madison penned his Memorial and Remonstrance against Religious Assessments, outlining in 15 numbered paragraphs the reasons for his opposition to the Assessments Bill. The document was widely circulated and inspired such overwhelming opposition to the Bill that it died during the ensuing session without reaching a vote. Madison's Memorial and Remonstrance, recognized today as
one of the cornerstones of the First Amendment's guarantee of government neutrality toward religion, also provided the necessary foundation for the immediate consideration and adoption of Thomas Jefferson's Bill for Establishing Religious Freedom, which contained Virginia's first acknowledgment of the principle of total separation of Church and State. The core of that principle, as stated in the Bill, is that 'no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever . . ..' In Jefferson's perspective, so vital was this 'wall of separation' to the perpetuation of democratic institutions that it was this Bill, along with his authorship of the Declaration of Independence and the founding of the University of Virginia, that he wished to have inscribed on his tombstone. Report of the Comm'n on Constitutional Revision, The Constitution of Virginia 100—101 (1969).
Both Madison's Bill of Rights provision on the free exercise of religion and Jefferson's Bill for Establishing Religious Freedom have remained in the Virginia Constitution, unaltered in substance, throughout that State's history. See Va.Const., Art. I, § 16, in which the two guarantees have been brought together in a single provision. For comprehensive discussions of the pertinent Virginia history, see S. Cobb, The Rise of Religious Liberty in America 74—115, 490—499 (reprinted 1970); C. James, The Struggle for Religious Liberty in Virginia (1900); I. Brant, James Madison The Nationalist 1780—1787, pp. 343—355 (1948).
29
McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948) ('release time' from public education for religious education); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (also a 'release time' case); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (prayer reading in public schools); School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Bible reading in public schools); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (anti-evolutionary limitation on public school study).
30
Everson v. Board of Education, supra (bus transportation); Board of Education v. Allen, 382 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (textbooks); Lemon v. Kurtzman, supra (teachers' salaries, textbooks, instructional materials); Earley v. DiCenso, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (teachers' salaries); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (secular college facilities).
31
In discussing the application of these 'tests,' Mr. Chief Justice Burger noted in Tilton v. Richardson, supra, that 'there is no single constitutional caliper that can be used to measure the precise degree' to which any one of them is applicable to the state action under scrutiny. Rather, these tests or criteria should be 'viewed as guidelines' within which to consider 'the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause.' Id., at 677—678, 91 S.Ct., at 2095.
32
The plurality in Tilton was careful to point out that there are 'significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools.' 403 U.S., at 685, 91 S.Ct., at 2099. See Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923.
33
Our Establishment Clause precedents have recognized the special relevance in this area of Mr. Justice Holmes' comment that 'a page of history is worth a volume of logic.' See Walz v. Tax Comm'n, 397 U.S., at 675—676, 90 S.Ct., at 1414—1415 (citing New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921)). In Everson, Mr. Justice Black surveyed the history of state involvement in, and support of, religion during the pre-Revolutionary period and concluded:
'These practices became so common-place as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.' 330 U.S., at 11, 67 S.Ct., at 509 (emphasis supplied).
34
The pertinent section reads as follows:
'In order to meet proper health, welfare and safety standards in qualifying schools for the benefit of the pupils enrolled therein, there shall be apportioned health, welfare and safety grants by the commissioner to each qualifying school for the school years beginning on and after July first, nineteen hundred seventy-one, an amount equal to the product of thirty dollars multiplied by the average daily attendance of pupils receiving instruction in such school, to be applied for costs of maintenance and repair. Such apportionment shall be increased by ten dollars multiplied by the average daily attendance of pupils receiving instruction in a school building constructed prior to nineteen hundred forty-seven. In no event shall the per pupil annual allowance computed under this section exceed fifty per centum of the average per pupil cost of equivalent maintenance and repair in the public schools of the state on a state-wide basis, as determined by the commissioner, and in no event shall the apportionment to a qualifying school exceed the amount of expenditures for maintenance and repair of such school as reported pursuant to section five hundred fifty-two of this article.' N.Y.Educ.Law, Art. 12, § 551 (Supp. 1972—1973) (emphasis supplied).
35
Elsewhere in the opinion, the Court emphasized the necessity for the States of Rhode Island and Pennsylvania to assure, through careful regulation, the secularity of their grants:
'The two legislatures . . . have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses.' 403 U.S., at 613, 91 S.Ct., at 2111.
36
In Tilton, federal construction grants were limited to paying 50% of the cost of erecting any secular facility. In striking from the law the 20-year limitation, the Court was concerned lest any federally financed facility be used for religious purposes at any time. It was plainly not concerned only that at least 50% of the facility, or 50% of its life, be devoted to secular activities. Had this been the test there can be little doubt that the 20-year restriction would have been adequate.
37
In addition to Everson and Allen, THE CHIEF JUSTICE in his dissenting opinion relies on Quick Bear v. Leupp, 210 U.S. 50, 28 S.Ct. 690, 52 L.Ed. 954 (1908), for the proposition that 'government aid to individuals generally stands on an entirely different footing from direct aid to religious institutions.' 413 U.S., at 801, 93 S.Ct., at 2990. Quick Bear, however, did not involve the expenditure of tax-raised moneys to support sectarian schools. The funds that were utilized by the Indians to provide sectarian education were treaty and trust funds which the Court emphasized belonged to the Indians as payment for the cession of Indian land and other rights. 210 U.S., at 80—81, 28 S.Ct., at 698 699. It was their money, and the Court held that for Congress to have prohibited them from expending their own money to acquire a religious education would have constituted a prohibition of the free exercise of religion. Id., at 82, 28 S.Ct., at 700. The present litigation is quite unlike Quick Bear since that case did not involve the distribution of public funds, directly or indirectly, to compensate parents who send their children to religious schools.
38
Allen and Everson differ from the present litigation in a second important respect. In both cases the class of beneficiaries included all schoolchildren, those in public as well as those in private schools. See also Tilton v. Richardson, supra, in which federal aid was made available to all institutions of higher learning, and Walz v. Tax Comm'n, supra, in which tax exemptions were accorded to all educational and charitable nonprofit institutions. We do not agree with the suggestion in the dissent of THE CHIEF JUSTICE that tuition grants are an analogous endeavor to provide comparable benefits to all parents of schoolchildren whether enrolled in public or nonpublic schools. 413 U.S., at 801 803, 93 S.Ct., at 2990—2991. The grants to parents of private schoolchildren are given in addition to the right that they have to send their children to public schools 'totally at state expense.' And in any event, the argument proves too much, for it would also provide a basis for approving through tuition grants the complete subsidization of all religious schools on the ground that such action is necessary if the State is fully to equalize the position of parents who elect such schools—a result wholly at variance with the Establishment Clause.
Because of the manner in which we have resolved the tuition grant
issue, we need not decide whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited. See Wolman v. Essex, 342 F.Supp. 399, 412 413 (SD Ohio), aff'd, 409 U.S. 808, 93 S.Ct. 61, 34 L.Ed.2d 69 (1972). Thus, our decision today does not compel, as appellees have contended, the conclusion that the educational assistance provisions of the 'G. I. Bill,' 38 U.S.C. § 1651, impermissibly advance religion in violation of the Establishment Clause. See also n. 32, supra.
39
Appellees, focusing on the term 'principal or primary effect' which this Court has utilized in expressing the second prong of the three-part test, e.g., Lemon v. Kurtzman, supra, 403 U.S., at 612, 91 S.Ct., at 2111, have argued that the Court must decide in these cases whether the 'primary' effect of New York's tuition grant program is to subsidize religion or to promote these legitimate secular objectives. Mr. Justice WHITE'S dissenting opinion, 413 U.S., at 823, 93 S.Ct., at 2998, similarly suggests that the Court today fails to make this 'ultimate judgment.' We do not think that such metaphysical judgments are either possible or necessary. Our cases simply do not support the notion that a law found to have
a 'primary' effect to promote some legitimate end under the State's police power is immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion. In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), Sunday Closing Laws were upheld, not because their effect was, first, to promote the legitimate interest in a universal day of rest and recreation and only secondarily to assist religious interests; instead, approval flowed from the finding, based upon a close examination of the history of such laws, that they had only a remote and incidental effect advantageous to religious institutions. Id., 366 U.S., at 450, 81 S.Ct., at 1117. See also Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 630, 81 S.Ct. 1122, 1129, 6 L.Ed.2d 536 (1961); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 598, 81 S.Ct. 1135, 1143, 6 L.Ed.2d 551 (1961). Likewise, in Schempp the school authorities argued that Bible-reading and other religious recitations in public schools served, primarily, secular purposes, including 'the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature.' 374 U.S., at 223, 83 S.Ct., at 1572. Yet, without discrediting these ends and without determining whether they took precedence over the direct religious benefit, the Court held such exercises incompatible with the Establishment Clause. See also id., at 278—281, 83 S.Ct., at 1601—1603 (Brennan, J., concurring). Any remaining question about the contours of the 'effect' criterion were resolved by the Court's decision in Tilton, in which the plurality found that the mere possibility that a federally financed structure might be used for religious purposes 20 years hence was constitutionally unacceptable because the grant might 'in part have the effect of advancing religion.' 403 U.S., at 683, 91 S.Ct., at 2098 (emphasis supplied).
It may assist in providing a historical perspective to recall that the argument here is not a new one. The Preamble to Patrick Henry's Bill Establishing a Provision for Teachers of the Christian Religion, which would have required Virginians to pay taxes to support religious teachers and which became the focal point of Madison's Memorial and Remonstrance, see n. 28, supra, contained the following listing of secular purposes:
'(T)he general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve
the peace of society . . ..' Everson v. Board of Education, 330 U.S., at 72, 67 S.Ct., at 539 (Appendix to dissent of Rutledge, J.). Such ----secular objectives, no matter how desirable and irrespective of whether judges might possess sufficiently sensitive calipers to ascertain whether the secular effects outweigh the sectarian benefits, cannot serve today any more than they could 500 years ago to justify such a direct and substantial advancement of religion.
40
The forms of aid involved in Everson, Earley v. DiCenso, and Lemon, were all given as 'reimbursement,' yet not one line in any of those cases suggests that this factor was of any constitutional significance.
41
Brief for Appellee Anderson 25.
42
Ibid.
43
Ibid.
44
None of the three dissenting opinions filed today purports to rely on any such statistical assurances of secularity. Indeed, under the rationale of those opinions, it is difficult to perceive any limitations on the amount of state aid that would be approved in the form of tuition grants.
45
N.Y.Educ.Law, Art. 12—A, § 559(2) (Supp.1972—1973) (legislative finding supporting tuition reimbursement).
46
'(T)he basic purpose of these provisions . . . is to insure that no religion be sponsored or favored, none commanded, and none inhibited.' Walz v. Tax Comm'n, 397 U.S, at 669, 90 S.Ct., at 1411.
47
See n. 18, supra.
48
The estimated-benefit table is reprinted in n. 19, supra.
49
Since the program here does not have the elements of a genuine tax deduction, such as for charitable contributions, we do not have before us, and do not decide, whether that form of tax benefit is constitutionally acceptable under the 'neutrality' test in Walz.
50
Appellants conceded that 'should the Court decide that Section 2 of the Act does not violate the Establishment Clause, we are unable to see how it could hold otherwise in respect to Sections 3, 4 and 5.' Brief for Appellants 42—43. We agree that, under the facts of this case, the two are legally inseparable and that the affirmative of appellants' statement is also true, i.e., if § 2 does violate the Establishment Clause so, too, do the sections conferring tax benefits.
51
The separate opinions of Mr. Justice Harlan and Mr. Justice Brennan also emphasize the historical acceptance of tax-exempt status for religious institutions. See 397 U.S., at 680, 694, 90 S.Ct., at 1417—1424.
52
See also n. 38, supra.
53
As noted in the opinion below: 'This litigation is, in essence, a conflict between two groups of extraordinary good will and civic responsibility. One group fears the diminution of parochial religious education which is thought to be an integral part of their rights to the free exercise of religion. The other group, equally dedicated, believes that encroachment of Government in aid of religion is as dangerous to the secular state as encroachment of Government to restrict religion would be to its free exercise.' 350 F.Supp., at 660.
54
The Court in Lemon further emphasized that political division along religious lines is to be contrasted with the political diversity expected in a democratic society: 'Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969).' 403 U.S., at 622, 91 S.Ct., at 2116.
55
As some 20% of the total school population in New York attends private and parochial schools, the constituent base supporting these programs is not insignificant.
56
The self-perpetuating tendencies of any form of government aid to religion have been a matter of concern running throughout our Establishment Clause cases. In Schempp, the Court emphasized that it was 'no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment,' for what today is a 'trickling stream' may be a torrent tomorrow. 374 U.S., at 225, 83 S.Ct., at 1573. See also Lemon v. Kurtzman, 403 U.S., at 624—625, 91 S.Ct., at 2116—2117. But, to borrow the words from Mr. Justice Rutledge's forceful dissent in Everson it is not alone the potential expandability of state tax aid that renders such aid invalid. Not even 'three pence' could be assessed: 'Not the amount but 'the principle of assessment was wrong." 330 U.S., at 40—41, 67 S.Ct., at 523—524 (quoting from Madison's Memorial and Remonstrance).
1
N.Y.Laws 1972, c. 414, § 1, amending New York Educ.Law, Art. 12, §§ 549—553 (McKinney's Consol.Laws, c. 16, Supp.1972 1973).
2
Pa.Laws 1971, Act 92, Pa.Stat.Ann., Tit. 24, § 5701 et seq. (Supp.1972—1973); N.Y.Laws 1972, c. 414, § 2, amending N.Y.Educ.Law, Art. 12—A, §§ 559—563 (Supp.1972—1973); N.Y.Laws 1972, c. 414, §§ 3, 4, and 5, amending N.Y.Tax Law §§ 612(c), 612(j) (McKinney's Consol.Laws, c. 60, Supp.1972—1973).
3
Mr. Justice REHNQUIST'S dissent, which I join, states the reasons why I believe the Court has gravely misrepresented the Court's opinion in Walz. In this opinion, I state additional reasons why I dissent from Parts II—B and II—C of the Court's opinion.
4
In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Court specifically distinguished Everson and Allen on the ground that those cases involved aid to the parents and children and not to parochial schools:
'The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related schools. This factor distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents—not to the church-related school. . . .' Id., at 621, 91 S.Ct., at 2115 (emphasis, except for case names, added).
5
These considerations do not, however, justify similar state assistance accruing to the benefit of private schools having discriminatory policies. See Norwood v. Harrison, 413 U.S., at 461 468, 93 S.Ct., at 2808—2812.
1
N.Y.Laws 1972, c. 414, § 2, provided for flat tuition grants of $50 per year for parents who had children in nonpublic primary schools and $100 per year for parents whose children were attending nonpublic secondary schools. Tuition reimbursements were limited, however, to 50% of amounts actually expended, and only those parents whose adjusted gross incomes were less than $5,000 were eligible.
A table of estimated benefits from the tax modifications contained in §§ 4 and 5 was submitted to the legislators. That table indicated that taxpayers whose adjusted gross income fell between $5,000 and $9,000 received an estimated $50 per dependent attending nonpublic schools. The number of allowable deductions was limited to three.
2
See, e.g., 26 U.S.C. § 141 et seq. Currently, the maximum standard deduction allowable under the income tax laws is $2,000, regardless of a taxpayer's income or the number of his dependents. § 141(b). Similarly, there is a minimum low income allowance of $1,000 for those who do not qualify for the percentage standard deduction. § 141(c). Between these extremes, there is a standard deduction of 15% of adjusted gross income, § 141(b).
3
See, e.g., 26 U.S.C. § 151 et seq.
4
26 U.S.C. § 151(e).
5
There was no discovery or other development of a factual record in this case. There is, therefore, no indication as to how much tuition payments in nonpublic schools average and whether the relatively minor benefits under the plan could realistically be said to provide any incentive. And yet the Court has struck down this plan, arguing that its inevitable result is to encourage parents to send children to religious schools.
6
See, e.g., 26 U.S.C. §§ 170, 2055, 2522.
1
This kind of program was adopted by Pennsylvania and Rhode Island and was declared invalid in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
2
Based on State Aid to Non-Public Schools, a publication of the Department of Special Projects, National Catholic Educational Association, the following summarizes, as of February 1, 1972, the various types of aid to nonpublic schools available in the various States, exclusive of those types of support finally declared unconstitutional by this Court:
Direct Aid Programs:
Parental Grants or Reimbursement Schemes: 5 States (including New York and Pennsylvania).
Dual Enrollment (Shared Time): 9 States.
Tax Credits: 6 States (including New York).
Leasing of Nonpublic School Facilities by Public School Systems: 4 States.
Educational Opportunities for Rural Students: 1 State (Alaska).
Innovative Programs: 1 State (Illinois).
Exemption from State Sales Tax for Educational and Janitorial Supplies: 1 State (North Dakota).
Auxiliary Services or Benefits:
Transportation: 24 States plus District of Columbia.
Textbooks and Instructional Materials: 14 States.
Health and Welfare Services (i.e., school physician, nurse, dental services, hygienist, psychologist, speech therapist, social worker, etc.): 15 States.
Driver Education: 7 States (applies only to dually enrolled students in South Dakota).
Services for Educationally Disadvantaged Children, Educational Testing and Miscellaneous (principally aid services for deaf, blind, handicapped, or retarded children; educational testing; remedial programs, etc.): 11 States.
School Lunches: 2 States (New York and Louisiana).
Released Time: 2 States (Michigan and South Dakota).
Vocational Education: 2 States (Ohio and California).
Central Purchasing of Supplies: 2 States (Oregon and Washington).
Participation of Lay Teachers in Non-Public Schools in Public School Teachers Retirement Fund Scheme: 1 State (North Dakota).
A total of 16 States now extend one or more types of direct aid. 33 States, including almost all of the foregoing 16, offer auxiliary services or benefits. At least 19 States have constitutional or statutory barriers to any kind of direct aid to parochial schools.
3
The data in this and the following paragraph of the text are taken from Final Report, President's Panel on Nonpublic Education, 1972, pp. 5—6, 15—19. See also Hearings on H.R. 16141 and other pending proposals before the House Committee on Ways and Means, 92d Cong., 2d Sess., 118—119, 127—131.
4
Nonpublic enrollments in these States are as follows: New York, 789,110; Pennsylvania, 518,435; Illinois, 451,724; California, 398,981; Ohio, 339,435; New Jersey, 298,548; Michigan, 264,089; and Massachusetts, 205,011.
5
Enrollments in nonpublic schools in 15 of the country's largest cities are as follows:
Nonpublic Percentage
City enrollment of total
New York 358,594 24.3
Chicago 208,174 27.3
Philadelphia 146,298 33.6
Detroit 58,228 16.5
Los Angeles 43,601 6.3
New Orleans 41,938 27.2
Cleveland 36,922 19.4
Pittsburgh 36,661 19.4
Buffalo 36,623 33.8
Boston 35,237 27.1
Baltimore 33,833 15.0
Cincinnati 32,653 27.4
Milwaukee 32,256 19.8
San Francisco 29,582 23.9
St. Paul 22,267 30.3
6
The direct-aid programs for nonpublic schools available in the eight principally affected States listed in n. 4 are as follows:
New York
A. Full tuition and board for deaf and blind children educated at state-approved nonpublic schools.
B. Tuition (up to $2,000) for handicapped children educated at nonpublic schools.
C. Teacher salary payments to nonpublic schools operated by incorporated orphan asylum societies.
D. Omnibus Education Act.
1. Health and safety grants for nonpublic schools qualifying under Title IV of the Higher Education Act of 1965 as serving areas with high concentrations of poverty families.
2. Tuition assistance grants for parents with taxable incomes under $5,000.
3. Tax credit assistance for parents with incomes from $9,000 $25,000.
E. Mandated Services Act.
1. Reimbursement of nonpublic schools for costs of fulfilling state administrative requirements.
Pennsylvania
A. Dual enrollment.
B. Parent Reimbursement Act.
1. Reimbursement of parents for actual costs of nonpublic education of their children up to $75 for elementary school students and $150 for secondary school students.
Illinois
A. Grants to children from poverty families for actual costs of nonpublic education up to amount of state aid child would receive if attending public school.
B. Special grants for innovative programs.
California
A. Tax credit assistance for parents with incomes ranging to $19,000. Maximum credit is $125 per child per year in nonpublic school.
Ohio
A. Dual enrollment with respect to vocational training.
B. Tax credit assistance for parents of nonpublic school students up to $90 per child per year.
New Jersey
No direct aid.
Michigan
A. Released time.
B. Dual enrollment.
Recent state constitutional amendment precludes all other forms of direct aid.
Massachusetts
Direct aid is barred by state constitutional provision.
The estimated 1970 population (in thousands) of Catholics in relation to the total population in each of these eight States was as follows:
Total Estimated Catholic/
Population Catholics Total
Massachusetts 5,241 2,947 56.2%
New Jersey 7,332 2,898 39.5%
New York 18,361 6,558 35.7%
Pennsylvania 11,871 3,658 30.8%
Illinois 10,751 3,445 32.1%
Michagan 9,443 2,383 25.3%
Ohio 10,612 2,265 21.3%
California 20,250 4,053 20.0%
Source: State Aid to Non-Public Schools, see n. 2, supra.
| 23
|
413 U.S. 836
93 S.Ct. 2803
37 L.Ed.2d 993
Howard ALEXANDER et al., Petitioners,v.Commonwealth of VIRGINIA.
No. 71—1315.
Argued Oct. 19, 1972.
Decided June 25, 1973.
Rehearing Denied Oct. 9, 1973.
See 414 U.S. 881, 94 S.Ct. 29.
Stanley M. Dietz, Washington, D.C., for petitioners.
James E. Kulp, Richmond, Va., for respondent.
PER CURIAM.
1
The judgment of the Supreme Court of Virginia is vacated and the case is remanded for further proceedings not inconsistent with Miller v. California, 413 U.S. 15, at 23—25, 93 S.Ct. 2607, at 2614—2615, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slayton, 413 U.S. 49, at 58, 93 S.Ct. 2628, at 2635, 37 L.Ed.2d 446, n. 7 (1973); and Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). See United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, at 129—130 and n. 7, 93 S.Ct. 2665, at 2669—2670, 37 L.Ed.2d 500 (1973). A trial by jury is not constitutionally required in this state civil proceeding pursuant to § 18.1—236.3 of the Code of Virginia, 1950, as amended. See Melancon v. McKeithen, 345 F.Supp. 1025, 1027, 1035—1045, 1048 (ED La.), aff'd sub nom. Mayes v. Ellis, 409 U.S. 943, 93 S.Ct. 289, 34 L.Ed.2d 214 (1972), and Hill v. McKeithen, 409 U.S. 943, 93 S.Ct. 290, 34 L.Ed.2d 214 (1972). Cf. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 443—444, 77 S.Ct. 1325, 1328—1330, 1 L.Ed.2d 1469 (1957).
2
Vacated and remanded.
3
Mr. Justice DOUGLAS would reverse the judgment of the Supreme Court of Virginia. See Miller v. California, 413 U.S., p. 37, 93 S.Ct., p. 2622 (Douglas, J., dissenting).
4
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
5
I would reverse the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with my dissenting opinion in Paris Adult Theatre I v. Slaton, 413 U.S., at 73, 93 S.Ct., at 2642. See my dissent in Miller v. California, 413 U.S., at 47, 93 S.Ct., at 2627.
| 23
|
413 U.S. 472
93 S.Ct. 2814
37 L.Ed.2d 736
Arthur LEVITT, as Comptroller of the State of New York, and Ewald B. Nyquist, as Commissioner of Education of the State of New York, Appellants,v.COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al. Warren M. ANDERSON, as Majority Leader and President pro tem. of New York State Senate, Appellant, v. COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al. CATHEDRAL ACADEMY et al., Appellants, v. COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al.
Nos. 72—269 to 72—271.
Argued March 19, 1973.
Decided June 25, 1973.
Syllabus
The New York Legislature appropriated $28,000,000 to reimburse nonpublic schools in the State 'for expenses of services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports . . ..' Tests and examinations, the most expensive of these mandated services, are of two kinds: (a) state-prepared tests, such as 'Regents examinations' and 'Pupil Evaluation Program Tests,' and (b) traditional teacher-prepared tests, which constitute the overwhelming majority of tests in nonpublic schools. Qualifying schools receive annually, per pupil, $27 (grades one through six) and $45 (grades seven through 12), and are not required to account for the moneys received and how they are spent. While the Act states that it shall not be construed to authorize payments for religious worship or instruction, churchsponsored schools are eligible to receive payments thereunder. The three-judge District Court found the Act unconstitutional under the Establishment Clause and permanently enjoined its enforcement. The court rejected appellants' argument that payments are made only for 'secular, neutral, or non-ideological' services. The court held that the greatest portion of the funds is paid for the services of teachers in testing students and that testing is an integral part of the teaching process. The court dismissed as 'fanciful' the contention that a State may reimburse church-related schools for costs incurred in performing any service 'mandated' by state law. Held: 1. The statute constitutes an impermissible aid to religion contravening the Establishment Clause, since no attempt is made and no means are available to assure that internally prepared tests, which are 'an integral part of the teaching process,' are free of religious instruction and avoid inculcating students in the religious precepts of the sponsoring church. Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948. Pp. 479—481.
2. The inquiry is not whether the State should be permitted to pay for any 'mandated' activity, but whether the challenged state aid has the primary purpose or effect of advancing religion or religious education or whether it leads to excessive entanglement by the State in the affairs of the religious institution. Pp. 481—482.
3. The Act provides only for a single per-pupil allotment for a variety of services, some secular and some potentially religious, and the courts cannot properly reduce that allotment to correspond to the actual costs of performing reimbursable secular services, as that is a legislative and not a judicial function. P. 482.
342 F.Supp. 439, affirmed.
Jean M. Coon, Albany, N.Y., for appellants Levitt and others.
Leo Pfeffer, New York City, for appellees.
Porter R. Chandler, New York City, for appellants non-public schools.
[Amicus Curiae Information from page 473 intentionally omitted]
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We are asked to decide whether Chapter 138 of New York State's Laws of 1970 under which the State reimburses private schools throughout the State for certain costs of testing and recordkeeping, violates the Establishment Clause of the First Amendment. A three-judge District Court, with one judge dissenting, held the Act unconstitutional. 342 F.Supp. 439 (S.D.N.Y.1972). We noted probable jurisdiction. 409 U.S. 977, 93 S.Ct. 316, 34 L.Ed.2d 240.
2
* In April 1970, the New York Legislature appropriated $28,000,000 for the purpose of reimbursing nonpublic schools throughout the State
3
'for expenses of services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports as provided for or required by law or regulation.'1 New York Laws 1970, c. 138, § 2.
4
As indicated by the portion of the statute quoted above, the State has in essence sought to reimburse private schools for performing various 'services' which the State 'mandates.' Of these mandated services, by far the most expensive for nonpublic schools is the 'administration, grading and the compiling and reporting of the results of tests and examinations.' Such 'tests and examinations' appear to be of two kinds: (a) state-prepared examinations, such as the 'Regents examinations' and the 'Pupil Evaluation Program Tests.'2 and (b) traditional teacher-prepared tests, which are drafted by the nonpublic school teachers for the purpose of measuring the pupils' progress in subjects required to be taught under state law.3 The overwhelming majority of testing in nonpublic, as well as public, schools is of the latter variety.
5
Church-sponsored as well as secular nonpublic schools are eligible to receive payments under the Act. The District Court made findings that the Commissioner of Education had 'construed and applied' the Act 'to include as permissible beneficiaries schools which (a) impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doctrine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach.' 342 F.Supp., at 440—441.
6
A school seeking aid under the Act is required to submit an application to the Commissioner of Education, who may direct the applicant to file 'such additional reports' as he deems necessary to make a determination of eligibility. New York Laws 1970, c. 138, § 4. Qualifying schools receive an annual payment of $27 for each pupil in average daily attendance in grades one through six and $45 for each pupil in average daily attendance in grades seven through 12.4 Payments are made in two installments: Between January 15 and March 15 of the school year, one-half of the 'estimated total apportionment' is paid directly to the school; the balance is paid between April 15 and June 15. The Commissioner is empowered to make 'later payments for the purpose of adjusting and correcting apportionments.' Id., § 5.
7
Section 8 of the Act states: 'Nothing contained in this act shall be construed to authorize the making of any payment under this act for religious worship or instruction.' However, the Act contains no provision authorizing state audits of School financial records to determine whether a school's actual costs in complying with the mandated services are less than the annual lump sum payment. Nor does the Act require a school to return to the State moneys received in excess of its actual expenses.5 In appellant Nyquist's answers to appellees' interrogatories, which the parties stipulated could be 'taken as accepted facts for the purposes of this case,' the Commissioner stated that 'qualifying schools are not required to submit reports accounting for the moneys received and how they are expended.'
II
8
Appellees are New York taxpayers and an unincorporated association. They filed this suit in the United States District Court claiming that Chapter 138 abridges the Establishment Clause of the First Amendment. An injunction was sought enjoining appellants Levitt and Nyquist, the State Comptroller and Commissioner of Education, respectively, from enforcing the Act. State Senator Earl W. Brydges and certain Catholic and Jewish parochial schools qualified to receive aid under the Act were permitted to intervene as parties defendant.
9
A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281, 2284. After a hearing on the merits, a majority of the District Court permanently enjoined appellants from enforcement of the Act. The District Court concluded that this case was controlled by our decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and held the Act unconstitutional under the Establishment Clause.
10
In reaching its decision, the District Court rejected appellants' argument that the Act is constitutional because payments are made only for services that are 'secular, neutral, or nonideological' in character. Id., at 616, 91 S.Ct., at 2113. The court stated:
11
'By far the greatest portion of the funds appropriated under Chapter 138 is paid for the services of teachers in testing students, and testing is an integral part of the teaching process.' 342 F.Supp. at 444.
12
Likewise, the court dismissed as 'fanciful' the contention that a State may reimburse church-related schools for costs incurred in performing any service 'mandated' by state law.
III
13
In Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, the Court has today struck down a provision of New York law authorizing 'direct money grants from the State to 'qualifying nonpublic schools to be used for the 'maintenance and repair of . . . school facilities and equipment to ensure the health, welfare and safety of enrolled pupils." Id., at 762, 93 S.Ct., at 2960 (footnote omitted).6 The infirmity of the statute in Nyquist lay in its undifferentiated treatment of the maintenance and repair of facilities devoted to religious and secular functions of recipient sectarian schools. Since '(n)o attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes,' the Court held that the statute has the primary effect of advancing religion and is, therefore, violative of the Establishment Clause. Id., at 774, 93 S.Ct., at 2966.
14
The statute now before us, as written and as applied by the Commissioner of Education, contains some of the same constitutional flaws that led the Court to its decision in Nyquist.7 As noted previously, Chapter 138 provides for a direct money grant to sectarian schools for performance of various 'services.' Among those services is the maintenance of a regular program of traditional internal testing designed to measure pupil achievement. Yet, despite the obviously integral role of such testing in the total teaching process, no attempt is made under the statute, and no means are available, to assure that internally prepared tests are free of religious instruction.
15
We cannot ignore the substantial risk that these examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church. We do not 'assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment.' Lemon v. Kurtzman, 403 U.S., at 618, 91 S.Ct., at 2114. But the potential for conflict 'inheres in the situation,' and because of that the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination. See id., at 617, 619, 91 S.Ct., at 2113, 2114. Since the State has failed to do so here, we are left with no choice under Nyquist but to hold that Chapter 138 constitutes an impermissible aid to religion; this is so because the aid that will be devoted to secular functions is not identifiable and separable from aid to sectarian activities.
16
In the District Court and in this Court appellants insisted that payments under Chapter 138 do not aid the religious mission of church-related schools but merely provide partial reimbursement for totally nonsectarian activities performed at the behest of the State. Appellants, in other words, contend that this case is controlled by our decisions in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). In Everson we held that New Jersey could reimburse parents of parochial school children for expenses incurred in transporting the children on buses to their schools. And in Allen we upheld a New York statute requiring local school boards to lend secular textbooks 'to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law.' Id., at 239, 88 S.Ct., at 1924.
17
In this case, however, we are faced with state-supported activities of a substantially different character from bus rides or state-provided textbooks. Routine teacher-prepared tests, as noted by the District Court, are 'an integral part of the teaching process.' 342 F.Supp., at 444. And, '(i)n terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not.' Lemon v. Kurtzman, 403 U.S., at 617, 91 S.Ct., at 2113.
18
To the extent that appellants argue that the State should be permitted to pay for any activity 'mandated' by state law or regulation, we must reject the contention. State or local law might, for example, 'mandate' minimum lighting or sanitary facilities for all school buildings, but such commands would not authorize a State to provide support for those facilities in church-sponsored schools. The essential inquiry in each case, as expressed in our prior decisions, is whether the challenged state aid has the primary purpose or effect of advancing religion or religious education or whether it leads to excessive entanglement by the State in the affairs of the religious institution. Committee for Public Education and Religious Liberty v. Nyquist, supra, 413 U.S., at 772—773, 93 S.Ct., at 2965—2966; Kurtzman, supra, 403 U.S., at 612—613, 91 S.Ct., at 2111. That inquiry would be irreversibly frustrated if the Establishment Clause were read as permitting a State to pay for whatever it requires a private school to do.
19
We hold that the lump-sum payments under, Chapter 138 violate the Establishment Clause. Since Chapter 138 provides only for a single per-pupil allotment for a variety of specified services, some secular and some potentially religious, neither this Court nor the District Court can properly reduce that allotment to an amount corresponding to the actual costs incurred in performing reimbursable secular services. That is a legislative, not a judicial, function.
20
Accordingly, the judgment of the District Court is affirmed.
21
Judgment affirmed.
22
Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL are of the view that affirmance is compelled by our decision today in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, and Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939.
23
Mr. Justice WHITE dissents.
1
N.Y. Education Law § 305, McKinney's Consol.Laws, c. 16, charges the Commissioner of Education with the duty of maintaining general supervision over all schools throughout the State and with making sure that each school is 'examined and inspected.'
2
The Regents' examinations are described by appellants Levitt and Nyquist as 'state-wide tests of subject matter achievement.' The pupil evaluation program tests, the so-called 'PEP Tests,' are also administered throughout the State in grades three, six, and nine.
3
The District Court indicated that there was some doubt as to whether teacher-prepared tests are within the scope of the Act. The uncertainty was due to one of appellant Nyquist's answers to appellees' interrogatories, which stated that 'only the Regents Scholarship and January and June Regents Examinations might be regarded as specifically mandated.' 342 F.Supp. 439, 441 (emphasis in original interrogatory). The District Court, however, found it unnecessary to resolve this factual ambiguity, stating: 'While our decision as to the constitutionality of the statute does not turn on the factual question so presented, we mention it to illustrate the lack of certainty as to the purposes for which the moneys received are actually used, or, indeed, whether they can be regarded as specifically 'mandated." Ibid.
In this Court, appellants have insisted that since teacher-prepared examinations are required by state regulation they are included within the services reimbursed under the Act. In support of the former proposition, the appellants cite § 176.1(b) of the Regulations of the Commissioner of Education, which provides that all nonpublic schools 'shall conduct in all grades in which instruction is offered a continuing program of individual pupil testing designed to provide an adequate basis for evaluating pupil achievement, and in addition shall administer, rate and report the results of all specific tests or examinations which may be prescribed by the commissioner.' 8 N.Y.C.R.R. § 176.1(b).
Appellees do not contest the validity of appellants' construction of the Act, and we accept it for the purposes of this litigation.
4
Exactly how the $27 and $45 figures were arrived at is somewhat unclear. Appellant Nyquist, in his answer to appellees' interrogatories in the court below, gave the following explanation:
'That prior to the enactment of Chapter 138 of the Laws of 1970, a conference was held in which representatives of the Office of the Counsel to the Governor, of the Division of the Budget in the Executive Department and of the State Education Department participated; that at said conference the representatives of the State Education Department were asked whether the dollar amount in question was reasonable and that the answer was that to the best of their judgment the amount was reasonable; that no record of the said conference was made.'
5
Subsequent to the enactment of Chapter 138, the state conducted several studies to determine whether the per-pupil allotment under the statute exceeded the actual costs to schools in performing the mandated services. The District Court found the results 'cloudy':
'If such items as 'teacher examinations' and 'entrance examinations' are included in the list of 'mandated services,' it appears that the schools' expenses are at least as great as the amounts they receive from the state. But if those items are excluded, the amounts received from the state are substantially greater than the schools' expenses.' 342 F.Supp., at 441. As noted above, the court did not resolve the question whether payments under the Act were intended to compensate schools for internal testing. See n. 3, supra.
6
The Court's holding as to grants of public funds for 'maintenance and repair of . . . school facilities and equipment . . .' is sufficient authority to support affirmance of the District Court holding in this case: The author of this opinion joined that part of the Court's holding in Nyquist, supra, while dissenting from the holding that tuition grants and tax credits to parents are unconstitutional, and is of course, bound by all parts of the judgment.
7
We do not doubt that the New York Legislature had a 'secular legislative purpose' in enacting Chapter 138. See Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). The first section of the Act provides that the State has a 'primary responsibility' to assure that its youth receive an adequate education; that the State has the 'duty and authority' to examine and inspect all schools within its borders to make sure that adequate educational opportunities are being provided; and that the State has a legitimate interest in assisting those schools insofar as they aid the State in fulfilling its responsibility.
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